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TDM Call for Papers Special Issue on: The United States-Mexico-Canada Agreement (USMCA)

27 November 2018

Chi Carmody, Kathleen Claussen, David Collins, and Todd Weiler will be editing a Special Issue of Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) on the USMCA between the United States, Mexico, and Canada.

Often referred to as the North American Free Trade Agreement (NAFTA) 2.0, the USMCA is a trade agreement between the United States, Mexico, and Canada, the principal negotiations of which concluded in late September 2018. On the campaign trail, then-presidential candidate Donald Trump made a number of references to his dislike of the predecessor agreement, the NAFTA, which dated to 1994. Now President Trump committed to making changes to the agreement that would reflect changes in the patterns of trade among the three countries, which together form the largest regional trade block in the world by GDP.

After more than a year of negotiations, an initial agreement was concluded between the United States and Mexico, placing pressure on Canada to join. Among the most contentious issues were Canada's reluctance to reduce tariffs on its protected dairy sector and to abandon the bi-national trade remedies dispute settlement mechanism contained in the NAFTA. The U.S. insistence on higher thresholds for rules of origin and a sunset clause requiring mandatory periodic review of the agreement had also initially met resistance by the other parties. Ultimately Canada relented on enhanced access to its dairy sector while the trade remedies dispute settlement was retained. The United States secured a higher threshold for rules of origin including a minimum wage requirement for certain auto parts and a variation on the originally proposed sunset clause. The controversial system of investor-state dispute settlement was abandoned between Canada and the United States with limited provision for some sectors between the United States and Mexico. The duration of minimum copyright protection, also hotly contested, was increased at the behest of the United States.

The USMCA remains substantially similar to the original NAFTA in several respects and, like many modern free trade agreements (FTAs), it is comprehensive in its scope, covering matters such as trade in goods and services, investment, intellectual property, technical barriers to trade, government procurement and competition. Unlike the NAFTA, but similar to the Trans-Pacific Partnership Agreement, the USMCA also contains provisions on digital trade and state-owned enterprises, as well as labor and environment chapters, although some of the progressive elements sought by Canada were omitted.

The USMCA consists of thirty-four chapters with several annexes and side letters addressing narrower issues specific to certain industries in each party country. The full text of the agreement can be found on the webpage of the Office of the United States Trade Representative https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/united-states-mexico.

As the United States, Mexico, and Canada work towards finalizing the USMCA text in the coming months, some observers harbour concerns that the agreement represents an excessive compromise by both Canada and Mexico which rely heavily on the U.S. economy. The removal of the investor-state dispute settlement, a mechanism that some commentators believe suffers from a legitimacy crisis, may be welcomed by advocates who have long opposed the concept. It remains unclear what will be the effect of the agreement's controversial "China clause" which requires signatory parties to notify the other parties before entering into FTA negotiations with a non-market economy or whether the chapter on digital trade will serve effectively the interests of the twenty-first century global economy.

The co-editors invite you to contribute to this special edition with unpublished articles, conference papers, research papers and case studies addressing the USMCA and corresponding issues raised by the negotiations. For example, the following topics raise interesting points for discussion:

• The convergence or divergence of international trade and/or investment law trends in the USMCA
• The balance struck within a USMCA chapter between measures designed to facilitate international trade and/or investment and a host state's sovereign right to regulate to achieve legitimate policy objectives, such as the protection of human rights, health, the environment, public morals, and culture
• Intended and unintended legal consequences of the USMCA's tight "rules of origin" provisions on labor markets
• The facilitation or impairment of market access for trade in services under the USMCA
• The treatment of technical barriers to trade, such as labelling and manufacturing standards or food safety measures under the USMCA versus WTO agreements and mega-regional trade treaties like the CPTPP
• Supply chain risks and opportunities created by the USMCA for multi-national organizations and/or signatory states and state-owned enterprises
• The impact of the USMCA on transformative/disruptive technologies, e-commerce or business models and related domestic law
• Reconciling the parties' rights and obligations under the USMCA with their other international trade and/or investment law treaty obligations
• Various aspects of the investment chapter including investor's rights
• Procedural and remedial advantages and disadvantages of the USMCA's dispute resolution provisions as compared to other international trade and/or investment law treaties

Proposals should be submitted directly to the co-editors at: USMCA@transnational-dispute-management.com  

The co-editors are:

Please CC info@transnational-dispute-management.com when submitting your materials.

Proposals of 500 words or less together with a CV should be sent to: USMCA@transnational-dispute-management.com.

Feel free to circulate this call for papers amongst friends, colleagues and other people who you think may have an interest in this topic.

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