As I've blogged about before, there was a problem with getting panels appointed under NAFTA Chapter 20, and Chapter 31 of the new NAFTA (USMCA) doesn't look like it fixes the problem. But there is a small tweak to the rules relating to rosters that is worth mentioning.
NAFTA Article 2009 says the following:
Article 2009: Roster
1. The Parties shall establish by January 1, 1994 and maintain a roster of up to 30 individuals who are willing and able to serve as panelists. The roster members shall be appointed by consensus for terms of three years, and may be reappointed.
USMCA Article 31.8 reads slightly differently:
Article 31.8: Roster and Qualifications of Panelists
1. The Parties shall establish by the date of entry into force of this Agreement and maintain a roster of up to 30 individuals who are willing to serve as panelists. The roster shall be appointed by consensus and remain in effect for a minimum of three years or until the Parties constitute a new roster. Members of the roster may be reappointed.
And then relatedly, USMCA Article 30.2 says this:
Article 30.2: Functions of the Commission
1. The Commission shall:
...
(f) review the roster established under Article 31.8 (Roster and Qualifications of Panelists) every three years and, when appropriate, constitute a new roster.
These weren't USMCA innovations, as they were borrowed from the TPP. (Interestingly, however, the USMCA did not borrow the TPP provisions on panelist appointment, which which might have helped to avoid the blocking these appointments.)
Let's think about the impact these changes might have on panel appointments. Under the old NAFTA, the consensus requirement made it difficult to get a roster appointed, and because the terms only lasted three years, there was the problem of frequent reappointment and thus difficulty in maintaining a roster. I don't have a full understanding of what happened with the Chapter 20 roster, but from what I can gather, during one of the reappointment processes the parties were not able to agree on a new roster, and the roster was therefore not filled. That made blocking the appointment of a panel possible in Mexico's complaint against U.S. sugar restrictions.
So how will things change under the USMCA? One key change is that the roster will "remain in effect for a minimum of three years or until the Parties constitute a new roster." Could that mean terms of more than three years? It seems like that would be permitted, but not required. If the parties appointed people to the roster for a term of ten years, that would help, because they would have to agree on a new roster less frequently.
However, the approach to roster terms may be affected by Article 30.2, which call for the USMCA Free Trade Commission to "review the roster ... every three years." If this review is to take place every three years, does that suggest that the parties will establish terms of three years to keep things synchronized? That would leave us in the same place we were with the NAFTA rosters.
Sometimes there isn't a lot of transparency about these roster appointments, so it can be hard to follow from the outside, but to the extent we can get information, it will be interesting to see how this is all implemented.
