St. Mary's Law Journal


The United States and Canada, and more recently Mexico, have tried to resolve certain types of international trade disputes through a unique process. Under the United States-Canada Free Trade Agreement (CFTA) and its successor, the North American Free Trade Agreement (NAFTA), disputing parties may choose binational panels to review disputes over antidumping and countervailing duty determinations. Binational panel review entirely replaces national judicial review for each case in which the parties choose the panel process. Panels are convened on a case-by-case basis from a list of trade experts submitted by disputing countries. Panels must follow relevant national trade law in making their decisions. In cases involving the United States as the importing country, trade disputes are first addressed at the administrative level by the United States Department of Commerce. The binational panel system set forth in the CFTA and NAFTA added a new option for parties who are not satisfied with the Commerce Department’s decision. When a binational panel convenes to review a United States trade case, its task is to review the Commerce Department’s final administrative decision considering relevant Court of Internation Trade (CIT) and Federal Circuit precedent. While these unique approaches to dispute resolution may help solve both foreign and domestic political problems, they may be incompatible with existing United States judicial processes. Binational panel review requires potential litigants to forego judicial review in Article III courts and make their claims before ad hoc panels. The unreviewable nature of decisions of binational panels creates significant risk that erroneous applications of United States trade law will not be corrected. Recent proposals to use appellate judges to review decisions by World Trade Organization using panels illustrate the practical and constitutional problems in using judges in roles other than those set forth in Article III of the Constitution.


St. Mary's University School of Law