ASEAN Economic Community (AEC): Preparing for Disappointment?

The ASEAN Economic Community (AEC) is set to take off at the end of this year.  Companies around Asia are increasingly paying attention to the creation of this trade arrangement.  But most are likely to be disappointed on January 1, 2016. 

In 2007, ASEAN leaders announced a highly ambitious plan to unite the 10 member countries of ASEAN:  Brunei, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam. 

The original plan called for the creation of an ASEAN Economic Community in 2020.  The plan has multiple elements, including the creation of a single market and production base, a highly competitive economic region, equitable economic development, and a region fully integrated in the global community.  These economic components are joined by a broader agenda of political and security integration.

However, for business, the most important part of the AEC has been the commitment to create "a free market for goods, services, investment, skilled labor and the freer movement of capital."  

Such a goal would have been difficult for nearly any grouping to reach.  For ASEAN, the gaps in economic development in 2007 were significant.  To bring together nations ranging in GDP from Myanmar at just over USD$215 per year to Singapore at more than USD$35,000 would have been challenging under any timeline.

But ASEAN leaders made the task more difficult by moving the deadline forward by five years.  Instead of 2020, the ASEAN Economic Community would take effect in 2015.  (Although this originally meant January 1, 2015, the deadline was then shifted backwards to the end of the year giving members an additional 365 days to succeed.)  Thus member states with an ambitious deadline suddenly faced the conclusion five years sooner than anticipated.

Fortunately, ASEAN has had a mechanism for releasing the pressure.  Members could reach any goal by using pilot projects.  In addition, ASEAN works on the ASEAN Minus X system where somewhere between 10 and 0 members actually move forward with any commitment. 

No one actually checks for implementation.  The ASEAN Secretariat is very small and has no capacity to ensure that members follow through on their various commitments.  Although there is a dispute settlement mechanism in ASEAN, it is not used.

Despite these challenges, ASEAN countries mostly managed to drop all tariffs to zero by 2010.  The “newer” members of ASEAN (Cambodia, Laos, and Myanmar) have until 2015 to finish the job. 

However, tariffs are not the only way that countries can keep out foreign products.  Other kinds of non-tariff barriers are also supposed to be removed from ASEAN countries.  Most of these discussions have moved forward slowly.

Services are supposed to be opened as well on the way towards the AEC.  By 2014, members had agreed on eight “packages” of market opening.  Each package is designed to open up a set of subsectors for other ASEAN firms.  For example, each member might decide to open up hotels, clinics or accounting firms.   Of the 160 subsectors, ASEAN members have already agreed to open up roughly 65.  Not all commitments are likely to be equally meaningful for companies.

The AEC also includes free movement of investment.  ASEAN members have made limited progress towards meeting this goal.

Finally, the AEC also promises the free movement of skilled labor.  This is a highly sensitive topic for most members.  As a result, little progress has been made.  Although members have drafted a few mutual recognition agreements (MRAs) for specific sectors like engineering and architecture, none (or, at best, very few) have been able to take advantage of the provisions.  This is because an MRA does not negate the need for immigration or visa rules.

The deadline for the freer movement of capital was not moved forward to 2015, but remains at 2020.

By the end of 2015, then, what is likely to change in ASEAN?  The opening of goods markets beyond existing tariff reductions has slowed to a crawl.  Efforts to address non-tariff barriers have not moved ahead by much. 

For services, ASEAN members are supposed to complete two more “packages” of services liberalization this year.  While these are meant to result in the free movement of services, it is still likely that ASEAN firms will find challenges in operating around the region.  This is partly because the levels of commitment (unless something drastic happens) are likely to be limited.

Labor and investment are not likely to be significantly opened for the rest of this year. 

As a result, at the end of 2015, the primary difference between now and then is likely to be two additional rounds of services opening and very little else.  For many ASEAN member firms, January 1 is likely to be very disappointing.  While companies are increasingly starting to expect ASEAN to deliver on the sweeping goals promised for the past few years, the free movement of goods (other than tariffs), services, investment, skilled labor and freer movement of capital are likely to prove elusive.

Trade Bottlenecks: A Review of One Day in the Jakarta Post

I was in Jakarta, Indonesia last weekend and picked up the Jakarta Post from Saturday, March 7.  I was struck by the sheer number of articles highlighting issues around trade—or with strong trade implications.  Nearly all highlighted bottlenecks that impede economic growth and development in Indonesia.

The first page notes, “RI Faces Major Infrastructure Project Delays.”  As any visitor to Jakarta knows, infrastructure in Indonesia has been unable to keep up with the demands of a growing population. 

The Public Works and Housing Minister is supposed to open significant new construction contracts by March.  But because of the number and size of the contracts, the ministry has announced that less than half of the proposed projects will meet the deadlines for tender announcements. 

Over the next five years, the government expects to complete 1,000 km of new toll roads and 2,650 km of main roads.  By comparison, the total length of road in China increased from 3.7 million kilometers in 2008 to an estimated 4.7 million kilometers in 2014. Meanwhile, the total length of highway in China rose from 60,300 kilometers to about 112,200 kilometers.

Admittedly, it may not be fair to compare any other country to China’s streak of roadbuilding.  But the contrast certainly in stark.  At the end of 5 years, Indonesia will have less than 4,000 new kilometers of main and toll roads.

The delays in Jakarta in tendering out projects relates in part to problems with land acquisition and paperwork problems in getting the tender documentation prepared.  Land and paperwork challenges will ring familiar with many businesspeople struggling to operate in Indonesia.

The second page of the paper highlighted how police are being urged to obey the president’s order to stop prosecuting the people who are trying to fight corruption.  Another article notes that Jakarta may be unable to pass a budget, so the city is preparing to use last year’s budget as a guidepost. 

One of most disturbing articles can be found on page 4, where President Jokowi has urged farmers to work harder for food sufficiency.  The government has already announced that it will not import any rice to meet rising demands for this staple crop from consumers.  As a result, the government hopes that farmers will start growing more rice to make the entire country self-sufficient in rice production.

The paper reported that Jokowi said, “I asked all farmers to be more confident in producing rice.”  The government is expected to announce a price of unhusked rice that will be “consistent with farmer’s expectations.”  The president has already said he wants the country to be self-sufficient in rice, sugar and corn within five years. 

To achieve the targets, the Indonesian Military (TNI) has been ordered to assist.  The Army signed a Memorandum of Understanding with the Agriculture Ministry for cooperation.  The Army agreed to deploy 50,000 people plus 50,000 non-commissioned officers to serve as agricultural field advisors.

Where to begin on unpacking this story?  I think a future post will go into some of the issues around food self-sufficiency in greater detail.  For now, just note that this is likely to be a poor idea with a fairly miserable track record of success wherever it has been tried.

Banning the importation of rice, sugar and corn (which is what the government seems to believe is necessary to ensure sufficient local production), only distorts the market even more.  It will likely lead to ruinous costs for the government as price supports will likely be needed, as well as all sorts of subsidies and assistance to farmers for things like fertilizers.

The Indonesian distaste for imports is deeply problematic.  In general, a great deal of time and effort has been spent complaining about the trade balance and decrying imports.  Imports are not automatically bad.  Many exports, for instance, require a certain level of imported content.  Again, I could go on, but will move along.

It is unclear to me how bringing the Army into the field will improve the capacity of farmers or the ability of the Army to do its job. 

The business section opened with an article on how the ministry is building roads to connect up seaports and airports.  The government has already announced plans to develop 24 seaports across the next five years, along with 5 new airports.  But none of these projects will work if the road infrastructure is not also in place.

As a result, the article notes, the Public Works and Housing Ministry has pledged to build 1,000 km of roads to connect these facilities (to what, exactly, is not clear from the article).  The ministry is also tasked with creating 1,350 km of roads to support 15 national strategic tourism areas. 

What is not obvious at all is whether the roads announced in the business section are the same roads announced on the first page of the paper.  If they are, then most of the new road construction will be aimed at getting goods and people out of seaports and airports and getting people to tourist destinations.  While necessary, such construction will not solve many of the road and trade bottlenecks that are causing companies major headaches when trying to operate in Indonesia.

Sixty percent of the budget will go to road building in the eastern part of the country.  The government is hoping that public-private partnerships will boost infrastructure and accelerate growth. 

Another great story on the business front page related to e-commerce.  The government has asked for the development of an “e-commerce roadmap” in the next 3-6 months.  Right now, there is a ban on foreign investment in e-commerce.  (I’m not sure exactly how this works frankly.) 

The government is to discuss whether online merchants should have to register with the government or not and become a licensed provider of e-commerce products.  Surely one of the biggest benefits of e-commerce is that it allows anyone—from one person operating in their own home to some of the biggest firms in the world—to buy and sell goods and services.  If every merchant has to be licensed, much of the benefit is likely to be lost, particularly for smaller firms.

In any case, the government has promised to list all the “lingering” issues in the industry to sort out the most pressing.  Hopefully, businesses from around the world will let Coordinating Economic Minister Sofyan Djalil know all about those lingering issues that impede the growth of what ought to be the most dynamic sector of the economy.

The last two articles on the front page are also of relevance to a trade audience.  One announces the launch of a banking road map in May.  The roadmap is supposed to include options for consolidation including the integration of IT systems for state-owned sharia and commercial lenders.  Finally, the government announced the preparation of regulations for the water industry.  One issue is whether or not the government ought to seize control over the bottled water industry.

Thus, this random day in the Jakarta Post highlights so many of the issues for businesses trying to operate in Indonesia: struggles with infrastructure, land and paperwork issues, fear of imports, desire for self-sufficiency in food production, desire to regulate business and create greater opportunities for corruption, and the possible seizure of assets by the government for all sorts of reasons.  It's a challenging place to work.

*******Talking Trade blog is written by Deborah Elms, Executive Director, Asian Trade Centre*****

Creating The TPP Secretariat

As the chief negotiators meet again this week in Hawaii, one issue needs to move quickly up the list of priorities—setting up the right institutional framework for the Trans-Pacific Partnership (TPP).  The TPP requires a robust Secretariat to ensure the long-term health and success of this trade agreement.

This is not a topic that excites very many people.  Everyone is much more interested in discussing what is or is not included in the agreement, getting the deal done, and discussing the timing of it all. Yet if the right framework is not chosen for the TPP as a whole, the entire agreement will swiftly fade into irrelevance.  More than 5 years worth of hard bargaining could be lost along with most of the promises of future benefits.

Oddly, this is one area where people outside the trade and diplomatic universe have a much better grasp of the issue than officials.  Whenever I describe the implementation and enforcement challenges to business leaders or the general public, people immediately understand that it is not possible to keep track of an agreement that binds together 12 members in three continents at diverse levels of economic development without some sort of robust management system.

The option currently on the table in the TPP consists of a set of standing committees, similar to what has been used in different bilateral trade agreements in the past. 

Yet anyone who has ever worked in a large business or volunteer organization immediately grasps the problem of leaving important tasks to a committee.  Not all committees are hopeless, of course.  But the success of many committees relies on finding committed and determined individuals who have (or create) the time to focus relentlessly on committee tasks.

This single-minded attention to detail is unlikely to be found among the mostly overworked desk officers of the current TPP members.  Dumping implementation monitoring and future tasks on the shoulders of the Asia desk trade officials is more likely to be a recipe for drift. 

The first phase of TPP implementation will stretch to more than a decade, with constantly shifting commitments every year for each member.  Just keeping an eye on the promises made by different countries and ensuring that these commitments are properly implemented across 29 different chapters is not going to be easy.

Under most trade agreements, changes and monitoring are set to take place in various committees—for goods, services, etc. as well as an overall coordinating committee group.  But even in most regular deals, the committee structure rarely works as promised.  The groups do not meet as originally planned.  National level trade desk officers in charge of attending the committees do not really have time to pay attention to the agreement in between review periods at all.   

The reality is that very little change ever happens in the review sessions.  To even get members in a bilateral agreement to make a change often requires parties to agree on a protocol of amendment in the first place.   No good bureaucrat is likely to argue for drafting a new protocol of amendment unless the issue under discussion is extremely critical.

So existing agreements quickly get out of date.  This is not supposed to happen in the TPP, because it is meant to be a “living agreement.” (More on this idea in a future post.)  But without a dedicated group of people monitoring the deal, it is not at all likely that the TPP will actually be amended as necessary over time. 

For these reasons alone, the TPP needs a standing Secretariat to keep track of the agreement. 

But the argument for a specialized set of experts to manage the agreement gets even more compelling when you realize the TPP is supposed to expand again in the near-term.  The current teams of negotiators are likely to be disbanded as soon as the TPP agreement is concluded.  Many of these folks will be heading off to a well-earned retirement or new careers entirely after five grueling years of continual travel and hard bargaining.

There are already a number of countries like South Korea, Taiwan, Columbia and the Philippines that have expressed interest in joining the TPP as soon as possible.  By 2018, the TPP could have 19 countries working together to craft accession terms and market access commitments.  Managing all these diverse interests will require a dedicated Secretariat.

There have been some muted calls to let the current APEC Secretariat handle the task.  The TPP is officially one of the pathways to the Free Trade Area of the Asia Pacific (FTAAP) that will bring together all 21 APEC economies.  But the current APEC Secretariat is not in a position to manage the legally binding TPP commitments very well among a subset of its members and still manage to complete its own full slate of activities. 

It seems clear that the TPP requires a dedicated Secretariat.  Current negotiating members are not enthusiastic about this idea, as it requires deciding on budgets, staffing and the identification of a suitable host.  But in the absence of a Secretariat, it is likely that many of the benefits of the TPP will be lost or will not be fully exploited.  It would be a shame to finally get a deep, broad and important agreement completed and watch it crumble for want of a decent institutional framework.

*******Talking Trade is a blog series by Deborah Elms, Executive Director, Asian Trade Centre, Singapore******

WTO: Why It Does Matter That The Global Trade Regime Stays Healthy

My Feb 27 post noted the difficulties experienced by the World Trade Organization (WTO).  After such a bleak assessment, readers might be left wondering why they should care about the stumbling fate of the multilateral trade regime?

The answer, in brief, is that the multilateral system does matter.  This post argues that a healthy global trade regime matters for at least three broad reasons: for businesses struggling to operate in an increasingly complex environment, for resolving disputes around trade, and for the smallest and most vulnerable countries in the global system.

To address the first issue, consider a question posed to me by my chiropractor.  He wanted to know whether or not trade agreements have made it easier for him to operate a chiropractic clinic in South Korea and Taiwan and whether it is possible to train people to deliver this service in both places. 

This sounds like a relatively straightforward question.  But answering it took me several hours and highlighted the difficulties that companies (and individuals) have in using the existing system of trade agreements. 

To begin with, as I noted in my earlier post, services like chiropractic care were barely opened in the last, Uruguay round of multilateral trade talks.  Since medical services are often considered a sensitive sector, few governments made any commitments at all.  Chiropractic services do not appear to have been opened for foreign trade by most governments in the WTO.

This means that determining if these markets are open requires examining various preferential trade agreements (PTAs) to see if they have different rules.  South Korea has dozens of agreements currently covering a wide range of partners. 

Taiwan, thus far, has only two PTAs with New Zealand and with Singapore. The text of the latter has not yet been released, so it is not possible to be certain whether or not my chiropractor might use this agreement to open a clinic in Taiwan or a school.  However, a check on the provisions negotiated with New Zealand suggests it may not be possible, since Taiwan seemed to take broad exceptions (or keep the market closed) for medical services and adult education.  If the same rules were applied to both Kiwis and Singaporeans, my chiropractor may be out of luck for the moment in Taipei.

To determine the situation for certain in South Korea would have taken longer time.  This is because there are multiple ways to take advantage of some agreements.  South Korea and Singapore are covered by the ASEAN + Korea agreement, which does not appear to open up chiropractic care.   

The most comprehensive agreements signed by Korea have been with the European Union and another bilateral with the United States.  So determining whether the sector is likely to have been opened anywhere is made easier by starting with the most likely suspects.

But the situation remains quite complicated.  The Europeans and the Americans negotiate services differently.  Understanding whether or not chiropractic care is open depends on knowing which approach has been used to schedule (or open) sectors. 

For the European agreement, if chiropractic care is listed, it means it might be opened for foreign competition from EU firms.  However, determining the extent of the openness requires both knowing and understanding four different modes of supply, as different methods for delivering the service might be differently opened.  Then, it requires knowledge of the apparently backwards use of terminology to determine if what appears to mean that the market is open really does mean that the sector is open.  (If it says “none” it means it is NOT opened, while the word “unbound” means it is totally opened.)

In the American bilateral, if chiropractic care is NOT listed, it IS opened for foreign competition from American doctors.  Thus, my doctor would have had to find this agreement online, found the relevant annexes for services in the bilateral, and searched for his sector.   However, having not seen the service listed, he might have assumed it would be closed.  But this does not appear to be true in the case of chiropractic care into South Korea.  American chiropractors appear to be free to practice (subject to whatever relevant local regulations and immigration rules might apply) in Korea.  This situation is, to put it mildly, confusing for a company to sort out.

This takes us back to the need for robust agreements at the multilateral, system level.  A deal that includes 160 countries is infinitely easier to use for companies than a thicket of sometimes overlapping bilateral or regional deals.  It would have been far better for my chiropractor to only have to visit one place to discover the commitments for this service across every WTO member.  (This would be true even if not every member had identical pledges, since they would all at least be in one place with one method of understanding the outcome.)

A second good reason for wanting the global trading system to remain healthy has to do with what is often called the “crown jewel” of the system—the dispute settlement mechanism (DSU).  One thing the WTO has continued to do for the past 20 years while the negotiating function has been stuck is to adjudicate disputes over trade. 

The DSU allows one government to sue another if the rules outlined in the agreement have not been properly followed.  There is plenty to say about this system, but for now, the key point is that the rules and commitments that member states must follow at the global system are getting increasingly archaic.  A government can only sue in areas where a rule actually exists.

As larger and larger segments of the modern economy, including vast swathes of services, new goods, investment and other important aspects of economic life are outside the existing rulebook, the DSU will also become less and less relevant to companies and governments.  It is not possible to use the WTO DSU to argue about provisions contained in preferential trade agreements (unless a violation of the PTA rules is also mirrored by a violation in global rules). 

Finally, while countries are increasingly finding it necessary to open up areas like chiropractic care in bilateral or regional settings, this stampede is deeply problematic to the smaller and poorer countries in the international system.  Not all WTO members make attractive PTA partners.  For some countries, there is just not enough trade between parties to make it worthwhile to negotiate a PTA.  For the excluded parties, they are increasingly stuck with the older, out-of-date rulebook at the WTO and without the preferences that most of their potential rivals might receive into various trading partners.   This puts them further and further at a disadvantage, making it more likely that they remain stuck on the periphery. 

For at least three reasons then—ease of use by companies, increasing challenges in managing disputes and marginalization of the smallest and poorest—it is important that the global trading system continue to function.  Unfortunately, fixing what ails the WTO is a challenging task.

******Talking Trade is written by Dr. Deborah Elms, Asian Trade Centre, Singapore********

ISDS: A Little Bit of Knowledge is a Dangerous Thing

I was preparing to write a different blog post when I came across a news article that got me so fired up that I have switched topics for today.  

There is an article in The Guardian that quotes Michael Moore, of the Public Health Association, at length.  He argues that a provision in the upcoming Trans-Pacific Partnership (TPP) negotiations will wreck the Australian government’s ability to protect public health.

This provision, known as Investor-State Dispute Settlement (ISDS), has gotten an astonishing amount of airtime lately.  Nearly all of the commentary around what ISDS does and what it does not do is, frankly, wrong.

So, let’s see if we can straighten out the record somewhat, using the misguided statements attributed to Mr. Moore, written by Gabrielle Chan, as our guideposts.

First, the article suggests that Australia’s efforts to change labeling laws to include clear provisions on country-of-origin could be undermined by the TPP.  The Australian government wants to change the way it labels produce to help eliminate problems like a recent hepatitis A outbreak related to imported frozen berries.  (We will skip over, for now, the issue of whether such labeling would, in fact, reduce the risks of hepatitis or the fact that better product testing might be a more sensible response to such a risk.)

The Australian government, like every government, has always had the right to regulate in the interest of public health, as well as animal and plant health.  This right is enshrined in the multilateral trading system under the World Trade Organization (WTO) and has been carried through in every single preferential trade agreement since then.  There is nothing in the TPP or any other trade agreement that will fundamentally undermine the government’s sovereign right to ensure the safety of its citizens.

No government would ever agree to an agreement that would abrogate this right either.  Thus, the argument that somehow the TPP has forced governments like Australia to take decisions that violate their own rights to regulate simply does not make any sense.  Government officials are just not that stupid.

Second, the TPP’s investor state dispute settlement (ISDS) clause does not give companies the right to sue governments over being given an “unfair advantage” as Mr. Moore claims.  The ISDS provisions of this agreement run to over 60 pages and spell out, as specifically as possible, exactly what constitutes an example of government expropriation of rights under which a foreign investor could consider launching an ISDS suit.

The basic issue that ISDS is trying to address is the following.  Governments sometimes seize property (expropriate) for the public interest.  The clearest example is when the government decides to build a road through your shop.  In many countries, the rules that govern what happens in this situation are murky.  Investors may suddenly find their property seized without warning or without receiving fair compensation for their loss of the shop.

ISDS is designed to make the provisions around expropriation much more clear.  A good clause explains in detail what sort of conditions must be in place when a government decides to act.  Note that ISDS does not prevent the government from acting—if the road must be built through my shop, the government has the right to do so.  Instead, the rules spell out how I am to be notified about this decision, how I will be compensated, and what I can do if I want to appeal what I think is an arbitrary decision or an unfair amount of compensation.

The reason why I, as a foreign investor, might want to use an outside arbitrator to resolve my potential dispute with the government is that I am not always confident that the court system in the other country will rule fairly on my dispute.  Remember that the issue here is whether or not the government has followed the proper procedures.  Not every judge in every country will be willing to find against its own government.

But what I cannot do as an investor is simply claim that I am losing revenue somehow because other products get an “unfair advantage.”  ISDS does not say anything about making or losing money. 

Globally, there are more than 3,000 different bilateral investment treaties (BITS) as well as hundreds of free trade agreements.  Of these, more than 90 percent contain ISDS provisions.  The total number of disputes using ISDS is amazingly small, particularly given the volume of foreign investment covered by this welter of treaties.

What makes this relatively small number of disputes even more impressive is that the earlier versions of ISDS were much broader than later versions.  In other words, the earlier ISDS rules were quite expansive, allowing investors to use the arbitration system relatively easily.  Yet, most businesses do not resort to an outside system but continue to use the domestic court procedures to resolve disputes. 

In part this stems from a lack of certainty about how any given arbitration case will be resolved which adds an element of risk to a decision to sue.  Plus, most investors would prefer to remain in their host country and recognize the chilling effect that suing the government tends to have on their business operations.  Hence, few investors are likely to sue, even if their case would likely be ruled in their favor. 

The case that has made ISDS internationally famous actually highlights the changes underway in newer ISDS provisions.  Philip Morris sued the Australian government using a BIT between Hong Kong and Australia.  The specific issue was Australia’s new regulations on packaging for cigarettes.  Under the rules, it was not just that the cigarette manufacturers had to put graphic photos of damage done to smokers and others or carry large-size warnings about the dangers of smoking.  Instead, the government required every carton, packet and even every cigarette, to look exactly identical to one another.  Manufacturers were required to use exactly the same courier font, same colors, and same information on every single product. 

As a result, it is not possible to tell one manufacturers product apart from another.  For Philip Morris, this represented more than just a change in labeling.  The company argued it would invalidate the intellectual property (IP) contained in their products—particularly the value of their brands and trademarks since consumers could no longer see at a glance which cigarette was which.

We can argue about whether the result is appropriate or not.  The bottom line is that the BIT used by Philip Morris gave investors the right to sue over expropriation of intellectual property rights, as well as other kinds of rights. 

Recent trade agreements have not been so expansive.  Instead, deals like the TPP have much more narrowly defined the scope of potential lawsuits and many have explicitly set aside IP.  This is the main reason why ISDS provisions have grown in length over time, as governments have tried to strike a more appropriate balance between their right to regulate and the right of investors to ensure that their investments are not unfairly seized.

Elizabeth Warren, an American senator, wrote an op-ed this week in the Washington Post that was also problematic.  She argued that there is no point in including an ISDS provision in the TPP because the domestic court structure in countries like the United States, Japan and Australia can be used to resolve these sorts of disputes fairly. 

There are two reasons to continue to push for ISDS in the TPP that Warren overlooks.  First, although it might be true that the American or New Zealand court systems can handle investor disputes, not every TPP member is equally capable.  The current TPP membership includes 12 countries at diverse levels of development and government capacity.  For example, Mexico is rated 79 out of 99 by the World Justice Project Rule of Law ranking project.  Vietnam is 65 on the same scale and Peru is 62.  

Second, the TPP is also intended to expand further.  Even if all current members are able to handle investment disputes, future members might be less able to do so.  Adding in ISDS at a later date will likely be impossible.

Finally, once governments start to cut out ISDS from some agreements, it might be more difficult to include the provisions in other deals.  Thus, if the United States (in particular) wants to include ISDS in a future trade or bilateral investment treaties (like the one currently under negotiation with China), it could be very problematic to have carved out the ISDS provision in the TPP.