When Enough Is Too Much: The Threat of Litigating NAFTA's Constitutionality and a Lost Chance to Examine Undue Process in Antidumping and Countervailing Duty Determinations

Introduction A fundamental truth of international trade law is that trade is seldom entirely "free." Free trade agreements, while lessening protectionist measures, stop far short of abolishing all trade barriers. Yet, trade agreements such as the North American Free Trade Agreement ("NAFTA") must create some form of consensus between member countries on how such barriers will be implemented within the context of the agreement. 1 Chapter 19 of NAFTA establishes a unique system for review of protectionist measures imposed by its member countries. Under Chapter 19's provisions, a binational panel reviews administrative determinations that an antidumping or countervailing duty ("AD/CVD") order should be imposed by one member country against another. 2 The panel's purpose is to ensure fairness in trade practice disputes. 3 A panel applies the law of the country that seeks to impose an antidumping or countervailing duty. 4 Panel decisions, if subsequently subject to further judicial review within a member country, would be a hollow formality. Thus, parties may only appeal a final panel decision on grounds of jurisdiction, improper procedure, or panelist misconduct to an Extraordinary Challenge Committee, as established under Chapter 19. 5 Following this appeal, interested parties have no recourse for review of the panel's determination. 6 Interested parties, however, may challenge the constitutionality of NAFTA itself in the D.C. Circuit. 7 Because a constitutional challenge is the final remaining recourse for participants in an industry threatened with the denial of domestic market protection, parties will likely continue to raise constitutional challenges to ...