Before leaving office on October 1, AMLO’s super-majority is planning to implement 18 constitutional reforms that would weaken Mexico’s economic regulatory landscape, degrade its investment climate, dissolve checks and balances, and undermine the country’s ability to fulfill international commitments, including the US-Mexico-Canada Agreement (USMCA).  If approved, these legal shifts could seriously challenge North America’s long-term competitiveness and nearshoring potential, jeopardize billions in US and Canadian investments in Mexico, and complicate the 2026 review of USMCA.

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a. Judicial Reform

Mexico’s Supreme Court has found several of AMLO’s actions unconstitutional, including efforts to undermine private investment in the energy sector and place civilian public security forces under military control. If approved, the judicial reform would gradually remove all Supreme Court justices and federal judges, replacing them through popular elections without clear professional qualifications. As presented, this reform would severely weaken the judiciary’s role as an independent check on presidential power, leaving judicial decisions vulnerable to political influence and donor interests.

Rather than addressing long-standing issues of corruption and impunity within Mexico’s judiciary, this overhaul could lead to significant delays, pauses, or even retrials in cases involving human rights and private investments in sectors not covered by USMCA. Under USMCA, US and Canadian investors in Mexico can only pursue claims in the oil & gas, power generation, infrastructure, and telecommunications sectors. Disputes in other sectors require investors to go through Mexico’s domestic court system before seeking arbitration under USMCA.     

b. Elimination of Oversight and Regulatory Agencies

Other proposed reform would dismantle Mexico’s antitrust agency, along with the Federal Economic Competition Commission (COFECE), the Federal Telecommunications Institute (IFT), and the Energy Regulatory Commission (CRE), transferring their functions to Executive Branch agencies like the Ministry of Economy and the Ministry of Energy. These changes would remove critical checks on presidential power and directly conflict with Mexico’s commitments under USMCA  regarding market access, competition policy, and state-owned Enterprises.  By eroding legal certainty, the reform would severely hamper Mexico’s nearshoring potential, driving investment elsewhere and weakening North America’s position in the global supply chain.

c. State Energy Industries

One proposal would restrict Mexico’s state-owned utility, the Federal Electricity Commission (CFE), from partnering with private companies for electrical transmission and distribution, while prioritizing CFE market dominance over private firms. By imposing additional restrictions on private investment, this reform conflicts with USMCA’s ratchet clause, which prevents countries from rolling back market liberalization measures once they’ve been implemented. This policy would undermine US and Canadian economic interests and any energy they produce in favor of Mexico’s CFE and its state-owned oil and gas company, PEMEX. Canadian and US firms have invested a combined $34 billion in Mexico’s energy sector, including significant investments in renewable energy projects. 

d. Ban on GM Corn and Restrictions on Water Concessions

This proposed reform aims to ban genetically modified (GM) corn for both harvest and human consumption. By introducing trade restrictions without scientific evidence, this reform conflicts with USMCA market access and sanitary and phytosanitary provisions. Mexico, the US’s second-largest agricultural export market, imports over $5 billion worth of corn annually. Such a ban could lead to the loss of thousands of US agricultural jobs and threaten food security in Mexico, as domestic production would likely be unable to meet the country’s corn demand.

Another proposed amendment seeks to limit water concessions to firms in regions with scarce water resources, reserving allocations to public entities exclusively for personal and domestic use. By favoring Mexican entities over US and Canadian firms, this proposal would appear to violate USMCA’s National Treatment and Most-Favored Nation provisions.

e. Ban of Fracking and Open-pit Mining Concessions

Constitutional reform proposals to end concessions for open-pit mining and permanently ban oil extraction through fracking conflicts with Mexico’s commitment under USMCA to maintain agreed-upon market openness in these sectors, potentially affecting the operations and ownership of US and Canadian firms. This could lead to millions of dollars in losses, arbitration claims, or trade sanctions from Canada or the United States. Canadian companies, representing 70% of all foreign mining firms in Mexico, are the largest foreign investors in the country’s mining sector. 

Risks

If approved, these changes would appear to severely limit Mexico’s growth prospects and its ability to create well-paying jobs in the medium and long-term. The resulting legal issues and business uncertainty could trigger billions of dollars in tariffs if US and Canadian authorities or firms request formal dispute settlement under USMCA, as well as significant economic losses for consumers and workers across North America. In other words, Mexico risks undermining the very conditions that foster job creation and investment growth. Additionally, the potential for trade disputes and economic disruptions could deter new investors and negatively impact nearshoring opportunities.

Furthermore, these reforms pose a serious risk to the USMCA’s upcoming review, potentially stalling negotiations with Canadian and US authorities and triggering demands for changes from stakeholders in 2026.This heightened scrutiny could complicate negotiations and result in unsuccessful outcomes in subsequent years. Ultimately, the reforms could jeopardize the agreement’s renewal and increase the risk of its expiration in 2036, undermining the long-term stability and benefits of the USMCA.

Conclusion

AMLO’s reforms represent a turning point that undermines Mexico’s trade and investment commitments under USMCA, making Mexico a less reliable partner for the US and Canada. The proposed legal and institutional overhaul threatens to undermine Mexico’s investment climate for decades, disrupt regional economic integration, and weaken supply chain resiliency at a crucial moment of global economic realignment.

To read the article as published by the Wilson Center, click here.

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The escape clause / efficient breach theory of safeguards holds that a WTO Member can temporarily retract a trade concession, hiking tariffs and thereby providing an opportunity for orderly adjustment by its domestic producers, while preserving the balance of concessions by compensating affected trading partners during the time the tariff umbrella is up.  There is a general 3-year grace period for compensation, but that has long since lapsed in the case of the solar safeguard measure which has been in place for nearly 7 years without compensation being provided to anyone.  The silence on this point, both from governments and from trade geeks, has been rather odd.

While all WTO members have been entitled to compensation for their trade losses resulting from the solar safeguard measure since Day 1 of Year 4, Mexico – by virtue of the NAFTA and the USMCA – has been entitled to compensation (or else exclusion from the measure) since Day 1 of Year 1.

According to the news reports, Mexico is currently seeking not compensation but exclusion from the measure … consistent with instructions President Biden included in his February 2022 proclamation extending the measure for four additional years.  The issue has taken on increased importance with the measure’s recently-restored coverage of bifacial solar modules, which dominate Mexico’s solar exports to the United States.  Suddenly, the measure has, in respect of intra-North American trade, a more painful bite.

If an exclusion is not quickly implemented, the compensation which Mexico could demand (and lawfully help itself to) would not be trivial.  During the four-year reference period prior to the safeguard measure, 2013-2017, Mexico accounted for roughly 10% of U.S. solar panel imports.  During the safeguard measure’s time in force, Mexico’s share of U.S. imports has fallen dramatically.  Switching to absolute numbers and looking at the last calendar year (2023), if Mexico had been supplying 10% of U.S. imports (as during the reference period), the value of its solar exports would have been about $1.4 billion.  Actual Mexico-to-U.S. shipments in 2023 were roughly $400 million.  So the current run rate, in regard to Mexico’s trade losses as traditionally measured, is about $1 billion/year.  Suspension of concessions on south-bound trade flows of that magnitude could be expected to cause a bit of a stir.

There are many contested items in the Mexico-U.S. bilateral trade agenda at the moment.  This solar issue sticks out as one where Mexico has undisputable legal (treaty-based) rights, which its neighbor to the north is not respecting.  A simple exclusion would be good for Mexico but also – given the $1 billion/year price tag if Mexico should decide to stop sleeping on its rights – would avoid an awkward problem for Uncle Sam.

The broader question of compensation’s disappearance from the public discussion on safeguards merits attention in its own right.  Is this the new normal?  And if so, what aspect of the safeguard system might disappear next … adjustment plans?  I had always thought Bodog Poker — and have been telling law students for the last ~22 years — that these elements of the safeguard system were fundamental ones, even if it is the safeguard tariffs themselves that garner most public attention.

To read the full commentary as it was published on the International Economic Law and Policy Blog, managed by WorldTradeLaw.net, click here.

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The global supply chain is an ever-changing landscape, always looking to implement the most efficient and effective means to ensure products are sourced, manufactured and delivered as quickly and safely as possible. Many companies have relied on specific regions for sourcing and manufacturing over the decades, but a new survey indicates that the interest is at unprecedented levels. According to a QIMA survey, the appeal of shortened supply chains has reached a record high, with more than 64% of businesses globally expressing interest in nearshoring and reshoring strategies for 2024.

In 2023, a significant shift was already underway, with more than half of the surveyed participants reporting increased purchases from domestic and regional suppliers. This trend, driven by a desire to reduce disruptions, ensure greater supply chain resilience and underscore ESG initiatives, is set to gain even more momentum in the coming year.

While the United States has long relied on Chinese imports driven primarily by cost considerations, access to a large manufacturing base, the wide range of products available to manufacture/develop in the region, geopolitical tensions and trade uncertainties have prompted a reevaluation of this dependency, leading to a significant shift in supply chain dynamics. Even more so, the COVID-19 pandemic exposed the massive dependency the West had on China and other South Eastern Asia countries.

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Concerns over trade disputes, tariffs and geopolitical risks continue to intensify, especially as the U.S. enters another high-profile election year. U.S.-based businesses continue to seek alternative sourcing destinations to diversify their supply chains and mitigate potential disruptions.

While some may view nearshoring and reshoring as protectionist measures, they present real opportunities to foster additional global economic growth, job creation and sustainability initiatives. Mexico has emerged as a preferred destination for these nearshoring and reshoring efforts, especially for U.S. companies seeking to optimize their supply chains.

In fact, the U.S. Commerce Department released data that reinforced Mexico as the top source for goods to the U.S., ahead of China for the first time in two decades.

The Chinese manufacturing industry has also recognized the importance of reshoring and the continued growth of Mexico’s manufacturing sector for U.S. companies. Mexico offers several advantages, including proximity to the U.S. market, favorable trade agreements like the USMCA (United States-Mexico-Canada Agreement), and a skilled labor force at competitive costs.

Leveraging Mexico as an intermediary for Chinese manufacturing provides a buffer against escalating disputes and tariffs, ensuring continuity in supply chains and preserving market access for both exporters and importers. This strategic alignment fosters stability and facilitates smoother trade relations amidst geopolitical uncertainties.

From a supply chain perspective, this strategic shift holds several implications. For one, it reduces reliance on a single source of supply, enhancing resilience and risk management capabilities. By diversifying manufacturing locations, companies in all countries can better navigate geopolitical uncertainties, trade disruptions and unexpected events, such as natural disasters or political instability.

Additionally, the proximity of Mexico to the U.S. market offers logistical advantages, including shorter lead times, reduced transportation costs and increased agility in responding to changing consumer demand. This geographical strategy aligns with the growing trend toward nearshoring and regionalization of supply chains, driven by the need for speed, flexibility and responsiveness in today’s competitive business environment.

The strategic shift toward utilizing Mexico as a manufacturing hub for Chinese goods destined for the U.S. underscores the evolving dynamics of global supply chains. By diversifying sourcing destinations, businesses can enhance supply chain resilience and efficacy, navigate geopolitical unease and maintain seamless trade relationships amidst an increasingly complex and uncertain landscape.

Ivan Hernandez is managing director, Mexico, for QIMA, which provides quality control solutions for supply chains.

To read the full article as it was published by Supply Chain Management Review, click here.

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How significant is investment from Chinese electric vehicle makers in Mexico? How likely is Mexico to ramp-up incentives for Chinese automakers to invest in Mexico? How can Mexico continue to attract foreign investment from China while maintaining good relations with the United States?

Larry B. Pascal and Carlos Alva, members of the International Practice Group at Haynes and Boone:

“In recent years, the importation of Chinese vehicles to Mexico has increased considerably, primarily due to their competitive prices. For example, according to the Mexican Association of Automotive Distributors, in 2023, up to approximately 20 percent of the total new vehicles sold in Mexico were vehicles fabricated and imported from China. However, no Chinese automaker to date has opened a plant in Mexico, although Chinese automakers are reportedly scouting for manufacturing sites in Mexico. Although the increase in the popularity of Chinese vehicles in Mexico is evident, it is unclear if Mexico would grant incentives to Chinese manufacturers to establish automobile production plants in Mexico in the face of opposition from the United States, its largest trading partner. Putting aside incentives, in theory, a Chinese automaker could open a plant in Mexico without the intent to qualify for national origin treatment under the USMCA (and by implication without an immediate intent to export to the United States) and instead focus on the domestic Mexican market or those other foreign markets for which Mexico has a free trade agreement. The USMCA has stricter rules of origin than earlier free trade agreements that Mexico has with other trading partners. Mexico could also later negotiate with the United States and Canada a side agreement on the automotive sector addressing the treatment of electric vehicles, which could threaten manufacturing jobs in North America but could advance the public policy goals of reducing carbon emissions and furthering the energy transition.”

José Carlos Espinosa, head of sales at LGS International:

“Investment from Chinese electric vehicle makers in Mexico has been growing in recent years, driven by factors such as Mexico’s strategic location for export to North American markets, its skilled labor force and its existing automotive manufacturing infrastructure. However, the exact significance of this investment can vary depending on specific companies and projects. The pressure from the United States on Mexico to limit incentives to Chinese automakers reflects broader concerns about trade imbalances, intellectual property rights and competition in the automotive sector. Mexico, being a key trading partner of the United States and a participant in the USMCA, may be inclined to consider U.S. interests in its economic policies. Whether Mexico will ramp up incentives for Chinese automakers depends on a variety of factors, including diplomatic relations between Mexico, China and the United States, as well as Mexico’s own economic priorities and trade policies. If Mexico perceives that maintaining good relations with the United States is paramount, it may adjust its incentives and policies accordingly. To continue attracting foreign investment from China while maintaining good relations with the United States, Mexico could pursue several strategies: diplomatic engagement, open communication, diversification of investments, transparency and fair trade practices, emphasis on shared goals, and investment incentives based on criteria. Overall, navigating the complex dynamics between China, Mexico and the United States requires a nuanced approach that balances economic interests, diplomatic relations and strategic considerations. By adopting a proactive and pragmatic approach, Mexico can continue to attract foreign investment while maintaining good relations with its key trading partners.”

Margaret Myers, director of the Asia & Latin America Program at the Inter-American Dialogue:

“The nearshoring trend has been largely China-led, as it turns out, as Chinese companies seek access to Mexico’s well-established industrial base in pursuit of supply chain diversification and access to the North American market. But investment in Mexico has been on the rise since around 2015, consistent with an intensive Chinese focus on investment and trade in sectors that China’s leadership has deemed fundamental to China’s own economic upgrading. Electric vehicles are an important part of this story, certainly, but so are many other forms of high-end manufacturing and related trade and investment. In general, Chinese automakers and other companies are looking for opportunities wherever they can find them, aiming to offload excess capacity and, simultaneously, establish dominant market positions. Chinese automakers and parts manufacturers in Mexico are interested in leveraging the USMCA, in many cases, but are also interested in Mexico’s market. Indeed, BYD aims to produce primarily for the Mexican market, according to its spokespeople. And it is well-positioned to do so, having benefited over the years from Chinese industrial policy, including Beijing’s new emphasis on ‘high quality productive forces,’ with a focus on EVs, renewable energy and other frontier industry competitiveness. For the United States, the problem is bigger than Chinese efforts to take advantage of USMCA provisions. Whether Mexico provides incentives for Chinese companies or not, Chinese companies are well-positioned to carve out increasingly dominant positions in all sorts of high-end industries. Mexico is Bodog Poker an important destination for many, as is much of the rest of the Latin American region.” 

Lucinda Vargas, associate director of the Center for Border Economic Development at New Mexico State University:

“Mexico is currently under a tidal wave of Chinese direct investment. The Chinese presence in the country spans infrastructure projects, mega-size industrial parks and manufacturing plants in various industries, principally automotive. It has no presence yet in electric vehicle production. China’s BYD, which has surpassed Tesla as the world’s top-selling electric carmaker, has set its sights on Mexico with a stated purpose of servicing the Mexican market. Could its Mexican production platform eventually contemplate generating an electric vehicle for the U.S. market under the USMCA? Yes, but the rules may change. USMCA rules stipulate a 75 percent North American content on automotive products for duty-free U.S. entry. In the USMCA’s review in 2026, stricter rules could be entertained to stipulate that of the remaining 25 percent of content in an automotive product, zero percent can be associated with a ‘foreign entity of concern,’ that is, China as labeled by the U.S. government. Even if Mexican federal authorities have become cautious about stimulating Chinese investment to assuage U.S. concerns, individual states in Mexico seem eager to be the beneficiaries of such investment with incentives in hand. Yet, Mexico does not need to court China with incentives. Its key draw for Chinese investors, indeed for investors from any country, is its next-door proximity to the United States, combined with its USMCA partner status, two anchors that enable tapping one of the world’s largest markets. No one can strip the first, but the United States may force Mexico’s hand on the second: choose between it and China to continue in the USMCA partnership.”

Diana Avalos Morales, executive director of the Mexican Association for Electric Vehicle Promotion:

“Investments from Chinese electric vehicle makers in Mexico have been significant, with more than 15 companies present in the market. Some of them have announced their intention of establishing production facilities in the country. However, Mexico is likely to be careful of ramping up incentives for Chinese automakers, balancing its economic interests with its relationship with the United States. To continue attracting investment from China while maintaining a fair trade relationship within the USMCA, Mexico should pursue a transparent regulatory framework to ensure unfair practices are avoided. This approach could mitigate concerns about tariff evasions while fostering economic partnerships that are beneficial for all countries involved. Mexico is keen on further developing its national supply chain to transform the country from a very vehicle assembly-oriented manpower to a country that supplies complete products to the market. The country should invest enough in science and technology to deliver the goal of having automotive national brands competing in the international markets. Regarding incentives facilitated by the Mexican government for EV imports, we understand these benefit all brands from all countries, so we can’t identify any that only target Chinese companies.”

To read the full Featured Q&A as it was published in the Energy Advisor, a weekly publication of The Dialogue, click here.

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So Trump pressured Mexico and Canada to replace their mutual pact with one more to his liking. After a couple of years of negotiations, he got what he wanted. Out was the North American Free Trade Agreement. In was the U.S.-Mexico-Canada Agreement.

The USMCA, which Trump hailed as “the fairest, most balanced and beneficial trade agreement we have ever signed,” will reach its third anniversary Saturday.

The trade pact hasn’t proved to be the economic bonanza Trump boasted it would be. It couldn’t have been, given that trade makes up less than a third of America’s $26 trillion economy.

Yet while the the deal’s overall impact has been slight, it has nevertheless been helping workers on the ground. It’s just that the beneficiaries have so far been mostly in Mexico. Novel provisions of the pact have enhanced the ability of long-exploited Mexican workers to form unions and secure better wages and working conditions.

Trade officials and experts predict, though, that the benefits will also flow, in time, to U.S. workers, who no longer must compete with severely underpaid Mexican laborers without real bargaining power.

“U.S. workers win when workers in other countries have the same rights,’’ said Cathy Feingold, director of the AFL-CIO’s international department.

Thea Lee, a deputy undersecretary at the U.S. Labor Department, suggested that the pact and Mexico’s reforms haven’t been around long enough to yield measurable help to American workers yet. “We’re going to see the positive results first for Mexican workers because Mexico is undergoing a massive, comprehensive, ambitious labor market reform,” she said.

In some ways, the USMCA as a whole has fallen short of Trump’s promises.

Take the trade deficit with Mexico. Despite Trump’s insistence that the USMCA would pull more manufacturing back to the United States, the gap between what America sells and what it buys from Mexico keeps widening: It has surged from the $64 billion gap in 2016 that so irritated Trump to a record $139 billion last year.

The former president also predicted that exports of U.S. auto parts to Mexico would rise by $23 billion. They have increased since 2020 — but only by about $8 billion.

“I don’t expect that we’re ever going to be able to say that (the USMCA) accomplished very much,’’ said Alan Dierdorff, a professor emeritus of economics and public policy at the University of Michigan. “I don’t think it hurt much. But I don’t think it helped much.’’

Trump said the pact would create 76,000 auto industry jobs. Since January 2020, vehicle and parts manufacturers have actually added nearly 90,000 jobs. And North American commerce has flourished. America’s trade with Canada and Mexico — exports plus imports — reached a record $1.78 trillion last year. That was up 27% from 2019 and was above a 20% gain in trade with China over the same period.

But it’s hard to tease out which economic gains can be credited to the USMCA and which happened for a variety of unrelated reasons. That is especially true in light of the unusual economic tumult of the past three years: A devastating pandemic, followed by severe labor shortages and supply chain backlogs and a resurgence of rampant inflation.

Also complicating any effort to calculate the USMCA’s impact is President Joe Biden’s own aggressive efforts to rejuvenate American industry with trillions of dollars in infrastructure spending and subsidies.

For all of Trump’s bombast, the USMCA actually left in place much of the pact it replaced. NAFTA erased most of the import taxes that the United States, Mexico and Canada imposed on each other’s goods. It created a duty-free regional bloc meant to compete with the European Union and China. That structure remains mostly in place.

“It’s still pretty much the same as NAFTA,” Dierdorff said.

Still, some substantive changes have occurred. When NAFTA took effect in 1994, for instance, the internet, e-commerce and smartphones weren’t part of everyday business. The new pact updated North American trade rules for the digital age.

The USMCA, for instance, bars the United States, Mexico and Canada from hitting each other with import taxes on music, software, games and other products sold electronically; allows the cross-border use of electronic signatures and authentication; and protects companies from having to disclose in-house source codes and algorithms.

Given how it modernized North American trade, the “USMCA is a marked improvement,’’ said Neil Herrington, the U.S. Chamber of Commerce’s senior vice president for the Americas.

Perhaps the most consequential changes the pact wrought were designed to reverse one of NAFTA’s unhappy byproducts for Americans: The old deal incentivized companies to close factories in the United States, ship production to lower-wage Mexico, then export goods back into the United States — duty free.

The USMCA sought to make it harder for autos and auto parts to enjoy tariff-free treatment. To qualify, 75% of a car and its parts had to come from North America, up from 62.5% under NAFTA. That meant more content had to come from higher-wage North American workers, not imported cheaply from China or elsewhere. And at least 40% of vehicles would have to originate in places where workers earn at least $16 an hour — that is, the United States and Canada, not Mexico.

But those so-called automotive rules of origin stumbled out of the gate. Enforcement was delayed as customs officials faced supply chain backlogs at the height of the COVID crisis.

“Border officials were worried about clearing cargo in ports and getting rid of congestion,’’ said Daniel Ujczo, senior counsel at the law firm Thompson Hine in Columbus, Ohio. “They didn’t have a ton of time to deal with USMCA.’’’

Even after the auto rules took effect, the United States was slapped down for the way it tried to enforce them. A USMCA trade court, in a case brought by Mexico and Canada, found that Washington was applying the rules more strictly than was allowed.

The United States has achieved more success in using the deal to pressure Mexican employers to comply with their country’s labor reforms. Workers there can now vote freely and fairly on joining unions, approving contracts and choosing union leaders. In the past, pro-company unions in Mexico signed contracts behind workers’ backs. Strikes were rare, wages stayed low and union leaders got rich.

The USMCA armed the United States, Mexican workers and union activists with a new weapon: The “Rapid Response Labor Mechanism.” This allows the U.S. government to crack down on individual factories in Mexico — by, for example, suspending tariff exemptions for their products – if they violate Mexican labor law.

“We took a lot of the key parts of (Mexico’s) labor reform, and we baked them directly into the trade agreement,’’ said Josh Kagan, assistant U.S. trade representative for labor affairs. “We’re holding Mexico to actually implement this labor reform they’ve undertaken.’’

So far, the United States has used the mechanism 11 times to demand corrections of labor law violations. Mexico has so far cooperated, by sending law enforcement and labor inspectors to guard ballot boxes in new votes that independent unions have mostly won.

Under pressure from a U.S. complaint, Mexican officials and observers bodog online casino oversaw a union vote in which the old union was thrown out. The new union won the right to negotiate — and an 8.5% wage increase, plus bonuses.

“If workers had tried a similar organizing effort before, “they would have fired us immediately,” said Manuel Carpio, who works at a General Motors plant in Silao, in the state of Guanajuato.

Still, it isn’t a perfect process, said Julia Quiñonez, who organized an independent union at a U.S.-owned auto parts plant, VU Manufacturing, in the city of Piedras Negras, Coahuila, across from Eagle Pass, Texas. The old union joined with the company to try to bar the new union. The two sides are still struggling.

“We have heard about other cases where the companies have respected the process and agreed to corrective plans,” Quiñonez said. “But the VU case has been plagued by a lot of deceit, corruption and frustration.’’

One problem, Quiñonez said, is that cases tend to be kicked back to the same Mexican courts and authorities that should have enforced the law in the first place.

“The obstacles we are facing are the normal resistance you might expect in a system that has been operating for at least 80 years,” she said.

The worker provisions in the USMCA were strengthened in negotiations between Trump’s trade team and congressional Democrats. Working on those talks was Katherine Tai, then the chief trade counsel on the House Ways and Means Committee and now Biden’s top trade negotiator.

The Biden administration says it views the worker provisions in the USMCA as a model for future trade deals that seek to benefit workers, not just companies that want to expand their exports.

“I don’t think anybody knew how the Rapid Response Mechanism process would play out,’’ the Labor Department’s Lee said. “But people have found that it’s working as anticipated and as hoped.’’

To read the full article, please click here.

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China’s application was presented to the CPTPP Commission the same day that the United States, the United Kingdom and Australia announced AUKUS — a security alliance that unabashedly seeks to bring about a new balance of power in the Pacific.

This was also the rationale for the design of the Trans-Pacific Partnership (TPP), an agreement predicated on former US president Barack Obama’s statement that ‘the United States is a Pacific power and we are here to stay’. In both cases, the underlying purpose was to counter the strides that China was making to gain military and strategic supremacy in the region.

Although it may take years to materialise, accession to the CPTPP would permit Beijing to be part of a regional arrangement that was originally intended to counter its power in the Pacific. It would also open the possibility for China to fill the power vacuum left by the withdrawal of the United States from the TPP in 2017.

Beijing could profit from the closer economic integration the CTPPP is likely to generate among its member countries which, in the absence of Washington, would probably slide towards China’s economic and political sphere. CPTTP membership would simultaneously enable Beijing to deepen its economic and political ties with the pact’s Latin American members and with Latin America at large.

Those ties were significantly strengthened with the creation of the China–CELAC Forum in July 2014. The Community of Latin American and Caribbean States (CELAC) is an intergovernmental mechanism which was established in 2010 for dialogue and cooperation among the 33 nations of Latin America and the Caribbean.

Membership of the CPTPP would widen the possibilities for China to tap into this market of more than 652 million people and a region rich in natural resources with a myriad of greenfield investment opportunities. It would also provide a huge potential to expand trade links and build supply chains led by Chinese companies.

China’s membership would be beneficial for Latin America as well. China is South America’s top export market and the second for Latin America and the Caribbean as a whole. Among China’s top 100 trading partners, 13 are Latin American and Caribbean countries. Chinese exports to these countries topped US$142 billion in 2020 — 5.5 per cent of China’s total exports.

With the exception of Asia’s main trading destinations, China’s exports to Mexico are larger than those to any other East Asian economy, including Australia. Three of China’s top 25 import-originating countries are Latin American — Brazil, Chile and Mexico.

It can then be expected that Latin American members will welcome China’s incorporation into the CPTPP — in principle, the same could occur if Taiwan is accepted, although in this case Latin American governments might be more cautious so as to not compromise their support for China. Besides the likely economic benefits, the presence of China would counter the weight and influence the US would command should the Biden administration decided to join in and thus bring about a more balanced power play within the pact.

The Latin American country that would give China the warmest welcome is Mexico, especially given the openly anti-US stance Mexican president Andres Manuel Lopez Obrador has adopted since Biden took office, Mexico’s membership in the US–Mexico–Canada Agreement (USMCA) notwithstanding. In fact, visible signs of mutual empathy have been sent from both sides. At the 2021 CELAC summit meeting held in Mexico City on September 18, two world leaders were invited as keynote speakers — Chinese President Xi Jinping (the first to speak) and UN Secretary General Antonio Guterres. Two days before, Xi had sent a warm congratulatory message to Lopez Obrador to mark the 200th anniversary of Mexico’s independence.

On those bases, Xi could cultivate a closer relationship with Lopez Obrador by building on his anti-US stance and thus gain a valuable ally. Beijing could find friendly ground in a country that shares a 3145-km border with China’s rival in the new cold war that is unfolding nowadays.

If Biden decides to join the CPTPP, Washington would surely do what it could to make Beijing’s accession difficult. One way of doing this would be to press Canada and Mexico to force China to satisfy more and harder-to-meet requirements. Another would be to invoke the USMCA’s Article 32.10.5, the so called ‘poison pill’ clause, and threaten to walk away from the agreement.

Mexico and Canada signed the CPTPP in March 2018 and the USMCA eight months later. If China were accepted to the CPTPP, neither would be signing a new agreement with a ‘non-market’ economy but simply abiding China’s admission into a multi-country trade agreement of which they happen to be members already.

If the ‘poison pill’ were invoked, then Canada or Mexico would have to agree on exiting the USMCA and promptly sign a bilateral pact with the United States. This seems highly unlikely given the strong trade links among these three countries and the deeply entrenched continental supply chains they share.

Juan J Palacios is Professor at the Centre for Strategic Development Studies, University of Guadalajara, and a member of the PAFTAD International Steering Committee.

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In one of his earliest executive orders (EO), President Joe Biden directed the secretaries of Health and Human Services, Transportation and Homeland Security and the CDC director to “immediately commence diplomatic outreach to the governments of Canada and Mexico regarding public health protocols for land ports of entry” and to submit to him a plan to implement appropriate public health measures at those ports of entry. This plan should “implement CDC guidelines, consistent with applicable law, and take into account the operational considerations relevant to the different populations who enter the United States by land.” These operational considerations include, among others, the recent surge of border crossings, the construction of the border wall, and the testing and vaccination campaigns in the border communities.

The Migrant Protection Protocols (MPP) program—also known as “Remain in Mexico”—was put in place in the early days of the pandemic. Under the program, Central American asylum seekers were required to wait in Mexico while their asylum claims were considered by U.S. immigration courts. This created crowding of asylum seekers in border communities of Mexico, often in temporary housing, furthering the spread of COVID. The Biden administration terminated the MPP program. Small groups are allowed to cross the border every day, and border towns have taken on the responsibility of testing for COVID and contact tracing any positive cases to make sure that the migrants complete their self-quarantine. The situation is exacerbated by a significant surge of unaccompanied minors from Central America and an increase in border apprehensions. The Biden administration has reversed the previous administration’s decision to prevent all border crossings and is allowing unaccompanied minors to enter the U.S. With Customs and Border Protection (CBP) facilities and Health and Human Services shelters beyond capacity, controlling the entry of the large number of migrants at the border will likely be a prerequisite to border reopening, both for political and health-related reasons.

The Biden EO returned to the Department of Defense funding that former President Donald Trump redirected for the border wall. However, the EO that “paused” construction—as well as all real estate acquisition activities—may run counter to congressional appropriation of border wall funding, approximately $2.75 billion. There is ongoing debate if the president has the ability to redirect or “pause” the funds through executive action. Republican members of Congress have expressed concerns with the Biden administration and are pressuring it to maintain funding as appropriated by Congress. Considering the surge of migrants and the need for border security, consultations with local border authorities on how to best utilize the funds allocated to DHS should be a central component of the current debate.

Some of the potential uses of the funds promoted by members of Congress representing border communities include: (1) strengthening the COVID testing and vaccination campaigns in the border regions; (2) improving and expanding border technology, such as rescue beacons and video surveillance cameras; (3) securing additional immigration judges and support staff to reduce the backlog of immigration cases at the southern border; and (4) securing additional CBP officers, Border Patrol agents and processing coordinators, and agriculture specialists to help streamline trade at the ports of entry as well as improve security along the border. It remains to be seen whether the Biden administration and Congress will reach a compromise on repurposing border wall funds, in particular with the challenges of including any potential in any larger immigration package.

The COVID public health emergency remains a significant challenge to overcome. Both the United States and Mexico have had a similarly high rate of infections and extensive community spread. However, different approaches taken by the United States and Mexico toward resolving the pandemic may complicate the process of reopening the border. Mexico has not prioritized COVID testing and is significantly behind the United States in the percentage of the population that has been vaccinated. The border communities on both sides will need to emphasize continued aggressive testing as any new outbreak in the border communities on the U.S. side—once the virus has been declared controlled—could create additional complications. Some have suggested that U.S. authorities could consider transferring surplus testing infrastructure to Mexico border regions, and the Biden administration has already transferred a significant number of AstraZeneca vaccine doses to Mexico.

Finally, there has been significant discussion of “vaccine passports” as a solution for reestablishing normal border operations. While a seemingly attractive solution, it would likely be very difficult to implement: vaccines are administered by various providers, and travelers are unlikely to be able to provide a secure and consistent proof of vaccination. CBP agents are already screening travelers for drugs, weapons and fraudulent documents and would not welcome the additional vaccination screening. Furthermore, without a change in U.S. immigration laws, CBP would likely not have authority to prevent non-vaccinated travelers from entering for temporary reasons. Civil liberties advocates and some members of Congress may also be concerned about digitally storing individual vaccination records and sharing them with government authorities and private entities. Separating these issues from the larger immigration debate will prove difficult. Reopening the border for legal crossings and trade and returning to pre-pandemic border crossing regulations will be a challenge. That said, the Biden administration should consider actions to balance ensuring that these symbiotic border communities can function while appropriately using already appropriated federal dollars to maintain a safe and secure border. 

Maka Y. Hutson is counsel in the international trade practice at Akin Gump Strauss Hauer & Feld’s Dallas office.

 Hans Christopher Rickhoff is a senior counsel in the public law and policy practice at the firm’s Washington, D.C., office.

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Covid-19 has depressed global trade greatly, but strategic and structural concerns about trade will outlive the virus. The Trump administration had a huge impact on trade, from waging a trade war with China to ratcheting up anti-free trade rhetoric and levying tariffs against China, Canada, Mexico, and the European Union.

Under President Joe Biden, U.S. trade policy will change greatly, although not immediately. President Biden has made abundantly clear that his first priority bodog online casino is the Covid-19 pandemic, and his $1.9 trillion stimulus plan will dominate economic policymaking for weeks. Even if President Biden does not materially address trade policy until after the pandemic subsides, his remarks and nominees for international economic positions suggest what changes to U.S. trade policy he will make during the rest of his term. Three key areas are analyzed below through the lens of his personnel and policy choices to date.

(1) Integration of Trade and Other Strategies

President Biden and his nominees have signaled their intention to integrate trade into general national security strategy and economic policy. In her introductory remarks upon her nomination as President Biden’s U.S. Trade Representative (USTR), Katherine Tai described trade as being “like any other tool in our domestic or foreign policy,” a means rather than “an end in itself.” The nomination of Wally Adeyemo, President Biden’s selection for U.S. Deputy Secretary of the Treasury, also signals an integration between economic and national security policy; Mr. Adeyemo held numerous economic policy positions in the Obama administration, including Deputy National Security Advisor for International Economics, a position on the National Security Council (NSC).

Biden’s intention to integrate trade into broader strategies would pivot from President Trump’s approach. President Trump often spoke about trade surpluses as ends themselves, and his administration closed the NSC’s Office of International Economics. This abolished the position Mr. Adeyemo held in President Obama’s NSC.

President Biden’s appointments this far also reveal that his trade and security strategy will include a focus on domestic economic concerns. Weeks after being announced as Biden’s choice for National Security Advisor, Jake Sullivan gave a far-ranging interview with NPR in which he articulated a view of foreign policy that incorporates and prioritizes the economic concerns of middle-class Americans, and President Biden expressed a similar focus throughout the 2020 campaign. This framework reflects Mr. Sullivan’s recent work: after serving as a senior advisor to Hillary Clinton’s 2016 presidential campaign, he led a project on foreign policy and the middle class at the Carnegie Endowment, which Press Secretary Jen Psaki recently tweeted about Ms. Tai will also surely bring domestic economic concerns to trade negotiations. As Chief Trade Counsel to the Chairman and Democratic Members of the House Ways and Means Committee, she advocated for labor and environmental protections in the recent U.S.-Mexico-Canada free trade agreement (USMCA).

(2) New Free Trade Agreements

Free trade agreements (FTA’s) are notoriously difficult to negotiate and ratify even in the best of times. The pandemic means new FTA’s will not come soon, and Biden has indicated as much. He has repeatedly said he will not focus on FTA’s in the near-term, instead directing his energy to address Covid-19 and domestic issues. However, Biden’s personnel choices suggest renewed opportunities for FTA’s later in his term.

Although the Trump administration negotiated and ratified the USMCA and phase one of a free trade agreement with China, they also abandoned FTA’s the Obama administration had initiated. In January 2017, Trump withdrew the U.S. from the Trans-Pacific Partnership (TPP), the FTA the Obama administration had negotiated with 11 Pacific nations, comprising 40% of global GDP. Trump also ended negotiations the Obama administration had begun with the European Union for an FTA, the Transatlantic Trade and Investment Partnership (TTIP).

Key members of Biden’s incoming team have a wealth of experience with FTA’s. During his time in the Obama Treasury Department, Mr. Adeyemo served as the chief negotiator for the TPP’s provisions on macroeconomic policy. Additionally, Ms. Tai worked on the USMCA for the Ways and Means Committee.

Recent FTA’s indicate where new agreements under the Biden administration may emerge. The U.S. and the U.K. have not agreed to an FTA, although they have had initial rounds of negotiations, so a new agreement may be on the horizon. The United Kingdom and the EU agreed to an FTA in December 2020. The U.S. and the EU also still do not have an agreement, though the EU seems open to new FTA’s. In December 2020, the EU released a blueprint for the transatlantic partnership, specifically mentioning Biden’s election as a key opportunity to strengthen relations. It remains to be seen how willing the EU is to start negotiating any deal until the U.S. lifts its steel and aluminum tariffs. However, President Biden’s recent recommitment to the Paris Climate Accord is likely a necessary, if incremental, first step because some EU member states require another country’s ascent to the accord as a precondition to an FTA. Additionally, in November 2020, the U.S. and the EU agreed to a mini-FTA for lobsters. The EU also agreed to an FTA with Canada in 2017.

President Biden may pivot back to Asia for an FTA. Since President Trump abandoned the TPP in 2017, the TPP’s other member countries have enacted an FTA without the United States. Labor provisions could be a concern for an American FTA with Asian countries, but Ms. Tai’s experience addressing labor concerns in FTA’s would equip her well to do so again. Mr. Adeyemo’s experience with the TPP for the Obama administration would also prove relevant to renewed FTA efforts in Asia. Finally, an FTA with Asian countries would offer a bulwark against China, so this could support the administration’s broader China strategy.

(3) Currency Manipulation?

A key area to pay attention to in any FTA’s the Biden administration negotiates is currency manipulation. In a trade context, currency manipulation allows a country to artificially lower the prices other countries pay for their products. This makes the country’s exports unfairly competitive. In this way, exchange rate policy is trade policy.

Currency manipulation has gained political salience in recent years. President Trump accused China of manipulating its currency many times. In 2019, the Trump Treasury Department officially labeled China a currency manipulator and did the same to Vietnam and Switzerland in December 2020.

Biden officials have said they prioritize addressing currency manipulation, but their specific plans have not been revealed. During the campaign, President Biden committed to “aggressive trade enforcement” actions against Chinese currency manipulation, and in her confirmation testimony before the Senate Finance Committee, Dr. Janet Yellen, President Biden’s Treasury Secretary, said she supports efforts against countries’ currency manipulation that seeks “an unfair trade advantage.” Ms. Tai served as the head of U.S.-China trade enforcement at USTR, and Mr. Adeyemo has also warned against currency manipulation many times.

However, Mr. Adeyemo’s experience with the TPP may prove most relevant to currency manipulation. Mr. Adeyemo served as deputy chief of staff to former Treasury Secretary Jack Lew, and upon President Biden’s announcement that he would nominate Mr. Adeyemo as Deputy Treasury Secretary, Mr. Lew praised Mr. Adeyemo’s work negotiating a deal for greater foreign exchange policy enforcement in the macroeconomic declaration that accompanied the TPP. The Wall Street Journal identified Mr. Adeyemo’s role similarly.

Three critical points emerge from this declaration. First, it affirms that each TPP country will avoid unfairly manipulating exchange rates, particularly for competitive purposes. Second, it requires each TPP country to promptly disclose data regarding their foreign-exchange reserves, IMF assessments of their exchange rate, and foreign-exchange intervention their government enacts. Finally, it establishes regular dialogue between officials of all TPP countries about macroeconomic and exchange rate policies. This framework could help shape the Biden administration’s approach to currency manipulation in trade agreements, and Mr. Adeyemo appears well-positioned to lead those efforts due to his experience working on these provisions.

Conclusion

In his prolific biographies of President Lyndon Johnson, historian Robert Caro puts forth a corollary to the aphorism “power corrupts.” Caro writes that power reveals, too. After three presidential campaigns across thirty years, Mr. Biden finally holds the office and wields its power. Ultimately, his power over trade will reveal his vision and priorities for the subject, but there will be few chances for major trade policy change until the pandemic abates. At present though, Biden’s personnel selections, namely Messrs. Adeyemo and Sullivan and Ms. Tai, signal that his administration will reframe U.S. trade strategy and address numerous structural trade issues. Personnel does not reveal as clearly as power does, but personnel does preview.

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My post of November 2 had raised a number of question presented by the proposed waiver:

” The proposal raises a series of questions that should be addressed to understand whether the waiver is appropriate. These questions include whether such a broad waiver request is appropriate or envisioned by Article IX:3 and 4 of the Marrakesh Agreement? Shouldn’t those requesting a waiver be required to demonstrate that the existing flexibilities within the TRIPS Agreement are inadequate to address concerns they may have? Can two Members request a waiver of obligations for all WTO Members? Can a waiver request be considered where the product scope is lacking clarity, and the uses/needs of the waiver are very broad and potentially open to differing views? To what extent is there a need bodog casino for those seeking a waiver to present a factual record of actions being taken by governments, companies and international organizations to provide access to medical goods during the pandemic including to developing and least developed countries? Shouldn’t those seeking a waiver identify the extent of existing licenses by major pharmaceutical companies with them or other WTO Members for the production of vaccines or therapeutics to address COVID-19?”

The supplemental information provided by South Africa identifies various patent pending matters and identifies what it describes as restrictive actions by some companies and some patent litigation by certain companies. As such the communication provides some information of possible relevance in examining the proposed waiver. However, there is little if any information provided on most questions that seem important to an informed discussion of the proposed waiver.

On November 27, Australia, Canada, Chile and Mexico filed a communication entitled “Questions on Intellectual-Property Challenges Experienced by Members in Relation to COVID-19”. IP/C/W/671. While the entire communication is embedded below, paragraphs 3 and 4 are copied below and present a framework for the consideration of the proposed waiver and seek factual answers to a series of questions which would help understand if there are in fact any significant barriers being confronted by WTO Members in addressing the pandemic.

“3. The co-sponsors of this communication remain of the view that these important, challenging, and complex issues merit further reflection and significant consideration, in order to identify any specific and concrete IP-related challenges faced by Members in addressing COVID-19. In addition, we take note that IP rights are one part of a broad discussion informing the availability and accessibility of treatments for COVID-19. Indeed, as the Doha Declaration on the TRIPS Agreement and Public Health emphasizes, the TRIPS Agreement itself is part of the wider national and international effort to address public health problems. With respect to COVID-19, this broader response includes significant investments through procurement mechanisms like the Access to COVID-19 Tools Accelerator and the COVAX Facility and Advance Market Commitment, as well as work within the WTO and elsewhere to safeguard and protect global supply chains.

“4. The co-sponsors of this communication are actively committed to a comprehensive, global
approach that leverages the entire multilateral trading system in place to supporting the research, development, manufacturing, and distribution of safe and effective COVID-19 diagnostics, equipment, therapeutics, and vaccines. The co-sponsors also reaffirm their support for the TRIPS Agreement, including the flexibilities it provides, and for the Doha Declaration on the TRIPS Agreement and Public Health. In this context, we invite consideration of how the existing legal framework under the TRIPS Agreement, including the flexibilities affirmed under the Doha Declaration on the TRIPS Agreement and Public Health, have operated thus far in the context of Members’ efforts to address the COVID-19 pandemic. We are also committed to fully understanding the nature and scope of any concrete IP barriers experienced by Members related to or arising from the TRIPS Agreement, and such that would constitute impediments to the fight against COVID-19. To that end, and with a view to facilitating a consensual, evidence-based approach, the co-sponsors of this communication therefore respectfully submit the following questions to Members for their consideration and response.”

The communication from Australia, Canada, Chile and Mexico then provides eight questions designed to develop a factual record of challenges faced on procurement of products, local production, compulsory licenses, as well as copyright-related challenges, industrial-designs-related challenges, and challenges from undisclosed information. The questions also include an inquiry as to “what specific legal amendments or actions would the proponents seek to enact for the prevention, containment, and treatment of COVID-19 that are not – or may not be – consistent with the TRIPS Agreement and its flexibilities?”

There is a meeting of the Council for Trade-Related Aspects of Intellectual Property Rights scheduled for December 11 at the WTO. It is assumed that the only item on the agenda will be the consideration of the proposed TRIPS waiver submitted by India and South Africa and joined by four other countries. A recommendation should be forwarded to the General Council by December 31. While the proposed waiver may receive support from many WTO Members, it will be opposed by many as well as not justified and undermining the existing WTO TRIPS Agreement and built-in flexibilities. The communication from Australia, Canada, Chile and Mexico provides a possible path forward by seeking to gather factual information that would permit Members to identify what challenges actually exist and what existing tools are available for addressing the existing challenges so that the need for any waiver is limited to what is actually needed instead of being the very broad waiver proposal for all countries regardless of actual problems faced.

Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, bodog poker review|Most Popular_Congressional

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