17 place of de novo review. Appeals of determinations not to initiate an investigation, not to review a determination based on changed circumstances, and preliminary injury determinations are based on whether the agency's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 19 U.S.C. § 1516A (b) (1) (A). All other reviews, including final injury, LTFV and subsidy determinations, annual review determinations, and determinations which terminate all or part of an investigation, are made on the basis of whether the determination, conclusion or finding is "unsupported by substantial evidence or otherwise not in accordance with the law." 19 U.S.C. § 1516 (A) (b) (1) (B) (1982). The Customs Courts Act of 1980 extended the burden of proof applicable in review of Customs Service decisions to review of ITA and ITC decisions under the antidumping and countervailing duty laws. In these cases, the decisions of the agencies are presumed to be correct and the burden of proving otherwise rests on the party challenging the decision. 28 U.S.C. § 2639 (a) (1982). Any interested party who could be adversely affected by a decision may intervene as a matter of right if such interested party was a party in the ITA or ITC proceeding. 28 U.S.C. § 2631 (j) (1982). No other intervention is allowed under section 516A. The CIT may remand cases to the ITA or the ITC for additional proceedings. 28 U.S.C. § 2643 (a) (1982). Such remand decisions are not appealable until after the agency has completed its action and the CIT has completed its review of the agency's action following remand. Badger-Powhatan v. United States, 808 F.2d 823 (Fed. Cir. 1986). However, if the CIT trial judge certifies that the remand decision turns on "a controlling question of law . . . with respect to which there is substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation . . the CAFC may hear the appeal at once. 28 U.S.C. § 1292 (d) (1) (1982). i292(d) (1) The CIT also has all the powers in law and equity of a federal district court, including the authority to hold parties in contempt and to assess costs or other sanctions and other extraordinary remedies, 28 U.S.C. § 1585 (1982) and the authority to issue declaratory judgments and writs of mandamus. Perhaps most common is the invocation of the CIT's injunctive power, for example, to order Customs to suspend 18 liquidation of entries of merchandise subject to an antidumping order while a party seeks review of the ITA's final annual review determination. III. CHANGES FROM CURRENT REVIEW PROVISIONS CONTEM- The FTA allows each country to retain its own antidumping and countervailing duty laws, regulations, administrative practices and judicial precedents. Further, pursuant to Article 1902 of the FTA, each country may amend its laws as it sees fit except that such amendments will apply to the other country only if the amendment so requires by specifically naming the other country. The FTA does require that domestic statutory amendments be in accord with the appropriate GATT Codes and the FTA and authorizes the invocation of a panel to review the conformity to the GATT Codes or the FTA of any amendment which is proposed to be adopted by the other subsequent to the implementation of the FTA. The FTA, in effect, accepts the U.S. (and Canadian) antidumping and countervailing duty laws, interpretations, and practices as they will exist on the day the FTA is implemented. As the U.S. courts apply and interpret the antidumping and countervailing duty laws in non-Canadian cases following the effective date of the FTA, the panel is directed to follow those interpretations as well. However, when a panel considers a question of law not previously reviewed by the U.S. courts (or which these courts are reviewing simultaneously in other cases), its decision may not necessarily coincide with the decision ultimately taken by the courts. Indeed, until a U.S. court is presented with the question, various panels may have issued decisions, none of which may agree with the U.S. courts' ultimate decision or with each other. The lack of a forum for review of the panel decisions means that they will not be reconciled. Only the "extraordinary challenge" provision exists in the FTA to assure that the panels are applying U.S. laws as hitherto determined, although any patent disregard would be subject to review and reversed under the extraordinary challenge procedures provided by Article 1904 (13) and Annex 1904.13. As discussed earlier, Article 1904 of the FTA provides for the replacement of existing judicial review by binational dispute settlement panels and sets forth the subject matter and procedures for panel review. This replacement is for review of "final antidumping and countervailing 19 duty determinations" as defined in Article 1911 of the FTA. With several exceptions, this grant of review authority is the same as that granted to the CIT reviews under section 516A. First, there is no grant of jurisdiction to review either ITA or ITC actions in entering into or reviewing the effects of a settlement or suspension agreement. Second, the panels are not empowered to review a determination by the ITA not to initiate an investigation, nor a negative preliminary injury determination by the ITC. Judicial review of these agency actions is not replaced by panel review and, presumably, will remain subject to review by the U.S. courts. It is not clear that this result was intended by the negotiators of the FTA. Because the ITA may make limited substantive modifications to an order during an annual review, the panels may be presented with requests to modify orders entered well before the effective date of the FTA. It also is not clear that this result was intended by the negotiators. A panel is to determine whether the agency determination "was in accordance with the antidumping and countervailing duty law" of the importing country. This law is defined to include "relevant statutes, legislative history, regulations, administrative practice and judicial precedents" to the extent a court in the pertinent country reviewing the matter would rely on such materials. The standard of review for the panels is to be the "substantial evidence" and "contrary to law" rule of section 516A(b)(1)(B), except that the "abuse of discretion" standard under section 516A (b) (1) (A) is to be used to review an ITC decision not to initiate a "changed circumstances" review under section 751(b). This represents no change from existing U.S. law. The FTA does not adopt expressly the burden of proof required under 28 U.S.C. 2639 (a) (1982). Article 1904 (3) of the FTA requires the application of general legal principles that the courts otherwise would apply. It is not clear whether or not this paragraph or paragraph (2) of Article 1904 which defines "antidumping law and countervailing duty law" as used in the FTA fully incorporates the procedural law now applicable in these cases. The time frame for initiating panel review largely parallels that for U.S. judicial review. A request for initiating a panel review must be made within thirty days from the publication of the final agency determination just 20 as an appeal to the CIT must be filed within thirty days after publication of the relevant notice in the Federal Register. Notice of intent, however, to have the agency determination reviewed must be given to the governments within 20 days of the decision, a significant reduction of time. Rules of procedure are to be adopted by the Parties to the FTA which, among other matters, require final decisions within 315 days of a request for a panel. The FTA specifies the number of days within which each major step of the procedure must be completed -- deadlines which do not vary substantially from the steps for filing a complaint and briefs with the CIT. There is one major difference, however. The panel must issue its written decision within ninety days following oral argument; no such deadline is imposed on judges of the CIT. There is no mechanism for enforcing these deadlines. If the deadlines are deemed essential, then such a mechanism must be provided. While only the "Parties" to the FTA, the governments of the United States and Canada, may request a panel, private persons who were "interested parties" under U.S. law (persons "who would otherwise be entitled under the law of the importing Party to commence domestic procedures for judicial review," Article 1904, par. 5 of the FTA) are to be provided the right to appear and be represented by counsel, as well as the right to compel their respective governments to request a panel. The FTA does not contemplate different status for private persons than for a government. Presumably, the implementing legislation will direct the Executive Branch to ensure that "interested parties" will be accorded all rights now provided before the CIT. The panel is empowered to remand the determination to the investigating agency with instructions for action and a time limit for response. The same panel may review the agency action following remand but must issue its decision within ninety days. It is important to note that if neither party requests a panel within the time allowed, any "interested party" under U.S. law may seek judicial review under present procedures, even after the effective date of the FTA. In that instance, the decision of the U.S. courts may not then be reviewed by a panel. However, before any person can seek domestic judicial review, that person must give notice of its intent to both countries and to any other party who could request a panel, no later than ten days before the deadline 21 for requesting a panel. Because an action in the CIT also must be commenced within thirty days after the ITA's antidumping order is published in the Federal Register, there will likely have to be protective filings in many cases. However, Article 1904 (¶ 15(g)(i)) of the FTA requires each country to amend its law to prevent the commencement of judicial review prior to the expiration of time for requesting a panel. Thus, the implementing legislation may have to expand the time for commencement of judicial review of Canadian AD/CVD cases from 30 days to 35-40 days. The United States has committed to remove the CIT's authority to issue declaratory judgments as it pertains to the jurisdiction of the review panels. Moreover, each party's courts are to be required to enforce sanctions imposed by the other country to enforce protective orders in respect of confidential, proprietary or privileged information for panel review or for the "extraordinary challenge" procedure. The latter procedure is invoked upon any allegation by a country, following a panel decision, that a panel member was guilty of gross misconduct, bias, or that a serious conflict of interest existed, or that a panel "seriously departed" from a "fundamental rule of procedure," that the panel manifestly exceeded its powers, authority or jurisdiction and that such conduct materially affected the panel's decision and threatens the integrity of the panel review process. Review of these allegations is passed upon by an "extraordinary challenge committee." If such a committee finds that any one of these grounds has been established, the original panel decision is to be vacated and a new panel formed. Alternatively, the committee may remand the decision to the original panel for reconsideration. The FTA allows no other review of a panel's decision. That decision is final and binding on the parties. IV. CONSTITUTIONAL ISSUES RAISED BY THE The dispute resolution provisions of the FTA raise a number of potential constitutional issues, for they affect the authority of each of the three branches of the federal government. For example, questions might be posed regarding the power of the Executive Branch to enter into such an agreement. Similarly, it might be argued that the dispute resolution provisions exceed Congress's power to lay duties |