the other NAFTA provisions that similarly eliminate policy and regulatory options that would have been available to Canada under the WTO. 1.2 NAFTA Constraints 1.2.1 NAFTA Article 301: National Treatment of ExportsThe National Treatment requirements of Article III of GATT are restricted in their application to import measures only. Article 301 of NAFTA adopts this provision by reference and in doing so departs from the more expansive wording of Article 105 of the Canada-US Free Trade Agreement. While Article 105 appears to have extended the concept of National Treatment to exports as well as imports, Article 301 of NAFTA appears to retreat from this position by providing: National Treatment: Each Party shall accord national treatment to the goods of another Party in accordance with Article III of the General Agreement on Tariffs and Trade (GATT), including its interpretative notes, and to this end Article III of the GATT and its interpretative notes, or any equivalent provision of a successor agreement to which all Parties are party, are incorporated into and made part of this Agreement [emphasis added].However Annex 301.3: Exceptions to Articles 301 and 309, specifically excepts export controls on such products as logs and fish. This appears to re-introduce the concern that National Treatment requirements might apply to exports after all (i.e., to the goods of a Party) because otherwise these exceptions would not have been needed. It is not possible to predict with any confidence how this question might be resolved by a dispute panel at some unknown future date. However should such a panel conclude that Article 301 of NAFTA was intended to apply to exports as well, it would provide very strong support for the argument that Canada must treat water bound for export markets, in precisely the same way it would water bound for domestic consumption. The implications for water export control measures are obvious. 1.2.2 Proportional Sharing...
