Info Service on WTO and Trade Issues (Apr16/10)
19 April 2016
Third World Network
US files dispute against itself over its 'dolphin-safe' regime?
Published in SUNS #8221 dated 14 April 2016
Geneva, 13 Apr (Kanaga Raja) -- The United States has requested a
compliance panel to examine the measures that it had adopted earlier
in March this year to bring itself into compliance with the rulings
and recommendations of the Dispute Settlement Body (DSB) in its dispute
with Mexico over the US ‘dolphin-safe' labelling regime for tuna products.
The US move has come even as the issue has been referred to arbitration
over the level of authorization to be given to Mexico against the
US over non-compliance, long after the expiry of the reasonable period
of time given to the US to comply with the rulings and recommendations
of the DSB in this ‘dolphin-safe' labelling dispute.
The US move for a new compliance panel in the dispute, when the level
of authorization to be given is before an arbitrator, is unprecedented,
and some trade observers see it as part of a delaying tactic, in the
US presidential election year, when all candidates, currently engaged
in primaries, have adopted an anti-trade (plurilateral or multilateral)
posture, and US-Mexico relations have also become an issue.
This last has arisen over the views and proposals of the leading contender
for Republican Party nomination, Mr. Donald Trump, voicing his intention,
if nominated and wins the Presidency, to erect a wall along the border
and making Mexico pay for it.
The US move for a new compliance panel deals one more blow to the
credibility of the WTO as a rules-based multilateral trading system
with rules applying in the same way to the powerful as the weakest!
At the WTO, the US has a record of having the largest number of dispute
rulings and DSB recommendations against it, some stretching back to
a few years, yet to be complied with.
And while trade officials go around the world promoting the US trade
agenda, there is a virtual conspiracy of silence on this US record.
The US compliance panel request under Article 21.5 of the Dispute
Settlement Understanding (DSU), in the "Tuna-2" dispute,
was notified to the WTO Secretariat on 11 April.
The dispute with Mexico over the US dolphin-safe labelling regime
in now at the arbitration stage in terms of Article 22.6 of the DSU.
In terms of this provision, the arbitrator is called upon to hand
down the arbitral award within 60 days.
The reference to the arbitration came about following an objection
by the US on 22 March to the level of suspension of concessions or
other obligations under the GATT 1994 that was sought by Mexico, and
the matter was automatically referred to arbitration as per Article
The arbitration panel is to rule on the level of retaliation to be
allowed over a request by Mexico for authorisation to retaliate to
the tune of $472.3 million annually in its dispute with the United
States on its ‘dolphin-safe' labelling regime for tuna products.
Mexico has sought the authorisation of the WTO over the US failure
to implement the DSB's adopted panel rulings and recommendations on
The US-Mexico tuna dispute had featured at a meeting of the DSB on
23 March under the agenda item of US measures concerning the importation,
marketing and sale of tuna and tuna products - recourse to Article
22.2 of the Dispute Settlement Understanding (DSU) by Mexico.
Mexico had informed that DSB meeting that it is going to pursue its
arbitration proceedings despite an announcement by the US National
Oceanic and Atmospheric Administration (NOAA) on 22 March that the
US would be further amending the ‘dolphin-safe' regulation to comply
with the WTO ruling.
Mexico said that it is still carrying out a full analysis of the announcement
by the NOAA.
[A DSU Article 21.5 Appellate Body report of 20 November 2015, on
US compliance with the adopted rulings/ recommendations in this dispute,
had found that the US had not brought its dolphin-safe labelling regime
for tuna products into conformity with the recommendations and rulings
of the DSB.
[A compliance panel under Article 21.5 had earlier on 14 April 2015
largely ruled that an amended measure instituted by the US concerning
the importation, marketing and sale of tuna and tuna products from
Mexico is inconsistent with its WTO obligations. (See SUNS #8141 dated
24 November 2015).
[On 3 December 2015, the DSB adopted the Appellate Body and compliance
panel reports in the dispute, and on 11 March 2016, Mexico sought
authorisation from the DSB to suspend the application to the US of
tariff concessions and other related obligations in the goods sector
under the GATT 1994 in the amount of $472.3 million annually (see
SUNS #8209 dated 29 March 2016).]
According to trade officials, the request for a compliance panel by
the US now is with respect to its own new NOAA measure published on
23 March and outlined in "Enhanced document requirements and
captain training requirements to support use of the dolphin-safe label
on tuna products."
A post by Simon Lester on the US request for a compliance panel at
the International Economic Law and Policy (IELP) blog, says: "I'm
assuming it will be the same people serving on the 21.5 compliance
panel and the 22.6 arbitration panel. How will they coordinate these
processes in terms of timing?"
(The post can be found at: http://worldtradelaw.typepad.com/ielpblog/2016/04/tuna-compliance-update.html)
If this does happen, this would mean that the arbitration has run
into the problem raised by the US that its latest measures comply
with the ruling and DSB recommendations, but adjudicating on this
new US claim being beyond the arbitrator's remit, this manoeuver is
being resorted to. +