The CPTPP Enters into Force: What Does it Mean for Global Trade?

by White & Case LLP
Contact

White & Case LLPThe Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) entered into force on December 30, 2018. The Agreement will significantly impact trade among its ratifying Parties—currently including Australia, Canada, Japan, Mexico, New Zealand, Singapore, and Vietnam (with Brunei Darussalam, Chile, Malaysia and Peru to come)—and beyond. The so-called "TPP-11," signed on March 8, 2018, proceeded steadily toward completion following the United States' withdrawal from the predecessor agreement—the Trans-Pacific Partnership (TPP)—in January 2017, and is now a reality.

The anticipated impact of the CPTPP, whose 11 parties represent approximately half a billion people and 14 percent of the global economy, will be immense, as slashed tariffs encourage significant shifts in global supply chains. Further, the CPTPP's high-standard provisions on the digital economy, investment, financial services, labor and the environment establish new "rules of the road" that will have broad country-specific and collective impact. The Agreement's full impact is challenging to grasp as its geographical and substantive scope is vast, and so much of it is new to governments and companies. This report summarizes: (i) key provisions, including those changed from the original TPP; (ii) country-specific implications for select Parties; (iv) the politics and technicalities of US re-entry; (iii) next steps for ratification by remaining signatories; and (v) the CPTPP's potential impact on/interaction with other global trade developments.

Overview

The CPTPP, despite the United States' withdrawal and the subsequent minor changes to the TPP text, is a game- changer in that it locks in institutional and rules-based reform, sets new standards for future free trade agreements (FTAs) and provides incentives to consolidate and reorder Asia-Pacific supply chains.

The CPTPP, like its predecessor the TPP, is touted as a "next-generation" trade agreement, building on the core structure of the World Trade Organization (WTO) Agreements and existing bilateral FTAs, but taking WTO and FTA rules further in a number of key areas, such as digital trade and electronic commerce, intellectual property and state-owned enterprises (SOEs). Thus, not only will the CPTPP have a tangible impact on trade in goods and services among the Parties, it is likely to have repercussive effects as its provisions are used as a model for other agreements. For example, the newly signed United States-Mexico-Canada Agreement (USMCA), the successor to the North American Free Trade Agreement (NAFTA), draws from the TPP for some of its chapters. The CPTPP's broad tariff cuts—on approximately 90 percent of items upon entry into force, and nearly all others within 10 years—will have an immediate impact on the relative competitiveness of exporters in and out of the Agreement. For example, US exporters will now be disadvantaged in the CPTPP zone relative in particular to competitors in Canada, Japan and Australia. Similarly, exporters in Thailand, Korea and Taiwan will be disadvantaged relative to competitors in Japan, Malaysia and Vietnam.

In addition to tariff cuts, the CPTPP includes high-standard chapters covering customs and trade facilitation; standards and technical barriers to trade; investment; services; intellectual property; e-commerce; government procurement; SOEs; labor; environment; regulatory coherence; transparency; and more. The CPTPP is distinguished from other FTAs in that its provisions are deeper and broader, and its basic rules apply equally among all signatories, even though some developing country members (e.g., Vietnam) have longer time periods to implement some of the commitments.

When the Agreement entered into force on December 30, 2018, each of the original six ratifying members immediately benefitted from its provisions, but only as they applied to the other ratifying members. For example, a company based in Australia will benefit from reduced or eliminated import tariffs in Japan, but not yet Malaysia. Provisions affecting intellectual property, investment, labor and other disciplines were also automatically activated. Vietnam joined soon after, on January 14, 2019.

Date of entry into force for the CPTPP's ratifying members:

Party

Date of Domestic Ratification

Date of Notification to CPTPP Depositary

Entry into Force

Australia

October 19, 2018

October 31, 2018

December 30, 2018

Brunei Darussalam

TBC1

               -

               -

Canada

October 25, 2018

October 29, 2018

December 30, 2018

Chile

TBC2

               -

               -

Japan

June 13, 2018

July 6, 2019

December 30, 2018

Malaysia

TBC3

               -

               -

Mexico

April 24, 2018

June 28, 2018

December 30, 2018

New Zealand

October 25, 2018

October 25, 2018

December 30, 2018

Peru TBC4                -                -
Singapore July 19, 2018 July 19, 2018 December 30, 2018
Vietnam November 12, 2018 November 15, 2018 January 14, 2019

Five of the six ratifying Parties received an additional round of tariff cuts two days later on January 1, 2019—the "Year 1" cuts, which vary by good and the respective Party's schedule. The General Notes to the Tariff Schedule of Japan set April 1 as the beginning of each tariff cycle, so the Year 1 tariff reductions will take place on April 1, 2019.

For those Parties who have not yet ratified the CPTPP, it enters into force 60 days after the date on which that signatory has notified the Depositary (New Zealand) in writing of the completion of its applicable legal procedures.

The CPTPP is a comprehensive agreement with 30 chapters.5 Key highlights include:

  • Digital trade/e-commerce - The E-Commerce Chapter seeks to facilitate business-related data transfers and trade in digital products, including by introducing (i) a prohibition on data localization measures; (ii) a commitment to allow the cross-border transfer of information by electronic means when such activity is for the conduct of business; and (iii) a prohibition on imposing customs duties on electronic transmissions. The Chapter also prohibits a Party from requiring access to the source code of software owned by a person of another Party as a condition for the import, sale or use of the software.
  • Investment - The Investment Chapter establishes high-standard provisions for investors and covers the full life cycle of an investment—from establishment or acquisition, management, operation, expansion and disposition. The Chapter's provisions include the core obligations of national treatment, most-favored nation (MFN) treatment, expropriation and compensation, performance requirements and transfers. While the Agreement includes Investor-State Dispute Settlement (ISDS) provisions, the scope for investors to make ISDS claims is narrowed (e.g., private companies cannot make ISDS claims relating to investment contracts they have entered into with governments).
  • Supply chain, goods, rules of origin, certification - The Agreement supports the development of CPTPP-wide supply chains by generally allowing for "accumulation" within the CPTPP region. This confirms that the ability to further process or add materials of one signatory country to products in another signatory country (which will then be treated as originating in the latter country) has become a standard feature in modern trade agreements. The Agreement also includes trade facilitative provisions on self- certification of origin, advanced rulings and customs clearance timelines.
  • Services, including financial services - The Cross-Border Trade in Services Chapter, which provides for improved protection, predictability and transparency for service suppliers, adopts a "negative list" approach, meaning that all services sectors are considered as liberalized by default, except those expressly excluded from coverage in the form of non-conforming measures. The negative lists contained in each Party's schedule include two types of "non-conforming measures" which are exempt from the Chapter's MFN, national treatment, market access, and/or local presence commitments: (i) measures subject to a "standstill and ratchet" obligation whereby measures cannot become more restrictive in the future and any future liberalization cannot be reversed; or (ii) reservations whereby participants maintain complete discretion as to their current and future policy. The Financial Services Chapter includes transparency obligations and commitments to allow a financial institution of another Party to supply new financial services that a Party would allow for its own financial institutions. Furthermore, special dispute settlement provisions are tailored to the unique nature of financial services.
  • Labor - The Labor Chapter includes binding commitments that require a Party to uphold through its domestic laws the following rights as set forth in the International Labor Organization (ILO) Declaration: (i) freedom of association and collective bargaining; (ii) elimination of forced labor; (iii) abolition of child labor; and (iv) elimination of employment discrimination.
  • Environment - The Environment Chapter includes both binding and non-binding commitments relating to environmental protection. The binding obligations prohibit a Party from (i) failing to effectively enforce its environmental laws in a manner affecting trade or investment between the Parties; (ii) waiving or otherwise derogating from its environmental laws in order to encourage trade or investment between the Parties; or (iii) providing certain types of fisheries subsidies that negatively impact overfished stocks.

Changes from the TPP

The CPTPP is nearly identical to the TPP, but suspends 22 elements of the predecessor agreement, and incorporates the rest.

Eleven of the original 12 TPP signatories (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam) signed the CPTPP on March 8, 2018, after more than a year of re- negotiation following the United States' withdrawal. Although technically a separate treaty, the CPTPP incorporates nearly all of the provisions of the TPP as signed in 2016 by the original 12 parties (including the United States), except for a handful of provisions that the remaining member countries agreed by consensus to suspend.6 Most of the suspended provisions had been inserted into the original TPP text at the demand of US negotiators to safeguard the interests of various domestic stakeholders, covering such issues as market exclusivity rules for biologic dugs, strict copyright enforcement priorities, and investor-state dispute settlement.

The CPTPP text also incorporates a few technical and procedural provisions concerning such issues as accession, entry into force, withdrawal and authentic texts.

Besides the suspended provisions, the CPTPP preserves all of the original and substantive TPP commitments in market access for goods, services, investment, state-owned enterprises, government procurement and business mobility. In other words, all of the existing annexes from the TPP Agreement remain unchanged, and all tariff reduction and/or elimination schedules, services and investment liberalizations, as well as market access for government procured works will take place as scheduled in the original commitments, with a majority taking effect from day one from entry into force of the agreement. There are also several bilateral side instruments (or side letters), which serve to complement and clarify the position among or between parties on specific issues of importance.

The final text of the CPTPP Agreement has been reduced from 622 pages to 584 pages with the removal of the suspended provisions, which, pursuant to Article 2 of the CPTPP, will remain suspended until the 11 signatories decide otherwise by consensus. The rationale for setting these provisions aside for later consideration and debate, as opposed to completely removing them from the legal text, was a negotiating tactic led by Japan and Australia aimed at leaving the door open for the eventual return to the agreement by the United States. Absent the United States signaling interest to rejoin and thus rekindling the incentive of preferential access to US markets, it is unlikely that the 11 countries can or would indeed want to reach consensus on "unsuspending" any of the contentious provisions.

Country-specific implications

Each CPTPP signatory has existing bilateral and multilateral agreements with some, but not all, of the other Parties. As the CPTPP opens new markets and, in some cases, imposes new rules on domestic treatment of data, intellectual property, labor rights, and more, each Party has a unique set of economic and political circumstances to consider. A closer look at Australia, Canada, Japan, and Mexico follows.

Australia

Australia is already well-connected among the CPTPP Parties, having bilateral FTAs with Chile, Japan, Malaysia, New Zealand and Singapore, plus a multilateral deal with the Association of Southeast Asian Nations (ASEAN), which also includes Brunei Darussalam and Vietnam. A deal with Peru was signed in February 2018, but is not yet in force. Further trade liberalization among existing FTA partners, and the prospect of increased market access to Canada and Mexico, however, is significant.

The Australian Department of Foreign Affairs and Trade (DFAT) has specifically highlighted potential benefits for: (i) exporters of goods, including new reductions on Japanese beef tariffs, new access for dairy products into Japan, Canada and Mexico, and elimination of all tariffs on industrial products; (ii) exporters of services, including the legal guarantee and enforceability of CPTPP Parties' reforms in the professional services sector, preferential temporary entry arrangements for Australian workers, and new opportunities for government procurement contracts in a range of sectors; and (iii) Australian investors, including the introduction of higher screening thresholds for investments in Mexico and Canada.

The CPTPP will impact key areas of trade and commerce across the Australian economy. The Australian government has stated that it "will help support Australian businesses to grow and see annual benefits of up to [AUD] $15.6 billion to [the] national economy by 2030." State parties are required to reduce barriers to trade and foreign investment. Significant changes include the elimination of tariffs on AUD $12.7 billion of Australia's dutiable exports to countries party to the CPTPP. Private foreign investment is projected to increase, as the Foreign Investment Review Board (FIRB) threshold for private foreign investment is set to be lowered for signatories to the CPTPP.

Despite the anticipated benefits, particularly for exporters in Australia's critical agricultural sector, some economists have estimated the ultimate real national income boost will be just 0.5 percent by 2030—the lowest of all Parties. However, because of Australia's established trade ties with the majority of CPTPP members, to not join the Agreement would have meant ceding ground to the other Parties, many of whom will newly benefit from duty rates below those of Australia's existing FTAs.

Canada

Compared to other CPTPP members, Canada's existing network of FTAs is relatively limited, focused on its own hemisphere. Of the CPTPP members, Canada has only completed bilateral FTAs with Chile and Peru, and is connected to Mexico via the NAFTA. While Canada is negotiating deals with Japan and Singapore, and is undergoing exploratory discussions with ASEAN, which also includes Brunei Darussalam, Malaysia and Vietnam, most of the trade relationships established by CPTPP are new. Thus, the CPTPP represents a significant opportunity for Canada to diversify its trade links and build stronger export markets in Asia. Trade with the seven new FTA partners was worth US $71.3 billion in 2016, more than total trade with Mexico.

Much has been made of the "first-mover advantage" gained by the original class of six ratifying members, who have the first opportunity to establish markets under the CPTPP. For Canada, this advantage is especially potent, as it now enjoys newfound trade benefits in markets like Japan compared to the United States, which is now scrambling to establish its own bilateral agreement with Japan. It is especially incumbent on Canada to diversify its trade network amidst uncertainty surrounding the future of NAFTA and its would-be successor, the USMCA.

Canada's food and agriculture industry in particular is poised to benefit, gaining preferential access where it currently faces high tariffs, such as in Japan, Vietnam and Malaysia. In return, Canada will grant CPTPP members tariff rate quotas (TRQs) for its supply managed sectors, including dairy, poultry and egg products, phased in over five years. This issue has been a point of contention among Canadian farmers, who worry that increased imports into its managed sectors will threaten their livelihoods.

The Government of Canada cites expected benefits in the financial services, fish and seafood, forestry, and metals and minerals sectors. Additionally, the government has touted its success in negotiating the suspension of certain TPP articles on intellectual property and ISDS, so that Canada can maintain its current domestic regimes. Overall, Canada's GDP gains are estimated at US $4.2 billion, higher than under the TPP, because it is no longer competing with the United States under the same agreement.

Japan

Following the United States' withdrawal from the TPP in January 2017, Japan drove the process forward to salvage the deal. It would not have done so were the political and economic benefits not significant. Politically, Japan's role in realizing the CPTPP positions it as a regional leader, particularly vis-à-vis China. The CPTPP serves to set a floor for the anticipated US-Japan FTA negotiations, and could also give Japan leverage in the midst of other ongoing negotiations, including those for the Regional Comprehensive Economic Partnership (RCEP).

Economically, Japan is making a strategic compromise. While some key sectors will take a hit—agricultural, forestry and fisheries output is expected to lose US $1.3 billion—overall the economy is estimated to receive a US.

$71 billion boost once the CPTPP is fully implemented.

Of the CPTPP members, Japan has existing Economic Partnership Agreements (EPAs) with the ASEAN countries (Brunei Darussalam, Malaysia, Singapore and Vietnam), Australia, Chile, Mexico and Peru—all but Canada and New Zealand.

Mexico

Mexico's interest in becoming part of the CPTPP process arose from a strategic view to strengthen trade and investment ties with the Asia Pacific region and raise the bar for its entire network of FTAs, including the NAFTA. Moreover, and in light of existing uncertainty surrounding the future of its trade relationships with Canada and the United States under the new and yet-to-be-approved USMCA, Mexico is seeking to rebalance its geopolitical interests towards the Asia-Pacific region.

The CPTPP allows Mexico to have FTAs with six additional Asia-Pacific nations, including Australia, Brunei Darussalam, Malaysia, New Zealand, Singapore and Vietnam. The openness of the CPTPP process to allow membership to new potential candidates could also allow Mexico to exploit new trade and investment relationships with other Asian countries and Latin American neighbors.

Given the large and innovative scope of the CPTPP as a "new generation FTA," Mexico will benefit not only from non-tariff barriers with its CPTPP partners, but also from wide treaty coverage and strict protections in several areas, such as digital trade, regulatory coherence, intellectual property rights (IPR), SOEs, services, labor and environment, transparency and corruption. The CPTPP will support two sectors where Mexico holds trade surpluses with CPTPP partners: automotive and agroindustry. In other domestic industries, where Mexico holds significant trade deficits with CPTPP partners (e.g., footwear, textiles electronics and pharmaceutical goods) the challenge will be how to support domestic industries to adapt and face new competitors. Perhaps one of the strongest advantages of the CPTPP for an emergent economy such as Mexico will be to gain access to technology-intensive manufacturing opportunities in sectors such as telecommunications, digital trade and aerospace.

According to the Mexican Ministry of Economy (Secretaría de Economía - SE), upon the entry into force of the CPTPP, over 700 Mexican agricultural and industrial products will benefit from new market access opportunities under the Agreement, including Mexican auto parts, light vehicles, electrical equipment, medical devices, electronic goods, and a long list of fruits, vegetables and other perishable goods, such as meat, poultry, avocados, and orange juice. The CPTPP also ensures protections to more than 14 Mexican geographical indications (GIs) for tequila, mezcal, sotol, bacanora, charanda, talavera and olinalá pottery, amber and coffee from Chiapas, Veracruz, Ataulfo mangoes, vanilla, chili from Yucatan, and rice from Morelos.

Mexico became the first among 11 signatory countries to ratify the CPTPP Agreement on April 24, 2018. According to SE, Mexico's total trade with CPTPP countries totaled US $67 billion in 2017.

What comes next?

New entrants and pathway to accession

The CPTPP was designed to be an open and inclusive agreement; however, the precise accession terms and conditions remain unclear. To address these uncertainties, the first ministerial working group on CPTPP accession is scheduled to take place in Tokyo on January 19, 2019, where accession guidelines and procedures for new members will be discussed. CPTPP members that have yet to ratify the Agreement (i.e., Brunei Darussalam, Chile, Malaysia, and Peru) will attend as observers only.

Other countries, including Colombia, Indonesia, the Philippines, South Korea, Taiwan, Thailand, and the United Kingdom, have indicated varying degrees of interest in joining the Agreement.

  • Colombia became the first country to give formal notification to New Zealand, the CPTPP Depositary, of its interest in joining the Agreement back in June 2018.
  • Indonesia is studying the potential benefits of CPTPP despite having previously indicated that it was less interested following the United States' departure. While the study is due for completion next year, the upcoming national elections in April 2019 may impact this timeline.
  • The Philippines' business sector has expressed anxiety about the ability of its exports to compete with those of ASEAN neighbors Malaysia and Vietnam under the CPTPP. Finance Secretary Carlos Dominguez has said the Philippines will "certainly consider it," especially if the United States were to re- join.
  • South Korea announced in March 2018 that the government would consult with various stakeholders and decide whether to join the CPTPP within the year. There is interest, but no official decision has been made. South Korea already has formal trade links with all Parties except Mexico and Japan.
  • Taiwan has also been vocal in its desire to join the CPTPP and is ramping up its diplomatic efforts among the current Parties to gain support. Taiwan has even initiated "mock negotiations" to prepare for the accession process.
  • Thailand completed a comprehensive feasibility study and public hearing process in December to assess the pros and cons of joining the CPTPP. However, with national elections set for the first half of 2019, Thailand's decision on whether to join will be deferred to the next administration.
  • The United Kingdom, in anticipation of its potential exit from the European Union (EU), held a public consultation on whether to join the CPTPP. The consultation closed on October 26, 2018, and the results are still unknown. However, it is unlikely that any decisions will be made until the UK's exit from the EU is complete in 2019, and the government considers its trade policy options on a holistic basis. Japan has been especially vocal in its support for the UK signing on.

It is also possible that China may consider joining the CPTPP as a hedge against disruptions to its established trade network

Possible US reentry

Despite withdrawing from the TPP immediately upon taking office, President Donald Trump has since publicly flirted with the prospect of rejoining the Agreement were the terms "substantially better" than those negotiated by his predecessor. While some lawmakers see the CPTPP as having potential economic and geopolitical benefits, President Trump has focused on pursuing bilateral deals.

Following the US midterm elections on November 6, 2018, where Democrats attained a majority in the House of Representatives, it is possible that trade policy priorities will shift slightly. However, even if House Democrats are more inclined towards the CPTPP than their Republican colleagues, it will not be a priority, and it appears unlikely that the Trump administration will be persuaded to revisit the TPP due to congressional pressure. To the extent that Democrats prioritize trade at all, the focus will be the USMCA and the proposed FTAs with the EU, UK and Japan.

That said, the speed with which the United States could potentially join the CPTPP, seek to improve the agreement, or consider other options would depend on the terms and conditions of its accession. The political and economic calculus also depends on which other countries move to accede.

  • Option 1: CPTPP. If the United States were willing to accede to the agreement "as is" and based on its previous (TPP) market access commitments, accession would likely face little opposition, if any, from the current CPTPP parties. This approach, however, would likely be opposed by US members of Congress, which must approve any signed agreement's implementing legislation. These members could demand the reinstatement of TPP provisions on, for example, intellectual property, or argue that the revised deal is inconsistent with related US negotiating directives set forth in Trade Promotion Authority (TPA). US business community opposition might also be expected on similar grounds. This option would also likely be politically impossible for President Trump.
  • Option 2: "CPTPP-plus.” The United States could instead seek to accede based on its previous (TPP) market access commitments, but also request CPTPP parties to unsuspend most or all of the contentious provisions and to reinstate some or all of the United States' 53 TPP side letters. While such efforts might be welcomed by CPTPP Parties, there is no guarantee that the current members would quickly and consensually agree to reactivate the suspended provisions. Instead, new negotiations would be likely, thus raising significant domestic political concerns among certain CPTPP Parties whose citizens oppose, for example, US IPR policies or other Trump administration positions (e.g., steel tariffs). There also is no certainty that the US Congress would approve a "new" agreement or not demand additional amendments and concessions from the other 11 members—something these other members would probably not welcome. Finally, it remains uncertain how TPA procedures would apply to the new agreement given that the original TPP text has since been altered. Given the current administration's political need for some changes that they can claim are "improvements" to the original TPP, such as adding some side letter sweeteners to give President Trump political cover, this option may be the most plausible at least during his presidency.

Other global trade impacts

As the US-China trade war continues to escalate, some CPTPP members may be caught in the middle, and can use the Agreement to mitigate some potential economic impact. For example, Vietnam's economy is highly dependent on exports, a quarter of which go to China. Demand may slip, especially for those goods which are re- exported to the United States. The CPTPP, then, opens up new export markets and other opportunities.

Smaller countries successfully integrated into US- and/or China-linked supply chains have reason to be nervous as conflict between the world's two largest economies potentially leads to a structural schism. In recent remarks, Singapore's Prime Minister Lee Hsien Loong cautioned that "[t]he circumstances may come where ASEAN will have to choose one or the other." While that may represent an unlikely worst-case scenario, anything CPTPP countries can do to bolster supply chain integration in Asia will be insurance against further fallout.

Click here to download PDF.

1 The Bruneian government is amending rules on intellectual property and labor to comply with its CPTPP commitments. However, the government has not yet detailed a ratification timeline, and the ultimate decision to ratify appears to lie with the Sultan.
2 The Bruneian government is amending rules on intellectual property and labor to comply with its CPTPP commitments. However, the government has not yet detailed a ratification timeline, and the ultimate decision to ratify appears to lie with the Sultan.
3 Following the announcement in November 2018 by Prime Minister Mahathir Mohamad for further review of the economic and social impacts of the CPTPP for Malaysia, domestic debate has intensified. Moreover, the Malaysian government must still modify 18 domestic regulations related to issues such as intellectual property, labor and government procurement in order to align the country's regulatory environment with commitments taken under the CPTPP. As such, the likely timetable for Malaysia's ratification may stretch well into 2019 or beyond owing to challenges for parliament to amend laws.
4 Domestic political challenges may delay Peru's CPTPP ratification timeline. The CPTPP does not require congressional approval through a legislative resolution as no normative laws or existing agreements need to be changed to align the CPTPP with domestic law. As such, the CPTPP could be approved by presidential ratification through an executive order.
5 The official CPTPP text is available here 
6 The Parties agreed to suspend 22 provisions, mostly relating to the investment and intellectual property chapters of the original TPP as follows: (i) express shipments (Article 5.7.1(f)); (ii) Investment Agreement and investment authorization including investor-to-state dispute settlement (ISDS) (Article 9.1), and provisions concerning submission of claim to arbitration (Article 9.19.1, 9.19.2, 9.19.3) and selection of arbitrators (9.22.5); (iii) express delivery services (Annex 10-B); (iv) minimum standard of treatment in the Investment Agreement (Article 11.2); (v) resolution of telecommunications disputes (Article 13.21.1(d)); (vi) commitments relating to labor rights in conditions for participation (Article 15.8.5); (vii) further negotiations on the Investment Agreement (Article 15.24.2); (viii) national treatment (Article 18.8, footnote 4); (ix) patentable subject matter (Article 18.37.2 and 18.37.4); (x) patent term adjustment for unreasonable granting authority delays (Article 18.46); (xi) patent term adjustment for unreasonable curtailment (Article 18.48); (xii) protection of undisclosed test or other data (Article 18.50); (xiii) biologics (Article 18.51); (xiv) term of protection for copyright and related rights (Article 18.63); (xv) technological protection measures (TPMs) (Article 18.68); (xvi) rights management information (RMI) (Article 18.69); (xvii) protection of encrypted program-carrying satellite and cable signals (Article 18.79); (xviii) legal remedies and safe harbors (Article 18.82, Annexes 18-E and 18-F); (xix) conservation and trade (Article 20.17.5); and (xx) transparency and procedural fairness for pharmaceutical products and medical devices (Annex 26A).

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© White & Case LLP | Attorney Advertising

Written by:

White & Case LLP
Contact
more
less

White & Case LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.