Mr. KASTENMEIER. Thank you, Professor Bruff. We will defer questions until we hear from the panel. I was pleased that you did add that additional comment that you probably had not previously prepared to speak on. Next I would like to call on Mr. Joseph P. Griffin, who is Chairman of the Section of International Law and Practice of the American Bar Association. We are delighted to have you here, sir. We have, of course, your 33-page statement, including appendices, and you may proceed as you wish. We will make that a part of the record. Mr. GRIFFIN. Thank you, Mr. Chairman. I will summarize the statement briefly. First of all, Mr. Chairman, a word about our Section. I am Chairman of a Section of the ABA that has over 12,000 members nationwide. We have been studying this issue in one form or another since 1974, when we became aware of a number of pending disputes between the United States and Canada. We first appointed what we called a working group, consisting in part of people in our Section and in part people from the brother section in the Canadian Bar Association. Since 1974, there have been a number of recommendations put forward by both bar associations to both Governments. I have detailed some of those in my statement. I will not recite them to you now, there are a number of recommendations dealing with transborder pollution, acid rain, boundary disputes and many other interesting things. The point is, we have been at this for a long time. The ABA itself has taken a number of formal positions on different recommendations emanating from our Section on these issues. The details of those 1979 and 1987 decisions by the policy-making part of the ABA are in my statement. We turned to the Free Trade Agreement at the time it was being negotiated and asked our group, without the Canadians-because we thought it was important not to have the Canadians on board for this particular exercise-to study the Free Trade Agreement, its provisions, and what we might say to address the type of questions that you have been propounding today and earlier. In fact, we had our spring meeting just last weekend. At that meeting the Section adopted a recommendation to Congress specifically addressed to the topic before you today. I will read that recommendation and then briefly summarize the reasons for it. To start with the big picture, we certainly think that the Free Trade Agreement is an excellent idea and implementing legislation should be enacted promptly. We see no problem at all with the constitutionality of the binational dispute settlement mechanism in chapter 19. We also think that the necessary implementing legislation can put to rest any constitutional questions about the binational panels and that such litigation should be enacted promptly. Implementing legislation or binational procedural rules should address several procedural issues left open by the Free Trade Agreement, including the method of selecting the panelists, the code of conduct for panelists, procedures in cases involving imports from both Canada and other countries. That is our formal recommendation. What you have before you, Mr. Chairman, attached to my statement, is a detailed report from our expert task force that studied these issues, and that's why I would ask that it be included in the record with my remarks. The principal authors of that task force report are here with me today, Mr. Jeffery Bialos, and Mr. Stewart Baker sitting just behind me. I will briefly summarize the relevant provisions of that task force report. The report addresses the constitutional issues you heard considerable testimony about this morning. The Section shares the views of the distinguished scholars that you have heard, that the FTA binational panel is consistent with the Constitution and should be approved. The Free Trade Agreement is based on the pooled authority of Congress over foreign commerce and the President over foreign affairs and, as such, stands on strong constitutional grounds. Any constitutional concerns over the mechanism can and should be addressed in the implementing legislation. We recommend that Congress make clear the intent to preserve judicial review over constitutional claims that may arise in—if I can use the phrase "trade cases", rather than AD/CVD or other acronyms. The Free Trade Agreement is perhaps ambiguous on this issue of whether jurisdiction still exists and an express provision on jurisdiction over such claims would ensure that any Article III concerns over the removal of constitutional review are addressed in the implementing legislation. Second, we recommend that Congress in implementing legislation confirm that the binational panel is based on international law, not only on the law of the United States. This will alleviate any concern raised under the Buckley case, that the binational panel's decisions would not be binding under U.S. law because all of the members are not appointed by the President. Recent rulings indicate that Buckley does not apply where, as here, the appointed officials performed their duties pursuant to authority other than Federal law. From a constitutional standpoint, the issue which you have identified is whether the due process clause of the Fifth Amendment requires judicial review of final determinations in trade cases. In the view of the Section, it does not, except with respect to constitutional claims. From the standpoint of procedural due process, the crucial issue is not whether the forum is an Article III court, but whether the parties have had a fair opportunity to be heard before an impartial tribunal. In trade proceedings, the parties are afforded due process administrative proceedings before the ITC and the Commerce Department, with a variety of safeguards. In such circumstances, the due process question is whether binational review panels afford aggrieved parties a fair opportunity to be heard, is an impartial mechanism, and has the authority to act to curb administrative errors, which the Federal courts have effectively done over the years in the international trade area. In the Section's view, the Free Trade Agreement establishes basic procedures that Congress can and should build upon in order to ensure a fair, unbiased, and effective review of final trade determinations. In short, given the ample opportunities litigants in trade cases have to present their views before Federal agencies, and binational panels, and the various safeguards that exist, it would be hard to conclude that the review process does not afford process that is "due" under the Constitution. If I may, Mr. Chairman, I will not read the rest of my summary. It contains a number of recommendations, one of which I would like to refer you to because it has been mentioned by several of the speakers this morning. It appears at page 7 of the summary. This is the issue of appointing judges to these panels. One thing that has not been mentioned this morning is the issue of the Code of Judicial Conduct for United States Judges, which, in Canon 5(E), expressly prohibits Federal judges from acting as arbitrators or mediators. We set forth in our summary the reasons given in the Code for that. Now, understand that that is not to say that they cannot, particularly at the will of Congress, be made eligible. It is simply to point out that there is an issue here that we would suggest needs to be closely studied—that is, the interplay of any implementing legislation with the already existing standard of judicial conduct contained in that Code. Mr. Chairman, those are my remarks. The Section stands ready to be of whatever assistance you and your colleagues might deem necessary in helping with any technical issues. Thank you very much. [The statement of Joseph P. Griffin, with attachment, follows:] ABA AMERICAN BAR ASSOCIATION GOVERNMENTAL AFFAIRS OFFICE. 1800 M STREET, N.W. WASHINGTON, DC 20036 (202) 331-2200 Statement of Joseph P. Griffin, Chairman Section of International Law and Practice Before The Subcommittee on Courts, Civil Liberties and The Concerning The Dispute Resolution Mechanisms Under the April 28, 1988 Chairman Kastenmeier and Subcommittee Members: My name is Joseph P. Griffin and I have the privilege of serving as chair of the ABA's Section of International Law and Practice. I am involved in a variety of international law issues in my private law practice here in Washington. I also serve as a member of the Association's Advisory Committee on Relations with Foreign and International Legal Organizations. I appreciate this opportunity to discuss our views of the dispute settlement procedures under the U.S. Canada Free Trade Agreement (FTA). Since before the ABA's policy-making House of Delegates first considered and approved a recommendation of my Section in August 1979 on dispute resolution with Canada, we have participated extensively in the work of the joint American Bar Association/Canadian Bar Association Working Group on the Settlement of International Disputes. This ongoing effort began in October 1974, when the ABA Section of International Law determined to undertake a research project with the Canadian Bar Association on dispute settlement between the U.S. and Canada. This project prompted the creation of the ABA/CBA Joint Working Group on the Settlement of International Disputes. The Working Group studied the full range of disputes and surveyed experts in both countries with the goal of identifying particular categories of disputes warranting additional study. 1. As adopted by the House of Delegates by voice vote on August 14-15, 1979 (Report No. 104A), the Recommendation reads: BE IT RESOLVED, That the American Bar Association commends to the attention of the competent officials of the Government of the United States, as possible bases for negotiation with the government of Canada: (a) the draft treaty on a regime of equal access and remedy in cases of transfrontier pollution between the United States and Canada and (b) the draft treaty on a third party settlement of disputes relating primarily to the interpretation, application or operation of any treaty in force between the United States and Canada, both of which are contained in the Report of March 20, 1979 of the American and Canadian Bar Associations Joint Working Group on the |