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Trans-Pacific Partnership – where to from here?

06 October 2015 | Asia Pacific and The Americas
Legal Briefings

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Agreement has been reached on the Trans-Pacific Partnership (TPP), notwithstanding the failure by trade ministers to reach agreement last time they met in July.

However, the negotiating members must take further steps before the TPP will come into effect.

Translation, signing, ratification

The text of the TPP will first need to be translated into authentic (authoritative) languages.

After the authentic texts have been released, each member of the TPP will need to express its consent to be bound by the treaty. The TPP will stipulate the means by which states can express their consent to be bound.

Typically, consent is expressed by a state's signature and subsequent ratification of the international treaty. When a state signs a treaty, the signatory agrees to comply with the treaty and to refrain from taking any actions that would defeat the objects and purposes of the treaty. However, the mere act of signing does not impose legal obligations on the state. A state only becomes bound by a treaty once it has ratified it.

The critical act that needs to occur is therefore ratification. This is usually done by an exchange of the necessary legal instruments or the deposit of such instruments to a designated authority. Whilst ratification is an international act, there are typically domestic requirements for the approval to ratify.

The ratification process in each state

Each of the 12 member states of the TPP has a different domestic process for ratification. The table below summarizes the typical processes.

It is not possible to forecast exactly how long these processes may take (possibly several months), even though some states have specific timeframes for completing them.

Country Ratification process
Australia
  • Parliament must pass implementing legislation before the Federal Executive Council can authorize entry into a treaty.
  • The treaty is tabled in both Houses of Parliament for 20 sitting days before any binding treaty action is taken.
  • Once tabled, the parliamentary Joint Standing Committee on Treaties reviews the treaty, can seek public consultation and recommends to Parliament whether to take binding treaty action.
Brunei
  • The President of Brunei can enter into a treaty, with the approval of the House of Representatives.
Canada
  • The executive technically has full control over the ratification process. An Order in Council authorizes the Ministry of Foreign Affairs to sign an instrument of Ratification. Once this instrument is deposited with the appropriate authority, ratification is complete.
  • There is a practice, before ratification, of tabling treaties in the House of Commons, which has 21 sitting days to consider it.
  • A ratified treaty requires incorporation through domestic law to be enforceable in Canada, typically by an Act of Parliament.
Chile
  • The President has power to sign and ratify international treaties.
  • Congress must approve treaties submitted to it by the President before ratification can occur.
Japan
  • The Cabinet Legislation Bureau will consider the treaty brought before Cabinet. Cabinet can conclude the treaty, but it must obtain prior or subsequent approval by a majority of the Diet.
  • The implementing Bill may be first referred to a committee for consideration. 
Malaysia
  • After signing, Parliament must first pass legislation to give effect to the treaty, after which the executive may ratify the treaty. 
Mexico

  • The President has power to negotiate and make treaties with foreign states, but the Senate has exclusive power to approve treaties made by the President.
New Zealand
  • The Ministry of Foreign Affairs presents the treaty to the House of Representatives. The House must pass implementing legislation in order for ratification to occur.
  • The Foreign Affairs, Defence and Trade Committee of the House of Representatives reviews the treaty. It may seek public submissions.
  • This select committee provides a report within 15 days of the treaty being tabled in the House. If the committee makes any recommendations, the government must respond within 90 days.  
Peru
  • Ratification requires Congress' approval if the treaty concerns certain subject matters, including state sovereignty, dominion or integrity.
Singapore
  • The executive, in exercising its treaty-making powers, can bind Singapore to a treaty. In practice, Parliament's consent is not sought or deemed to be required.
United States
  • The United States requires implementing legislation to incorporate the treaty into domestic law.
  • In June 2015, Congress granted the President Trade Promotion Authority, which allows the President to enter into certain trade agreements and provides for an expedited ratification and implementation process. Congress may only vote "up or down" on the treaty and cannot make any amendments to the treaty.
  • Passage of the implementing bill is necessary for ratification. 
Vietnam
  • There is a domestic consultative process involving the Ministry of Foreign Affairs, concerned agencies and organizations, the government and the President, culminating in a proposal to the National Assembly to ratify the treaty. A majority of the National Assembly may empower the President to authorize ratification of the treaty. 
  • Taking into account the timeframes built into this process, the ratification procedure requires at least 120 days.
  • Whether a treaty requires implementing legislation depends on a decision of the National Assembly, President or the government, in light of the requirements, content and nature of the treaty.

 

Legal Notice

The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.

© Herbert Smith Freehills 2019