The first CPTPP panel report, in the Canada - Dairy TRQs case, was just circulated. A case on similar issues has already been litigated under the USMCA, and a new USMCA case is currently being litigated.
At this point, I have just two small things to note about the panel report.
First, there was some disagreement about the role that the prior CUSMA (i.e. USMCA) panel report on similar issues should play here:
49. ... New Zealand contended that the decision by the Canada-United States-Mexico Agreement (CUSMA) panel in Canada –Dairy TRQ Allocation Measures is “highly pertinent” to this Panel’s determination, given the nearly identical provisions on limiting access to an allocation to processors (the “Processor Clause”) in the CUSMA and the CPTPP.32 Canada responded that the CUSMA dairy panel determination is both not relevant to this Panel’s interpretation of the CPTPP Processor Clause and is flawed.33 Australia, as a third-party participant, agreed with New Zealand that the CUSMA decision is highly pertinent because the obligation with respect to processors is identical in the two treaties, and because of the need to avoid contradictory decisions.34 Another third party, Japan, cautioned the Panel to ensure that its decision was made in reliance on VCLT Articles 31 and 32.35
50. The Panel took note of the CUSMA panel report and found it to be informative, but notes that the CUSMA report is not binding on the Panel, nor have any of the provisions in CUSMA been incorporated into the CPTPP. The Panel conducted its own assessment of the claims made under the CPTPP following the requirements of Article 28.12(3) of the CPTPP to render determinations in accordance with Articles 31 and 32 of the VCLT. ...
So you have New Zealand and Australia saying the CUSMA panel report is "highly pertinent"; Canada saying it is "not relevant"; and Japan saying rely on the VCLT. Out of that mix, the panel reached what seems like a middle ground by finding that the CUSMA report was "informative," although "not binding."
Second, there was a separate opinion/dissent in this report, with one of the panelists saying he/she would have found violations under two additional provisions.
