Canadian Lawyer InHouse

35 CANADIANLAWYERMAG.COM/INHOUSE MARCH 2018 agreement that the government encouraged them to support and then implemented," says Swick. "Now, to their detriment, that agreement has gone away," she adds. "In-house coun - sel really has to understand the cost rami- fications on their imports and whether they should be seeking alternative remedies with the government of Canada to get some of those increased costs back, depending on the magnitude of their exposure. It would be prudent to look at litigation options as part of due diligence." Swick also suggests that Canadian in- house counsel could increase their value to the companies they represent by familiar - izing themselves with the framework for WTO dispute resolution. "If your company is losing sales due to unfair competition in another market, you need a strategy to go to the government of Canada and have them raise that issue under the WTO — or if that issue isn't resolved have them go to dispute settlement," she says. "It's kind of an arcane area of the law that could become more relevant in a more protectionist trade environment." In-house counsel should also be aware of "safeguard" claims in the event that they're suffering under a trade agreement. "It doesn't have to be a subsidy claim or a dumping claim," says Swick. "Your com - pany may suddenly be inundated with prod- ucts from Asia or Europe under a free trade agreement. To make a safeguard inquiry, you only have to show that the sudden increase in product is causing your company serious injury, and then have a duty placed on it." In-house counsel also has an opportu - nity to become more proactive in helping to shape trade negotiations. "The Canadian government often has a hard time obtaining views or engaging in proper consultation with companies regard - ing trade issues," says Dattu. "They're often pushed down to speak with middle man- agement who are not the decision-makers. In the U.S., we see companies taking a far more active hand in lobbying and taking positions to help shape trade policies. There are far greater opportunities for in-house counsel in Canada to affect trade policy." However, in-house counsel are often bet - ter versed in corporate and securities law, he says. Their expertise in international trade is often relegated to the reactive instead of the proactive. "Canadian manufacturing companies will increasingly have to rely on export mar - kets to be successful," says Dattu. "Howev- er, we're seeing more younger lawyers grad- uating with expertise in international trade and international law and it appears they're keen to work in this area." He notes that the odds of a renegotiated NAFTA have increased substantially through the most recent rounds of renegotiations. However, "prudent business planning suggests that Canadian manufacturing com - panies and their in-house counsel should continue to assess the potential implications of a notice to terminate NAFTA." IH I n d u s t r y S p o t l i g h t © 2018 Thomson Reuters Canada Limited 00249PD-90991-NK INTRODUCING DATA PRIVACY ADVISOR. The only Q&A platform that answers your most pressing data privacy research questions. Only Data Privacy Advisor enables you to better understand data privacy complexities with unrivalled Practical Law™ know-how, global legal and regulatory content, and artificial intelligence from Thomson Reuters and IBM Watson.® Deepen your expertise and proceed more confidently. thomsonreuters.ca/data-privacy-advisor When data privacy authority falls on you, confidence matters.

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