Michael Woods has been engaged by the Faculty of Business at Ottawa’s Algonquin College where he teaches the course, Global Business Environment. Algonquin College of Applied Arts and Technology is a publicly funded college with an enrolment of over 60,000. It is a member of Polytechnics Canada and its School of Business has a long tradition of focusing on international business and trade as a major area of study. The course Michael teaches is part of Algonquin’s International Business Management Graduate Certificate Program. Earlier this year, Michael was named to the College’s International Business Advisory...
Read MoreConsumer and Business Groups Now Can Have a Voice in the Gypsum Board Dumping Inquiry
The dumping inquiry into Gypsum Board from the United States has just been complicated by a Cabinet Order directing the Canadian International Trade Tribunal (“CITT”) to consider whether anti-dumping duties will cause economic harm to Canada and Canadian gypsum board users. As a result of the Order, the CITT must now simultaneously conduct two separate inquiries into U.S. gypsum board imports. While this requirement will make the CITT process more difficult overall, it gives Canadian users and consumers an important voice at an early stage and represents a step forward for Canadian interests The anti-dumping inquiry started with a Complaint filed by a Canadian producer who claimed that imports of gypsum board from the United States into the Western Canadian market were dumped and caused or threatened cause material injury to domestic producers. The Canada Border Services Agency (“CBSA”) accepted the Complaint as properly documented and began its dumping investigation. On September 21, 2016, the CBSA issued its Preliminary Determination which found dumping margins for cooperating exporters ranging from 105.2% to 143.6% and 276.5% for non-cooperating exporters. The Canadian International Trade Tribunal (“CITT”) conducted a Preliminary Injury Inquiry which concluded, on August 22, 2016, with a finding that the evidence disclosed a reasonable indication that U.S. gypsum has caused or threatened to cause injury to domestic producers in Canada. As a result of these findings, the CBSA is continuing its investigation and the CITT initiated an Injury Inquiry to determine whether U.S. gypsum board dumped into the Western Canadian market has actually caused or threatens to cause material injury to domestic producers. On October 13, 2016, the Federal Cabinet issued an Order directing the CITT to conduct a separate inquiry to determine whether imposing dumping duties on U.S. gypsum board exported to the Western Canadian market is contrary to Canada’s economic, trade or commercial interests. Specifically, the CITT is directed to determine whether imposing anti-dumping duties on U.S. gypsum imports would substantially reduce competition in the Western Canadian market or would cause significant harm to consumers and businesses that use gypsum. If the Preliminary Duties found by the CBSA are maintained through the CBSA’s Final Determination, it is hard...
Read MoreSIMA Review? Maybe we can get the Right Balance This Time.
The Department of Finance is seeking input on a “focused set of potential changes” to the Special Import Measures Act (SIMA)[1]. The potential changes would be made in three areas – calculation of normal values, enforcement and evidentiary standards – and would be considered from the perspective of: whether the system protects domestic producers from unfairly traded imports; whether the resulting changes would be transparent and could be effectively administered; whether the resulting changes would be consistent with international trade obligations; and whether the resulting changes would balance stakeholder interests including interests of producers, importers, users and consumers. Despite this broad description, the review’s purpose appears to be to determine whether the SIMA continues to protect domestic producers from unfairly-traded imports and what changes should be made to improve this protection. This approach is unlikely to address the broader question of whether trade remedies benefit the Canadian economy as a whole, including domestic producers, importers, end-users and consumers. To get to this issue, we should consider a slightly different set of questions. 1. Does the SIMA currently protect domestic producers from unfairly-traded imports? By any measure, the SIMA process continues to protect domestic producers from dumped and subsidized imports. A quick review of the CITT website shows that since Preliminary Injury Inquiries were introduced, the CITT has found in favour of domestic producers in almost every case, that between 2005 and 2015 the CITT made injury findings in approximately 77% of cases and that between 1990 and 2015 the CITT extended injury findings in approximately 85% of Expiry Reviews. In addition, product exclusions requested by importers and end-users are infrequently granted by the CITT and only in extraordinary cases when the requesting party can establish that product exclusion would not cause injury to domestic producers. The result is that domestic producers are far more likely to be protected by injury findings and that importers and end-users find it very difficult to obtain product exclusions. Consequently, the current trade remedy system continues to effectively protect domestic producers from unfairly-traded imports. 2. Are the proposals for scope and anti-circumvention processes necessary to ensure that injury findings are enforced? It is not...
Read MoreDid a New Brunswick Court Just End Barriers to Interprovincial Trade in Liquor? Don’t Count on it.
On April 29, 2016, the New Brunswick Provincial Court struck down a fine issued to Gerard Comeau for possessing 15 cases of beer and 3 bottles of liquor that he had purchased in Quebec. The Court found that Section 134(b) of the New Brunswick Liquor Control Act, which made it illegal to possess liquor not purchased from the New Brunswick Liquor Commission, was unconstitutional because it did not allow goods of other provinces to be admitted free into New Brunswick contrary to Section 121 of the Constitution Act 1867. Section 121 requires that goods produced, grown or manufactured in any province be admitted free into every other province. Because the Court found that this New Brunswick measure regulating possession of alcoholic beverages within the province was an unconstitutional non-tariff barrier, the decision arguably supports the position that all similar Provincial measures are also unconstitutional. If so, this decision could be a step on the road to eliminating barriers to interprovincial trade in alcoholic beverages and a range of other products. However, it is far from certain that this decision will result in any change to alcoholic beverage regulations. First, the New Brunswick decision’s expansive reading of Section 121 contradicts the Supreme Court of Canada’s position that Section 121 only protects the movement of Canadian goods against customs duties and charges applied to goods at the provincial border. The Supreme Court has never held that Section 121 prohibits regulatory measures applied within a province. This interpretation has been applied for the past 95 years, but was not followed by the New Brunswick Court because it heard evidence that the Fathers of Confederation intended that Section 121 be applied broadly to ensure free trade among the provinces. Since it concluded that this evidence was never presented to the Supreme Court, the New Brunswick Court decided not to apply the Supreme Court’s interpretation and suggested that it be reconsidered. For the New Brunswick Court’s decision to be applied more broadly in Canada, other Courts will have to agree that the Supreme Court did not properly consider the issue and that the evidence presented to the New Brunswick Court requires an expansive reading...
Read MoreCBSA looks into furniture imports for tariff classification accuracy
The Canada Border Services Agency (CBSA) is still very actively examining imports of furniture for tariff classification accuracy. Why? Because there is possibly 8% to 10% in additional tariff revenue to collect. Those familiar with the Canadian Tariff Schedule structure will know that a distinction is made between furniture used in a domestic dwelling as opposed to furniture used in public buildings and outdoor spaces. If your business imported furniture in Canada in the past, now would be a good time to examine those customs filings very closely. Many forget that said filings stay alive for a period of 4 years, and so yes, those furniture shipments from 2012 are still at risk of a retroactive customs duty assessment. Because tariff classification accuracy of furniture requires more than just knowledge of the furniture business, and because it has been the substance of many court decisions, those concerned with the potential risk raised in this post would be well advised to get some external advice from counsel familiar with this...
Read More“Coherence or Chaos” Part I
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...
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