Freer Trade, More Regulation? Commercial Regulatory Provisions in Asia-Pacific Free Trade Agreements

Abstract

Free trade agreements (FTAs) have become a defining feature of the world trade system, expanding rapidly in number since the end of the Cold War and particularly in the Asia-Pacific, a region that was hitherto largely devoid of FTA activity. The nature of FTAs is also changing. Most incorporate a range of ‘trade plus’ measures that extend the reach of these agreements into various realms of commercial regulation, embodying specific rules on intellectual property, investment, government procurement, competition policy, and other areas of commercial practice. With conventional trade barriers (e.g. tariffs) continuing to fall and hence becoming less significant, the commercial regulatory provisions of FTAs have gained greater prominence. This article considers whether ‘freer trade’ in the early twenty-first century is increasingly concerned with setting the appropriate regulatory parameters to foster open market competition, but also competition on the regulatory terms of dominant FTA partners. The analysis centres on seven types of ‘influence effect’ associated with FTA commercial regulation, in broad terms relating to determining the liberalization embodied in agreements, shaping the domestic policy domain of FTA partners, affecting the relationship between FTAs and World Trade Organisation (WTO) accords, conferring regulatory preferences and free-rider advantages to trade partners, exhibiting cross-agreement regulatory influences, and exposing fundamental conflicts of interest on economic and social governance issues.