PARALLELS AND POSSIBLE LESSONS FOR DISPUTE RESOLUTION UNDER NAFTA
It has been 150 years since the United States and Mexico entered into the Treaty of Guadalupe Hidalgo (hereinafter Treaty).  In 1848, the Treaty ended the war between the United States and Mexico. The Treaty purported to protect certain rights of Mexican citizens in the areas ceded to the United States. Over the years, Mexican Americans have sought to litigate their rights that were supposedly protected by the Treaty.
Subsequently, in 1993, the United States and Mexico entered into another important treaty--the North American Free Trade Agreement (hereinafter NAFTA).  NAFTA created considerable controversy in the United States.  It governs trade between the NAFTA parties: Canada, Mexico and the United States.  The NAFTA parties trade hundreds of billions of dollars worth of goods a year.  Thus, one can expect that many trade disputes will arise under NAFTA.  As a result, NAFTA has provided procedures for dispute resolution.
This article seeks to briefly discuss the experience of Mexicans and their Mexican American heirs in litigating their rights under the Treaty of Guadalupe Hidalgo. It seeks to ask whether there may be any parallels and possible lessons to be learned from the litigation experience of Mexican claimants under the earlier Treaty for the NAFTA parties--especially Mexico--as the NAFTA parties engage in dispute resolution.
Part II of this article sets out the background of the Treaty, including a brief review of the United States-Mexican War. It describes the terms of the Treaty and observes that Mexico had unequal bargaining power when it negotiated the Treaty with the United States. It describes how the Treaty sought to protect the rights of the former Mexican citizens in the conquered territories but was ultimately unable to do so. In seeking to litigate their rights under the Treaty, the dispute resolution process generally failed to protect Mexican claimants and their heirs. Through a variety of legal devices, the promises of the Treaty were devalued. In particular, implementing legislation undermined the property rights protections in the Treaty. It did so by, among other things, requiring that Mexican claimants assume the burden of proof in proving the validity of their titles and negotiate a maze of legal requirements in a foreign legal system and in a language that was foreign to them. The implementing legislation als o established what might be viewed as an alternative dispute resolution to resolve claims, e.g., the office of the surveyor general. These alternative tribunals sometimes created difficulties for the Mexican claimants. Similarly, the Treaty failed to protect full membership rights in American society to persons of Mexican ancestry. For all these reasons, the promises of the Treaty were minimized and devalued.
Part III of the article explores parallels between the NAFTA dispute resolution process and the dispute settlement process of the Treaty of Guadalupe Hidalgo. In this regard it notes that just as with the earlier Treaty, Mexico negotiated the NAFTA from a very weak bargaining position. As a result, just as the United States had virtually dictated the terms of the Treaty of Guadalupe Hidalgo, the United States imposed conditions on Mexico in the NAFTA. In the dispute resolution context, part III explains that this means that the United States imposed on Mexico, especially in the NAFTA Chapter 19 areas of antidumping and countervailing duties, procedural rules based on United States procedural law. By so doing, the NAFTA dispute resolution process may generate a number of difficulties for Mexico that parallel problems that Mexican claimants experienced in litigating their rights under the earlier Treaty. Among these are difficulties arising from language, the unique burdens that are experienced by one who must litigate in a foreign legal system i. …