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Michael S. Valihora*
I. INTRODUCTION
RECENTLY THERE HAVE BEEN SIGNIFICANT discussions regarding dispute resolution mechanisms. Much of the discussion has been spurred by the advent of the World Trade Organization's Understanding on Rules and Procedures Governing the Settlement of Disputes (Understanding).1 Discussion originally abounded regarding the dispute resolution mechanism established by the Understanding and how it appeared to differ from GATT (1947) procedures.2 Discussion has now turned to the actual application of the Understanding as cases are being heard in Geneva. In North America, dispute resolution has been a prominent issue since the Canada-United States Free Trade Agreement. The controversy surrounding the Free Trade Agreement dispute resolution mechanisms has around Chapter 19. Chapter 19 allows for the establishment of binational panels to review administrative decisions in anti-dumping and countervailing duty cases. The panels replace judicial review of agency determinations.
The Chapter 19 dispute resolution mechanism has been closely watched because of its innovative approach and its important place in the settlement of U.S. and Canadian trade disputes. Although the mechanism has been criticized, it has also been hailed by many as a unique and positive step in the area of trade disputes. The mechanism has generally been evaluated in isolation. It is unique among bilateral trade agreements and is superior to the consensus approach of GATT (1947). However, now that the GATT dispute resolution mechanism has taken such a dramatic step forward with the WTO dispute resolution mechanism, it is time to re-evaluate what was the Free Trade Agreement, and what is now the NAFTA dispute resolution mechanism.
This Article compares and contrasts the Chapter 19 process with the WTO dispute resolution mechanism to determine which mechanism Canada and its industries should rely upon in particular circumstances. Admittedly, the mechanisms differ in fundamental ways, and because of this the analysis will not lead to a decision about which is the "better" of the two. The analysis does not give preference to one particular mechanism. Instead, it is more concerned with how the two systems can coexist. Although each mechanism has a different focus, they overlap in some key respects. Therefore, anti-dumping and countervailing duty disputes must be approached in the context of both mechanisms. While the mechanisms are not alternatives to each another, they can...