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Schwab Announces Retired Supreme Court Justice Sandra Day O'Connor to Serve on Prestigious NAFTA Roster of Judges

June 04, 2007



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

“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

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


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.

the NAFTA, Canada,
Mexico, and the
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.