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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

Authors


  • The author is grateful to the Office of the Clerk of the U.S. Court of International Trade, especially to Leo Gordon, former Clerk, for assistance in the collection of data on agency remand determinations. The NAFTA portion of the data was collected by John W. Bohn, attorney at Dewey Ballantine, LLP in Washington, DC. Many thanks also to Jeffrey Rachlinski, Ted Eisenberg, and two anonymous referees for helpful comments and suggestions. Carrie J. Lonsinger and Jennifer Liu are recognized for their competent research assistance. Points of view in this article are those of the author and do not represent the official position of any of the above individuals or organizations. An earlier version of this article was presented at the 2007 AALS/ASIL International Law Conference in Vancouver, British Columbia.

*Syracuse University College of Law, E.I. White Hall, Ste. 144-F, Syracuse, NY 13244-1030; email: colares@law.syr.edu. Colares is Assistant Professor of Law, Syracuse University College of Law; J.D. (2003), Cornell Law School; Ph.D. (1994), Political Economy, the University of Tennessee; LL.B. (1989), summa cum laude (and first-in-class honors), Universidade de Brasília/Universidade Federal do Ceará, Brazil. Prior to joining the faculty at Syracuse University College of Law, Professor Colares was a law professor and trade consultant in Brazil, and practiced law in Washington, DC, representing U.S. industry clients in trade disputes.

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-U.S. Free Trade Agreement (now the North American Free Trade Agreement), the U.S. Congress and trade negotiators stipulated that the new dispute settlement panels would apply the U.S. law and 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 17 years of decisions now allows a conclusion with a high degree of confidence that 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.

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