This special edition of Talking Disputes series discussed the recent arbitral panel report in the dispute In the Matter of Guatemala – Issues Relating to the Obligations Under Article 16.2.1(a) of the CAFTA-DR, which was initiated by the United States in 2010.
The Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR) also includes Costa Rica, El Salvador, Honduras, and Nicaragua as its parties.
The dispute centres on the alleged failure of Guatemala to enforce its domestic laws dealing with the protection of the right of association, protection of the right to organize and bargain collectively, and acceptable conditions of work. The United States argued that those failures constituted “a sustained or recurring course of action or inaction” by Guatemala and that they were “in a manner affecting trade”, in violation of the Labour Chapter of the CAFTA-DR.
The US claims were not sustained by the panel. In particular, the panel found that majority of Guatemala’s alleged failure to enforce domestic labour legislation was not done “in a manner affecting trade.”
Following a presentation on the key findings of the panel, the experts engaged in an exchange of views on the legal and policy implications of the findings, and also discussed substantive and procedural aspects of international trade and investment law, international labour standard and FTA negotiations in the context of the dispute.
Robert McDougall is an independent international trade law consultant. His areas of expertise include international economic governance, trade law, dispute settlement, digital trade, trade facilitation and sustainable development. He is also a Senior Fellow at the Centre for International Governance Innovation (CIGI) and a Visiting Senior Fellow at the Centre for Trade and Economic Integration (CTEI) of the Graduate Institute of International and Development Studies.
Robert spent 15 years as an international trade lawyer and diplomat at Global Affairs Canada (formerly Foreign Affairs and International Trade Canada), during which time he provided trade law advice and litigated disputes at the World Trade Organization (WTO). As permanent delegate to the WTO for five years, he was Canada’s representative to the Dispute Settlement Body, in negotiations to improve the dispute settlement system, and in many disputes involving Canada.
Previously, as a permanent delegate to the Organisation for Economic Cooperation and Development (OECD) in Paris, he represented Canada in activities relating to trade, agriculture, science, technology, industry, including major initiatives on innovation, digital economy and green growth.
Colette is an international trade lawyer working at the intersection of law, trade policy, and development. She is the founder and director of the Trade for Development Initiative at Sidley Austin – a pro bono program for developing countries – and works as an independent consultant for governments and international organizations. Previously, Colette worked as an associate in Sidley’s international dispute settlement practice, representing governments in WTO disputes. Colette has worked for the Khmer Rouge Tribunal in Cambodia, researched agricultural policy in India, and advised on trade and development questions in Rwanda and Tanzania. Colette holds a J.D. from the Harvard Law School and an MPP from the Harvard Kennedy School of Government. She publishes regularly on issues related to the WTO, trade and sustainable development. Colette is fluent in English, Dutch, French and Spanish.
Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Co-Director of the Institute’s Centre for Trade and Economic Integration. He is also the Murase Visiting Professor of Law at Georgetown Law Center in Washington DC and leads the www.tradelab.org network of legal clinics on international economic law.
Before joining the Graduate Institute, Joost was a tenured professor at Duke Law School. He served as legal officer at the WTO from 1996 to 2002 and practiced law at a major Brussels law firm.
Joost advises governments and non-state actors in dispute settlement under the WTO and FTAs and investor-state arbitration. From 2007 to 2014 he was Senior Advisor with the law firm of King & Spalding LLP.
Joost received degrees from the Universities of Namur and Leuven, Belgium as well as Oxford University and holds a doctorate from the University of Neuchâtel. He was appointed on the roster of WTO panelists and as arbitrator under Free Trade Agreements and the Energy Charter Treaty. He is a Member of the ICSID Panel of Conciliators. Joost is the author of one of the leading case books on International Trade Law (Aspen, 2016, 3nd ed., with A. Guzman & J. Hillman). In 2015, he was appointed as Co-Editor in Chief of the Journal of International Economic Law.
Pablo Lazo-Grandi is a Chilean Lawyer, who recently chaired the revision of the ILO Tripartite Declaration on EMNs, is also member of the ILO’s Advisory Committee on the workers’ rights in globalized economies and has been a Senior Advisor to the Chilean Director General of International Economic Affairs and responsible for labour and civil society issues in trade negotiations of the Chilean Foreign Affairs Ministry for 13 years since 2001. He previously held different senior positions in the Chilean Labour Ministry for 11 years, including Head of International Relations; Executive Secretary of the Canada-Chile Labour Agreement; Pro-tempore Secretary of the Inter-American Labour Ministers Conference and Deputy Director of Labour. He has been actively engaged in cooperative activities as consultant and expert at the International Labour Organization (ILO), Organization of American States (OAS), APEC Human Resources Development Working Group Interamerican Development Bank (IDB), World Trade Organization (WTO), World Bank (WB) and other governmental, private, trade-union and NGOs agencies and organizations through the Americas and Asia. He has been actively engaged in negotiations on this subject with different countries and involved in Corporate Social Responsibility issues especially in the discussions of UN, ILO, ISO, and in other specialized fora, including Business and Human Rights. His extensive publications on this issue include "Trade Agreements and their Relation to Labour Standards: The Current State of Art", International Centre for Trade and Sustainable Development (ICTSD) (Geneva). 2010.
Doug Palmer is one of the most experienced trade reporters in Washington after nearly 15 years on the beat. He was on the scene when efforts to launch world trade talks failed in Seattle in 1999 to the delight of thousands of protesters who clashed with police throughout the week. Since then, Palmer has covered trade negotiations with more than a dozen countries as well as the long-running Doha round of world trade negotiations, which was launched in 2001 and still has not successfully concluded. Palmer's job currently includes keeping tabs on trade frictions with China and negotiations on two huge regional free regional trade agreements, the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership.