NAFTA was implemented in January, 1994. Almost 25 years later, it is still unclear as to whether it has fulfilled the promises that the Mexican, U.S. and Canadian governments made prior to its enactment. Negotiations for the modernization of the treaty between the three countries, which started in August 2017, continue and resolution of the most substantive matters of discussion is still pending.

The US Government announced recently that one of its objectives in the renegotiation of NAFTA is the elimination of NAFTA’s dispute settlement chapter dealing with administrative determinations on unfair trade practices (anti-dumping and countervailing duties). This mechanism, which is unique in the world, is contained in NAFTA Chapter 19. The US position generated concern and confusion among industry players and made it evident that there is a significant lack of knowledge with respect to the different dispute settlement procedures in NAFTA and their operation. By way of example, the Mexican Senate formally asked Mexican government negotiators to reject the elimination of Chapter 19 as this would result in anti-dumping disputes being resolved in accordance with US laws rather than NAFTA rules. It escaped their attention that the laws of the jurisdiction that issued the anti-dumping measure are always used in the review process in Chapter 19 cases and that, in any event, Chapter 19 has always been an alternative voluntary and optional review mechanism.