NAFTA and Free Trade Agreements

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Providing cross-border legal advice and consultancy assistance in respect of NAFTA and free trade agreements (and environmental and labour side agreements) is one of LexSage’s core competencies.  Cyndee Todgham Cherniak was selected by the Asian Development Bank as the only Canadian legal counsel to prepare a comprehensive report on free trade agreements and economic integration.  Cyndee has advised companies and sovereign governments in connection with free trade agreement negotiations.

Canada has entered into a number of free trade agreements (including, the Canada-U.S. Free Trade Agreement, the North American Free Trade Agreement (“NAFTA”), the Canada-Chile Free Trade Agreement, the Canada-Israel Free Trade Agreement, the Canada-European Free Trade Association (EFTA) Free Trade Agreement, the Canada-Costa Rica Free Trade Agreement, the Canada-Peru Free Trade Agreement, the Canada-Colombia Free Trade Agreement, the Canada-Jordan Free Trade Agreement, the Canada-Panama Free Trade Agreement and the Canada-Honduras Free Trade Agreement). Canada is currently negotiating and considering a number of free trade agreements, such as the Canada-European Union CETA, the Trans-Pacific Partnership Agreement, the Canada-Ukraine Free Trade Agreement, and the Canada-India Comprehensive Economic Partnership Agreement, the Canada-Japan Economic Partnership Agreement, etc.

Free Trade Agreements = opportunities for businesses to expand into new markets or increase their success in international markets.  LexSage is here to help you identify the opportunities and remove barriers to success.  LexSage provides advice to domestic and multinational corporations about maximizing opportunities by taking advantage of the benefits under existing FTAs; analyzing market access obstacles or restrictions in foreign jurisdiction; government consultations to remove or minimize such obstacles in FTA negotiations; FTA compliance; FTA due diligence;  and drafting agreements to take advantage of FTA benefits.  LexSage has a wide-range of experience in counselling businesses and sovereign governments on trade agreement negotiation and trade policy.  We advise companies on NAFTA Chapter 11 investor rights and investor-to-state dispute settlement proceedings.

Cyndee Todgham Cherniak's expertise reviewing regional trading arrangements enables her to act as an arbitrator and provide advice to corporations and governments concerning negotiation matters and post-agreement compliance, interpretation and dispute settlement.

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Hot Topics Related to NAFTA

North American Perimeter Security Agreement

Canada and the United States have “expanded” NAFTA border commitments in the North America Perimeter Security Agreement.  The new security/perimeter initiatives, including harmonization of certain regulatory regimes in Canada and the U.S. is of increasing importance in Canada-U.S. cross-border trade. LexSage is well positioned with Canada-US S.A.G.E to provide cutting edge advice in this area.

Buy American

Canadian businesses have faced restrictions selling to U.S. government departments and agencies, state governments and local governments as a result of “Buy America” laws, regulations, rules, policies and guidelines.  The Canada-U.S. Agreement on Government Procurement did not open all trade gates to Canadian companies. 

LexSage has experience in advising Canadian companies on U.S. restrictions and on resolving disputes concerning the application of the restrictions.  We have assisted many Canadian companies operate within the U.S. rules to successfully win bids or subcontracting opportunities.

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NAFTA Verifications and FTA Origin Verifications

Importers of goods rely on certificates of origin in order to claim beneficial tariff treatment afforded to “originating goods” under NAFTA and other free trade agreements.  Governments have the right under NAFTA and free trade agreements to verify the certificates of origin provided by exporters.  Exporters and importers alike do not relish a visit from a border officer. 

The ramifications of the verification can be costly if documentation is not in order.  LexSage has assisted Canadian, American and Mexican companies respond to many NAFTA verification requests.  We are here to help.

  • NAFTA Verifications:  Trust But Verify (September 3, 2011, Canada-US Blog)
  • Canada-EFTA FTA Verifications Are Different Than NAFTA (June 4, 2011, Trade Lawyers Blog)
  • Common NAFTA Certificate of Origin Mistakes (April 17, 2010, Trade Lawyers Blog)
  • Canada Exporters Should Be Mindful of USCBP NAFTA Compliance Initiatives (March 18, 2010, Trade Lawyers Blog)
  • What To Do When U.S. Customs Wants to Conduct a NAFTA Verification (March 14, 2010, Trade Lawyers Blog)
  • Verification Under NAFTA Article 506 Are All the Rage (March 10, 2010, Trade Lawyers  Blog)
  • See also www.NAFTAverifications.com

How can we help you?

  • Are you a Canadian company who is operating in international markets or would like to expand into international markets and would like to identify trade opportunities?
  • Are you a Canadian company and require assistance in developing a strategy for free trade agreement negotiations conducted by the Government of Canada?
  • Would you like to participate in consultations initiated by the Government of Canada concerning free trade agreement negotiations?
  • Are you a government requiring guidance about free trade agreement negotiations?
  • Are you a foreign company and want to understand a Canadian law that you believe is a non-tariff barrier or a technical barrier to trade?
  • Are you a foreign company and want to understand Canada’s domestic laws that implement a free trade agreement benefit or obligation?
  • Would you like to know how a particular trade issue is addressed in free trade agreements?
  • Would you like to understand the dispute settlement provisions under a free trade agreement?
  • Has the Government of Canada acted in a manner that affects an investment in Canada and do you wish to analyze NAFTA Chapter 11 rights and dispute settlement options?
  • Would you like to consult with the Canadian government about a potential NAFTA Chapter 20 dispute?
  • Are you interested in knowing the similarities and/or differences between NAFTA and another free trade agreement?
  • Are you concerned that the Government of Canada is not complying with an Environmental Side Agreement and would like to file a request for consultation?
  • Are you concerned that the Government of Canada is not complying with a Labour Side Agreement and would like to file a request for consultations?
  • Would you like to understand Canadian laws implementing a free trade agreement provision?
  • Have you been contacted by the Canada Border Services Agency or a foreign government concerning a NAFTA verification or rules of origin verification?
  • Would you like to request an advance ruling?
  • Would you like to obtain pre-clearance of a rule of origin issue?
  • Do you need assistance to ensure your NAFTA Certificate of Origin paperwork is in order?
  • Do you require the assistance of an observer to your FTA verification?
  • Do you require strategic advice concerning North American security perimeter issues or the harmonization of regulations?
  • Are you a Canadian contractor or subcontractor facing “Buy America” obstacles?
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Additional Information About LexSage

Cyndee Todgham Cherniak has reviewed over 100 RTAs as a consultant to the Asian Development Bank, has written an extensive report on all aspects of RTAs and has conducted workshops for developing countries on the negotiation of free trade agreements. Cyndee is a sessional law professor at the University of Windsor School of Law where she teaches a course on Canadian / US Trade Issues. She was adjunct professor at Case Western Reserve University School of Law for 5 semesters and taught a course on NAFTA and bilateral trading arrangements.  Cyndee was invited by the House of Commons, International Trade Committee to participate as a witness on the Canada-EFTA Free Trade Agreement (March 11, 2008).

Cyndee Todgham Cherniak is the Chair of the Canadian Bar Association, National Sales Tax, Customs and Trade Section.  Cyndee is also a chair of the American Bar Association, Section of International Law Customs Committee and is Vice-Chair of the International Trade Committee.  In 2011, Cyndee was a sessional law professor at the University of Windsor, School of Law and taught a course on Canada-US trade issues.  Between 2005 and 2011, Cyndee was adjunct law professor at Case Western Reserve School of Law and taught a course on NAFTA.  Cyndee is a director of the Canada-China Business Council.  Between 2003 – 2012, Cyndee was an advisory board member of the Canada-United States Law Institute.

Cyndee Todgham Cherniak is recognized as a leading lawyer in the area of customs and trade laws, including: 

  • The International Who’s Who of Trade and Customs Lawyers (2010, 2011, 2012)
  • The International Who’s Who of Business Lawyers: Canada (2011, 2012)
  • The Legal Media Group Guide to the World’s Leading International Trade Lawyers (2007 – present)
  • The Legal Media Group Guide to the World’s Leading Women Lawyers in Business (2010-2011, 2012-2013)
  • The Legal Media Group Guide to the World’s Leading China Lawyers – International Trade Lawyers (2011/2012)
  • Chamber’s Global:  The World’s Leading Lawyers for Business (2006 – present)
  • Canadian Legal Lexpert® Directory (2004-2007).

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