Common use of TPP and Anti-Corruption Clause in Contracts

TPP and Anti-Corruption. The underlying logic behind including provisions against corruption in PTAs is that bribery and other forms of corruption, act as an important trade and investment barrier. Bribes distort free market pricing, increase the cost of investment and could deter foreign investment. Thus, despite the fact that trade agreements are meant to minimise economic barriers to trade, companies that comply with anti-corruption laws, and choose not to bribe, are significantly disadvantaged.229 While some bilateral PTAs have already included anti-corruption provisions — notably those concluded between the United States and Panama (2007), Colombia (2006), Peru (2006), Oman (2006), Bahrain (2004), Central Africa Free Trade Agreement–Dominican Republic (‘CAFTA–DR’) (2004), and Morocco (2004),230 multilateral or regional agreements have lagged behind. Only the P4 (as mentioned, involving Brunei Darussalam, Chile, New Zealand and Singapore) has an anti-corruption provision (art 11.19), which focuses on corruption in government procurement alone. A similar provision is also found in the FTAs between US and Panama, Colombia, Peru, Bahrain, CAFTA–DR, Morocco and Chile.231 228 Xxxxxxxx, above n 222, 25. 229 Xxxxx Xxxxxx, The Trans-Pacific Partnership Agreement: A Breakthrough in Global Anti- Corruption Efforts (30 November 2015) Corporate Compliance Insights <xxxx://xxx.xxxxxxxxxxxxxxxxxxxxxxxxxxx.xxx/the-trans-pacific-partnership-agreement-a- breakthrough-in-global-anti-corruption-efforts/>, archived at <xxxxx://xxxxx.xx/Z5EP- SJXW>. 230 United States–Panama Trade Promotion Agreement (entered into force 31 October 2012) ch 18 s B; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) ch 19 s B; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) ch 19 s B; United States–Oman Trade Promotion Agreement, signed 19 January 2006 (entered into force 1 January 2009) art 18.5; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 17.5; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) ch 18 s B; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 18.5; Australia–United States Free Trade Agreement, signed on 18 May 2004 (entered into force 1 January 2005) art 22.5 and United States–Singapore Free Trade Agreement, signed 6 May 2003 (entered into forced 1 January 2004) art 21.5 include softer provisions on corruption, on the basis of co-operation and best efforts, respectively. 231 United States–Panama Trade Promotion Agreement (entered into force 31 October 2012) art 9.13; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) art 9.10; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) art 9.10; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 9.10; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) art 9.13; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 9.11; United States– Chile Free Trade Agreement, signed 6 June 2003 (entered into force 1 January 2004) art 9.12.

TPP and Anti-Corruption. The underlying logic behind including provisions against corruption in PTAs is that bribery and other forms of corruption, act as an important trade and investment barrier. Bribes distort free market pricing, increase the cost of investment and could deter foreign investment. Thus, despite the fact that trade agreements are meant to minimise economic barriers to trade, companies that comply with anti-corruption laws, and choose not to bribe, are significantly disadvantaged.229 While some bilateral PTAs have already included anti-corruption provisions — notably those concluded between the United States and Panama (2007), Colombia (2006), Peru (2006), Oman (2006), Bahrain (2004), Central Africa Free Trade Agreement–Dominican Republic (‘CAFTA–DR’) (2004), and Morocco (2004),230 multilateral or regional agreements have lagged behind. Only the P4 (as mentioned, involving Brunei Darussalam, Chile, New Zealand and Singapore) has an anti-corruption provision (art 11.19), which focuses on corruption in government procurement alone. A similar provision is also found in the FTAs between US and Panama, Colombia, Peru, Bahrain, CAFTA–DR, Morocco and Chile.231 228 Xxxxxxxx, above n 222, 25. 229 Xxxxx Xxxxxx, The Trans-Pacific Partnership Agreement: A Breakthrough in Global Anti- Corruption Efforts (30 November 2015) Corporate Compliance Insights <xxxx://xxx.xxxxxxxxxxxxxxxxxxxxxxxxxxx.xxx/the-trans-pacific-partnership-agreement-a- breakthrough-in-global-anti-corruption-efforts/>, archived at <xxxxx://xxxxx.xx/Z5EP- SJXW>. 230 United States000 Xxxxxx Xxxxxx–Panama Trade Promotion Agreement (entered into force 31 October 2012) ch 18 s B; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) ch 19 s B; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) ch 19 s B; United States–Oman Trade Promotion Agreement, signed 19 January 2006 (entered into force 1 January 2009) art 18.5; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 17.5; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) ch 18 s B; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 18.5; Australia–United States Free Trade Agreement, signed on 18 May 2004 (entered into force 1 January 2005) art 22.5 and United States–Singapore Free Trade Agreement, signed 6 May 2003 (entered into forced 1 January 2004) art 21.5 include softer provisions on corruption, on the basis of co-operation and best efforts, respectively. 231 United States000 Xxxxxx Xxxxxx–Panama Trade Promotion Agreement (entered into force 31 October 2012) art 9.13; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) art 9.10; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) art 9.10; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 9.10; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) art 9.13; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 9.11; United States– Chile Free Trade Agreement, signed 6 June 2003 (entered into force 1 January 2004) art 9.12. 2017] Melbourne Journal of International Law 344 According to the USTR, TPP was an opportunity to include ‘the strongest anti- corruption and transparency standards of any trade agreement in history’.232 And seemingly, the TPP delivered that promise (at least partially).

TPP and Anti-Corruption. The underlying logic behind including provisions against corruption in PTAs is that bribery and other forms of corruption, act as an important trade and investment barrier. Bribes distort free market pricing, increase the cost of investment and could deter foreign investment. Thus, despite the fact that trade agreements are meant to minimise economic barriers to trade, companies that comply with anti-corruption laws, and choose not to bribe, are significantly disadvantaged.229 While some bilateral PTAs have already included anti-corruption provisions — notably those concluded between the United States and Panama (2007), Colombia (2006), Peru (2006), Oman (2006), Bahrain (2004), Central Africa Free Trade Agreement–Dominican Republic (‘CAFTA–DR’) (2004), and Morocco (2004),230 multilateral or regional agreements have lagged behind. Only the P4 (as mentioned, involving Brunei Darussalam, Chile, New Zealand and Singapore) has an anti-corruption provision (art 11.19), which focuses on corruption in government procurement alone. A similar provision is also found in the FTAs between US and Panama, Colombia, Peru, Bahrain, CAFTA–DR, Morocco and Chile.231 228 Xxxxxxxx, above n 222, 25. 229 Xxxxx Xxxxxx, The Trans-Pacific Partnership Agreement: A Breakthrough in Global Anti- Corruption Efforts (30 November 2015) Corporate Compliance Insights <xxxx://xxx.xxxxxxxxxxxxxxxxxxxxxxxxxxx.xxx/the-trans-pacific-partnership-agreement-a- breakthrough-in-global-anti-corruption-efforts/>, archived at <xxxxx://xxxxx.xx/Z5EP- SJXW>. 230 United States000 Xxxxxx Xxxxxx–Panama Trade Promotion Agreement (entered into force 31 October 2012) ch 18 s B; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) ch 19 s B; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) ch 19 s B; United States–Oman Trade Promotion Agreement, signed 19 January 2006 (entered into force 1 January 2009) art 18.5; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 17.5; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) ch 18 s B; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 18.5; Australia–United States Free Trade Agreement, signed on 18 May 2004 (entered into force 1 January 2005) art 22.5 and United States–Singapore Free Trade Agreement, signed 6 May 2003 (entered into forced 1 January 2004) art 21.5 include softer provisions on corruption, on the basis of co-operation and best efforts, respectively. 231 United States000 Xxxxxx Xxxxxx–Panama Trade Promotion Agreement (entered into force 31 October 2012) art 9.13; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) art 9.10; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) art 9.10; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 9.10; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) art 9.13; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 9.11; United States– Chile Free Trade Agreement, signed 6 June 2003 (entered into force 1 January 2004) art 9.12.

TPP and Anti-Corruption. The underlying logic behind including provisions against corruption in PTAs is that bribery and other forms of corruption, act as an important trade and investment barrier. Bribes distort free market pricing, increase the cost of investment and could deter foreign investment. Thus, despite the fact that trade agreements are meant to minimise economic barriers to trade, companies that comply with anti-corruption laws, and choose not to bribe, are significantly disadvantaged.229 While some bilateral PTAs have already included anti-corruption provisions — notably those concluded between the United States and Panama (2007), Colombia (2006), Peru (2006), Oman (2006), Bahrain (2004), Central Africa Free Trade Agreement–Dominican Republic (‘CAFTA–DR’) (2004), and Morocco (2004),230 multilateral or regional agreements have lagged behind. Only the P4 (as mentioned, involving Brunei Darussalam, Chile, New Zealand and Singapore) has an anti-corruption provision (art 11.19), which focuses on corruption in government procurement alone. A similar provision is also found in the FTAs between US and Panama, Colombia, Peru, Bahrain, CAFTA–DR, Morocco and Chile.231 228 Xxxxxxxx, above n 222, 25. 229 Xxxxx Xxxxxx, The Trans-Pacific Partnership Agreement: A Breakthrough in Global Anti- Corruption Efforts (30 November 2015) Corporate Compliance Insights <xxxx://xxx.xxxxxxxxxxxxxxxxxxxxxxxxxxx.xxx/the-trans-pacific-partnership-agreement-a- breakthrough-in-global-anti-corruption-efforts/>, archived at <xxxxx://xxxxx.xx/Z5EP- SJXW>. 230 United States–Panama Trade Promotion Agreement (entered into force 31 October 2012) ch 18 s B; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) ch 19 s B; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) ch 19 s B; United States–Oman Trade Promotion Agreement, signed 19 January 2006 (entered into force 1 January 2009) art 18.5; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 17.5; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) ch 18 s B; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 18.5; Australia–United States Free Trade Agreement, signed on 18 May 2004 (entered into force 1 January 2005) art 22.5 and United States–Singapore Free Trade Agreement, signed 6 May 2003 (entered into forced 1 January 2004) art 21.5 include softer provisions on corruption, on the basis of co-operation and best efforts, respectively. 231 United States–Panama Trade Promotion Agreement (entered into force 31 October 2012) art 9.13; United States–Colombia Trade Promotion Agreement signed 22 November 2006 (entered into force 15 May 2012) art 9.10; United States–Peru Trade Promotion Agreement, signed 12 April 2006 (entered into force 1 February 2009) art 9.10; United States–Bahrain Free Trade Agreement, signed 14 September 2004 (entered into force 11 January 2006) art 9.10; The Dominican Republic–Central America Free Trade Agreement, signed 5 August 2004 (entered into force 1 January 2005) art 9.13; United States–Morocco Free Trade Agreement, signed 15 June 2004 (entered into force 1 January 2006) art 9.11; United States– Chile Free Trade Agreement, signed 6 June 2003 (entered into force 1 January 2004) art 9.12. 344 Melbourne Journal of International Law [Vol 18 According to the USTR, TPP was an opportunity to include ‘the strongest anti- corruption and transparency standards of any trade agreement in history’.232 And seemingly, the TPP delivered that promise (at least partially).