The roster of panelists for USMCA Chapter 31 state-state dispute settlement is out (the list of rapid response labor panelists for the Canada-Mexico mechanism is here, and for the U.S.-Mexico mechanism is here). Recall that the absence of a roster under NAFTA appears to have been a cause of the blocked panel in a NAFTA Chapter 20 dispute, and that ensuring the composition of panels under the USMCA was a big concern during the negotiations. Now that there is a roster, and also that certain other provisions of the dispute settlement chapter have been changed, there shouldn't be a problem with panel blocking under USMCA.
Disputes under Chapter 31 may be coming soon, but in the meantime let's talk about the roster creation process for the USMCA. Unfortunately, there is very little public information on the roster creation process for trade agreements in general. This is something governments do behind the scenes and it's hard to get a sense of it, and therefore hard to write about it. But there is something about NAFTA/USMCA panelist selection in the context of composing specific panels that is unique and interesting, and I'm going to do a little speculating here about what impact it may have had on roster creation under the USMCA.
Under USMCA Article 31.8.1, each party can designate up to 10 people for the roster. The Parties "shall endeavor to achieve consensus on the appointments," but "[i]If the Parties are unable to achieve consensus by one month after the date of entry into force of this Agreement, the roster shall be comprised of the designated individuals."
From what I can see at the moment, we have the full list of 30 people on the Chapter 31 roster (the parties were able to reach consensus), and we also have the 10 individuals designated by the U.S., but we don't know for sure who Canada and Mexico put forward.
As for the U.S. list, it is weighted towards people from the field of arbitration, which is interesting. I wonder what these folks will make of trade adjudication on issues such as TRQs. (For what it's worth, based on the relevant USTR Regulations.gov page on this, it looks like there were 63 applications ("comments received") for the roster, but the number posted there may not give us an exact count.)
Subtracting the 10 from the U.S. from the total, we have 20 names on the roster that were submitted by Canada/Mexico. Out of these 20, I count 5 former AB Members/Secretariat folks. That's a lot!
Turning to my promised speculation, when thinking about the roster creation process under USMCA, it's worth noting a particular feature of NAFTA/USMCA panel selection (perhaps there are other agreements that have this, but it's certainly rare). After selecting the chair of a particular panel, when the parties are choosing panelists to serve on the panel, they each select panelists who are citizens of the other party. Here is Article 31.9.1(d):
(d) Within 15 days of selection of the chair, each disputing Party shall select two panelists who are citizens of the other disputing Party.
What that means is, parties have a stronger than normal interest in which citizens of other parties are on the roster, because they will be making their panelist picks from among the other party's citizens. If governments were picking panelists from the pool of their own citizens on the roster (or from the list of individuals they put forward anyway), they might think differently about who the citizens of other parties on the roster are, because they have less of a say in which of them gets chosen as panelists. They just want to make sure there is no one terribly biased against them on the roster, whom the other party could then select for the panel. But if, as here, governments are picking from the citizens of the other party when they choose panelists, they will want to make sure there are some good options from the other party for them to choose. One thing that means is, when governments are designating their 10 individuals under Article 31.8.1, they may want to include some people who are citizens of the other parties who they think would be good, rather than only put forward their own citizens.
In the USMCA situation, then, the parties were confronted with this question when creating the roster: How many people should they choose from each party (or from non-parties)? The specific breakdown they put forward will probably depend in part on who the other parties are putting forward. How worried is a party about the people put forward by the other parties? That will affect how they approach the decision to put non-citizens forward themselves.
It looks like the U.S. put one Canadian on its list: Julie Bédard (who also has French citizenship). It also had one non-USMCA-citizen on there: Koji Saito.
And we can also see that Americans Jennifer Hillman and Kathleen Claussen are on the roster. They were not on the U.S. list, so they must have been submitted by either Canada or Mexico.
There are also a few citizens of other countries: Saito (noted above), and Christian Haberli, Ujal Sihgh Bhatia, and Elbio Oscar Rosselli Frieri. These folks could play a role under Article 31.9.1(b):
(b) The disputing Parties shall endeavor to decide on the chair of the panel within 15 days of the delivery of the request for the establishment of the panel. If the disputing Parties are unable to decide on the chair within this period, the disputing Party chosen by lot shall select within five days as chair an individual who is not a citizen of that Party.
Under this provision, a party might want some non-citizen options to choose from, but they aren't restricted to choosing from the other party's citizens as they are with the non-chair panelists.
With all that in mind, can we or can we not assume that Canada submitted all the Canadians (aside from Julie Bédard) on the list, and Mexico submitted all the Mexicans? Despite what I said earlier about the strategy in this situation, based on the names I see there, I don't have any reason to think the Canadians submitted a Mexican name or the Mexicans submitted a Canadian name. And I don't see any way to determine who put forward Hillman, Claussen, Haberli, Bhatia, or Frieri. (Aside from asking insiders, of course! But I'm not going to speculate about that here. If it becomes public some other way, I'll come back to it).
There has been lots of talk recently about disputes coming under the USMCA. Perhaps some actual panelist selection will play out soon, and we will see who gets chosen. Here's one thing I wonder. In disputes involving the U.S., where Canada and Mexico are choosing American panelists, will these countries ever pick the Americans put forward by the U.S.? Or will the Americans picked by Canada/Mexico for the roster serve on just about all the cases that involve the U.S.?
