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The next White House occupant will have the unprecedented opportunity to decide the United States-Mexico-Canada Agreement’s (USMCA’s) fate. USMCA contains a sunset clause, Article 34.7, which terminates the Agreement in 2036 unless the parties agree to extend it through a “joint review” process set to begin on July 1, 2026. Readers facing more immediate challenges in 2024 might question the urgency of a decision that lies two years in the future, under an undetermined administration, and whose direct legal effect is delayed for ten years after that. But the USMCA’s implementing legislation, 19 USC § 4611, requires the President to “consult with the appropriate congressional committees and stakeholders”, as well as relevant executive branch officials, and to “provide opportunity for the presentation of views in relation to the operation of the USMCA, including a public hearing” at least 270 days before each joint review. To readers with a stake in North American trade—that is, at minimum, all North Americans: the time to strategize your participation is now.

The sunset clause was controversial, not least because it introduced little more to the Agreement than the fretful insistence of a doomsday clock. As former President Trump’s Trade Representative (USTR) Robert Lighthizer has noted, “[m]ost trade agreements, for reasons that don’t make any sense to me, are eternal… this one is temporal, although it’s complicated how it works.” The Agreement is initially set to expire 16 years from the date it enters into force. Every six years, the Free Trade Commission (or FTC, a group of minister-level government representatives from each party) conducts a joint review during which they decide whether or not to extend the Agreement by six years. If they extend the Agreement, then they can simply wait until the next joint review; otherwise, they must conduct annual reviews until the original expiration date. At any time in between, they may change their minds and extend the Agreement. The FTC may also, of course, meet between joint reviews and establish, dissolve, or otherwise collaborate with committees, working groups, and other subsidiary bodies to aid its decision-making. In May 2024, for example, the FTC held its fourth meeting, where it “took note of readouts from the Working Group for Cooperation on Agricultural Biotechnology and the Committees on Textiles, Technical Barriers to Trade, Good Regulatory Practices, State-Owned Enterprises and Designated Monopolies, and Small and Medium-Sized Enterprises.” Aside from consultation with and reporting to congressional committees, USMCA does not reserve any particular authority for Congress in the joint review process, so from a legal perspective the outcome depends on the executive branch—Congress’s role is essentially political.

Adrienne Sunset Clause

What readers should take most interest in is the process, specifically the approach that each prospective administration is likely to employ in a joint review, and the opportunities that each approach is likely to open to stakeholders to influence decision-making. Some predict that neither Trump nor Biden (or likely Harris) would extend USMCA in 2024. But like choices, in this case, will not lead to like results. When it comes to addressing some of the toughest challenges recognized on both sides of the political aisle, the two administrations’ approaches are rooted in fundamentally incompatible philosophical principles and priorities. Possibilities for stakeholder engagement, and outcomes for stakeholders, vary accordingly.

Trump and “Lighthizerism”

Trump has a clear vision for trade policy: wield it like a club and beat negotiating partners with it until they give him what he wants. In his second term, Trump has proposed a “ring around the country,” meaning a 60% tariff on all goods from China and a 10% tariff on all goods from all other countries (in addition to the Section 201, 232, and 301 tariffs his last administration imposed, as well as existing antidumping and countervailing measures). The architect of Trump’s trade framework was former USTR Robert Lighthizer. The two are reportedly still close, and Lighthizer would likely play a prominent role in Trump’s next administration, perhaps as Treasury secretary. For that reason, readers will benefit from an understanding of Lighthizer’s perspective on trade.

During Trump’s first term, international political economy scholar Quinn Slobodian observed that “Lighthizerism departs from standard free trade philosophy […] in its commitment to using an openly politicized arsenal of tools” to improve the US’s trade deficit; in its scorn for constructivist, multilateral approaches in favor of transactional, bilateral ones; and in its embrace of unilateral executive action to “[unsettle] existing arrangements and [push] partners to the negotiating table.” Lighthizer began his trade career as a deputy US trade representative in the 1980s, when the American factory worker’s bogeyman was a Japanese manager, not a Chinese bureaucrat, and the Reagan administration was combatting global industrial competition by pioneering the use of “aggressive unilateralism” in the form of Section 301 tariffs. In Slobodian’s view, Lighthizer hardened his philosophy in the crucible of 1980’s trade conflicts, which Lighthizer believes the “icon of modern conservatism, Ronald Reagan, [won by imposing] quotas on imported steel, protect[ing] Harley-Davidson from Japanese competition, restrain[ing] imports of semiconductors and automobiles, and [taking] myriad similar steps to keep American industry strong.”

Citing congressional testimony by Lighthizer in 2018, Slobodian illustrates how Lighthizerism has adapted to a world where China is the US’s new super-competitor by “taking a page from the playbook of what [he] sees as [the US’s] main adversary: Chinese state capitalism.” After reflecting on a Congress member’s question about whether the US, with all of its democratic restraints, can rely on tariffs to sustain a long-term competition with an unrestrained non-democracy like China, Lighthizer responded: “[The Chinese] do take a longer view, which by the way, I think is the right view. To the extent we can, we ought to be taking it.” Lighthizer elaborated more recently during an interview he gave at Harvard, lauding China’s use of a “mercantilist economic policy” to create surpluses, which in his judgment “they’re smart to do.” While more analysis would be necessary to draw clear parallels between Lighthizerism’s role in a Trump administration’s overall industrial policy and Chinese-style state capitalism, the strategy that Lighthizer lifts from China’s playbook is to make full use of the concentrated power of the executive branch. Imposing tariffs by unilateral executive action—as Trump did with Section 301, for example—is Lighthizer’s way of enacting a mercantilist policy, as he believes China can, without interference from a Congress whose constituents are broadly supportive of free trade. Under Lighthizerism, in Slobodian’s framing, democratic accountability is “an unfair disadvantage that the adversary does not share.”

To be sure, a democratic administration would employ the same tools—after all, it would face the same global challenges. Biden has not lowered the Trump-era tariffs, and in fact has expanded them in product categories such as solar panels, electric vehicles, batteries, steel and aluminum, and some medical products. And Biden USTR Katherine Tai’s view on the proper goals of trade policy coincides with Lighthizer’s in certain respects, at least rhetorically, in particular with regard to labor. In Lighthizer’s words: “We need a worker-focused trade policy not a corporate, price-centered one.” During her time as USTR, Tai has famously pioneered a similar-sounding “worker-centered” trade policy. But for Tai, this policy involves strategies such as using USMCA’s Rapid Response Mechanism (RRM), as well as multi-stakeholder negotiations, to improve labor standards in Mexico so that American employers can less easily use the threat of offshoring against organized American workers. Lighthizer’s vision for a worker-centered trade policy, insofar as he has articulated one, is fundamentally different.

Lighthizer’s worker-centered policy appears to revolve around the traditional tool of granting or withholding market access, largely by adjusting tariff rates through executive action, and aims primarily to “eliminate the trade deficits that are bleeding our country to death and achieve balanced trade.” For Lighthizer, tariffs are a worker-centered trade policy. They are the persuasive power that a Trump FTC representative would open-carry at every joint review. They are the tools at the disposal of working groups, committees, and any other stakeholder who wishes to have a voice in trade negotiations. Readers with a stake in trade policy, including the upcoming USMCA joint review, should think carefully about how far these tools can take them towards reaching their own goals (especially considering that they are readily available to any administration), about what opportunities they do or do not create, and about who bears their costs and benefits. More on that next time.

The next part in this series outlines some of the major trade issues that will be on the table during joint review, focusing on the Mexico-US relationship, and anticipates Harris’s likely approach to trade policy.

bodog online casino To read the insight as it was published on the JD Supra webpage, click here.

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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.

Constitutional amendments

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 bodog online casino 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 — 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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One of the most high-profile results of a friend-shoring policy is that Canada and Mexico have recently replaced China as America’s largest trading partners by total trade, while Mexico has overtaken China as America’s top importer. This followed the introduction of Donald Trump’s trade strategy, which aimed to reduce US dependence on Chinese goods – partly for political reasons and partly because of Trump’s perception of China as a rival power.

Joe Biden has also placed restrictions on trade with China in an attempt to strengthen US competitiveness with China and grow the US tech industry.

The US raised tariffs on imports from China significantly during the Trump administration. These levels remain high, making the costs of importing goods from China to the US more expensive.

In addition, the International Labor Organization Global Wage Report 2022-23 shows that China has experienced the highest rate of real wage growth among all G20 countries over the period 2008-22, also pushing up the price of Chinese goods.

The Biden administration continues to champion friend-shoring, which has further encouraged companies to shift production from China to Mexico as they weigh up geopolitical risks against differences in the costs of production.

While data on the number of firms relocating production is not available, the latest trade data suggests Mexico has managed to capitalise on the US-China rivalry.

Closer relationships with allies can be created by forming new trade agreements, for example, the US, Mexico, Canada Agreement (USMCA), which is more about geopolitics and friend-shoring than lowering tariff barriers as was the case of its predecessor, the North America Free Trade Agreement (Nafta).

But the USMCA was also a product of its time. US political will had shifted towards undermining political competitors and setting out anti-China political statements that resonated with voters.

Trump, a consistent critic of Nafta, had argued that it undermined American jobs and wages, a statement that undoubtedly played well in US industrial states experiencing manufacturing decline. A paper from the National Bureau of Economic Research suggested that far more US jobs were lost due to competition with China.

Doing business with your friends

Friend-shoring is a new term for something that has been around for a long time. Countries engaged in sanctions, blockades, and friend-shoring during the first and second world wars on a much larger scale.

In 1948, the US initiated economic sanctions against the Soviet Union, a 50-year-long strategy that started with export restrictions and was solidified by the Export Control Act of 1949.

These sanctions, intensified after the Battle Act of 1951, were aimed at limiting strategic goods to the Soviet bloc and became a permanent fixture of cold war policy following the escalation of the Korean war.

Data analysis shows how trade responds to political factors. For over sixty years, trade economists have made extensive use of the gravity model of trade, which has provided empirical evidence that countries tend to trade more with countries geographically closer to them as well as where there is a common language, common legal system, common exchange rate regime and shared colonial history.

Research also shows how political distance between countries and formal military alliances affects trade.

Governments can use trade policy to strategically support their own industries, so reducing trade with rivals can be part of a political agenda based on boosting domestic manufacturing (and jobs) rather than relying on imports. The US Chips and Science Act, and in the EU, the European Chips Act, are examples of policies that can inflict economic pain on adversaries while ensuring domestic production of this key component in high-technology manufacturing.

However, developing an industry takes time. By the time the industry is established, it may not pay off, either due to falling prices caused by increased supply or an economic slowdown that suppresses demand.

In the case of US chips, it is particularly interesting to note that the existing industry focuses on design and production of high-quality chips. Therefore, the latest policy will see low-cost microchips, the mainstay of the Chinese chip industry, start to be produced in the US and compete with the established US high-end suppliers.

The US has experienced the negative effects of these types of policies before. Just consider the US support for the steel industry, a popular choice among US presidents, including the current administration. Under the Trump administration, this saw 25% tariffs imposed on steel imports, which benefited the US industry but imposed costs on steel users.

Countries such as Australia were exempt from this policy, while other allies, such as the EU, were hit hard. Industrial policy can reduce dependence on rivals, but it’s not clear that friends always get special treatment.

Other policies can tie in with a friend-shoring agenda. The new generation of EU trade agreements deal with issues including labour rights and environmental protection, making it clear that third countries that want to do business with the EU need to meet the same standards. The EU has also been debating new anti-forced labour legislation, so this type of legislation may also start to get more serious consideration in the UK, for instance.

Friend-shoring policies aren’t new, but the slogan is. Self-sufficiency at the national level can inflict short-term pain on adversaries but may hold limited benefits in the medium term. However, there is broader acceptance that businesses need to have the certainty of trading bloc friends.

Half of all trade currently takes place between members of trade blocs, and recent trade data for the US and Mexico suggests that trade blocs may become more important over time as production moves.

To read the full article as it appears on The Conversation’s website, click here.

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At their meeting in January, the three North American leaders said they intended “to forge stronger regional supply chains, as well as promote targeted investment” in strategic sectors like semiconductors and batteries. Seeing North America as a competitiveness zone — one that helps producers in all three nations meet or beat foreign competition — is why we did NAFTA in the first place. But it has taken a resurgence of great-power competition, this time with China, to make the United States fully appreciate the benefits of integration with its neighbours, so much so that Mexico and Canada receive preferential treatment under the Inflation Reduction Act’s tax credits and other supports, much to the frustration of our other trading partners. North American trade ties, far from stoking fears of Ross Perot’s “giant sucking sound,” are now a vital part of U.S. economic development strategy.

This a unique moment for North America. U.S. policymakers can promote the competitive boost from trilaterally integrated supply chains with much less political blowback than in the past. This new political dynamic comes courtesy of the dramatic push to diversify sourcing from China but is aided by the unprecedented labour protections of USMCA/CUSMA, which include wage-enhancing rules of origin for autos and a “rapid response mechanism” to address unfair labour practices. Both lend political cover to a robust North American manufacturing, technology and services strategy.

Even in an environment driven by industrial policy and nearshoring, however, our nations need a coherent plan to attract investment to North America. It is not enough to chase subsidy dollars and assume companies eager to reduce their China footprint will commit to long-term investment here. Our three countries must create an investment climate characterized by certainty and predictability. And we must ensure that the agreement’s revived dispute settlement mechanism, which languished under NAFTA, is respected, preserved, and protected like the crown jewel it should be — particularly with the World Trade Organization dispute system having been severely hobbled.

North American dispute settlement is now the most efficient path to resolve challenges, with four panels requested thus far (dairy twice), a fresh consultation request from the U.S. over Mexico’s limitation of genetically modified corn imports and one looming over discriminatory Canadian digital policy. So far, all three countries have taken pains to reinforce bodog casino dispute settlement’s credibility, with proceedings being managed professionally and generally in a timely fashion. The quality of the panel determinations has been unimpeachable, with the U.S. expressing “disappointment” about its recent loss in a case on auto rules of origin but also pledging to “engage Mexico and Canada on a possible resolution.”

At this juncture, all three nations need to show the world we are following the rules laid out by our agreement and are committed to making North America a “zone of predictability.” This will require flexibility in sensitive sectors from autos to agriculture to energy, where Mexico’s policies not only contravene agreed obligations but make energy supply and prices uncertain. Each partner will need to show it is moving towards compliance both in these disputed sectors and in those currently under discussion. Failure to demonstrate that the rules mean something will hurt all three.

Benefiting from nearshoring by default is one thing. But it would be better for North American workers and consumers alike if their governments were to signal they want the continent’s investment climate to be world-class and competitive. Doing so requires emphatic compliance with dispute panel determinations but also addressing disputes in agriculture, autos, and the digital realm before they become intractable. As the historical stigma of NAFTA finally fades in Washington, President Biden is due to visit Canada this month. There could be no better time to reinforce our joint commitment to preserve and protect the benefits of USMCA/CUSMA through rigorous compliance.

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In honor of the USMCA’s first birthday, we thought we’d look at how implementation has gone. What, if anything, has changed over the past year?

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A good place to start is the USMCA Free Trade Commission. The USMCA requires trade ministers from the United States, Mexico and Canada to meet within a year and assess the state of trade in North America. That meeting took place in mid-May.

The Free Trade Commission covered a lot of ground over two days of meetings. Together, U.S. Trade Representative Katherine Tai, Mexican Secretary of the Economy Tatiana Clouthier and Canadian Minister of Small Business, Export Promotion and International Trade Mary Ng discussed small business, environmental protections, dispute resolution and rules of origin, to name a few.

A few topics in particular stand out. One that’s likely to show up in shipping news more frequently is implementation. The three trade ministers announced that, after a six month grace period, the USMCA is now in full force. Now that officials are ramping up all of the agreement’s new mechanisms, we’ll likely hear about trade compliance more often. In fact, that’s already starting to happen!

As enforcement grows, the number of disputes likely will also. “The USMCA does not promise dispute-free trade, but only that there would be a framework for resolving disputes,” explains Ralph Biedermann, executive director of the U.S.- Mexico Chamber of Commerce. There have already been a few notable ones.

A Dispute over Labor Rights

For starters, the Rapid Response Labor Mechanism has already been activated. Even before the bodog poker review inaugural Free Trade Commission meeting, a United States labor union had already kicked it into gear. In May 2021, the American Federation of Labor and Congress of Industrial Organizations filed a complaint against Tridonex, an auto parts factory in Mexico. According to the grievance, hundreds of workers at the plant were inappropriately fired for seeking out new union representation. We won’t know the end result for a while, but if Tridonex is found to have violated its workers rights, the facility could be hit with tariffs, or even blocked from exporting into the United States and Canada.

Conflicts haven’t been limited to labor relations, either. This spring, the Biden administration requested a dispute settlement panel (the first one since the USMCA went into effect) to review Canada’s dairy import quotas. In this case, the United States claims that Canada partially misallocated quotas on 14 different dairy products, redirecting them back to the Canadian dairy industry. The panel’s findings will be released in November, at which point the United States could impose new tariffs if Canada is found to have violated the agreement.

Dispute settlement mechanisms are an integral feature of the USMCA, but they aren’t the only part of it that could have a big impact on North American trade.

Changes to Rules of Origin 

When the USMCA was first passed, it made waves with its changes to rules of origin. By now, you’ve probably heard that the USMCA raises content regional requirements for vehicles made in North America from 62.5% to 75%. Now analysts are predicting that this could have a significant impact on sourcing and create more jobs in North America.

“The most notable change is that companies are re-evaluating their global supply chains and considering nearshoring,” says Doniele Carlson, AVP of Corporate Communications at Kansas City Southern in an email. Automakers who previously did final assembly in Mexico are finding that that strategy no longer provides easy access to the North American market. Under the new rules, manufacturers could decide that it simply makes more sense to move production to the United States or Canada.

Beidermann agrees: “The rules of origin changes will be very helpful to the United States and to Canada.”

Helen Mann is a Texas-based freelance writer primarily focused on logistics, the supply chain and international trade. She spent years writing about these topics for audiences ranging from CEOs to purchasing agents, including publications for TTX Company, the Intermodal Association of North America, and FTR Transportation Intelligence.

To read the original commentary from Shipping Solutions, please visit here

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In late 2020, Mexico’s central bank (Banxico) and the National Banking and Securities Commission (CNBV) issued draft fintech regulations (Provisions Applicable to Electronic Payment Fund Institutions) that would force firms to only choose cloud providers based in Mexico. Article 50 would impose a local data storage requirement. Article 49 would establish a regulatory approval model with a high degree of discretion and lack of transparency for determining what cloud computing services payments and financial firms could use.

It is clearly a barrier to trade that protects Mexican cloud providers and incumbent banks and payment networks from foreign competition as it would preclude U.S. fintech, payment, and financial firms from using existing U.S. cloud services to serve customers in Mexico. Meanwhile, it would create a clear gap in reciprocity in that Mexican cloud firms and fintech, payment, and financial firms would be free to use whatever cloud provider they wanted in accessing the U.S. market.

Mexico’s draft regulation is troubling as officials justified it on the basis of broad, vague, and highly unlikely national security grounds. Just as troubling is the fact that Trump administration trade officials reportedly did not push back on Mexico’s use of this rationale, in part due to its own misuse of national security concerns to enact tariffs on foreign automotive and steel imports. Mexican officials reportedly looked to Russia as their model. Russia enacted payment data localization as part of an initiative to replace foreign payment firms with a state-supported payments system (known as MIR) after being targeted by financial sanctions for invading Ukraine and annexing Crimea. After these sanctions, Mastercard and Visa refused to process payments from the region, so Russia used the crisis to standup its own payments network.

Russia is a world leader in digital protectionism and authoritarianism. Forced data localization and access to data are key tools in its toolkit. Russia not only requires payment data localization, but local data processing, which essentially precludes foreign firms from using data as part of global data analytics systems. The use of data analytics is at the heart of modern digital services trade and competition, yet U.S. payments firms face these barriers in China, India, Indonesia, Vietnam, and elsewhere as countries behind the border regulations to block them.

Forcing firms to store data locally does not make it more secure and private than data stored in the cloud. This is the false promise of data nationalism. Nor does Mexico face any real threat of international financial sanctions that would somehow cut its payment system off from the global financial system. National security is among the most troubling motivations that policymakers are reverting to try and justify arbitrary and discriminatory digital restrictions as it is self-judging and can be applied to nearly any digital issue.

Mexico’s data localization proposal breaches both the spirit and the letter of USMCA’s new digitally upgraded financial services (chapter 17) and digital trade (chapter 19) commitments. While it does not apply to financial services, Bodog Poker provisions in the digital trade chapter highlight each party’s recognition that data localization is a barrier to modern trade. For example, article 19.12 on the location of computing facilities states that “No Party shall require a covered person to use or locate computing facilities in that Party’s territory as a condition for conducting business in that territory.”

The USMCA’s financial services chapter is the gold standard for supporting the free flow of financial data, while ensuring financial regulators have access to data for oversight purposes (as countries like India cite concerns over access as a misguided motivation to enact data localization). The financial services chapter prohibits rules forcing firms to use or locate local computing facilities as a condition of market access (article 17.18). Should a firm face an issue providing data to regulators, they would have a reasonable opportunity to address the issue and shift data to a jurisdiction where access is assured (article 17.18). Mexico could defend its data localization requirement as a prudential measure, but there is a clear lack of evidence that there is a problem that data localization solves (article 17.11).

The United States should use USMCA commitments on financial services cooperation and transparency to pressure Mexico that this data localization idea is a bad one and will have consequences. Several members of the U.S.-Mexico Interparliamentary Group (Rep. Hurd, Rep. Gonzalez, Rep Cuellar, and Rep. McCaul) already sent a letter to former USTR Lighthizer and Treasury Secretary Mnuchin about this data localization proposal. Such awareness and pressure is needed to ensure the United States uses these new tools. USTR Katherine Tai is using the USMCA’s novel Rapid Response Labor Mechanism to ask Mexico to review labor rights at an automotive factor. USTR should do the same and call a meeting of USMCA’s Committee on Financial Services (which is responsible for implementation and any issues), request further information about the measure, and ensure Mexico provides substantive written response to concerns raised about draft financial service regulations.

Just as raising a tariff can tip the scales of profitability for a traditional manufacturing firm engaged in trade, so too can digital restrictions preclude U.S. fintech or financial service firms, especially small ones, from leveraging cloud services to engage in digital trade in multiple markets. The cost and complexity of setting up duplicative data centers is costly, especially for startups and SMEs that may only serve their home market and one or two foreign ones.

For the USMCA’s new digital rules to be valuable, they need to be enforced. U.S. firms and workers benefit from the movement of data as part of digital trade. While it’s hard to specify the exact impact of this one provision, it’s also a matter of recognizing the cumulative impact if more countries enact similar restrictions on U.S. cloud and digital service providers.

If the Biden administration wants to support the innovation and growth in the burgeoning fintech and payment services sector, it needs to send a clear message that countries cannot use regulatory policies disguised as barriers to protect local firms. The United States pushed for ambitious digital trade rules to prevent exactly these types of barriers. Failing to defend them weakens USTR’s efforts to push back against digital protectionism elsewhere around the world.

Nigel Cory is an associate director covering trade policy at the Information Technology and Innovation Foundation. He focuses on cross-border data flows, data governance, intellectual property, and how they each relate to digital trade and the broader digital economy. Cory has provided in-person testimony and written submissions and has published reports and op-eds relating to these issues in the United States, the European Union, Australia, China, India, and New Zealand, among other countries and regions, and he has completed research projects for international bodies such as the Asia Pacific Economic Cooperation and the World Trade Organization.  

To read the full commentary from the Information Technology and Innovation Foundation, please click here.

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Yet Reisinger knows that jobs at the Hibbing, Minn., facility will always hang by a thread—even in really good times—as long as his employer has the option to shift production to poorly paid Mexican workers.

Americans can protect their own livelihoods by ensuring their Mexican counterparts have unfettered, unconditional use of new labor reforms intended to lift them out of poverty and stop employers from exploiting them.

To protect workers on both sides of the border, America’s labor community and the U.S. trade representative last week filed the first-ever complaints under the 10-month-old United States-Mexico-Canada Agreement (USMCA), demanding action against two plants that suppressed Mexican workers’ right to unionize.

Swift, significant punishment of these kinds of offenses through the USMCA’s innovative “rapid response”enforcement procedures would deliver a major boost to Mexican workers’ efforts to form real unions for the first time. And those unions, in turn, would help Mexican workers negotiate better wages, eliminate employers’ incentive to move jobs out of the U.S. and end a corporate race to the bottom that’s harmed millions in both countries.

Not only has Reisinger seen a steady stream of U.S. automakers and suppliers send work to Mexico over the years, but his own employer opened a location there about three years ago. Reisinger, who represents about 50 Northern Foundry workers as president of United Steelworkers (USW) Local 21B, doesn’t want to see the company open a second just to take further advantage of low wages there.

He’s counting on the USMCA to help keep that from happening.

“It’s just frustrating to see work going away from American workers,” said Reisinger, noting MTI could have expanded the Northern Foundry or its other U.S. locations rather than open the Mexico facility.

Under the North American Free Trade Agreement (NAFTA), the previous trade deal in place for 25 years, U.S. corporations relocated about a million good-paying manufacturing jobs south of the border to exploit the abysmal wages, weak labor laws and lack of environmental safeguards.

These companies made huge profits at the expense of powerless Mexican workers while devastating U.S. manufacturing communities, gutting the nation’s industrial capacity and decimating the middle class.

To curb this greed, U.S. labor leaders and their Democratic supporters in Congress successfully battled to enshrine tougher labor standards in the USMCA as well as enforcement mechanisms to hold employers’ feet to the fire.

The USMCA, for example, required Mexico to pass laws enabling workers to form democratic unions, select their leaders and negotiate real contracts for the first time.

Those changes empower Mexican workers to kick out the corrupt cabals—masquerading as labor organizations—that for decades collaborated with employers to suppress wages, stifle dissent and even kill those who publicly challenged the status quo. These groups not only denied workers a say on the job but bound them to oppressive contracts that made them the perfect targets for U.S. corporations preying on cheap labor.

Now, Mexican workers can look forward to joining unions that, like Reisinger’s, fight not only for better wages but affordable health insurance, retirement plans and safety measures to ensure they return home safely to their families at shift’s end.

“It gives you a voice,” Reisinger said of the local he’s proud to lead. “We have pushed back against the company several times on safety issues.”

Eradicating the anti-worker forces entrenched in virtually every Mexican workplace would have been a herculean, time-consuming process even without delays associated with the COVID-19 pandemic.

In December, the Independent Mexico Labor Expert Board, created to monitor the labor reforms, noted that progress had been made with the help of well-intentioned Mexican officials.

However, the board reported that “serious concerns” remained. Most workers still awaited opportunities to form unions and elect leaders, for example, and many continued to face intimidation for organizing efforts.

Those are some of the issues at the heart of the complaints filed last week.

The AFL-CIO, other unions and the activist group Public Citizen alleged that Tridonex, an auto parts maker owned by a Philadelphia company, harassed and fired hundreds of workers trying to organize. Hourly wages at Tridonex range from about $1.80 to $3.30.

In a separate complaint, the U.S. trade representative reported that a phony labor group trying to cling to power at a General Motors plant in northern Mexico destroyed the ballots of workers seeking legitimate representation for the first time. Workers in the GM factory, which makes Chevrolet Silverado and GMC Sierra trucks, start at $1.35 an hour, with a top wage of $4.95 an hour.

Now, these employers face investigations by the Mexican government, special panels set up under the USMCA or both. Punishments for individual plants found to have violated the new labor rights include tariffs or other sanctions, and repeat violators could have their products denied entry to the U.S.

Strict enforcement of the USMCA will not only help the oppressed workers at the Tridonex and GM plants but send the message to other employers that they have to comply with the law as well.

“Otherwise, they’re just going to laugh at it,” Reisinger said. “You have to have these enforcement mechanisms in place, and you have to utilize them.”

Noting his foundry has struggled at times, Reisinger knows a more level playing field under the USMCA can help secure the facility’s future, generate even more business and help his co-workers build better lives.

“I think it’s important that they remember to share that increase with the workers,” he said.

To read the full commentary from United Steelworkers, please click here. 

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Since taking office, Ambassador Tai has made it clear that her mandate includes using trade policy to strengthen environmental protection in free trade agreements. Instead of looking at fixing the environmental exceptions at the World Trade Organization, Ambassador Tai’s first step should be to correct the “most glaring omission” in USMCA by acknowledging the climate crisis through incorporation of the Paris Agreement in the Environment Chapter as well as in Chapter 1.

The lack of any serious consideration of greenhouse gas emissions resulting from North American trade in USMCA takes away from any achievements gained by a more robust environment chapter and a revamped Environmental Co-operation Agreement. USMCA only indirectly considers climate change in relation to the promotion of strategies and actions, such as areas of energy efficiency, alternative and renewable energy, and low-emission technologies. As the USMCA fails to address our most significant environmental issue, Ambassador Tai’s comments on illegal logging and overfishing are a bit like fiddling while the forest fires rage and ocean temperatures rise.

Fortunately, there is an option to amend USMCA to reflect the importance of the climate crisis. Prior to the signing of USMCA, it was re-tooled by the Protocol of Amendments. This Protocol added a new article (24.8) to USMCA’s Environment Chapter. This Article recognizes the Parties’ existing commitments to implement their obligations under certain multilateral environmental agreements (MEAs) to which they are a party[1]. Article 24.8 is enforceable[2] under dispute settlement, and requires each Party to “adopt, maintain, and implement laws, regulations, and all other measures necessary to fulfill its respective obligations under the listed MEAs”. Currently, the Paris Agreement is not a listed MEA in Article 24.8. However, Article 34.3 of USMCA providing a simple amendment procedure (at least from a legal perspective) which can be used by the Parties to add more MEAs in the future, including the Paris Agreement.

The same list of MEAs was also incorporated into USMCA by the Protocol of Amendment in a new Article 1.3. Article 1.3 is similar to Article 104 of the original NAFTA, although the rewritten language is an improvement and provides more scope for Parties to adopt measures that may be on their face inconsistent with USMCA, but are needed to comply with the obligations of the MEA. This article acts as a de facto exception clause, and allows Parties to take actions to protect the environment under the listed MEAs and not worry about the measure being inconsistent with USMCA, with one caveat that the measure cannot be primarily a disguised restriction on international trade. This clause would be especially interesting for the development of trade policy for Border Carbon Adjustment measures. Again, Article 1.3 can be amended in a simple process by the Parties, to add the Paris Agreement or any other future climate agreement ratified by the Parties, to the MEA list.

Ambassador Tai made a second statement on Earth Day 2021 where she again emphasized the need to address climate change through trade policy by embracing “our responsibility to help solve one of the defining challenges of our time by leveraging trade tools to avert an unfolding economic crisis and protect our planet.” Amending USMCA to list the Paris Agreement in Articles 1.3 and 24.8, would be an important signal that the USMCA Parties are ready to make difficult decisions for environmental protection, which may include prioritizing climate obligations over trade rules, and potentially using binding dispute resolution in USMCA to enforce environmental obligations in MEAs.

Risa Schwartz is a sole practitioner, focusing on international law and the intersections between trade and investment law, environmental law and Indigenous rights.

To read the original blog by the International Economic Law and Policy Blog, please click here.

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Strategic Significance of USMCA

USMCA was signed into law by President Trump on January 29, 2020, after receiving overwhelming bipartisan support in Congress. Passage of USMCA in the Congress was a watershed mark for U.S. trade agreements setting the bar for Congressional approval of future trade agreements. On December 17, USMCA passed the House of Representatives  with overwhelming bipartisan support 385 – 41. The historic margin (344 votes), the largest of any major U.S. trade agreement, included 193 Democrats voting in support (38 opposed), 192 Republicans voting in support (two opposed) and  one  independent  opposing  the  agreement. As a reference, NAFTA passed the House by a margin of only 34 votes (234-200).

Passage of USMCA in the Congress was a watershed mark for U.S. trade agreements setting the bar for Congressional approval of future trade agreements.

Reaching Congressional ratification of the agreement marked a serpentine path of obstacles. Namely, a year lapse since the signing of the original agreement, a delayed statutory report by the independent U.S. International Trade Commission owing to government shutdown, the lifting of U.S. 232 tariffs on steel and aluminum imports from Canada and Mexico, and months of intense negotiations between the House Democrats and USTR principally over language on labor, environment, and enforcement in the agreement. The historic level of Democratic support is ascribed by many trade experts to the amended provisions of USMCA that addressed the House Democrats’ labor and environmental concerns, and the endorsement by the AFL-CIO, the first endorsement of a trade agreement by the organization in 20 years.

USMCA Importance for Agriculture

While nearly 99 percent of U.S. food and agriculture exports enjoyed duty free access to Canada and Mexico under NAFTA, USMCA increases market access to Canada’s dairy market, poultry, wheat, and alcohol, enhancing market access in several key agricultural industries. Moreover, USMCA maintains NAFTA’s zero-tariff treatment on other agriculture exports. Increased market access further promotes U.S. trading interests and ensures fair competition with our North American trading partners. Particular provisions in USMCA include:

• Canada agreed to eliminate the unfair Class 6 and 7 milk pricing programs that allowed their farmers to undersell U.S. producers, resulting in expanded Canadian market access for U.S. dairy farmers.
• U.S. poultry producers have expanded access to Canada for chicken, turkey, and eggs. Canada agreed to terminate its discriminatory wheat grading system, increasing U.S. growers’ competitiveness.
• The three countries agreed to avoid technical barriers to trade through non-discrimination and transparency regarding sale, distribution, labeling, and certification of wine and distilled spirits.
• USMCA maintains the zero tariffs that were originally achieved for corn wet milled products under NAFTA, which had allowed Mexico and Canada to become our number one and two markets in the sector, respectively.

Several new provisions in agriculture were introduced or expanded in USMCA to modernize NAFTA and to create a high-level standard for future agreements including enhanced sanitary and phytosanitary (SPS) enforcement, addressing biotechnology, additional protections on geographical indicators, and increased environmental obligations. Specifically, USMCA:

• Strengthened disciplines for science-based measures that protect human, animal, and plant health while improving the flow of trade.
• Specifically addressed agricultural biotechnology – including new technologies such as gene editing – to support innovation and reduce trade-distorting policies.
• Included a new intellectual property (IP) chapter that offers enhanced protections for agriculture innovators and institutes a more rigorous process for establishing geographical indicators.
• Added an environment chapter to ensure enforcement in environmental obligations including prohibitions on harmful fisheries subsidies and introduces articles to improve air quality, prevent and reduce marine litter, support sustainable forest management.

Replacing the 25-year-old NAFTA, USMCA further strengthened existing market access, expanding U.S food and agricultural exports and supporting food processing and rural jobs in America. Canada and Mexico constitute the second and third largest export markets for U.S. food and agricultural products, totaling more than $18.2 billion in exports in 2019. The increased market access under USMCA bodog sportsbook review is expected to increase U.S. agricultural exports by $2.2 billion. USMCA strengthens the U.S. farm and agriculture economy and secures vital market access for U.S. farmers, ranchers, and agri-businesses.

Shifts in Political Environment

These modernized non-tariff provisions of USMCA set the next baseline and high standard for future U.S. trade agreements and provide a starting point for U.S. negotiators. Yet the expiration of TPA and shifts in the trade political environment in 2021 raises the bar and may incentivize narrow and palatable mini-trade deals over complex and time-intensive comprehensive deals. Several trade experts recently suggested the Biden Administration pursue limited sectoral trade agreements as building blocks to future comprehensive pacts, such as joining the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Ultimately, mini-deals may entail a series of future phased negotiations, such as the stalled phase two negotiations with Japan and China, to achieve the comprehensive and high standard agreement represented by the USMCA for increased market access and protection in the agricultural sector. The current U.S.–U.K. negotiations are an example of an agreement that could expand the USMCA provisions as the U.K. seeks to establish a post- Brexit independent food and regulatory framework. The enhanced USMCA provisions on agriculture, labor, environment, and enforcement provide U.S. negotiators an important baseline and signal to the U.K. and other potential trade partners seeking bilateral agreements of the bar Congress expects in order to ratify future trade treaties. However, the U.S.-U.K. agreement risks failing to materialize into the standard set by USMCA if the agreement is not implemented in early 2021 as TPA expiration and a shifting domestic policy priority for a new presidential administration may slow or preclude passage of a comprehensive trade deal in 2021.

TPA or the “fast track” streamlines legislative consideration of trade agreements and expedites trade negotiations. Under TPA, when the executive branch presents an agreement, Congress gives an up or down vote by a simple majority without amendments. This process is key to a timely comprehensive trade agreement. Crucially, TPA expires on July 1, 2021. The Trump administration already extended the TPA in 2018, forcing a vote in 2021 to avoid expiration. If TPA is not renewed, comprehensive trade deals would be subject to Congressional amendments which would alter and potentially suspend Congressional consideration of agreements that require taxing negotiations. Trade partners might be reluctant to negotiate with the U.S., especially on politically sensitive issues, unless they are confident that a trade agreement negotiated by the executive branch would receive timely legislative consideration, that it would not unravel by congressional amendments, and that the U.S. would implement the terms of the agreement reached.

Even if TPA is renewed in 2021, though most trade observers remain doubtful, trade agreements are still subject to changing executive and legislative priorities. President Biden has indicated his Administration’s priorities lie in domestic-centric policies particularly in ameliorating the COVID-19 pandemic and ensuring economic recovery. While Biden has offered support for future trade agreements, they are unlikely to be a policy priority until well after the administrations’ 100 days or even longer. In the meantime, mini-trade deals may provide opportunities to resolve trade disputes and keep the U.S. on offense on the global trade stage, as other countries proceed apace with new agreements, such as the Regional Comprehensive Economic Partnership (RCEP), which covers 30% of the world’s GDP. Further, such sectoral or limited trade deals would avoid expending the political capital and resources necessary to negotiate a comprehensive trade deal while the Biden Administration prioritizes domestic economic recovery. While Democrats control both chambers of Congress and the White House may strengthen political accord to pass comprehensive trade agreements, their expectations for environmental and labor provisions as laid out in USMCA may present a significant challenge for passage of comprehensive deals not aligned with similar provisions in USMCA. Amalgamated with the unwavering position that such agreements are not a named priority of the Biden administration as well as their passage remains further hindered by the expiration of TPA, USMCA may be the last high-standard comprehensive trade agreement until well into the Biden Administration.

Consequence

While USMCA sets a new standard in terms of negotiation provisions and political support, it is unlikely to be replicated in another comprehensive trade agreement in the next several years. Changes in the U.S. political environment suggest less emphasis on successfully negotiating and implementing comprehensive trade agreements, opening the door for increasing consideration of mini-trade deals that offer a path of least resistance and keep the U.S. in an offensive trade posture. This carries implications for currently paused U.S.-U.K. and U.S.- Kenya trade negotiations, along with any other prospective trade deals, which could fail to receive timely Congressional consideration if negotiations do not conclude under extended or renewed TPA authority.  This will carry a significant impact on U.S. exporters, including in the agriculture sector, who seek increased market access to enhance their global competitiveness and economic security.

To read the original news piece from the USMCA, please click here 

Michael Anderson, Vice President, Trade & Industry Affairs

Caitlyn Hendricks-Costello, Trade Policy Intern

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