I've mentioned the NAFTA-WTO dispute settlement conflict aspect of the U.S. - Tuna II (DS381) case before (see here and here). Unfortunately, I'm in a little over my head on that issue. I prefer to focus on the substantive aspects (DSC subscribers only) of the case. But here's a paper from PhD student Josué F. Mathieu on the NAFTA-WTO issues. From the abstract:
This paper takes an interest in a current trade dispute between the United States and Mexico known as the US-Dolphin II case. The case is still pending before the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) and raises procedural questions of utmost importance for the settlement of disputes pertaining to the jurisdiction of the DSB and the mechanisms of dispute settlement of Free Trade Areas (FTAs). The object of this paper is precisely to shed light on these thorny procedural aspects. First, the legal basis of the complaint introduced by the United States will be reviewed to outline the procedural obligations under NAFTA and assess the contending claims. Second, obligations under the WTO will be analyzed to broaden the picture of obligations related to the settlement of disputes involving competition with the dispute settlement mechanism of a FTA. The willingness of the parties will be articulated with its translation into practice by studying how analogous cases have been previously addressed by the DSB. This step will provide tools for assessing the compatibility between NAFTA and WTO obligations regarding trade dispute settlement. As it will be shown, there are tremendous tensions between these obligations. Thus, a third time will be devoted to determining whether positive international law provides rules allowing to resolve such potential conflicts between parallel and contradictory obligations.
