37 Similarly, questions arise as to the ultimate authority of the panels and the enforcement of their decisions. The FTA only addresses enforcement of panel decisions on confidentiality. For example, a panel might determine that the appropriate duty in a subsidy case was two percent but, because the issue had become so politicized, the importing government insisted on collecting the ten percent duty found by its administrative agency. Presumably, a negotiated resolution would ultimately be reached through the ministerial level Commission under Article 1802. 3. Areas of More Speculative Concern There are a number of issues which stem from concerns that the mechanism may be unfair either to domestic petitioners or to exporters and importers or that the adoption of such a mechanism is bad policy and a dangerous precedent. Because of their speculative nature, these issues have generated much discussion but are not susceptible of evaluation at this juncture. Nevertheless, it is appropriate to catalog several of them now for observation as experience accumulates. There has been speculation as to whether the two members of each panel appointed by each Party might be biased. The purpose of a five-member panel is for the fifth member to be a neutral and deciding vote. However, as that member may be picked by lot from a joint roster, there could be on each panel a 3-2 bias in favor of one of the two parties. Thus, it is felt by some that pro-national bias could determine the issues to be considered, the manner of consideration and the quality of the debate. Further, there is concern that panelists who wish to be appointed to subsequent panels would be reluctant to find against their government. Given Another issue of concern to the members of this Committee is the technical experience of the members of the panel. The trade laws of both countries are complex and differ significantly from each other. The appointment of a majority of persons to a panel who have not had actual experience with these laws will greatly complicate the ability of the parties to communicate their positions. the increasing complexity and the arcane nature of these statutes and their application, this issue is a matter of concern. As an example, new appointees to the ITC who have not had experience in these cases usually require experience in a number of cases to achieve competence simply on issues of injury to the domestic industry. Congressional expres 38 sions of interest in facilitating the appointment of CIT and CAFC judges to these panels is encouraging, and any necessary authorization for such appointment should be included in the implementing legislation. At the same time, care should be taken to avoid either undue legislative interference in executive appointments or the imposition on Article III judges of assignments that would impede their performance of their Article III tasks. See Section IV above. Because persons from the other country will be on the panel, it is probable that counsel for the parties will wish to become familiar with provisions and procedures of that country's law in order to understand perspectives those members will bring to the review, adding additional expense to the review process. The one-year time limit on panel proceedings will result in earlier decisions in many cases. It should not be assumed, however, that faster review will mean simpler cases or lower legal fees or expenses. Shorter time limits generally only compress the time for considering the same issues. It will be useful to observe the quality of review which can be provided in a compressed time frame. Mandatory time limits on the activities of the parties will raise numerous questions, and it will be instructive to examine how they are resolved. 4. Other problems to be addressed in implementing legislation - There are a number of other matters which can be resolved or clarified by the Congress in the implementing legislation. Among these are whether private parties will be granted a status before the panel that is appropriate to their stake in the case or whether as we hope will not be the case the panel will be so deferential to the government parties as to relegate the private parties to a secondary status. This is in part a question for the implementing legislation and in part one for the rules of the panels themselves. - The implementing legislation or the legislative history should set forth the guidelines regarding the precedential value or lack thereof of panel decisions. Since each panel decision is not supposed to furnish guidance on questions of law arising in later cases, a single issue of law could be decided variously by different panels until it arises in a case before the CIT. There is some concern as to whether the ITA and ITC will uniformly ignore these deci 39 sions. The implementing statute should instruct the ITA and the ITC that they are not bound by panel decisions in future cases, but that they may consider panel's reasoning. The implementing legislation should restate the FTA's provision that the present standards of review will apply. VI. CONCLUSION The binational panel dispute resolution provisions of the FTA are unique mechanisms designed to implement a key compromise in the FTA. The Parties to the FTA could neither conclude that countervailing and antidumping duties should be removed from United States-Canadian trade nor resign themselves to a permanent continuation of such duties. The compromise was an agreement to continue such duty determinations for five years while the two Governments used their best efforts to negotiate new standards or the elimination of such duties. During the interim, it was not to be "business as usual" in duty determinations. A new procedure the binational panels -- was agreed to as a mechanism to expedite and "internationalize" countervailing and antidumping duty determinations, both to effectuate such determinations during the interim period and to preserve the Parties' negotiating positions in the ongoing discussions. Because they are unique, the binational panels raise new questions under United States constitutional law and national policy. A constitutional challenge to the panel review provisions will inevitably be swiftly sought in United States courts. A majority of the Committee believes that the Supreme Court will uphold the constitutionality of the review mechanism; some members of the Committee strongly disagree. The Supreme Court will ultimately decide. On balance, the Committee (two members dissenting) concludes that the existence of constitutional questions should not stay Congress's hand from ratifying this important trade agreement. We recommend that Congress provide for the prompt, orderly and uniform resolution of constitutional questions with respect to the FTA's binational review provisions by conferring the necessary jurisdiction and venue in such court as Congress chooses. In order to avoid numerous constitutional challenges proceeding simultaneously in different courts (as took place with respect to the U.S.-Iran Agreement), Congress should probably grant exclusive jurisdiction 40 to one court and provide for a direct appeal to the Supreme Court on an expedited basis. Harmonizing the FTA's dispute resolution provisions with United States domestic law and policy requires careful drafting of the implementing legislation. The FTA leaves to the United States legislators the task of ensuring that individual parties aggrieved may obtain the full benefits of the dispute resolution provisions of the FTA. Congress must also reconcile this new dispute resolution mechanism with United States provisions for the resolution of duty determinations with its other trading parties. A majority of the Committee sees no insuperable obstacles to reconciling the FTA mechanisms with the residuum of United States countervailing and antidumping duty procedures. In particular, we recommend that the implementing legislation: (1) provide a procedure for prompt and complete judicial determination of the constitutionality of the dispute resolution provisions, preferably by vesting jurisdiction in one federal court, with direct expedited appeal to the Supreme Court; (2) provide procedures for individual parties aggrieved to initiate panel review and to participate fully in the proceedings before the panel; (3) resolve the problems posed by the ITC cumulation of injury procedures either by exempting Canada from the cumulation provisions or by directing the CIT and its reviewing courts to take into account any panel's decision holding that no AD or CVD duty is to be imposed on imports of the same product from Canada; (4) provide that panel decisions will have no precedential value in the ITC, ITA, CIT or any U.S. court, so that they will not affect AD/CVD cases on other products; (5) recommend, but not require, that at least one CIT or CAFC judge be appointed, subject to his or her consent, to each panel, providing any necessary legislative authorization for them to serve; (6) set standards for membership on panels, including standards of impartiality and competence in the selection of the U.S. panel members, making clear |