Appointments with disaster: Binational arbitral review under the United-States-Canada Free Trade Agreement

I continue to post old, even ancient, papers to my SSRN page. This paper has reached its twentieth anniversary:

The United States-Canada Free Trade Agreement (FTA) of 1989 guaranteed free trade between the United States and its largest trading partner. One aspect of the treaty provoked intense constitutional scrutiny in the United States. The FTA requires binding binational arbitral review of antidumping and countervailing duty orders issued by the administrative agencies of each nation. This article argues that the FTA violates Article III and the Appointments Clause of the United States Constitution. The FTA offends the separation of powers. The FTA not only threatens the integrity of the federal judiciary but also undermines the strict procedures for appointing officers of the United States. The FTA violates Article III by deviating from the recognized methods for exerting federal adjudicatory power. The FTA's system for the appointment of arbitrators neither complies with the Appointments Clause nor satisfies an exception allowing the federal government to delegate its authority to persons who are not officers of the United States.

Jim Chen, Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement, 49 Wash. & Lee L. Rev. 1455 (1992), available for download at http://ssrn.com/abstract=2050646.