The Conservatives’ election platform contains a commitment to strengthen Canada’s trade remedy system that would violate its WTO’s obligations, according to a veteran international trade lawyer and former Canadian trade negotiator.

In addition to touting the benefits of the recently concluded Trans-Pacific Partnership, the Conservatives’ platform — released Friday morning — contains three promises to make trade “fairer” for Canadian companies.

“Free trade only works when it’s also fair – and this means a modern and effective system of remedy when a Canadian company has been treated unjustly,” the document says.

Canada’s trade remedy system is governed by the Special Import Measures Act and involves both the Canada Border Services Agency and the Canadian International Trade Tribunal in investigations of whether foreign goods have been illegally dumped and subsidized.

To make the existing system fairer, a re-elected Conservative government would do three things, the platform says:

Mandate the Canada Border Services Agency to carry out a full investigation of trade complaints even in cases when preliminary reviews by the Canadian International Trade Tribunal come back negative.

Require the Canadian International Trade Tribunal to carry out an automatic five-year review of every finding of non-compliance, to ensure the conflict has been resolved in a satisfactory manner.

Continue to work with stakeholders such as the Canadian Steel Producers Association to ensure that the system is effective and accessible, and ultimately creates a level playing field for Canadian businesses.

Peter Clark, a former Canadian trade negotiator and iPolitics columnist identified the first as particularly problematic.

“This is inconsistent with the WTO ADA (Anti-Dumping Agreement), which says that an investigation must be terminated as soon as it is determined that there is no evidence of injury,” he wrote in an email.

Jesse Goldman, a partner at the law firm Bennett Jones in Toronto, elaborated.

“The Special Import Measures Act (SIMA), among other things, implements Canada’s obligations — when it comes to trade remedies — under two principle WTO agreements. One is called the Anti-Dumping Agreement and the other one is called the agreement on Subsidies and Countervailing Measures,” Goldman said.

Sections 34 and 35 of SIMA, he added, say that if the CITT determines there’s no reasonable indication of injury, that a case must be terminated immediately.

To do what the Conservatives are suggesting, they’d have to amend the legislation. The problem, however, is that both the WTO agreements are clear there must be a preliminary process to determine at an early stage whether a complaint is valid or should be terminated immediately.

“That’s an international obligation that Canada has. It’s all fine and well to mandate that they (the CBSA) carry on a full investigation, but it would get Canada into hot water very quickly with every other member of the WTO, and Canada — in all likelihood — would be on the short end of any WTO complaint about a measure such as the one being proposed,” Goldman said.

The second Conservative trade remedy promise — for automatic five-year reviews in case of non-compliance — isn’t as much of a problem as it is redundant and nonsensical, he explained.

There are already expiry reviews every five years, and they can be reviewed sooner on an interim basis if there’s a significant change in circumstances.

“Non-compliance is a legislative function of the CBSA, not the CITT, for one thing. And the CBSA, based on the statute, has extensive investigatory and enforcement procedures available to it if there’s been circumvention. So I don’t know what this means. It certainly doesn’t square with the legislation,” Goldman said.

“As a trade lawyer who’s been practicing before the CITT and the CBSA for 20 years, I have absolutely no idea what that means.”

The third and final point, though — about making the system more accessible — could actually be a terrific initiative, Goldman explained.

He just doesn’t think the focus should be on domestic producers, like the Canadian Steel Producers Association, alone.

“When they talk about working with stakeholders, it’s rather curious that they think the stakeholders are only the complainants rather than the respondents in these cases. They’re actually both parties. Both parties have an interest in the system being accessible and fair and transparent.”