As discussed here, here, here and here, Mexico and the United States disagree on the proper forum for the current tuna/dolphin dispute. Mexico thinks the WTO is the right forum; the United States thinks the dispute should be removed to NAFTA. The dispute is proceeding at the WTO (for DSC subscribers, here is our summary of the first U.S. written submission), although it slowed down a bit when one of the panelists passed away and had to be replaced.
Now the United States has moved on to the next step with NAFTA, requesting that a panel be established, based on the argument that Mexico is violating NAFTA by not removing the dispute to NAFTA. Here is USTR's press release:
The Office of the United States Trade Representative announced today that the United States has requested that the North American Free Trade Agreement (NAFTA) Free Trade Commission establish a dispute settlement panel regarding Mexico’s decision not to move its “dolphin safe” labeling dispute from the World Trade Organization (WTO) to the NAFTA, as requested by the United States and as required by Article 2005 of the NAFTA. The NAFTA requires that in certain types of disputes, if the defending party makes such a request, the NAFTA rather than any other forum should be the sole venue of the dispute. In this case, that means that the NAFTA – rather than the WTO – is the proper forum to hear a challenge by Mexico to U.S. “dolphin safe” labeling provisions for tuna and tuna products.
...
Mexico’s challenge to the U.S. dolphin safe labeling provisions meets the criteria in the NAFTA choice of forum. This provision states that certain disputes which pertain to matters arising under both the WTO Agreement and the standards-related provisions of the NAFTA, and which concern human, animal or plant life or health or the environment and raise factual issues concerning the environment or conservation, shall be heard – at the responding party’s option – solely under the NAFTA’s dispute settlement procedures.
NAFTA rules provide that once a responding party invokes the choice of forum provision, the complaining party must withdraw from the WTO proceedings and may pursue the dispute solely under the NAFTA.
BACKGROUND
On March 9, 2009 Mexico requested that a WTO panel be established to review Mexico’s claims that U.S. law limiting the use of the “dolphin safe” label on tuna and tuna products is inconsistent with U.S. obligations under the WTO Agreement. In response, the United States invoked the NAFTA choice of forum provision (Article 2005(4) of the NAFTA) on March 24, 2009. However, Mexico continued to pursue its request for a WTO panel, and on April 20, 2009 the WTO Dispute Settlement Body established a WTO panel to review Mexico’s claims.
The United States and Mexico held consultations on the choice of forum dispute in December 2009. When consultations did not resolve the dispute, the United States requested the NAFTA Free Trade Commission, which is composed of the NAFTA countries’ trade ministers or their designees, meet to discuss the matter. The Commission met on May 7, 2010 but was also unable to resolve the dispute.
Under NAFTA rules, a dispute settlement panel is established immediately upon delivery of the request to the Commission.
I can't help but think of the U.S. - Mexico HFCS/Sugar dispute, in which Mexico wanted a NAFTA panel on U.S. measures related to sugar imports, but could not get one. Here's an extract from Mexico's argument in the WTO Mexico - Taxes on Soft Drinks dispute:
4.91 Mexico and the United States disagreed over the letters exchanged in 1993. Mexico had generated a surplus and believed that it had a right to export larger amounts of sugar to the United States' market than the United States was prepared to admit. Mexico therefore took steps during the late 1990s to resolve the dispute through the NAFTA general dispute settlement mechanism stipulated in Chapter XX. Unfortunately, the critical element of automaticity that differentiates the WTO's dispute settlement process from that of the GATT 1947 was not present in the NAFTA. Mexico therefore requested that the United States give its consent for the establishment of an arbitral panel.
4.92 Mexico submitted a formal request for consultations, which took place but did not lead to a resolution of the dispute. Mexico then requested a meeting of the Free Trade Commission, the second step of the proceeding, which took place as well, but it too failed to resolve the dispute. Finally, Mexico formally requested the establishment of an arbitral panel, but the United States refused its establishment. To date, the United States has blocked Mexico's efforts to resolve the dispute through the NAFTA institutional mechanisms.
Given this history, will the U.S. be able to get a panel in tuna/dolphin?
