When I say "another" in the title, I mean that in two senses: a second USMCA Canada - Dairy TRQs panel brought by the U.S.; and another one to complement the one recently brought by New Zealand under the CPTPP.
The U.S. first written submission in the dispute is here. It sets out the panel composition details as follows:
30. On February 2, 2023, pursuant to Article 31.9.1(a) of the USMCA, the Parties agreed to a panel comprised of three members. On February 24, 2023, pursuant to Article 31.9.1(b) of the USMCA, the Parties selected Mr. Mateo Diego Fernández, a citizen of Mexico, as the Panel Chair. On March 13, 2023, pursuant to Article 31.9.1(d), Canada selected Ms. Kathleen Claussen, a citizen of the United States, and the United States selected Mr. Serge Fréchette, a citizen of Canada, to serve as the other members of the Panel.
Compare those panelists to the ones in the original Canada - Dairy TRQs USMCA dispute and the ones in the recently begun Canada - Dairy TRQs CPTPP dispute. So that's three separate panels, with three separate panel compositions, who will be weighing in on similar issues.
Why start a new USMCA proceeding on Canada's dairy TRQs rather do a follow-up complaint alleging that Canada has not come into compliance with the original ruling? Here's something I wrote about this in a previous post:
So, instead of moving forward with tariff retaliation now pursuant to the earlier panel ruling, as it seems like the rules permit, USTR is bringing a complaint against the new measures.
Why is USTR taking this approach? I speculated on Twitter that maybe in this economic climate, with all the concerns about inflation, and the calls to scale back the Section 301 tariffs to help bring down prices, USTR is wary of proposing new tariffs, even ones taken pursuant to enforcing compliance with a trade agreement. However, at the Georgetown Law International Trade Update today, a USTR official's answer when asked about their strategy here, if I understood it correctly, seemed to emphasize the fact that the USMCA panel ruling focused on one particular issue and the panel had exercised judicial economy on other issues, and also there were some other policy changes of concern in the new Canadian measures. Therefore, USTR filed a new complaint. Nonetheless, I still wonder whether, under the USMCA rules, USTR could just argue that the parties have been "unable to agree on a resolution to the dispute" here and therefore they are going to impose the retaliation now.
