32 States for many years to determine the rights of U.S. citizens. However, as the minority points out, those claims commissions did not determine the rights of U.S. citizens against the United States exclusively upon U.S. law, but dealt with claims against foreign governments. The panel is not given authority to implement its decisions and can only affirm or remand the matter to the ITA or ITC for action consistent with its decisions. The United States would be free to refuse to implement the panel's decision, although to do so would place the United States in breach of the FTA. In drafting the provisions for appointment of the United States members of the roster from which the panel is to be chosen, the decisions in Bowsher v. Synar, 106 S. Ct. 3181 (1986) and In re Sealed Case, 838 F.2d 476 (D.C. Cir. January 22, 1988) (the recent special prosecutor decision) should be considered. These cases held that it is unconstitutional for members of the Legislative or Judicial Branches to appoint persons performing the functions of the Executive Branch. Since the panel would serve the traditionally executive function of administering a treaty or Executive Agreement, the implementing legislation should provide that appointments to the roster of the panel be made by the Executive Branch. A. V. PRACTICAL ISSUES IN IMPLEMENTATION OF The dispute settlement mechanism as an As tempting as it may be to consider the panel review provision in isolation from the other parts of the FTA, the majority of the Committee believes that ultimately cannot be done. It must be evaluated in its context as only one of many elements constituting the FTA. As previously noted, modification of the review mechanism appears not to be a realistic possibility. The FTA contemplates withdrawing, or at least limiting, the application of antidumping and countervailing duty laws as applied to trade between the United States and Canada within five years after the implementation of the FTA. Thus, the panel review mechanism is proposed as a temporary measure during the difficult process of developing politically acceptable unfair trade laws consistent with the The approach most consistent with a free trade agreement would have been to exempt all U.S.-Canadian trade from these laws, subjecting such trade instead to the domestic trade regulation laws of the respective countries. This first approach remains the implicit goal of the FTA. Under Article 1906, the parties are to substitute new rules for their existing antidumping and countervailing duty laws within five years (extendable to seven years). An intermediate approach would have been the application of existing national laws by a standing binational administrative agency. Such a binational administrative body would have developed a body of antidumping and countervailing duty law unique to U.S.-Canada trade. It has been suggested that, after preliminary discussion of this alternative, the parties concluded that it was not politically feasible. The FTA adopted a third approach by creating a binational review procedure to be interposed between the determinations of each country's national investigating agency and the later implementation of antidumping and countervailing duty orders by their respective customs authorities. This ad hoc binational review panel procedure almost certainly would not have been created on its own merits. It is not a mechanism that generates much enthusiasm among even the most partisan supporters of the FTA. Nevertheless, it is a mechanism that allowed an agreement to be reached. Whether the real target of the mechanism's advocates was to rectify a perceived unfairness of the U.S. courts, of the application of these laws by the ITA and ITC against Canadian exports, or simply the substance of the laws themselves, it would have been far more appropriate and efficient to address these issues by establishing an antidumping and countervailing duty regime to apply only within the free trade area. The hybrid interim merger of the philosophy of a free trade area with the regulatory rules and procedures applied to all other trade is awkward, and not surprisingly so. It Another basic consideration is whether a free trade arrangement between two countries is the appropriate approach to trade negotiations for the United States at this time. is beyond the scope of this Committee's present concern to evaluate whether the United States should be negotiating trade issues outside of the historically preferred multilateral context. Nevertheless, the issue remains one of concern because the successful conclusion of the U.S.-Canadian negotiations has stimulated renewed interest in other possible 34 bilateral agreements with Mexico, certain Southeast Asian nations, and, perhaps most significantly, with Japan. The performance of the dispute settlement panels under the FTA will be watched closely both by advocates and critics of other free trade arrangements. Because there is concern within the trade community as to the ultimate effectiveness and perceived fairness of this mechanism, if adopted it should be viewed solely as a short-term political solution in the context of the FTA. Only after there has been substantial experience with such review, will it be possible to evaluate it sufficiently to consider it as an element of other agreements. It also is quite possible that the mechanism would function very differently from agreement to agreement since the nature and dynamics of the trade and political relationships between the United States and its various trading partners varies substantially. B. 1. Specific Issues Discrimination implicit in the existence As discussed in Section II above, U.S. law requires the ITC to cumulate, that is, to consider as one causal force, imports of the same product from multiple countries when it considers whether imports of that product from one country are causing injury or threat of injury to an American industry. The ITC is required to cumulate only when imports of the same product from other countries are being investigated in contemporaneous antidumping or countervailing duty cases. Therefore, the ITC, in considering whether LTFV sales of a Canadian product are causing injury to the domestic industry of the United States, might also consider LTFV imports from countries as diverse as the United Kingdom, Japan, Taiwan or Mexico. At the same time, it might also cumulate imports of the same product from Brazil which are being investigated in a countervailing duty case. Similarly, in the countervailing duty case against Brazil and in the antidumping cases against the United Kingdom, Japan, Taiwan and Mexico, LTFV imports of the product from Canada and the other countries will be considered by the ITC. The cumulation of the several countries' exports, or the exports from even just one country, may be the determining factor in a finding of injury. No one country's exports alone, or even the cumulated total from all countries except Canada, may, in a particular case, suffice for a finding of injury. Under the panel review mechanism, anomalous results are possible. 35 determination in several cases in large part on the effects of the Canadian exports, and if the panel ultimately overturned the ITA finding of less than fair value sales from Canada, there would not be any dumping duty assessed against the Canadian exports. The question arises whether the CIT would feel empowered to consider the decision of the panel in reviewing the ITC's decision of injury, and whether, in the worst possible circumstances, the dumping determination against the other countries, and in particular the injury determination against the other countries, would be allowed to stand because either the CIT felt compelled not to take notice of the panel's decision or because the panel's decision was seen as not having a "precedential" effect. The Committee is of the view that this problem can be resolved by a provision in the implementing legislation directing the ITC and other reviewing U.S. courts to take judicial notice of and give effect to any panel decision in a companion case involving the same merchandise. Such recognition would not mean that the panel decision would be followed as a precedent in cases involving other merchandise. Although the decision of the review panel as to the less than fair value determination against the Canadian exports will be of vital concern to the exporters from the other nations, those exporters will not be parties to the Canadian case at the ITA and the ITC, and, presumably, will not have standing before the review panel. Currently, they could challenge the ITC's injury determination in their own CIT review but could not participate directly in a CIT review of the LTFV finding against Canada, despite the importance of that decision to them. Another possibility is for the Canadian review panel and the CIT to reach different decisions as to whether the cumulative impact constitutes material injury to the domestic industry. Here, however, although decisions would be inconsistent, discrimination of various kinds is inherent in the creation of any free trade agreement. Under the FTA, importers of Canadian products will not pay ordinary duties which importers from other countries will pay. Decisions that treat Canadian goods differently from other countries' goods are not inconsistent with a free-trade area concept, whatever the result, as long as the decisions are based on U.S. or Canadian circumstances. There are a number of other sets of anomalies arising out of the timing of agency, court, and panel decisions which fall in this category. A bilateral free-trade agreement is discriminatory by definition. Such discrimination is legal both under the 36 GATT and as a matter of U.S. law. In Norwegian Nitrogen Products v. United States, 288 U.S. 294 (1933), Justice Cardozo stated that a domestic industry has no right to obtain a specific level of duty against import competition. In Buttfield v. Stranahan, 192 U.S. 470 (1904), the Supreme Court set forth the principle that there is no right to import merchandise, that importing is a privilege which may be conditioned by the Congress as it sees fit. Objections to the discriminatory aspect of a free trade agreement are more properly directed to the question of whether a bilateral approach to trade problems is preferable to a multilateral approach. То While the decision of a panel is to have no precedential effect, it will exist as a fact, as will the existence, or not, of an antidumping or countervailing duty order against Canadian imports. While the CIT must recognize the existence of the decision, it seems clear that it is not required to accept the reasons for the panel's decision in its own review of injury findings involving cumulation. hold otherwise would result in the panel binding the court. Perhaps, the best resolution of this unusual set of circumstances is for the Congress, in the implementing legislation or the legislative history, to state its intent that the CIT may, but need not, consider the panel's reasons for finding injury, or lack thereof, by reason of cumulated LTFV or subsidized imports. 2. Enforcement of Restraints on a Panel Some very real issues arise regarding the strictures placed on each panel by the FTA, and, presumably, by the implementing legislation. For example, the FTA requires that a panel complete its review of each case in less than one year. The FTA does not address how this time limit is to be enforced. While there is a mechanism for resolving disputes and breaches of the FTA at the ministerial level, this mechanism is unlikely to be invoked solely for a sixmonth, nine-month or an even longer delay by a review panel. The time required for implementing the withdrawal or objection procedures in the FTA could be greater than the time taken by the panel to complete its review. In most cases, presumably the pressure which would be applied by the country desiring a prompt resolution of the review process would be sufficient to encourage the panel to complete its tasks. However, it is not difficult to conceive situations in which |