Private Rights of Action under Free Trade Agreement Implementation Acts Open Access
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This thesis examines the availability of private rights of action in the U.S. courts under U.S. Free Trade Agreement Implementation Acts (FTA IAs), including the legislation implementing the WTO Agreement. The central question is: Do private parties have the right to specifically enforce FTA IAs against the United States, even though private parties generally do not have the right to enforce the United States' international trade obligations? That is, do private parties have the right to indirectly force the United States to comply with its international trade obligations by suing to enforce the domestic laws enacted to implement those international obligations? If so, what is the scope of that right? This thesis concludes: (1) private rights of action exist under all of the FTA IAs currently in effect; (2) FTA IA causes of action allow private parties to indirectly enforce only certain provisions of each free trade agreement, not the entire agreement; and (3) if successfully prosecuted, FTA IA causes of action allow private parties to invoke the remedial power of U.S. courts to indirectly enjoin the United States from violating its international obligations. In practical terms, this means that domestic importers, foreign manufacturers, and even domestic employers seeking free trade agreement visas, in certain instances, need not rely on their respective government to initiate international dispute resolution proceedings or invoke investor-state arbitration remedies. Instead, private parties injured by the United States' conduct may seek relief directly in the U.S. courts.