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Australia–United States Free Trade Agreement
Abstract
Introduction Former Deputy Director-General of the World Trade Organization (WTO), Andrew Stoler has described the Australia–United States Free Trade Agreement (AUSFTA) as a “third wave’ free trade agreement (FTA) that goes “beyond the envelope of the WTO’, in the sense that it ventures into areas barely covered in the WTO agreements, like competition, and expands on WTO disciplines in other areas, like services and intellectual property. Going beyond the existing WTO rules does not, of course, necessarily constitute progress, or even greater trade liberalization. In this chapter, we consider the extent to which the AUSFTA represents an improvement on the WTO bargain from the perspective of the two parties as well as the broader WTO membership. Before considering how the AUSFTA came about, we now provide an introductory snapshot of the trading and broader relationship between these two countries. United States (US) trade data indicate that the value of US exports of goods to Australia in 2006 totalled around US8.2 billion. This put Australia within the top 15 countries for US exports in 2006. Services trade appears more balanced, with the Australian government reporting exports to the US at approximately AU7.1 billion for the same period.
... Australian Governments have generally been in favour of Free Trade Agreements, however the implications of these international arrangements have rarely been considered for Indigenous peoples. One such assessment followed the release of the Free Trade Agreement (FTA) with the USA on 8 February 2004 where it became evident that Indigenous Australians were not consulted throughout the negotiation phase (see Behrendt & Davis 2016;Davis 2004). ...
... Pharmaceutical products listed in the PBS Schedule are made available at significantly reduced cost to consumers. 189 Listing takes place following an application by a manufacturer and review by the Pharmaceutical Benefits Advisory Committee (PBAC), which considers the efficacy of the pharmaceutical product and its cost in comparison to other treatments. 190 The PBS also utilizes the Pharmaceutical Benefits Pricing Authority (PBPA) to review the price of listed products and to recommend prices for new listings. ...
The Trans-Pacific Partnership Agreement (TPP) has an ambitious agenda and could radically reshape trade in the Asia-Pacific. At the same time, TPP obligations have the potential to significantly restrict the ability of governments to regulate in the interests of public health. This paper examines the impact the TPP could have on two areas of public health regulation—tobacco control and access to medicines. It concludes that a number of legitimate concerns arise from the known content of the TPP, that the inclusion of a general health exception would be the preferable means of safeguarding the regulatory space of governments in relation to public health, and that the United States’ proposals for stronger intellectual property protections be resisted. With negotiations shrouded in secrecy, TPP parties’ desires to promote international trade and investment must not overshadow the need of governments to be able to implement sensible and effective public health policy.
Regional trade agreements in services are a relatively recent, but rapidly expanding phenomenon. Their relationship with commitments
undertaken under the General Agreement on Trade in Services (GATS) or offered in the Doha Round has attracted some attention
in the literature. Relevant publications tend to focus on the ‘value added’ that such agreements might generate through broader
sectoral coverage or deeper levels of liberalization. This article takes a different perspective, however, and focuses on
provisions that fall short of the same countries’ GATS commitments. Such ‘negative preferences’ are more than an isolated
occurrence: they can be found in most recent agreements, including agreements involving some of the largest World Trade Organization
(WTO) Members. The existence of ‘negative preferences’ or ‘GATS-minus commitments’ may prove relevant for several reasons:
in particular, they could impinge on an agreement’s legal status under the GATS and help create a trading system beyond the
WTO. It is conceivable that such minus-commitments are mutually conceded in ‘sensitive’ sectors or tacitly accepted in view
of ‘side-payments’ in non-WTO currency (including development finance). Those who subscribe to Bhagwati’s comparison of PTAs
with termites might thus have additional reason to be alarmed: the bugs’ unconventional table manners.
This study collated responses from a survey of over 2,100 businesses across Australia to assess the extent of both their business dealings with China and their commercial interest in IP. The survey results reveal that among Australian businesses which have direct business dealings with China, IP issues (registration, examination and enforcement) are of less concern than Chinese regulations and legal transparency. Among the IP issues covered in the survey, IP enforcement poses the greatest problem for Australian businesses.
The TRIPS Agreement of the World Trade Organization (WTO) mandated the introduction of protection of intellectual property rights, notably patents, for pharmaceutical products. While the implications for the access to medicines contained in the terms of this Agreement raised significant concerns, a recent new wave of free trade agreements, negotiated outside the WTO, requires even higher levels of intellectual property protection for medicines than those mandated by that Agreement. The measures involved include the extension of the patent term beyond 20 years; prohibition of use of test data on drug efficacy and safety for certain periods for the approval of generic products; the linkage between drug registration and patent protection; in some cases, limitations to the grounds for granting compulsory licences. This article reviews some of these measures that further limit the competition of generic products and discusses their possible implication for access to medicines.
The failure to agree on the treatment of audiovisual products in the
Uruguay Round led to an unsatisfactory result for all World Trade
Organization (WTO) members. Yet a balanced evaluation of the arguments on
both sides demonstrates that the stalemate need not continue indefinitely.
The audiovisual industry is a business, but audiovisual products have
cultural features that distinguish them from other tradeable goods and
services. If members see local audiovisual products as a means of
communication among their people, or if they do not wish to stifle
creativity, free speech, or the progressive development of culture, they
may need to support local audiovisual products in a manner that
discriminates expressly against foreign products. The same cannot be said
of discrimination between foreign audiovisual products. If a member wishes
to extend benefits to audiovisual products from countries with cultures
similar to its own, it can do so by adopting objective criteria, such as
language to distinguish between the relevant products. Cultural policy
measures in relation to audiovisual products should be the least
trade-restrictive necessary to achieve their objectives. a
It is interesting to observe how the most politically contested subjects can evaporate overnight, leaving all those affected to pick up the pieces and to try to make sense of what has just happened. The WTO deal on drug patents (or in its official title: 'Implementation of Paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health', dated 2 September 2003) is such an example. This purpose of this article is twofold: 1) to describe the complex and paradoxical nature of pharmaceutical IPRs; and 2) to analyze the TRIPs deal on drug patents (or as commonly referred to as the 'Paragraph 6 Deal'), to explain its implications, and identify the potential winners and the likely losers from this deal.
This book is concerned with the legal aspects of regional trade agreements - free trade agreements and customs unions. There are currently around 300 regional trade agreements, and these continue to proliferate. As a result, this is becoming an increasingly important part of WTO law. This book investigates these agreements, and examines their regulation under WTO rules. It also looks at the relationship of these agreements to the WTO from the perspective of public international law.
The proliferation of free trade agreements (FTAs) in the last decade has resulted in an accompanying increase in dispute settlement regimes pertaining to those agreements. One obvious consequence is that increasingly, states are exposing themselves to such complaints, and not necessarily with the limitations that have been imposed on the at General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO). The inherent ambiguity surrounding non-violation complaints at the WTO, and other risks relating to such complaints, are being multiplied manifold by these FTAs. The non-violation concept appears to have originated even before the GATT came into being. Developing-country FTA parties are therefore even more vulnerable in terms of dispute settlement, under the FTAs. Issues to be expected include how non-violation nullification and impairment will be applied to benefits accruing in areas such as intellectual property rights and rules of origins.
The subject-matter of this article is the recently altered trade policy and practice of Australia and their consistency with the WTO multilateral trading policies and principles. Following its unhappy experience with the power and politics driven trading under GATT, Australia unequivocally supported the legalistic approach of the WTO trading system during the Uruguay Round. Its active participation in the WTO has given it a fair share of global free trade. The rule-based trading framework of the WTO protects, more often than not, Australia from powerful trading states and blocs using their economic clout to gain unfair terms of trade. Australia has recently opted to pursue its multi-track trading together with its commitments to WTO multilaterial trade liberalization. Since 2002, it has been negotiating a preferential bilateral free trade agreement with its preferred trading partners. The flurry of such negotiations has resulted in the conclusion of a preferential bilateral free trade agreement with Singapore in 2003. Negotiation towards a similar agreement with the U.S. is ongoing. A preferential trade agreement (PTA) is by nature discriminatory and as such inconsistent with the Most Favoured Nation (MFN) rule under GATT Article I. Despite this apparent contradiction, GATT Article XXIV permits bilateral PTAs as an exception to the MFN rule under certain explicit conditions, which militate against discriminatory, differential and unequal trading deals among WTO members. This article examines the extent to which the existing and potential PTAs of Australia comply with the conditions of GATT Article XXIV. It concludes that these PTAs are not complementary, if not obstructive alternatives, to the WTO multilateral free trading system. They are not in the best long-term trading interest of Australia either.