IM-Johnson_2023_1211.pub

The panel found that Canada’s practice of limiting access only to processors (to the exclusion of other industry participants) for 85 to 100 percent of the 14 dairy TRQs violated Canada’s CUSMA obligations. [...] The US argued that Canada’s procedures violated the CUSMA requirement that allocation to eligible applicants be equitable and transparent if the aggregate TRQ quantity requested exceeded the quota size. [...] The US argued that Canada’s procedures failed to ensure that each allocation be made in commercially viable shipping quantities and, to the maximum extent possible, in the quantities requested by the applicant. [...] The panel was not convinced by the US argument that Canada’s procedures breached the CUSMA rules respecting return and reallocation of unused allocations. [...] The separate opinion pointed out that the expression “eligible applicants” is not qualified in the CUSMA text and cannot be restricted to “processors, further processors, or distributors exclusively.” The separate opinion contained other useful observations, such as the lack of an import history on the part of an applicant cannot be held to be a lack of activity in the Canadian food and agricultur.