Memento Mori: Membership Issues Surrounding Entry into, Modification of, and Withdrawal from the TPP

Abstract

Until recently, only limited attention is paid to institutional issues in terms of the TPP, with the exception of requirements for entry into force of the TPP and possibility of new members’ accession. However, it is inevitable that membership issues will arise throughout a treaty’s lifecycle. Providing a broader perspective on membership issues that would affect proper decision-making and enforcement of the TPP or its successors is the primary objective of this chapter. Namely, there are systemic concerns that deserve attention during the course of discussions to revive or rewrite the TPP. First, with regard to the ‘late ratification’ issue in the phase the TPP takes effect, imposing an additional burden on a late ratifier regarding membership of the TPP may create incentives for early ratification. However, it may also incentivize early birds for rent-seeking by way of renegotiations or side payments, which will endanger the thin balance that drafters originally reached. Second, with regard to the ‘second ratification’ issue in the phase of amending the TPP, the rationale that requires ratification by all member states for an amendment to take effect is not clear. The current requirement may prevent the TPP’s expedited adjustment to subsequent changes in circumstances. Finally, with regard to the ‘litigation risk of withdrawal’ issue in the phase where a Party withdraws from the TPP, the leaving Party is free from risk of ISDS arbitration if the notification of the withdrawal from the TPP precedes the request for consultation by a foreign investor.