Following-up on this post, here are some more details, from the April 20, 2009 DSB meeting, on the NAFTA/WTO overlap in the new tuna-dolphin dispute:
77. The representative of the United States said that his country was disappointed that Mexico had chosen to move forward with its request for panel establishment a second time. .... In addition, the United States was very concerned that Mexico was proceeding with this request for another reason. On 24 March 2009, the United States had invoked Article 2005(4) of the North American Free Trade Agreement (NAFTA). In that provision, the NAFTA parties had agreed that certain disputes which pertained to matters arising under the WTO Agreement and the standards-related provisions of the NAFTA, and which concerned human, animal or plant life or health or the environment and raise factual issues regarding the environment or conservation, would be heard – at the responding party's option – solely under the NAFTA's dispute settlement procedures. This dispute met the criteria set out in that NAFTA provision, and the United States had the right to have this dispute considered under the NAFTA. The United States understood that a panel would be established at the present meeting. The United States deeply regretted Mexico's decision to seek establishment of a WTO panel despite its prior agreement with the other NAFTA parties on a choice of forum provision in their free trade agreement, and their invocation of that provision. The United States urged Mexico to reconsider its position. The United States would also be considering its options moving forward.
...
79. The representative of Mexico said that his delegation wished to comment briefly on the
statement made by the United States, and in this connection, it wished to underline a couple of issues both for the benefit of the other Members and in the interest of transparency, as well as to acknowledge the importance that Mexico attached to NAFTA. After the first request for the establishment of a panel, the United States had requested Mexico's authorities that this matter be resolved under the NAFTA dispute settlement mechanism indicating that certain provisions of NAFTA were applicable in this dispute. Mexico had always acknowledged the importance of NAFTA's dispute settlement mechanism. However, having examined that request carefully, Mexico's authorities had concluded that the provisions cited by the United States did not apply in the present dispute. Mexico had replied promptly to the United States explaining the foregoing. In that reply, it had also pointed out that, besides the legal considerations, this dispute dealt with issues that had important multilateral implications that had to be resolved in the WTO. Many countries had indicated informally that they wished to take part in, or follow up on, the dispute which would not be possible under NAFTA proceedings. Mexico considered that the substantial interest prompted by this case at international level ought also to be taken into account. Accordingly, Mexico reiterated its request for the establishment of a panel in order to settle this dispute in the WTO.80. The representative of the United States said that the present meeting was perhaps not the best place to debate the meaning of NAFTA's dispute settlement provisions. However, in light of Mexico's comments, it might be helpful to say that, at the time the NAFTA had been negotiated, the NAFTA parties understood that disputes concerning standards-related measures for the protection of human, animal or plant life or health or the environment could arise under either the NAFTA or the WTO. As a consequence, the NAFTA parties specifically included the NAFTA choice of forum provision to give the responding party the right to have such disputes heard before a NAFTA panel. The United States was very concerned that Mexico's approach would mean that NAFTA Article 2005(4) would never apply. That was certainly not the intention of the NAFTA parties, and it was a cause for serious concern. The United States appreciated Mexico's acknowledgment that the international community may have an interest in this dispute. The United States hoped that it could count on Mexico's cooperation in making sure that the proceedings in this dispute – whether in the WTO or under the NAFTA – were as transparent as possible, including by making submissions publicly available when filed and by opening the panel hearings to public observation.
The new part here, beyond what was in the old post, is Mexico's view of the issue.
NAFTA Article 2005 provides:
Article 2005: GATT Dispute Settlement
1. Subject to paragraphs 2, 3 and 4, disputes regarding any matter arising under both this Agreement and the General Agreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement (GATT), may be settled in either forum at the discretion of the complaining Party.
...
4. In any dispute referred to in paragraph 1 that arises under Section B of Chapter Seven (Sanitary and Phytosanitary Measures) or Chapter Nine (Standards-Related Measures):
(a) concerning a measure adopted or maintained by a Party to protect its human, animal or plant life or health, or to protect its environment, and
(b) that raises factual issues concerning the environment, health, safety or conservation, including directly related scientific matters,
where the responding Party requests in writing that the matter be considered under this Agreement, the complaining Party may, in respect of that matter, thereafter have recourse to dispute settlement procedures solely under this Agreement.
I hope Mexico and the United States can keep this from escalating. The prospect of Mexico pursuing its WTO complaint and then, in response, the U.S. bringing a NAFTA complaint alleging a violation of Article 2005(4), is not very appealing. It would certainly be interesting to watch, but might not be very good for the trading system.
