USTR has published the following notice regarding an invitation for applications to be on the rosters for Chapter 31 state-state dispute panels and for the new rapid response labor panels:
Invitation for Applications for Inclusion on the Dispute Settlement Rosters for the United States-Mexico-Canada Agreement
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USTR is seeking applications from U.S. citizens and nationals of other countries who are interested in serving as panelists for general state-to-state or labor dispute settlement panels established under the USMCA. You can find the text of the USMCA on the USTR website: https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement.
I. General Dispute Settlement Mechanism Under Chapter 31
USMCA is a trilateral trade agreement between the United States, Mexico, and Canada (the Parties). Chapter 31 sets out detailed procedures for the resolution of most disputes arising under the USMCA. Dispute settlement involves two stages: (1) Consultations between the disputing Parties to try to arrive at a mutually satisfactory resolution of the matter, and (2) resort to a neutral panel to make a determination regarding the matter at issue. The disputing Parties form a separate five-member panel for each dispute although they may agree to a three-member panel.
USMCA requires the Parties to establish a general roster of up to 30 individuals who are willing to serve as panelists, with each Party designating up to 10 individuals. The Parties will try to achieve consensus on the roster. Individuals on the roster are appointed for a minimum term of three years and will remain on the list until the Parties form a new roster. See USMCA Article 31.8.1.
Panelists normally are selected from the roster. For disputes under Chapter 23 (Labor) and Chapter 24 (Environment), each disputing Party has to select panelists with relevant expertise, and for disputes in specialized areas of law aside from labor and environment, the disputing Parties should select panelists to ensure the necessary expertise is available on the panel. For each dispute, roster members under consideration to serve as a panelist will have to complete a disclosure form that the Parties use to identify possible conflicts of interest or appearances thereof. The disclosure form requests information regarding financial interests and affiliations, including information regarding the identity of any clients the roster member may have, and, if applicable, clients of the roster member's firm.
To qualify for inclusion on the on the general dispute settlement roster, an applicant must:
- Have expertise or experience in law, international trade, other matters covered by USMCA, or the resolution of disputes arising under international trade agreements.
- Be objective, reliable, and possess sound judgment.
- Be independent of, and not be affiliated with or take instructions from, a Party.
- Comply with a code of conduct established by the Parties.
II. Facility-Specific Rapid Response Labor Mechanism Under Annex 31-A
Annex 31-A establishes a facility-specific rapid response labor mechanism (the Mechanism), as between the United States and Mexico, which can be used whenever either Party believes that workers at a Covered Facility (as defined in Article 31-A.15) are being denied the right of free association and collective bargaining under the laws necessary to fulfill the obligations of the other Party under the USMCA (a Denial of Rights). A Party may ask a labor panel under the Mechanism to request that the respondent Party allow it an opportunity to verify the Covered Facility's compliance with the law in question and to determine whether there has been a Denial of Rights. See USMCA Article 31-A.5. Labor panelists have to submit a report to the Parties commenting on the functioning of the Mechanism at the conclusion of the first four-year term and every four years thereafter. See USMCA Article 31-A.3.6.
USMCA requires the Parties to establish three lists of panelists who are willing to commit to being generally available to serve as labor panelists for the Mechanism. By the date of entry into force of USMCA, each Party has to appoint three individuals to one list and appoint, by consensus, three individuals to a joint list. The individuals on the joint list may not be nationals of either the United States or Mexico. Six months from entry into force of USMCA, the lists will be expanded to at least five individuals each. Individuals on the lists are appointed for a minimum term of four years or until the Parties constitute new lists. See Article 31-A.3.
To qualify for inclusion on the Mechanism lists, an applicant must:
- Have expertise and experience in labor law and practice, and with the application of standards and rights as recognized by the International Labor Organization.
- Be objective, reliable, and possess sound judgment.
- Be independent of, and not be affiliated with or take instructions from, a Party.
- Comply with a code of conduct established by the Parties.
III. Applications
USTR invites eligible individuals who wish to be considered for inclusion on the general roster or the labor Mechanism lists to submit applications through Regulations.gov, using docket number USTR-2020-0012. In order to be assured of consideration, USTR must receive your application by April 20, 2020. Applicants must file all submissions electronically via Regulations.gov. For alternatives to online submissions, please contact Sandy McKinzy at (202) 395-9483 before transmitting your application and in advance of the deadline.
More details at the link.
It's going to be interesting to see who the administration selects for these rosters. It would also be interesting to see who applied but did not get chosen, but I don't think that information will be made public. (But feel free to mention it in the comments if you apply!)
I'm not sure there will be many Chapter 31 disputes, but I can imagine that the rapid response labor mechanism will be busy.
