International Trade 2026

Last Updated December 16, 2025

Canada

Law and Practice

Authors



Miller Thomson LLP is a national business law firm with approximately 500 lawyers across five provinces in Canada, in offices in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montreal. It offers the full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment, and a host of other specialist areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value.

Canada is a member of the World Trade Organization and is a party to plurilateral agreements such as the Government Procurement Agreement and the Trade Facilitation Agreement. Other agreements Canada is a party to include the Information Technology Agreement, the Civil Aircraft Agreement, and the Pharma Agreement. Canada also participates in several “Joint Statement Initiatives” which are plurilateral initiatives used to negotiate new potential rules within the WTO framework (ie, electronic commerce, investment facilitation for development, trade and environmental sustainability structured discussions, etc).

Canada currently has 15 free trade agreements in force. All of its free trade agreements and investment agreements can be found here.

The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) has been in force since 21 September 2017, which means that most of its provisions are in effect. Currently, 17 EU member states have completed their national ratification processes for CETA. The following ten EU member states still need to ratify CETA at the national level: Belgium, Bulgaria, Cyprus, France, Greece, Hungary, Ireland, Italy, Poland and Slovenia.

The UK’s Accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is not yet in force for Canada, as Canada must complete its domestic ratification process.

The Canada–Mercosur Free Trade Agreement is currently under negotiation.

The Canada–Ecuador Free Trade Agreement has been negotiated, and a comprehensive trade agreement has been reached but is yet to be signed.

The Canada–Indonesia Comprehensive Economic Partnership Agreement has been negotiated but is not yet in force.

Canada currently has ongoing negotiations with the Association of Southeast Asian Nations, the Caribbean Community, the Dominican Republic, India and Morocco.

The General Preferential Tariff is an autonomous preferential tariff treatment that provides duty-free treatment for the majority of imports from developing countries.

The Least Developed Country Tariff offers duty-free access for nearly all imports from the least developed countries.

The Commonwealth Caribbean Country Tariff provides duty-free treatment of imports from the Commonwealth countries and British Overseas Territories in the Caribbean region.

Canada is currently negotiating free trade agreements with the Association of Southeast Asian Nations (ASEAN), India and the Philippines. Canada is also exploring free trade agreements with Chile, Colombia, Mexico and Peru (the “Pacific Alliance”). Canada is also negotiating a free trade agreement with Ecuador.

Canada has updated the Investment Canada Act to strengthen provisions pertaining to economic security reviews. Canada has also imposed surtaxes on electric vehicles (100%) and steel and aluminium (25%) from China to address unfair trade practices. New measures have been announced to support the Canadian steel sector, which include tariff rate quotas, worker support and liquidity assistance. The government has also increased its enforcement of trade-related regulations.

The uncertainty surrounding US trade policy is a major issue. The upcoming review of the free trade agreement between Canada, the US and Mexico (CUSMA or USMCA) is likely to involve changes pertaining to rules of origin, digital trade, dispute resolution mechanism, etc. Supply-chain issues regarding critical minerals, economic coercion and forced labour will also be hot topics under discussion. Other emerging issues that are likely to be considered include non-tariff barriers in existing and potential trade agreements, inflation and supply-chain disruptions, and global industrial strategies and their impact on Canadian trade.

Customs matters are governed by the Customs Act, Customs Tariff and the Canada Border Services Agency Act. Several other legal instruments are involved in specific aspects of customs and trade, namely the Financial Administration Act, the Export and Imports Permits Act, the Special Imports Measures Act, the Food and Drugs Act, etc.

The Canada Border Services Agency (CBSA) administers or enforces customs law and regulations.

Canada does not have a single, unilateral legal instrument like the EU’s Trade Barriers Regulation or the US Trade Act of 1974, Section 301. Instead, it uses a combination of mechanisms to address foreign trade barriers. Sanctions and retaliatory measures are primarily administered under the Special Economic Measures Act. Countervailing and anti-dumping duties are administered under the Special Imports Measures Act. The Customs Tariff includes legal provisions for surtaxes applying to certain goods from countries Canada has determined to be carrying out unfair trade practices.

Canada continues to update its sanctions regime, as well as expand prohibitions pertaining to goods manufactured by forced labour. A greater effort has been made to avoid applying punitive measures, such as surtaxes, and to rather solve customs issues through negotiation.

Significant customs and import issues in Canada include the ongoing enforcement of the Canada Border Services Agency Assessment and Revenue Management rules, particularly the 1 January 2026 starting date for amendments to Section 17 of the Customs Act (which specify the “importer of record” as jointly and severally liable with the owner and importer for paying duties). Other major issues include securing borders against illicit goods through new legislation, potential tariff changes with China and the USA, and the ongoing digitalisation of processes to manage supply chain risks and facilitate legitimate trade.

Canada’s sanctions regime is a foreign policy tool designed to address international peace and security concerns, human rights violations, and significant foreign corruption. The laws apply broadly to all individuals and businesses in Canada, as well as Canadian citizens and corporations operating abroad.

Sanctions are imposed by means of the Special Economic Measures Act, the United Nations Act and the Justice for Victims of Corrupt Foreign Officials Act.

Global Affairs Canada administers the sanctions regime, while the Royal Canadian Mounted Police and the CBSA are responsible for enforcing it. The Financial Transactions and Reports Analysis Centre of Canada is involved in financial and reporting aspects of enforcement. The Public Prosecution Service of Canada handles prosecutions.

Individuals are included on Canada’s sanctions list through government regulations made under laws like the Special Economic Measures Act or the Justice for Victims of Corrupt Foreign Officials Act. The inclusion of individuals on the list is primarily based on the individual’s suspected involvement in human rights violations or corruption, or if they are associated with a sanctioned country or entity, such as those on a United Nations list.

The Consolidated Canadian Autonomous Sanctions List can be found here.

The inclusion of individuals on the list is primarily based on the individual’s suspected involvement in human rights violations or corruption, or if they are associated with a sanctioned country or entity, such as those on a United Nations list.

Canada imposes sanctions against countries through regulations under laws such as the Special Economic Measures Act and the United Nations Act, which can include financial and travel restrictions, arms embargoes, and trade controls. The countries listed under Canada’s Special Economic Measures Act include Belarus, China, Iran, Libya, Moldova, Myanmar, Nicaragua, North Korea, Russia, South Sudan, Sri Lanka, Syria, Ukraine, Venezuela, and Zimbabwe. Sanctions have also been imposed on the Central African Republic, Democratic Republic of Congo, Guatemala, Iraq, Lebanon, Somalia, Sudan, and Yemen.

Further information can be found here

Canada maintains other types of sanctions that are non list-based, primarily through sectoral sanctions, general trade prohibitions, and various restrictions that apply broadly to an entire country or specific industries within it, rather than only to named individuals or entities.

These measures are typically implemented through regulations under the Special Economic Measures Act and the Export and Import Permits Act.

Canada has the authority to apply secondary sanctions and has recently amended its regulations to do so, allowing it to target transactions with no direct nexus to Canada if these involve individuals or entities that are circumventing sanctions on a sanctioned country. This authority was expanded under the Special Economic Measures Act to let Canada designate and prohibit transactions with foreign persons or entities that do business with sanctioned regimes.       

Violating Canadian sanctions is a criminal offence that carries severe consequences, including significant fines and/or imprisonment for individuals and significant fines for organisations. The specific penalties depend on which Act the regulations fall under. Penalties can be monetary, forfeiture or imprisonment.

Canada’s sanctions laws and regulations allow for permits and certificates to authorise otherwise prohibited activities in exceptional cases. The Minister of Foreign Affairs has the authority to issue permits under the Special Economic Measures Act and the Justice for Victims of Corrupt Foreign Officials Act, while certificates may be issued under the United Nations Act. These are granted on a case-by-case basis, and there is no guarantee of approval.

Canada’s sanctions regime treats violations as criminal offences. Liability extends to both organisations and individual employees, with penalties including substantial fines and imprisonment.

Canada has sanctions-related blocking and reporting requirements that apply to individuals, entities and reporting agencies. These obligations include freezing the assets of sanctioned persons and entities, and reporting to authorities such as the Financial Transactions and Reports Analysis Centre of Canada and the Royal Canadian Mounted Police.

Canada has laws that prohibit Canadians from complying with foreign sanctions, most notably the Foreign Extraterritorial Measures Act, which prohibits compliance with the US embargo of Cuba. While Canada itself imposes sanctions, its laws also prevent Canadians from being compelled by other jurisdictions to take actions that are in conflict with Canadian law or policy.

Significant changes in Canadian customs and import measures include strengthening border security through new CBSA officers and legislation, enhancing data and security measures for imports, and updating the CBSA Assessment and Revenue Management system. Key issues include the upcoming CUSMA/USMCA review, which could increase trade uncertainty, introduce potential new tariffs on specific goods, and highlight the need for regulatory clarity on value for duty (ie, last sale or sale for export).

The creation of a Financial Crimes Agency in Canada is anticipated. Legislation expected to be introduced by spring 2026 will establish a new federal agency that will become Canada’s leading enforcement body for financial crimes, including sanctions enforcement.

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act and associated regulations have been amended to increase penalties and to create a new compliance agreement framework, new obligations for certain financing sectors and a new framework to allow private institutions to share information related to sanctions evasion and money laundering.

Canadian sanctions will focus on intensified enforcement and compliance, particularly regarding Russia and the Middle East, driven by new legislative measures and increased inter-agency co-ordination.

Canada’s export control laws, governed by the Export and Import Permits Act (EIPA), regulate the export of specific goods, technology, and technical data to protect national security and meet foreign policy and defence obligations. A permit is required for items listed on the Export Control List or when exporting to a country on the Area Control List. Failure to comply can result in fines, imprisonment or seizure of goods.

The EIPA is the primary law, authorising the Minister of Foreign Affairs to control exports. Items listed on the Export Control List are administered under the EIPA. A permit is also required for any export to countries listed on the Area Control List.

The main Canadian agencies involved in export controls are Global Affairs Canada, which administers the EIPA and issues permits, and Public Services and Procurement Canada’s Controlled Goods Program, which registers and regulates controlled goods. The CBSA is also crucial, as it enforces the regulations at the border.

Canada’s export controls apply to a wide range of persons and items, including goods and technology, particularly those with military or national security significance, or those subject to international agreements. This includes items on the Export Control List, which features military and dual-use goods, nuclear and missile-related technology, chemical and biological goods, and certain US-origin items. Controls also cover specific economic goods such as certain agricultural products, lumber, and firearms, as well as persons under sanctions, such as those associated with specific countries or organisations. The Export Control List can be viewed here.

Canada maintains several lists of restricted persons, including the Consolidated Canadian Autonomous Sanctions List, and lists of terrorist entities. Individuals and entities are added to these lists for reasons such as involvement in terrorism, being a corrupt foreign official, or violating other sanctions regulations. The addition process typically involves security intelligence or criminal reports, with the final decision made by the Governor in Council.

Canada has lists of sensitive exports, most notably the Export Control List, which includes military and strategic goods, and the Sensitive Technology List, which targets emerging technologies with national security implications. Items are added through a government process governed by the EIPA and other regulations, which involves ministerial order, amendments published in the Canada Gazette, and international agreements such as the Wassenaar Arrangement.

Canada maintains non list-based export controls through sanctions, area control lists, and the Controlled Goods Program. Sanctions prohibit exports to specific countries, while the Area Control List allows for control of all goods and technology to certain countries, like North Korea. The Controlled Goods Program mandates domestic security measures for specific goods and technologies that have military or national security significance.

Penalties for violating export controls can include significant fines, imprisonment, and other consequences such as the forfeiture of goods, loss of export privileges, and increased scrutiny. The penalties depend on the severity of the offence and range from summary conviction penalties (up to CAD250,000 fine and 12 months’ imprisonment) to indictable offences (with potentially unlimited fines and up to ten years’ imprisonment). Corporate directors and officers can be held personally liable.

Canada’s export control regime provides for various types of permits and certificates that authorise activities that would otherwise be prohibited. The primary types are individual export permits, multi-destination permits, and general export permits, which are issued by the Minister of Foreign Affairs under the authority of the EIPA.

The EIPA mandates strict compliance and imposes severe penalties for violations, including substantial fines for corporations and substantial fines and imprisonment for individuals. Compliance expectations include obtaining the required permits, adhering to permit conditions, record keeping, compliance programmes, and enrolment in the Controlled Goods Program for handling and exporting military, strategic goods.

Canada has export controls-related reporting requirements, including mandatory reporting to the CBSA of goods being exported. Additionally, some general export permits require exporters to submit reports on their export volumes and consignees to Global Affairs Canada.

Canadian export controls include regulatory updates to the Export Control List to control advanced technologies like quantum computing and semiconductors, public consultations on further controls, and the introduction of new measures to the Customs Act to support the CBSA’s enforcement capabilities. Enforcement has been supported by legal and operational changes, while public attention has been focused on the strategic importance of these new controls and the need for a robust export control framework.

Significant changes and hot topics in Canadian export controls will centre on regulating emerging critical technologies (eg, AI, quantum computing), enhancing enforcement in line with G7 partners, increasing the use of unilateral controls, and the digitalisation of border processes.

The imposition of anti-dumping and countervailing duty measures is governed by the Special Import Measures Act and administered jointly by the CBSA and the Canadian International Trade Tribunal. Safeguard measures are handled separately by the Canadian International Trade Tribunal and the government under the Canadian International Trade Tribunal Act.

The CBSA and the Canadian International Trade Tribunal jointly administer the relevant legislation.

Domestic companies can petition the relevant authorities to initiate a review, especially in areas such as trade remedies under the Special Import Measures Act. While some review processes can be self-initiated by authorities like the CBSA, companies also have the ability to formally request an investigation or review of issues such as dumping or subsidising of imported goods.

Domestic companies can petition the relevant authorities on an ad hoc basis for specific reviews, while in many regulatory areas, regular periodic reviews are conducted by the authorities.

Non-domestic companies have opportunities to participate in a Special Import Measures Act review, which can include exporters, foreign producers, importers, and foreign governments. These parties can provide submissions, respond to questionnaires sent by the CBSA, and present their cases to the Canadian International Trade Tribunal.

A typical anti-dumping or countervailing duty investigation takes approximately seven months from initiation to final decision. The steps involved are:

  • complaint/documentation which takes 21 days;
  • an initiation decision which typically takes 30 days;
  • a preliminary injury inquiry which needs to be determined within 60 days of the initiation notice;
  • a preliminary determination made within 90 days of the preliminary injury inquiry determination;
  • a final determination made within 90 days of the preliminary determination;
  • a final injury inquiry/finding made within 120 days of the CBSA’s preliminary determination; and
  • the duty imposition/duration will typically remain in effect for five years, after which an expiry review will be conducted.

The CBSA publishes notices of its conclusions and posts “Statements of Reasons” on its website. The Canadian International Trade Tribunal conducts inquiries into whether the dumping or subsidising has caused injury to a domestic industry and then issues a finding. The Canadian International Trade Tribunal publishes a notice of its report in the Canada Gazette and posts the full reports (public versions) on its website.

Canada’s trade laws, specifically the Special Import Measures Act, allow for the imposition of anti-dumping and countervailing duties and safeguards on goods from any jurisdiction if those imports are found to be causing material injury to a domestic industry.       

Existing AD/CVD duties and safeguards undergo a mandatory review every five years. The Canadian International Trade Tribunal can conduct an interim review at any time before the five-year mark. Safeguard measures have different review timelines and, in some cases, may be applied for up to three years with a possible one-year phase-out period. Find more information on the safeguard regime here.

Anti-dumping and countervailing duties and findings automatically expire after five years unless a review is initiated. The process involves two phases:

  • CBSA investigation (150 days) – the CBSA determines if the expiry of the duties is likely to result in the continuation or resumption of dumping or subsidising.
  • The Canadian International Trade Tribunal inquiry (160 days) – if the CBSA finds a likelihood of continued dumping/subsidising, the Canadian International Trade Tribunal will conduct an inquiry to determine if this is likely to cause an injury to the domestic industry.

If both the CBSA and Canadian International Trade Tribunal issue affirmative decisions, the duties are extended for another five years; otherwise, the order is rescinded. The CBSA may also initiate an interim review and there is also an administrative review, where the importer requests re-determination or an exporter/producer review is requested.

Appeals of anti-dumping and countervailing duty decisions in Canada involve a multi-level process that begins with the CBSA, followed by potential appeals to the Canadian International Trade Tribunal or a binational panel.

Canada has addressed trade remedies through new measures such as a 25% tariff on certain steel-derivative products, tightened border enforcement, and a series of steel-sector support programmes, including tariff rate quotas. It has also repealed retaliatory tariffs on US goods after the US removed its steel tariffs on Canadian products, and made updates to its export permit regulations to improve clarity for exporters. Consequently, investigations have been initiated and concluded for steel and aluminum products from various countries, as well as for other goods originating from various countries. The measures in force can be found here

Significant trends in Canadian anti-dumping and countervailing duties trade remedies include the potential for new trade tensions and resulting measures, such as reciprocal tariffs and surtaxes on certain goods like steel and aluminum. Key hot topics are the potential for trade diversion and the need for stronger, modernised trade remedy tools, including new approaches to economic security.

Canada’s investment security is primarily governed by the Investment Canada Act, which allows the government to review foreign investments of any size for potential injury to national security or for “net benefit” to the Canadian economy. The National Security Review Process can be initiated for any foreign investment, regardless of value or whether it involves acquiring control. The government has 45 days after certification of the complete investment filing to initiate a national security review. Canada’s investment security is primarily governed by the Investment Canada Act, which allows the government to review foreign investments of any size for potential injury to national security or for “net benefit” to the Canadian economy. If concerns persist after the initial screening, the Minister may issue a notice to conduct a national security review. If the Minister still believes the investment could be injurious to national security, it can be referred for a Governor in Council review. The timelines are provided in this link

Investment security measures in Canada are primarily administered and enforced by several federal government agencies under the authority of the Investment Canada Act. These agencies are: Innovation, Science and Economic Development Canada; Public Safety Canada; Canadian Security Intelligence Service; Department of Canadian Heritage; the Financial Transactions and Reports Analysis Centre of Canada; the Royal Canadian Mounted Police and the CBSA.

Any investment by a non-Canadian, regardless of value or the degree of control acquired, can be reviewed if the government has reasonable grounds to believe it could be injurious to national security. The acquisition of control of a Canadian business by a non-Canadian is reviewable if it meets specific, annually adjusted monetary thresholds, to ensure it is of “net benefit” to Canada.

Canada requires non-Canadian investors to file either an application for review or a notification under the Investment Canada Act for most investments, depending on the transaction’s value.

Exempt transactions include corporate reorganisations that do not change ultimate control, acquisitions by lenders realising a security interest under certain conditions, acquisitions solely for financing purposes with subsequent divestment, acquisitions of securities by traders or dealers in the ordinary course of business, control acquired through inheritance or law, and the acquisition of a branch business. Entities and items exempt from review include acquisitions of Canadian businesses run by Crown corporations or non-profit corporations. Certain acquisitions by or associated with foreign banks or insurance companies, regulated under other financial acts, are also exempt.

Failure to comply with investment security measures can lead to severe penalties, including: monetary fines and administrative penalties, disgorgement orders, legal proceedings and imprisonment, and civil lawsuits.

There are no government filing fees associated with an Investment Canada Act national security review, a “net benefit” review application, or a notification.

Key developments in Canadian investment security will include modernising the Investment Canada Act to enhance national security review powers, increased scrutiny of foreign investments from certain countries, and a growing focus on anti-money laundering efforts and environmental, social and governance disclosure. Regulatory activity will continue to be centred on bolstering government authority, implementing new reporting requirements, and improving inter-agency co-ordination to combat financial crime and protect critical assets.       

Key developments regarding investment security under the Investment Canada Act have centred on the implementation of Bill C-34 amendments, updated national security guidelines that formally include economic security, and significant litigation/enforcement in the critical minerals sector. These include expanded ministerial powers and updated national security guidelines (eg, the Economic Security and Sensitive Technology List). Increased penalties for non-compliance (eg, CAD500,000 for failing to file) are anticipated.

Canada employs several programmes to encourage domestic production, with key examples including the Duties Relief Program and the Duty Drawback Program, which allow businesses to import goods duty-free or get duties refunded, provided the goods are exported. Other incentives include the Large Enterprise Tariff Loan Facility for businesses impacted by tariffs, the Strategic Response Fund, and various clean economy tax credits, such as those for Clean Technology Manufacturing and Clean Hydrogen.

Canada uses various standards and technical requirements to reduce imports and support domestic production, including tariffs on specific goods like Chinese electric vehicles, and regulations on energy efficiency and products such as single-use plastics and hazardous materials. Other measures include rules of origin for trade agreements and controlling foreign investment in strategic sectors.

Canada’s sanitary and phytosanitary requirements, while aimed at protecting health and the environment, can indirectly reduce imports and encourage domestic production through strict science-based regulations that must be met by imported goods. These include requiring products to be from pest- and disease-free areas, mandating specific treatments (like heat treatment or fumigation) or certifications before import, and enforcing rigorous inspections and testing to verify compliance with Canadian standards.

Canada’s competition policy is primarily designed to maintain fair, open and efficient markets, while explicitly recognising the role of foreign competition. It does not inherently aim to reduce imports or encourage domestic production as a trade barrier. However, the government recently introduced tariffs and a “Buy Canadian” procurement policy to support specific domestic industries, such as steel and lumber.

Canada uses measures like tariffs, supply-side support, strategic public procurement, and investment screening to reduce imports and encourage domestic production, rather than traditional state trading or large-scale state-owned enterprises. Recent initiatives include targeted tariffs on specific goods, such as steel and aluminum, to combat unfair trade practices and surtaxes on imports like electric vehicles.

Canada will soon be implementing its “Buy Canadian” policy, which establishes explicit requirements to prioritise Canadian goods, services, and suppliers in federal government procurement, specifically aimed at reducing imports and encouraging domestic production.

Canada’s geographical indication protection measures primarily function as a form of intellectual property enforcement and are designed to prevent consumer deception regarding product origin, not to act as general trade barriers aimed at reducing imports or encouraging domestic production in a protectionist sense.

The focus of Canadian trade law will likely include an emphasis on preventing forced labour, the removal of internal trade barriers, economic security measures, and inclusive trade policies.

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Trends and Developments


Authors



Miller Thomson LLP is a national business law firm with approximately 500 lawyers across five provinces in Canada, in offices in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montreal. It offers the full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment, and a host of other specialist areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value. With thanks to Robert M Kossick and Luis Martinez.

North American Trade: The Big Reset

Introduction

North American trade is at a new, turbulent turning point. Change drivers include the America First Trade Policy, geopolitical tensions, and tariffs. Tariff and trade volatility has jarred businesses in various industry sectors across North America. This appears to be a new reality – not a passing concern. More changes are expected in connection with an upcoming joint review of the Canada US Mexico Agreement (CUSMA).

This era of rapid regulatory change calls for swift business adaptation. In this new environment, business agility is a competitive advantage. Accurate information is often a key to the identification of business strengths, weaknesses, challenges, and opportunities. As an aid to firms seeking information to help them adapt, this article will discuss the evolution of North American trade, how it has been reset, and new directions for 2026.

Move from multilateralism to bilateralism

For decades, the USA promoted liberalised trade to generally improve the economy. This sentiment was captured in a phrase popularised by President John F Kennedy: “A rising tide lifts all boats.” During a period of globalisation, the USA became a founding member of the General Agreement on Tariffs and Trade. It also became a proponent of the 164-member World Trade Organization, which was designed to facilitate more liberalised trade.

If there has been a consensus on the benefits of liberalised trade in the past, much has changed. The influence of entities such as the WTO has waned. Major powers have become interested in bilateral arrangements. The use of tariffs, non-tariff barriers, economic measures, sanctions, and export controls is now on the rise.

North American trade agreements

The Auto Pact

Elements of modern North American trade are rooted in the 1965 Agreement Concerning Automotive Products Between the Government of Canada and the Government of the United States of America (the “Auto Pact”). Before its existence, US subsidiaries operated in Canada behind a large tariff wall. They assembled autos in Canada at production levels insufficient for large commercial success. The Auto Pact was designed to achieve the benefits of specialisation and large-scale production. Its creation formed the basis for an integrated North American auto industry.

The Canada-US Free Trade Agreement

Over time, other ways and means of boosting the Canadian and American economies were considered. Eventually, a Royal Commission on the Economic Union and Development Prospects for Canada (the “MacDonald Commission”) recommended that Canadians should take a leap of faith to pursue open trade with the USA. A new agreement, the Canada-United States Free Trade Agreement (CUSFTA), was signed in 1988. Under CUSFTA, most tariffs on goods imported to or exported from Canada and the US were reduced or eliminated.

The North American Free Trade Agreement

The North American Free Trade Agreement (NAFTA) brought Mexico into the trade bloc. The European Economic Community’s success in eliminating tariffs to stimulate trade in that bloc was an inspiration for NAFTA. This deal became effective in 1994. Under NAFTA, tariffs and non-tariff barriers were further reduced for NAFTA eligible goods. Under this free trade agreement, total merchandise trade within the territory more than tripled (from USD306 billion in 1993 to almost USD1.2 trillion in 2018).

The Canada-US-Mexico Agreement

During the first Trump Administration, Canada and Mexico were pressurised to renegotiate NAFTA. Discontent with globalisation and the erosion of jobs led some in the USA to question NAFTA’s benefits. A new, modernised agreement was re-labelled in Canada as CUSMA (in the USA as USMCA and in Mexico as T-MEC) and came into force in 2020. CUSMA created the world’s largest free-trade region, generating economic growth, and raising the standard of living in all member countries. CUSMA now represents a market of over 500 million people, accounting for 30% of global GDP, and goods and services trade valued at approximately USD1.93 trillion.

America first” trade policy

CUSMA established conditions for growth by preserving liberalised market access within the trading bloc. However, certain industries and groups faced adverse impacts. As a first act during the second Trump Administration, President Trump issued a presidential memorandum titled the “America First Trade Policy”. In the memorandum, he instructed the United States Trade Representative (USTR) to initiate domestic consultations, assess the impact of CUSMA on the USA, and report back on its findings. Subsequently, the White House issued a report on its “America First Trade Policy”, which stated that CUSMA required numerous changes. 

US tariff wall

Almost immediately after taking office for the second time, President Trump began building a US tariff wall. For example, the US imposed a 25% tariff on imported products from Canada and Mexico that did not originate under CUSMA on emergency grounds, pursuant to the International Emergency Economic Powers Act(IEEPA). This triggered challenges that have gone to the US Supreme Court. Regardless of the outcome of the proceedings, the Trump Administration will likely initiate and support tariffs under various pieces of US legislation.

For example, the US has imposed global tariffs, first at 25%, then at 50%, on imported steel and aluminum, including “derivative” products made from them, on national security grounds, pursuant to section 232 of the Trade Expansion Act of 1962. A global 25% tariff has been imposed on imported automobiles and auto parts on national security grounds (and is also applicable to non-US content of CUSMA-eligible goods). A 10% tariff has also been imposed on softwood lumber on national security grounds (in addition to pre-existing duties of approximately 35%).

The 2026 joint review of CUSMA

Article 34.7

Canada, the USA and Mexico are preparing for a CUSMA joint review in the form of a meeting of the Free Trade Commission (ie, party ministers or delegates) on the sixth anniversary of its entry into force (ie, on 1 July 2026). The commission will discuss CUSMA’s operation, receive recommendations, and decide on actions. Parties may submit recommendations to the commission up to one month before the joint review meeting. If, at the conclusion of the joint review, it is agreed that CUSMA will continue, the agreement will be extended for another 16 years. If a party does not confirm its intention to extend the term, the Commission will conduct annual joint reviews for the remainder of the current term. This is the so-called “extra innings” option. A party that withholds support for extending the agreement can change its position and provide confirmation of its wish to extend the agreement at any point prior to the expiration of the current term. If the parties unanimously agree, the term of CUSMA will be extended for 16 years. If not, CUSMA will expire in 2036.

Canada

Global Affairs Canada (GAC) is the federal entity representing Canada in the joint review. The GAC conducted an initial round of consultations with stakeholders in the autumn of 2024. The Canadian House of Commons Standing Committee on International Trade has, since June 2024, held a series of hearings on the matter. The GAC may conduct additional consultations. 

United States Trade Representative

The United States Trade Representative (USTR) will represent US interests in a joint review. A public consultation process has been initiated under the USMCA Implementation Act. The USTR will submit the results of the internal policy review and public consultations in a report to Congress at least 180 days prior to the joint review (ie, in January 2026).

Mexico

The federal Office of the Secretary of the Economy is responsible for representing the interests of Mexico. It is assisted by the Offices of the Secretary of Exterior Relations and the Secretary of the Treasury and Public Credit. President Sheinbaum’s Plan Méxicoinitiative has outlined an intent to bolster and improve CUSMA. Mexico’s consultations began at the US-Mexico CEO Dialogue in October 2024. Since then, the Secretary of the Economy has been conducting a review of the agreement. The review has been advanced through coalitions of US and Canadian companies/industries and public-private working groups with the Business Coordinating Council (Consejo Coordinador Empresarial or CCE).

Joint review issues

Examples of potential joint review issues are set out below: 

  • Auto rules of origin– the resolution panel reached a conclusion that was contrary to the US’s position on how to calculate regional value content (RVC) on core auto parts. The US is expected to push for a stricter interpretation of CUSMA’s roll-up provision.
  • Canadian supply management system–Canada has implemented a supply management system relating to certain agricultural goods. It includes tariff walls and tariff-rate quotas (TRQs) designed to create stable prices and production levels. A 2023 CUSMA dispute resolution panel found that Canada’s TRQs are not inconsistent with the agreement. This is a conclusion that the US industry would like to revisit.
  • Mexican energy and mining policy–Mexico has controlled investment, extraction and production activities relating to subsurface oil and minerals. This is reflected in CUSMA Chapter 8, which recognises Mexico’s “direct, inalienable, and imprescriptible ownership of hydrocarbons”. In July 2022, the USA and Canada submitted requests for consultations with Mexico regarding the allegedly unfair practices of its state-owned fuel and petrochemical entity, PEMEX, and its Federal Electricity Commission. The consultations encompass various chapters of CUSMA (market access, investment, and state-owned enterprises) and are ongoing. The unresolved nature of these issues makes it likely that they will be raised in a joint review.
  • Mexican labour rights–the USA and Canada have invoked CUSMA’s rapid response labour mechanism (RRM) in connection with approximately 30 Mexican labour practices (eg, freedom of association, collective bargaining, receipt of back pay and severance benefits, etc). These predominantly auto industry-related cases have evolved into RRM panels. Mexico considers CUSMA’s labour provisions and procedures to be settled and non-negotiable, but this is likely to be placed on the joint review agenda.
  • Genetically engineered food – Mexico has attempted to restrict the introduction of genetically engineered corn. The USA and Canada challenged this action and in December 2024 succeeded in a dispute panel proceeding brought under CUSMA Chapter 31.24. The panel concluded that Mexico’s measures lacked scientific justification and violated CUSMA’s market access provisions. Mexico continues to bring in legislation restricting the introduction of genetically modified products into its food supply and this trade issue will likely land on the joint review agenda.

Emerging issues

Examples of new issues include the following:

  • Rules of origin – there may be a move to revise these rules to crack down on third-country processing and illegal trans-shipments. The objective would be to establish rules, policies and practices preventing China or affiliated entities from using Mexico or Canada as back-door access to the US market.
  • Alignment with China – the US may wish to develop harmonised “Fortress North America” provisions to contain China. On the joint review agenda there may be inbound and outbound investment reviews, common external tariffs for strategic goods, and measures to safeguard against export surges from China.
  • Critical minerals – there may be a move to expandthe scope of initiatives (eg, the Canada-US Joint Action Plan, Canada’s Critical Minerals Strategy, etc) to strengthen supply chains of critical minerals.
  • Nearshoring/reshoring – ways and means to incentivise and facilitate the nearshoring, reshoring and friend-shoring of strategic goods may be reviewed.
  • Forced labour – the parties may wish to strengthen CUSMA’s forced labour provisions to motivate compliance and improve enforcement.
  • AI – the joint review may cover new disciplines, incentives and restrictions relating to AI governance, and innovation designed to preserve North American leadership.
  • Mexico’s judicial reforms – the US and Canada are concerned that the constitutional-level judicial reforms recently undertaken by Mexico will adversely impact the independence, impartiality and integrity of the country’s federal- and state-level justice systems, essential in order to attract foreign direct investment (FDI).
  • Section 232 tariffs – Canada has requested CUSMA Chapter 31 consultations with the USA regarding section 232 tariffs on steel, aluminum, automobiles and auto parts. Canada has claimed that the tariffs are CUSMA inconsistent and violate the terms memorialised in side letters and joint statements. Canada and Mexico could use the 2026 joint review to request preferences and guarantees of downstream exclusions.
  • National emergencies involving immigration and drugs – the US has declared immigration- and drug-related national emergencies to justify IEEPA tariffs. If the US Supreme Court decides that IEEPA tariffs are lawfully imposed, Canada and/or Mexico will likely request their removal.
  • Accession mechanism – competition for resources, allies, frameworks, and advanced technology may lead to a discussion on opening CUSMA to other members, such as Australia, the UK and Colombia. This could open the way for a larger, multilateral agreement.

Risk mitigation

Firms can take steps to eliminate, minimise and shift tariff and trade policy risks. There are many tools that can help firms prepare for the future. The following is an outline of options.

Gap analysis

A gap analysis compares a company’s current state (eg, subject to tariffs) with its desired future state (eg, tariff minimisation) to identify the difference or “gap” between the two. It involves assessing current performance, clarifying goals and identifying gaps in performance, resources or capabilities. A firm can then create an action plan to bridge gaps and achieve its objectives. 

Supply-chain mapping

Supply-chain mapping makes the supply chain and its data points visible, to help identify cost-saving measures. It may be relevant to sourcing, manufacturing, warehousing, exporting or importing. An accurate supply-chain map is an essential optimisation starting point. 

Sensitivity analysis

A sensitivity analysis is a type of financial model. It can show the effect of changes in selected variables (eg, a tariff rate) impacting business profitability. It can also enable the identification and testing of mitigation strategies. 

Contract duration clause

Contractual clauses can be designed to mitigate risk. A shorter contract duration clause may mitigate against tariff risk by providing for frequent contract renegotiation and price adjustments. This can minimise a vendor’s risk of having to absorb a tariff increase.

Price adjustment clause

A price adjustment clause can allow a vendor to pass on or share unexpected costs. Without a price adjustment clause, a vendor may be forced to absorb unexpected tariff costs. 

International commercial terms (Incoterms)

A “place of supply and customs clearance” clause under Incoterms specifically allocates responsibilities for clearances and duties. For example, under delivery duty paid (DDP), the seller assumes full responsibility for all costs and risks involved in bringing goods to a named place of destination, including paying all duties. This term mitigates the buyer’s tariff risk by placing the onus on the seller. On the other hand, under Ex Works (EXW), the buyer assumes all responsibility for export and import clearances and the payment of duties. 

Conclusion

This is a consequential moment. Trade and tariff volatility will likely continue in 2026, and only a person with the prophetic vision of a clairvoyant could predict the outcome of the CUSMA joint review. The CUSMA parties may agree to renew or withdraw from the agreement. Another potential outcome is a “painful extension” (eg, where Canada and Mexico are forced to accept US tariffs). Alternatively, the parties may go into “extra innings” (ie, annual CUSMA reviews). 

The ability to adapt swiftly is now crucial. Business and legal tools can assist firms needing to deal with disruptions, seize new opportunities, and stay competitive. Armed with the right advice, firms can transform threats into opportunities in this evolving world of global trade.

Miller Thomson LLP

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Law and Practice

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Miller Thomson LLP is a national business law firm with approximately 500 lawyers across five provinces in Canada, in offices in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montreal. It offers the full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment, and a host of other specialist areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value.

Trends and Developments

Authors



Miller Thomson LLP is a national business law firm with approximately 500 lawyers across five provinces in Canada, in offices in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montreal. It offers the full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment, and a host of other specialist areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value. With thanks to Robert M Kossick and Luis Martinez.

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