Arbitrator’s decision in US – Tuna II (Mexico) to determine the level of concessions in WTO law: the final outcome?

For more than 25 years, Mexico has been challenging the rules of the United States as to how to properly label canned tuna products, as well as other trade barriers that coexist with the legal regime regulating the import and sales of this product. In its decision from 25 April 2017, the World Trade Organization’s Arbitrator determined the level of concessions at which Mexico would be allowed to suspend its commitments to the United States under World Trade Organization law. Consequently, Mexico was entitled to suspend its concessions towards the United States in the respective amount. On 22 May 2017, the Dispute Settlement Body of the World Trade Organization authorized this suspension. Thus, Mexico’s challenge may finally become successful if the Arbitrator’s decision can induce the United States to bring its domestic law into compliance with World Trade Organization law. The author here provides an overview of the decision from 25 April 2017, along with a brief analysis in the context of the trade disputes surrounding tuna products. As a starting point, the author explores this context based on previous disputes regarding the United States’ trade regime on tuna. Then, the article articulates how the Arbitrator came to its decision. As a result of this analysis, the author puts forward two main findings. Firstly, the decision itself does not revolutionize the procedure under Article 22.6 of the DSU. However, it may provide for another dimension of the so-called sequencing problem that shed light on the issue from a different perspective.

About the author: Aleksey Petrenko – Doctoral Student, Georg-August-Universität Göttingen, Göttingen, Ger­many; Expert, WTO Expertise Center.

Citation: Petrenko A. Reshenie arbitra v US – Tuna II (Mexico) o dopustimykh predelakh otvetnykh mer v prave VTO: itog sporov? [Arbitrator’s decision in US – Tuna II (Mexico) to determine the level of concessions in WTO law: the final outcome]. Mezhdunarodnoe pravosudie, 2017, no.4, pp.3–17. (In Russian).

References

Bossche PV.d. (2005) The Law and Policy of the World Trade Organization, New York: Cambridge University Press.

Houston-McMillan J. (2015) A Critical Analysis of the Legitimate Regulatory Distinction Test as Conceived in US-Glove Cigarettes, US-Tuna II and US-COOL. Available at: http://www.sielnet.org/resources/Houston-McMillan%20-%20winner.pdf (accessed: 24.10.2017).

Mavroidis P.C. (2013) Driftin' too far from shore – why the test for compliance with the TBT Agreement developed by the WTO Appellate Body is wrong, and what should the AB have done instead. World Trade Review, vol.12, no.1, pp.509–531.

Palmeter D. (2008) The WTO Dispute Settlement System in the Next Ten Years. In: Janow M.E., Donaldson V., Yanovich A. (eds.) The WTO at Ten: Governance, Dispute Settlement, and Developing Countries, New York: Juris Publishing, pp.845–854.

Schrijver N. (2008) The Evolution of Sustainable Development in International Law: Inception, Meaning and Status. Collected Course of the Hague Academy of International Law, vol.329, pp.217–412.

Smbatyan A.S. (2006) Mezhdunarodnye torgovye spory v GATT/VTO: izbrannye resheniya (1952–2005 gg.) [International trade disputes in the GATT/ WTO: selected decisions (1952–2005)], Moscow: Wolters Kluwer. (In Russian).