International judicial politics: The evolution of dispute resolution under the North American Free Trade Agreement

The United States, Canada, and Mexico are members of the North American Free Trade Agreement ("NAFTA") that entered into force in 1994. NAFTA is further evidence of a new world economic order that is emerging as a result of increased international trade and globalization of business activities. The phrase "international judicial politics" is used to describe the trend in regional and international trade agreements to provide for quasi-judicial dispute resolution arrangements to resolve trade-related issues in lieu of a member country's domestic courts. NAFTA provides, inter alia, for ad hoc panels to resolve claims arising under NAFTA and for arbitral tribunals to decide claims by foreign investors. NAFTA also substitutes ad hoc binational panels for domestic courts to review final determinations by the parties' national administrative agencies that assess anti-dumping and countervailing duties.;Although there has been an international judicialization of trade law, of which NAFTA is a part, NAFTA is a system that operates under such constraints that NAFTA has not evolved into a robust forum for the resolution of disputes under NAFTA. Trade agreements providing for dispute resolution have been criticized for being antidemocratic because of their failure to provide for access to private parties, transparency, accountability, or appellate or judicial review. The same allegedly antidemocratic factors, however, constrain the evolution of NAFTA's quasi-judicial dispute resolution system. The dissertation examines NAFTA's approach to dispute resolution, its legal output after ten years, and the extent of any law-and policy-making by NAFTA panels or tribunals. Unlike the European Court of Justice, NAFTA's dispute resolution approach structurally is incapable of producing rules and policies that are conducive to NAFTA's systemic change, policy-making and strategic behavior. The research is of interest to scholars who study international dispute resolution systems, as well as to those who study the evolution of courts and legal systems.