This is from Ambassador Lighthizer's statement at the NAFTA press conference today:
Finally, I would like to refer, because I think it fits into this context to an unprecedented trade action that Canada brought against the United States very recently. It constitutes a massive attack on all of our trade laws. If it were successful, it would lead to more Chinese imports into the United States and likely fewer Canadian goods being sold in our market. Now we understand that countries often challenge specific actions taken by another country in the context of trade laws. This is normal and what we expect. But this litigation essentially claims that 24 years ago, the United States effectively gave away its entire trade regime in the Uruguay Round. Of course, we view this case as frivolous, but it does make one wonder if all parties are truly committed to mutually beneficial trade. It also underscores why so many of us are concerned about binding dispute arbitration. What sovereign nation would trust to arbitrators or the flip of a coin their entire defense against unfair trade?
He elaborated on this point later when talking with reporters:
What [the WTO case] says to me is be very careful about binding dispute settlement resolution. And when I made that reference about flipping the coin, the way this works in Chapter 20 is, if they had brought a case under NAFTA Chapter 20, saying your entire trade system is wrong, we would pick an arbitrator, they'd pick an arbitrator, and we'd flip a coin for the third arbitrator. Is any sovereign nation going to do that? Just any? Does that make any sense? In other words it's such an abuse of the system it shows the risk of this kind of a process.
(The full quote is from Jenny Leonard of Inside US Trade -- part of the quote was published here).
There are three NAFTA Chapter 20 panel reports. All of these had five panelists, and all were unanimous decisions. It doesn't seem like we are talking about a coin flip to me. Rather, governments think carefully about whether to pursue trade litigation, and usually feel pretty sure of their claims if they follow through with them. And the panelists, whatever their nationality, take their responsibilities seriously and try to reach the right result.
Chapters 19 and 11 are also hot topics in the NAFTA renegotiation. I don't have the data on separate opinions correlated with different nationalities in those cases.
