The USMCA Secretariat has posted information on the panel members in the Dairy TRQ case:
Panel Selection — Dairy Tariff-Rate Quotas
On July 5, 2021, the Parties to the Canada-United States-Mexico Agreement, Chapter 31 dispute Dairy TRQ Allocation Measures (CDA-USA-2021-31-01) completed the Panel selection process. The Panel is composed of the following individuals:
- Elbio Oscar Rosselli Frieri, Chair, by agreement of the disputing Parties
- Julie Bédard, Appointed by the United States, the complaining Party
- Mark C. Hansen, Appointed by Canada, the responding Party
Recall that USMCA Article 31.9 provides the following on panel composition:
Article 31.9: Panel Composition
1. If there are two disputing Parties, the following procedures shall apply:
(a) The panel shall comprise five members, unless the disputing Parties agree to a panel comprised of three members.
(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.
(c) If the responding Party refuses to participate in or fails to appear for the choosing by lot procedure, the complaining Party shall select an individual from the roster who is not a citizen of that Party. The complaining Party shall notify the responding Party of the selection no later than the next working day.
(d) Within 15 days of selection of the chair, each disputing Party shall select two panelists who are citizens of the other disputing Party.
(e) If a disputing Party fails to select its panelists within that period, those panelists shall be selected by lot from among the roster members who are citizens of the other disputing Party.
(f) If the responding Party refuses to participate in or fails to appear for the choosing by lot procedure, the complaining Party shall select two individuals from the roster who are citizens of the complaining Party. The complaining Party shall notify the responding Party of the selections no later than the next working day.
The first thing to note here is that under sub-paragraph (a), there would normally be 5 panel members, as there were in all three NAFTA panels, but here the parties agreed to 3. (There may not be much of a story to this other than cost savings.)
The second thing to note is how the panelists are chosen, which is a bit unique: USMCA carries over from NAFTA an approach under which parties select citizens of the other party, so here Canada is selecting an American, and the U.S. is selecting a Canadian. (That's not normally how things are done with panelist composition under trade agreements.) When putting forward their slate of roster candidates, the USMCA parties took this approach into account and nominated at least a couple citizens of the other parties, so that they would be able to choose people from their own list, not just from the list of the other parties.
The U.S. roster list is here. The U.S. choice for the USMCA dairy panel was a Canadian that it had put on its list, Julie Bedard, who is an international litigation and arbitration lawyer.
The Canadian list is not public as far as I'm aware, but based on the overall list of candidates, we can make some guesses about which non-citizens the Canadians proposed. Interestingly, the Canadian choice for the dairy panel, litigator Mark Hansen, was an American from the U.S. list.
Neither Hansen nor Bedard has extensive experience with nuts and bolts trade issues like dairy TRQs, at least as far as I can tell.
As for the chair, Elbio Oscar Rosselli Frieri has a lot of experience with WTO panels, including two Canada-U.S. lumber cases. I guess he impressed both sides!
As for what comes next, Article 31.17 says: "The panel shall present an initial report to the disputing Parties no later than 150 days after the date of the appointment of the last panelist. In cases of urgency related to perishable goods, the panel shall endeavour to present an initial report to the disputing Parties no later than 120 days after the date of the appointment of the last panelist."
