美國憲法상 北美自由貿易協定(FTA) 紛爭解決節次의 違憲性에 관한 약간의 考察

In order for the liberalization and increase of international trade, the free t rade agreement is generally deemed a most useful instrumentality within the region. Under the WTO regime, we can see that a plethora of FTA arrange ments are negotiated, come into the treaty laws, as well as operate to regul ate the binational or tri-national trade disputes on the regional basis. As mo st typical and frequented in FTAs, they usually include an arbitration and bi national panel procedure as a dispute settlement mechanics. In many aspects, the procedures prescribed in most of FTAs could be apposite that most effe ctively and cheaply handle the disputes arising from the specific binational o r trinational treaties. On the other hand, they could offer a chance to avoid t he constitutional musters merely because diplomacy, international negotiation, ratification of treaties and approval of them traditionally fall within the powe rs of Congress or Executive under the separation of powers principle. This paper examined the legal issues as focused upon the NAFTA ch. 19, ch. 11 and US constitution. The chapters instituted the binational panel proce dure dealing with the anti-dumping or counter measures as of subsidies, as well as legal dispute from the binational investment arrangements. From the consitutional viewpoint, we can be aware that the chapters could expressly contravene the Article III of original jurisdiction, Eleventh amendment of stat e sovereignty, and limitations of the treaty making powers inherent in the s eparation of powers principle. Given the overriding feature of such treaty cla uses, the treaty should be ratified through the form of constitutional amend ment, which requires a more stern step over most of the civilized constitutio nal states. The constitution is a supreme law in land, and represents a popul ar sovereignty as sheerly distinguished from the constitutional function of no rmal branches. When the special mechanics of dispute settlement may adopt an option of forum for escape, it is viewed that its unconstitutionality could yet be cured because the consitutional language of Article III original jurisdi ction is considered mandatory or exclusive. I believe that the constitutional amendment procedure only could properly dispose such arrangements. While some areas of the presidential powers are deemed not subject to constitution al review as resorted upon the doctrine of political question or judicial selfrestraint, the current jurisprudence gradually finds some limitations on the pr esidential power of foreign affairs including the treaty or war making provisi ons. As for a would-be treaty party of FTA, the constitutional issues raised in US is not entirely irrelevant to the Korean case ahead.