Alternative Methods of Appellate Review in Trade Remedy Cases: Examining Results of U.S. Judicial and NAFTA Binational Review of U.S. Agency Decisions from 1989 to 2005

Abstract

When the United States and Canada agreed to replace U.S. judicial review of trade-remedy cases with a new dispute mechanism under Chapter 19 of the Canada-United States Free Trade Agreement (now the North American Free Trade Agreement), the U.S. Congress and trade negotiators expected that the new dispute settlement panels would apply U.S. law and the standard of review in the same manner as U.S. courts. This requirement was embodied in the text of the agreement and has at least nominally been applied by Chapter 19 panels ever since. Empirical analysis of seventeen years of decisions now allows a conclusion with a high degree of confidence that this has not been the case. Chapter 19 panels are far more likely than U.S. courts to overturn U.S. agency decisions. Not only that, but Chapter 19 panels have produced outcomes more favorable to Canadian importers than have U.S. courts. This outcome illustrates that the facial legal terms of an international agreement may give a misleading impression of how it will actually be implemented, and suggests that greater attention must be paid to how it will be interpreted and by whom