WASHINGTON, DC – U.S. Trade Representative Susan C. Schwab today announced that retired U.S. Supreme Court Justice Sandra Day O’Connor has agreed to serve on an elite roster of current and former U.S. judges that helps resolve trade remedy disputes between Canada, Mexico, and the United States.

“I am delighted that one of America’s most distinguished jurists will lend her formidable legal mind to the NAFTA dispute settlement process,” said Ambassador Schwab. “Her willingness to serve on the Extraordinary Challenge Committee roster underscores NAFTA’s importance.  I know Justice O’Connor will make a valuable contribution to the free and fair flow of commerce in North America.”

The North American Free Trade Agreement Extraordinary Challenge Committee (ECC) roster consists of distinguished current and former federal judges from the three NAFTA countries, and helps resolve significant trade disputes between the United States and its NAFTA partners.

Background

The NAFTA entered into force on January 1, 1994 and is one of the United States’ most significant regional trade agreements.  Canada and Mexico are the first and second largest export markets for U.S. goods.  From 1993 to 2006, trade among the NAFTA nations climbed 198 percent, from $293 billion to $875 billion.  Each day the NAFTA countries conduct nearly $2.2 billion in trilateral trade.  Since 1993, U.S. merchandise exports to Canada and Mexico grew more rapidly – at 158 percent – than our exports to the rest of the world combined (108 percent).   U.S. employment, manufacturing output, and compensation have all risen more in the period since NAFTA entered into force than in the decade preceding entry into force.

Chapter 19 of the NAFTA provides for binational panels of five private sector experts to review a NAFTA government’s final antidumping and countervailing duty determinations for consistency with that government’s trade remedy laws.  Once convened, binational panels replace domestic judicial review of these determinations.  The two NAFTA governments with a trade interest in the matter select the panelists to serve in each case, typically from among trade remedy and customs experts. 

Once a panel completes its work, either of the two governments may request the establishment of an Extraordinary Challenge Committee.  An ECC, comprising three judges or former judges from the two involved countries, considers whether the panel took certain impermissible actions (such as failing to apply the appropriate standard of review) and, if so, whether those actions materially affected the panel’s decision and threaten the integrity of the bi-national panel review process.  If an ECC finds that the panel has taken actions of this kind, the panel decision is either vacated or remanded.  If an ECC does not make such a finding, the panel decision is affirmed.  Since the NAFTA entered into force in 1994, three ECCs have been composed.

Under the NAFTA, Canada, Mexico, and the United States each must maintain a roster of five judges eligible to serve on ECCs.  At present, the U.S. ECC roster consists of four retired federal judges: Arlin Adams, Susan Getzendanner, George Pratt, and Charles Renfrew.