Factfinding Jurisdiction: A Review of the Determination from the First USMCA Rapid Response Labor Mechanism Panel

Abstract

The first panel constituted under the United States-Mexico-Canada Agreement Facility-Specific Rapid Response Labor Mechanism (RRM) determined that it did not have jurisdiction over the situation presented to it by the United States. This Essay argues that the panel reached this conclusion based on a misperception of its mandate. Whereas the panel saw itself as a traditional adjudicatory body, the framing of an RRM panel’s mandate – to determine whether there has been a denial of labour rights at a worksite – is more similar to a factfinding mission’s mandate in international human rights law than it is to a state-to-state dispute settlement tasking as found in other areas of international economic law. Seeing the panel’s mandate this way makes it easier to understand how the procedural, methodological, and jurisprudential analyses of the panel and the parties converged in a murky hybrid.