This obscure NAFTA chapter could be Canada’s deal-breaker again
On Oct. 1, 1987, days before the U.S. and Canada signed their biggest-ever trade deal, then-prime minister Brian Mulroney shocked the Americans by walking away from the negotiating table.
It was a high-stakes gamble designed to ensure the Free Trade Agreement contained a dispute-settlement mechanism — what Mulroney called his essential condition — that would give Canada a way to resolve trade conflicts outside U.S. courts. The David-and-Goliath move worked, and two days later the countries reached an agreement.
Thirty years later, Prime Minister Justin Trudeau is arriving at the same crossroads as his predecessor. The U.S. confirmed last week that among its top objectives in upcoming negotiations on the North American Free Trade Agreement — which superseded the free trade agreement in 1994 — is the elimination of the Chapter 19 dispute-resolution mechanism that Mulroney went to such lengths to preserve. Will it be the deal breaker it was in 1987? “Things like getting rid of Chapter 19 disputesettlement panels, that’s not a small bean. That’s a biggie,” Derek Burney, Mulroney’s chief of staff during the free trade agreement talks and a key player in NAFTA negotiations, said in a telephone interview last week. “We wouldn’t have the trade agreement if we didn’t get that dispute settlement.” Burney also zeroed in on why the Canadian side was willing to risk so much to get the mechanism into the free trade agreement: “We don’t trust their trade-remedy tribunals. We never have.”
The first round of NAFTA renegotiations begin on Aug. 16, with representatives from the U.S., Canada and Mexico gathering in Washington. President Donald Trump has threatened to withdraw from NAFTA if Mexico and Canada don’t agree to more favourable terms for the U.S.
NAFTA’s Chapter 19 dispute-resolution mechanism allows review by independent, binational panels — instead of judicial review by domestic courts — in anti-dumping and countervailing duty cases. Since NAFTA came into force, Canada has been involved in about 73 panels over items such as cattle, hot-rolled steel, colour-picture tubes, greenhouse tomatoes and supercalendered paper, according to the website of the NAFTA Secretariat, which is responsible for managing Chapter 19 proceedings.
But given that in the last decade Canada has only initiated three cases under the provision, Robert Wolfe, professor emeritus at Queen University’s School of Policy Studies in Kingston, questions whether Chapter 19 is essential. Wolfe suggests Canada may want to consider bluffing, and when push comes to shove, give in on Chapter 19 in exchange for something better, gaining concessions on Trump’s Buy American rules, for example, which restrict the ability of Canadian companies to bid on government contracts.
“If you had to choose between a real restraint on Buy American and keeping Chapter 19, I’d yell and pound the table and give up Chapter 19,” Wolfe said. “A lot more Canadian jobs might benefit from stopping discriminatory government procurement in the U.S.”
Chad Bown, senior fellow at the Washingtonbased Peterson Institute for International Economics, said in a July 19 report the Trump administration’s goal under NAFTA negotiations is to make it easier to restrict imports from Canada and Mexico. That’s “worrisome” because it could eliminate any new trade liberalization gains or reverse previous inroads, and likely lead to a situation where Canada and Mexico respond in kind against U.S. exports.
By 2016 only 1.3 per cent of imports from NAFTA partners were covered by U.S. anti-dumping and countervailing duties versus 9.2 per cent of Chinese imports and 2.7 per cent of imports from the rest of the world, Bown wrote. He predicts Trump’s barriers could more than quintuple the level of Canadian imports covered by trade remedies to 6.6 per cent. Without safeguards such as Chapter 19, the Trump administration’s NAFTA “could make U.S. trade with Canada and Mexico much less free.”
Mulroney fought so hard to preserve the dispute settlement because without it, he reasoned, Canada would face years of litigation in the U.S. court system whenever a disagreement arose. That’s why he took the extraordinary step in 1987 of calling his chief negotiator in Washington to tell him to pack his bags and come home.
“I instructed Simon Reisman to return, and used it as a manner of getting the attention of the American government big time,” Mulroney said in a 2011 interview.
“That happened, and I think it led to the resolution of the impasse and the Free Trade Agreement.”
Prime Minister Justin Trudeau faces a fight to keep NAFTA’s Chapter 19 dispute-resolution mechanism.
Brian Mulroney fought hard to preserve the dispute settlement mechanism.