e)

f)

the maintenance of rosters of experts for the purpose of mediation, concilliation or arbitration and help in the selection

of appropriate persons qualified to advise in particular disputes;

advising the Commission on the recommendation of panels of
experts;

g)

the consideration of future issues and the requirements for
further elaboration of the agreement;

h)

the reasonableness and proportionality of countermeasures taken as a result of treaty violations;

i)

oversee the harmonization of standards on animal health, plants, etc. as provided for in the schedules to Chapter Seven.

:

This list could continue. The types of issues which will become of concern to both governments and their citizens as a result of this agreement are potentially as extensive as the nature of the economic interpretation that it will produce. Without a permanent group of experts working together with the common goal of ensuring the effective application of the Agreement, the Commission runs the risk of being a body which will respond only to domestic political pressures on various issues as they arise. As such it will not further the implementation and operation of this Treaty; it will tend to contribute to problems rather than resolve them.

Only future experience can determine the nature and scope of the Commission's operations, the Agreement itself is sketchy when it deals with this important institution. The Parties' willingness to create an infrastructure adequate to ensure the establishement of a truly binational institution will ultimately determine the effectiveness of the Commission

and, in the end, that of the agreement itself.

ENDNOTES

* In these endnotes "P.T." refers to the Preliminary Text; Introductory

1.

notes to Chapters referred to, article number references and page
numbers are to the final agreement as printed by the Department of
External Affairs, Ottawa, Canada.

Speech, Frank Iaccabuci, Deputy Minister of Justice of Canada, Fifth
Annual Trade Law Seminar, Ottawa, October 15, 1987.

3.

4.

5.

6.

7.

8.

9.

10.

On the role of the Commission in the European Communities see Lasok &
Bridge, The Law and Institutions of the European Communities, 2d ed.
Butterworths, 1976, Chapter 5.

Art. 1802.4.

Agreement, p. 259.

Graham, W., "Government Procurement Policies, GATT, the EEC and the
United States", in Trebilcock, Prichard, Courchene, Whalley (eds.),
Federalism and the Canadian Economic Union, Ont. Economic Council,
Toronto, 1983, 355; and see Rousseau Metal Inc. v. The Queen, partially
reproduced in Kindred et al. eds, International Law, Chiefly as
Interpreted and Applied in Canada, Emond Montgomery, Toronto, 1987, at

239.

Agreement, pp. 69-70.

See, for example, the "Casis de Dijon" Case, Rewe-Zential Bundes
Monapolverwaltung fur Branntwein, [1979] 3 C.M.L.R. 494; Burrows, F.
Free Government in European Community - Law, Claredon Press, Oxford,
1987, p. 57 ff.

See Burrows, F. supra note 8, Part II.

See, for example, Van Duyn v. Home Office [1975] 1 C.M.L.R. 1, and
Minister of Interior v. Cohn-Bendit, [1980] 1 C.M.L.R. 543.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

Burrows, F. supra note 8 at 231 ff.

Ibid.

See, Black et al. v. Law Society of Alberta, (1986), 44 Alta. L.R. (2d) 1 (F.C.C.A.); Trebilcock et al. eds., supra note 6, at 273 ff.

Cohen, M. "Canada and the U.S.

New Approaches to Undeadly Quarrels",

16 International Perspectives (Mar.-Apr. 1985).

See Report of the Standing Senate Committee on Foreign Affairs, Canada-
U.S. Relations: The Institutional Framework for the Relationship,
Information Canada, Ottawa, 1975, Vol. 1 at 21-22.

Report, Royal Commission on the Economic Union and Development
Prospects for Canada, Canada, 1985, Vol 1, at 320.

These observations are drawn primarily from a speech by L.H. Legault
(Minister of Economics)) and Deputy Head of Mission, Canadian Embassy,
Washington) "Canada-U.S. Trade: A Legal Framework for the Management !
of Interdependence", ABA National Institute on International Litigation
and Arbitration, New York, N.Y., April 2, 1987.

See, Ambassador Clayton Yeutter, Testimony on United States Trade
Policy before the Subcommittee on Trade, Committee on Ways and Means,
U.S. House of Representatives, Feb. 20, 1986; the September, 1986
Ministerial Declaration at Punta del Este; Horlick, G., Chagnon, K.,
McIlroy J., "GATT Dispute Resolution Procedures" in U.S. Trade Law and
Policy, Practicing Law Institute, Washington, January, 1987.

Jackson, J.H., "GATT an the Tokyo Round Agreements" in Cline, ed.,
Trade Policy in the 1980's, Institute for Economic Analysis,
Washington, 1983, at 162.

See Stein, E., "Lawyers, Judges, and the Making of a Transnational
Constitution", 75 Amr. J. Int. L., 1 (1981).

Jackson, J.H., supra note 19, at 182 refers to the notion of nullification and impairment in the GATT as "exceedingly ambiguous".

An

See Hudec, "GATT Dispute Settlement After the Tokyo Round:
Unfinished Business", 13 Cornell Int. L.J. (1980) 145 at 152; see also,
USITC, Review of the Effectiveness of the Trade Dispute Settlement
Under the GATT and the Tokyo Round Agreements, Report to Committee on
Finance, U.S. Senate, USITC Publication No. 1793, Dec. 1985, at xiii.

Horlick et al., supra note 18 at 27; USITC Report, supra note 22 at
xiii, 35; Petersman, E.U., "International and European Foreign Trade
Law: GATT Dispute Settlement Proceedings Against the EEC", 22 C.M.L.
Rev. 441 (1985) at 481. For a positive view of the GATT DRM see
McGovern E., "Dispute Settlement in the GATT", in Meinhard, Jacobs,
Petersman, eds., The European Community and Gatt, Vol. 4, Kluwer, 1986,

at 82 ff.

24.

25.

26.

27.

Chorzow Factory Case, (1929) A/17 at p. 29; Harris, D.J., Cases &
Materials in International Law, 3d ed., Sweet & Maxwell, 1983, 40.

See Summary Report of the Committee on Canada-United States Relations of the Canadian and U.S. Chambers of Commerce, Scotsdale, Arizona, April 1-3, 1987, at 5.

EEC Treaty, Art. 173; Lasok & Bridge, supra note 3 at 169 ff.

American & Canadian Bar Associations Joint Working Group on the
Settlement of International Disputes, "Settlement of Disputes Under the
Proposed Free Trade Agreement", 1 April 1987, at 26.

28. Ibid., at 22.

29.

30.

31.

32.

33.

Ibid., at 26.

Art. 1808. It is interesting to note the title to Art. 1808 "Referrals
of Matters from Judicial or Administrative Proceedings" which would
suggest that the drafters originally had the idea of an article 177
type reference from domestic tribunals and then drew back from it once
the limitations of the Commission as an appropriate forum for such
references were appreciated.

EEC Treaty, art. 169; Lasok & Bridge, supra note 3, at 116, 167-169.
Macdonald Commission Report, supra note 16, at 320.

For text see 12 Bevans 319, 102 Br. & For. S. Papers 137; see also
Cohen, M., "The Regime of Boundary Waters: The Canadian-U.S.
Experience", 146 Hague Academy, Receuil des Cours 219 (1975 III);
Bloomfield and Fitzgerald, Boundary Waters Problems of Canada and the
United States, Toronto, 1958.

See ABA/CBA Report, supra note 27, at 9.

34.

35.

24 Int. Leg. Mat. 653 (1985) arts. 17 & 19.

38.

39.

Franck, T., Messianism & Chauvinism in America's Commitment to Peace
Through Law", CCIL Conference Proceedings, Ottawa, 1986, at 101 ff.

ABA/CBA Report, supra note 27 at 9.