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NAFTA Is Renegotiated and Signed by the United States

Published online by Cambridge University Press:  14 January 2019

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A twenty-four-year-old agreement was reborn on October 1, 2018, when President Trump announced that the North American Free Trade Agreement (NAFTA) had been successfully renegotiated. The deal came after an arduous, year-long negotiation process that almost left Canada behind. As one indicator of its contentiousness, the deal lacks an agreed-upon name, but the United States is referring to it as the United States-Mexico-Canada Agreement (USMCA). It keeps some key NAFTA provisions mostly the same, including with respect to state-to-state dispute resolution, but eliminates, modifies, and adds other provisions. Among the changes: investor-state dispute settlement has been eliminated as between the United States and Canada; rules of origin for automobiles and rules for U.S. dairy products have been modified; and new provisions address labor protections, intellectual property rights, rights for indigenous persons, rules for trade negotiations with non-market countries, and the agreement's termination. The agreement was formally signed by the leaders of all three countries on November 30, 3018. It must be approved through the domestic ratification procedures of the three countries before it enters into force.

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International Economic Law
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American Journal of International Law , Volume 113 , Issue 1 , January 2019 , pp. 150 - 159
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Copyright © 2019 by The American Society of International Law 

A twenty-four-year-old agreement was reborn on October 1, 2018, when President Trump announced that the North American Free Trade Agreement (NAFTA) had been successfully renegotiated. The deal came after an arduous, year-long negotiation process that almost left Canada behind. As one indicator of its contentiousness, the deal lacks an agreed-upon name, but the United States is referring to it as the United States-Mexico-Canada Agreement (USMCA).Footnote 1 It keeps some key NAFTA provisions mostly the same, including with respect to state-to-state dispute resolution, but eliminates, modifies, and adds other provisions. Among the changes: investor-state dispute settlement has been eliminated as between the United States and Canada; rules of origin for automobiles and rules for U.S. dairy products have been modified; and new provisions address labor protections, intellectual property rights, rights for indigenous persons, rules for trade negotiations with non-market countries, and the agreement's termination. The agreement was formally signed by the leaders of all three countries on November 30, 3018. It must be approved through the domestic ratification procedures of the three countries before it enters into force.

Signed in 1992 by Canada, Mexico, and the United States, NAFTA went into effect in 1994 and lifted tariffs on many goods traded between the three countries.Footnote 2 It sought to build “an expanded and secure market for the goods and services produced in” the three countries and to “eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between” these countries.Footnote 3 Twenty-two years later during Trump's presidential campaign, he called NAFTA “the worst trade deal in history” and promised to renegotiate it.Footnote 4

U.S. Trade Representative Robert Lighthizer began formal NAFTA renegotiations on August 16, 2017.Footnote 5 By November of that year, the United States, Canada, and Mexico had gone through five rounds of negotiations for an updated NAFTA, and strong disagreements remained over automobiles and a sunset clause, among others.Footnote 6 The United States wanted to increase the threshold for automobiles that needed to be manufactured in North America in order to qualify for zero tariffs from 62.5 percent to 85 percent, while Mexico and Canada thought these new rules of origin would be problematic.Footnote 7 The United States also demanded a sunset clause which would require that the agreement expire every five years unless all three countries agreed to renew.Footnote 8 During the course of negotiations, Trump threatened “that if [NAFTA] doesn't work out, we'll terminate it,” although his domestic legal authority to take such an act is not fully settled.Footnote 9 Negotiations continued into the spring and summer of 2018.Footnote 10

In June 2018, Trump elaborated on why he thought the original NAFTA deal could not stand and introduced an alternative idea to the trilateral deal:

Well, NAFTA—look, it's been a terrible deal for the United States. People are starting to see it. We lose over a hundred billion dollars a year with Mexico. We lose many, many, many billions of dollars with Canada. Canada doesn't take—I mean, they're very restrictive as to taking our agricultural product and other things.

…

… To be honest with you, I wouldn't see NAFTA—I wouldn't mind seeing NAFTA, where you'd go by a different name, where you make a separate deal with Canada and a separate deal with Mexico, because you're talking about a very different two countries.Footnote 11

Trade tensions continued to rise when Trump decided to impose 25 percent steel tariffs and 10 percent aluminum tariffs on Canada and Mexico, partly for the purpose of pressuring them to agree to U.S. negotiating demands.Footnote 12 Both countries imposed responsive tariffs and emphasized the need for a trilateral deal.Footnote 13 The rift in U.S.-Canadian relations deepened when Trump tweeted after leaving the G7 Conference that Trudeau was “[v]ery dishonest & weak.”Footnote 14

Early August brought in a new U.S. Department of Commerce announcement that it would proceed with tariffs on a Canadian newsprint exporter,Footnote 15 and the United States and Mexico began to make headway in negotiations without Canada.Footnote 16 This progress took place in light of the approaching end to President Enrique Peña Nieto's term on November 30, when he would be replaced by Andrés Manuel López Obrador.Footnote 17 Because U.S. congressional law effectively required Trump to give ninety days’ notice before signing an agreement, any deal that would be signed by Peña Nieto before he left office needed to be announced by the end of August.Footnote 18

After weeks of forward-moving negotiations, Trump announced on August 27 that the United States and Mexico had reached an agreement on key provisions, adding that he wanted to call it the “United States-Mexico Trade Agreement,” due to the “bad connotation” associated with the NAFTA name.Footnote 19 Peña Nieto confirmed on a phone call with the White House that it was Mexico's wish “that now Canada will also be able to be incorporated in all this.”Footnote 20 Trump responded during the call that “Canada will start negotiations shortly … and if they'd like to negotiate fairly, we'll do that.”Footnote 21 The White House claimed after Trump's announcement that “[t]his is the first time that a modern United States trade agreement has been renegotiated.”Footnote 22

On August 31, Trump officially gave notice to Congress of his “intention to enter into a trade agreement with Mexico—and with Canada if it is willing.”Footnote 23 As Mexico and the United States began to work to include Canada in the deal, it became unclear whether they would succeed. As part of its negotiating approach, Canada had earlier set forth four “progressive” goals of strong labor safeguards, provisions for gender equality, provisions for indigenous rights, and provisions for climate change.Footnote 24 The threat of potential U.S. tariffs on automobiles—an issue into which the Department of Commerce had opened an investigation in MayFootnote 25—was reportedly an important piece of negotiating leverage for the Trump administration.Footnote 26

Hurried negotiations commenced. Trump took particular issue with Canada's 300 percent tariffs on dairy products,Footnote 27 while Trudeau stated that a “‘red line’” for Canada was an independent dispute resolution system because Trump is “‘a president that doesn't always follow the rules as they're laid out.’”Footnote 28 Although both leaders publicly asserted that they would be willing to walk away from any deal that did not meet their objectives,Footnote 29 Canada's Minister of Foreign Affairs, Chrystia Freeland, continued to meet with U.S. negotiators and reported that the atmosphere was “constructive and positive.”Footnote 30 Members of Congress remained vocal about their desire for a three-country agreement.Footnote 31

After a fraught negotiating process, Canada, the United States, and Mexico finally agreed to a deal on October 1, allowing the text to be published sixty days before signature at the end of November.Footnote 32 Following the “legal scrub” of the agreement, the final text was signed on November 30 by the leaders of all three countries during a G-20 summit.Footnote 33 The text ultimately contained thirty-four chapters, four separate annexes, and thirteen side-letters.Footnote 34 It made some alterations, deletions, and additions to the original NAFTA, while keeping other terms the same. Some provisions mirrored language from the Trans-Pacific Partnership (TPP), a multilateral trade agreement that the Obama administration had negotiated but which Trump chose to withdraw the United States from rather than seek congressional approval for ratification.Footnote 35 The agreement provisions did not resolve all ongoing trade disputes. Notably, U.S. aluminum and steel tariffs on Canada and Mexico remained in placeFootnote 36 along with Canada's and Mexico's respective retaliatory tariffs.Footnote 37

Regarding a sunset provision, the USMCA settled on a sixteen-year agreement that would be up for review every six years.Footnote 38 At the end of each six-year period,

[E]ach Party shall confirm, in writing, through its head of government, if it wishes to extend the term of this Agreement for another 16-year period. If each Party confirms its desire to extend this Agreement, the term of this Agreement shall be automatically extended for another 16 years and the Commission shall conduct a joint review and consider extension of this Agreement term no later than at the end of the next six-year period.Footnote 39

If a party does not confirm its wish to extend the deal for another sixteen years, then the parties must review the agreement each year for the remainder of the sixteen-year term.Footnote 40 Separate from the termination provision, the agreement also allows for a party to withdraw from the agreement six months after it provides written notice to the other parties, allowing the agreement to remain in place with respect to the other two countries.Footnote 41

Several of Canada's progressive goals were reflected in the negotiated agreement. Regarding indigenous rights, which were not previously addressed in NAFTA, the USMCA reads:

Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, this Agreement does not preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples.Footnote 42

Also going beyond the original NAFTA, the USMCA seeks to eliminate workplace discrimination based on sexual orientation and gender identity:

The Parties recognize the goal of eliminating discrimination in employment and occupation, and support the goal of promoting equality of women in the workplace. Accordingly, each Party shall implement policies that it considers appropriate to protect workers against employment discrimination on the basis of sex (including with regard to sexual harassment), pregnancy, sexual orientation, gender identity, and caregiving responsibilities; provide job-protected leave for birth or adoption of a child and care of family members; and protect against wage discrimination.Footnote 43

A footnote to this provision states that “[t]he United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article.”Footnote 44

The agreement also heeds Canada's request to keep an independent state-to-state dispute resolution process.Footnote 45 As one commentator has pointed out, the provisions for choosing panelists in a dispute remain largely unchanged from NAFTA and are similar to the panelist provisions drafted in the TPP.Footnote 46 Although state-to-state dispute mechanisms are mostly left intact, the new deal eliminates investor-state dispute settlement (ISDS) for Canada.Footnote 47 It maintains ISDS “only between the United States and Mexico for claimants regarding government contracts in the oil, natural gas, power generation, infrastructure, and telecommunications sectors; and maintain[s] U.S.-Mexico ISDS in other sectors provided the claimant exhausts national remedies first.”Footnote 48

With regard to automobiles, the three countries agreed that 75 percent of every automobile must be made in North America in order to qualify for duty-free treatment.Footnote 49 The agreement also provides that up to 40 percent of automobile parts manufactured for vehicles receiving duty-free treatment must come from factories paying workers at least $16 an hour.Footnote 50 Additionally, the new agreement contains a chapter covering intellectual property rights among the three countries, which includes ten years of data protection for biological drugs, and standards against the circumvention of technological protection measures for digital works.Footnote 51

Trump announced that the agreement was “the most important trade deal we've ever made by far,” remarking:

It's my great honor to announce that we have successfully completed negotiations on a brandnew [sic] deal to terminate and replace NAFTA and the NAFTA trade agreements with an incredible new U.S.-Mexico-Canada Agreement, called “USMCA.”

…

I have to, certainly, give my highest regards to Prime Minister of Canada, Justin Trudeau. A lot of stories came out about Justin and I having difficulty together, and we did over the trade deal. But I'll tell you, it's turned out to be a very, very good deal for both; and a very, very good deal for all three. It puts us in a position that we've never been in before.

…

Once approved by Congress, this new deal will be the most modern, up-to-date, and balanced trade agreement in the history of our country, with the most advanced protections for workers ever developed. … Likewise, it will be the most advanced trade deal in the world with ambitious provisions on the digital economy, patents—very important—financial services, and other areas where the United States has a strong competitive advantage. …Footnote 52

For Canada, the agreement did require one big concession: allowing U.S. dairy access up to 3.59 percent of Canada's dairy market; however, this concession is only slightly higher than what the United States and Canada had agreed to under the TPP.Footnote 53 Trudeau responded that dairy producers will be compensated for their losses, but that Canada is “in a much more stable place than it was yesterday.”Footnote 54

Another notable provision in the USMCA that did not appear in NAFTA concerns free trade agreements with a “non-market” country, defined as a country that “on the date of signature of this Agreement, a Party has determined to be a non-market economy for purposes of its trade remedy laws” and as to which “no Party has signed a free trade agreement.”Footnote 55 The USMCA requires that “[a]t least 3 months prior to commencing negotiations, a Party shall inform the other Parties of its intention to commence free trade negotiations with a non-market country.”Footnote 56 The USMCA further requires various information-sharing in the event of such negotiations and explicitly provides that entry into a free trade agreement with a non-market country constitutes grounds for the other parties to terminate the USMCA on six months notice with respect to that party.Footnote 57 This “non-market” country provision is thought to have been written with China in mind.Footnote 58

By the terms of an accompanying protocol, the USMCA will enter into force “on the first day of the third month” after all three countries have notified each other that they have “completed the internal procedures” needed for entry into force.Footnote 59 For the United States, these procedures will require submission of the USMCA to Congress and the subsequent passage of implementing legislation.

Pursuant to the Bipartisan Congressional Trade Priorities and Accountability Act of 2015,Footnote 60 the president must submit the “final legal text” of the agreement and a “draft statement of any administrative action proposed to implement the agreement” to Congress at least thirty days before submitting an implementing bill.Footnote 61 Once the implementing bill is submitted (and in the absence of specified mechanisms for disapproval), it will receive an up-or-down vote in both the House or the Senate within several months.Footnote 62 As of December 11, 2018, President Trump had not yet made the submission to Congress.

Viewing the agreement as a success, Lighthizer outlined three pillars of trade negotiation that he believes the USMCA provides a model for in the future:

The first pillar is fairness. We have negotiated stronger rules of origin for automobiles, which will bring billions of dollars of manufacturing back to America. We have secured greater market access for our farmers and ranchers. We've agreed to unprecedented labor standards that will help level the playing field for our workers. We've also agreed to a first-of-its-kind review and termination provision, which will ensure that the USMCA, unlike NAFTA, will not become unbalanced and out of date.

The second pillar will consist of a host of ambitious provisions on digital trade; intellectual property; services, including financial services, designed to protect our competitive edge.

The third pillar consists of new provisions designed to eliminate unfair trade practices, including strong new disciplines on state-owned enterprises, on currency manipulation, relations with nonmarket economies, and much, much more.Footnote 63

The new USMCA was not the only progress in trade that Trump has recently achieved, and he has stated that he expects to “top it with China or EU or something.”Footnote 64 On September 24, 2018, Trump and President Moon Jae-In of South Korea issued a joint statement announcing that they had reached a negotiated agreement “to improve the United States-[South] Korea Free Trade Agreement,” solidifying an understanding reached the prior spring.Footnote 65 Also in September, Japan agreed to begin negotiating a bilateral trade agreement with the United States, after almost two years of declining to do so.Footnote 66 On October 16, Trump sent notification letters to Congress that he would enter new negotiations with the EU, Japan, and the UK—a process that he began with Canada and Mexico approximately one year before completing the NAFTA renegotiations that resulted in the USMCA.Footnote 67 As for China, following a major wave of tariffs and counter-tariffs, the status of negotiations remained far from clear as 2018 drew towards its close.Footnote 68 In early December, the two countries agreed not to impose further new tariffs during a ninety-day window in which further negotiations would be conducted.Footnote 69

References

1 Daniel Dale, USMCA? CUSMA? What the New NAFTA is Called Depends on Who's Talking, Star (Nov. 30, 2018), at https://www.thestar.com/news/world/2018/11/30/usmca-cusma-what-the-new-nafta-is-called-depends-on-whos-talking.html (noting that Canadian leaders have described it as “the new NAFTA” and that Canada officially calls it the CUSMA, while Mexico terms it the T-MEC).

2 North American Free Trade Agreement, Dec. 17, 1992, 32 ILM 289 [hereinafter NAFTA Text].

3 Id. pmbl., Art. 102(1)(a).

4 Full transcript: Donald Trump's Jobs Plan Speech, Politico (June 28, 2016), at https://www.politico.com/story/2016/06/full-transcript-trump-job-plan-speech-224891.

5 Office of the U.S. Trade Rep. Press Release, USTR Releases Updated NAFTA Negotiating Objectives (Nov. 2017), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/november/ustr-releases-updated-nafta# [https://perma.cc/HBM6-DB3A].

6 Ana Swanson & Elisabeth Malkin, Nafta Round Closes with Talks Bogged Down by Conflict, N.Y. Times (Nov. 21, 2017), at https://nyti.ms/2hPJsxG.

7 Id.

8 Id.

9 Donald J. Trump, Remarks on Signing Proclamations on Imports of Large Residential Washers and Certain Photovoltaic Cells and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. No. 43, at 2 (Jan. 23); see Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 315, 321 n. 48 (noting the debates over Trump's domestic legal authority to terminate NAFTA and over the extent to which such a termination would affect NAFTA’s implementing legislation).

10 In the process, the negotiators overshot a May deadline given by the speaker of the House of Representatives for ensuring that any new deal would be voted on by the then-current Congress. See Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 510, 512–13 (2018)Google Scholar (discussing these timing issues).

11 Donald J. Trump, Remarks Following a Meeting with Vice Chairman of the State Affairs Commission Kim Yong Chol North Korea and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. No. 392, at 6 (June 1). The extent of the U.S. trade deficit or surplus with Canada is more complicated than Trump's statement implied. See, e.g., Flora Carr, President Trump Claims the United States Has a Trade Deficit with Canada. That's Not So Clear, Time (Mar. 15, 2018), at http://time.com/5185673/donald-trump-us-cananda-trade-deficit-surplus (noting in response to a similar earlier statement by Trump that the United States runs a trade surplus with Canada if one discounts goods that are manufactured elsewhere in the world but pass through Canada on their way to the United States).

12 Ana Swanson & Jim Tankersley, Mexico, Hitting Back, Imposes Tariffs on $3 Billion Worth of U.S. Goods, N.Y. Times (June 5, 2018), at https://nyti.ms/2xTW8Lp. For discussion of other countries targeted by these tariffs, ongoing requests for World Trade Organization (WTO) consultations with respect to the tariffs and retaliatory measures, and U.S. domestic legal disputes concerning the tariffs, see Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 751, 754–57 (2018)Google Scholar.

13 Swanson & Tankersley, supra note 12; Can. Dept. of Fin., Countermeasures in Response to Unjustified Tariffs on Canadian Steel and Aluminum Products, at https://www.fin.gc.ca/access/tt-it/cacsap-cmpcaa-1-eng.asp [https://perma.cc/MTZ8-X8K6] (last modified June 29, 2018); Anthony Harrup, Mexico and Canada Are Committed to a Trilateral Deal, Wall St. J. (July 25, 2018), at https://www.wsj.com/articles/mexico-and-canada-are-committed-to-a-trilateral-nafta-deal-1532545283.

14 Donald J. Trump (@realDonaldTrump), Twitter (June 9, 2018, 7:04 PM), at https://twitter.com/realDonaldTrump/status/1005586562959093760 [https://perma.cc/SP3Y-GU3F].

15 U.S. Dep't of Commerce Fact Sheet, Commerce Finds Dumping and Subsidization of Imports of Uncoated Groundwood Paper from Canada (Aug. 2, 2018), available at https://enforcement.trade.gov/download/factsheets/factsheet-canada-uncoated-groundwood-paper-ad-cvd-final-080218.pdf [https://perma.cc/EN4G-33XF]. These tariffs were not ultimately applied. Uncoated Groundwood Paper from Canada, Inv. Nos. 701-TA-584, 731-TA-1382, USITC Pub. 4822 (Sept. 2018) (Final).

16 Ana Swanson, United States and Mexico Are Nearing Nafta Compromise, N.Y. Times (Aug. 3, 2018), at https://nyti.ms/2OagjYq.

17 Id.

18 Id.; see also 19 U.S.C. § 4205(a)(1)(A) (providing as a condition of the fast-track process for legislative approval that the president must notify Congress of his intention to sign a trade agreement ninety calendar days before doing so).

19 Remarks During a Teleconference Call with President Enrique Peña Nieto of Mexico to Discuss the United States-Mexico Trade Agreement and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. No. 548, at 1 (Aug. 27).

20 Id.

21 Id. at 2.

22 White House Fact Sheet, President Donald J. Trump Is Keeping His Promise to Renegotiate NAFTA (Aug. 27, 2018), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-keeping-promise-renegotiate-nafta [https://perma.cc/ZV8D-JGNF]. In this preliminary agreement, Mexico and the United States reportedly agreed that at least 75% of an automobile's value would have to be manufactured in North America in order to qualify for zero tariffs and that 40–45% of the cars had to be made by workers earning $16 an hour. Ana Swanson, Katie Rogers, & Alan Rappeport, Trump Reaches Revised Trade Deal with Mexico, Threatening to Leave Out Canada, N.Y. Times (Aug. 27, 2018), at https://nyti.ms/2oe6sGn. Instead of Trump's five-year sunset clause, the two countries reportedly also agreed to “a review of the trade pact every six years that would extend its lifetime for 16 more years.” Id.

23 Notice of Intention to Enter into a Trade Agreement, 83 Fed. Reg. 45191 (Aug. 31, 2018).

24 Chrystia Freeland, Minister of Foreign Affairs of Can., Address by Foreign Affairs Minister on the Modernization of the North American Free Trade Agreement (NAFTA) (Aug. 14, 2017), at https://www.canada.ca/en/global-affairs/news/2017/08/address_by_foreignaffairsministeronthemodernizationofthenorthame.html.

25 Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 499, 504 (2018)Google Scholar.

26 Jack Ewing, Ana Swanson & Motoko Rich, Specter of Trump's Car Tariffs Forces Allies to Give Ground in Talks, N.Y. Times (Aug. 30, 2018), at https://nyti.ms/2NxhDoz.

27 Remarks Prior to a Meeting with Amir Sabah al-Ahmad al-Jabir al-Sabah of Kuwait and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. No. 574, at 4 (Sept. 5).

28 Alan Rappeport, As Nafta Talks Resume, U.S. and Canada Aren't Budging on Key Priorities, N.Y. Times (Sept. 5, 2018), at https://nyti.ms/2CiMQdQ.

29 Trudeau stated that Canada would “walk away and not sign a deal rather than sign a bad deal for Canadians.” Id. Similarly, Trump tweeted “[t]here is no political necessity to keep Canada in the new NAFTA deal. If we don't make a fair deal for the U.S. after decades of abuse, Canada will be out. Congress should not interfere w/ these negotiations or I will simply terminate NAFTA entirely & we will be far better off… .” Donald J. Trump ), Twitter (Sept. 1, 2018, 11:03 AM):at https://twitter.com/realDonaldTrump/status/1035905988682018816 [https://perma.cc/ZG3M-FUUU].

30 Rappeport, supra note 28.

31 As an example, Rep. Kevin Brady (R-Tex.) stated that “[e]veryone's desire is for this to be a three-country agreement.” David J. Lynch, Damian Paletta & Erica Werner, U.S. All but Certain to Miss Weekend Deadline to Include Canada in Three-Way NAFTA Deal, Wash. Post (Sept. 25, 2018), at https://www.washingtonpost.com/business/economy/us-all-but-certain-to-miss-weekend-deadline-to-include-canada-in-three-way-nafta-deal/2018/09/25/08fc600c-c0d4-11e8-90c9-23f963eea204_story.html?utm_term=.2811af7fab39. Senator Ron Wyden (D-Or.) remarked that “[i]t would be a monumental mistake to do this without Canada.” Alan Rappeport & Jim Tankersley, Congress Uneasy as Trump Moves to Revise Nafta Without Canada, N.Y. Times (Sept. 27, 2018), at https://nyti.ms/2NLKNV5.

32 White House Fact Sheet, President Donald J. Trump Secures a Modern, Rebalanced Trade Agreement with Canada and Mexico (Oct. 1, 2018), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-secures-modern-rebalanced-trade-agreement-canada-mexico [https://perma.cc/CM6U-WB44]; see also 19 U.S.C. § 4205(a)(1)(B) (providing as a condition of the fast-track process for legislative approval that the president must publish the text of the agreement sixty days before signing it).

33 Dan Bilefsky, Trade Pact Is Signed at G-20, but Rift Remains for Trump and Trudeau, N.Y. Times (Nov. 30, 2018), at https://www.nytimes.com/2018/11/30/world/europe/usmca-trump-justin-trudeau.html; see also Franz Christian Ebert & Pedro A. Villarreal, The Renegotiated “NAFTA”: What Is in It for Labor Rights, EJIL: Talk! (Oct. 11, 2018), at https://www.ejiltalk.org/category/international-labour-law (noting after the earlier release of the preliminary text that “extensive legal ‘scrubbing’” lay ahead).

34 Office of the U.S. Trade Rep., United States-Mexico-Canada Agreement Text, at https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/agreement-between [hereinafter USMCA Text]. The draft text reached in October had contained one fewer side letter. See https://perma.cc/4PEB-TTJR (archiving the table of contents for this draft text).

35 See, e.g., Anupam Chander, The Coming North American Digital Trade Zone, CFR (Oct. 9, 2018), at https://www.cfr.org/blog/coming-north-american-digital-trade-zone (noting that “USMCA negotiators used the TPP's electronic commerce chapter as the basis for negotiations” on various issues related to the digital economy).

36 Trump remarked that steel and aluminum tariffs on Canada and Mexico would remain in place “[u]ntil such time as we can do something that would be different—like quotas, perhaps … .” Remarks on the United States-Mexico-Canada Agreement and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. No. 656, at 12-13 (Oct. 1) [hereinafter Remarks on the USMCA].

37 Rebecca Joseph, Steel Tariffs “Staying” Despite New Trade Deal: Trump, Glob. News (Oct. 1, 2018), at https://globalnews.ca/news/4504147/donald-trump-steel-tariffs-usmca.

38 USMCA Text, supra note 34, Art. 34.7.

39 Id. Art. 34.7, para. 3; see also https://perma.cc/7XUV-TT37 (archiving the almost identical draft text). The language here is not entirely clear as to whether the 16-year period that is generated by an agreement to renew at the six-year mark is in addition to the remaining ten years of the agreement or instead a substitute for it. Canada has used the term “rolling 16-year period” to describe this provision. Canada-United States-Mexico Agreement (CUSMA): Review and Ongoing Modernization Provision Summary, at https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/modernization-modernisation.aspx?lang=eng (last modified Nov. 29, 2018).

40 Id. Art. 34.7, para. 4.

41 Id. Art. 34.6. This is almost the same language as the withdrawal provision in NAFTA. See NAFTA Text, supra note 2, Art. 2205.

42 USMCA Text, supra note 34, Art. 32.5; see also https://perma.cc/324H-EMT7 (archiving the quite similar draft text). The agreement also contains provisions concerning protection of non-national migrant workers. Id. Art. 23.8.

43 Id. Art. 23.9; see also https://perma.cc/3CMM-BF2H (archiving the draft text, which used more emphatic language). NAFTA did not provide any chapter for labor provisions, NAFTA Text, supra note 2, but was supplemented with the North American Agreement on Labor Cooperation (NAALC). North American Agreement on Labor Cooperation, Nov. 1, 1993, 32 ILM 1499. The NAALC included a “guiding principle” that the parties should promote the “[e]limination of employment discrimination on such grounds as race, religion, age, sex or other grounds … .” Id. at Annex 1, para. 7. The TPP labor chapter does not provide similar provisions. See Office of the U.S. Trade Rep., TPP Full Text, at ch. 19, at https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text [https://perma.cc/BG7H-J3ZM] [hereinafter TPP Text].

44 USMCA Text, supra note 34, Art. 23.9. This footnote was added during the legal scrub, having been absent from the original draft text. See https://perma.cc/3CMM-BF2H (archiving the draft text).

45 USMCA Text, supra note 34, at ch. 31.

46 Simon Lester, The U.S.-Mexico-Canada (AKA the New NAFTA) Trade Deal: State-State Dispute Settlement, Int'l L. & Econ. Pol'y (Oct. 2, 2018), at https://worldtradelaw.typepad.com/ielpblog/2018/10/the-us-mexico-canada-and-nafta-trade-deal-state-state-dispute-settlement.html; Simon Lester, Panel Appointments and Rosters in the New NAFTA, Int'l L. & Econ. Pol'y (Oct. 26, 2018), at https://worldtradelaw.typepad.com/ielpblog/2018/10/panel-appointment-and-rosters-in-the-new-nafta.html.

47 Ian F. Fergusson & M. Angeles Villarreal, Cong. Research Serv., IF10997, Proposed U.S.-Mexico-Canada (USMCA) Trade Agreement 1 (2018); cf. TPP Text, supra note 43, Art. 9.18–.30 [https://perma.cc/H54L-5NTE] (including some provisions on ISDS). When Trump withdrew from the TPP, the other TPP Parties, including Canada and Mexico, negotiated a new agreement without the United States which incorporated many of the original TPP provisions. Gov. Can., Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), at http://international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/text-texte/index.aspx?lang=eng [https://perma.cc/2S9A-LA69] (last modified Mar. 3, 2018). When the CPTPP enters into force, it will allow for some ISDS between Canada and Mexico, although its terms on ISDS are effectively more limited than were those in the original TPP. Id. Art. 2 & Annex [https://perma.cc/34QY-6LLJ] (providing that certain TPP provisions related to ISDS are suspended “until the Parties agree to end suspension”); see also Can. Gov., Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) – Frequently Asked Questions: What Specific Improvements Did Canada Seek in the CPTPP?, at https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/faq.aspx?lang=eng (last modified Oct. 25, 2018) (“Canada secured important suspensions to limit the scope of investor-state dispute settlement (ISDS) provisions.”).

48 Fergusson & Villarreal, supra note 47; USMCA Text, supra note 34, at ch. 14, Annex 14-D [https://perma.cc/AJP3-P57R].

49 USMCA Text, supra note 34, at ch. 4 (also setting forth a phase-in period and certain further specifications); Remarks on the USMCA, supra note 36, at 3.

50 USMCA Text, supra note 34, at ch. 4, Annex Art. 4-B.7; Jim Tankersley, Trump Just Ripped Up Nafta. Here's What's in the New Deal., N.Y. Times (Oct. 1, 2018), at https://nyti.ms/2OsZvQq.

51 USMCA Text, supra note 34, at ch. 20. For more information about the new intellectual property provisions, see Office of the U.S. Trade Rep. Fact Sheet, United States–Mexico–Canada Trade Fact Sheet: Modernizing NAFTA into a 21st Century Trade Agreement (Oct. 2018), at https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2018/october/united-states%E2%80%93mexico%E2%80%93canada-trade-fa-1 [https://perma.cc/A5ZB-MTMV].

52 Remarks on the USMCA, supra note 36, at 1-2.

53 USMCA Text, supra note 34, at ch. 2; Fergusson & Villarreal, supra note 47 (explaining increase in access to Canadian dairy market); Rod Nickel, Canada Dairy Farmers Content As TPP Deal Keeps System Intact, Reuters (Oct. 5, 2015), at https://www.reuters.com/article/us-trade-tpp-canada-farming-idUSKCN0RZ25E20151005 (noting that the TPP had provided the United States and other TPP countries access to 3.25% of Canada's dairy market).

54 Selena Ross, With New Trade Deal, Canada Avoids a Doomsday Scenario. But Is It a Win?, Wash. Post (Oct. 1, 2018), at https://www.washingtonpost.com/world/the_americas/with-new-trade-deal-canada-avoids-a-doomsday-scenario-but-is-it-a-win/2018/10/01/304d7968-c5a0-11e8-9c0f-2ffaf6d422aa_story.html?utm_term=.24e084d6e264.

55 USMCA Text, supra note 34, Art. 32.10(1). For the earlier draft text of Article 32.10, see https://perma.cc/324H-EMT7 (archiving this draft text).

56 Id. Art. 32.10(2).

57 Id. Art. 32.10(3)–(8).

58 See, e.g., Chad P. Brown, The 5 Surprising Things About the New USMCA Trade Agreement, Wash. Post (Oct. 9, 2018), at https://www.washingtonpost.com/news/monkey-cage/wp/2018/10/09/the-5-surprising-things-about-the-new-usmca-trade-agreement/?noredirect=on&utm_term=.ce0fffd71871 (“Article 32.10 signals the consequences of negotiating a potential free-trade agreement with any nonmarket economies—that is a code word for ‘China’”); David Lawder, Trade Pact Clause Seen Deterring China Trade Deal with Canada, Mexico, Reuters (Oct. 3, 2018), at https://www.reuters.com/article/us-trade-nafta-china/trade-pact-clause-seen-deterring-china-trade-deal-with-canada-mexico-idUSKCN1MC305 (“The clause, which has stirred controversy in Canada, fits in with U.S. President Donald Trump's efforts to isolate China economically and prevent Chinese companies from using Canada or Mexico as a ‘back door’ to ship products tariff-free to the United States.”).

59 Protocol Replacing the North American Free Trade Agreement with the Agreement Between the United States of America, the United Mexican States, and Canada, at https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/USMCA_Protocol.pdf (further providing that entry into force shall have the effect of superseding NAFTA (except as incorporated into the USMCA) and shall trigger the termination of the North American Agreement on Labor Cooperation); see also USMCA Text, supra note 34, Art. 34.5 (cross-referencing the Protocol). The draft text of the USMCA set similar timing rules for the entry into force but did not rely on a separate protocol. See https://perma.cc/7XUV-TT37 (archiving the draft text).

60 Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, 129 Stat. 320 (codified at 19 U.S.C §§ 4201–10).

61 19 U.S.C. § 4205(a)(1)(D)–(E). Prior to submitting the implementing legislation to Congress, the executive branch typically consults with the House Ways and Means Committee and the Senate Finance Committee on the content of this legislation through what is known as the “mock markup” process. Ian F. Fergusson & Christopher M. Davis, Cong. Research Serv., R43491, Trade Promotion Authority (TPA): Frequently Asked Questions 25–26 (Sept. 4, 2018).

62 19 U.S.C. § 2191 (setting out the process, which allows for up to forty-five days for the implementing legislation to be in committee and another fifteen days for the floor vote to occur, with only days that the chamber is in session counting for these timing purposes); see also Fergusson & Davis, supra note 61, at 24–25 (discussing mechanisms for disapproval by which this process can be altered).

63 Remarks on the USMCA, supra note 36, at 8.

64 Donald J. Trump, Remarks on the United States-Mexico-Canada Agreement and an Exchange with Reporters Prior to Departure for Philadelphia, Pennsylvania, 2018 Daily Comp. Pres. Doc. No. 660, at 1 (Oct. 2).

65 White House Press Release, Joint Statement on the United States-Korea Free Trade Agreement (Sept. 24, 2018), at https://www.whitehouse.gov/briefings-statements/joint-statement-united-states-korea-free-trade-agreement [https://perma.cc/K4FB-RRPG]; see also Galbraith, supra note 10, at 510–12 (discussing the preliminary renegotiation reached in the spring of 2018).

66 Motoko Rich, Japan's Embrace of Bilateral Trade Talks with U.S. Spares It from Tariffs, N.Y. Times (Sept. 27, 2018), at https://nyti.ms/2NIAYay (noting Japan's concern that the United States might impose tariffs on imported cars).

67 White House Press Release, Remarks by President Trump in a Cabinet Meeting (Oct. 17, 2018), at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-cabinet-meeting-11 [https://perma.cc/Z768-QVCM].

68 Glenn Thrush, Trump Trade Adviser Warns That There Will Be No Quick Deal with China, N.Y. Times (Nov. 9, 2018), at https://www.nytimes.com/2018/11/09/us/politics/peter-navarro-china-trade.html; see also Galbraith, supra note 12, at 751–53 (describing the wide-ranging tariffs and counter-tariffs imposed by China and the United States in the summer and fall of 2018 and the related WTO requests for consultations).

69 Keith Bradsher & Alan Rappeport, U.S.-China Trade Truce Gives Both Sides Political Breathing Room, N.Y. Times (Dec. 2, 2018), at https://www.nytimes.com/2018/12/02/business/trade-truce-china-us.html.