Mi Casa Es Tu Casa? The Limits of Inter-Systemic Dispute Resolution

Abstract

The ‘new NAFTA’ agreement between Canada, Mexico and the United States maintained the previous system for binational panel judicial review. This system provides for ad hoc tribunals composed of three panelists from one country and two from the other. The tribunal reviews the antidumping and countervailing duty determinations of domestic government agencies. In US-Mexico disputes, this hybrid system brings together mainly Spanish and English speaking lawyers from the civil law and the common law to solve domestic legal disputes applying domestic law. These binational panels raise issues regarding potential bicultural, bilingual and bijural (mis)understandings in a globalized world. However, there is little literature regarding the comparative law challenges for international panelists when dealing with foreign legal institutions and ideas. Do differences in language, legal traditions, and legal cultures imply limits on the effectiveness of inter-systemic dispute resolution? We will analyze all of the decisions of binational NAFTA panels in US-Mexico disputes regarding Mexican antidumping and countervailing duty determinations and the profiles of the panelists involved in these disputes. This fascinating case study puts to the test in a practical way whether one can actually comprehend the ‘other’. To what extent can a common law, English-speaking lawyer understand and apply the law of Mexico, expressed in Spanish and rooted in a distinct legal culture?

Keywords: NAFTA, USMCA, trade remedies, dispute settlement, bijural, bilingual

JEL Classification: K33, K41