One of the most important and controversial legal issues arising in connection with binational dispute settlement panels under the North American Free Trade Agreement (“NAFTA”) and its predecessor, the United States-Canada Free Trade Agreement (“CFTA”), has been the standard of judicial review that panels must apply to U.S. antidumping (“AD”) and countervailing duty (“CVD”) cases. This standard generated particular controversy in three cases involving substantial amounts of trade from Canada into the United States -- lumber, swine, and frozen pork. The United States contended that panels reviewing U.S. agencies' decisions in those cases incorrectly applied the standard of review by failing to grant the requisite deference to the agency. When the United States challenged the panels' decisions before Extraordinary Challenge Committees (“ECCs”), the ECCs let them stand. As a result, when negotiating the NAFTA, the United States succeeded in strengthening the attention paid to the standard of review that ECCs must grant when reviewing panel decisions. The United States' experience with binational panels has thus enhanced awareness of the concept of standard of review. While an explanation of the standard could fill volumes and cover hundreds of cases, the Authors of this Essay will attempt to present a practical, common sense analysis that may aid practitioners, panelists, law students, business people, and scholars to appreciate better the application of this principle.
Available at: http://works.bepress.com/stephen_powell/9/