Binational Panel Review of Trade Remedies Determinations: Prospects for Exporting the USMCA’s Unique Procedure

Abstract

The United States-Mexico-Canada Agreement (USMCA) contains a distinctive procedure under which anti-dumping and countervailing duty determinations by national agencies can be reviewed by an ad hoc binational panel established under the treaty as an alternative to domestic court review. Binational panel review was first adopted in the Canada-US Free Trade Agreement (Canada-US FTA) to respond to Canada’s concern that the administration of the US anti-dumping and countervailing duty laws by the US agencies was biased in favour of the US domestic industries and the review of agency determinations by the US courts was inadequate to address that bias. Continuing Canadian concerns, shared by Mexico, resulted in binational panel review being included in the USMCA, even though the US had sought to eliminate it. Compared to US judicial review, binational panels under the Canada-US FTA and its successor, the North American Free Trade Agreement (NAFTA), have resulted in more frequent remands of the US agency determinations often leading to lower (or even zero) duties in anti-dumping and countervailing duty cases. As well, the prospect of rigorous panel review has discouraged the filing of anti-dumping and countervailing duty cases, the commencement of anti-dumping and countervailing duty investigations, and the imposition of duties in relation to imports from Canada and Mexico. Adopting binational panel review in other treaty contexts would be most attractive where significant concerns about domestic agencies comparable to Canada’s are present and national anti-dumping and countervailing duty regimes in participating countries have similar structures and procedures for judicial review. anti-dumping, countervailing duty, trade remedies, free trade, North America, dispute settlement