McMillan LLP’s CUSMA Dispute Settlement Scoreboard

The United States challenged Canada’s dairy tariff rate quota (“TRQs”) allocation under several CUSMA provisions, including Article 3.A.2.11(b), which prohibits allocating a portion of a quota to processors.

Canada challenged the United States’ application of safeguards on solar products from Canada as a violation of, among other provisions, Article 10.2.1. That obligation prevents the application of safeguards to a Party unless imports from that Party “account for a substantial share of total imports” and “contribute importantly to the serious injury.”

Mexico challenged the United States’ approach to determining regional value content for certain vehicles under CUSMA’s rules of origin (Article 4.2). It argued that regional value content should include 100% of the value of “core parts” that are found to be originating in a CUSMA Party, even when part of the value of the core part does not originate in a CUSMA Party. Canada joined Mexico in the dispute.

The United States again challenged Canada’s dairy TRQ allocation policies, alleging that Canada has breached its CUSMA obligations by making certain types of importers ineligible to apply for a dairy TRQ allocation, unfairly limiting eligible applicants and their allocation based on their market share, and restricting importers’ ability to utilize their TRQ quantities fully by requiring them to return unused allocations four months prior to the end of the year.

Canada and the United States allege that 2021 amendments to Mexico’s energy laws prioritize electricity produced by Mexico’s state-owned entities over electricity produced by private producers in the dispatch of electricity to Mexico’s electricity grid. They allege that this is in violation of CUSMA’s non-discrimination obligation (Article 2.3), among other provisions.

The United States alleges that Mexico is effectively banning imports of certain genetically engineered products, namely corn, canola, cotton and soybean, in violation of the sanitary and phytosanitary measures chapter of CUSMA (Chapter 9) as well as CUSMA’s prohibition on import restrictions (Article 2.11).

The United States requested consultations with Canada over its digital services tax (“DST”), a 3% tax on revenue generated from digital services provided to Canadian users by large multinational companies. The United States alleges that the DST targets American companies while favouring Canadian companies in violation of Articles 15.3 and 14.4.

The complainant (CGC Inc.) challenged the Canadian International Trade Tribunal’s decision not to conduct an interim review of its 2017 injury determination with respect to gypsum board. It argued that the test the CITT applied to find a “regional market” was erroneous.

The complainants, a group that includes the Government of Canada, several Canadian provinces, lumber associations and producers, challenge the US Department of Commerce’s final CVD determination in the first administrative review in Certain Softwood Lumber Products from Canada.

The complainants challenge the US Department of Commerce’s final AD determination in the first administrative review in Certain Softwood Lumber Products from Canada. Canada, one complainant, challenges (1) Commerce’s application of the “differential pricing methodology” to determine the method of calculating weighted-average dumping margins, and (2) Commerce’s use of “zeroing” in its comparison methodologies.

The complaint alleges that the US Department of Commerce’s final AD determination in the administrative review of the AD order in Carbon and Certain Alloy Steel Wire Rod from Mexico is unsupported by substantial evidence on the record or otherwise not in accordance with law. Specifically, Deacero argues that the Department of Commerce incorrectly accounted for s. 232 national security tariffs on steel and the United States’ commitments to Mexico in its determination of anti-dumping duties [6].

The complainant (Deacero) challenges the US Department of Commerce’s final AD determination in the administrative review of Steel Concrete Reinforcing Bar From Mexico. It argues that Commerce incorrectly accounted for s. 232 national security tariffs on steel and the United States’ commitments to Mexico in its determination of anti-dumping duties.

The complainants challenge the US Department of Commerce’s final CVD determination in the second administrative review of Certain Softwood Lumber Products from Canada.

The complainants challenge the US Department of Commerce’s final AD determination in the second administrative review of Certain Softwood Lumber Products from Canada.

The complainants argue that the Department of Commerce incorrectly calculated Evraz’s revenue when determining antidumping duty margins in the administrative review of the AD order in Large Diameter Welded Pipe from Canada.

The complainants allege that the US Department of Commerce’s final CVD determination in the third administrative review of the AD order in Certain Softwood Lumber Products from Canada is unsupported by substantial evidence on the record or otherwise not in accordance with law. For example, complainants argue that Commerce’s use of Nova Scotia as a benchmark for other provinces is unfounded, as are its findings with regard to specific grant and incentive programs.

The complainants allege that the US Department of Commerce’s final AD determination in the third administrative review of the AD order in Certain Softwood Lumber Products from Canada is unsupported by substantial evidence on the record or otherwise not in accordance with law. This includes, for example, Commerce’s use of certain methods for calculating the margin of dumping, which the complainants argue was flawed.

Grupo Acerero alleges that the US Department of Commerce’s final AD determination in the seventh administrative review of the AD order in Steel Concrete Reinforcing Bar from Mexico is unsupported by substantial evidence on the record and not in accordance with law. Specifically, it contends that Commerce erred by allocating credit note adjustments provided to customers on a per-unit basis rather than allocating them to sales on a monthly, customer-specific basis.

The complainants allege that the US Department of Commerce’s final AD determination in the fourth administrative review of the CVD order in Certain Softwood Lumber Products from Canada is unsupported by substantial evidence on the record or otherwise not in accordance with law. They raise several allegations, including Commerce erred by treating stumpage prices, tax credits and other non-tax programs as countervailable subsidies.

The complainants allege that the US International Trade Commission’s determinations that revocation of the antidumping duty and countervailing duty orders on softwood lumber products would be likely to lead to continuation or recurrence of material injury to the US softwood lumber industry were flawed. The claims relate to the ITC’s assessment of competitive conditions, likely import volumes and prices, and the likely impact on the US softwood lumber industry.

The Government of Canada and ArcelorMittal Dofasco requested panel review of the US Department of Commerce’s final determination of Tin Mill Products From Canada. However, no complaint was timely filed and, as such, panel review was completed.

Grupo Acerero seeks panel review of the US Department of Commerce’s final AD determination in the eighth administrative review of the AD order in Steel Concrete Reinforcing Bar from Mexico.

Canada challenges the US Department of Commerce’s final AD determination in the fifth administrative review of the AD order in Certain Softwood Lumber Products from Canada.

Canada challenges the US Department of Commerce’s final CVD determination in the fifth administrative review of the CVD order in Certain Softwood Lumber Products from Canada.

The claimants, a group including Mexican manufacturers, producers and exporters, challenge the US Department of Commerce’s (“Commerce”) final determination in the countervailing duty investigation of Aluminum Extrusions from Mexico. They take issue with Commerce’s findings related to scope issues, arguing that Commerce unlawfully expanded the investigation’s scope by abandoning the substantial transformation test, improperly included aluminum-bladed Security Windows within the scope of the investigation, and did not exclude HVAC Vents and Registers with Gaskets from the investigation’s scope.

Point to: –

The claimants challenge the US Department of Commerce’s (“Commerce”) final determination in the antidumping duty investigation of Aluminum Extrusions from Mexico. They take issue with Commerce’s findings related to scope issues, arguing that Commerce unlawfully expanded the investigation’s scope by abandoning the substantial transformation test, improperly included aluminum-bladed Security Windows within the scope of the investigation, and did not exclude HVAC Vents and Registers with Gaskets from the investigation’s scope.

Point to: –

The claimants entered into several oilfield service contracts with Petroleos Mexicanos (“Pemex”), Mexico’s state-owned oil company. They allege that Pemex breached those contracts, leading to litigation that either had to be abandoned or was wrongly decided in favour of Pemex. The claimants also allege that Mexico compromised with and paid similarly situated Mexican oilfield service companies. The claims are brought under the national treatment (Article 14.4) and minimum standard of treatment (Article 14.6) obligations of USMCA, in addition to comparable NAFTA obligations.