II

104TH CONGRESS

1ST SESSION S. 16

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

World Trade Organization, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 4, 1995

Mr. DOLE introduced the following bill; which was read twice and referred to

the Committee on Finance

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:

8 (1) The United States joined the World Trade

9 Organization as a founding member with the goal of

10 creating an improved global trading system.
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1 (2) The American people must receive assur2 ances that United States sovereignty will be pro3 tected, and United States interests will be advanced,

4 within the global trading system which the WTO will

5 oversee.

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

7 continuation of both trade liberalization and the

8 ability to respond effectively to unfair or otherwise

9 harmful trade practices.

10 (4) United States support for the WTO de11 pends upon obtaining mutual trade benefits through

12 the openness of foreign markets and the mainte13 nance of effective United States and WTO remedies

14 against unfair or otherwise harmful trade practices.

15 (5) Congress passed the Uruguay Round Agree16 ments Act based upon its understanding that effec17 tive trade remedies would not be eroded. These rem18 edies are essential to continue the process of opening

19 foreign markets to imports of goods and services and

20 to prevent harm to American industry and agri21 culture particularly through foreign dumping and

22 subsidization.

23 (6) The continued support of the Congress for

24 the WTO is dependent upon a WTO dispute settle25 ment system that—
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1 (A) operates in a fair and impartial man2 ner;

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

4 diminish the rights of the United States under

5 the Uruguay Round agreements; and

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

7 established standard of review.

8 (b) PURPOSE.—It is the purpose of this Act to pro9 vide for the establishment of the WTO Dispute Settlement

10 Review Commission to achieve the goals described in sub11 section (a)(6).

12 SEC. 3. ESTABLISHMENT OF COMMISSION.

13 (a) ESTABLISHMENT.—There is established a com14 mission to be known as the WTO Dispute Settlement Re15 view Commission (hereafter in this Act referred to as the

16 ‘‘Commission’’).

17 (b) MEMBERSHIP.—

18 (1) COMPOSITION.—The Commission shall be

19 composed of 5 members all of whom shall be judges

20 of the Federal judicial circuits and shall be ap21 pointed by the President, after consultation with the

22 Majority Leader and Minority Leader of the House

23 of Representatives, the Majority Leader and Minor24 ity Leader of the Senate, the chairman and ranking

25 member of the Committee on Ways and Means of
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1 the House of Representatives, and the chairman and

2 ranking member of the Committee on Finance of the

3 Senate.

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

5 of the Commission shall be made no later than 60

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

7 (c) PERIOD OF APPOINTMENT; VACANCIES.—

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

9 first appointed shall each be appointed for a term of

10 5 years. After the initial 5-year term, 3 members of

11 the Commission shall be appointed for terms of 3

12 years and the remaining 2 members shall be ap13 pointed for terms of 2 years.

14 (2) VACANCIES.—

15 (A) IN GENERAL.—Any vacancy on the

16 Commission shall not affect its powers, but

17 shall be filled in the same manner as the origi18 nal appointment and shall be subject to the

19 same conditions as the original appointment.

20 (B) UNEXPIRED TERM.—An individual

21 chosen to fill a vacancy shall be appointed for

22 the unexpired term of the member replaced.

23 (d) INITIAL MEETING.—No later than 30 days after

24 the date on which all members of the Commission have
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1 been appointed, the Commission shall hold its first meet2 ing.

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

4 call of the Chairman.

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

6 Commission shall constitute a quorum, but a lesser num7 ber of members may hold hearings.

8 (g) CHAIRMAN AND VICE CHAIRMAN.—The Commis9 sion shall select a Chairman and Vice Chairman from

10 among its members.

11 SEC. 4. DUTIES OF THE COMMISSION.

12 (a) REVIEW OF WTO DISPUTE SETTLEMENT RE13 PORTS.—

14 (1) IN GENERAL.—The Commission shall re15 view—

16 (A) all reports of dispute settlement panels

17 or the Appellate Body of the World Trade Or18 ganization in proceedings initiated by other par19 ties to the WTO which are adverse to the

20 United States and which are adopted by the

21 Dispute Settlement Body, and

22 (B) upon request of the United States

23 Trade Representative, any other report of a dis24 pute settlement panel or the Appellate Body
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1 which is adopted by the Dispute Settlement

2 Body.

3 (2) SCOPE OF REVIEW.—In the case of reports

4 described in paragraph (1), the Commission shall re5 view the report and determine whether—

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

7 case may be, exceeded its authority or its terms

8 of reference;

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

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

11 diminished the rights of the United States

12 under the Uruguay Round agreement which is

13 the subject of report;

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

15 case may be, acted arbitrarily or capriciously,

16 engaged in misconduct, or demonstrably de17 parted from the procedures specified for panels

18 and Appellate Bodies in the applicable Uruguay

19 Round Agreement; and

20 (D) the report of the panel or the Appel21 late Body, as the case may be, deviated from

22 the applicable standard of review, including in

23 antidumping, countervailing duty, and other un24 fair trade remedy cases, the standard of review

25 set forth in Article 17.6 of the Agreement on
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1 Implementation of Article VI of the General

2 Agreement on Tariffs and Trade 1994.

3 (3) AFFIRMATIVE DETERMINATION.—If the

4 Commission makes an affirmative determination

5 with respect to the action of a panel or an Appellate

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

7 paragraph (2), the Commission shall determine

8 whether the action of the panel or Appellate Body

9 materially affected the outcome of the report of the

10 panel or Appellate Body.

11 (b) DETERMINATION; REPORT.—

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

13 after the date of a report of a panel or Appellate

14 Body described in subsection (a)(1) is adopted by

15 the Dispute Settlement Body, the Commission shall

16 make a written determination with respect to mat17 ters described in subsections (a)(2) and (a)(3).

18 (2) REPORTS.—The Commission shall report

19 the determinations described in paragraph (1) to the

20 Committee on Ways and Means of the House of

21 Representatives and the Committee on Finance of

22 the Senate.

23 SEC. 5. POWERS OF THE COMMISSION.

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

25 hearings, sit and act at such times and places, take such
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1 testimony, and receive such evidence as the Commission

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

3 (b) INFORMATION FROM INTERESTED PARTIES AND

4 FEDERAL AGENCIES.—

5 (1) NOTICE OF PANEL OR APPELLATE BODY

6 REPORT.—The United States Trade Representative

7 shall advise the Commission no later than 5 days

8 after the date the Dispute Settlement Body adopts

9 the report of a panel or Appellate Body that is ad10 verse to the United States and shall immediately

11 publish notice of such advice in the Federal Reg12 ister, along with notice of an opportunity for inter13 ested parties to submit comments to the Commis14 sion.

15 (2) SUBMISSIONS AND REQUESTS FOR INFOR16 MATION.—Any interested party may submit com17 ments to the Commission regarding the panel or Ap18 pellate Body report. The Commission may also se19 cure directly from any Federal department or agency

20 such information as the Commission considers nec21 essary to carry out the provisions of this Act. Upon

22 request of the Chairman of the Commission, the

23 head of such department or agency shall furnish

24 such information to the Commission.
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1 (3) ACCESS TO PANEL AND APPELLATE BODY

2 DOCUMENTS.—The United States Trade Representa3 tive shall make available to the Commission all sub4 missions and relevant documents relating to the

5 panel or Appellate Body report, including any infor6 mation contained in such submissions identified by

7 the provider of the information as proprietary infor8 mation or information treated as confidential by a

9 foreign government.

10 SEC. 6. REVIEW OF DISPUTE SETTLEMENT PROCEDURES

11 AND PARTICIPATION IN THE WTO.

12 (a) AFFIRMATIVE REPORT BY COMMISSION.—

13 (1) IN GENERAL.—If a joint resolution de14 scribed in subsection (b)(1) is enacted into law pur15 suant to the provisions of subsection (c), the Presi16 dent shall undertake negotiations to amend or mod17 ify the rules and procedures of the Understanding

18 on Rules and Procedures Governing the Settlement

19 of Disputes to which such joint resolution relates.

20 (2) 3 AFFIRMATIVE REPORTS BY COMMIS21 SION.—If a joint resolution described in subsection

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

23 of subsection (c), the approval of the Congress, pro24 vided under section 101(a) of the Uruguay Round

25 Agreements Act, of the WTO Agreement shall cease
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1 to be effective in accordance with the provisions of

2 the joint resolution and the United States shall

3 cease to be a member of the WTO.

4 (b) JOINT RESOLUTIONS DESCRIBED.—

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

6 (a)(1), a joint resolution is described in this para7 graph, if it is a joint resolution of the 2 Houses of

8 Congress and the matter after the resolving clause

9 of such joint resolution is as follows: ‘‘That the Con10 gress authorizes and directs the President to under11 take negotiations to amend or modify the rules and

12 procedures of the Understanding on Rules and Pro13 cedures Governing the Settlement of Disputes relat14 ing to ll with respect to the affirmative deter15 mination submitted to the Congress by the WTO

16 Dispute Settlement Review Commission on ll’’,

17 the first blank space being filled with the specific

18 rules and procedures with respect to which the

19 President is to undertake negotiations and the sec20 ond blank space being filled with the date of the af21 firmative determination submitted to the Congress

22 by the Commission pursuant to section 4(b) which

23 has given rise to the joint resolution.

24 (2) WITHDRAWAL RESOLUTION.—For purposes

25 of subsection (a)(2), a joint resolution is described
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1 in this paragraph, if it is a joint resolution of the

2 2 Houses of Congress and the matter after the re3 solving clause of such joint resolution is as follows:

4 ‘‘That the Congress authorizes and directs the Presi5 dent to undertake negotiations to amend or modify

6 the rules and procedures of the Understanding on

7 Rules and Procedures Governing the Settlement of

8 Disputes relating to ll with respect to the affirm9 ative report submitted to the Congress by the WTO

10 Dispute Settlement Review Commission on ll and

11 if such negotiations do not result in a satisfactory

12 solution by ll, the Congress withdraws its ap13 proval, provided under section 101(a) of the Uru14 guay Round Agreements Act, of the WTO Agree15 ment as defined in section 2(9) of that Act’’, the

16 first blank space being filled with the specific rules

17 and procedures with respect to which the President

18 is to undertake negotiations, the second blank space

19 being filled with the date of the affirmative deter20 mination submitted to the Congress by the Commis21 sion pursuant to section 4(b) which has given rise to

22 the joint resolution, and the third blank space being

23 filled with the date the Congress withdraws its ap24 proval of the WTO Agreement.

25 (c) PROCEDURAL PROVISIONS.—
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1 (1) IN GENERAL.—The requirements of this

2 subsection are met if the joint resolution is enacted

3 in accordance with this subsection, and—

4 (A) in the case of a joint resolution de5 scribed in subsection (b)(1) the Congress

6 adopts and transmits the joint resolution to the

7 President before the end of the 90-day period

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

9 of the Trade Act of 1974), beginning on the

10 date on which the Congress receives an affirma11 tive determination from the Commission de12 scribed in section 4(b), or

13 (B) in the case of a joint resolution de14 scribed in subsection (b)(2), the Commission

15 has made 3 affirmative determinations de16 scribed in section 4(b) during a 5-year period,

17 and the Congress adopts and transmits the

18 joint resolution to the President before the end

19 of the 90-day period (excluding any day de20 scribed in section 154(b) of the Trade Act of

21 1974), beginning on the date on which the Con22 gress receives the third such affirmative deter23 mination.

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

25 which the President vetoes the joint resolution, the
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1 requirements of this subsection are met, if each

2 House of Congress votes to override that veto on or

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

4 referred to in subparagraph (A) or (B), whichever is

5 applicable, or the last day of the 15-day period (ex6 cluding any day described in section 154(b) of the

7 Trade Act of 1974) beginning on the date on which

8 the Congress receives the veto message from the

9 President.

10 (3) INTRODUCTION.—

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

12 this section applies may be introduced at any

13 time on or after the date on which the Commis14 sion transmits to the Congress an affirmative

15 determination described in section 4(b), and be16 fore the end of the 90-day period referred to in

17 subparagraph (A) or (B), as the case may be.

18 (B) ANY MEMBER MAY INTRODUCE.—A

19 joint resolution described in subsection (b) may

20 be introduced in either House of the Congress

21 by any Member of such House.

22 (4) EXPEDITED PROCEDURES.—

23 (A) GENERAL RULE.—Subject to the pro24 visions of this subsection, the provisions of sub25 sections (b), (d), (e), and (f) of section 152 of
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1 the Trade Act of 1974 (19 U.S.C. 2192(b), (d),

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

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

4 provisions apply to resolutions under such sec5 tion.

6 (B) REPORT OR DISCHARGE OF COMMIT7 TEE.—If the committee of either House to

8 which a joint resolution has been referred has

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

10 after its introduction (excluding any day de11 scribed in section 154(b) of the Trade Act of

12 1974), such committee shall be automatically

13 discharged from further consideration of the

14 joint resolution and it shall be placed on the ap15 propriate calendar.

16 (C) FINANCE AND WAYS AND MEANS COM17 MITTEES.—It is not in order for—

18 (i) the Senate to consider any joint

19 resolution unless it has been reported by

20 the Committee on Finance or the commit21 tee has been discharged under subpara22 graph (B); or

23 (ii) the House of Representatives to

24 consider any joint resolution unless it has

25 been reported by the Committee on Ways
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1 and Means or the committee has been dis2 charged under subparagraph (B).

3 (D) SPECIAL RULE FOR HOUSE.—A mo4 tion in the House of Representatives to proceed

5 to the consideration of a joint resolution may

6 only be made on the second legislative day after

7 the calendar day on which the Member making

8 the motion announces to the House his or her

9 intention to do so.

10 (5) CONSIDERATION OF SECOND RESOLUTION

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

12 the House of Representatives or the Senate to con13 sider a joint resolution (other than a joint resolution

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

15 previously adopted a joint resolution under this sec16 tion relating to the same matter.

17 (d) RULES OF HOUSE OF REPRESENTATIVES AND

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

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

20 the House of Representatives and the Senate, re21 spectively, and as such is deemed a part of the rules

22 of each House, respectively, and such procedures su23 persede other rules only to the extent that they are

24 inconsistent with such other rules; and
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1 (2) with the full recognition of the constitu2 tional right of either House to change the rules (so

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

4 any time, in the same manner, and to the same ex5 tent as any other rule of that House.

6 SEC. 7. PARTICIPATION IN WTO PANEL PROCEEDINGS.

7 (a) IN GENERAL.—If the United States Trade Rep8 resentative, in proceedings before a dispute settlement

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

10 (1) to enforce United States rights under a

11 multilateral trade agreement, or

12 (2) to defend a challenged action or determina13 tion of the United States Government,

14 a private United States person that is supportive of the

15 United States Government’s position before the panel or

16 Appellate Body and that has a direct economic interest

17 in the panel’s or Appellate Body’s resolution of the mat18 ters in dispute shall be permitted to participate in con19 sultations and panel proceedings. The Trade Representa20 tive shall issue regulations, consistent with subsections (b)

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

22 such private person.

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

24 Trade Representative shall make available to persons de25 scribed in subsection (a) all information presented to or
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1 otherwise obtained by the Trade Representative in connec2 tion with a WTO dispute settlement proceeding. The

3 United States Trade Representative shall promulgate reg4 ulations implementing a protective order system to protect

5 information designated by the submitting member as con6 fidential.

7 (c) PARTICIPATION IN PANEL PROCESS.—Upon re8 quest from a person described in subsection (a), the

9 United States Trade Representative shall—

10 (1) consult in advance with such person regard11 ing the content of written submissions from the

12 United States to the WTO panel concerned or to the

13 other member countries involved;

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

15 its appropriate representative as an advisory mem16 ber of the delegation in sessions of the dispute set17 tlement panel;

18 (3) allow such special delegation member, where

19 such member would bring special knowledge to the

20 proceeding, to appear before the panel, directly or

21 through counsel, under the supervision of responsible

22 United States Government officials; and

23 (4) in proceedings involving confidential infor24 mation, allow appearance of such person only
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1 through counsel as a member of the special delega2 tion.

3 SEC. 8. DEFINITIONS.

4 For purposes of this Act:

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

6 Body’’ means the Appellate Body established under

7 Article 17.1 of the Dispute Settlement Understand8 ing.

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

10 term ‘‘adverse to the United States’’ includes any re11 port which holds any law, regulation, or application

12 thereof by a government agency to be inconsistent

13 with international obligations under the Uruguay

14 Round Agreement (or a nullification or impairment

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

16 the decision which favor arguments made by the

17 United States.

18 (3) DISPUTE SETTLEMENT PANEL; PANEL.—

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

20 mean a panel established pursuant to Article 6 of

21 the Dispute Settlement Understanding.

22 (4) DISPUTE SETTLEMENT BODY.—The term

23 ‘‘Dispute Settlement Body’’ means the Dispute Set24 tlement Body administering the rules and proce-
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1 dures set forth in the Dispute Settlement Under2 standing.

3 (5) DISPUTE SETTLEMENT UNDERSTANDING.—

4 The term ‘‘Dispute Settlement Understanding’’

5 means the Understanding on Rules and Procedures

6 Governing the Settlement of Disputes referred to in

7 section 101(d)(16) of the Uruguay Round Agree8 ments Act.

9 (6) URUGUAY ROUND AGREEMENT.—The term

10 ‘‘Uruguay Round Agreement’’ means one or more of

11 the agreements described in section 101(d) of the

12 Uruguay Round Agreements Act.

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

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

15 mean the organization established pursuant to the

16 WTO Agreement.

17 (8) WTO AGREEMENT.—The term ‘‘WTO

18 Agreement’’ means the Agreement Establishing the

19 World Trade Organization entered into on April 15,

20 1994.

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