July 19, 2017
Osler partner Riyaz Dattu tells Global News that part of the reason the Trump administration wants to eliminate Chapter 19 during the North American Free Trade Agreement (NAFTA) renegotiations is due to Canada’s success rate in review cases. In his article, author Adam Frisk outlines U.S. President Donald Trump’s wish list for NAFTA talks and why his administration has its sights set on Chapter 19; a binational trade dispute panel. Riyaz, an International Trade and Investment Law expert, explains.
“The dispute on Chapter 19 comes down to this right now: Canada has felt that it has prevailed in Chapter 19 cases and the system works well,” Riyaz tells Global News. “The U.S. feels on the other hand that they have not prevailed because the panellists have tended to be too intrusive into the record and have ignored the standard of review applicable in the U.S. What they mean by standard of review is when you’re challenging a government body’s decision, you have to give deference to that decision.
“So the U.S. view is that these panellists have misapplied or misconstrued the standard of review.”
Riyaz, who has been involved in several Chapter 19 review cases, also suggests Canada would be willing to drop Chapter 19 of NAFTA if anti-dumping and countervailing duty laws were eliminated between Canada, Mexico and the U.S.
“The pivotal industry at this point in time that relies on Chapter 19, because it’s a perennial case that keeps cropping up every few years, is softwood lumber,” Riyaz tells Global News. “The U.S. on the other hand says that NAFTA is the only agreement where we agreed to this financial panel process, it’s an aberration, it’s been misused, abused and that U.S. courts are the proper venue to review decisions of the Department of Commerce and the U.S. ITC and therefore they want Chapter 19 to go away.”
For more information, read Adam Frisk’s article “NAFTA: Donald Trump’s wish list and closing the book on Chapter 19” in Global News.