¹ Not published. The text of the Agreement is available through the Information Centre at the Department of Foreign Affairs [hereinafter CIFTA].

² Dec. 17, 1992, (1993) 32 I.L.M. 289 [hereinafter NAFTA].

³ Lauterpacht, H., The Function of Law in the International Community 250 (Connecticut: Archon Books, 1966).Google Scholar

⁴ NAFTA contains a number of mechanisms for resolving disputes between its parties. This comment concentrates on the general dispute mechanism in Chapter 20.

⁵ This language is distinct from the language used in the Israel-United States Free Trade Area Agreement (1985) 24 I.L.M. 653 [hereinafter Israel-U.S. FTA]. In that agreement, Art. 19 provides that the dispute setdement mechanism applies in cases where measures taken by a party “severely distort the balance of trade benefits.” CIFTA parties may have elected not to use this language because of fear that it would not provide clear guidelines as to the level of protection provided since measures can impair benefits while not changing their balance. This would occur, for example, when the party invoking the measure and the party against which the measure is taken are affected equally by the measure taken.

⁶ Supra note 2, Annex 2004(1) and supra note 1, Annex 8.1(1).

⁷ Supra note 2, Annex 2004(1) and supra note 1, Annex 8.1 (1).

⁸ Ibid.

⁹ Here, CIFTA parties chose to follow the Israel-U.S. FTA which in Art. 19:1 (a) provides that the benefits protected are those “accorded by [the] Agreement.” Thus, like CIFTA, the Israel-U.S. FTA provides a more balanced approach to the benefits the Agreement protects.

¹⁰ Supra note 2, Art. 2003. See also supra note 2, Art. 2006.

¹¹ Supra note 1, Art. 8.6(2).

¹² Ibid., Art. 8.5(5).

¹³ Contrasting these two mechanisms is the Israel-U.S. FTA, in which the consultation procedure is less specific. The lack of specificity, particularly regarding time tables, motivates trade officials to keep open channels of communication. However, it could be counterproductive if a party were tempted to stretch the process of consultations indefinitely under the belief that it would gain through delay.

¹⁴ Supra note 2, Art 2001 and supra note 1, Art. 8.2. The commissions also have responsibilities that are not related to their dispute resolution mechanisms.

¹⁵ Supra note 2, Art. 2007(1) and supra note 1, Art. 8.7(1).

¹⁶ Appleton, B., Navigating NAFTA: A Concise User’s Guide to the North American Free Trade Agreement 147 (Scarborough: Carswell, 1994).Google Scholar

¹⁷ Supra note 2, Art. 2007(5)(a) and supra note 1, Art. 8.7(2).

¹⁸ Supra note 2, Art 2007(5)(b, c).

¹⁹ Supra note 1, Art. 8.7(2).

²⁰ Ibid.

²¹ Supra note 2, Art. 2008(4) and supra note 1, Art. 8.7(1).

²² Supra note 2, Art. 2008(1) (a) and supra note 1, Art. 8.9(2).

²³ Ibid.

²⁴ Supra note 1, Art. 8.9(2).

²⁵ See Baranes, Y., “The Motivations and the Models: A Comparison of the Israel-U.S. Free Trade Agreement and the North American Free Trade Agreement” (1997) 17 New York Law School J. of Int’l and Comp. Law 145.Google Scholar

²⁶ Supra note 2, Art. 2011.

²⁷ Supra note 1, Annex 8.9(3).

²⁸ Supra note 2, Art. 2009 and supra note 1, Annex 8.9.

²⁹ Indeed, to this date NAFTA parties have been unable to agree on a roster for NAFTA Chapter 20 dispute setdement mechanisms.

³⁰ Supra note 2, Art. 2011.

³¹ Supra note 1, Annex 8.9(3). This is not the case with the Israel-U.S. FTA, since the process neither prescribes limits to the nationality of the elected panel members nor requires that selection be performed through consultation between the parties. The likely reason for this is that, unlike the negotiators of the Israel-U.S. FTA, the negotiators of CIFTA and NAFTA did not suffer from the misleading belief that disagreements could always be resolved in a conciliatory atmosphere. A strong belief in consultation resulted from the particularly strong political relationship between the U.S. and Israel.

³² Supra note 2, Art. 2011 and supra note 1, Art. 8.9(3).

³³ Supra note 2, Art. 2011(1)(b).

³⁴ Supra note 1, Annex 8.9(3).

³⁵ Supra note 1, Annex 8.9(1) and supra note 2, Art. 2009(2)(a).

³⁶ Ibid.

³⁷ Supra note 2, Art. 20og(2)(a), (b) and supra note l, Annex 8.9(1).

³⁸ Negotiators of both CIFTA and NAFTA Chapter 20 recognized the importance of the qualifications and expertise of panelists and, unlike the negotiators of the Israel-U.S. FTA, chose to include requirements for them.

³⁹ Supra note 1, Annex 8.9(1) and supra note 2, Art, 2009 (2) (a).

⁴⁰ Supra note 1, Annex 8.9(6) and supra note 2, Art. 2009(2) (c).

⁴¹ Supra note 2, Art. 2012(1) and supra note 1, Art 8.9(5).

⁴² Supra note 2, Art. 20i2(i)(a) and supra note 1, Art. 8.9(5)(a).

⁴³ Supra note 2, Art. 2014.

⁴⁴ Supra note 1, Art. 8.7(2).

⁴⁵ Supra note 2, Art 2012(i)(b) and supra note 1 Art. 8.9(5)(d).

⁴⁶ Consequently, under CIFTA and NAFTA Chapter 20, a party can compel a losing party’s trade practice to conform to an adverse panel decision only by suspending benefits accorded the losing party that are available as counter-measures by the agreements. Panel decisions requiring concessions from a losing party, therefore, have little prospect of being adhered to if these benefits are of less value than the concessions required.

⁴⁷ Johnson, J. R., The North American Free Trade Agreement: A Comprehensive Guide 4 (Aurora: Canada Law Book, 1994).Google Scholar

⁴⁸ Ibid.

⁴⁹ The requirement that the panel provide an initial report does not exist in the Israel-U.S. FTA. This is a significant difference. In all three agreements, panel reports are final and not subject to appeal. However, while under both the CIFTA and the NAFTA Chapter ao mechanism, parties may submit written comments to the panel on the conclusions of the initial report, and by doing so allow the panel to reconsider its initial report and make further examination when needed, under the Israel-U.S. FTA such a possibility does not exist. The one report released by a panel formed under the Israel-U.S. FTA is final and may not be re-examined even when re-examination is manifestly necessary.

⁵⁰ Supra note 2, Art. 2016(1)(2).

⁵¹ Ibid., Art. 2017.

⁵² Supra note 1, Art. 8.9(7).

⁵³ Supra note 2, Art. 2016(4).

⁵⁴ Supra note 1, Art. 8.9(7).

⁵⁵ Supra note 2, Art. 2018(1).

⁵⁶ Supra note 1, Art. 8.9(9).

⁵⁷ Ibid., Art. 8.2(5).

⁵⁸ Supra note 2, Art, 2018(2) and supra note 1, Art. 8.9(9).

⁵⁹ Azrieli, A., “Improving Arbitration under the U.S.-Israel Free Trade Agreement: A Framework for a Middle-East Free Trade Zone” 67 St. John’s L. Rev. 187 at 232.Google Scholar

⁶⁰ Ibid., 233. In contrast to these two agreements, decisions under the Israel-U.S. FTA are not publicized and therefore cannot form part of such trade jurisprudence. It is unclear what the policy was which led the negotiators of the Israel-U.S. FTA to avoid publication of panel reports.

⁶¹ Supra note I, Art. 8.9(8).

⁶² Supra note 2, Art. 2019(1) and supra note 1, Art. 8.9(10).

⁶³ Supra note 2, Art. 2019(2)(a) and supra note 1, Art. 8.11(a).

⁶⁴ Supra note 2, Art. 2019(2)(b) and supra note 1, Art. 8.11(b).

⁶⁵ Supranote 2,Art. 2019(3) and supra note l.Art. 8.9(12). A system dealing with countermeasures does not exist in the Israel-U.S. FTA. That agreement refers to the issue of countermeasures only in general words by providing in Art. 19:8 that “the affected Party shall be entided to take any appropriate measure.” The Israel-U.S. FTA therefore is less instructive as to the level and kind of benefits that can be suspended. It is unclear who decides what constitutes an appropri-ate measure, and whether “appropriate” means compensatory in nature or any measure necessarily employed to enforce the other party to implement the panel decision.

⁶⁶ Supra note 2, Art. 2019(3) and supra note 1, Art. 8.9(12).

⁶⁷ Supra note 2, Art. 2019(4) and supra note 1, Art. 8.9(13).