Originally from American Review of International Arbitration - ARIA

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The extensive and varied mechanisms for dispute resolution that are embodied within the North American Free Trade Agreement (“NAFTA”)1 and its two “side” agreements represent a unique approach (in their variety and breadth) to the well-recognized need for sound dispute settlement mechanisms in matters involving regional trade agreements.2 In this paper I discuss what is perhaps the most important of those mechanisms, the process set forth in Chapter 20 of NAFTA for resolving disputes over the interpretation and application of NAFTA between or among the NAFTA governments. I attempt to evaluate the effectiveness of Chapter 20 through a focus on the procedural aspects of the Chapter 20 process and on the available jurisprudence (three decisions and various requests for consultation, plus a non-NAFTA proceeding utilizing the NAFTA procedural rules) in the seven years since NAFTA entered into force. The five decisions under the United States - Canada Free Trade Agreement (“CFTA”)3 are also briefly discussed.

In the interest of full disclosure of possible prejudices as well as the sources of otherwise unsupported statements, I confess to having served on a total of seven dispute resolution panels, one Chapter 19 panel under the United States - Canada Free Trade Agreement and three under NAFTA; one Chapter 20 panel (Cross-Border Trucking Services), one non-NAFTA panel conducted under NAFTA Chapter 20 procedural rules (Softwood Lumber), and presently on a Chapter 11 tribunal conducted by ICSID under the “Additional Facility” rules. Whether spending so much time involved in NAFTA dispute settlement has been wise or unwise I leave to others to decide; I have found it to be an interesting and worth-while, but occasionally frustrating, experience.