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Kathleen Claussen
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Thanks, Ted! (And hoping this post works since I couldn't get the site to reply to your comment - fingers crossed!) In further discussions yesterday afternoon about the remedies issues, we came to the same sticking point re non-traded goods and services. But given the expansive phrasing in Article 31-A.10(2)-(4) ("may include"), what is to stop the complaining Party from taking any number of actions including against the responding Party and not the facility? In a circumstance where the goods do not cross the border, I would think that that expansive language could be read to encompass anything so long as it is "proportional" (and if the responding Party thinks it is not then I guess it can file under Chapter 31...). Those goods and services don't have the suspended liquidation threat that you and I discuss (and I think we came to the tentative conclusion yesterday that CBP has the requisite information, but others can correct if that's not right), though, and that seems like it could be a reasonably powerful tool that would be lacking vis-a-vis this group of facilities. Neither of us has discussed the catch-22 of leaving this in government hands. On the one hand, that seems a red line for certain constituencies that would surely oppose any deal with a private right of action. On the other, the politics and burden of going through this exercise may mean it doesn't see much use at all. On TPA, I understand decisions are still TBD. But curious for others' thoughts on the relevance and impact, if any, of TPA Section 103(b)(1)(c) ("Substantial modifications ...") - doesn't the Protocol qualify? We entered into USMCA in the appropriate timeframe (to be sure, Section 106 distinguishes between "entered into" and "entry into force") and then this is a substantial change/additional provision. Still seems unclear where that leaves us in any event.
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Dec 12, 2019