Exceptions, General Provisions, the Review and Term Extension Clause

Abstract

The exceptions and general provisions under the United States–Mexico–Canada Agreement (USMCA) are as multifarious as its rules and disciplines. Some are quite classic, inspired by good old trade agreements or duplicates of articles of the Trans-Pacific Partnership (TPP) drafted while the United States was still a negotiating party. Other exceptions are unprecedented and tailor-made to the very specific political and economic tensions that prevailed in North America and in the world trading system during the negotiation. The USMCA incorporates the general exceptions under the World Trade Organization. It replicates the cultural industry exception found in the North American Free Trade Agreement. On information, it adapts some provisions found in previous preferential trade agreements (PTAs) to the new digital environment. But the wording of the national security exception, copied from the TPP, is very different from what we find in Article XXI of the General Agreement on Tariffs and Trade. The text of the indigenous peoples rights exception is a novelty. Articles 32.11 and 32.12, both related to investment issues, illustrate the USMCA’s specificity. Two unusual provisions might prove problematic: Article 32.10 precludes a party from concluding a PTA with a non-market country (read China) without the approval of the other two USMCA parties, and Article 34.7 creates a sunset clause accompanied by a review mechanism that is unique in the trading system.