Richard Van Duizend, Principal Court Management Consultant for the National Center for State Courts sent the following information regarding an inquiry he received from the General Counsel’s Office of the US Trade Representative. Specifically, they are interested in identifying retired judges who would like to be included on a roster of potential arbitrators to serve on panels established under Chapter 19 of NAFTA to hear challenges to agency determination regarding anti-dumping and anti-subsidy disputes.
Chapter 19 of the North American Free Trade Agreement (NAFTA) provides an alternative to judicial review by domestic court of final agency determinations in antidumping (AD) and countervailing duty (anti-subsidy, or CVD) cases. In cases involving Canada and Mexico, producers of the good at issue in the dispute may seek review of final AD and CVD determinations by independent binational panels comprised of nationals of the involved parties. For example, if a Canadian wheat producer requests that a binational panel hear its challenge to a final AD determination by the US Department of Commerce on imports of Canadian wheat, jurisdiction to hear the case shifts from the US Court of International Trade to a Chapter 19 panel. The panel would be comprised of US and Canadian nationals selected by the US and Canada.
Chapter 19 panels are charged with reviewing the record of final agency determinations in order to determine whether the relevant agency correctly applied its national trade remedy laws. The panels must utilize the same standard of review and general legal principles as a domestic court in the country where the determination was made. The agencies whose decisions may be challenged before the binational tribunals include the Canadian International Trade Tribunal, the US Department of Commerce, the US International Trade Commission, and the Mexican Secretaria de Economia. A Chapter 19 panel decision, which may either uphold an agency determination or remand it for action that is consistent with that decision, is binding.
Pursuant to Chapter 19, the US has established a list of individuals from which it chooses persons to sit on the various panels. As required by NAFTA, members of the list must be “of good character, high standing and repute, and shall be chosen strictly on the basis of objectivity, reliability, sound judgment and general familiarity with international trade law.” Further, the list “shall include judges or former judges to the fullest extent practicable.” The application process for becoming a member of the candidate list begins in October of each year, for inclusion on the next year’s roster. There will be a Federal Register notice at that time outlining the application process and setting a deadline for applications.