For submissions in this case, see Trade Agreements Secretariat (TAS) online Public Reading Room (requires free registration and login); USTR webpage on RRM (see bottom of the page); Mexican Ministry of Economy list of documents.
Background: The United Steelworkers (USW) first raised issues concerning labor rights and worker safety of Mexican mineworkers in a 2006 submission under the North American Agreement on Labor Cooperation, focused on the Pasta de Conchos mine in Coahuila.
The San Martín Mine produces lead, zinc and copper, near Sombrerete in Zacatecas. It is owned and operated by Grupo México - Mexico’s fourth largest company, world’s third largest copper producer, and parent of US copper producer Asarco. Grupo México’s majority owner is Germán Larrea Mota Velasco.
The labor dispute at the San Martín Mine began with a strike initiated in 2007 by the Mexican union Los Mineros (Sindicato Nacional de Trabajadores Mineros, Metalúrgicos, Siderúgicos y Similares de la República Mexicana). In 2018, a group of the striking workers formed a coalition under the Mexican Federal Labor Law as of 2018 (Los Trabajadores Coaligados), and a majority voted to end the strike. Los Mineros then challenged the vote in the Mexican courts. On August 22, 2018, Mexico’s Federal Mediation and Arbitration Board authorized restart of operations at the San Martín Mine.
In 2018, Mexican negotiators agreed to new standards for Mexico’s labor regime as part of USMCA, and in May 2019, Mexico implemented changes to its labor laws accordingly.
Los Mineros continued to contest the 2018 authorization of restart of operations at the Mine. On August 5, 2022 Los Mineros was reported to have filed a Rapid Response Mechanism complaint with the US related to the strike at the San Martín mine. The head of Los Mineros is Napoleón Gómez Urrutia, a Senator affiliated with the Morena party of Mexican President Lopez Obrador.
Los Mineros, Los Trabajadores Coaligados, the San Martín Mine, and the US and Mexican governments contest the significance of various judicial decisions concerning the ownership of the collective bargaining agreement with the Mine, lawfulness of the strike, the imputability of the strike, and the authorization to restart operations at the Mine.
Timeline for dispute settlement proceedings: The need to translate submissions has lengthened the timetable.
September 28, 2023: Mexico submitted a initial written submission setting out the results of the investigation and arguments that the panel lacked jurisdiction: nominal date September 28, docketed with English language translation November 16.
October 31: US reply submission (posted on USTR website but not publicly available on the TAS site).
Mexico Rebuttal Submission, and submissions by Los Mineros, the San Martín Mine and Los Trabajadores Coaligados. The US Rebuttal Submission refers to these submissions but none of them is publicly available in the TAS Public Reading Room.
December 13: US rebuttal submission (nominal date December 13; docketed with Spanish language translation January 11, 2024)
February 28-29, 2024 November 23: Hearing (originally scheduled for November 23, 2023) postponed to February 28-29, 2024)
Four days later: Panel written questions (based on schedule on TAS site)
Seven days later: Responses to written questions
Seven days later: Comments to written questions
May 9, 2024: Initial panel report (according to TAS schedule; could be postponed, triggering postponement of later steps)
May 24, 2024: Party comments on initial panel report
June 24, 2024: Final panel report transmitted to Parties
July 9, 2024: Final panel report released to public.
June 16, 2023: USTR announced US had asked Mexico to review whether workers at San Martín Mine were being denied rights to freedom of association and collective bargaining. USTR press release referred to a May 15, 2023 RRM petition by the AFL-CIO, USW and Los Mineros.
According to the USTR press release, the petition alleged that Grupo México had resumed mine operations in spite of a strike that has continued since 2007, and that Grupo México engaged in collective bargaining with a worker coalition (Los Trabajadores Coaligados) even though Los Mineros holds the representation right for that mine.
Links: USTR press release; US request to Mexican government; USTR request to Treasury Department to suspend settlement of customs accounts for imports from San Martin mine. United Steel Workers press release praising US request. El Economista on the union representation issue. La Jornada Zacatecas on the mining strike. Los Angeles Times on Los Mineros leader.
June 21: Grupo México asserted that it lawfully resumed operations at the mine in 2018 after a majority of workers voted to go back to work and withdrew support from the striking union. Grupo México also asserted politicization of this dispute by the leader of Los Mineros, connected to a past dispute concerning the Cananea mine. Links: Articles on Grupo Mexico rebuttals (Reuters, El Economista, El Universal, Wall Street Journal).
August 1: Mexican government announced that it had transmitted to US the results of its investigation of the Rapid Response Mechanism petition regarding Grupo México, and that it had determined that: (1) the US request for review relates solely to the mine in Sombrerete, Zacatecas; (2) this matter concerns a strike that began in 2007; (3) this strike, and the events complained of in the petition, took place before the entry into force of USMCA, and therefore (4) this conflict is outside the scope of the Rapid Response Mechanism; also, (5) there is no evidence that this mine exports to the US and is a Covered Facility under the RRM. Links: Mexican government press release; reports by Reuters, El Economista.
August 7: Mexican president Andres Manuel Lopez Obrador admitted that there are pending labor issues in Mexico’s mining sector but stated that Mexico will not use dispute settlement to avoid responsibility.
August 22: USTR announced that the US had escalated its request for review of denial of labor rights at the San Martín mine in Sombrerete, Zacatecas, by requesting a Rapid Response Labor Mechanism panel under Chapter 31-A of USMCA. This was the first time that any party had requested such a panel review.
US panel request asserted that the mine is a “Covered Facility” under USMCA “[d]ue to the significant bilateral trade between Mexico and the United States in copper and other minerals.” Panel request asserted denial of rights through noncompliance with four named sections of Mexico’s Federal Labor Law. August 22 USTR press release noted that suspension of customs settlement remains in place for US imports from the San Martín mine.
Mexican Ministry of Economy responded on August 22 that it had received the panel request, that it will defend Mexico’s decision in cooperation with Mexican labor authorities, asserting (i) the legal principle of non-retroactivity of treaties, and (ii) that the dispute had been handled by the competent domestic bodies therefore intrusion by a parallel USMCA process is unacceptable.
Links: USTR press release; US panel request; Ministry of Economy statement; UNAM (Universidad Autónoma Nacional de México) Center on Environmental Geography website on the San Martín mine.
Press: AP (on RRM generally and in this case); Reuters; Bloomberg/Mining.com (on Grupo México and its owner); La Jornada; El Universal (on statement by Grupo México denying any violation and criticizing Los Mineros and its leader Napoleón Gómez Urrutia). Wall Street Journal (criticizes RRM case on San Martín Mine). Los Angeles Times (on Napoleón Gómez Urrutia)
August 30: Panel was constituted for dispute under USMCA Annex 31-A concerning the San Martín mine initiated August 22. Panelists: Gary Cwitco (non-national/Canada); Lorenzo de Jesús Roel Hernández (Mexico); Kevin P. Kolben (US).
September 4: In September 1 letter to the Panel (date-stamped September 4), Mexican government Director-General for International Economic Law Alan Bonfiglio Ríos stated:
Pursuant to USMCA Article 31-A.6, the Panel has five business days after it is constituted to confirm that the petition: (a) identifies a Covered Facility, (b) identifies the respondent Party’s laws relevant to the Denial of Rights, and (c) states the basis for the complainant Party’s good faith belief that there is a Denial of Rights.
On August 30, the USMCA Secretariat communicated to the Parties that the Panel had been constituted on that date.
A confirmation by the Panel pursuant to Article 31-A.6 is solely a prima facie analysis that does not prejudge the merits of the dispute or any jurisdictional objections that the defending Party may assert.
Mexico reiterates that the San Martín Mine cannot be considered to be as a Covered Facility, that the applicable law is outside the scope of the Rapid Response Mechanism, and that there is no Denial of Rights; Mexico reserves its rights to address these and other aspects in greater depth at the appropriate procedural moment.
September 6: In decision (date-stamped by Secretariat September 7) Panel decided, based on documentation available to it as of September 5, that the petition of the United States met the prima facie requirements of Article 31-A.6 and the petition was thereby confirmed.
September 7: By letter to Alan Bonfiglio Ríos, the Panel:
Pursuant to USMCA Article 31-1.7, made a request to Mexico for verification; and requested “a document establishing the results of the respondent Party’s investigation and conclusions and any efforts it took as a result of the Request for Review and Remediation under Article 31-A.4.”
Advised that after a Zoom meeting with the Parties scheduled for September 12, the Panel would request additional information concerning positions of Mexico on the questions the Panel is charged with resolving; also that the Panel wished to use this forum to discuss timing of the submission of documents, the mechanisms for the hearings and schedules as well as the form the hearings will take and the possibility of an on-site verification.
September 14: Panel memorandum set out timetable for the proceeding, based on Article 9.5 of Annex III Rules of Procedure for USMCA Chapter 31, and reflecting suggestions at meeting with the parties on September 12.
(1) Within 15 business days after Sept. 7: Mexico to submit “a document establishing the results of the respondent Party’s investigation and conclusions and any efforts it took as a result of the Request for Review and Remediation under article 31-A.4.”
(2) Within 7 business days after receipt of translated document by Mexico referred to under (1) above: US submits reply.
(3) One day after translation of US reply is available to the parties: Secretariat to ask non-government entities directly involved in the dispute (e.g. Mina San Martín-Grupo México; Sindicato Minero (Los Mineros); Trabajadores Coaligados (the union currently recognized at the San Martín Mine)) to submit written briefs on the issues before the panel, within 5 days of Secretariat request.
(4) Five business days after translations of non-governmental entity submissions are available: Both Parties must submit reply to (a) other Party’s original submission and (b) any submission by non-governmental entities.
(5) Within 5 business days after translation of final submissions of the Parties: Panel will schedule an in-person verification hearing in Mexico City. Panel will allocate 2 days for oral arguments from the Parties and questions from the panel. Hearing will be open to the public.
September 18: Mexican government letter to Panel consented to the Panel’s September 7 request for verification; also, asked the Panel to indicate to the Parties: the form for its verification, i.e. whether it will request information and documents from the Parties or from the non-government entities directly related to the dispute; and whether it will conduct an on-the-spot verification at the San Martín Mine. Letter noted reference in September 14 Panel letter to an “in-person verification hearing in Mexico City”, and noted need to make advance arrangements for any on-the-spot visit to the mine. Mexico proposed that any such visit take place after the Parties’ written submissions.
October 31: USTR reply submission argued that (i) Grupo México is currently denying labor rights by operating the mine during a strike and bargaining with an unauthorized group of workers; (ii) as a matter of Mexican law, the Mexican court system has ruled that Los Mineros has the right to represent the workers at the Mine, not the Trabajadores Coaligados; (iii) the Mine is a Covered Facility subject to the RRM because the copper, lead and zinc ores and concentrates it produces are (a) exported to the US and (b) sold in Mexico where they compete with US exports into Mexico.
A subsequent submission by the Mine argued that it cannot be considered a Covered Facility because it captively consumes all the copper ore and concentrates it produces, and because it does not export minerals from this mine into the US. The Trabajadores Coaligados also argued that it had the right to represent the workers at the Mine. Neither of these submissions is available in the online TAS Public Reading Room for this dispute. The Mexican government also made another submission which is not publicly available.
December 13: USTR rebuttal submission again argued that a facility is a Covered Facility subject to the RRM if it (i) produces a good or supplies a service traded between the Parties; or (ii) produces a good or supplies a service that competes in the territory of a Party with a good or a service of the other Party. Rebuttal submission argued that the Mine was exporting to the US and even if not, its captive consumption competes with US exports. Rebuttal submission also argued (based on Mexican law) that the Mine is denying labor rights by operating during a strike.
January 12, 2024: US Chamber of Commerce submitted an amicus brief to the panel concerning issues in this dispute. The Chamber submission argued that because the facts upon which the US relies to support its case occurred before USMCA entered into force, there is no denial of rights and pursuit of the case disregards the rule of law. The submission further criticized denial of due process by (i) denial of opportunity for NGOs or other interested parties to make submissions; (ii) failure to provide the RRM petition (even in redacted form) to the Mexican government or the Mine; (iii) conducting a proceeding premised on facts that took place before USMCA entered into force.
February 22: Letter to Mexican Section of USMCA Secretariat from counsel for San Martín Mine stated that the company has never been informed of the complete allegations against it, the panel has not responded to the company’s request to participate in the hearing, and the panel gave it no notice of the hearing dates. Inside US Trade reported on February 23 that the company was told informally that it will not be allowed to participate in the hearing and its legal counsel cannot attend the verification visit at the mine scheduled for February 26.
February 26: Verification visit scheduled at the San Martín Mine.
February 28-29: Hearing in this dispute scheduled in Mexico City, also to be livestreamed.