NAFTA Mock Talks, Round 1: Intellectual property and data

Our expert negotiators have three sessions to hammer out a new NAFTA on five major issues. Will looking to the future harm talks in the present?

There is no greater economic issue facing Canada in 2018 than the renegotiation of the North American Free Trade Agreement, the pact that for 24 years defined this country’s economy, along with those of Mexico and the United States.

So, with the sixth round of talks under way—and a near palpable sense of pessimism in the air—Maclean’s set out to answer an essential question: Can three qualified, knowledgeable and reasonable negotiators reach an agreement to save NAFTA? Given their governments’ opening positions—but absent the racket of politics—can a trio of delegates representing their respective countries achieve what the official negotiators have so far failed to?

What would such a deal look like?

Okay, that’s three questions. But they’re vital ones. And to answer them, we’ve enlisted expert volunteers to participate in a shadow NAFTA negotiation that will unfold over the coming weeks, more or less in synch with the real ones. To state the obvious, this is an exercise in broad strokes: our delegates are tasked with tweaking the framework of NAFTA, addressing only the devilish details that stand in the way of that challenge, on five major subjects: auto and rules of origin, supply management and agriculture, conflict resolution (chapters 11 and 19), the sunset clause, and intellectual property and data. At the end of the complex three-round negotiation, they will have one choice: Deal or no deal.

To that end, we asked our representatives to focus on five high-friction areas: the auto sector, agriculture, dairy and supply management, dispute-resolution mechanisms and a proposed “sunset clause” at which point the parties must renew the deal or end it. But they face no restriction. They are free to introduce other issues if they believe it could lead to an agreement. Read all the negotiations on the topics specifically, or the transcript in full, here.

Now, meet our negotiators:

Christopher Sands (United States) is a Senior Research Professor and Director of the Center for Canadian Studies at Johns Hopkins University’s Paul H. Nitze School of Advanced International Studies (SAIS) in Washington, D.C. where he has previously worked for several think tanks, most notably the Center for Strategic and International Studies and the Hudson Institute. He is American, originally from Detroit, Michigan.

Dan Ciuriak (Canada) is a former Deputy Chief Economist at Global Affairs Canada, runs a consulting practice focussed on quantifying trade agreements, and holds fellowships with the C.D. Howe Institute, the Centre for International Governance Innovation, and the Asia Pacific Foundation of Canada.

Hugo Perezcano Diaz (Mexico) is the Deputy Director of International Economic Law with the International Law Research Program (ILRP), at the Centre for International Governance Innovation. Prior to joining CIGI, he was an attorney and international trade consultant in private practice. He worked for the Mexican government’s Secretariat of Economy for nearly 20 years, serving as head of the trade remedy authority, and formerly as general counsel for international trade negotiations. He was actively involved in the NAFTA and the Uruguay Round negotiations.

In this round of negotiations, the delegations only had the time to establish their initial opening positions on a intellectual property and data, a topic that the current NAFTA does not cover, and would be essential for a modern deal.

The issues were mostly existential, which appeared to bode poorly for future discussions: Canada preferred that because of the evolving nature of IP and data issues, the topic should be not included in a new version of NAFTA.

We dealt with this in the TPP. Canada can’t go beyond the TPP, and would not want to see this opened up. If it were opened up, we would want to see less on the table, not more.

However, America felt this was a priority focus for them during the Trans-Pacific Partnership talks, and said that they’d be happy to talk to Canada about something in line with what was on the table during those negotiations. Mexico, too, preferred to put it on the table.

We acknowledge that we went a long way in our TPP discussions. … And we are certainly willing to discuss the topic. We believe that e-commerce is important and should be part of our discussions. But we would like to hear what the proposals are, and we can add to them. With the U.S. having backed away from TPP, I think that it’s now fair game to have a more broad and in-depth discussion about many of the issues that we had agreed to there.

Our next negotiation will take place in mid-to-late February. Keep your eyes out for our negotiators to take a second crack at this and other high-friction issues to see if they can find common ground.

Read the transcript in full, here. Or click below to go to the section topic they negotiated:

Edited by Charlie Gillis, Adrian Lee, Nick Taylor-Vaisey and David Thomas