USMCA Chapter 10 Binational Panel Review Should Be Eliminated

The USMCA Chapter 10 process strips U.S. courts of jurisdiction to review determinations of the U.S. Department of Commerce (“Commerce”) and the U.S. International Trade Commission (“ITC”).

In this alternative process, review of U.S. agency determinations, including issues of U.S. law, are decided by panels that include non-citizens – as opposed to Federal judges nominated by the President and confirmed by the Senate.

Chapter 10 panel review violates the Appointments Clause of the Constitution by placing binational panelists in an adjudicatory capacity with the power to issue binding decisions regarding Commerce and the ITC’s application of U.S. law without satisfying the requirements of that Clause.

Consequently, Chapter 10 panel review deprives U.S. interested parties of impartial judicial review by Article III courts of actions taken by Commerce and the ITC.

Binational panel review has, at times, yielded deeply flawed decisions and caused years-long delays in finalizing agency determinations, tying up billions of dollars that should already have been liquidated into the U.S. Treasury.

For Commerce and ITC determinations in nearly all other antidumping (“AD”) and countervailing duty (“CVD”) cases, U.S. courts ably and efficiently resolve appeals.

The origin of binational panel review was the U.S.-Canada FTA (Binational Dispute Settlement in Antidumping and Countervailing Duty Cases), where the novel review process was envisioned as a temporary stopgap to assuage Canada’s concerns pending the negotiation of more detailed substantive disciplines for AD and CVD measures.

Those detailed substantive disciplines were negotiated and memorialized in the WTO agreements and implemented in U.S. law through the Uruguay Round Agreements Act.  This obviated the original basis for binational panel review under the FTA, but that review persisted in the NAFTA and the USMCA.

As USMCA binational review panels and U.S. courts are both interpreting and applying U.S. law (not the WTO agreements), the outcome of appeals should be no different, whichever venue is chosen.  But Canada appears to believe that it has a better chance to prevail before USMCA binational review panels by re-litigating long-settled legal issues again and again before new adjudicators, including foreign nationals.  This is deeply troubling.

It is long past time for this failed experiment to end.