This Article will address the ways in which the provisions of the United States-Canada Free Trade Agreement (FTA),(1) which took effect in 1989, and the North American Free Trade Agreement (NAFTA),(2) will affect the work and decisions of the Court of International Trade (CIT).
More specifically, it will discuss the binational panel review of antidumping and countervailing duty determinations by national administrative authorities, which is mandated by Chaper 19 of the FTA and of the NAFTA. This supranational appeals mechanism gives private litigants the option of choosing that forum rather than a review by the CIT or the other national courts of the signatories. In this respect, Chapter 19 binational panel review is unique.
Should the CIT be concerned about this development, or is the development to be welcomed as an internationalization of unfair trade practice jurisprudence with the prospects of cross fertilization and greater uniformity among the United States and its principal trading partners? How did this development come about? Does it indicate a trend or is it an aberration?
Recently, U.S. courts have been emphasizing a domestically focused interpretation of U.S. trade law, rather than one focused on international concerns or needs. Considering prominent U.S. legislators' criticism of an international panel's ability to determine the legalities of U.S. actions affecting international trade(3), will NAFTA's provisions regarding binational panel review face continued opposition from Congress?
This Article will try to answer some of these questions. However, in order to discuss these subjects intelligently, it is necessary to first look briefly at the genesis of Chapter 19 binational review. It is also necessary to understand the way in which Chapter 19 review operates, how the panels are formed and function, and the laws and rules that govern these panels. Having recently served as a chairman of a Chapter 19 binational panel, the author also hopes to bring some personal insights to the discussion.
II. Chapter 19 of the Free Trade Agreement
A. Genesis of FTA Chapter 19
one of the Canadians' chief objectives in entering into negotiations with the United States for a free trade agreement was to remove Canadian exports to the United States from the coverage of U.S. antidumping (AD) and countervailing duty (CVD) statutes.(4) There was concern that the increasing complaints against Canadian products under these statues were disrupting trade. Canadian provincial programs to attract and develop business - not unlike the programs of some U.S. states and localities - were coming under attack as involving countervailable subsidies.(5) If the United and Canada were to form a free trade area, why, asked the Canadians, should it not be free of antidumping and countervailing laws applicable only to external commerce, as is the case within the EC market and the interstate market of the United States? However, the U.S. negotiators had no such mandate. Negotiations nearby broke down over the issue.(6) Chapter 19 binational panel review was one of the most important elements of a compromise, which also involved the formation of a Working Group inter alia, to "seek to develop a substitute system of rules for dealing with unfair pricing and government subsidization."(7)
Thus, the binational panel review seems to have been envisioned as a temporary or stopgap measure until the parties, through their Working Group and consultations, reached a more permanent solution to the antidumping and countervailing duty problem with respect to U.S.-Canada trade.(8) Chapter 19 is to be in effect for a five-year period "pending the development of a substitute system of rules in both countries for antidumping and countervailing duties as applied to their bilateral trade."(9) If no agreement upon such a system has been reached by then, Chapter 19's provisions are to be extended for two more years. If there still is no agreement by the end of that extended period, either party may terminate the FTA on six months' notice.(10)
However, as discussed below with respect to NAFTA,(11) this temporary measure of binational panel review seems destined to become part of a more permanent system. The NAFTA, which would supercede the FTA, has no time limit in its version of Chapter 19.(12) The emphasis is upon expanding the binational review procedure to include review of Mexican antidumping and countervailing duty determinations, rather than on working toward a "substitute system of rules."(13)
Moreover, because of what U.S. or Canadian lawyers would view as procedural due process problems in current Mexican antidumping and countervailing duty procedures, NAFTA seeks first to remedy such procedural problems instead of following the FTA model which sets up a working group in an attempt to rewrite national substantive antidumping and countervailing duty laws.(14)
That this temporary, stopgap measure is on the way to becoming a permanent feature of international trade litigation is also indicated by a recent report by a section of the American Bar Association on NAFTA and, inter alia, Chapter 19 binational panel review procedure. The report states:
The very success of this system [Chapter 19] makes its extension to a new arrangement most desirable. Whether or not it is altogether logical and whether or not it responds fully to the real legal difficulties in the trade relationship, as between Canada and the United States, experience has shown that the system works. It should also work well in a North American context. An effort should, therefore, be made to make such alterations in it as will fully accommodate the third partner in the new Agreement.(15)
Thus, the binational panel review systems, born of the FTA, may well have a longer and more significant life than the parties to the FTA contemplated when they adopted this system as a compromise to save the FTA negotiations.
B. The Binational Panel Review System
Article 1904(1) of the FTA states: "As provided in this Article, the Parties shall replace judicial review of final antidumping and countervailing duty determinations with binational panel review."(16) Such review is requested formally by one of the parties to the FTA, i.e., Canada or the United States. However, the initiative for such a review is generally that of a private party to the administrative proceeding below, or, as the FTA puts it, "a person who would otherwise be entitled under the law of the importing Party to commence domestic procedures for judicial review of a final determination."(17) At least one private party, an exporter or importer, has been involved in every binational panel review requested to date.(18)
Despite the language of Article 1904(1), binational panel review is not mandatory. It is an option of an aggrieved party.(19). However, to protect the right to binational review, the FTA requires that domestic judicial review procedures not be invoked until the expiration of the thirty-day period within which panel review may be requested.(20) Notice of intent to invoke domestic judicial review must be given at least ten days prior to the end of that period.(21)
Only final determinations may be subjected to binational panel review. A written request for panel review must be made within thirty days of the publication of the determination in the Federal Register or Canada Gazette, or if not published, within thirty days of its notification by one party to the other.(22)
Panels are composed of five persons normally chosen from a roster of twenty-five persons maintained by each party.(23) The fifty candidates must be either Canadian or U.S. citizens, and are to be chosen on the "basis of objectivity, reliability, sound judgment, and general familiarity with international trade law."(24) The FTA requires that a majority of each panel be composed of lawyers in good standing.(25)
An important feature of the panel review procedure is the tight time schedule mandated for completing the review. A final decision must be made within 315 days from the date when panel review is requested. A schedule for each step, from the filing of the complaint to the issuance of the panel's decision, is set forth to accomplish this result.(26)
The procedure is essentially the same as that for domestic judicial review, on which it is generally based.(27) The administrative record is transmitted, complaints', respondents' and reply briefs are filed, and oral argument is presented at a public hearing before the panel.(28) The members of the panel meet to discuss the decision, portions of the opinion may be assigned, and the decision is by majority vote.(29) The panel is required to make "a written decision with reasons, together with any dissenting or concurring opinions of panelists."(30)
The binational panels receieve logistical support from a binational Secretariat.(31) The U.S. Section of the Secretariat is located at the U.S. Department of Commerce in Washington, D.C., and is headed by Secretary James R. Holbein. The Canadian Section is located in Ottawa, Canada, and is headed by its Secretary, Cathy Beehan. Based upon the author's own experience, the Secretariat does an execellent job of ensuring that the FTA time schedule for panel review is met, all papers are filed and transmitted, and the panels receive all necessary logistical assistance in holding their hearings, conducting their deliberations, and rendering their decisions.
While the panels are supranatural, the law they are to apply is the governing domestic law of the importing party.(32) A binational panel is to "determine whether [a final antidumping or countervailing duty] determination [of a competent investigating authority of either party] was in accordance with the antidumping or countervailing duty law of the importing party."(33)
The FTA makes clear that the panel is to look not only at the statutory language but also "legislative history, regulations, administrative practice, and judicial precedents"(34) that the importing Party's courts would consider during review of a final antidumping or countervailing duty determination. Moreover, the panel is to apply the standard of review and general legal principles (such as standing, due process, exhaustion of administrative remedies, etc.) that would be applied by a court of the importing party.(35)
Thus, from a legal perspective, the panel is strictly circumscribed. It is governed by precedents of the CIT and the Federal Circuit when reviewing an International Trade Administration or U.S. International Trade Commission final determination. A reading of a number of panel decisions indicates that panelists approach their task seriously, cautiously, and with a respect for the pronouncements of the courts.
Panel decisions, however, are not appealable to the parties' domestic courts.(36) They are binding on the parties an the competent investigating authority concerned.(37) A panel decision may either affirm the determination under review, remand it for action not inconsistent with the decision, or affirm in part and remand in part.(38) When a remand is made, the panel sets a reasonably brief time for compliance. If review of the action taken on remand is needed, the same panel has an additional ninety days to review the determination on remand and make a final decision.(39)
The only avenue to attack a panel decision is through the "extraordinary challenge procedure."(40) The grounds for challenge are quite narrow and are similar to those for appeals in other alternative dispute resolution systems such as arbitration. These grounds include "gross misconduct" by a panel member, departure by the panel from a "fundamental rule of procedure," and when a panel has "manifestly exceeded its powers, authority or jurisdiction" which "has materially affected the panel's decision and threatens the integrity of the binational panel review process."(41)
Such an extraordinary challenge goes to a three-member committee comprised of judges or former judges from a U.S. federal court or a Canadian court of superior jurisdiction. These judges are chosen by the parties from a ten-person roster. The extraodinary challenge committee can affirm, remand or vacate the panel decision. If it vacates the decision, a new panel is established.(42)
C. Experience Under Chapter 19
As noted above, the international trade bar appears generally satisfied with Chapter 19 panel review of antidumping and countervailing duty determinations.(43) Panel decisions do not seem to have strayed from the domestic law that the panels are mandated to apply. In fact, there have only been two instances of an "extraordinary challenge" to date. In both cases the extraordinary challenge committee dismissed the request and affirmed the panel decision because the request did not meet the Article 1904.13 extraordinary challenge threshold.(44)
According to the Binational Secretariat, as of September 1, 1993 there were nine active cases involving a review of U.S. agency determinations.(45) These cases are at various stages, with panel decisions currently due in five of them. There are nine active cases involving a review of Canadian agency determinations.(46) There have been eighteen U.S. cases completed, seven of which were terminated prior to decision.(47)
Five Canadian cases have been completed. As these figures indicate, Canadian exporters have initially made significantly more use of Chapter 19 binational panels than U.S. exporters.(48) However, the active case tally indicates that this disparity no longer exists.
The International Law Section of the ABA has well summarized the experience under Chapter 19 to date:
While at first blush the Chapter 19 system may appear to be flawed in the sense that it is the laws rather than their administration that may be objectionable, it has in practice worked very well. There has been general, if not total, satisfaction with the results of individuals cases as well as with the collective experience. It has also permitted the disengagement of the respective national bureaucracies to some large degree and allowed the aggrieved interests in each country to make their cases without any overhanging linkage to other issues. Moreover, the disposition of contentious matters has been speedy.(49)
Given these views, it is not surprising that the NAFTA negotiators have also looked with favor upon binational panel review of antidumping and countervailing duty determinations.(50) Because President Clinton has made passage and implementation of NAFTA a goal of his Administration, it appears that the binational panel process, modified to accomodate a trilateral relationship, will become a continuing feature of international trade litigation.
At first view, Chapter 19 of NAFTA appears to be a mirror image of the FTA's Chapter 19. The first four articles of the two chapters are virtually identical, including Article 1904, the heart of binational panel review.(51) However, there are important differences. One of the most significant differences is that Chapter 10 of NAFTA, unlike chapter 19 of the FTA, has no article limiting its duration and does not mandate a Working Group to seek to develop a "substitute system of [antidumping and countervailing duty] rules."(52) Thus, if NAFTA replaces the FTA, there will no longer be a seven-year limit in which to develop a substitute antidumping and countervailing duty system.(53)
Instead of a limited duration and mandated substitute system of rules, NAFTA Article 1905 "safeguard(s) the Panel Review System," by allowing redress if a party alleges that (a) another party has prevented the establishment of a panel, (b) a panel has been prevented from rendering a final decision, (c) a panel decision has been denied binding effect, or (d) a party has failed to provide independent panel review of its investigating authorities' final antidumping or countervailing duty determination.(54) An aggrieved party may request consultations. If the consultations fail, a special committee to investigate the charges can be requested. If the special committee, upon reviewing the allegations, makes an affirmative finding, and further consultations do not result in a mutually satisfactory solution, the aggrieved party may suspend Article 1904 binational panel review against the offending party until the problem has been corrected.(55) In other words, instead of envisioning the end of a temporary system, the parties in NAFTA look forward to an ongoing system of binational panel review as long as each of the parties continues to comply with Article 1904.
Another important difference between NAFTA Chapter 19 and the FTA is that the NAFTA Chapter sets forth "desirable" procedural rules and standards to provide due process and transparency in each Party's antidumping and countervailing duty investigative proceedings.(56) Since these rules and standards are already found in Canadian and U.S. practice, it is apparent that they are an effort to encourage reform of Mexican antidumping and countervailing duty investigations.
In fact, the NAFTA Chapter provides affirmatively for amendment of Mexican law to eliminate the possibility of imposing duties within five days of acceptance of a petition or provisional remedies prior to a preliminary determination.(57) NAFTA also provides for amendments to provide notice, meetings, access to information and other accoutrements of due process and transparency in Mexican proceedings, which are currently often ex parte and not a matter of official record.(58)
Because the emphasis in NAFTA has shifted from substantive to procedural antidumping and countervailing duty rules due to the inclusion of Mexico as a third party, the prospect of a "substitute system of [substantive antidumping and countervailing duty) rules"(59) applicable to the North American market is now delayed, possibly indefinitely.
One final difference is a change in the qualifications of panelists. Under the FTA, while a sitting or retired judge could be a panelist, no preference is expressed for judges over private practitioners. However, under NAFTA: "The roster shall include judges or former judges to the fullest extent practicable[.]"(60) One would hope that this is not meant to cast aspersions on the service by private practitioners on the panels. As previously noted, the FTA panels have generally acted, thoughtfully and judicially, even if their members have not previously served on the bench.(61)
IV. Implications for the CIT
Now that Article 1904 binational panel reviews have existed for almost four years, a great deal of the initial skepticism as to the workings of the system has disappeared. Hopefully, some of the initial hostility by members of the bench has also dissipated. At first, the courts were hostile because of the perceived encroachment upon their jurisdiction. Today, however, particularly in view of the congestion of court calendars and a more friendly legislative environment, courts welcome and encouragement litigants to avail themselves of alternative dispute resolution by mediation or arbitration.(62) Thus the CIT may be particulary thankful that the Article 1904 binational panel review is available now that the tidal wave of litigation from the current steel antidumping and countervailing duty cases, decided by Commerce and the International Trade Commission (ITC), has descended upon the Court. Article 1904 panel review presents no appreciable danger to the CIT's appellate jurisdiction in this area. Only Canadian (and, with NAFTA ratification, Mexican) interests will have this option.
Nor should the courts view the establishment of Article 1904 binational panel review as an aspersion upon their rectitude or objectivity. Although there was some Canadian sentiment that the CIT was too deferential to the Commerce Department and the ITC,(63) the increasing willingness of the CIT to remand antidumping and countervailing duty cases to these agencies where their determinations lack rational support should put such concerns to rest.(64)
The ABA section reports(65) and other commentators have commented favorably on the speedy disposition of disputes by Article 1904 binational panels. The reason for this is the FTA's 315-day limit for final decisions and its mandated pleading, briefing and hearing schedules. However, the CIT Clerk's office has indicated that the performance of the court has also markedly improved with regard to expeditious decision in antidumping and countervailing duty cases. Rule 56.2, which took effect January 1, 1993, is expected to further improve the court's performance.(66) Whether Article 1904 panel review helped to encourage reform in this area is hard to determined.
The fixed and virtually unalterable schedule approach of the FTA may work where an ad hoc panel is involved. The stress on bench and bar of this approach in a court litigation context may not be worth the supposed benefits. Guidelines that allow for flexibility in appropriate cases would be better. Moreover, putting a time limit on a court decision, such as the ninety-day time limit on a panel decision, would probably prove illusory, as anyone who has practiced in the New York State Supreme Court can testify.(67) The cooperation of the bar in moving court calendars is more likely to help reach the goal of speedy disposition of CIT litigation.
An important question is how, if at all, binational panel decisions relate to or affect litigation in the CIT. A fear of some commentators was that the FTA would lead to one antidumping and countervailing duty jurisprudence for Canada-U.S. trade, and another for trade with other nations.(68) A review of panel decisions indicates that this has not occurred.(69) As previously noted, the panel is directed by Article 1904 to apply the law of the importing party, including judicial precendents. In situations in which there is a conflict between decisions of CIT judges that is unresolved by the Federal Circuit or in which there is no decision at all, the panel must seek the appropriate law by legal analysis.
An analysis of panel decisions from a CIT judge's perspective has shown that in most cases, the CIT would have reached the same result as did the binational panel.(70) This consistency is probably helped by the fact that panels have five members, thus leading to stability in the decisional process. The accumulation of thorough, carefully reasoned panel decisions probably helps as well.
This perceived consistency between CIT and panel decisionmaking raises the question of the precedential value of panel decisions. While there does not appear to be any CIT opinion to date that has cited to an Article 1904 panel decision, there is good reason to cite a panel decision that is well-reasoned and persuasive. Certainly a panel decision should have as much weight as an article or learned treatise by a prominent member of the private bar.
Additionally, cross-fertilization by way of citation of panel decisions by later panels is already a fact. The panels' examination and exegesis of the GATT antidumping and countervailing duty codes may well lead to a greater uniformity of interpretation across national boundaries of these international guidelines to domestic unfair trade practice legislation.
A panel reviewing a Canadian antidumping or countervailing duty final determination, such as the panel chaired by this author, has the explicit authority to consider the GATT codes that are made part of Canada's law. A panel reviewing a U.S. antidumping or countervailing duty final determination is constrained by the statutory requirement that U.S. law take precedence if there is a conflict.(71) The effort to harmonize U.S. law and the GATT codes wherever possible, however, is furthered by the binational membership of the panels.(72)
Despite early fears, the implications of Article 1904 panel review for the Court of International Trade are not all adverse. On the contrary, the binational panel review process is an alternative dispute settlement device that may lighten the CIT's case load and possibly enrich its jurisprudence. Binational panel review is a development that represents another step towards the goal of the true internationalization of trade law.
(1.) Communication From the President of the United States Transmitting the Final Legal Text of the United States-Canada Free-Trade Agreement, the Proposed United States-Canada Free-Trade Agreement Implementation Act of 1988, and a Statement of Administrative Action, Pursuant to 19 U.S.C. [sub section]2112(e)(2),2112(a), H.R. Doc., No. 216, 100th Cong., 2d Sess 297, 27 I.L.M. 281 (1988) [hereinafter FTA], implemented by The United States-Canada Free-Trade Agreement Implementation Act of 1988, Pub. L. No. 100-449, 102 Stat. 1851 (noted at 19 U.S.C. [sections] 2112 (1988)). (2.) North American Free Trade Agreement Final Text, [Special Report No. 39, Extra Edition] Free Trade L. Rep. (CCH International)(Dec. 17, 1992)[hereinafter NAFTA]. (3.) The dispute over the decision of the GATT panel which found violative of the GATT the U.S. ban on importation of tuna caught by drift nets is a prime example. See Kenneth Berlin & Jeffery Lang, Trade and the Environment, Wash. Q., Oct. 1993, at 35. (4.) Judith H. Bello et al., Midterm Report on Binational Dispute Settlement Under the United States-Canada Free-Trade Agreement, 25 Int'l Law. 489, 494 (1991). (5.) See Judith Bello & Alan Holmer, Guide to the U.S.-Canada Free-Trade Agreement 815-16 (Supp. 1992). (6.) Bello et al., supra note 4, at 493-95. (7.) FTA, supra note 1, art. 1907(1)(b). Michael Wilson, Canada's Minister of International Trade, in a speech in Ottawa on July 23, 1992, which the author attended, stated that the eleventh-hour U.S. agreement to the binational panel review of antidumping and countervailing duty determinations saved the FTA. (8.) See Bello et al., supra note 4, at 512; see also supra note 7 and accompanying text. (9.) FTA, supra note 1, art. 1906. (10). Id. (11.) See infra text accompanying notes 55-56. (12.) See NAFTA, supra note 2, ch. 19. (13.) See id., art. 1904; cf.FTA, supra note 1, art. 1906. (14.) NAFTA, supra note 2, art. 1905, annex 1904. 15 (Schedule of Mexico); cf.FTA, supra note 1, art. 1907. (15.) A.B.A. Section on Int'l Law and Practice, Dispute Settlement Under a North American Free Trad Agreement, 26 Int'l Law. 855, 865 (1992). (16). FTA, supra note 1, art. 1904(1). (17.) Id. art. 1904(5). (18.) See Bello & Holmer, supra note 5, at 831-38.15. (19.) FTA, supra note 1, art. 1904(2). (20.) Id. art. 1904(15)(g)(i). (21.) Id. art. 1904(15)(g)(ii). (22.) Id. art. 1904(4). (23.) Id. annex 1901.2(1). There also have been some "off-roster" panelists. (24.) Id. (25.) FTA, supra note 1, annex 1901.2(2). (26.) Id. art. 1904(14)(a)-(g). The administrative rules promulgated to implement Article 1904 panel reviews allow for some limited extension of time period to avoid "unfairness or prejudice" to party. See Rule 20 of United States-Canada Free-Trade Agreement, Article 1904 Panel Rules Amendments, 57 Fed. Reg. 26, 698, 26, 704(1992). (27.) FTA, supra note 1, art. 1904(14). As under CIT practice, business proprietary and other priviledge information is protected by, and sanctions are provided for violation of, protective ord and undertakings. Id. annex 1901.2(7)-(8). (28.) Id. art. 1904(14)(a)-(g). (29.) Id. annex 1901.2. (30.) Id. annex 1901.2(5). (31.) Id. art. 1909. (32.) FTA, supra note 1, art. 1904(2). (33.) Id. (34.) Id. (35.) Id. art. 1904(3). (36.) FTA, supra note 1, art. 1904(11). (37.) Id., art. 1904(9). (38.) Id., art. 1904(8). (39.) Id. (40.) Id., art. 1904(13). (41.) Id. (42.) Id., annex 1904.13. (43.) See supra text accompanying note 14. (44.) In re Fresh, Chilled and Frozen Pork from Canada, ECC-91-1904-01 USA, 1991 LEXIS 7 (Extraordinary Challenge Comm. June 14, 1991); In re Live Swine from Canada, ECC-93-1904-01 USA, 1993 FTAPD LEXIS 1, (April 8, 1993) available in LEXIS, Intlaw Library, USCFTA File. (45.) United States/Canada Free Trade Agreement, Binational Secretariat (U.S. Section), FTA Dispute Settlement (Chapters 18 & 19); Status Report: Active Chapter 19 Cases Reviewing U.S. Agencies Determinations (Sept. 1993). (46.).Id. (47.) Id. (48.) For a comprehensive review of the first 14 cases, see Bello et al., supra note 4, at 298-512. (49.) A.B.A. Section of Int'l Law and Practice, supra note 15, at 865. (50.) See NAFTA, supra note 2, ch.19. (51.) Compare FTA, supra note 1, art. 901-04, with NAFTA, supra note 2, art. 1901-04. (52.) See FTA, supra note 1, art. 1906-07. (53.) A failure to develop such a system under the FTA would allow termination on six months' notice. See id., art. 1906. NAFTA provides for consultations but not for an ongoing working group t draft new antidumping and countervailing duty rules. See NAFTA, supra note 2, art. 1907. (54.) Id., art. 1905(1). (55.) Id., art. 1905(7)-(8). (56.) Id., art. 1907(3)(a)-(j). (57.) Id., annex 1904.15(a),(d) (Schedule of Mexico). (58.) Id., annex 1904-15(g)-(t). (59.) See FTA, supra note 1, art. 1907(1)(b). (60.) Id., annex 1901.2(1). (61.) See text accompanying note 52. (62.) See, e.g., Judicial Improvement Act and the Civil Justice Reform Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089 (mandating mediation programs in the Federal Judicial Districts). See also N.Y. Rules of Court, pt. 28 (McKinney 1993) (Alternative Method of Dispute Resolution by Arbitration). (63.) See Forum, Binational Dispute Resolution Procedures Under the Canada-United State Free Trade Agreement - Experiences to Date and Portents for the Future, Washington, D.C., April 23, 1991, 24 N.Y.U.J. Int'l L. & Pol. 341, 367-68 (1991). (64.) See, e.g., Manifattura Emmepi S.p.A.v. United States, 799 F. Supp. 110,116 (Ct. Int'l Trade 1992) (remanding to the Commerce Department an antidumping determination, the court observed: "[D]eference is not abdication" and "rational basis scrutiny is still scrutiny."). (65.) A.B.A. Section of Int'l Law and Practice, supra note 15. (66.) Ct. Int'l Trade R. 56(2). (67.) The CPLR mandates a 60-day deadline for decisions on pretrial motions. N.Y. Civ. Prac. L. & R. 2219(a). (68.) See Andreas F. Lowenfeld, Binational Dispute Settlement Under Chapter 19 of the Canada-United States Free Trade Agreement: An Interim Appraisal, 24 N.Y.U.J. Int'l. L. & Pol. 269, 273 (1991). (69.) See id. for an in-depth analysis of panel decisions. (70.) See id. at 279-80, 284-86, 292-93. But see Homer E. Moyer, Jr., Chapter 19 of the NAFTA: Binational Panels as the Trade Courts of Last Resort, 27 Int'l Law.707, 713-16 (1993), for a slightly different point of view. (71.) 19 U.S.C. [sections] 2504(a)(1988). (72.) See Lowenfeld, supra note 68, at 283.…