NAFTA requires that in certain types of disputes, if the defending party makes such a request, NAFTA rather than any other forum should be the sole venue of the dispute. In this case, the United States said NAFTA, rather than the WTO, is the proper forum to hear a challenge by Mexico to U.S. 'dolphin safe' labeling provisions for tuna and tuna products.
'In the NAFTA, the United States, Canada and Mexico agreed to give a defending party the right to choose NAFTA dispute settlement in circumstances such as these, and we are seeking to enforce this right,' said Nkenge Harmon, a spokesperson for the Office of the U.S. Trade Representative, in a statement.
The U.S. dolphin safe labeling provisions at issue in the WTO dispute establish conditions in which tuna products may voluntarily be labeled 'dolphin safe' and provide that tuna sellers may not label their products as 'dolphin safe' if the tuna is caught by intentionally encircling dolphins with purse seine nets. Many Mexican fishing vessels use this technique to fish for tuna.
NAFTA rules provide that once a responding party invokes the choice of forum provision, the complaining party must withdraw from the WTO proceedings and may pursue the dispute solely under the NAFTA.
On March 9, 2009 Mexico requested that a WTO panel be established to review its claims that U.S. law limiting the use of the 'dolphin safe' label on tuna and tuna products is inconsistent with U.S. obligations under the WTO Agreement.
The United States and Mexico held consultations on the choice of forum dispute in December 2009. When consultations did not resolve the dispute, the United States requested the NAFTA Free Trade Commission, which is composed of the NAFTA countries' trade ministers or their designees, meet to discuss the matter. The commission met May 7, but was also unable to resolve the dispute.
