DAUSTR Douglas Bell's FTA Discussions in Malaysia

UNCLAS SECTION 01 OF 02 KUALA LUMPUR 001422 SIPDIS SENSITIVE SIPDIS DEPT FOR EB/TPP/BTA AND EAP/MTS DEPT PASS USTR FOR BARBARA WEISEL AND DOUGLAS BELL USDOC FOR JENNIFER BAKER USDA FAS FOR OA/BIG, ITP/AAD E.O. 12958: N/A TAGS: ECON ETRD EINV MY SUBJECT: DAUSTR Douglas Bell's FTA Discussions in Malaysia Sensitive But Unclassified - Not for Internet Distribution Summary and Introduction -------------- ¶1. (SBU) In his meetings with Malaysian government officials September 6-10, Deputy Assistant USTR for Southeast Asia and the Pacific Douglas Bell pushed Malaysia to continue to work with U.S. negotiators to make progress on outstanding issues, in advance of a possible next FTA round in November. Malaysian lead negotiator Jayasiri from the Ministry of International Trade and Industry (MITI) noted progress on market access discussions for goods and agriculture. The Malaysian leads on investment and services pledged to keep working with their U.S. counterparts to resolve outstanding issues. However, they said the U.S. was insufficiently flexible in addressing serious Malaysian concerns in both sectors; these include the U.S. proposals on investor state dispute resolution and elimination of performance requirements in the investment chapter, and U.S. insistence on early and complete market access in the services sector. Malaysia also seeks U.S. concurrence to negotiate a mutual recognition agreement on services. Malaysia's lead on the telecom and e-commerce chapters acknowledged good progress in both chapters, while noting continued Malaysian insistence that the government maintain some control over technology choice, as well as the sector's regulatory bodies. Former Malaysian Ambassador to the U.S. Ghazzali noted significant progress in the talks over the course of five rounds, and agreed another round would help maintain and improve the necessary momentum to reach conclusion. He cautioned that with MITI more of a coordinator than a driver for the FTA, Cabinet decisions will continue to drive the negotiating process in Malaysia. Ministry of International Trade and Industry (MITI) -------------- -------------- ¶2. (SBU) MITI's Jayasiri, the overall GOM lead for the U.S.-Malaysia FTA, told DAUSTR Bell, along with Econ Counselor and econoff, that much work needed to be done to move the FTA process forward, and he warned that results might not lead always to what the U.S. expected. Key contentious issues such as government procurement and financial services were outside of MITI's control, and negotiators continued to follow the decisions made by the Cabinet in May, which also included a decision not to negotiate a competition chapter. However, he said momentum still existed, after waning somewhat when TPA expired at the end of June. Jayasiri said Malaysia wanted to work through technical details as much as possible before next meeting face-to-face with the U.S. side, possibly in November. He noted that the market access discussions for both goods and agriculture were in good shape, while noting that the U.S. had not moved much in some areas, namely textiles. ¶3. (SBU) Bell responded that both sides needed to translate the recent commitment made at senior levels to move the talks forward, into a specific work plan that would help negotiators work through remaining obstacles. The U.S. viewed another round with some urgency, and believed early November to be a good time to hold such a round, provided working groups made good progress in the meantime. ¶4. (SBU) On investment, Malaysian lead negotiator Wong Seng Foo said U.S. insistence that it could move little from its proposed text was unhelpful, since Malaysia could not sell the investment text to its stakeholders absent some changes. Particularly sensitive areas included performance requirements (PRs) and investor-state relations. On PRs, Bell requested that Malaysia provide the U.S. with more details of its existing PRs so that U.S. side could determine more accurately whether this was a large or a small obstacle to agreement; more dialogue was needed so both sides could resolve the issue, as much as possible before the next round. Wong committed to providing this information. Bell also said the U.S. awaited further information from Malaysia on its specific concerns regarding investor state disputes before the U.S. makes a capacity building proposal. Wong said the Attorney General's office would need to provide this, and would welcome examples of how such a dispute mechanism was used in other U.S. FTAs (Bell noted that we had few examples to provide, since most such disputes are resolved without invoking the mechanism). ¶5. (SBU) Regarding services, Bell said the U.S. would like to hold a DVC covering the audiovisual and telecom sectors as a means to focus discussions. This could increase confidence that would lead to further productive discussion on broader services issues. Dr. Sarinder Kumari, the Malaysian lead, complained that the U.S. had remained inflexible on its proposed text, except in a few KUALA LUMP 00001422 002 OF 002 non-substantive areas. Malaysian negotiators found it difficult to negotiate a services chapter that appeared to provide limited benefit for Malaysian firms, especially at a time of increased attention in Malaysia to the services sector as an engine for future growth. Malaysia did not disagree that further competition from U.S. services providers would provide benefits to the sector's development in Malaysia, but the U.S. needed to better consider Malaysia's need to phase-in liberalization so that Malaysian firms would not be overwhelmed. Sarinder said Malaysia viewed its proposed phase-in of liberalization as a concession to the U.S., but noted no analogous flexibility from the U.S. ¶6. (SBU) Malaysian firms might benefit from the negotiation of mutual recognition agreements (MRAs),but the U.S. side has shown little response to this suggestion, said Sarinder. Bell pushed back noting that at present the Malaysian services offer provided minimal market access making an MRA discussion premature. He also noted that Malaysia's services sector stood to gain a great deal from an increased U.S. presence through increased employment, exposure to new technology and management practices and by improved competitiveness. ¶7. (SBU) Sarinder further noted that, while more senior USTR officials profess no intention in changing Malaysia's bumiputera policies, working level negotiators insisting on 100% equity participation across the board were, in effect, seeking to change fundamental aspects of the NEP. Sarinder said she is still discussing with her team the scheduling of a DVC and subsequently proposed dates to the U.S. side. ¶8. (SBU) On Malaysia's proposal on temporary safeguards for the financial system, Wong said Bank Negara would submit proposed language to the U.S. in October. Communications Ministry - Anbalagan -------------- ¶9. (SBU) Under Secretary Anbalagan K noted a few areas of concern in the talks on telecom and e-commerce (he leads the Malaysian team in both areas). Malaysia wishes to retain some control in the area of technology choice, given the country's relatively small market and its desire to maintain interoperability among technologies. For socioeconomic reasons Malaysia also wished to retain some control over regulatory bodies. Bell noted that the U.S. had just recently received Malaysia's offer and will assess how much access it provides to U.S. firms. Anbalagan acknowledged receiving USTR's telecom questions and committed to responding as soon as possible. MFA - Ambassador Ghazzali -------------- ¶10. (SBU) Former Malaysian ambassador to the U.S. Ghazzali S.A. Khalid told Bell that there has been "tremendous movement" in the bilateral talks since June 2006, with the most progress taking place in those groups that have perceived joint ownership of their chapters, such as IPR. Progress has been achieved despite the hard approaches of some U.S. and Malaysian negotiators. At this point it is important for both sides to sustain momentum and to show that movement has been made over the course of our discussions. By completing the majority of the agreement Ghazzali believes it will be possible to convince the politicians to make the right decisions in the end on the most difficult areas of the talks. ¶11. (SBU) On government procurement, Ghazzali believed that differences could be bridged if real discussions take place, and he suggested that it may be larger corporate (GLC) interests that are inhibiting discussion, and only to a lesser extent the political fear of change to Malaysia's bumiputera policies. The negotiating process has been hamstrung in Malaysia in part due to lack of a single player to move the process; MITI was initially in that role, but as discussions became more intense MITI shifted to a role of coordinator instead. The Malaysian Cabinet-led process makes negotiation difficult; it would be helpful for Malaysian negotiators to have some Cabinet mandates in hand before meeting for the next round. SHEAR