North American Trade--the current status of North American trade.

• Author: Carmody, Chios
• Position: PROCEEDINGS OF THE CANADA-UNITED STATES LAW INSTITUTE CONFERENCE on An Example of Cooperation and Common Cause: Enhancing Canada-United States Security and Prosperity Through the Great Lakes and North American Trade: Cleveland, Ohio April 2-4, 2009

Session Chair-Chios Carmody

United States Speaker--M. dean Anderson

United States Speaker--Richard O. Cunningham

Canadian Speaker--J. Michael Robinson

INTRODUCTION

MR. CARMODY: For those of you I have not met, my name is Chi Carmody. I am an associate professor at the Faculty of Law, University of Western Ontario (1) and also the Canadian National Director of the Canada-United States Law Institute. (2) I am very pleased to be here today and to have an opporttmity to chair this session on the Current Status of North American Trade. In this session, we are going to be taking a look at what the current status of trade is. We have with us today an extremely distinguished panel of trade law and investment practitioners. On my far left is Jean Anderson. Jean is a partner at Weil Gotshal in Washington, D.C. (3) She is an international trade strategist and litigator at that firm and has worked in the trade field for over two decades. She joined Weil in 1989, has a Bachelors of the Arts from Northwestern University in Chicago, and her Juris Doctor from Georgetown. (4) She has served with great distinction as council for Canada in a number of matters, and she has also been a terrific resource for me personally in a couple of matters that I was looking into. I am very happy to have Jean here with us today.

Following Jean, we will hear from Dick Cunningham, or Richard O. Cunningham as he is formally known. Dick is with Steptoe & Johnson, LLP (5) in Washington D.C. and a senior international trade partner at that finn. He is known I guess informally as one of the Deans of the Washington Trade Law Bar. (6) He has had a very distinguished career. But almost as important as that, he has shepherded a number of leading trade litigators through the process of their early formative years, such luminaries as Charlene Barshefsky, (7) Sue Esserman, (8) and many others onto positions of great prominence. And he continues to contribute to international law and international trade in so very many ways currently serving as counsel for a wide range of individuals and interests including I believe most recently the government of Korea. (9)

On my right we have with us today one of the leading investment lawyers in Canada. J. Michael Robinson is a graduate of The University of Western Ontario and also of the University of Toronto Law School (10) where I believe, if I am not mistaken, he was in the same law school class as Paul Martin, Jr., (11) am I correct?

MR. ROBINSON: Paul Martin, Bill Graham, (12) and Ed Roberts. (13) All very distinguished; not me.

MR. CARMODY: Michael is with the firm of Fasken, Martineau, DuMoulin, LLP (14) where he specializes in domestic and international trade and project finance including investment and a wide range of other internationally related issues. I should also point out that we are very fortunate that both Dick and Michael give of their very limited time to be members of our executive board here at the Institute, and I know that we have often called on their expertise to provide us with insight, guidance, and something of a vision for the future. So we look forward to hearing from everybody today, and I'd like to invite to the podium Jean to start us off.

(1) See Canada-United States Law Institute, Founding Institutions and National Directors, http://cusli.org/about/founding_institutions.html (follow "Chris Carmody" hyperlink) (last visited Sept. 14, 2009).

(2) See id.

(3) See Weil Gotshal, People, http://www.weil.com/jeananderson (last visited Sept. 14, 2009).

(4) See id.

(5) See Steptoe & Johnson, Professionals, Richard O. Cunningham, http://www.steptoe.com /professionals-168.html (last visited Sept. 14, 2009).

(6) See The Legal 500, Steptoe & Johnson LLP, http://www.legal500.com/firms/ 2774/offices/52981 (last visited Sept. 14, 2009) (noting that Richard Cunningham is considered to be the dean of the International Trade Bar).

(7) See generally Wilmer Hale, Biographies, http://www.wilmerhale.com/charlcne_barsh efsky/(last visited Sept. 14, 2009) (discussing Barshefsky's achievement as the architect and chief negotiator of China's historic WTO agreement).

(8) See Steptoe & Johnson, Professionals, Susan G. Esserman, http://www.steptoe.com /professionals-182.html (last visited Sept. 14, 2009) (noting Esserman's many achievements in international law).

(9) See Steptoc & Johnson, Professionals, Richard O. Cunningham, supra note 5 (noting that Cunningham advised the Korean Government in their free trade agreement negotiations).

(10) See The University of Western Ontario, Faculty and Staff, https://www.law.uwo.ca /lawsys/pages/contents.asp?contentName=Instructors&contentFileName=jrobin69 (last visited Sept. 14, 2009).

(11) See id. (noting that Robinson graduated from the University of Toronto Law school in 1964); see also The Right Honorable Paul Martin, Biography, http://www.paulmartin.ea /en/biography (last visited Sept. 14, 2009) (noting that Paul graduated from the University of Toronto Law School in 1965).

(12) See Graham Fraser, U.S. Relations Main Concern, THE TORONTO STAR, Jan. 17, 2002, at A6 (discussing Bill Graham's role as Canada's minister of foreign affairs).

(13) See Government House, Profiles of Governors, http://www.befitage.nf.ca/govhouse /governors/g79.html (last visited Sept. 14, 2009) (noting that Roberts was the Lieutenant Governor for Newfoundland for six years).

(14) See Canada-United States Law Institute, Executive Committee and Advisory Board, http://eusli.org/about/advisory_board.html (last visited Sept. 14, 2009).

United States speaker

MS. ANDERSON: Well, good morning everybody. I am going to address briefly three issues that I think are going to be with us for a long time between the United States and Canada. And so you will have a choice of subjects when you enter the fray and the discussion period. The first is the reopening of the North American Free Trade Agreement (NAFTA). (15) The second is trade enforcement measures to address climate change. (16) And the third is some new developments involving Chapter 19 of NAFTA. (17)

Starting with the reopening or maybe even renegotiation of NAFTA. As I am sure you know, this became an issue last summer at the time of the Michigan, Ohio, and Pennsylvania primaries in the United States Presidential Election when NAFTA took a significant beating from voters and heavily unionized states that had lost manufacturing jobs, (18) although parenthetically I would say I do not think they had lost those manufacturing jobs because of NAFTA but rather because of technological change, competition from other countries and so forth. (19) But in any event, NAFTA took a beating. Hillary Clinton faulted NAFTA, (20) and I think it was apparent that anybody who didn't find NAFTA wanting might well lose the election. (21) So Barack Obama said he would reopen NAFTA, at least as to the labor and environment side agreements. (22) And the upshot is this, we have a President who by all lights seems to believe strongly in internationalism and trade liberalization. (23) In fact, he has also committed to fairness and economic opportunity for the middle class, (24) and not just the middle class, and even more committed to consensus and to getting some major initiatives such as health care through the United States Congress. (25) So in that context, he has committed to reopening what is, I think by most objective assessments, a highly successful free trade agreement that is still open and recently integrated North America.

Of course, when that happened in Canada and Mexico, a number of alarms were set off, and officials were sent to work devising lists of what they would demand if the United States wanted to be in NAFTA. (26) So the question is, will NAFTA be reopened? The talk about it has sort of died down, but the question is still on the table. (27) I think it will be reopened. My guess is that President Obama keeps his political promises, so I think that there will be some reopening, at least to attempt to conform the labor and environment side agreements more closely to the deal of free trade agreements that was reached last May between the United States Congress and the Executive Branch. (28) Under that deal, on the environmental side, free trade agreements were to include a list of multilateral environmental agreements that the parties adhere to. (29) On the labor side, free trade agreements were to incorporate certain internationally recognized labor principles, including things like the freedom of association (30) and collective bargaining rights. (31) On the labor side, the deal couldn't say we must include international labor agreements or ILO agreements and so forth because the United States hasn't signed on to a number of those, so the deal was to incorporate the principles but not the agreements. (32) And then once these principles or agreements were incorporated as standards that the countries adhere to, the obligation is to effectively enforce those principles or agreements. (33) And the alleged violation must affect trader investment between the parties. (34) If you look at those concepts against the existing NAFTA side agreements, they are not so far apart. (35)

The major change is that labor and environment principles under this Congress administration deal are to be subject to the same dispute settlement provisions as other obligations with the same procedures, remedies, and sanctions including withdrawal of free trade agreement benefits. (36) The United States-Peru Free Trade Agreement (37) is sort of the state of the art for the United States, and that agreement arguably goes even further. (38) It requires significant change in Peru's forestry laws to deal with the illegal logging of tropical woods and wildlife protection in addition to incorporating international labor standards and multilateral environmental agreements, and subjecting all of it to dispute settlement. (39)

So where is this going to take us? I personally hope...