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US president, Barack Obama. Image: White House. US president, Barack Obama. Image: White House.[/caption]

Following release of the text of the Trans-Pacific Partnership Agreement (TPPA) on Thursday night, President Obama has given the 90-day notice to Congress that is required before he can sign the agreement. 

Under Article 30.5 the agreement would come into force 60 days after all original participants notified completion of their domestic processes. If that did not occur within 2 years, but 6 parties that make up 85% of the GDP of the 12 countries had given that notification, the TPPA would come into force after another 60 days.

Either way, this must include two big players, the US and Japan. And notification by the US cannot occur until the Congress has passed the implementing laws, and the President has certified that other countries have complied with the US understanding of the other country’s obligations.

‘The US political process is pivotal to the outcome’, says Auckland University law professor Jane Kelsey. ‘With 5 February 2016 the earliest date Obama can sign, the TPPA is fodder for the US election cycle. That starts with the Iowa caucus, set for 1 February 2016, with eleven primaries set for “super Tuesday” in early March.’

‘Access to the text has heightened the intensely polarised debate within the US. The TPPA is toxic among Democrat voters with any candidate, include Presidential frontrunner Hillary Clinton, facing a potential boycott from progressive supporters and a drought of campaign funds if they endorse the deal.’

Professor Kelsey recalls that President Obama had to rely on predominantly on Republicans to get the Fast Track legislation through Congress. ‘Republicans, especially the Tea Party faction, are hardly going to rally to Obama’s side in the midst of a presidential election campaign, and will bargain hard in return for any support they do give him.’

Already there are demands from both sides of Congress for changes, such as withdrawing the potential exclusion of tobacco policies from the investor-state dispute process, stronger disciplines on so-called currency manipulation, and revisiting the deal on pharmaceuticals. 

Professor Kelsey reports that informed US commentators predict the implementing legislation will not appear until a ‘lame duck’ session of Congress, during the interregnum between the outgoing and incoming Congress when the former have nothing electorally to lose. That is more than a year from now.

While the debate across both houses of Congress is capped at 90 days, she notes there is no guarantee it would pass. ‘A new President could well seek to reopen the text, as the Obama administration did with the Korea-US Free Trade Agreement when he forced Korea to accept a supplementary deal four years after it was first signed.’

‘The TPPA is infinitely more complex and controversial. The certification process would come on top of that – reinforcing the point that the “final” deal released yesterday is anything but final’.