The risks and opportunities of free trade agreements for progressive labour law reform: the case of the TPP

ABSTRACT

This paper was originally presented as a keynote speech to the AIRAANZ 2020 Conference in Queenstown, New Zealand. By way of background, it was delivered in the context of New Zealand's continued pursuit of multilateral and bilateral trade and investment agreements. The most recent of these is the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), involving New Zealand and 10 other countries in the Asia Pacific region. Such agreements now impose or remove rules well beyond the traditional realm of trade. For example, they incorporate chapters on services, investment, competition, and intellectual property rights protection, and make deep inroads into local regulatory freedom regarding digital development and government procurement. For decades, the treatment of labour standards in the context of globalisation has been debated, both between and within the north and the south, and the labour movement and free trade adherents. What might be called the 'settled centre' of this discussion, has been the inclusion of provisions in these agreements purporting to recognise and encourage the application of selected labour standards. In this paper, the writer assesses the risks and opportunities of agreements like the CPTPPA for progressive labour law reform and argues for alternatives.

KEYWORDS:

• Labour law reform
• free trade agreements
• investor state dispute settlement

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

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2. Hon Todd McLay, Press Release, 14 May 2016, accessed at https://www.beehive.govt.nz/minister/todd-mcclay?page=5.

3. BusinessNZ, ExportNZ & ManufacturingNZ, Submission to the Foreign Affairs, Defence and Trade Select Committee on the Trans Pacific Partnership Agreement, 7 March 2016.

4. NZCTU Submission to the Foreign Affairs, Defence and Trade Committee on the Trans-Pacific Partnership Agreement, 24 March 2016, 67, http://www.union.org.nz/wp-content/uploads/2016/11/160324-NZCTUsubmission-on-the-TPPA.pdf.

5. In the Matter of Guatemala – Issues Relating to the Obligations Under Article 16.2.1(a) of the CAFTA-DR

(Final report of the Panel) 14 June 2017.

6. Report of the Trade for All Advisory Board, November 2019. Accessed at https://www.tradeforalladvisoryboard.org.nz/wp-content/uploads/2019/11/FINAL-with-cover-Trade-for-All-report.pdf.

7. TPP Chapter 19 n3 (emphasis added).

8. Free Trade Agreements (Government Accountability Office, Report to Congressional Requesters, November 2014) Accessed at <www.gao.gov/products/GAO-15-160>.

9. ‘FTA Labour Co-Operation’ (MBIE, undated, on file with author).

10. Samira Salem and Faina Rozental ‘Labor Standards and Trade: A Review of Recent Empirical Evidence’ (JICE Web Version, August 2012); also, Website: <betterfactories.org/?page_id = 5082 >.

11. TVNZ Q + A: David Parker interviewed by Corin Dann (Press Release, 12 November 2017, <www.scoop.co.nz/stories/PO1711/S00144/qa-david-parker-interviewed-by-corin-dann.htm>.

12. UNCTAD World Investment Report 201: Investment and the Digital Economy (UN, Geneva, 2017) at 177.

13. TPP Annexe.

14. NZ Labour Party Future of Work Report (5 November 2016, <www.futureofwork.nz/>).

15. William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc v Government of Canada UNCITRAL PCA Case No. 2009–04 (Award on Jurisdiction and Liability), 17 March 2015.

16. For example: Jarrod Hepburn (2012).

17. C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet, [18/12/2007] discussed in Rebecca Zahn (2008).

18. Robert v Hopwood [1925] AC 578, [1925] All ER 24.

19. United Parcel Service of America Inc. v Government of Canada (Award on Merits) ICSID UNCT/02/1, 11 June 2007.