The trade and culture debate: evidence from US trade agreements

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Notes

1. Agreement Establishing the World Trade Organization, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994).

2. Statement by Canada, WT/DSB/M/380 (2 September 2016), p. 17 (noting that ‘the extraordinary success of the [WTO dispute settlement] system, especially in delivering the security and predictability of dispute settlement in the WTO’ and that ‘this success was remarkable and unparalleled’).

3. WT/DS31.

4. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Paris, 20 October 2005, 2440 UNTS 311, 2007 Canada T.S. 8 [hereinafter UNESCO Convention].

5. UNESCO Convention Art. 5.

6. Ibid., Art. 20.

7. Gilbert Gagné, The Trade and Culture Debate: Evidence from US Trade Agreements (Lanham: Lexington Books 2018) [hereinafter Gagné].

8. Gagné, p. 4.

9. Gagné, p. 135.

10. Gagné, p. 135.

11. Gagné, p. 137.

12. Gagné, p. 137.

13. Gagné, p. 137.

14. Gagné, p. 138.

15. Gagné, p. 138.

16. Gagné, p. 138.

17. Gagné, p. 137.

18. Canada originally negotiated the ‘cultural exception’ in Art. 2005 of the Canada-U.S. Free Trade Agreement of 1988. It was later reproduced, with slight modification, in NAFTA Annex 2106.

19. In the original Trans-Pacific Partnership (TPP) text, concluded at Auckland in February 2016, the U.S. was successful in negotiating a negative list approach to service delivery, meaning that everything was included and made subject to liberalization and non-discrimination requirements except that which was expressly excluded. Under these rules Canada was allowed to regulate service providers so long as it applied the same rules to both domestic and foreign services. In the reformulated Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), concluded at Santiago in March 2018 after the U.S. indicated its decision to withdraw from the TPP, Canada negotiated side-letters with the remaining 10 members of the pact to allow Canada 1) to adopt discriminatory requirements on service suppliers or investors to make financial contributions for Canadian content development and 2) to adopt or maintain measures that restrict access to online foreign audio-visual content.

20. Under USMCA Art. 32.6(2) Canada was given an exception to continue favouring domestic cultural industries including publishing, film, television, news and music. This exception applies notwithstanding the USMCA’s digital services chapter, Chapter 19, which provides in Art. 19.4(1) that ‘[n]o Party shall accord less favorable treatment to a digital product created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of another Party’. However, like under NAFTA, USMCA Art. 32.6(4) provides that either the U.S. or Mexico may take measures of ‘equivalent commercial effect’ where Canada maintains inconsistent measures in the cultural sector. The analogous provision under NAFTA was never invoked. Under USMCA Art. 32.6(5) Canada obtained a slight advantage over NAFTA in that the U.S. and Mexico agreed to litigate any dispute over ‘equivalent commercial effect’ under the USMCA rather than under the WTO dispute settlement system, thereby avoiding the circumvention of treaty dispute settlement that happened in Canada – Periodicals.