An Appellate Mechanism for Review of Arbitral Decisions in Investor - State Disputes: Prospects and Challenges

Current support for such an appellate mechanism is largely derived from Congressional and NGO concerns regarding certain arbitral decisions rendered under NAFTA’s Chapter 11, where questions as to the consistency of tribunal interpretation of investment rules have been raised. Incorporation of such a mechanism or mechanisms in free trade agreements and bilateral investment treaties is effectively required by the President’s 2002 “Trade Promotion Authority.” Negotiation and drafting of an agreement establishing such a mechanism will commence shortly (three months) after the United States – Central America – Dominican Free Trade Agreement enters into force, probably January 1, 2006. The article discusses the genesis and rationale for the appellate mechanism concept; existing procedures under ICSID and elsewhere for review of arbitral awards; and the legal challenges for the negotiators. This last group includes questions relating to the standard of review; various procedural and jurisdictional issues; transparency arrangements; a possible bonding requirement; choice of law; structure and membership; situs of the mechanism; dealing with member conflicts of interest; and the need to modify existing FTAs and BITs

Rice Age: Comments on the Panel Report in Turkey - Measures Affecting the Importation of Rice

At face value, Turkey-Rice is not the most complex or important WTO dispute ever litigated. The facts of the case give strong reason to believe that Turkey's restrictions on rice imports from the United States were not GATT-consistent. Turkey's steadfast refusal to provide exonerating evidence in its defence and the Panel's drawing of appropriate inference were probably the most remarkable issues of the case. Nevertheless, Turkey-Rice raises at least one interesting legal and economic question: How ‘activist' are dispute panels today, and how interventionist should they be during the litigation process? We discuss the justification and role of activist panels and assess the consequences for parties' strategic behavior and incentive to provide accurate informatio

Settlement of Disputes under the United States-Central America-Dominican Republic Free Trade Agreement

The U.S. – Central America – Dominican Republic Free Trade Agreement is one of nearly a dozen post-NAFTA FTAs that have been concluded by the United States since 2000 with nations in Latin America, the Middle East and Asia. All of these newer agreements are based on NAFTA, but they differ in significant respects, particularly in the chapters relating to dispute settlement. The changes reflect, most significantly, U.S. government experience with NAFTA dispute settlement, particularly with regard to actions brought by private investors against the United States and other NAFTA governments under NAFTA’s investment protection provisions (Chapter 11). However, they also result from perceived (as well as actual) threats to U.S. sovereignty, as reflected in the President’s “Trade Promotion Authority” of 2002. It is too soon, of course, to determine whether these changes will have a significant impact on dispute settlement under CAFTA-DR; in the author’s view, they will

The China Challenge: Excluding Mexican/Chinese EVs From the United States

Part II of this Article summarizes the rules applicable to trade in passenger vehicles under the USMCA and WTO rules. Part III looks at the rationale for BYD and perhaps other Chinese auto producers to build factories in Mexico. Part IV examines the legal and practical options for BYD, and other Chinese autos and SUVs assembled in Mexico to penetrate the U.S. market. It also examines the actions available to the U.S. government to exclude those imports from the United States. Part V examines the implications of the exclusion policies for the United States, China, and Mexico that appear likely to be followed by either Democratic or Republican administrations in the foreseeable future. The article concludes with a brief summary and recommendations

The U.S.-Mexico Trade Relationship under AMLO: Challenges and Opportunities

The author gives an overview of the USMCA's implications for Mexico, finding that while challenges remain for the U.S.-Mexico relationship, the possibility of the trade agreement going into effect by 2020 should greatly reduce uncertainties about the future of North American trade