Research On Poison Pill Clause Under The United States-Mexico-Canada Agreement

The poison pill clause in UAMCA aims to isolate the so-called non-market country by restricting the right of the parties to sign free trade agreements.The premise and basis of the mechanism is to divide the participants of the multilateral trading system into two opposing camps.Given that there is no general standard for judging market economy country in international law,the standard of poison pill clause is the trade remedy law of the parties to USMCA,which will make the domestic law of some countries produce spillover effect,and suppress the trade activities of non-market country.The poison pill clause has violated international law and constituted a threat and erosion to the multilateral trading system.In addition to the introduction,this paper is divided into the following five parts.The first chapter is the summary of the origin of poison pill clause.The chapter introduces the origin of this clause in detail from its birth to the cause of legal disputes,and then to the establishment of its legal status in the form of case law in the United States.At the same time,based on the mechanism and principle of poison pill clause,this chapter explains the main characteristics of non-compulsory and exclusive of poison pill mechanism.The second chapter is the introduction and preliminary analysis of poison pill clause.In this chapter,first of all,the mechanism of poison pill is analyzed comprehensively,and three rights(the right to know,the right to review,the right to terminate)and three obligations(notification obligation and two types of disclosure obligation)involved in the provisions are summarized.Secondly,the chapter raises the research perspective to the background of the negotiation and signing of the agreement,and points out that the important reason why Mexico and Canada are forced to accept the poison pill mechanism is the imbalance of economic and trade status between the three parties.Finally,the research focuses on the right and obligation setting of poison pill clause,and points out that the setting reflects the strong unequal characteristics,as well as the restrictions and additional obligations of small poison pill clause on the rights and obligations of some concerned American and Mexican enterprises.The third chapter is the research of non-market economy.This chapter starts from the domestic laws of the parties to USMCA,through combing and analyzing the trade remedy laws of the United States,Mexico and Canada and the relevant standards and recognition practices for non-market economy country or non-market economy status,draws the following conclusions: first,there are standards for non-market country in the domestic laws of the United States,However,the standard is vague and broad,which gives right to US Department of Commerce to exercise its discretion unreasonably.Secondly,there is no standard of non-market country in Canada and Mexico.The relevant legislative practice is to judge whether a particular industry or department has a market economy status,but this judgment cannot rise to the overall national evaluation level.Third,according to the current domestic legislation of the three countries and the specific provisions of poison pill clause,the judgment of nonmarket country may ultimately depend on the domestic law of the United States.Secondly,the research vision of this chapter extends from the domestic law level to the international law level.By studying and analyzing the rules system of the world trade organization,the European Union on the issue of non-market economy,this chapter attempts to explore the general rules for defining non-market country under international law.Based on GATT 1994,the provisions of Article 15 of the protocol on China's accession to WTO,the relevant provisions of EU regulation 905.98,and the case study of the Appellate Body of WTO and the European Commission,this chapter points out that there is no current standard for defining non-market country under international law.In this case,the act of judging non-market economy country entirely pursuant to some countries' domestic law lacks the basis of international law.The fourth chapter is the international law analysis regarding poison pill clause.This chapter first points out that although the poison pill mechanism does not deprive the contracting parties of their right to sign a free trade agreement,the restrictions on this right and the adverse effects on potential third countries are deviations from the rules of international law.Secondly,based on the two important contents of the Charter of the United Nations and the connotation of international law,this chapter points out that the poison pill clause is a violation to the principle of sovereign equality and the principle of good faith.Thirdly,in connection with the provisions of the Vienna Convention on the law of treaties on the relationship between treaties and third countries,this chapter demonstrates the view that the poison pill clause endows the third country with unreasonable burden of proof by implication,and claims that the clause violates the principle of "the Treaty does not involve third countries".Finally,this chapter discusses the rules system that should be followed in the establishment of regional trade agreements in WTO rules.Combined with the contents of Article 24 of GATT and Article 5 of GATS and the opinions of the appeal body of "Turkish textile case",it puts forward the conclusion that poison pill clause is not in line with the standards of the appropriate regional trade agreements under WTO system.The fifth chapter is the countermeasure analysis.This chapter adopts the approach of analysis from near to far: first of all,from the perspective of the States parties to USMCA,it puts forward the way for the parties to deal with poison pills from the internal mechanism,that is,to deepen the economic and trade cooperation with the so-called non-market economy countries on the premise of not swallowing poison pills,but by signing bilateral investment agreements,intergovernmental cooperation memoranda and other forms.Secondly,the research perspective shifts to China,which believes that China should actively respond to the proposals of the United States and other countries for market economy reform" Thirdly,by introducing and studying the review mechanism of regional trade agreements within WTO system,this chapter holds that China should raise questions about the legality of the poison pill clause within WTO framework and take the initiative to make a voice.Finally,this chapter focuses on China's FTA strategy,and points out that China should take more active part in regional economic cooperation and expand the circle of trade allies to win because we need the support of more trading partners to break the poison pill clause blockade.