The U.S. Court of International Trade issued a fascinating opinion yesterday finding that the much-hated now-repealed Byrd Amendment could not be applied to goods from Canada and Mexico. (See the Bloomberg report on the decision)
For those who want a little background: the Byrd Amendment distributed duties collected on foreign goods, usually anti-dumping duties, and distributed those duties to domestic producers of those same foreign goods. Needless to say, this seriously annoyed those foreign producers, especially from Canada and Mexico, who brought a lawsuit in the U.S. Court of International Trade arguing that the Byrd Amendment could not be applied to NAFTA countries because NAFTA requires Congress to use “magic words” or a “clear statement” when it enacts a statute that purports to amend NAFTA. (The Byrd Amendment was recently repealed, but there is still a fight over the legality and distribution of duties gathered prior to the repeal).
The case is fascinating in its treatment of a number of issues arising from trade law, treaty law, and statutory interpretation. Here are a just a few that interest me:
(1) Does the Government of Canada have standing to bring a lawsuit in U.S. federal court to challenge a breach of an international obligations or an international agreement (e.g. NAFTA)?
Short Answer: No, because the Government of Canada (as opposed to its nationals) has not suffered an injury-in-fact and because it has already sought and received an alternative remedy in the WTO.
(2) Does the legislation implementing NAFTA create a “private right of action” authorizing Canadian and Mexican producers to sue directly to enforce its provisions?
Short Answer: Yes, because although legislation “approving” NAFTA clearly prohibits private individuals from suing under NAFTA, legislation “implementing” NAFTA contains no such prohibition.
(3) Does the legislation implementing NAFTA require a subsequent statute to specify that it is targeting goods from Canada or Mexico in order to have effect?
Short Answer: Yes. Section 408 of the NAFTA implementing legislation states:
“Any amendment enacted after the Agreement enters into force with respect to the United States that is made to– [Tariff Act] . . .shall apply to goods from a NAFTA country only to the extent specified in the amendment.”
This means, the court holds, that any subsequent statute, like the Byrd Amendment, must specify Canada and Mexico before it can be interpreted to apply to goods from those countries.
Given the legal firepower involved in this case, and the complexity of the legal issue here, an appeal is surely in the works. I have serious doubts on the court’s resolution of issues (2) and (3) but I’ll have to think about this some more.
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