Tag Archives: Trade Negotiations

Mark Warner was interviewed by BNN, CBC and Bloomberg TV Canada about President Elect Donald Trump’s nomination of Robert Lighthizer to be the next United States Trade Representative (“USTR“) and what it means for Canada. (January 3 & 4, 2017) While Trump’s choice of USTR and Chair of the National Trade Council are protectionists by reputation, he has also put pro-trade choices to lead the Treasury Department, State Department, Office of Management and Budget, Council of Economic Advisers and Vice-President, and his Commerce Secretary, although like Lighthizer with a background in the steel industry, has been supportive of trade in the past.  “Trumpian” trade policy may be more complex than simple pro or con. What is taking shape looks a lot like 1980s Reagan era free trade policy: tough enforcement; focus on market access; and trade and monetary policy integration.

Mr. Warner is a Canadian and U.S. lawyer who has practiced in Toronto, Washington, DC and New York and has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the Canada-EU Trade Agreement (CETA) negotiations, on procurement issues in the Canada-U.S. Agreement on Government Procurement and on several NAFTA Chapter 11 Investor-State Arbitrations. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

I published this 2016 Year in Review – Personal Reflections on LinkedIn:

As I reflected on the year just passed, I have been considering the media commentary that I gave on a range of trade, competition, investment, sanctions and innovation issues. I thought that the start of a new year would be a good opportunity to review and update a few areas that I expect to be thinking about and working on in 2017.

At the close of 2015, I chaired a first of its kind Canadian Sharing Economy Symposium in Toronto and 2016 started off with my participating in an insightful Canadian Competition Bureau Workshop on Disruptive Competition. In 2017, one area where I expect these issues to come into sharper focus is the role of Fintech as a disruptor or enabler for Canada’s big banks.

Trade law is another area where the theme of disruption seemed to dominate the landscape in 2016. This was exemplified by the stunning Brexit vote in the UK, the tumultuous conclusion of the CETA negotiations, the apparent stalling of the TPP and the threats from candidate, now President-Elect, Donald Trump to renegotiate or terminate NAFTA. 2017 will probably not offer much clarity on any of these fronts. The UK will likely trigger Article 50 to commence Brexit negotiations with the European Union, the final ratification and implementation on CETA will depend on the outcome of cases before the European Court of Justice, TPP may be frozen in suspended animation until a propitious time arrives for a rebranding if not a renegotiation, and Canada and Mexico wait to see what exactly President Trump wants to do with NAFTA. One likely target may be renewed “Buy American” programs in connection with his ambitious infrastructure spending proposals and another may involve addressing recurring U.S. concerns about competitive disadvantage from the Value Added Tax (VAT) in Mexico or the Goods and Services Tax (GST) in Canada.

This trade negotiation uncertainty is set against the backdrop of renewed bilateral trade disputes relating to Softwood Lumber and potential WTO trade disputes involving Canadian government support to Bombardier’s civil aircraft production. However, despite the continuing debates around the merits of investor-state dispute settlement in trade agreements, one pending NAFTA Chapter 11 challenge by TransCanada relating to the approval of the Keystone XL pipeline project will likely be resolved with the election of President Trump and the near certain approval of the project.

Just as infrastructure is emerging as a potential flash point in trade, it is also on the agenda of competition enforcement. More often than not, concerns arise around bid-rigging highlighting the need for pro-active compliance steps for government agencies and other organizations that source construction or other services through tender processes and trade and professional associations whose members provide procurement-related services. One area of enforcement activity for the Canadian Competition Bureau in 2016 was in the supply of condominium refurbishment services in the Greater Toronto Area and this can be expected to continue into 2017.

In 2016, international issues also continued to be noteworthy in competition law and policy and in the cross-border merger context in particular. In 2017 these issues can be expected to be in the spotlight in connection with the proposed notification and approval of the potential merger between the two leading Canadian potash producers, Potash Corp. of Saskatchewan Inc. and Agrium Inc. This is of particular interest given the divergent views of the Canadian and U.S. antitrust agencies on the claimed efficiencies in connection with the proposed acquisition of chemical producer Canexus Corporation by Superior Plus Corporation. While the Canadian Competition Bureau cleared the merger, in the United States, the Federal Trade Commission (FTC) announced that it would challenging the transaction and in the end the transaction was abandoned.

Economic sanctions were another area of great international enforcement cooperation and convergence in 2016 with the easing of U.S. and international sanctions on Iran and U.S. sanctions on Cuba. This policy disruption opened a world of trade and investment opportunities but 2017 is likely to give way to renewed uncertainty until President Trump clarifies his intentions.

Another area of policy disruption where international legal issues and competition issues will continue to intersect is the efforts to legalize the sale and distribution of marijuana in Canada. In 2017, the contours of the regulatory landscape that will define the conditions of competition for producers and retailers should come into sharper focus.

On a personal level, a high point of 2016 for me was being invited to serve as a panelist at the All-American Regional Round of the 14th annual European Law Students’ Association (ELSA) Moot Court Competition on WTO Law, participating in an International Trade Panel at the 2016 Asian Canadian Law Students Conference, and speaking on international sales agreements and business formation in a Kyiv Chamber of Commerce & Industry Workshop on Accessing the Canadian Market.

2016 was a fun and interesting year, and in 2017 I look forward continuing to work on cutting-edge issues of innovation, competition, investment and trade giving advice to businesses and trade associations on compliance, governance and transactions and to governments on legislative and regulatory design.

And so let me take this opportunity to offer all of you, my very best wishes for a productive and a prosperous new year!

Mark Warner was interviewed on BNN about China’s requested WTO dispute consultations with the United States and the European Union regarding special calculation methodologies used by the US and EU in anti-dumping proceedings and the impact of this dispute for Canada. (December 12, 2016) When China joined the WTO in 2001, its accession terms allowed other WTO members to treat it as a “non-market economy” but part of that clause expired on December 11th, 2016.  Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

Mark Warner participated in a Canadian Friends of the London School of Economics and Political Science (CFLSE) panel discussion on the implications for Canada from Brexit, the Canada-European Union Trade Agreement (CETA) and trade policy in the wake of the election of Donald Trump in the United States. (November 30, 2016) Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State arbitrations. Mr. Warner, a Canadian and U.S. lawyer, has  previously worked on trade and competition issues as counsel in the OECD Trade Directorate. As a partner in a leading boutique law firm in Brussels specializing in European and international law, Mr. Warner negotiated with European Commission Competition officials the first ever notified merger of companies from accession countries (Polish and Czech oil companies) following EU expansion in 2004.

Mark Warner was interviewed by the Calgary Herald and by  Global News about the prospects of “Buy American” conditions arising out of  President-Elect Donald Trump’s infrastructure spending plans and the implications for Canada. (November 25, 2016) Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the Canada-EU Trade Agreement (CETA) negotiations, on procurement issues in the Canada-U.S. Agreement on Government Procurement and on several NAFTA Chapter 11 Investor-State Arbitrations. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

Mark Warner was quoted in the Globe and Mail about the U.S. Lumber Coalition formal request that the U.S. Department of Commerce investigate whether Canada is conducting unfair trade in softwood lumber. (November 25, 2016) Mr. Warner is a Canadian and U.S. lawyer and was Legal Director of the Ontario Ministry of Economic Development & Trade where he advised Ontario in the CETA negotiations and on various NAFTA trade and investment disputes. Mr. Warner has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Mark Warner was interviewed on BNN and in the Toronto Star about the pros and cons of renegotiating the North American Free Trade Agreement (“NAFTA”) as suggested by President-Elect Donald Trump. (November 14 & 17, 2016) Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the Canada-EU Trade Agreement (CETA) negotiations, on procurement issues in the Canada-U.S. Agreement on Government Procurement and on several NAFTA Chapter 11 Investor-State Arbitrations. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

Mark Warner was interviewed by AM630 CHED in Edmonton, AM980 CPFL London, Ontario and the New York Times about the impact of the election of Republican Presidential candidate Donald Trump on Canada’s trade with the United States and the implications for the North American Free Trade Agreement (“NAFTA”). (November 9 & 10, 2016) Mr. Warner, a Canadian and U.S. lawyer, has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate. Mr. Warner was Legal Director of the Ontario Ministry of Economic Development & Trade and advised Ontario in the Canada-EU Trade Agreement (CETA) negotiations, on procurement issues in the Canada-U.S. Agreement on Government Procurement and on several NAFTA Chapter 11 Investor-State Arbitrations. He is co-author of a leading Canadian trade law treatise, has also published numerous articles and has been invited to speak at conferences around the world.

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Mark Warner was interviewed on CBC Power & Politics [Listen from 73:39 to 80:28] and CBC News Network about the signing of the Canada-European Union Trade Agreement (CETA) and the next steps in the process of ratification in the EU and implementation in Canada. (October 28 & 30, 2016) Mr. Warner, a Canadian and U.S. lawyer, previously practiced trade and competition law in Brussels and as Legal Director of the Ontario Ministry of Economic Development & Trade advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. Mr. Warner has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.

Mark Warner was interviewed on BNN and CBC On the Money about the prospects for the approval of the Canada-European Union Trade Agreement (CETA) in Belgium and the next steps in the process of EU ratification. (October 27, 2016) Mr. Warner, a Canadian and U.S. lawyer, previously practiced trade and competition law in Brussels and as Legal Director of the Ontario Ministry of Economic Development & Trade advised Ontario in the CETA negotiations and on several NAFTA Chapter 11 Investor-State Arbitrations. Mr. Warner has advised governments on trade policy and trade negotiations and previously worked on trade and competition issues as counsel in the OECD Trade Directorate.