The United States and NAFTA Dispute Settlement: Ambivalence, Frustration and Occasional Defiance
David A. Gantz
University of Arizona - James E. Rogers College of Law
June 19, 2009
THE SWORD AND THE SCALES: THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS, Cesare Romano ed., p. 356, 2009
Arizona Legal Studies Discussion Paper No. 06-26
The three major dispute settlement mechanisms in NAFTA - Chapter 11 (investment disputes), Chapter 19 (review of administrative decisions in unfair trade actions), and Chapter 20 (disputes over the application and interpretation of NAFTA) - have been extensively used, with more than 40 Chapter 11 actions notified and over 100 Chapter 19 filings. The mechanisms have worked reasonably well in resolving the types of disputes for which they were designed. This has occurred, however, without generating much enthusiasm for any of them (and in some instances, such as softwood lumber and Chapter 19, with strong opposition) from the U.S. Congress, some government officials, civil society, and the courts, all of whom tend to be suspicious of third party dispute resolution because of the loss of national control compared to national courts or diplomatic negotiations. This article reviews each of the mechanisms, in terms of their origin, utilization, private party and government participation, the cases decided and the controversies they have generated, for government officials of the executive branch and the Congress, and for the business community and for civil society. It also considers how the attitudes of each have changed over the twelve years in which NAFTA has been in force.
Number of Pages in PDF File: 40
Keywords: NAFTA, dispute
JEL Classification: K33, K41, K2
Date posted: July 21, 2006 ; Last revised: June 22, 2009
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