On May 18, the United States Trade Representative (USTR) gave official 90-day notice to Congress of the Trump administration’s intent to renegotiate NAFTA. The USTR also published a request for interested parties to submit public comments on matters relevant to “NAFTA Modernization” for the development of U.S. negotiating positions.

Although the official notice to Congress did not mention investor-state dispute settlement (ISDS), the USTR is expected to publish more detailed negotiating objectives in mid-July (at least 30 days before August 16, 2017, when the 90-day consultation period ends).

Furthermore, the USTR invitation for public comments included “investment issues” as part of the relevant matters to be addressed. Earlier this year, before any formal step was taken in the NAFTA renegotiation process, information was leaked to the press that the administration’s intention to renegotiate NAFTA included proposed changes to the dispute resolution provisions of the Investment Chapter. Therefore, it remains uncertain whether the renegotiation of NAFTA will have impact on ISDS.

The legal consequences of revising or repealing NAFTA would be significant for investors. In particular, if the United States withdraws from NAFTA, U.S. investors would no longer be able to pursue international arbitration against Mexico and Canada for expropriation of their investments, or for protection against arbitrary and discriminatory measures impacting the value of such investments.

For more details on the potential implications of NAFTA’s termination on ISDS, please see Crowell & Moring’s client alerts: “NAFTA on the Brink” and “NAFTA Termination – What Investors Need to Know”.

For more information, contact: Ian Laird, John Brew, Dan Cannistra, Eduardo Mathison

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Photo of Daniel Cannistra Daniel Cannistra

Dan Cannistra is a partner in the firm’s Washington, D.C. office. His practice focuses on legislative, executive and regulatory representation of domestic and international clients on a broad spectrum of international trade matters. Dan has represented domestic and foreign companies in over 75

Dan Cannistra is a partner in the firm’s Washington, D.C. office. His practice focuses on legislative, executive and regulatory representation of domestic and international clients on a broad spectrum of international trade matters. Dan has represented domestic and foreign companies in over 75 U.S. antidumping and countervailing duty cases before the U.S. Department of Commerce and the U.S. International Trade Commission under the Tariff Act of 1930. Many of these matters involved appeals to the U.S. Court of International Trade, the U.S. Court of Appeals for the Federal Circuit, binational panels under the North American Free Trade Agreement (NAFTA), and dispute settlement proceedings before the World Trade Organization (WTO). Dan has also represented clients in antidumping proceedings in the European Union, Canada, Mexico, Brazil, India, Thailand, Singapore, Guatemala and Taiwan.

Prior to joining Crowell & Moring, Dan was a director in a national accounting firm providing customs and international trade guidance to multinational clients related to the supply and distribution of goods and services across international borders. Areas of specialization included antidumping and countervailing duties and policy, trade remedies and litigation, free trade agreements and negotiations, classification and valuation, and international trade and development.

Dan’s government appointments include service to U.S. Trade Representative on the roster of international trade practitioners to resolve antidumping disputes involving NAFTA members. For the European Commission, Dan provided advice and training on international trade and antidumping methodology and practice. In addition, Dan has served as an international trade consultant to the governments of Guatemala and Singapore, providing technical advice to these governments on the application of international trade regulations consistent with international law and World Trade Organization agreements and the General Agreement on Tariffs and Trade, Agreement on Antidumping.

Photo of John Brew John Brew

John Brew is the co-chair of Crowell & Moring’s International Trade Group and a partner in the firm’s Washington, D.C. office. He has extensive experience in import and export trade regulation, and he regularly advises corporations, trade associations, foreign governments, and non-governmental organizations…

John Brew is the co-chair of Crowell & Moring’s International Trade Group and a partner in the firm’s Washington, D.C. office. He has extensive experience in import and export trade regulation, and he regularly advises corporations, trade associations, foreign governments, and non-governmental organizations on matters involving customs administration, enforcement, compliance, litigation, legislation and policy.

John represents clients in proceedings at the administrative and judicial levels, as well as before Congress and the international bureaucracies that handle customs and trade matters. He advises clients on all substantive import regulatory issues handled by U.S. Customs and Border Protection and Immigration and Customs Enforcement, such as classification, valuation, origin, marking, tariff preference programs, other agency regulations, admissibility, import restrictions, quotas, drawback, audits, prior disclosures, penalties, investigations, Importer Self Assessment and Customs-Trade Partnership Against Terrorism programs, importations under bond, the Jones Act, vessel repairs, and foreign trade zone matters.