THE SPAGHETTI BOWL REVISITED: COEXISTENCE OF REGIONAL TRADE AGREEMENTS SUCH AS NAFTA WITH THE TRANS-PACIFIC PARTNERSHIP

摘要

The rule governing the Trans-Pacific Partnership's (TPP's) relationship with earlier trade agreements, to which at least two of the TPP Parties are also party, is "coexistence." "Coexistence" requires that when a TPP Party believes there is a conflict between the TPP and another trade agreement, a consultation process between Parties to the earlier trade agreement commences, with possible resort to state-to-state dispute settlement under TPP Chapter 28. Coexistence differs from the approach taken by Canada and the United States when both ratified the North American Free Trade Agreement (NAFTA), which directed the Canada-United States Free Trade Agreement be "superseded" except where otherwise explicitly specified. Whether the corresponding lack of explicit conflict rules in the TPP regarding the "coexistence" protocol (except as to government procurement) exists because the TPP Parties were unable to agree on language for a clarifying agreement, for lack of sufficient attention, or simply because the TPP provisions that would override NAFTA provisions conflict with a NAFTA Party's interests (such as those related to investment, labor, or the environment), is unclear. Regardless of the reasons, this lack of clarity could lead to endless litigation or arbitration among the NAFTA Parties and with their stakeholders when and if TPP enters into force for all of them.