Softwood dispute underscores need for NAFTA dispute mechanism, trade expert says

by Mia Rabson (feat. Colin Robertson)

The Canadian Press
November 15, 2017

OTTAWA — Canada’s decision to turn to the North American Free Trade Agreement for a solution to the latest softwood lumber dispute proves how critical the agreement’s dispute resolution mechanisms are to this country, a Canadian international trade expert said Wednesday.

Canada on Tuesday asked a review panel under Chapter 19 of NAFTA to investigate the countervailing duties imposed on Canadian softwood imports into the United States.

The U.S. argues Canada unfairly subsidizes its lumber industry, and the question for the panel will be whether the duties are legal under U.S. laws.

This is the fifth Canada-U.S. softwood lumber dispute since 1982, and the third in which Canada has sought relief under the dispute mechanisms of free trade agreements with the U.S. They have largely ruled in Canada’s favour in the past.

Colin Robertson, a former Canadian trade diplomat, said Wednesday it’s no surprise Canada made the application despite political battles with the U.S. over the very existence of the Chapter 19 dispute mechanism.

“It would not be logical for us not to use it and we had to use it within a certain time frame so of course we’re going to apply it,” said Robertson.

Chapter 19 of NAFTA means Canada can get a panel made up of U.S. and Canadian trade experts to decide if the duties follow U.S. trade law, rather than going to the U.S. court system.

Robertson said trade agreements were pursued by Canada in the first place largely to create a dispute settlement mechanism “to give us some relief from unfair application – and I stress unfair – of American trade law.”

“In a psychological fashion from a Canadian perspective (this) kind of underlines why Chapter 19 is essential,” he said.

However U.S. President Donald Trump wants Chapter 19 eliminated, and he has support from many U.S. industries who feel it is unconstitutional and that the American courts are best equipped to determine whether U.S. law is being upheld.

The Canadian government has indicated eliminating Chapter 19 is a non-starter.

Robertson said the negotiations on NAFTA are largely parallel to this particular dispute, and Canada and the U.S. almost certainly knew when the last softwood agreement expired in 2015, that we’d end up back at Chapter 19 eventually.

In the past, NAFTA panels have told the U.S. its laws did not allow it to determine whether Canada’s pricing system for wood was fair using U.S. market prices, or that if there was a subsidy at play it was never as big as what the Americans tried to suggest with their duties. In 2005, a NAFTA panel unanimously agreed the U.S. industry had not been injured by Canada’s stumpage fee system.

Canada would hope to have similar findings again.

NAFTA rules require a panel decision on this complaint be made no later than the end of September 2018.