March 5, 2018
Osler partner Riyaz Dattu tells Canadian Lawyer that although the U.S. administration has threatened to terminate NAFTA if a deal can’t be reached, “it’s likely that U.S. law would still have to be complied with to repeal NAFTA.” In his article, author Peter Kenter explores the uncertainty surrounding NAFTA renegotiations and how the U.S. has proposed to eliminate the NAFTA Chapter 19 trade dispute mechanism, impose stricter rules of origin for tariff-free treatment of goods and more. Riyaz, who specializes in international trade and investment law and who has written extensively on cross-border trade issues, explains what this means from a legal perspective.
“It’s not even clear that a notice of termination of NAFTA by the U.S. administration would result in the termination of NAFTA,” Riyaz tells Canadian Lawyer. “It’s likely that U.S. law would still have to be complied with to repeal NAFTA.”
Riyaz also says that in-house counsel have the opportunity to be proactive in helping to shape trade talks.
“The Canadian government often has a hard time obtaining views or engaging in proper consultation with companies regarding trade issues,” Riyaz tells Canadian Lawyer. “They’re often pushed down to speak with middle management who are not the decision-makers. In the U.S., we see companies taking a far more active hand in lobbying and taking positions to help shape trade policies. There are far greater opportunities for in-house counsel in Canada to affect trade policy.”
Riyaz also says that while in-house counsel are often better versed in corporate and securities law than international trade law, that trend may evolve.
“Canadian manufacturing companies will increasingly have to rely on export markets to be successful,” Riyaz tells Canadian Lawyer. “However, we’re seeing more younger lawyers graduating with expertise in international trade and international law and it appears they’re keen to work in this area.”
And he says that although recent rounds of NAFTA talks have led to an increased chance of NAFTA remaining in play, “prudent business planning suggests that Canadian manufacturing companies and their in-house counsel should continue to assess the potential implications of a notice to terminate NAFTA.”
Read more in Peter Kenter’s article “What if there’s no NAFTA?” in Canadian Lawyer.