The NAFTA panel ruling in Stainless Steel Sheet appears contrary to previous decisions of the U.S. Court of Appeals for the Federal Circuit and arguably undermines the role of Congress and the Administration in implementing adverse rulings in WTO disputes. The panel’s reasoning may be affected by future pronouncements by U.S. courts on Charming Betsy and related issues.
Friday, October 1, 2010
(Taking context-optional note of thought-provoking quotes)
-- Dr. Tania Voon (above left), Associate Professor of Law at the University of Melbourne and former Legal Officer of the Appellate Body Secretariat of the World Trade Organization, in an ASIL Insight entitled "NAFTA Chapter 19 Panel Follows WTO Appellate Body in Striking Down Zeroing." Haven't read the underlying 3-2 decision by the panel, which was adjudicating pursuant to NAFTA, the North American Free Trade Agreement. Am struck nonetheless by the majority's apparent treatment of the statement by John Marshall, Chief Justice of the United States, in Murray v. The Charming Betsy (1804) ("An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains...") as something more substantial than a canon of statutory construction.