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The New Anticorruption Requirements of the New NAFTA.

Posted on November 5, 2018 by Doug Cornelius
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>The Trump Administration took great pride in tearing up the North American Free Trade Agreement and imposing a new framework for trade between the United States, Mexico, and Canada. Of course it had to be re-branded, with “America First”, as the US-Mexico-Canada Agreement. This refreshed version of NAFTA includes some increased labor protections for workers, increased standards for duty-free auto shipments, increased access to the Canadian dairy market for US farmers, and a slight tweak to the deal’s dispute-resolution system. I’m sure industry will adjust to the small changes while keeping the important cross-border commerce and manufacturing running smoothly.

One big change is Chapter 27 which adds a new tri-nation framework for anticorruption.

Some highlights of the USMCA’s anticorruption chapter:

  • Each country has to adopt or maintain legislative and other measures as may be necessary to establish public corruption as criminal offenses under its law, in matters that affect international trade or investment, the embezzlement.
  • Each country has to impose internal auditing controls and accounting standards to prohibit the off-the-books spending.
  • Facilitation payments are discouraged, but not prohibited.
  • Bribes can’t be tax deductible
  • Each country has to adopt or maintain appropriate measures to protect whistleblowers on public corruption from unjustified treatment.

This all sounds like most of what is already in place in the US and is exporting those requirements to Canada and Mexico.

Interesting that it take the step further to prohibit private corruption and bribery that was tackled under the UK Bribery Act.

In a concession to the FCPA, facilitation payments (however you want to define them) are not prohibited. Each country at least has to recognize that they have “harmful effects.”

If you expect there to be changes in the United States, you clearly have not been paying attention to the dysfunction in Congress. Assuming the House reverts back to Democratic control, I expect two years of investigation into President Trump and his administration with little else happening.

Sources:

  • Article 27 of the United States-Mexico-Canada Agreement 
  • Remarkable Anti-Corruption Framework in the new United States-Mexico-Canada Agreement
  • An underlooked bright spot in NAFTA 2.0: A unified front against corruption

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