Monday, August 13, 2012
I am just back from a week in Boston with a side trip to Portland, Maine. A few lobsters gave their lives for me and my family. Ditto a few dozen clams and sundry other sea creatures.
While we were in Maine, the local news was covering a dispute between Maine lobster-men and their New Brunswick, Canada counterparts. Because of the glut of lobsters, prices have fallen. The New Brunswick industry wants to keep low priced Maine lobsters out of the market and protested by literally blockading the Maine lobster boats from dropping their haul at New Brunswick processing plants.
This raised several questions in my head. First, what "processing" is done to lobsters? Most are pegged or banded in the boat and then live out the remainder of their lives in tanks waiting to be steamed or otherwise prepared. I suppose there are also industrial producers making frozen tails, lobster meat salad, and other goodies.
The second question I had was whether anyone was taking any legal action as a result. It turns out that the Maine industry did get an injunction against further protests. Also, Maine Senator Olympia Snowe has asked the State Department to help resolve the dispute. Her press release and letter to Secretary of State Clinton is here.
In my mind, this looked like a potential NAFTA Chapter 11 issue. I wondered whether the actions of the Canadian industry might count as a "measure" that is in violation of the national treatment provisions of the agreement. Certainly, the U.S. product is being treated in a manner that is less favorable than the local industry in similar circumstances because only the U.S.-origin lobster is being prevented from entering the processing plants. In intent and effect, the blockade hinders only the U.S. industry.
Second, I wonder whether there is an investment in Canada that is being harmed. Probably not. The Maine industry, as I understand it, just drops its catch in New Brunswick for processing. But, the recent NAFTA panel decision involving Cargill's sales of high fructose corn syrup to Mexico provided a very broad definition of an investment to include, in part, the development of a supply chain. So, may be there is an investment in the broader North American market that can be protected via NAFTA Chapter 11.
But, this is a private action, not a measure adopted by the government, so that is a problem for my theory. The current lack of a governmental measure probably means there is no NAFTA case. That, of course, does not prevent me from musing on the topic, which might end up as an law school exam question at some point.