Jorge A. Huerta-Goldman
Why this Topic?
1. Thesis: Mexican Experience in the DSU, 20
years
(Supervised by P. Mavroidis)
2. One of the issues of the thesis:
 Double fora (NAFTA / WTO)
Agenda
1.
2.
3.
4.
5.
6.
The Double Fora (WTO / NAFTA)
Mexico - Soft Drinks
NAFTA Ch. 11 Cases
Hypothetical Examples
Comparative Chart
Questions
1. The Double Fora (WTO / NAFTA)
1. The WTO and the Covered Agreements

Covered agreements (substantive law)

DSU (procedural law)
2. The NAFTA

Chapter XX - Dispute Settlement Procedures

Chapter XIX - Review and Dispute Settlement in AD
and CVD

Chapter XI - Investment
◦
◦
Part A- Investment (substantive law)
Part B - Settlement of Disputes (procedural law)
2. Mexico - Soft Drinks

Sugar is Mexico’s largest
agricultural industry.

More than 300,000 jobs in
the sugar industry.

2.2 million people depending
on the industry.

US market access problems.

Substitutes of sugar (HFCS).
2. Mexico - Soft Drinks

Mexico imposed ADD to HFCS.
◦ WTO and NAFTA XIX cases

Mexico expropriated mills.
◦ NAFTA Ch. 11 Cases

Mexico imposed 20% tax (NT).
◦ Soft drinks
◦ NAFTA Ch. 11 Cases
2. Mexico - Soft Drinks

The US challenged LIEPS from 2002

Issues in front of the Panel
◦ (Different treatment for Mexican sugar and other sweeteners).
◦ Request to decline jurisdiction in favor Chapter 20 of NAFTA
◦ Claims under Article III of the GATT 1994 (NT)
◦ Defense under Article XX.(d) of the GATT 1994
◦ Mexico´s request on certain actions by the Panel:
 To carefully formulate its findings and recommendations to
avoid a pre-judgment of other legal rights—i.e., investor-state
disputes under Chapter 11 of NAFTA.
 To recommend the parties to take steps to solve the
sweeteners dispute—i.e., market access to Mexican sugar to
the US market under the NAFTA.

US won.
3. NAFTA CH 11 Cases
4. Hypothetical Examples

Hypothetical Example 1
◦ Assume the LIEPS exempts HFCS from
Guatemala but not from the US.
◦ We may have the same claims but for MFN
4. Hypothetical Examples

Hypothetical Example 2
◦ In Case C-265/95 Commission Vs France.
 Adoption of all necessary and proportionate
measures in order to allow free movement of goods
 Actions by private individuals
 France lost the case
◦ Assume warehouse / transportation services in France
by Spanish trader.
◦ Violation of Art.1105 NAFTA (Minimum Standard)?
5. Comparative Chart
6. Questions





Could we have other cases in WTO/NAFTA 11 beyond
NT / MFN / minimum standard?
What if both remedies are applied?
(N or I = X – NAFTA 11 remedy?)
What if one panel says black and the other says
white?
Is WTO ready to deal with parallel cases under NAFTA
Ch. 11? Is ICSID ready?
Would a finding in one forum be equally effective in the
other forum?