As discussed here, one key issue in the U.S. claim against Guatemala under the CAFTA labor provisions is whether that failure to enforce labor laws was done "in a manner affecting trade between the Parties." In its written submission, Guatemala criticizes the U.S. view of this standard as overly expansive. It can't, they say, be the same broad standard for "affecting" as under GATT Article III:4, which is a completely different context of the word "affecting."
I'm sympathetic to that view, but it's not clear to me what Guatemala's alternative is. Here's one point they make:
458. By contrast, while the labor commitments in Chapter 16 are important, they are a carefully negotiated set of disciplines that are limited in scope in recognition of the fact that the CAFTA-DR is not a labor agreement, but rather a trade agreement. Article 16.2.1(a) provides a cause of action that is even more limited in scope and is subject to strict conditions, as reflected in its various clauses containing cumulative conditions that must be met by the complaining party. There is therefore no basis for an expansive interpretation of the terms “affecting trade” in Article 16.2.1(a). On the contrary, as Guatemala explained in Section VI, Article 16.2.1(a) is intended to establish a high threshold requiring an unambiguous showing that the challenged conduct has had an effect on trade between the Parties. In the absence of such a showing, there is no justification to use the CAFTA-DR as a mechanism to enforce a Party’s domestic labor laws.
They also say this:
461. Furthermore, as explained earlier, the third clause of Article 16.2.1(a), which reads “in a manner affecting trade between the Parties” is linked back to the preceding clauses through the terms “in a manner”. The third clause of Article 16.2.1(a) sets out an additional condition that concerns the intended consequence of the Party’s “course of action or inaction”. The intended consequence is to “affect[] trade between the Parties”. The term “affect” means to “[h]ave an effect on” and was included in present continuous. This, in turn, means that there must be an existing and continuous relationship of cause and effect between the “course of action or inaction” and the alleged trade effects.
But I'm just not sure what all this would mean in practice. They conclude with this:
471. The fact is that any link between the United States’ allegations and trade between the Parties of CAFTA-DR is negligible at best. As Guatemala underscored earlier, none of the 16 Guatemalan companies targeted in the United States’ complaint exports to the other CAFTA-DR Parties, except one. The exports of this one company to CAFTA-DR Parties in 2014 amounted to less than US$13,000.
So maybe it's about identifying actual, competing exports of a certain amount? There must be specific industries who trade significant amounts, and are in competition with each other?
