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McCarthy Tétrault LLP / mccarthy.ca
NAFTA, Trump and Canada:What does it mean for your business?
McCarthy Tétrault Advance™, October 26, 2017, Montréal
The Honourable Wayne G. Wouters, H. David Plunkett,
Simon V. Potter and John W. Boscariol
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Friendly Neighbours.Sorry: Neighbors.¬ Enduring friendship
¬ Astonishing history of cooperation
¬ Longest peaceful border
¬ Bilateral cooperation on many fronts
¬ A commitment to the rule of law
¬ Two very integrated economies
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NAFTA has been enormousgrowth in business
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Sure, there are differencesand there are disputes¬ Softwood Lumber,
¬ Boeing AD/CVD complaint againstBombardier,
¬ New USA complaint to WTO re BritishColumbia régime for retail sales of wine,
¬ And renegotiation of the most successful freetrade agreement in history, under the threat ofits possible disappearance.
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But remember the happycontext¬ Enormous trade, both ways
¬ About $2 Billion of goods and services cross theCanada-US border every day!
¬ The same is true for the Mexico-US border!
¬ Relatively balanced trade
¬ Over the past two decades, China has generated morethan a third of the U.S. goods trade deficit.
¬ Canada and Mexico accounted for roughly 10%combined, and most of that is due to Mexico.
¬ Most of Canada's surplus, when there was one, isexplained by oil.
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Balanced trade
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Balanced trade, if that iswhat is important
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Where do Canadianmanufactured goods go?
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Goods and Services and Investment
¬ Key NAFTA stats for Canada¬ trilateral trade > $1 trillion (up over 300% since 1993)
¬ Canada is the US’s largest market for goods exportsand the second largest market for US services exports
¬ US is largest source of FDI in Canada – Canada is the4th largest source of FDI in the United States
¬ Mexico-Canada merchandise trade increased by 8times (1993-2015)
¬ Mexico-Canada services trade increased by 6 times(1993-2015)
¬ Canada is the 4th largest investor in Mexico
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Importance of NAFTA alsoto the USA
¬ Canada is the number one buyer of US goods.
¬ US exports to Canada have grown faster thanCanadian exports to the US.
¬ US trade with Canada and Mexico dwarfs UStrade with all the rest.
¬ Integrated supply chains have produced greatefficiencies.
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Everyone has benefited
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US imports: where do they come from?
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US automobile exports
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Not everything is NAFTA
¬ Canada’s share of the U.S. import market hasshrunk from roughly 19% in 1988 to 13% in2016.
¬ Mexico’s share of the U.S. import market hasmore than doubled, to 13% from 5%.
¬ China’s share has grown by nearly 1,000%, to21% from less than 2%.
¬ USA has trade agreements with others.
¬ So does Canada.
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A thickening border¬ NAFTA never produced a common market, and never met
the promise of seamless borders.
¬ Instead, the border has thickened. New security measuresand additional bureaucracy and costs.
¬ This slowed trade, added costs, and hindered allcompanies' ability to exploit the benefits of open borders.
¬ “Under the guise of security and anti-terrorism, the Americanshave increased the friction at the border very significantly – muchmore north to south, than south to north.” - Gordon Ritchie, aformer Canadian trade negotiator and one of the architects ofthe Canada-U.S. free trade agreement.
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Concerns¬ Of course, NAFTA can be improved.
¬ Border-crossing can be made easier, quicker.
¬ Electronic commerce can be dealt with better now than by 25-year-old rules.
¬ The movement of people can be made easier.
¬ Standards and technical requirements can be betterharmonized.
¬ North American enterprise can be made continuously morecompetitive.
¬ But will we find so much fault with NAFTA that wewill throw the baby out with the bathwater?
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Issues
¬ Which of these are the red lines?
¬ Chapter 11 Investor/State arbitration
¬ Chapter 19 Transnational panel review ofAD/CVD determinations
¬ A 5-year sunset clause
¬ Rules of Origin which require US content
¬ More protectionist US procurement and lessprotectionist Canadian procurement
¬ Raising the de minimis levels for cross-bordersales free of sales taxes
¬ Et cetera
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What if we lose NAFTA?
¬ Considerable period of uncertainty¬ President can give 6-month notice of intention to withdraw.
¬ Executive Branch can change the regulations adopted toimplement NAFTA.
¬ But they were often adopted not so much to implement NAFTAas to implement legislation which will remain the law untilCongress changes it.
¬ Fallback to CUSFTA¬ possible but unlikely
¬ WTO agreements
¬ Some other bilateral arrangement(s)
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What Canadian companies should beconsidering now
¬ NAFTA vs WTO MFN tariff rates
¬ Do you need to requalify for NAFTA?
¬ Do you need to establish qualification for MFNin absence of NAFTA?
¬ Investment protection
¬ AD/CVD binational panel and safeguardprotections
¬ Government procurement
¬ Energy export restrictions
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Trading protections available
¬ IP protections¬ NAFTA vs TRIPS vs CETA
¬ WTO protections in other areas, eg GATS
¬ Immediate-, mid- and longer-term FTAopportunities¬ CETA
¬ China
¬ Japan
¬ India,
¬ TPP (minus US)
¬ Take advantage of ongoing governmentconsultations