Third World Network | January 2023
Preliminary analysis of the IPEF chapter on good regulatory practice*
by Jane Kelsey
Read the full document (pdf)
The Indo-Pacific Economic Framework (IPEF) seeks to impose a structure, set of procedures and criteria to
govern the Parties’ regulatory decision making at the central government level. The IPEF chapter on “Good
Regulatory Practice” (GRP) is expected to build on recent US-led precedents, seen best in the initial draft and
final chapter on “Regulatory Coherence” in the Trans-Pacific Partnership Agreement (TPPA), the chapter on
“Good Regulatory Practices” of the United States-Mexico-Canada Agreement (USMCA), and to some extent
in the plurilateral Joint Statement Initiatives (JSI) on services domestic regulation and investment facilitation
negotiated on the margins of the World Trade Organization (WTO).
These chapters impose disciplines on the making of all domestic regulations, reaching much further behind
the border into the legitimate domain of national governance than “non-tariff measures” relating to trade in
goods. Because the regulations on services, investment and digital technologies are more directly concerned
with social, cultural, development, environmental and other non-commercial considerations, attempts to
impose constraints on government decisions through “free trade” rules are much more problematic.
Their inclusion in IPEF has potentially far-reaching implications for how decisions are made in participating
nations’ regulatory processes, and by whom, as well as the structure and hierarchy of government agencies,
the balance between commercial and non-commercial priorities, and the power of external influencers,
including states and corporate lobbyists. Some of the elements might well be conducive to well-informed
and consistent good decision making, but there is no need for them to be locked in through IPEF, along with
other, problematic elements, when they could be adopted unilaterally without being bound to an externally
defined template. Other obligations in the IPEF chapter would be burdensome and intrusive, especially
for developing countries, and confer undue corporate and foreign state influence over national policy and
regulatory decisions. They would also cross-fertilise with obligations in other chapters of IPEF, and other
international agreements, in ways that cannot be predicted during the course of negotiations.
This paper urges participants in the Pillar I (trade) negotiations for IPEF to reject any chapter on “Good Regulatory
Practice” that seeks to dictate how they, as sovereign states, should conduct their domestic governance. Specifically,
the paper notes that:
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*This is a preliminary analysis for discussion and supplementation.