Internalizing International Trade Law: A Critical Analysis of the Canadian Free Trade Agreement’s National Treatment Jurisprudence

Abstract

The Canadian Free Trade Agreement 2017 (CFTA), which replaced the Agreement on Internal Trade 1995 (AIT), provides a forum to resolve internal trade disputes against provinces, territories, and the federal government. Under its predecessor, the AIT, thirteen dispute panels and two appeal panels convened to adjudicate such claims; to date, no cases have yet been brought under the CFTA. Despite its lengthy lifespan and repeated use, little literature exists that critically examines the substantive findings and analytical methods found in the AIT’s jurisprudence (case law now inherited by the CFTA). Academic dialogue on the legal reasoning found within the body of rulings of Canada’s unique dispute forum can offer future CFTA adjudicators insights so as to improve the coherence, clarity, and consistency of their decisions. This article focuses, in particular, on the state of CFTA jurisprudence on the national treatment obligation, which is analogous to article III of the World Trade Organization’s General Agreement on Tariffs and Trade 1994 (GATT). By investigating the trajectory of CFTA case law on the national treatment obligation, while interweaving insights from WTO jurisprudence, this article is able to identify the current state of doctrine, as well as continued shortcomings and uncertainties. In addition, this method of research can identify possible insights from WTO jurisprudence to fill analytical gaps. Especially in light of the Supreme Court of Canada’s firm 2018 pronouncement in R v Comeau, which essentially shuttered court doors to domestic trade disputes, this research is of particular relevance as CFTA dispute panels going forward will only take on a heightened significance as a means to address internal barriers to trade. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/4