For example, after President Obama formally blocked the controversial, long-delayed Keystone XL pipeline project last year, TransCanada, the company behind it, filed a NAFTA complaint seeking $15 billion in damages due to lost revenue. The complaint was withdrawn this year, and the pipeline project has gone ahead under President Trump.

Had the case gone forward, it is possible, though not certain, that TransCanada could have won, experts say. A key complaint of the tribunals is that because they are ad hoc, they are not bound by precedent like traditional courts.

“I think on the whole the tribunal system works well, but there is the question of consistency,” Gantz said.

A standing court system like Canada’s would address this, but it’s not something either side in the U.S. wants. Business groups prefer the status quo, while liberal groups say that just ensures the system remains outside of domestic courts.

Given the uncertainty of creating an alternate model, it’s likely that the status quo will prevail. “I’ve been writing and studying this for 30 years, and I still haven’t figure[d] it out,” Gantz said.

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