NAFTA
Challenges and Decisions
Background Overview:
The North American Free
Trade Agreement (NAFTA), Chapter 19, provides for binational panels to
review final determinations made in countervailing duty and anti dumping
cases.
A panel consisting of
five persons is established to review the determination and ascertain
whether or not the determination is consistent with the trade laws of the
country conducting the investigation. If not, the panel will remand
the determination back to the issuing authority for revision.
Typically no more than three remands occur. However, the NAFTA panel reviewing the
initial CVD ruling in 2002 reached five remands.
Although Chapter 19
panel decisions are binding in the particular proceeding under review,
there is one further level of review of binational panel decisions that a
NAFTA government may initiate. This is known as the Extraordinary
Challenge Committee (ECC) procedure. If either government believes
that a decision has been materially affected, by either a panel member
having a serious conflict of interest, or the panel having departed from a
fundamental rule of procedure or having exceeded its authority under the
Agreement, they may invoke review by the binational Extraordinary Challenge
Committee. This committee is composed of three judges or former
judges.
ECC decisions, like
Chapter 19 binational panel decisions, are binding as to the particular
matter addressed. The ECC examines of the legal and factual analysis
underlying the findings and conclusions of the panel's decision in order to
determine whether one of the grounds set out in the ECC procedures has been
met. On finding that one of those grounds has been met, the committee
can vacate the original panel decision or remand it to the original panel
for action not inconsistent with the committee's decision. If the
grounds are not met the challenge will be denied and the original panel
decision shall stand affirmed. If the original decision is vacated, a
new panel is established.
Further information on
NAFTA and prior NAFTA panel decisions and reports related to Canadian
softwood lumber can be accessed on the NAFTA
website, and on the ITCanada
website.
Current Status and
Chronology of Events.
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