In Budget 2011, the Government proposed that it would study initiatives regarding the operation of Canada’s trade remedy law system under the Special Import Measures Act. The Budget provides vague references to introducing legislation to consolidate Canada’s trade remedy investigation functions into the Canadian International Trade Tribunal (CITT). The proposal states that this would create efficiencies that would enable the government to sustain an effective trade remedy system and to cut red tape. It is unclear what is meant by this, but what is clear is that the Anti-dumping and Countervail Directorate within the Canada Border Services Agency (CBSA) responsible for investigating and enforcing Canada’s trade remedy laws is going to be amalgamated or fall under the jurisdiction of the CITT rather than CBSA. Notwithstanding the Government’s references that this will make it less cumbersome for Canadian businesses to take unfair trade remedy actions, this development should be closely monitored by Canadian producers who may rely on Canada’s trade remedy law system (that is, those who might bring anti-dumping or countervailing duty cases against unfairly traded imports into Canada). While details are limited, the concern is that the CITT (an economic inquiry, quasi-adjudicative body) is going to be making the decision as to whether to initiate cases or to initiate renewals of cases. This is a move that is contrary to the current bifurcated trade law remedy system whereby the CBSA investigates and is the gatekeeper for trade remedy law actions whereas the CITT is the adjudicative body to determine injury to Canadian producers. It appears that the CITT will have ultimate responsibility for the calculation of duties, dumping and countervailing duties and the injury inquiry, as well as the initiation of investigations. The CBSA will no longer have any role.
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