Briefly Noted

Abstract

On September 5, 2023, the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership Panel (CPTPP Panel or the Panel) issued its first decision. The case was initiated in May 2022 by New Zealand which claimed that Canada's system for the administration of its tariff rate quotas on dairy projects is inconsistent with Canada's obligations under the Partnership Agreement. After consultations with Canada failed, New Zealand requested that a panel under Article 28.7 of the Agreement be established to examine the issue. There was a dispute about the role to be played by a prior decision of the US-Mexico-Canada Agreement (USMCA) Panel on similar issues. New Zealand felt that the USMCA Panel decision was “highly pertinent” because of the similarities between relevant provisions in the two agreements, but Canada disagreed, arguing that not only is the USMCA decision irrelevant but that its interpretation of the relevant provisions was incorrect. Australia, which intervened as a third party participant, agreed with New Zealand, pointing to the need to ensure consistent decisions concerning what it deemed were identical provisions in the two agreements. Japan, another third party participant, suggested that the panel ensure that its decision was made in reliance on Articles 31 and 32 of the Vienna Convention on the Law of Treaties (concerning rules of interpretation).