Wednesday, October 26, 2005

More on Complying with International Tribunal Judgments

Julian, regarding your last post, I take a different view of the Canadian softwood lumber cases. My perspective on whether the United States shall give effect to international tribunal decisions depends first and foremost on whether there is a federal mandate relevant to the question. Obviously our obligation to implement a decision of an ICSID arbitral panel is very different from our decision whether to recognize an ECJ decision. In the case of ICSID decisions, there is a federal statute requiring that we give “full faith and credit” to an ICSID award “as if the award were a final [state court] judgment.”

We have something similar in the softwood lumber dispute. There is a federal statute requiring the relevant executive agencies to comply with any binational panel or extraordinary challenge committee decision that has been rendered. See 19 U.S.C. § 1516a(g)(7)(A). Under that provision, if a panel or committee renders a decision, the executive branch agency “shall, within the period specified by the panel or committee, take action not inconsistent with the decision of the panel or committee. Any action taken by the [executive agency] … shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise.”

I read that to impose a congressional obligation on executive agencies to give effect to these binational panel decisions. It is not a matter of discretion, unless of course executive agencies have discretion to violate federal statutes. Nor is it a matter of little moment; several billion dollars potentially rides on the question of whether the United States must comply with these international tribunal decisions.


Blogger Julian Ku said...

Thanks Roger for that helpful comment. Are you suggesting that the Executive Branch is violating the statute by refusing to implement the NAFTA tribunal's judgment? If so, what is the significance of the language shielding its decision from judicial review? As you point out, this "non-self-executing" language does not appear in other statutes requiring implementation of international tribunal judgments.

10/26/2005 7:53 AM  
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