The Trade Act of 2002, enacted in August of that year, marks a milestone in the development of United States trade policy on a number of different subjects. Among many other things, the Act sets forth a negotiating objective of an appellate mechanism for investment disputes under free trade agreements. That objective of an appellate mechanism is the subject of this brief contribution. In the pages that follow, I first outline what the negotiating objective is and does, and then explore some of the challenges it presents.
I. THE TRADE ACT AND THE NEGOTIATING OBJECTIVE
Although the 2002 Trade Act contains provisions addressing a range of trade issues, those of interest to the topic of this volume relate to the Act’s grant of trade promotion authority to the Executive Branch of the U.S. Government. Trade promotion authority, formerly known as “fast-track,” allows the Executive Branch to present trade agreements to Congress for approval by a simple yes-or-no vote by a simple majority.