While Mexico and Canada are looking to the conservation of TLCAN because of the benefits to the economic growth of both countries, the United States seeks a renegotiation of the trade agreement.
Since the last NAFTA Insights, there have been comments via social
media about the potential for US withdrawal from the Agreement and scrutiny
of dispute resolution mechanisms, labor standards and local content rules.
With Eurasia Group providing the latest developments from Round 2 of the
NAFTA renegotiations, this edition considers whether the US President can
withdraw from NAFTA – and the ‘all bets are off’ scenario that you should
build into your business planning.
So what’s the latest on negotiations?
On 5 September, Mexico, the US and Canada concluded the second round
of NAFTA negotiations in Mexico City. Overall, the negotiations unfolded as
predicted but without significant progress on key issues.
On the positive front, the representatives from the three countries
were able to meet despite US President Donald Trump’s recent threats to
abandon the deal and consternation that an agreement would not be achieved.
This shows the commitment of the negotiating teams to move forward and focus more on the technical discussions.
However, this second round did not result in any substantive progress.
The three countries released a joint statement announcing that they had
compiled the agreements of this second round in one single text that included
new ideas and the consolidation of existing proposals (negotiations in
sectors such as energy, telecommunications and financial services will be run
swiftly), but US negotiators, while pushing to amend the treaty, have not
released specifics on the key changes they want to implement.
This underscores that the parties’ desired timing of the negotiations
remains in jeopardy. If the process slows and the three parties do not start
to show progress in subsequent rounds (the next meeting will be held on 24
September in Canada), the prospect of reaching a deal in the near term could
be threatened by the overlap between the negotiations and the Mexican
Presidential elections next year. It will be very difficult for the Mexican
authorities to negotiate when the elections are in full swing.
These talks also previewed some of the most contentious issues.
Canada, backed by Mexico, continues to reject the elimination of the dispute
resolution mechanisms stipulated in Chapter 19. Also, the US will try to
increase the rules of origin and potentially promote US content in
manufactured products, especially in the automobile sector. Finally, labor
has taken a central spot, with both Canada and the US demanding that Mexico
raise wages and implement stricter enforcement of labor laws and union
So could the US President withdraw from NAFTA?
Much like Brexit Remainers have pondered the legality of reversing
Article 50, the latest tweets suggesting possible US withdrawal from NAFTA have raised the question of whether the US President has the authority to
unilaterally withdraw from the Agreement.
And like Brexit, there is no easy answer. Article 2205 of the
Agreement allows parties to withdraw with 6 months’ notice, but the key question is whether the President could invoke this without the consent or approval of Congress.
The US Constitution conveys authority to both the President and
Congress in matters of foreign affairs. NAFTA was enacted into law by the
NAFTA Implementation Act (NIA), but the NIA is silent on the question of who
has the authority to abrogate the agreement (i.e. there is no explicit
authorization within the NIA for the President to unilaterally invoke the
termination clause without Congressional approval). Unless a US law has a
‘sunset’ date of self-termination, only Congress has the authority to repeal
an existing law.
Should the US President move to unilaterally withdraw without
Congressional approval, the issue may be litigated before the federal courts.
For more detail on the legalities of a potential withdrawal by the US, see
KPMG in the US’ Trump and the NAFTA.
So what could a US withdrawal mean?
Tariffs will likely increase – the question is by how much. The
current preferential NAFTA duty rates will remain in effect for 1 year in the
event of a withdrawal. However, the US President may, by proclamation,
restore the pre-NAFTA duty rates. The president must then, within 60 days
after the withdrawal, provide Congress “recommendations as to the appropriate rates of duty for all articles which were affected by the termination or withdrawal.”
Of course, this could occur even without withdrawal – the US President
may at any time terminate or modify any proclaimed NAFTA preferential tariff
rates as the president determines to be necessary or appropriate (although
depending on the authority invoked, Congress may need to be consulted). In
such a situation, counter tariffs may also be imposed by Canada and Mexico.
Any increase to the NAFTA preferential rates would generally be
limited to the Most Favored Nation (MFN) rate under WTO terms – i.e. tariff
rates could not exceed those on goods from any other WTO member country. The impact will of course vary by goods and sector, and may in fact be limited – most have even been reduced to zero under the WTO.
But these limits could be circumvented under exceptional circumstances. Certain conditions presently exist that may be invoked to trigger said extraordinary measures – for example, current US deficits, other trade imbalances, the general war on terror, or the specific conflicts in Iraq and Afghanistan. These conditions could also potentially permit the US President to raise tariff rates beyond the MFN rates pursuant to the security
exceptions of the WTO Agreement.
It is also unclear whether a US withdrawal from NAFTA gives renewed
effect to the United States-Canada Free Trade Agreement, which was
effectively suspended when NAFTA was implemented.
US customs and compliance provisions could be impacted. Congress could
legislate to preserve certain sections of the NIA, but as it currently
stands, a withdrawal from NAFTA could affect other provisions of the NIA
relating to general customs compliance and enforcement in the US (for
example, the ‘reasonable care’ compliance standard upon US importers). The
repeal of the NIA could potentially have a disruptive impact on importers and
the trade compliance community in the US, even if they are not importing from
Mexico, as well as US government enforcement actions.
Other markets could start looking a lot more attractive. Withdrawal
from NAFTA does not mean loss of access; geography and size of the respective markets (and inertia) will ensure trade flows within North America remain an attractive proposition. But the removal of the preferential treatment under NAFTA may result in the three governments (and business) respectively
focusing their energies on other markets – whether it be the EU (CETA), BRICs
or the ASPAC region (TPP minus the US).
So what should you be planning for?
Here’s a recommended ‘Survival Guide’ for the next 6 months:
Find out how KPMG can help your company face this challenges.