Washington, D.C., partner Elliot Feldman, leader of the firm's international trade practice, authored an article, "'Buy American' Gets a Cold Reception in Canada," which was published in the February 24, 2009, edition of the Legal Times.
According to Feldman, "two centuries of Canadian debate over integration with the United States effectively ended in compromise with the Free Trade Agreement of 1988. Canadians generally accept that their economic well-being depends upon access to the U.S. market, which the FTA and subsequent North American Free Trade Agreement [NAFTA] of 1994 were meant to secure, but they resist political and cultural integration. And now comes the 'Buy American' provision in the U.S. stimulus package, signed by President Barack Obama on Feb. 17, which directs the government's stimulus spending first toward U.S. producers and could, in limited circumstances, reduce Canadian access to the U.S. market. This Buy American provision reminds Canadians that neither NAFTA nor other international institutions, particularly the World Trade Organization, have provided the complete security of market access many thought they had won. Yet when they examine available solutions to inimical American conduct, they come up short. Neither the "special relationship" between the two countries, nor trade dispute laws are likely to prove particularly effective. Thus, despite Obama's sympathetic assurances during his Ottawa visit on Feb. 19, the Canadians find themselves forced to engage again in a painful re-examination of their relationship with the United States."
Feldman goes on to provide a brief history of recent developments related to NAFTA, most notably the softwood lumber debate, "the world's largest and longest running trade dispute," how the "Buy American" provisions "aroused fevered consternation in Canada," and the limited recourse Canada has if it tries to prove that the "Buy American" provision modifies the "government procurement coverage otherwise already in place."
Feldman concludes: "Canada must convert the Buy American warning into an opportunity. Canadians should consider interpreting Obama's very limited suggestion for a NAFTA renegotiation as an invitation to reinvent the North American continent, deepen its integration and mutual trust, and make it more competitive globally. Obama said in his Ottawa press conference that he sought to 'renew and deepen our relationship for the 21st century.' Canada should enlist in that effort. The alternative could be insular and debilitating protectionism and an even greater threat to Canada's independence."