I

104TH CONGRESS

1ST SESSION H. R. 1434

To establish a commission to review the dispute settlement reports of the

World Trade Organization, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 6, 1995

Mr. HOUGHTON (for himself and Mr. LEVIN) introduced the following bill;

which was referred to the Committee on Ways and Means, and in addition to the Committee on Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

A BILL

To establish a commission to review the dispute settlement

reports of the World Trade Organization, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘WTO Dispute Settle5 ment Review Commission Act’’.

6 SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSE.

7 (a) FINDINGS.—The Congress finds the following:
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1 (1) The United States joined the World Trade

2 Organization as a founding member with the goal of

3 creating an improved global trading system.

4 (2) The American people must receive assur5 ances that United States sovereignty will be pro6 tected, and United States interests will be advanced,

7 within the global trading system which the WTO will

8 oversee.

9 (3) The survival of the new WTO requires the

10 continuation of both trade liberalization and the

11 ability to respond effectively to unfair or otherwise

12 harmful trade practices.

13 (4) United States support for the WTO de14 pends upon obtaining mutual trade benefits through

15 the openness of foreign markets and the mainte16 nance of effective United States and WTO remedies

17 against unfair or otherwise harmful trade practices.

18 (5) Congress passed the Uruguay Round Agree19 ments Act based upon its understanding that effec20 tive trade remedies would not be eroded. These rem21 edies are essential to continue the process of opening

22 foreign markets to imports of goods and services and

23 to prevent harm to American industry and agri24 culture, particularly through foreign dumping and

25 subsidization.
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1 (6) The continued support of the Congress for

2 the WTO is dependent upon a WTO dispute settle3 ment system that—

4 (A) operates in a fair and impartial man5 ner;

6 (B) does not add to the obligations of or

7 diminish the rights of the United States under

8 the Uruguay Round Agreements; and

9 (C) does not exceed its authority, scope, or

10 established standard of review.

11 (b) PURPOSE.—It is the purpose of this Act to pro12 vide for the establishment of the WTO Dispute Settlement

13 Review Commission to achieve the goals described in sub14 section (a)(6).

15 SEC. 3. ESTABLISHMENT OF COMMISSION.

16 (a) ESTABLISHMENT.—There is established a com17 mission to be known as the WTO Dispute Settlement Re18 view Commission (hereafter in this Act referred to as the

19 ‘‘Commission’’).

20 (b) MEMBERSHIP.—

21 (1) COMPOSITION.—The Commission shall be

22 composed of 5 members all of whom shall be judges

23 of the Federal judicial circuits and shall be ap24 pointed by the President, after consultation with the

25 Majority Leader and Minority Leader of the House
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1 of Representatives, the Majority Leader and Minor2 ity Leader of the Senate, the chairman and ranking

3 member of the Committee on Ways and Means of

4 the House of Representatives, and the chairman and

5 ranking member of the Committee on Finance of the

6 Senate.

7 (2) DATE.—The appointments of the members

8 of the Commission shall be made no later than 60

9 days after the date of the enactment of this Act.

10 (c) PERIOD OF APPOINTMENT; VACANCIES.—

11 (1) IN GENERAL.—Members of the Commission

12 first appointed shall each be appointed for a term of

13 5 years. After the initial 5-year term, 3 members of

14 the Commission shall be appointed for terms of 3

15 years and the remaining 2 members shall be ap16 pointed for terms of 2 years.

17 (2) VACANCIES.—

18 (A) IN GENERAL.—Any vacancy on the

19 Commission shall not affect its powers, but

20 shall be filled in the same manner as the origi21 nal appointment and shall be subject to the

22 same conditions as the original appointment.

23 (B) UNEXPIRED TERM.—An individual

24 chosen to fill a vacancy shall be appointed for

25 the unexpired term of the member replaced.
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1 (d) INITIAL MEETING.—No later than 30 days after

2 the date on which all members of the Commission have

3 been appointed, the Commission shall hold its first meet4 ing.

5 (e) MEETINGS.—The Commission shall meet at the

6 call of the Chairman.

7 (f) QUORUM.—A majority of the members of the

8 Commission shall constitute a quorum, but a lesser num9 ber of members may hold hearings.

10 (g) CHAIRMAN AND VICE CHAIRMAN.—The Commis11 sion shall select a Chairman and Vice Chairman from

12 among its members.

13 SEC. 4. DUTIES OF THE COMMISSION.

14 (a) REVIEW OF WTO DISPUTE SETTLEMENT RE15 PORTS.—

16 (1) IN GENERAL.—The Commission shall re17 view—

18 (A) all reports of dispute settlement panels

19 or the Appellate Body of the World Trade Or20 ganization in proceedings initiated by other par21 ties to the WTO which are adverse to the

22 United States and which are adopted by the

23 Dispute Settlement Body, and

24 (B) upon request of the United States

25 Trade Representative, any other report of a dis-
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1 pute settlement panel or the Appellate Body

2 which is adopted by the Dispute Settlement

3 Body.

4 (2) SCOPE OF REVIEW.—In the case of any re5 port described in paragraph (1), the Commission

6 shall review the report and determine whether—

7 (A) the panel or the Appellate Body, as the

8 case may be, exceeded its authority or its terms

9 of reference;

10 (B) the panel or the Appellate Body, as

11 the case may be, added to the obligations of or

12 diminished the rights of the United States

13 under the Uruguay Round Agreement which is

14 the subject of the report;

15 (C) the panel or the Appellate Body, as the

16 case may be, acted arbitrarily or capriciously,

17 engaged in misconduct, or demonstrably de18 parted from the procedures specified for panels

19 and the Appellate Body in the applicable Uru20 guay Round Agreement; and

21 (D) the report of the panel or the Appel22 late Body, as the case may be, deviated from

23 the applicable standard of review, including in

24 antidumping, countervailing duty, and other un25 fair trade remedy cases, including the standard
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1 of review set forth in Article 17.6 of the Agree2 ment on Implementation of Article VI of the

3 General Agreement on Tariffs and Trade 1994.

4 (3) AFFIRMATIVE DETERMINATION.—If the

5 Commission makes an affirmative determination

6 with respect to the action of a panel or the Appellate

7 Body under subparagraph (A), (B), (C), or (D) of

8 paragraph (2), the Commission shall determine

9 whether the action of the panel or Appellate Body

10 materially affected the outcome of the report of the

11 panel or Appellate Body.

12 (b) DETERMINATION; REPORT.—

13 (1) DETERMINATION.—No later than 120 days

14 after the date on which a report of a panel or the

15 Appellate Body described in subsection (a)(1) is

16 adopted by the Dispute Settlement Body, the Com17 mission shall make a written determination with re18 spect to matters described in subsections (a)(2) and

19 (a)(3).

20 (2) REPORTS.—The Commission shall report

21 the determinations described in paragraph (1) to the

22 Committee on Ways and Means of the House of

23 Representatives and the Committee on Finance of

24 the Senate.
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1 SEC. 5. POWERS OF THE COMMISSION.

2 (a) HEARINGS.—The Commission may hold such

3 hearings, sit and act at such times and places, take such

4 testimony, and receive such evidence as the Commission

5 considers advisable to carry out the purposes of this Act.

6 (b) INFORMATION FROM INTERESTED PARTIES AND

7 FEDERAL AGENCIES.—

8 (1) NOTICE OF PANEL OR APPELLATE BODY

9 REPORT.—The United States Trade Representative

10 shall advise the Commission no later than 5 days

11 after the date the Dispute Settlement Body adopts

12 the report of a panel or the Appellate Body that is

13 adverse to the United States and shall immediately

14 publish notice of such advice in the Federal Reg15 ister, along with notice of an opportunity for inter16 ested parties to submit comments to the Commis17 sion.

18 (2) SUBMISSIONS AND REQUESTS FOR INFOR19 MATION.—Any interested party may submit com20 ments to the Commission regarding the panel or Ap21 pellate Body report. The Commission may also se22 cure directly from any Federal department or agency

23 such information as the Commission considers nec24 essary to carry out the provisions of this Act. Upon

25 request of the Chairman of the Commission, the
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1 head of such department or agency shall furnish

2 such information to the Commission.

3 (3) ACCESS TO PANEL AND APPELLATE BODY

4 DOCUMENTS.—The United States Trade Representa5 tive shall make available to the Commission all sub6 missions and relevant documents relating to the

7 panel or Appellate Body report, including any infor8 mation contained in such submissions identified by

9 the provider of the information as proprietary infor10 mation or information treated as confidential by a

11 foreign government.

12 SEC. 6. REVIEW OF DISPUTE SETTLEMENT PROCEDURES

13 AND PARTICIPATION IN THE WTO.

14 (a) AFFIRMATIVE REPORT BY COMMISSION.—

15 (1) IN GENERAL.—If a joint resolution de16 scribed in subsection (b)(1) is enacted into law pur17 suant to the provisions of subsection (c), the United

18 States Trade Representative shall undertake nego19 tiations to amend or modify the rules and proce20 dures of the Dispute Settlement Understanding to

21 which such joint resolution relates.

22 (2) 3 AFFIRMATIVE REPORTS BY COMMIS23 SION.—If a joint resolution described in subsection

24 (b)(2) is enacted into law pursuant to the provisions

25 of subsection (c), the approval of the Congress, pro-
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1 vided under section 101(a) of the Uruguay Round

2 Agreements Act, of the WTO Agreement shall cease

3 to be effective in accordance with the provisions of

4 the joint resolution and the United States shall

5 cease to be a member of the WTO.

6 (b) JOINT RESOLUTIONS DESCRIBED.—

7 (1) IN GENERAL.—For purposes of subsection

8 (a)(1), a joint resolution is described in this para9 graph if it is a joint resolution of the 2 Houses of

10 Congress and the matter after the resolving clause

11 of such joint resolution is as follows: ‘‘That the Con12 gress authorizes and directs the United States Trade

13 Representative to undertake negotiations to amend

14 or modify the rules and procedures of the Under15 standing on Rules and Procedures Governing the

16 Settlement of Disputes relating to ll with respect

17 to the affirmative determination submitted to the

18 Congress by the WTO Dispute Settlement Review

19 Commission on ll’’, the first blank space being

20 filled with the specific rules and procedures with re21 spect to which the Trade Representative is to under22 take negotiations and the second blank space being

23 filled with the date of the affirmative determination

24 submitted to the Congress by the Commission pursu-
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1 ant to section 4(b) which has given rise to the joint

2 resolution.

3 (2) WITHDRAWAL RESOLUTION.—For purposes

4 of subsection (a)(2), a joint resolution is described

5 in this paragraph if it is a joint resolution of the 2

6 Houses of Congress and the matter after the resolv7 ing clause of such joint resolution is as follows:

8 ‘‘That the Congress authorizes and directs the Unit9 ed States Trade Representative to undertake nego10 tiations to amend or modify the rules and proce11 dures of the Understanding on Rules and Proce12 dures Governing the Settlement of Disputes relating

13 to ll with respect to the affirmative report sub14 mitted to the Congress by the WTO Dispute Settle15 ment Review Commission on ll and if such nego16 tiations do not result in a solution that the Trade

17 Representative, by ll, certifies to the Congress is

18 satisfactory, the Congress withdraws its approval,

19 provided under section 101(a) of the Uruguay

20 Round Agreements Act, of the WTO Agreement as

21 defined in section 2(9) of that Act’’, the first blank

22 space being filled with the specific rules and proce23 dures with respect to which the Trade Representa24 tive is to undertake negotiations, the second blank

25 space being filled with the date of the affirmative de-
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1 termination submitted to the Congress by the Com2 mission pursuant to section 4(b) which has given

3 rise to the joint resolution, and the third blank space

4 being filled with the date the Congress withdraws its

5 approval of the WTO Agreement.

6 (c) PROCEDURAL PROVISIONS.—

7 (1) IN GENERAL.—The requirements of this

8 subsection are met if the joint resolution is enacted

9 in accordance with this subsection, and—

10 (A) in the case of a joint resolution de11 scribed in subsection (b)(1), the Congress

12 adopts and transmits the joint resolution to the

13 President before the end of the 90-day period

14 (excluding any day described in section 154(b)

15 of the Trade Act of 1974) beginning on the

16 date on which the Congress receives an affirma17 tive determination from the Commission de18 scribed in section 4(b), or

19 (B) in the case of a joint resolution de20 scribed in subsection (b)(2), the Commission

21 has made 3 affirmative determinations de22 scribed in section 4(b) during a 5-year period,

23 and the Congress adopts and transmits the

24 joint resolution to the President before the end

25 of the 90-day period (excluding any day de-
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1 scribed in section 154(b) of the Trade Act of

2 1974) beginning on the date on which the Con3 gress receives the third such affirmative deter4 mination.

5 (2) PRESIDENTIAL VETO.—In any case in

6 which the President vetoes the joint resolution, the

7 requirements of this subsection are met if each

8 House of Congress votes to override that veto on or

9 before the later of the last day of the 90-day period

10 referred to in subparagraph (A) or (B) of paragraph

11 (1), whichever is applicable, or the last day of the

12 15-day period (excluding any day described in sec13 tion 154(b) of the Trade Act of 1974) beginning on

14 the date on which the Congress receives the veto

15 message from the President.

16 (3) INTRODUCTION.—

17 (A) TIME.—A joint resolution to which

18 this section applies may be introduced at any

19 time on or after the date on which the Commis20 sion transmits to the Congress an affirmative

21 determination described in section 4(b), and be22 fore the end of the 90-day period referred to in

23 subparagraph (A) or (B) of paragraph (1), as

24 the case may be.
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1 (B) ANY MEMBER MAY INTRODUCE.—A

2 joint resolution described in subsection (b) may

3 be introduced in either House of the Congress

4 by any Member of such House.

5 (4) EXPEDITED PROCEDURES.—

6 (A) GENERAL RULE.—Subject to the pro7 visions of this subsection, the provisions of sub8 sections (b), (d), (e), and (f) of section 152 of

9 the Trade Act of 1974 (19 U.S.C. 2192(b), (d),

10 (e), and (f)) apply to joint resolutions described

11 in subsection (b) to the same extent as such

12 provisions apply to resolutions under such sec13 tion.

14 (B) REPORT OR DISCHARGE OF COMMIT15 TEE.—If the committee of either House to

16 which a joint resolution has been referred has

17 not reported it by the close of the 45th day

18 after its introduction (excluding any day de19 scribed in section 154(b) of the Trade Act of

20 1974), such committee shall be automatically

21 discharged from further consideration of the

22 joint resolution and it shall be placed on the ap23 propriate calendar.

24 (C) FINANCE AND WAYS AND MEANS COM25 MITTEES.—It is not in order for—
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1 (i) the Senate to consider any joint

2 resolution unless it has been reported by

3 the Committee on Finance or the commit4 tee has been discharged under subpara5 graph (B); or

6 (ii) the House of Representatives to

7 consider any joint resolution unless it has

8 been reported by the Committee on Ways

9 and Means or the committee has been dis10 charged under subparagraph (B).

11 (D) SPECIAL RULE FOR HOUSE.—A mo12 tion in the House of Representatives to proceed

13 to the consideration of a joint resolution may

14 only be made on the second legislative day after

15 the calendar day on which the Member making

16 the motion announces to the House his or her

17 intention to do so.

18 (5) CONSIDERATION OF SECOND RESOLUTION

19 NOT IN ORDER.—It shall not be in order in either

20 the House of Representatives or the Senate to con21 sider a joint resolution (other than a joint resolution

22 received from the other House), if that House has

23 previously adopted a joint resolution under this sec24 tion relating to the same matter.
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1 (d) RULES OF HOUSE OF REPRESENTATIVES AND

2 SENATE.—This section is enacted by the Congress—

3 (1) as an exercise of the rulemaking power of

4 the House of Representatives and the Senate, re5 spectively, and as such is deemed a part of the rules

6 of each House, respectively, and such procedures su7 persede other rules only to the extent that they are

8 inconsistent with such other rules; and

9 (2) with the full recognition of the constitu10 tional right of either House to change the rules (so

11 far as relating to the procedures of that House) at

12 any time, in the same manner, and to the same ex13 tent as any other rule of that House.

14 SEC. 7. PARTICIPATION IN WTO PANEL PROCEEDINGS.

15 (a) IN GENERAL.—If the United States Trade Rep16 resentative, in proceedings before a dispute settlement

17 panel or the Appellate Body of the WTO, seeks—

18 (1) to enforce United States rights under a

19 multilateral trade agreement, or

20 (2) to defend a challenged action or determina21 tion of the United States Government,

22 a private United States person that is supportive of the

23 United States Government’s position before the panel or

24 Appellate Body and that has a direct economic interest

25 in the panel’s or Appellate Body’s resolution of the mat-
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1 ters in dispute shall be permitted to participate in con2 sultations and panel proceedings. The Trade Representa3 tive shall issue regulations, consistent with subsections (b)

4 and (c), ensuring full and effective participation by any

5 such private person.

6 (b) ACCESS TO INFORMATION.—The United States

7 Trade Representative shall make available to persons de8 scribed in subsection (a) all information presented to or

9 otherwise obtained by the Trade Representative in connec10 tion with a WTO dispute settlement proceeding. The

11 United States Trade Representative shall promulgate reg12 ulations implementing a protective order system to protect

13 information designated by the submitting member as con14 fidential.

15 (c) PARTICIPATION IN PANEL PROCESS.—Upon re16 quest from a person described in subsection (a), the

17 United States Trade Representative shall—

18 (1) consult in advance with such person regard19 ing the content of written submissions from the

20 United States to the WTO panel concerned or to the

21 other member countries involved;

22 (2) include, where appropriate, such person or

23 its appropriate representative as an advisory mem24 ber of the delegation in sessions of the dispute set25 tlement panel;
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1 (3) allow such special delegation member, where

2 such member would bring special knowledge to the

3 proceeding, to appear before the panel, directly or

4 through counsel, under the supervision of responsible

5 United States Government officials; and

6 (4) in proceedings involving confidential infor7 mation, allow appearance of such person only

8 through counsel as a member of the special delega9 tion.

10 SEC. 8. DEFINITIONS.

11 For purposes of this Act:

12 (1) APPELLATE BODY.—The term ‘‘Appellate

13 Body’’ means the Appellate Body established under

14 Article 17.1 of the Dispute Settlement Understand15 ing.

16 (2) ADVERSE TO THE UNITED STATES.—The

17 term ‘‘adverse to the United States’’ includes any re18 port which holds any law, regulation, or application

19 thereof by a government agency to be inconsistent

20 with international obligations under a Uruguay

21 Round Agreement (or a nullification or impairment

22 thereof), whether or not there are other elements of

23 the decision which favor arguments made by the

24 United States.
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1 (3) DISPUTE SETTLEMENT PANEL; PANEL.—

2 The terms ‘‘dispute settlement panel’’ and ‘‘panel’’

3 mean a panel established pursuant to Article 6 of

4 the Dispute Settlement Understanding.

5 (4) DISPUTE SETTLEMENT BODY.—The term

6 ‘‘Dispute Settlement Body’’ means the Dispute Set7 tlement Body administering the rules and proce8 dures set forth in the Dispute Settlement Under9 standing.

10 (5) DISPUTE SETTLEMENT UNDERSTANDING.—

11 The term ‘‘Dispute Settlement Understanding’’

12 means the Understanding on Rules and Procedures

13 Governing the Settlement of Disputes referred to in

14 section 101(d)(16) of the Uruguay Round Agree15 ments Act.

16 (6) URUGUAY ROUND AGREEMENT.—The term

17 ‘‘Uruguay Round Agreement’’ means any of the

18 agreements described in section 101(d) of the Uru19 guay Round Agreements Act.

20 (7) WORLD TRADE ORGANIZATION; WTO.—The

21 terms ‘‘World Trade Organization’’ and ‘‘WTO’’

22 mean the organization established pursuant to the

23 WTO Agreement.

24 (8) WTO AGREEMENT.—The term ‘‘WTO

25 Agreement’’ means the Agreement Establishing the
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1 World Trade Organization entered into on April 15,

2 1994.

Æ

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