Posted by on Nov 16, 2015

Change is the law of life and those who only look at the past or present are certain to miss the future.     

                                                               John F. Kennedy

Last week I had the pleasure of attending the Canadian Council of International Law (CCIL) Annual Conference.  The theme was “Coherence of Chaos” and the program was full of insightful commentary by leaders from Canada and all over the world in various fields of international law.  Commentary which led to a very high level of debate, exchange and (for me, at least) learning.  Many thanks to the CCIL President, Adrienne Jarabek , and her team and special congratulations to Conference Co-Chairs, Professor Debra Steger and Victoria Clark.  For more about the CCIL and the conference see:  http://www.ccil-ccdi.ca/#!upcoming-conference/cg4a

The conference was held at my old “stomping grounds” – the Department of Foreign Affairs, Trade and Development (DFATD) which was undergoing a name change as we met.  The new name – Global Affairs Canada (GAC ) / Affaires Mondiale Canada (AMC) .   Whether the new name will mean new policies and new directions, it is too early to say.  However, given the setting and the topic of the conference, it was apparent that many in the international law and policy community are anticipating fresh perspectives.  For example, the international regulation of trade and the environment are being examined through new prisms of convergence.

As we consider the future and the need to adapt to change, it is important to ensure that discussion about the international rules rule are brought beyond the experts, scholars, and practitioners to the wider constituency of those who rely on those rules and are most effected by change.  In this context, one of the matters discussed at the conference – a very important issue for those working at GAC – comes to mind.   How should Canada address the recently completed Trans-Pacific Partnership (TPP)?  The TPP is a massive free trade pact involving Canada, our NAFTA partners – the   United States and Mexico- , economic powerhouse Japan and eight other Asia-Pacific countries.* If all the parties ratify the agreement it will cover a market of almost 800 million and a combined GDP of $28.5 trillion.  A little over eighty percent of Canada’s total exports are sent to the TPP countries. ** Of course Canada’s largest trade relationship is with our NAFTA partners and one of the one key areas for review and analysis is the way the NAFTA and the TPP overlap and interact.

If all 12 TPP parties ratify the agreement, it will cover 40 percent of the world’s economy and set up the potential of bringing China to the negotiating table on terms that would aim at significantly opening the world’s second largest economy.   Given this and the ambitious reach of TPP negotiators  and their assertions it goes went well beyond current WTO and NAFTA disciplines, it is no exaggeration to conclude that Canada’s decision on whether to go ahead and ratify will be a very important one for the new Government.  However, the TPP is already a subject for debate in Canada with respect to provisions that effect our supply managed and auto parts industries and broader criticism with respect to many other provisions including those concerning Intellectual property and investor-state dispute settlement.

During the recent federal election, the TPP was subject to some debate but the timing of the negotiations and a range of other issues meant that the 2015 election was not about the TPP and not much time was devoted to over-arching issues related to free trade.   While the new Government has indicated that it is in general supportive of liberalized trade, it has not yet taken a position on ratifying the agreement.  In fact Canada’s new International Trade Minister, Chrystia Freeland, has indicated that she wants to “engage with Canadians” and to have a “full and open public debate in Parliament” before moving ahead.  Her officials have put the text of the TPP and very useful background material on the Departmental website:  http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/tpp-ptp/index.aspx?lang=eng

“Coherence or Chaos” in Canada’s trade policy was discussed at the CCIL conference but the TPP was not examined in detail.  In fact the 6000 page agreement had just been released and it is really early days for such an examination.  However, the TPP faces wide ranging praise and criticism and intense and what promises to be lengthy review and political debate in Canada, the United States, and the other TPP signatories. It appears that Canadians will have a special opportunity to weigh in and be part of the debate.  Some will argue that the TPP is a “done deal” or that this is a “take it or leave it” proposition.  There will be claims the long and complex agreement with its many annexes and side agreements makes informed participation difficult if not impossible.   However, one could make a strong case that the wide public consultation about the TPP and its merits and drawbacks is timely. One might argue that it is necessary.  If Canada is to build a coherent trade policy moving forward and if we need  to ensure that this policy is connected to building the Canadian economy and benefiting  its players, big and small, individual and corporate, employer and employee,  long-time and new and should take part in a forward looking discussion.

A wide and inclusive pubic consultation could have an important value beyond its importance in the context of the future of the TPP.  The Minister of Trade’s mandate *** which has now been made public goes beyond the direction to “consult on Canada’s potential participation in the Trans-Pacific Partnership (TPP).”   In the process of review, dialogue and consultation there is a wider objective to consider – the Minister’s mandate to develop “ … trade agreement implementation plans to help Canadian businesses take advantage of the opportunities that flow from trade agreements … pull9ing) together resources from across government … reviewing the roles of these organizations so that they are better aligned with our new trade strategy.”

The debates in Parliament and the review of the TPP in the context of the upcoming U.S. election will help highlight viewpoints and raise the profile of the issues involved.  One hopes that this will provide a catalyst to real and substantial input.  All Canadians are stakeholders and should be encouraged to take advantage of opportunities to engage – not just about the specifics of the TPP but also about the aims and objectives of Canada’s trade policy, the benefits and costs,  and the best way for Canadian to  prepare,  adjust, and manage  moving forward.

Both in broad and strategic terms and with respect to specific and technical measures the TPP, and  the consequences its terms, Canadians should take up Trade Minister Freeland on her commitment to engage with them, noting that the Minister has said that it is important for  “ … Canadians to become familiar with this agreement  … ” ****  At Woods, LaFortune LLP, we will be examining the TPP’s provisions and posting further articles and we would be delighted to discuss and questions and/or comments you  may have and to offer guidance with respect to consultative process with the Government of Canada.

 

 

 

 

 

 

* Full listAustralia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam

** see:  http://www.international.gc.ca/media/comm/news-communiques/2015/10/02a.aspx?lang=eng

*** see:    http://pm.gc.ca/eng/minister-international-trade-mandate-letter

**** see: http://www.theglobeandmail.com/news/national/tpp-to-ease-threshold-for-foreign-takeovers-of-canadian-companies/article27114404/