Resolution of Trade Disputes By Chapter 19 Panels: A Long-Term Solution or Interim Procedure of Dubious Constitutionality

Since World War II, international trade has expanded exponentially and the United States has had substantial incentives to negotiate trade agreements with a view toward lowering tariffs reciprocally. The United States has also benefited from entry into the North American Free Trade Agreement ( NAFTA ) in 1992, the Canada-United States Free-Trade Agreement ( CFTA ) in 1988, and the United States-Israel Free Trade Agreement in 1985. The Canadian goal had been to eliminate existing antidumping and countervailing duty rules [in the United States] and to negotiate a new set of laws modeled on competition law principles with a binational tribunal to enforce them. Chapter 19 of the CFTA provides for binational dispute settlement in antidumping and countervailing duty cases. However, Chapter 19 also retains the substantive domestic antidumping and countervailing duty laws of the United States and Canada. Article 1904 expressly recites the parties\u27 intention to replace judicial review of antidumping and countervailing duty determinations with binational panel review. The two governments had to agree on the selection of the fifth panelist. In a dissenting opinion of a CFTA Extraordinary Challenge Committee ( ECC ) review of the panel decision on Certain Softwood Lumber Products from Canada, retired U.S. Circuit Judge Malcolm Wilkey criticizes the limited review practices of ECCs. Canada and Chile agreed to phase out antidumping, but not countervailing duty policies for the purposes of their bilateral agreement. This address discusses the binational dispute settlement panels established by Chapter 19 of the CFTA. This address proceeds to address Chapter 19 of NAFTA which substantially replicates the binational panel mechanism established by the CFTA. This speech concludes by discussing U.S. Circuit Judge Malcolm Wilkey\u27s dissenting opinion in Certain Softwood Lumber Products from Canada and remarking that the United States should be chary to expand the binational review panel system in future trade agreements