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McMillan LLP’s CUSMA Dispute Settlement Scoreboard

March 11, 2022 Regulatory Law Bulletin 3 minute read

Introduction

The Canada-United States-Mexico Agreement (“CUSMA”) [1] entered into force on July 1, 2020, replacing the two and a half decade-old North American Free Trade Agreement (“NAFTA”).

Despite remaining one of the largest and deepest trade relationships in the world, [2] various prominent trade disputes have arisen between Canada, Mexico and the United States under the CUSMA.

We are pleased to introduce the “McMillan LLP CUSMA Dispute Settlement Scoreboard”, which provides overview and analysis of ongoing and concluded CUSMA disputes. The Scoreboard keeps a running tally of who has scored “points” in dispute settlement under CUSMA.

The Scoreboard provides the views of McMillan LLP International Trade Group. Points are granted based on which side ultimately prevailed in the dispute (ie, the country whose position the decision-maker ultimately favoured), in conjunction with the decision’s broader impact. [3]

The views expressed through this Scoreboard are those of the authors, and do not necessarily represent those of the firm more broadly, nor does this constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

Background on the relevant dispute settlement mechanisms contained in the CUSMA [4] can be found in the pages following the Scoreboard.

The Score

As of February 18, 2022, ten disputes have been initiated under CUSMA and two have been decided by panels.[5] The score stands at United States: 1, Canada: 1, with Mexico remaining for now on the sidelines, albeit with cases of its own before panels. See our Scoreboard below for more information and analysis on each dispute. McMillan LLP will update this resource as information on CUSMA disputes becomes available.

CUSMA total table
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CUSMA Table Chapter 31
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CUSMA Table Chapter 10
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CUSMA Table Chapter 14
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[1] Known in the United States as the United States–Mexico-Canada Agreement (“USMCA”)
[2] The value of international trade between Canada, Mexico and the United States was over USD $ 1.1 trillion in merchandise in 2019
[3 ] For example, if a country launches a dispute against another with 10 unique claims, and that country is successful in only one of those 10, it is entirely possible that the Scoreboard would accord the point to the defending party (especially if the only claim on which the complaining party was successful was minor or of less important).
[4] These are Chapter 10, Trade Remedies Binational Panel Review; Chapter 14, Investor-State Dispute Settlement as between Mexico and the United States; and Chapter 31, General Dispute Settlement.
[5] This does not include disputes that continue under NAFTA, which we have excluded from the Scoreboard.

by William Pellerin and Philip Kariam

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2022

 

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