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[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by Ramaz Samrout, (Principal, REIM Strategies; Lay Member, Competition Tribunal of Canada)]

At a time when nations are engaged in bidding wars in the worldwide market to alleviate the shortages of critical medical necessities for the Covid-19 crisis, it certainly bares the question, have free trade and competition policies resulting in efficient global integrated market networks gone too far? Did economists and policy makers advocating for efficient competitive markets not foresee a failure of the supply chain in meeting a surge in demand during an inevitable global crisis such as this one?

The failures in securing medical supplies have escalated a global health crisis to geopolitical spats fuelled by strong nationalistic public sentiments. In the process of competing to acquire highly treasured medical equipment, governments are confiscating, outbidding, and diverting shipments at the risk of not adhering to the terms of established free trade agreements and international trading rules, all at the cost of the humanitarian needs of other nations.

Since the start of the Covid-19 crisis, all levels of government in Canada have been working on diversifying the supply chain for critical equipment both domestically and internationally. But, most importantly, these governments are bolstering domestic production and an integrated domestic supply network recognizing the increasing likelihood of tightening borders impacting the movement of critical products.

For the past 3 weeks in his daily briefings, Canada’s Prime Minister, Justin Trudeau, has repeatedly confirmed the Government’s support of domestic enterprises that are switching their manufacturing lines to produce critical medical supplies and of other “made in Canada” products.

As conditions worsen in the US and the White House hardens its position towards collaboration and sharing for the greater global humanitarian good—even in the presence of a recent bilateral agreement to keep the movement of essential goods fluid—Canada’s response has become more retaliatory. Now shifting to a message emphasizing that the need for “made in Canada” products is one of extreme urgency.

On April 3rd, President Trump ordered Minnesota-based 3M to stop exporting medical-grade masks to Canada and Latin America; a decision that was enabled by the triggering of the 1950 Defence Production Act. In response, Ontario Premier, Doug Ford, stated in his public address:

Never again in the history of Canada should we ever be beholden to companies around the world for the safety and wellbeing of the people of Canada. There is nothing we can’t build right here in Ontario. As we get these companies round up and we get through this, we can’t be going over to other sources because we’re going to save a nickel.

Premier Ford’s words ring true for many Canadians as they watch this crisis unfold and wonder where would it stop if the crisis worsens? Will our neighbour to the south block shipments of a Covid-19 vaccine when it is developed? Will it extend to other essential goods such as food or medicine? 

There are reports that the decline in the number of foreign workers in farming caused by travel restrictions and quarantine rules in both Canada and the US will cause food production shortages, which makes the actions of the White House very unsettling for Canadians.  Canada’s exports to the US constitute 75% of total Canadian exports, while imports from the US constitute 46%. Canada’s imports of food and beverages from the US were valued at US $24 billion in 2018 including: prepared foods, fresh vegetables, fresh fruits, other snack foods, and non-alcoholic beverages.

The length and depth of the crisis will determine to what extent the US and Canadian markets will experience shortages in products. For Canada, the severity of the pandemic in the US could result in further restrictions on the border. And it is becoming progressively more likely that it will also result in a significant reduction in the volume of necessities crossing the border between the two nations.

Increasingly, the depth and pain experienced from shortages in necessities will shape public sentiment towards free trade and strengthen mainstream demands of more nationalistic and protectionist policies. This will result in more pressure on political and government establishments to take action.

The reliance on free trade and competition policies favouring highly integrated supply chain networks is showing cracks in meeting national interests in this time of crisis. This goes well beyond the usual economic factors of contention between countries of domestic employment, job loss and resource allocation. The need for correction, however, risks moving the pendulum too far to the side of protectionism.

Free trade setbacks and global integration disruptions would become the new economic reality to ensure that domestic self-sufficiency comes first. A new trade trend has been set in motion and there is no going back from some level of disintegrating globalised supply chain productions.

How would domestic self-sufficiency be achieved? 

Would international conglomerates build local plants and forgo their profit maximizing strategies of producing in growing economies that offer cheap wages and resources in order to avoid increased protectionism?

Will the Canada-United States-Mexico Agreement (CUSMA) known as the NEW NAFTA, which until today has not been put into effect, be renegotiated to allow for production measures for securing domestic necessities in the form of higher tariffs, trade quotas, and state subsidies?

Are advanced capitalist economies willing to create State-Owned Industries to produce domestic products for what it deems necessities?

Many other trade policy variations and options focused on protectionism are possible which could lead to the creation of domestic monopolies. Furthermore, any return to protected national production networks will reduce consumer welfare and eventually impede technological advancements that result from competition. 

Divergence between free trade agreements and competition policy in a new era of protectionism.

For the past 30 years, national competition laws and policies have increasingly become an integrated part of free trade agreements, albeit in the form of soft competition law language, making references to the parties’ respective competition laws, and the need for transparency, procedural fairness in enforcement, and cooperation.

Similarly, free trade objectives and frameworks have become part of the design and implementation of competition legislation and, subsequently, case law. Both of which are intended to encourage competitive market systems and efficiency, an implied by-product of open markets.

In that regard, the competition legal framework in Canada, the Competition Act, seeks to maintain and strengthen competitive market forces by encouraging maximum efficiency in the use of economic resources. Provisions to determine the level of competitiveness in the market consider barriers to entry, among them, tariff and non-tariff barriers to international trade. These provisions further direct adjudicators to examine free trade agreements currently in force and their role in facilitating the current or future possibility of an international incumbent entering the market to preserve or increase competition. And it goes further to also assess the extent of an increase in the real value of exports, or substitution of domestic products for imported products.

It is evident in the design of free trade agreements and competition legislation that efficiency, competition in price, and diversification of products is to be achieved by access to imported goods and by encouraging the creation of global competitive suppliers.

Therefore, the re-emergence of protectionist nationalistic measures in international trade will result in a divergence between competition laws and free trade agreements. Such setbacks would leave competition enforcers, administrators, and adjudicators grappling with the conflict between the economic principles set out in competition law and the policy objectives that could be stipulated in future trade agreements. 

The challenge ahead facing governments and industries is how to correct for the cracks in the current globalized competitive supply networks that have been revealed during this crisis without falling into a trap of nationalism and protectionism.