Contributing Lawyers


Cyndee Todgham Cherniak

United States

Susan Kohn Ross


Andrew Hudson

The Government of Canada Should Ask The Canadian International Trade Tribunal Whether Canada Needs Equivalent to Section 337 of U.S. Tariff Act

There is a little known provision in Canadian law that is under-utilized. This provision is a powerful mechanism that holds promise and opportunity. Pursuant to section 18 of the Canadian International Trade Tribunal Act (Canada):

"The Tribunal shall inquire into and report to the Governor in Council on any matter in relation to the economic, trade or commercial interests of Canada with respect to any goods or services or any class thereof that the Governor in Council refers to the Tribunal for inquiry."

The Governor in Council (that is Prime Minister Harper's cabinet) has a broad and diverse range of issues that can be referred for inquiry - and could, hypothetically, ask any question they want. The Tribunal is mandated to conduct an inquiry if the request falls within the broad subject matter of "economic, trade or commercial interests".

Prime Minister Harper and the Canadian Government can and should ask the Tribunal whether Canada needs legislation to protect domestic manufacturers - such as a provision that is equivalent to section 337 of the U.S. Tariff Act. If such a provision were to be implemented in Canadian law, the Tribunal would likely be the investigating authority. The Tribunal would be in the best position to inform the government whether their infrastructure could handle the added responsibility.

There are a number of other questions that can be referred to the Tribunal under section 18, but I wish to focus today on whether Canadian manufacturers would benefit from a provision like section 337 of the U.S. Tariff Act. I focus on this question because the provision seems to be used in the U.S. - regularly - and, U.S. manufacturers seem to be benefiting. The International Trade Commission appears to have a full docket of these cases/investigations.

Section 18 of the Canadian International Trade Tribunal Act has not been used often --- any this is curious --- maybe the government has forgotten that it exists. Or, maybe they cannot see its potential to create positive dialogue concerning important economic and trade issues.

Section 19 of the Canadian International Trade Tribunal Act has been used infrequently in regards to customs duties on textile and apparel goods. It provides:

The Tribunal shall inquire into and report to the Minister on any tariff-related matter, including any matter concerning the international rights or obligations of Canada in connection therewith, that the Minister refers to the Tribunal for inquiry.

Both provisions present opportunities for important discussions and sharing of information. The Tribunal is in a good position to gather confidential business information relating to an important trade/economic/commercial topic, review it, analyze it, and make positive recommendations to the government to improve Canada's laws and trading position in the world.

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