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. Thales DIS Canada Inc. v. Ontario

In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court comments on the use of trade tribunals decisions as 'conventions' for international trade law interpretation:
[50] As a preliminary matter, the Director noted in paragraph 24 that the parties “do not differ substantially in their substantive review of the international trade law applicable to the analysis of the safety exception under CETA.” This is understood to mean that both parties accepted that the approach in, among other cases, the Brazil Decision is applicable. While this case, and the other cases referred to herein which follow the same approach, are not technically binding on this Court, the approach in the Brazil Decision appropriately collects and addresses the issues that are relevant to a determination of whether a trade restriction is “necessary” for the purposes of the public safety exception. In addition, as discussed below, insofar as the approach in these cases is applied in respect of similar provisions in trade treaties generally, the principles articulated in these decisions should be regarded as conventions which constitute constraints on administrative decision-makers: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 114. Accordingly, I have applied this approach in the analysis of the reasonableness of the Decision.
. Thales DIS Canada Inc. v. Ontario

In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court sets out some basics of the CETA and CFTA international trade treaties:
The Canada-European Union Comprehensive Economic and Trade Agreement

[18] Canada and the European Union (“EU”) entered into the CETA in September 2017 with the objective of eliminating trade barriers between them. The CETA is based on principles of reciprocity and fairness between the parties and covers virtually all sectors of trade between Canada and the EU.

[19] Chapter 19 of the CETA deals specifically with government procurement and includes central, sub-central, municipal government entities and government enterprises. The general principles are non-discrimination, transparency and impartiality. Article 19.4 – General Principles states as follows:
Article 19.4 – General Principles


1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering such goods or services, treatment no less favourable than the treatment the Party, including its procuring entities, accords to its own goods, services and suppliers….

2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:

a. treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or

b. discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.


[Emphasis added.]
[20] Article 19.3 of the CETA creates an exception to Article 19.4 for the protection of essential security interests:
Article 19.3 – Security and general exceptions

1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or from not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement:

a. of arms, ammunition or war material;

b. or to procurement indispensable for national security; or

c. for national defence purposes.

2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent a Party from imposing or enforcing measures:

a. necessary to protect public morals, order or safety;

b. necessary to protect human, animal or plant life or health;

c. necessary to protect intellectual property; or

d. relating to goods or services of persons with disabilities, of philanthropic institutions or of prison labour.

[Emphasis added.]
[21] Article 19.9 of the CETA contains requirements pertaining to technical specifications and tender documentation, which are not to have the effect of creating unnecessary obstacles to international trade. Article 19.9(7) requires that a procuring party “make available to suppliers tender documentation that includes all information necessary” to permit suppliers to prepare and submit responsive tenders.

[22] Article 19.17(1), the dispute resolution provision, requires that each party provide “a timely, effective, transparent and non-discriminatory administrative or judicial review procedure” through which a supplier may challenge a breach of Chapter 19 or a failure to comply with a party’s measures implementing the Chapter. Articles 19.17(4) – (6) set out dispute resolution and procedural protection requirements.

The Canadian Free Trade Agreement

[23] The CFTA is an intergovernmental trade agreement among the Canadian provinces which came into force in July 2017. The objective of the CFTA is to reduce and eliminate barriers to the free movement of persons, goods, services, and investments within Canada. The CFTA safeguards open, transparent and non-discriminatory access to government procurement by each party’s procuring entities.

[24] Under Article 502, each party is required to accord to the goods and services of any other party, and the suppliers of goods and services of any other party, treatment no less favourable than the best treatment the party accords to its own goods and services.

[25] The CFTA also has provisions regarding technical specifications and documentation (Article 509) and administrative or judicial review procedures (Article 518).
. United Mexican States v. Burr

In United Mexican States v. Burr (Ont CA, 2021) the Court of Appeal considered a rare NAFTA (North American Free Trade Agreement) case [the case is brief, but interesting reading]:
[2] The North American Free Trade Agreement gives investors the right to seek damages for the failure of a party (Canada, Mexico, or the United States of America) to honour a treaty commitment. The moving parties are thirty-nine USA nationals who brought claims individually and on behalf of seven Mexican companies totalling some USD$100 million to compensate for losses allegedly caused by Mexico’s closure of the casinos they had been operating in that country.
. Angang Steel Company Limited v. Canada (Border Services Agency)

In Angang Steel Company Limited v. Canada (Border Services Agency) (Fed CA, 2020) the Federal Court of Appeal considered a statutory judicial review directly to itself under s.96.1 of the Special Import Measures Act. The court summarized the role of this statute as follows:
[4] SIMA is the statute that provides for the imposition of anti-dumping and countervailing duties when goods are dumped into Canada. Goods imported into Canada are "“dumped”" (as defined in subsection 2(1) of SIMA) when the normal value of the goods exceeds the export price of such goods. The margin of dumping is defined in subsection 2(1) of SIMA as the difference between these two amounts. The normal value is determined in accordance with the provisions of sections 15 to 23.1 and 30 of SIMA and the export price is determined in accordance with the provisions of sections 24 to 28 and 30 of SIMA. If the normal value or export price cannot be determined in accordance with these provisions, then such amount is determined in the manner specified by the Minister of Public Safety and Emergency Preparedness (Minister) (section 29 of SIMA).

[5] An investigation with respect to the possible dumping of goods is initiated under subsection 31(1) of SIMA by the President, either on the President’s own initiative or following a complaint that satisfies the requirements of subsection 31(2) of SIMA. In general, there are two stages of a dumping investigation – preliminary and final – with a separation of responsibilities at each stage. If an investigation has not been terminated under section 35 of SIMA, the President is responsible for the preliminary determination of the estimated margin of dumping for each exporter and the goods to which these apply (section 38 of SIMA). Within 90 days following the preliminary determination of dumping, the President must either:
(a) terminate the investigation if the President is satisfied that there is no dumping or the margin of dumping is insignificant (paragraph 41(1)(a) of SIMA); or

(b) if the investigation is not terminated, make a final determination that goods have been dumped and specify for each exporter the margin of dumping and the goods to which the determination applies (paragraph 41(1)(b) of SIMA).
[6] "“Insignificant”" is defined in subsection 2(1) of SIMA. This definition, in relation to a margin of dumping, reads:
"insignificant means, "

"minimale S’entend : "

"(a) in relation to a margin of dumping, a margin of dumping that is less than two per cent of the export price of the goods,… "

"a) dans le cas de la marge de dumping, d’une marge inférieure à deux pour cent du prix à l’exportation des marchandises; "
[7] The Canadian International Trade Tribunal (CITT) is responsible for making an inquiry and a preliminary determination of whether the dumping has caused injury or is threatening to cause injury (sections 37.1 and 42 of SIMA). The CITT is also tasked with making any applicable order or finding as provided in section 43 of SIMA following a final determination made by the President. Anti-dumping duties are imposed under sections 3 to 5 of SIMA as a result of an order or finding made by the CITT. The final determination made by the President, in and of itself, does not result in the imposition of anti-dumping duties.

[8] Section 30.2 of SIMA provides that the margin of dumping in relation to any goods of a particular exporter is the amount determined by subtracting the weighted average export price of the goods from the weighted average normal value of the goods. If this result is a negative number, the margin of dumping is zero. If it is impractical to determine the margin of dumping for all goods under consideration, the margin may be determined based on a sample as provided in section 30.3 of SIMA.

[9] SIMA sets out strict time limits within which the amounts must be determined by the President. Under subsection 38(1) of SIMA, the President must make a preliminary determination of dumping between the sixtieth and the ninetieth day after the initiation of an investigation under section 31 of SIMA (unless the President extends the time by 45 days as provided in subsection 39(1) of SIMA for the reasons as set out in that subsection). Within 90 days of making the preliminary determination of dumping under subsection 38(1) of SIMA, the President must make the final determination of dumping under section 41 of SIMA.

[10] The normal value of goods is to be determined based on the price of like goods that are sold to the persons and in the circumstances as set out in section 15 of SIMA. If there are insufficient qualifying sales of like goods, the normal value, subject to section 20 of SIMA, is determined either by using the price at which like goods are sold to other countries or by using the cost of production and adding a reasonable amount for administrative, selling and all other costs and a reasonable amount for profits (section 19 of SIMA).

[11] If the President is of the opinion that insufficient information has been provided to allow the determination of the normal value or the export price, the amount to be used for such normal value or export price is the amount to be determined in the manner specified by the Minister. ...


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