Juscelino F. Colares (Syracuse University - College of Law) has posted An Empirical Examination of Product and Litigant-Specific Theories for the Divergence between NAFTA Chapter 19 and U.S. Judicial Review on SSRN. Here is the abstract:
Empirical analysis of U.S. judicial and NAFTA Chapter 19 binational panel review has shown that panels reverse U.S. agency determinations on trade remedies twice as often as U.S. courts (66% vs. 32%). Surprisingly, panels have shown great deference to Canadian agency determinations (71% affirmance rate). While Priest-Klein case selection and other alternative hypotheses have been ruled out as explanations to U.S. agency challenge outcomes, questions regarding the role of intrinsic differences among cases being heard by U.S. courts and NAFTA panels remain. Two sets of Probit regressions show that differences in the U.S. court docket cannot account for the observed discrepancies. Specifically, models and regressors testing the impact of commodity-based and LDC-initiated litigation were not statistically significant. These results further strengthen previous research indicating the existence of an asymmetric pattern of decisions despite the express requirement in the NAFTA that Chapter 19 panels apply U.S. law and standard of review in the same manner as U.S. courts. While this divergence might empirically illustrate the operation of two systems — one that has adhered to legal principles (U.S. court review), the other having executed a sub rosa code to liberalize U.S. trade (Chapter 19 review) — it presents some serious questions about the role or absence of popular preferences in the trade policy process.