Canada in Crosshairs for Promise Utility Doctrine at Investor Dispute Hearing

By | Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Policy, Trade | No Comments

Co-authored by Linda Dempsey, Vice President of International Economic Affairs

Canada’s attempts to defend a questionable intellectual property approach have taken a hit in recent weeks as government experts faced scrutiny from a team of neutral international arbitrators, based on the official hearing transcripts released on August 3. These hearings are vitally important for a wide range of innovative manufacturing companies using patents or investing internationally.

During two weeks of International Court of Settlement for Investment Disputes (ICSID) hearings in late May and early June, Canadian officials and experts faced crossfire for attempts to defend Canada’s “promise utility doctrine.” This rule, which constitutes a “revolution” in Canadian patent law, was invented by their courts and rests on the concept that patents that do not fulfill their “promise”as arbitrarily construed by the courts often years after the patent was filedcan be ruled invalid, even if they meet all of the internationally accepted criteria for patentability. Canadian courts began freely applying the rule in 2005 and have since revoked 25 patents that were invented to help millions of people suffering from cancer, osteoporosis, diabetic nerve pain and other serious conditions. Read More

#TruthOnTheTrail: Trade Realities That Campaigns Need to Consider

By | Shopfloor Main, Shopfloor Policy, Trade | No Comments


Trade continues to be a key topic in the campaigns of both major parties. Unfortunately, the most oft-repeated claims are flat-out wrong and portend a dangerous path of retreat from the strong trade approach that has long been a powerful positive force for American workers, consumers and families. With World Trade Week officially under way, let’s look again at how trade drives the U.S. economy, raises standards of living for American families and grows manufacturing in the United States by dispelling some of the top trade myths.

  1. Free Trade Agreements. If candidates want to take aim at free trade agreements (FTAs), why not go after the hundreds of trade agreements being negotiated without the United States that exclude and disadvantage manufacturers in the United States? U.S. exporters face higher tariffs and barriers than most of the world’s exporters in other countries (ranking 130 out of 132) because the United States has too few, not too many, trade agreements. FTAs are huge market boosters for manufacturing in the United States because they promote fair trade by leveling the playing field. That’s why moving forward on the Trans-Pacific Partnership (TPP) is so important to manufacturers in the United States.
  1. NAFTA. The criticism of the North American Free Trade Agreement (NAFTA) is an enduring but deeply flawed myth. The United States implemented NAFTA in 1994 and then experienced four years of economic growth and the creation of more than 800,000 manufacturing jobs. The recession in the late 1990s had a negative effect on the U.S. economy and jobs, but if anything, NAFTA helped the United States endure that downturn more successfully and has been critical to sustaining and growing the U.S. manufacturing sector, which then faced even stronger challenges from Asian emerging economies.
  1. China. It is easy for candidates to go after China as a major villain in the trade stories they like to tell. China is not easy, but it is not a one-sided picture. Yes, China has grown its manufacturing industry heavily over the past 20 years and is now the largest foreign supplier of manufactured goods to the United States. To reach this level, China engaged in a number of unfair trade practices, government subsidization and discriminatory policies. No debate there. At the same time, China also became the third-largest market for U.S.-manufactured goods, from the seventh-largest purchaser in 2002, the year after China joined the World Trade Organization, with U.S. exports growing more than 350 percent to $89 billion. There’s a long way to go in creating a fairer and more reciprocal U.S.China commercial relationship, but it’s a lot more complicated than the campaign promise of putting on new border taxes on Chinese imports, which we all know would be contrary to U.S. international commitments and would likely result in even stronger retaliation against U.S. exports to China. And just a reminder, the TPP does NOT include China.
  1. Trade Deficits. When we buy more imports than sell exports, that’s considered a trade deficit, which is used by candidates as a negative report card on U.S. trade. However, our economy is much more complicated than simple subtraction. Oftentimes, when the U.S. trade deficit is rising, the U.S. unemployment rate is declining and U.S. manufacturing production is growing. Also, the critics conveniently ignore when we do have a surplus, such as the fact that our country sells more manufactured goods overall to our FTA partners than we purchase from them. U.S. manufacturing output and exports have quadrupled over the past quarter century. Trade, boosted by trade agreements, is helping to fuel our economy.

Trade and manufacturing go hand in hand. The United States manufactures more today than we have in our entire history. Trade and trade agreements have opened the door to new global opportunities for manufacturers big and small throughout America, helping to sustain and grow jobs for millions of Americans. Let’s continue to make sure manufacturers and America can continue to grow.

NAM Highlights Key Trade Priorities Ahead of Prime Minister Trudeau’s Visit

By | Shopfloor Policy, Trade | No Comments

This week, newly elected Canadian Prime Minister Justin Trudeau will arrive in Washington for a state visit—a demonstration of the deep ties that connect the United States and Canada—and the first state dinner for a Canadian leader in nearly two decades.

The United States and Canada share a vibrant trade and investment relationship. Canada had long been the largest U.S. trading partner and ranked second last year behind only China. Canada remains the largest U.S. export market for manufactured goods (totalling $246 billion), and Canada is the United States’ third-largest supplier of manufactured goods imports (totalling $208 billion). Cross-border U.S.-Canadian investment remains high, with Canada the largest destination for U.S. foreign direct investment in manufacturing at $107 billion, and Canadian investment in manufacturing in the United States the eighth largest source at $57 billion.

Despite our vast network of commercial ties with Canada, the two countries are facing several priority trade policy and investment issues. As Prime Minister Trudeau and his delegation meet with President Obama and other key U.S. government officials, manufacturers urge them to address these topics as they consider how to further enhance our economic relationship. Read More

Is the Sky Falling Again? TransCanada, Investor-State and the TPP

By | Shopfloor Policy | No Comments

On January 6, 2016, TransCanada Corporation filed two separate lawsuits against the U.S. government’s November 2015 rejection of TransCanada’s plan to build the Keystone XL pipeline to transport crude oil from Canada to the United States:

  • One case was brought in the U.S. District Court for the Southern District of Texas, claiming that the president acted unconstitutionally in unilaterally prohibiting further development of the Keystone XL pipeline, arguing his action was unsupported by any statute and contrary to the expressed wishes of Congress. The claim seeks in principal part to secure a declaration that no presidential approval is needed to construct the Keystone XL pipeline.
  • A second case was noticed and will be brought before international arbitration under the Chapter 11 investor-state dispute settlement (ISDS) procedures of the North American Free Trade Agreement (NAFTA) claiming that the rejection of the Keystone XL pipeline was contrary to the United States’ NAFTA obligations to provide Canadian investment treatment in accordance with international law, to protect against uncompensated expropriation and to ensure non-discriminatory treatment. TransCanada is seeking damages for the NAFTA violations. The claim cannot be formally filed until six months after the November 6 denial of the presidential permit to build the pipeline.

Trade and investment critics have focused on the NAFTA ISDS case as a new “cause célèbre” to once again suggest that the sky is falling and urge the rejection of the recently negotiated Trans-Pacific Partnership (TPP). Once again, they have it completely wrong. Read More

NAFTA’s Boost to Manufacturing – 20 Years in the Making

By | Economy, Trade | No Comments

Expanded manufacturing. Increased exports. Improved competitiveness, integration and partnership. That is the NAFTA story for U.S. manufacturers.

January 1, 2014 marks the 20-year anniversary of the North American Free Trade Agreement’s (NAFTA) implementation and there is strong evidence of the pact’s positive impact on manufacturing in the United States. Since 1993, value-added manufacturing in the United States has expanded from $1.06 trillion to $1.87 trillion in 2012. The increased exports, improved competitiveness and greater industry integration helped contribute to this 76 percent expansion in manufacturing output.

As U.S. manufactured exports more than doubled since 1993, the largest growth market for our manufactured exports has been our two NAFTA partners – Canada and Mexico, which purchase more from the United States than any other country. U.S. manufactured goods to Canada and Mexico more than tripled since 1993, growing some $173 billion through 2012 and accounting for over 18 percent of the total growth in U.S. manufactured exports over that period.

NAFTA Graph 01 01 14NAFTA’s impact on U.S. competitiveness in an increasingly challenging global economy has also been powerful. NAFTA has promoted greater integration, new partnerships and improved connectivity between our economies. U.S. cross-border investment grew five-fold to $453 billion in 2012, while Canadian and Mexican investment into the United States increased nearly six-fold, expanding to $240 billion. Underneath this investment are cross-border supply and production chains that are improving North American competitiveness, innovation and efficiency.  Notably, the Wilson Center estimates that some 40 percent of the content of U.S. imports from Mexico and 25 percent of the content of U.S. imports from Canada represents U.S. value-added manufacturing, meaning that imports from our neighboring countries actually support U.S. manufacturing jobs.

As we all take stock of NAFTA at 20, manufacturers are also looking forward. We are working with government officials in all three countries to expand efforts to reduce regulatory barriers and improve trade flows and cross-border mobility. All three countries are also back at the negotiating table as part of the Trans-Pacific Partnership (TPP) negotiations, which provide an important opportunity to improve the rules that govern trade between our countries.  And finally, manufacturers are working diligently to support Trade Promotion Authority so that new agreements that eliminate barriers and put in place even stronger rules can be completed and help level the playing field for America’s manufacturers.

NAM’s Dempsey Moderates Panel on Trade and Manufacturing

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Today, NAM Vice President for International Economic Affairs Linda Dempsey moderated a panel discussion on NAFTA and North American Manufacturing.

The panel, which was sponsored by the Washington International Trade Association, brought together business and government experts to look back and forward on NAFTA’s economic and business impact on North American manufacturing and economies of Canada, Mexico and the United States.

During the panel, Dempsey emphasized NAFTA was a “groundbreaking agreement” that helped pave the way for new trade liberalization and “sought to usher in a more a more integrated North American manufacturing sector to spur greater trade and investment flows between the three countries and improve the global competitiveness of manufacturers throughout North America.”

Dempsey also stressed the impact NAFTA has had on trade, noting that “U.S. trade with its NAFTA partners has more than tripled since the agreement took effect. It has increased more rapidly than trade with the rest of the world.”

Dempsey was joined by Ken Smith, the current Head of the Trade and NAFTA Office of the Ministry of the Economy of Mexico, Michael McAdoo, the Vice President for Strategy and International Business Development with Bombardier Aerospace, and Carlos Leitao, the Chief Strategist and Chief Economist for Laurentian Bank Securities.


Manufactured Goods FTA Surplus On Track to Double This Year

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The evidence keeps rolling in about the value of having free trade agreements (FTAs) that open up foreign markets to American exports.  The Commerce Department data on FTAs that the International Trade Administration just posted shows that we are on track for a fourth straight year of manufactured goods trade surpluses with our FTA partners.

Moreover, based on their data through October, that surplus has already reached a record $40 billion.  If that rate continues for November and December, the U.S. manufactured goods trade surplus with FTA partners will be $46 billion in 2011 – double the 2010 surplus of $23.4 billion.

The manufactured goods surplus with NAFTA is running at a $12 billion annual rate, and with CAFTA at a $3 billion annual rate. 

The record with FTA partners is in sharp contrast to U.S. manufactured goods trade with countries that do not have FTAs with us.  Based on January-October data, it looks like U.S. manufactured goods trade with non-FTA partners will register a deficit of close to $500 billion in 2011. 

The facts are clear –  we need more FTAs to let our manufactured goods into more foreign markets – and we need them as fast as we can get them.

Frank Vargo is vice president of international economic affairs, National Association of Manufacturers.

Telecommunications Agreement with Mexico Will Help Manufacturers

By | Economy, Regulations, Trade | No Comments

This morning the United States signed an agreement with Mexico that should significantly improve the competitiveness of U.S. telecommunications equipment in the important and growing Mexican market. In 2010, bilateral trade in these products totaled about $25 billion. 

In another demonstration of the value to U.S. manufacturers of the North American Free Trade Agreement (NAFTA), Mexico will no longer require that U.S. products be (redundantly) tested in Mexico to demonstrate they meet Mexican standards/technical requirements. Under the “Mutual Recognition Agreement (MRA) for Conformation Assessment of Telecommunications Equipment,” Mexico will allow recognized American testing facilities and laboratories to test products and  certify that they meet Mexican requirements, and vice versa. 

Not having to ship products to a Mexican facility and pay for testing should reduce costs for U.S. telecommunications equipment manufacturers.  It should be of particular value to smaller manufacturers for whom redundant testing can be a significant cost hurdle.  It should also speed product entry as U.S. equipment can be tested in one facility at the same time to both U.S. and Mexican standards.

The National Association of Manufacturers thanks the U.S. Trade Representative Ron Kirk for getting this agreement done, the first with a Latin American country.  The NAM has long supported Mutual Recognition Agreements as one way among many to reduce the expense and time associated with meeting foreign standards and technical regulations that may have only minor differences with U.S. requirements. We encourage USTR to continue to look for commercially meaningful MRAs with other trade partners to help enhance America’s competitive edge.  Well done!

Stephen Jacobs is senior director of international business policy, National Association of Manufacturers.

Cross-Border Trucking, the Opportunities, the Lawsuits

By | Briefly Legal, General, Trade, Transportation | One Comment

The 30-day comment period ended Friday for the Federal Motor Carrier Safety Administration’s proposed rules to put into effect the long-delayed cross-border Mexican trucking program required under the North American Free Trade Agreement. (Docket: FMCSA-2011-0097).

The Riverside (Calif.) Press-Enterprise offered a thorough report on the issue, albeit with a headline one can argue over, “Cross-border trucking and tariffs — hard to balance.” To exporters of agricultural and manufactured goods, it doesn’t seem that hard at all. The tariffs tilted the scales heavily in a bad direction, and enacting the cross-border trucking program restores the balance.

Much of the effect in California has been on agricultural products, including dates, table grapes, lettuce and other crops grown in eastern Riverside County. Dave Kranz, a spokesman for the California Farm Bureau, said the tariff on table grapes, as high as 45 percent initially, cost growers 70 percent of their Mexican market.

Doug Goudie, director of international trade policy for the National Association of Manufacturers, said adding on that kind of tariff drives away customers and damages American producers. Goudie said he knows of one Mexican firm that is buying potato products grown in Canada, which he said was absurd because the products had to move through the U.S. to get to the destination.

“If you have to add 25 cents to every dollar for everything you’re trying to sell, pretty soon a Chinese or a Canadian product looks a lot better,” Goudie said.

Once the program is place, there will be more economic activity on both sides of the border. Increased opportunity, investment and wealth means trial lawyers will follow with bogus, hyped, shakedown lawsuits. (Where have we seen that before?) The American Association for Justice, the trial lawyer lobby, is setting the stage for litigation with its comments to the FMCSA, described in a news release, “Mexican-Based Trucks Should Carry Adequate Insurance: NAFTA Trucking Provisions Lack Protections for Motorists Injured in Accidents.

The important thing for the U.S. plaintiffs’ lawyers is to get their assertion on record that the insurance requirements are inadequate. Personal injury attorneys can then point to their regulatory submission to broaden the targets of their litigation from Mexican operators/insurers to more deep-pocket U.S. companies.

Manufactured Exports to Free Trade Partners Lead March Growth

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Commerce Department trade data for March 2011 released today show that the U.S. manufactured goods trade surplus with free trade agreement (FTA) partners is in its fourth year, and in fact is growing over 2010. The January-March 2011 manufactured goods surplus with FTA partners was $9.2 billion, compared to $5.6 billion for the year-earlier period.

The global deficit in U.S. manufactured goods trade for the first three months of 2011 was $100.1 billion, considerably larger than the $76.2 billion amount for the same period of 2010. The manufactured goods deficit with non-FTA partners for January-March 2011 was $109.3 billion, compared to $81.8 billion for the same period of 2010.

To conduct this detailed analysis of March trade figures, the National Association of Manufacturers relied on Census Bureau data from the North American Industrial Classification System (NAICS) Categories 31-33, which are comparable to U.S. production and domestic shipments data.

The January-March manufactured goods deficit with China was $67.7 billion, two-thirds of the global total. The comparable figure for 2011 was $56.7 billion. The manufactured goods deficit with the European Union also increased significantly, to $23.3 billion for January-March 2011 compared to $14.7 billion for the year-earlier period.
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