The United States and NAFTA Dispute Settlement: Ambivalence, Frustration and Occasional Defiance

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

40 Pages Posted: 21 Jul 2006 Last revised: 22 Jun 2009

David A. Gantz

University of Arizona - James E. Rogers College of Law

Date Written: June 19, 2009

Abstract

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.

Keywords: NAFTA, dispute

JEL Classification: K33, K41, K2

Suggested Citation

Gantz, David A., The United States and NAFTA Dispute Settlement: Ambivalence, Frustration and Occasional Defiance (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. Available at SSRN: https://ssrn.com/abstract=918542 or http://dx.doi.org/10.2139/ssrn.918542

David A. Gantz (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-621-1801 (Phone)

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