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Dispute Settlement
U.S. Trade Remedy Law: The Canadian Experience
VII Free Trade Agreement and North American Free Trade Agreement Chapter 19 Dispute Settlement, 1989–2000
- FTA/NAFTA Chapter 19 Disputes (Canadian Decisions)
- FTA/NAFTA Chapter 19 Disputes (U.S. Decisions)
- NAFTA Chapter 19 Disputes (Mexican Decisions)
In negotiating the Canada–U.S. Free Trade Agreement, one of Canada’s major objectives was the establishment of a system for the binational review of “unfair” trade cases. The intention was to establish a less costly, more expeditious means for parties to appeal the results of unfair trade investigations. Originally Canada had sought the elimination of the use of anti-dumping (AD) and countervailing duty (CVD) laws within North America. However, the United States could not agree. Chapter 19 of the FTA was the compromise.
The FTA was superseded by the NAFTA on January 1, 1994. Chapter 19 of the NAFTA is largely derived from the provisions contained in Chapter 19 of the FTA. It provides for a system of binational panel review as an alternative to domestic judicial review for final decisions regarding anti-dumping and countervailing duty matters. The main elements of the chapter are its binding nature, the standard of review to be used, and the procedure for establishing a panel.
NAFTA Chapter 19 extends (on a trilateral basis) the FTA review procedures for CVD and AD determinations, and makes these provisions permanent. Under the FTA, Chapter 19 was understood to be a temporary provision.
Under NAFTA sections 1901(3) and 1902, each country retains its current domestic CVD and AD laws, and the right to apply them to goods of the other parties to the agreement. Any future amendments to these laws must be in conformity with the WTO Anti-Dumping and Subsidies agreements. Binational reviews simply decide whether CVD and AD laws were applied in conformity with the domestic laws of the country concerned.
To begin the process, one of the parties must request a Panel Review. The request must be made within 30 days of publication of a final determination. Only final determinations are subject to review. A NAFTA party must seek a review if it is requested by a domestic private party that would have standing to bring a case in a domestic court. Once the decision is made to have a Chapter 19 Panel Review, the determination cannot then be subject to domestic judicial review in either country concerned.
NAFTA provisions require the establishment of a roster of panellists who serve when one country wishes to review a CVD or an AD decision of any other country to the agreement. From this roster (while a panellist need not be chosen from the roster, a panelling normally should be), five panellists are normally chosen by involved Parties to review a CVD or AD decision. Their decision is final and binding on the parties, subject to an extraordinary challenge. A panel may uphold a final determination or remand it for changes that the panel feels are necessary. In other words, the panel has no jurisdiction to overturn decisions; it can only refer the matter back to the investigating authority.
An Extraordinary Challenge proceeding is heard before a panel of three retired judges from the countries involved in the dispute. This procedure was designed to allow further appellate review for cases of gross misconduct, bias or serious conflict of interest on the part of the panel. A review can be requested only by a government. In a case of violation, the decision will either be remanded to the original panel or vacated. If the decision is vacated, a new panel will be chosen.
FTA/NAFTA Chapter 19 Disputes Canadian Decisions
Acronyms
CCRA Canada Customs and Revenue Agency
CITT Canadian International Trade Tribunal
| Reference | Product and Decision Challenged | Results |
| CDA-89-1904-01 | POLYPHASE INDUCTION MOTOR FROM THE UNITED STATES (Revenue Canada—Dumping) | Terminated |
| CDA-90-1904-01 | CERTAIN INDUCTION MOTORS FROM THE UNITED STATES (CITT—Review—Injury) | Affirmed |
| CDA-91-1904-01 | CERTAIN BEER FROM THE UNITED STATES (Revenue Canada—Dumping) | Duties amended |
| CDA-91-1904-02 | CERTAIN BEER FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-92-1904-01 | CERTAIN CARPETING FROM THE UNITED STATES (Revenue Canada—Dumping) | Duties amended |
| CDA-92-1904-02 | CERTAIN CARPETING FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-93-1904-01 | GYPSUM BOARD FROM THE UNITED STATES (Revenue Canada—Dumping) | Duties amended |
| CDA-93-1904-02 | GYPSUM BOARD FROM THE UNITED STATES (CITT—Injury) | Terminated |
| CDA-93-1904-03 | TOMATO PASTE FROM THE UNITED STATES (Revenue Canada—Dumping) | Terminated |
| CDA-93-1904-04 | STEEL PLATE FROM THE UNITED STATES (Revenue Canada—Dumping) | No decision (consolidated with CDA-93-1904-06) |
| CDA-93-1904-05 | HOT-ROLLED STEEL FROM THE UNITED STATES (Revenue Canada—Dumping) | No decision (consolidated with CDA-93-1904-07) |
| CDA-93-1904-06 | STEEL PLATE FROM THE UNITED STATES (CITT—Negative Injury) | Affirmed |
| CDA-93-1904-07 | HOT-ROLLED STEEL FROM THE UNITED STATES (CITT—Negative Injury) | Affirmed |
| CDA-93-1904-08 | COLD-ROLLED STEEL FROM THE UNITED STATES (Revenue Canada—Dumping) | Duties Amended |
| CDA-93-1904-09 | COLD-ROLLED STEEL FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-93-1904-10 | PIPE FITTINGS FROM THE UNITED STATES (Revenue Canada—Dumping) | Terminated |
| CDA-93-1904-11 | PIPE FITTINGS FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-93-1904-12 | PIPE INSULATION FROM THE UNITED STATES (Revenue Canada—Dumping) | Terminated |
| CDA-93-1904-13 | PIPE INSULATION FROM THE UNITED STATES (CITT—Injury ) | Dismissed |
| CDA-94-1904-01 | APPLES FROM THE UNITED STATES (CITT—Injury) | Terminated |
| CDA-94-1904-02 | BALER TWINE FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-94-1904-03 | CORROSION-RESISTANT STEEL FROM THE UNITED STATES (Revenue Canada—Dumping) | Duties amended |
| CDA-94-1904-04 | CORROSION-RESISTANT STEEL FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-95-1904-01 | CERTAIN MALT BEVERAGES FROM THE UNITED STATES (CITT—Rescission) | Affirmed |
| CDA-95-1904-02 | APPLES FROM THE UNITED STATES (Revenue Canada—Dumping) | Terminated |
| CDA-95-1904-03 | CERTAIN CARPETING FROM THE UNITED STATES (Revenue Canada—Redetermination) | Terminated |
| CDA-95-1904-04 | REFINED SUGAR FROM THE UNITED STATES (Revenue Canada—Dumping) | Duties amended |
| CDA-96-1904-01 | CULTURE MEDIA FROM THE UNITED STATES (Revenue Canada—Dumping) | Terminated |
| CDA-97-1904-01 | CONCRETE PANELS FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-97-1904-02 | STEEL PLATE FROM MEXICO (CITT-Injury) | Affirmed |
| CDA-98-1904-01 | BABY FOOD FROM THE UNITED STATES (CITT—Injury) | Affirmed |
| CDA-98-1904-02 | COLD-ROLLED STEEL FROM THE UNITED STATES (CITT—Rescission) | Affirmed |
| CDA-98-1904-03 | PIPE FITTINGS FROM THE UNITED STATES (CITT—Rescission) | Affirmed |
| CDA-99-1904-01 | STEEL PLATE FROM MEXICO (CITT—Corrigendum to Injury Finding) | To be determined |
| CDA-20-1904-01 | CONTRAST MEDIA FROM THE UNITED STATES (CCRA—Dumping) | Suspended |
| CDA-20-1904-02 | CONTRAST MEDIA FROM THE UNITED STATES (CITT—Injury) | Suspended |
| CDA-20-1904-03 | APPLIANCES FROM THE UNITED STATES (CCRA—Dumping) | Suspended |
| CDA-20-1904-04 | APPLIANCES FROM THE UNITED STATES (CITT—Injury) | Active |
FTA/NAFTA Chapter 19 Disputes
U.S. Decisions
| Reference | Product and Decision Challenged | Results |
| USA-89-1904-01 | RED RASPBERRIES FROM CANADA (Commerce—Admin. Review—Dumping) | Duties amended |
| USA-89-1904-02 | REPLACEMENT PARTS FOR SELF-PROPELLED BITUMINOUS PAVING EQUIPMENT FROM CANADA (Commerce—Admin. Review—Dumping) | Affirmed |
| USA-89-1904-03 | REPLACEMENT PARTS FOR SELF-PROPELLED BITUMINOUS PAVING EQUIPMENT FROM CANADA (Commerce—Admin. Review—Dumping) | Affirmed |
| USA-89-1904-04 | DRIED, HEAVY SALTED CODFISH FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated |
| USA-89-1904-05 (Consolidated with USA-89-1904-03) | REPLACEMENT PARTS FOR SELF-PROPELLED BITUMINOUS PAVING EQUIPMENT FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated (consolidated with 1904-03) |
| USA-89-1904-06 | FRESH, CHILLED AND FROZEN PORK FROM CANADA (Commerce—Countervail) | Duties amended |
| USA-89-1904-07 | NEW STEEL RAIL, EXCEPT LIGHT RAIL, FROM CANADA (Commerce—Countervail) | Duties amended |
| USA-89-1904-08 | NEW STEEL RAIL, EXCEPT LIGHT RAIL, FROM CANADA (Commerce—Dumping) | Affirmed |
| USA-89-1904-09/-10 | NEW STEEL RAILS FROM CANADA (ITC—Injury) | Affirmed |
| USA-89-1904-11 | FRESH, CHILLED OR FROZEN PORK FROM CANADA (ITC—Injury) | Affirmed |
| USA-90-1904-01 | REPLACEMENT PARTS FOR SELF-PROPELLED BITUMINOUS PAVING EQUIPMENT FROM CANADA (Commerce—Admin. Review—Dumping) | Duties amended |
| USA-90-1904-02 | OIL COUNTRY TUBULAR GOODS FROM CANADA (Commerce—Scope Determination) | Terminated |
| USA-90-1904-03 | SHEET PILING FROM CANADA (Commerce—Dumping) | Terminated |
| USA-91-1904-01 | OIL COUNTRY TUBULAR GOODS FROM CANADA (Commerce—Scope Determination) | Terminated |
| USA-91-1904-02 | IRON CONSTRUCTION CASTINGS FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated |
| USA-91-1904-03 | LIVE SWINE FROM CANADA (Commerce—Admin. Review—Countervail) | Duties amended |
| USA-91-1904-04 | LIVE SWINE FROM CANADA (Commerce—Admin. Review—Countervail) | Duties amended |
| USA-91-1904-05 | REPLACEMENT PARTS FOR SELF-PROPELLED BITUMINOUS PAVING EQUIPMENT FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated |
| USA-92-1904-01 | CERTAIN SOFTWOOD LUMBER PRODUCTS FROM CANADA (Commerce—Countervail ) | Decision overturned |
| USA-92-1904-02 | CERTAIN SOFTWOOD LUMBER PRODUCTS FROM CANADA (ITC—Injury) | Dismissed |
| USA-92-1904-03 | PURE AND ALLOY MAGNESIUM FROM CANADA (Commerce—Countervail) | Duties amended |
| USA-92-1904-04 | PURE AND ALLOY MAGNESIUM FROM CANADA (Commerce—Dumping) | Affirmed |
| USA-92-1904-05/-06 | MAGNESIUM FROM CANADA (ITC—Injury) | Affirmed |
| USA-93-1904-01 | CERTAIN COLD-ROLLED CARBON STEEL FLAT PRODUCTS FROM CANADA (Commerce—Dumping) | Terminated |
| USA-93-1904-02 | CERTAIN HOT ROLLED CARBON STEEL FLAT PRODUCTS FROM CANADA (Commerce—Dumping) | Duties amended |
| USA-93-1904-03 | CERTAIN CORROSION-RESISTANT CARBON STEEL FLAT PRODUCTS FROM CANADA (Commerce—Dumping) | Duties amended |
| USA-93-1904-04 | CERTAIN CUT-TO-LENGTH CARBON STEEL PLATE FROM CANADA (Commerce—Dumping) | Duties amended |
| USA-93-1904-05 | CERTAIN CORROSION-RESISTANT CARBON STEEL FLAT PRODUCTS FROM CANADA (ITC—Injury) | Affirmed |
| USA-94-1904-01 | LIVE SWINE FROM CANADA (Commerce—Admin. Review—Countervail) | Duties amended |
| USA-94-1904-02 | LEATHER APPAREL FROM MEXICO (Commerce—Admin. Review—Countervail) | Duties amended |
| USA-93-1904-02 | CERTAIN HOT ROLLED CARBON STEEL FLAT PRODUCTS FROM CANADA (Commerce—Dumping) | Duties amended |
| USA-93-1904-03 | CERTAIN CORROSION-RESISTANT CARBON STEEL FLAT PRODUCTS FROM CANADA (Commerce—Dumping) | Duties amended |
| USA-93-1904-04 | CERTAIN CUT-TO-LENGTH CARBON STEEL PLATE FROM CANADA (Commerce—Dumping) | Duties amended |
| USA-93-1904-05 | CERTAIN CORROSION-RESISTANT CARBON STEEL FLAT PRODUCTS FROM CANADA (ITC—Injury) | Affirmed |
| USA-94-1904-01 | LIVE SWINE FROM CANADA (Commerce—Admin. Review—Countervail)> | Duties amended |
| USA-94-1904-02 | LEATHER APPAREL FROM MEXICO (Commerce—Admin. Review—Countervail) | Duties amended |
| USA-95-1904-01 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Duties amended |
| USA-95-1904-02 | CEMENT FROM MEXICO (Commerce—Admin. Review—Dumping) | Affirmed |
| USA-95-1904-03 | COLOUR PICTURE TUBES FROM CANADA (Commerce—Decision Not to Revoke) | Affirmed |
| USA-95-1904-04 | OIL COUNTRY TUBULAR GOODS FROM MEXICO (Commerce—Dumping) | Duties amended |
| USA-95-1904-05 | FLOWERS FROM MEXICO (Commerce—Admin. Review—Dumping) | Affirmed |
| USA-96-1904-01 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Terminated |
| USA-97-1904-02 | CEMENT FROM MEXICO (Commerce—Admin. Review—Dumping) | Affirmed |
| USA-97-1904-03 | CORROSION-RESISTANT STEEL FROM CANADA Commerce—Admin. Review—Dumping) | Duties amended |
| USA-97-1904-04 | MAGNESIUM FROM CANADA (Commerce—Admin. Review—Countervail) | Terminated |
| USA-97-1904-05 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Terminated |
| USA-97-1904-06 | PIPE AND TUBE FROM MEXICO (Commerce—Admin. Review—Dumping) | Terminated |
| USA-97-1904-07 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Duties amended |
| USA-97-1904-08 | WIRE ROD FROM CANADA (Commerce—Countervail) | Terminated |
| USA-98-1904-01 | BRASS SHEET AND STRIP FROM CANADA (Commerce—Admin. Review—Dumping) | Duties amended |
| USA-99-1904-01 | CORROSION-RESISTANT STEEL FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated |
| USA-99-1904-02 | STEEL PLATE FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated |
| USA-99-1904-04 | STAINLESS WIRE FROM CANADA (Commerce—Dumping) | Terminated |
| USA-99-1904-06 | CATTLE FROM CANADA (Commerce—Countervail) | Terminated |
| USA-99-1904-07 | CATTLE FROM CANADA (ITC—Injury) | Terminated |
| USA-20-1904-02 | CORROSION-RESISTANT STEEL FROM CANADA (Commerce—Admin. Review—Dumping) | Terminated |
| USA-98-1904-01 | CORROSION-RESISTANT STEEL FROM CANADA (Commerce—Admin. Review—Dumping) | Active (Feb. 2001) |
| USA-98-1904-02 | CEMENT FROM MEXICO AND FROM CANADA (Commerce—Admin. Review—Dumping) | Active |
| USA-98-1904-04 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Active |
| USA-98-1904-05 | PIPE FROM MEXICO (Commerce—Scope Ruling) | Active |
| USA-99-1904-03 | CEMENT FROM MEXICO (Commerce—Admin. Review—Dumping) | Active |
| USA-99-1904-05 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Active |
| USA-20-1904-01 | STEEL PLATE FROM MEXICO (Commerce—Admin. Review—Dumping) | Active |
| USA-20-1904-03 | CEMENT FROM MEXICO (Commerce—Admin. Review—Dumping) | Active (Feb. 2001) |
| USA-20-1904-04 | COOKWARE FROM MEXICO (Commerce—Admin. Review—Dumping) | Active (April 2001) |
| USA-20-1904-05 | CEMENT FROM MEXICO (Commerce—Admin. Review—Dumping) | Active (May 2001) |
| USA-20-1904-06 | MAGNESIUM FROM CANADA (Commerce—Sunset Review—Dumping) | Active (June 2001) |
| USA-20-1904-07 | MAGNESIUM FROM CANADA (Commerce—Sunset Review—Countervail) | Active (June 2001) |
| USA-20-1904-09 | MAGNESIUM FROM CANADA (ITC—Sunset Review—Injury) | Active (July 2001) |
| USA-20-1904-10 | CEMENT FROM MEXICO (ITC—Sunset Review—Injury) | Active (Oct. 2001) |
| USA-20-1904-11 | STEEL (CORROSION-RESISTANT) FROM CANADA (ITC—Sunset Review—Injury) | Active (Nov. 2001) |
NAFTA Chapter 19 Disputes
Mexican Decisions
Acronym
SECOFI Ministry of Trade and Industrial Development
| Reference | Product and Decision Challenged | Results |
| MEX-94-1904-01 | FLAT COATED STEEL FROM THE UNITED STATES (SECOFI—Dumping) | Duties amended |
| MEX-94-1904-02 | STEEL PLATE FROM THE UNITED STATES (SECOFI—Dumping) | Duties amended |
| MEX-94-1904-03 | CRYSTAL FROM THE UNITED STATES (SECOFI—Dumping) | Affirmed |
| MEX-95-1904-01 | PIPE FROM THE UNITED STATES (SECOFI—Dumping) | Terminated |
| MEX-96-1904-01 | COLD-ROLLED STEEL FROM CANADA (SECOFI—Dumping) | Terminated |
| MEX-96-1904-02 | STEEL PLATE FROM CANADA (SECOFI—Dumping) | Duties amended |
| MEX-96-1904-03 | HOT-ROLLED STEEL FROM CANADA (SECOFI—Dumping) | Duties amended |
| MEX-97-1904-01 | PEROXIDE FROM THE UNITED STATES (SECOFI—Countervail) | Terminated |
| MEX-99-1904-01 | HOT-ROLLED STEEL FROM THE UNITED STATES (SECOFI—Dumping) | Terminated |
| MEX-99-1904-02 | ROLLED STEEL PLATE FROM THE UNITED STATES (SECOFI—Dumping) | Terminated |
| MEX-98-1904-01 | HIGH FRUCTOSE CORN SYRUP FROM THE UNITED STATES (SECOFI—Dumping) | Active (Feb. 2001) |
| MEX-20-1904-01 | UREA FROM THE UNITED STATES (SECOFI—Dumping) | Active (Mar. 2001) |
| MEX-20-1904-02 | BOVINE CARCASSES FROM THE UNITED STATES (SECOFI—Dumping) | Active (Apr. 2001) |
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