Presentation to the Seoul International Forum on Trade Remedies 2016

By
Jean Bédard, Q.C.
Member of the Canadian International Trade Tribunal

 

Seoul International Forum on Trade Remedies 2016
May 19, 2016

Check Against Delivery

  • Firstly, I would like to express my gratitude to the Korean Trade Commission and to the organizers of this forum for inviting me to attend and speak. It is a great honour for Canada to be invited to play such a role at this conference and for a representative of the Canadian International Trade Tribunal to address this gathering. It is indeed a great privilege for me to represent the Tribunal and to have this opportunity to address you today. Thank you.
  • The theme of this conference this year is “New Challenges for Trade Remedy Systems amid the Changing Global Trade Environment”.
  • Let me begin by recalling that Canada was the first country in the world to impose dumping duties more than 100 years ago. The focus of our dumping duties in 1904 was on steel products. The target of these measures was the United States of America. The margin of dumping applied was the difference between the selling prices of US Steel product in the American market and prevailing Canadian market prices; and there was no injury requirement.
  • To say the least, much has changed since then. Among these changes, let me highlight three:
    • The development across national borders of highly integrated industries within a single unified market – a development that challenges traditional notions of exports and imports between national markets;
    • The negotiation and implementation of sophisticated rules to deal with so-called unfair trade practices under the auspices of the multilateral World Trade Organization, or regional instruments like the North American Free Trade Agreement; and
    • In this century, the accession of China as a member of the WTO, and as a driving force in international trade and the global economy, both in terms of supply and demand.
  • As for the role of steel products in the world of trade remedies since 1904 … I will let you be the judge … but it seems to me that, as we say in French, “plus ça change, plus c’est la même chose”- … the more things change, the more they stay the same.
  • As many of you know, Canada has a “bifurcated” trade remedy system, with the Canada Border Services Agency (or “CBSA”) at the front end of the process, and the Canadian International Trade Tribunal (or CITT) at the back.
  • The CBSA is an agency of the Government of Canada, with a delegated decision making authority to investigate whether goods have been dumped or subsidized, as well as to enforce border measures. It makes it determinations without holding any hearings. Its investigations, which are conducted by its own staff, are of the nature of an administrative investigation.
  • In contrast, the Canadian International Trade Tribunal is an autonomous tribunal which inquires whether the dumping or subsidizing found by the CBSA has caused injury, or threatens to cause injury, to a domestic industry. Its chairperson and six members are appointed in theory by the Governor-General, (who is the Queen’s personal representative in Canada) and in practice by the Cabinet, which is our council of ministers. Members are appointed for a term of 5 years and they cannot be removed. Their term can be renewed once for another period of 5 years. (I should also add there is scope to appoint temporary members when workload requires.)
  • The Tribunal is a court of record and, in certain aspects of its work, it has the powers of a Superior Court. In addition to its work in connection with trade remedies, the Tribunal also has jurisdiction over several other matters connected to international trade. It has jurisdiction to hear appeals in connection with customs classification and excise duties. It is also the bid challenge authority for all procurements made by the Government of Canada. In that capacity, it is responsible for determining whether the Government of Canada complied with its obligations on public procurements arising from various trade agreements, including both NAFTA and the WTO’s plurilateral Agreement on Government Procurement.
  • Coming back to the CITT’s trade remedy mandate, each trade remedy case is determined by a panel of 3 members of the Tribunal who are responsible for the conduct of the investigation and for deciding whether the dumping or subsidizing has caused injury, or threatens to cause injury, to a domestic industry. Its work is of the nature of a quasi-judicial inquiry.
  • The staff which supports the Tribunal in its work (including the investigative work) was formerly part of the CITT, but is now part of another agency of the Government of Canada: The Administrative Tribunals Support Service of Canada (or ATSSC) – a relatively new organization formed to generate economies through the provision of back office services to about a dozen tribunals and agencies. While I cannot speak for the other tribunals, this change has been more in form than in substance for the CITT. For whereas there used to be a Secretariat within the CITT to support its work, there is now a dedicated unit within ATSSC known as the CITT Secretariat that specifically supports the CITT.
  • While the machinery of government may force us to belong to two different administrative units, it is critical that both the CITT and the CITT Secretariat within the ATSSC continue to see themselves as one operational unit working together to serve Canadians and the international community.  
  • The Tribunal has a long and proud tradition of excellence in its handling of its trade remedy work. The reputation of this tradition of excellence has gone beyond our borders. This puts an additional pressure on us to keep this tradition of excellence alive and to keep on top of the new challenges faced by the trade remedy system.
  • Although this may sound like cliché, the most important resource at our disposal in maintaining and building upon this tradition of excellence is our human resources. Whether we like it or not, we are a service organization not unlike any organization that is part of the service industry. Everything that we do depends solely on people: Those who make the decisions and those who support them in their work. This is the reason why the generational shift experienced by the CITT in the past few years was and still is a major challenge, and an opportunity to adapt and change in the midst of the challenges faced by the trade remedy system in the changing global trade environment.
  • While the Tribunal, as an independent quasi-judicial body, is solely responsible for meeting its statutory obligations, it is fully dependent on the ATSSC for the provision of the facilities and support services required by us to discharge our responsibilities, meet our statutory obligations and maintain and enhance our tradition and reputation of excellence. In that regard, we work very closely with ATSSC to ensure that our needs and requirements are understood and met, while our independence is being preserved. We also work very closely with the ATSSC in ensuring that it will structure its services provided to us through the CITT Secretariat, in a way that will provide us with a sufficient number of support staff, who will be the right people, with the right attributes, and the right competencies.
  • Before we talk more directly about those human resources challenges faced by the Tribunal in recent years, please allow me to share some statistics that will put our work in perspective:
    •   Over the past 5-6 years, we have handled anywhere from 3 to 9 new inquiries and expiry reviews per year. In mid-2018, we could have as many as 9 expiry reviews underway at the same time, plus an unknown number of new inquiries.
  • Given that we have prescribed time frames in which to complete this work, consistent with the Anti-dumping and SCM Agreements, we will have little flexibility in dealing with this volume of cases.  
  • As I alluded to a few minutes ago, one of the major challenges that the Canadian International Trade Tribunal has faced in recent years has been the retirement of several “baby boomers”, employees with numerous years of experience and expertise
  • All of you know first-hand that trade remedies work is highly specialized and technical and that the trade remedy system relies upon specialists who have acquired their expertise over many years. There is no such thing as instant expertise and academic training is very limited in that regard.  When several long-serving experts retire within a short span of time, it is very difficult to replace them.
  • At the same time, new blood can be healthy. When management is prepared to recognize it, this can provide us with an opportunity for fresh thinking and to reassess how we operate.
  • Indeed, the CITT is seizing upon the generational shift to modernize both the workforce as well as parts of the Tribunal’s trade remedy operations.
  • Over the next few minutes I would like to outline some of the initiatives that we have undertaken in this regard.
  • Let’s start with the demographic shift. How do you replace several very experienced and skilled investigators who left the building in a relatively short time frame? In a nutshell: You can’t! But, you can hire people with the right attributes and develop them. That’s the strategy that we embarked upon and we are confident that we will be succeeding.
  • We established a regimented development program and put one of our best investigators in charge of it on a full-time basis. After a minimum of two years of in-classroom and on-the-job training, and strict assessments, junior investigators are promoted to the full working level rank. We have invested a great deal of resources in this program, providing the candidates with all the training they need to progress rapidly.
    • To deliver that training, we have hired a full-time trainer, plus part-time trainers, including retired senior executives.
    • This training covers the legal fundamentals of anti-dumping and countervailing, the related economic principles, the process for investigating injury, the tools needed to do the job, how to perform statistical and financial analysis, and so on.
      And
    • We have sent employees to far flung places such as Bern, Switzerland, where they received intensive training in trade remedies from the World Trade Institute.
  • We also looked at ways of building upon the skills of employees in other services of the Tribunal. For example, our investigative staff had not only collected and analyzed data in injury investigations; they had also supported us in drafting the reasons for our injury determinations. In our experience, it takes years for investigators to master the writing of these reports, which are really legal documents. In order to mitigate the loss of those years of experience, we took this responsibility away from the investigators and gave it to our lawyers. The investigators have since been able to focus more on mastering their purely investigative and analytical functions and thereby accelerating their overall development.
  • Furthermore, while increased numbers can never be a substitute for experience, we have created additional investigative positions and staffed them to help offset the loss of experience.
  • The investigative unit itself was also restructured, revising work descriptions and job classifications to try to optimize the resources at our disposal.
  • We also embarked in a complete review of workflow to optimize processes. This workflow is also being documented both to guide new investigators and to formalize the service levels to be provided by the CITT Secretariat to the Tribunal.
  • Our strategy also includes a review and upgrading of work tools. For example, we are currently working on a project to transfer the data in questionnaire replies into our databases automatically with much less manual data entry than currently. This will free up investigative staff for more value-added activities (e.g. analysis) while ensuring data integrity.
  • The arrival of new employees has infused the organization with some fresh ideas and new thinking. This creates a challenge in itself. In order to succeed, this impetus for change coming from our new team members must be embraced by the senior management at the CITT Secretariat and by the Tribunal itself. Furthermore, all of this must take place within the confines of a set of international rules governing our work and within the strict deadlines imposed on us by the applicable Canadian legislation. To date, this has enabled us to challenge internal conventions and experiment with new ways of operating. This has already delivered positive results. One of our challenges, however, will be to keep this culture of innovation alive as today’s new recruits mature and become more comfortable in their job. We simply do not have a choice, if we want to keep up with the “New Challenges for Trade Remedy Systems amid the Changing Global Trade Environment”.
  • In the midst of all these internal changes we have also been able to modernize our interface with the outside world. As mentioned earlier, the Tribunal conducts its trade remedy work as a quasi-judicial inquiry. This means that the Tribunal makes evidence based decisions on injury, relying on a considerable amount of evidence assembled by our investigators with the participation of Canadian and foreign businesses who answer questionnaires and provide us with the information needed to help us make our decisions. The size of the Canadian economy is nowhere near the size of that of the United States or the European Union, just to mention these two major players in the world of trade remedies, who also happen to be Canada’s two major trade partners.
  • As a result of this situation, we do not have as many large corporations (with the attendant resources) as you will find in the US or the EU. In many cases, we interact with medium size businesses who have limited resources to devote to answering our questionnaires, participate to our inquiries and generally helping us with our work. We are grateful for all they do, but we must help them help us. In that regard, we are embarking on a few initiatives that will, hopefully, help reduce the burden on those businesses and improve access to justice, while preserving the integrity of the data on which we rely in making our decisions.
  • Given our role and the nature of the decisions that we are making, we also hope that these measures will also be beneficial to foreign businesses that are impacted by our decisions. We want their participation and cooperation in responding to questionnaires during our investigations and in playing a meaningful role during our hearings.
  • There are a couple of recent initiatives which I would also like to highlight:    
    • We are currently reviewing our standard questionnaires, the first such undertaking in 10-15 years. The goal of this review is to streamline them, wherever possible and ease the burden on parties. For example, we are being told by our stakeholders that   there are obsolete questions that could be culled. We must still ensure, however, that the questionnaires will yield all the data required to address the various factors that we must take into consideration in our decision making. This is a balancing act.   
    • Furthermore, we have had electronic filing for several years, but only now have we followed-through and stopped asking for a high number of hard copies anyway; the younger staff we have it comfortable relying upon the electronic record. This also will allow us to ease the burden on parties. In that regard, the Tribunal has also started looking at what is being done in other jurisdiction with regard to electronic filing and electronic access to the Tribunal record. While we may still be a few years away from implementing such a system, this is still part of the Tribunal’s long term goals. 
  • In 2015, we have established an advisory committee of stakeholders representing the trade bar, importers, producers, and others. The representatives of the trade bar on that committee represent a cross-section of counsels who appear before the tribunal and represent not only the domestic industry but also the foreign producers. The committee provides feedback to us on how our procedures are working and on ways to improve them.  For example, the committee will be involved in our consultations on how we could streamline our questionnaires.
  • Last year, our former Chairman alluded to an initiative regarding videoconferencing. We did not sit idle on this, and the retrofit our hearing room is underway. We already have computer screens in them, which we use to call up the electronic record without parties needing to bring boxes of hard copies to the hearing. We are now upgrading our communication system to a digital system with audio recording capability and videoconferencing capability. For the time-being, we would only be able to offer a non-secure videoconferencing channel for public testimony. While this may not be ideal, this is already a significant improvement on our current situation. We are also assessing the feasibility of secure videoconferencing and have initiated conversations in that regard. This would enable parties from outside Ottawa to appear before the Tribunal more cost effectively and hopefully give the Tribunal higher participation rates.
  • These are just a few of the initiatives that are underway to modernize how we operate and address the challenges that we have faced, over the past few years. It required us to think outside the box and to be prepared to review existing ways of doing this. This is not a one-time exercise. In this ever changing world, we need to be prepared to challenge ourselves on an ongoing basis. The Tribunal is committed to promoting this change process at all levels of our organization. Our tradition and reputation of excellence depends on it.   I am confident that if we are successful in embracing a culture of change and continuing adjustment, it will bode well for the future of the trade remedy system in Canada.
  • Thank you for allowing me to share our experience with you. I hope that it will be of use for some of you and I look forward to learning more about best practices in other jurisdictions and I thank you for sharing them with us.
  • Thank you.

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Publication Date

Wednesday, February 1, 2017

Modification Date

Wednesday, February 1, 2017