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USMCA REVIEW: UPCOMING ELECTIONS AND A PATH FORWARD


USMCA FORWARD 2024 | CHAPTER 8

JOSHUA P. MELTZER AND
JOSHUA P. MELTZER SENIOR FELLOW - GLOBAL ECONOMY AND DEVELOPMENT



STEVE VERHEUL
STEVE VERHEUL PRINCIPAL - GT & COMPANY

March 6, 2024


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Editor's note:

This chapter is part of USMCA Forward 2024.

Under the United States-Mexico-Canada Agreement (USMCA) review clause, on July
1, 2026, the U.S., Mexico, and Canada will confirm in writing whether or not to
continue the agreement. If one or more of the three parties decide to take the
step of not renewing the agreement, it will kick off a process that will leave
the future of the USMCA in a state of uncertainty for years to come. That is,
unless the objecting party or parties change their mind. Even though the
six-year review is still more than two years away, the uncertainty provided by
the review clause is already a significant preoccupation for the business
communities in all three countries.

Where did the review clause come from? What is the review clause? What are the
prospects for the review? The following lays out a possible path forward.

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WHY A REVIEW CLAUSE?

The U.S. proposal in the USMCA negotiations for a review clause was unique and
unprecedented. One of the central tenets of free trade agreements is that they
are intended to bring security and predictability to the trading relationship
between the parties, and a provision that provokes ongoing uncertainty about the
continuity of the agreement raised questions and concerns when it was
introduced.

The U.S. has used two main arguments in support of the review clause: 1) the
clause would provide the U.S. with leverage to make ongoing changes to the
agreement and 2) it would force politicians to address difficult decisions
rather than delay confronting them. On the first point, the U.S. Trade
Representative during the Trump Administration, Robert Lighthizer, wrote that
“we wanted a paradigm-changing agreement that would not only address current
trade irritants but prevent the United States from ever again finding itself
saddled with an unbalanced, outdated agreement and with no leverage to change it
other than the costly and disruptive threat of outright withdrawal.”1 Similarly,
Jared Kushner, Trump’s son-in-law and Senior Adviser to the President during the
negotiations, asserted that “…it is imperative that the U.S. retain leverage in
any of our trading relationships to prevent unfair trade practices and market
distortions and correct them when they occur. The sunset provision will give us
just that.”2

Lighthizer and Kushner have also argued that the review clause would be a means
to put pressure on politicians to confront issues in the agreement with Kushner
arguing that it would “force politicians to confront difficult issues and
changing dynamics rather than kick the can down the road.”3

The U.S. proposal for a review clause was widely criticized after it became
public. The business community, various think tanks, news media, and several
Republicans (Paul Ryan, Pat Toomey, Bill Cassidy, and others) were strongly
critical of the review clause and the negative impact they felt it would have on
business confidence.

Trade agreements historically have always been intended to last indefinitely,
although parties are usually free to withdraw unilaterally without penalty or
restrictions if desired. The original North American Free Trade Agreement
(NAFTA) included a withdrawal provision (Article 2205) that followed the
standard model that allows a party to withdraw from the agreement six months
after providing written notice to the other parties. This provision has been
replicated in the USMCA (Article 34.6) in essentially the same terms.

Both the original NAFTA (Article 2202) and the USMCA (Article 34.4) also contain
similar provisions for amending the agreement. It has long been considered that
provisions allowing parties to amend the agreement without restriction and
enabling parties to withdraw from the agreement provided sufficient flexibility
to allow for agreements to evolve over time or be terminated if it was no longer
in the parties’ interest to continue it.

The original U.S. proposal for a review clause was that the USMCA would have a
fixed term and would terminate after four years. Canada and Mexico rejected the
initial proposal outright, arguing that an agreement intended to last only four
years with no assurance of an agreement beyond that was of little value and
offered the private sector no confidence for future planning, growth, or
investment. The review clause became one of the most contentious issues in the
negotiations, and the U.S. came back with several modifications, eventually
settling on the review clause in its current form. Canada and Mexico continued
to dislike the review clause, but eventually conceded to it as part of the
overall package to conclude an agreement.


WHAT IS THE REVIEW CLAUSE?

The USMCA review clause in article 34.7 contains only limited direction. In
summary, USMCA will terminate 16 years after the date of its entry into force
(i.e., by 1 July 2036), unless each party confirms that it wishes to continue
the agreement for a new 16-year term. The parties are to confirm their ongoing
support for USMCA at a “joint review” by the Free Trade Commission (the
Commission) which comprises Minister-level government representatives from each
party. The first joint review is to take place on the sixth anniversary of entry
into force of USMCA—which will be on July 1, 2026. At the joint review, the
Commission will review the operation of USMCA. The Commission can also “review
any recommendations for action submitted by a Party, and decide on any
appropriate actions. Each Party may provide recommendations for the Commission
at least one month before the Commission’s joint review meeting takes place.”4
Should the parties confirm in writing that they want to continue with the USMCA,
then the agreement will be extended for another 16 years. If the parties do not
extend the agreement at the first joint review in 2026, then the Commission is
to conduct a joint review each year for the remainder of the term of the
agreement (i.e., until 2036). During these subsequent joint reviews, the parties
can confirm in writing their wish to extend the agreement for another 16 years.
Failure to extend the agreement during the first or subsequent joint reviews
will lead to USMCA termination on July 1, 2036.

From a process perspective, the issue of the review clause is an ongoing topic
of discussion in the regular meetings of the Commission in the lead up to the
review. In the U.S., under the USMCA implementing legislation provisions on the
Sunset Clause, the U.S. administration will be obliged to: consult appropriate
congressional committees and stakeholders; provide its recommendations for
actions to be taken at the review; and advise the committees of the position of
the U.S. with respect to extending the term of the USMCA. The U.S. will need to
report to the Congress on these issues at least 180 days before the joint
review.


POLITICS MATTERS

Adding uncertainty in the lead up to the six-year review, there will be national
elections held in Canada, Mexico, and the United States prior to the review.

In Canada, the minority government Liberal Party and one of the opposition
parties, the New Democratic Party (NDP), reached a confidence and supply
agreement on March 21, 2022. This would have the NDP support the Liberal Party
on confidence and budgetary matters until 2025, provided that an agreed list of
issues are addressed.5 That agreement continues to hold, although an election
could be held at any time.

All parties supported the passage of the USMCA implementation bill in Canada,
and the agreement was widely supported by the business community, key labor
organizations, and the majority of Canadians. Whether Canada is led by the
Liberal Party or the Conservative Party (currently leading in the polls), there
is little doubt that Canada will continue to support the continuation of the
agreement. The Canadian government has made few public comments on the review to
date, but the business community has highlighted the importance of a successful
review. The Business Council of Canada has stated that: “[f]irst and foremost,
our number one priority must be the renewal of the Canada-U.S.-Mexico Agreement
(CUSMA) when it comes up for review in 2026.”6

Mexico will hold a national election on June 2, 2024. Former Mexico City Head of
Government Claudia Sheinbaum leads Morena, the ruling party of President Andrés
Manuel López Obrador, and the Juntos Hacemos Historia coalition. Xóchitl Gálvez
is the leader of the main opposition alliance of the National Action Party
(PAN), the Institutional Revolutionary Party (PRI), and the Party of the
Democratic Revolution (PRD). In January of this year, Jorge Álvarez Máynez
joined the presidential race from the Movimiento Ciudadano (MC) party.

Sheinbaum would be expected to continue the approach of President López Obrador
while Gálvez would be expected to take a stronger position in support of the
USMCA. Under any scenario, the reliance of Mexico on the U.S. market is expected
to lead Mexico to support the continuation of the agreement, although the list
of contentious issues is likely to be longer under a Sheinbaum administration
than one led by Gálvez.

The U.S. election on November 5, 2024 is expected to be a rematch between
current President Joe Biden and former President Donald Trump. The Biden
administration has said little about the review so far, but the U.S. Ambassador
to Canada, David Cohen, stated in an interview on December 12, 2023, that “the
U.S. is beginning to have our internal discussions about what we might like to
talk about with Mexico and Canada as the sunset approaches.”7 According to the
article, Cohen said “nobody is talking now about blowing up the deal.” Still,
President Biden is expected to face pressure in the election to take positions
against some USMCA issues, including Mexico on labor, energy, and agriculture
issues, and possibly Canada on dairy, digital tax, and other issues.

Should former President Trump prevail, he will likely suggest that President
Biden was not tough enough with Mexico and Canada and threaten to terminate the
agreement if U.S. concerns are not addressed. It seems unlikely that a Trump
administration—that pushed so hard for a review clause, and with the leverage
the U.S. has as the much larger economy among the three parties—would pass up
the opportunity to use the review clause to negotiate better terms.

The U.S. Congress is likely to express some views about the review as the date
approaches, and the outcome of the elections in the House and in the Senate
could have some influence on how much pressure they put on the administration
over the review. Given that there is no formal approval role for Congress in the
review process, however, the administration will make the final call. However,
if amendments are made to the agreement as a result of discussions under the
review, Congress would need to support those changes, so the role of Congress
will continue to be important.

Whether the outcome of the 2024 election is a Democratic or Republican
administration, it is likely that the U.S. will approach the review of the
agreement with a list of issues on which it would be seeking agreement with
Mexico and Canada. Overall, all three parties are beginning to prepare for a
discussion in the lead up to the review, with the U.S. expected to be on
offense, and Mexico and Canada mainly focused on trying to defend against any
significant re-balancing of concessions.


POTENTIAL ISSUES AND OUTCOMES

The joint review is a novel feature and has not been included in another trade
agreement, as far as we are aware. As outlined, the U.S. wanted the joint review
clause to push for changes to keep USMCA up to date while avoiding invoking the
termination clause to motivate action. USMCA only somewhat achieves this as
failure to agree to renew the agreement in 2026 still leaves 10 more years to
reach agreement before USMCA terminates. In other words, the potential for
termination remains but is pushed out to 2036.

Yet, a joint review is not needed for either party to pull out of USMCA or to
propose changes to it. These are rights already recognized in the agreement. The
question then is how to make the joint review a value-add process?

> By increasing the odds that USMCA might terminate in 2036, investors would
> face greater risks and costs associated with cross-border trade and with
> making longer-term investments that will be needed in areas such as electrical
> vehicles (EVs), batteries, and semiconductors.

Keeping USMCA updated should be a goal that all parties can get behind. The
USMCA provides only limited guidance, however, on how to do this. A starting
point should be for all parties to approach the joint review as part of a
longer-term investment in the ongoing health of North American economic
relations by updating the agreement to keep it relevant. Failure to renew USMCA
in 2026 would inject uncertainty into the future of USMCA, negatively affect
trade and investment across North America, and signal a lack of commitment to
the agreement. By increasing the odds that USMCA might terminate in 2036,
investors would face greater risks and costs associated with cross-border trade
and with making longer-term investments that will be needed in areas such as
electrical vehicles (EVs), batteries, and semiconductors. The parties can avoid
these costs and still turn the joint review into a productive process by
agreeing to renew the USMCA in 2026 and at the same time, agree on a work
program for addressing new issues in the USMCA and reporting back to the
Commission. Immediate agreement to renew USMCA would signal ongoing commitment
by each government to USMCA, while avoiding the uncertainty and economic costs
that would follow from a failure to renew the agreement. However, the right of
each party to leave under the agreement’s termination clause would remain as a
spur.

To ensure that a joint review process remains focused on addressing new issues
in USMCA, the parties should reach an agreement on the types of issues that
should be part of a joint review. This could include improving operations at the
border, strengthening supply chains, and/or facilitating trade in clean energy.
There may be scope to address some of these issues by July 2026, whereas other
issues may require longer-term attention and work.

Finally, the parties should also agree on the issues that should not be part of
a joint review. Revising dispute settlement decisions by USMCA panelists that
the losing party does not like would be a dangerous path to go down. For
example, former U.S. Trade Representative Lighthizer in a November 2023 article
addressed the USMCA panel finding on auto rules of origins (ROOs) that went
against the U.S. and argued that “ Washington should announce immediately that
it will demand a reversal of this decision during the sunset review.”8 We think
this is wrong. Trying to change the outcomes of panel findings is at odds with
the notion of a joint review as being about addressing new issues in USMCA, and
instead would constitute a rebalancing of commitments and undermine what was
agreed to in good faith by all three parties in the negotiations. Perhaps even
more importantly, in addition to undermining faith in the dispute settlement
process, trying to change dispute settlement outcomes at a joint review will
make future implementation of adverse USMCA panel decisions by any USMCA party
increasingly unlikely. This is because of the domestic pressures this will
create on the losing government to renegotiate such panel decisions at a joint
review. In other words, the U.S., by seeking a different outcome in the ROOs
panel decision, would make it a lot less likely that Mexico would comply with an
adverse ruling in the Biotech corn case that the U.S. has brought. More broadly,
such an approach would undermine the certainty and value of USMCA commitments by
politicizing dispute settlement outcomes and turning them into opportunities to
renegotiate the deal.


CONCLUSION

Whatever the outcome of the U.S. election this year, the next U.S.
administration is most likely going to seek changes to the USMCA as part of a
joint review. In contrast, Canada and Mexico would prefer to retain the status
quo and remove the threat of USMCA terminating in 2036 by having all governments
agree to renew USMCA for another term. We have proposed a third way that builds
on U.S. negotiators’ intentions with respect to the review clause by proposing
that the joint review be the beginning of a process to address new issues in
USMCA with an agreed agenda on a forward-looking workplan, a process that should
be ongoing and subject to political oversight by reporting back to the
Commission. We do, however, agree that as part of this, all parties should renew
USMCA for another term in 2026. As we have outlined, renewing USMCA in 2026
would not prevent the U.S. or any government from threatening to withdraw from
the agreement. From this perspective, our approach to the joint review aims to
set up the process that will be needed to review USMCA. At the same time, our
proposal avoids creating unnecessary—and what we believe are avoidable—costs and
uncertainties for all countries. It will also prevent uncertainties for the
economic prospects for the North American market and at the same help finalize
ambitious outcomes.



Authors

Joshua P. Meltzer Senior Fellow - Global Economy and Development @JoshuaPMeltzer



Steve Verheul Principal - GT & Company


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