What is the role of international dispute resolution in interpreting domestic law?

Author:Barnett, Mark A.

MICHAEL SCHARF: All right. Good afternoon, everybody. Let's go ahead and get started. For those of you who don't know me, I am Michael Scharf, the Interim Dean here at Case Western Reserve University School of Law and also the director of its International Law Center, the Cox Center, and we have had a wonderful semester of events, and I see many people in the audience that we have had at our other events.

This is our last event of the semester. It seems like it has gone by really quickly, but I feel like we have saved the best for last in a lot of ways. If you have been here all semester, it kicked off with a huge international conference about high tech weaponry and super soldiers, so something a little bit, you know, outside the ordinary. We have had panels on the Foreign Corrupt Practices Act. We had Mark Ellis, the Executive Director of the International Bar Association, launch publicly for the first time ever his new app that will be used to record evidence of war crimes around the world. And we are going to end with a really, really special lecture by Judge Mark Barnett. Professor Juscelino Colares is going to introduce you to Mark, but I will say what makes this particularly special for me is that I have known some people for a long time, and yes, I am getting a little gray. I knew, for example, Madeline Albright when she was just a professor and Samantha Power who has spoken here when she was just a journalist.

But Mark I have known perhaps the longest. In college, we ran the national high school model UN conference together. I was the secretary general. He was the undersecretary general. We had 50 college students that were our staff and 2000 high school students at the real UN portraying the United Nations, and I think both of us would say -that our careers in international law and our love for international law was launched way back then. And it is such a treat to have a friend from that long ago that has now become a Judge of the U.S. Court of International Trade. And please join me, first, in welcoming Juscelino Colares, who will give you the biographical information to introduce Judge Barnett.


JUSCELINO COLARES: Thank you all for being here. Again, my name is Juscelino Colares, and I teach here at Case. I have been here for three years. I teach international trade law and a bunch of other courses, but it is very rare that, as an academic former prior who has had, you know, some years of practice in D.C. in the trade area, that you actually meet experts that are as qualified as Mark, as Judge Barnett--sorry, Mark--as Judge Barnett.

He graduated with very high honors from Dickinson College, Michigan Law School, and he went from that to a career as a lawyer at Steptoe & Johnson, at one of the best firms, trade firms in D.C., which I appeared often as a guest in my old days. And from there, he served 18 years at the Department of Commerce doing all these trade investigations and also helping defend and prosecute cases before NAFTA and WTO panels. And from there, he served some time--a year I believe--on the Hill, on the Ways and Means Committee, and from there he got appointed to--and very deservedly so--to the United States Court of International Trade, an Article III Court that handles customs and trade remedy issues, trade remedy disputes, challenges to customs, orders, and trade remedy determinations by the United States Department of Commerce and the United States Trade Commission.

It is, indeed, a great honor, the Judge is going to be talking here today about the effect, the importance, the role of international decisions by tribunals on international trade matters on U.S. law, and I could not think of anyone better qualified to speak on the subject than Judge Barnett.

Please welcome Judge Mark Barnett.


MARK BARNETT: Good afternoon. I want to begin by thanking Dean Scharf for inviting me to speak with you here today. As one of two new judges on Court of International Trade, (2) I often get requests to spend some time visiting with foreign judges and other officials who come to see the Court and learn about our Court. But those invitations typically come with little notice and usually without an included tour of the Rock and Roll Hall of Fame. So I want to thank you, Michael, for that.

I am sure actually that the Dean is not aware of this, but I have a connection to Case Western's Law School. My late father-in-law, Stephen Franko, is an alum from the class of 1950 when it was still Western Reserve University, and the degree he received was a Bachelor of Laws. Interestingly, then, in 1968, after the University became Case Western Reserve University, they reissued his degree as a juris doctor. My wife recently showed me an article that was published in your alumni magazine back in 1985 about my father-in-law and, in part--in connection with my coming out here today. And so I appreciated that chance to get to know a little more about him and his career. And it was all as a result of my agreeing to come speak with you today. So I really do appreciate that; got to spend a little bit of time this afternoon wandering about University Circle and some of the campus buildings here, and I love the architecture. And I am sure he would be very impressed if he were to come see it all today. So thank you again for this opportunity.

Let me start off by giving you a little bit of background, first on myself, and then about the Court on which I sit. Primarily to give you a sense of the experience that forms my perspective on the interplay of international obligations with domestic law. Prior to being appointed to the bench, as Professor Colares told you, I spent 18 years in the General Counsel's Office at the U.S. Department of Commerce, and for the last eight years there I was the Deputy Chief Counsel for Import Administration. In that role, along with the chief counsel and a staff of roughly 30 attorneys, we provided legal advice to what was then called Import Administration, the agency within the Department of Commerce that's responsible for administering the U.S. Unfair Trade laws; in other words, the antidumping and countervailing duty laws. As the attorneys for Import Administration, we advise the agency on all aspects of its antidumping and countervailing duty, participating as members of Import Administration's team along with analysts, accountants, policy advisors, and others as they conducted their investigations and other administrative proceedings. And we reviewed their determinations for legal sufficiency. Those determinations could then be challenged in several different fora, sometimes simultaneously. Within the U.S. legal system, any party that was involved in the administrative proceeding could challenge the determination before Court of International Trade, on which I now sit.

Attorneys from Commerce would work closely with the Department of Justice attorneys to defend the agency's determinations, drafting briefs, and preparing the DOJ attorneys for oral arguments. If the case involved imports from Canada or Mexico, the parties have the option of taking their case to a binational panel composed pursuant to Chapter 19 of the NAFTA, instead of Court of International Trade. (3) In these NAFTA panels are ad hoc panels of experts, practitioners, and academics composed for hearing the individual case. (4) By the terms of the NAFTA agreement, these panels apply the domestic law of the country in which the determination was made. (5) In these cases, Commerce has its own litigating authority, and their attorneys draft and file the briefs, and they make the oral arguments directly to the binational panels. (6)

In addition to these challenges under domestic law, the government of the exporting country may elect to challenge Commerce's determination or its practice, its regulation, or even the statute before a dispute settlement panel at the World Trade Organization with, of course, the possibility of an appeal to the WTO's appellate body. (7) In these cases, the Commerce attorneys work side by side with attorneys from U.S. Trade Representatives Office drafting the written submissions and arguing the cases in Geneva. I should note that in addition to providing legal advice during the administrative proceedings and defending the determinations in litigation, Commerce attorneys also work closely with senior officials in the client office in international negotiations. So whether it is a case specific suspension agreement, as was recently announced, for example, in the sugar dispute with Mexico Free Trade Agreement, (8) negotiations such as the ongoing Transpacific partnership or TPP and TransAtlantic Trade Investment Partnership or TTIP that we are negotiating with Europe, or the WTO's Doha round negotiations to revise, among other things, the antidumping agreement and the subsidies in countervailing measures agreement; (9) in these roles, I was fortunate enough to be able to combine my legal and litigation experience with my understanding of the policy concerns of our team in order to assist in achieving our negotiating objectives.

Now, as I turn to a quick bit of background on Court of International Trade, let me ask if anyone here knows what the first case tried before the first judge appointed to the first court that was organized in the United States?

(No response)

MARK BARNETT: The case was United States v. Three Boxes of Ironmongery. (10) It was a case about the amount of customs duty charged on the imports of certain goods, and I am told "ironmongery" is the technical term for stuff made out of iron. (11) But this is your trivia part of the talk. The case was tried before Judge Duane of the District Court for the District of New York, and the courthouses now for both the Southern District of New York and Court of International Trade sit in lower Manhattan, sit on Duane Street named after Judge Duane. But the important thing about the little trivia option here is...

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