[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1438 Placed on Calendar Senate (PCS)]

                                                       Calendar No. 253

104th CONGRESS

  1st Session

                                S. 1438

_______________________________________________________________________

                                 A BILL

 To establish a commission to review the dispute settlement reports of 
         the World Trade Organization, and for other purposes.

_______________________________________________________________________

                            December 4, 1995

            Read the second time and placed on the calendar
                                                       Calendar No. 253
104th CONGRESS
  1st Session
                                S. 1438

 To establish a commission to review the dispute settlement reports of 
         the World Trade Organization, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 30, 1995

 Mr. Dole introduced the following bill; which was read the first time

                            December 4, 1995

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
 To establish a commission to review the dispute settlement reports of 
         the World Trade Organization, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This title may be cited as the ``WTO Dispute Settlement Review 
Commission Act''.

SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds the following:
            (1) The United States joined the WTO as an original member 
        with the goal of creating an improved global trading system and 
        providing expanded economic opportunities for United States 
        firms and workers, while preserving United States sovereignty.
            (2) The American people must receive assurances that United 
        States sovereignty will be protected, and United States 
        interests will be advanced, within the global trading system 
        which the WTO will oversee.
            (3) The WTO's dispute settlement rules are meant to enhance 
        the likelihood that governments will observe their WTO 
        obligations, and thus help ensure that the United States will 
        reap the full benefits of its participation in the WTO.
            (4) United States support for the WTO depends on obtaining 
        mutual trade benefits through the openness of foreign markets 
        and the maintenance of effective United States and WTO remedies 
        against unfair or otherwise harmful trade practices.
            (5) Congress passed the Uruguay Round Agreements Act based 
        on its understanding that effective trade remedies would not be 
        eroded. These remedies are essential to continue the process of 
        opening foreign markets to imports of goods and services and to 
        prevent harm to American industry and agriculture.
            (6) In particular, WTO dispute settlement panels and the 
        Appellate Body should--
                    (A) operate with fairness and in an impartial 
                manner;
                    (B) not add to the obligations, or diminish the 
                rights, of WTO members under the Uruguay Round 
                Agreements; and
                    (C) observe the terms of reference and any 
                applicable WTO standard of review.
    (b) Purpose.--It is the purpose of this title to provide for the 
establishment of the WTO Dispute Settlement Review Commission to 
achieve the objectives described in subsection (a)(6).

SEC. 3. ESTABLISHMENT OF COMMISSION.

    (a) Establishment.--There is established a commission to be known 
as the WTO Dispute Settlement Review Commission (hereafter in this 
title referred to as the ``Commission'').
    (b) Membership.--
            (1) Composition.--The Commission shall be composed of 5 
        members all of whom shall be judges of the Federal judicial 
        circuits and shall be appointed by the President, after 
        consultation with the Majority Leader and Minority Leader of 
        the House of Representatives, the Majority Leader and Minority 
        Leader of the Senate, the chairman and ranking member of the 
        Committee on Ways and Means of the House of Representatives, 
        and the chairman and ranking member of the Committee on Finance 
        of the Senate.
            (2) Date.--The appointments of the initial members of the 
        Commission shall be made no later than 90 days after the date 
        of the enactment of this title.
    (c) Period of Appointment; Vacancies.--
            (1) In general.--Members of the Commission shall each be 
        appointed for a term of 5 years, except of the members first 
        appointed, 3 members shall be appointed for terms of 3 years 
        and the remaining 2 members shall be appointed for terms of 2 
        years.
            (2) Vacancies.--
                    (A) In general.--Any vacancy on the Commission 
                shall not affect its powers, but shall be filled in the 
                same manner as the original appointment and shall be 
                subject to the same conditions as the original 
                appointment.
                    (B) Unexpired term.--An individual chosen to fill a 
                vacancy shall be appointed for the unexpired term of 
                the member replaced.
    (d) Initial Meeting.--No later than 30 days after the date on which 
all members of the Commission have been appointed, the Commission shall 
hold its first meeting.
    (e) Meetings.--The Commission shall meet at the call of the 
Chairperson.
    (f) Quorum.--A majority of the members of the Commission shall 
constitute a quorum, but a lesser number of members may hold hearings.
    (g) Affirmative Determinations.--An affirmative vote by a majority 
of the members of the Commission shall be required for any affirmative 
determination by the Commission under section 4.
    (h) Chairperson and Vice Chairperson.--The Commission shall select 
a Chairperson and Vice Chairperson from among its members.

SEC. 4. DUTIES OF THE COMMISSION.

    (a) Review of WTO Dispute Settlement Reports.--
            (1) In general.--The Commission shall review--
                    (A) all adverse reports of dispute settlement 
                panels and the Appellate Body which are--
                            (i) adopted by the Dispute Settlement Body, 
                        and
                            (ii) the result of a proceeding initiated 
                        against the United States by a WTO member; and
                    (B) upon the request of the Trade Representative, 
                any adverse report of a dispute settlement panel or the 
                Appellate Body--
                            (i) which is adopted by the Dispute 
                        Settlement Body, and
                            (ii) in which the United States is a 
                        complaining party.
            (2) Scope of review.--With respect to any report the 
        Commission reviews under paragraph (1), the Commission shall 
        determine in connection with each adverse finding whether the 
        panel or the Appellate Body, as the case may be--
                    (A) demonstrably exceeded its authority or its 
                terms of reference;
                    (B) added to the obligations, or diminished the 
                rights, of the United States under the Uruguay Round 
                Agreement which is the subject of the report;
                    (C) acted arbitrarily or capriciously, engaged in 
                misconduct, or demonstrably departed from the 
                procedures specified for panels and the Appellate Body 
                in the applicable Uruguay Round Agreement; and
                    (D) deviated from the applicable standard of 
                review, including in antidumping cases, the standard of 
                review set forth in Article 17.6 of the Agreement on 
                Implementation of Article VI of the General Agreement 
                on Tariffs and Trade 1994.
            (3) Affirmative determination.--The Commission shall make 
        an affirmative determination under this paragraph with respect 
        to the action of a panel or the Appellate Body, if the 
        Commission determines that--
                    (A) any of the matters described in subparagraph 
                (A), (B), (C), or (D) of paragraph (2) has occurred; 
                and
                    (B) the action of the panel or the Appellate Body 
                materially affected the outcome of the report of the 
                panel or Appellate Body.
    (b) Determination; Report.--
            (1) Determination.--No later than 120 days after the date 
        on which a report of a panel or the Appellate Body described in 
        subsection (a)(1) is adopted by the Dispute Settlement Body, 
        the Commission shall make a written determination with respect 
        to the matters described in paragraphs (2) and (3) of 
        subsection (a).
            (2) Reports.--The Commission shall promptly report the 
        determinations described in paragraph (1) to the Committee on 
        Ways and Means of the House of Representatives, the Committee 
        on Finance of the Senate, and the Trade Representative.

SEC. 5. POWERS OF THE COMMISSION.

    (a) Hearings.--The Commission may hold a public hearing to solicit 
views concerning a report of a dispute settlement panel or the 
Appellate Body described in section 4(a)(1), if the Commission 
considers such hearing to be necessary to carry out the purpose of this 
title. The Commission shall provide reasonable notice of a hearing held 
pursuant to this subsection.
    (b) Information From Interested Parties and Federal Agencies.--
            (1) Notice of panel or appellate body report.--The Trade 
        Representative shall advise the Commission no later than 5 
        business days after the date the Dispute Settlement Body adopts 
        a report of a panel or the Appellate Body that is to be 
        reviewed by the Commission under section 4(a)(1).
            (2) Submissions and requests for information.--
                    (A) In general.--The Commission shall promptly 
                publish in the Federal Register notice of the advice 
                received from the Trade Representative, along with 
                notice of an opportunity for interested parties to 
                submit written comments to the Commission. The 
                Commission shall make comments submitted pursuant to 
                the preceding sentence available to the public.
                    (B) Information from federal agencies and 
                departments.--The Commission may also secure directly 
                from any Federal department or agency such information 
                as the Commission considers necessary to carry out the 
                provisions of this title. Upon the request of the 
                Chairperson of the Commission, the head of such 
                department or agency shall furnish the information 
                requested to the Commission.
            (3) Access to panel and appellate body documents.--
                    (A) In general.--The Trade Representative shall 
                make available to the Commission all submissions and 
                relevant documents relating to a report of a panel or 
                the Appellate Body described in section 4(a)(1), 
                including any information contained in such submissions 
                identified by the provider of the information as 
                proprietary information or information designated as 
                confidential by a foreign government.
                    (B) Public access.--Any document which the Trade 
                Representative submits to the Commission shall be 
                available to the public, except information which is 
                identified as proprietary or confidential.
    (c) Assistance From Federal Agencies; Confidentiality.--
            (1) Administrative assistance.--Any agency or department of 
        the United States that is designated by the President shall 
        provide administrative services, funds, facilities, staff, or 
        other support services to the Commission to assist the 
        Commission with the performance of the Commission's functions.
            (2) Confidentiality.--The Commission shall protect from 
        disclosure any document or information submitted to it by a 
        department or agency of the United States which the agency or 
        department requests be kept confidential. The Commission shall 
        not be considered to be an agency for purposes of section 552 
        of title 5, United States Code.

SEC. 6. REVIEW OF DISPUTE SETTLEMENT PROCEDURES AND PARTICIPATION IN 
              THE WTO.

    (a) Affirmative Report by Commission.--
            (1) In general.--If a joint resolution described in 
        subsection (b)(1) is enacted into law pursuant to the 
        provisions of subsection (c), the President should undertake 
        negotiations to amend or modify the rules and procedures of the 
        Uruguay Round Agreement to which such joint resolution relates.
            (2) 3 affirmative reports by commission.--If a joint 
        resolution described in subsection (b)(2) is enacted into law 
        pursuant to the provisions of subsection (c), the approval of 
        the Congress, provided for under section 101(a) of the Uruguay 
        Round Agreements Act, of the WTO Agreement shall cease to be 
        effective in accordance with the provisions of the joint 
        resolution.
    (b) Joint Resolutions Described.--
            (1) In general.--For purposes of subsection (a)(1), a joint 
        resolution is described in this paragraph if it is a joint 
        resolution of the 2 Houses of Congress and the matter after the 
        resolving clause of such joint resolution is as follows: ``That 
        the Congress calls upon the President to undertake negotiations 
        to amend or modify the matter relating to ____________ that is 
        the subject of the affirmative report submitted to the Congress 
        by the WTO Dispute Settlement Review Commission on ____'', the 
        first blank space being filled with the specific provisions of 
        the Uruguay Round Agreement with respect to which the President 
        is to undertake negotiations and the second blank space being 
        filled with the date that the affirmative report, which was 
        made under section 4(a) and which has given rise to the joint 
        resolution, was submitted to the Congress by the Commission 
        pursuant to section 4(b).
            (2) Withdrawal resolution.--For purposes of subsection 
        (a)(2), a joint resolution is described in this paragraph if it 
        is a joint resolution of the 2 Houses of Congress and the 
        matter after the resolving clause of such joint resolution is 
        as follows: ``That, in light of the 3 affirmative reports 
        submitted to the Congress by the WTO Dispute Settlement Review 
        Commission during the preceding 5-year period, and the failure 
        to remedy the problems identified in the reports through 
        negotiations, it is no longer in the overall national interest 
        of the United States to be a member of the WTO, and accordingly 
        the Congress withdraws its approval, provided under section 
        101(a) of the Uruguay Round Agreements Act, of the WTO 
Agreement as defined in section 2(9) of that Act.''.
    (c) Procedural Provisions.--
            (1) In general.--The requirements of this subsection are 
        met if the joint resolution is enacted in accordance with this 
        subsection, and--
                    (A) in the case of a joint resolution described in 
                subsection (b)(1), the Congress adopts and transmits 
                the joint resolution to the President before the end of 
                the 90-day period (excluding any day described in 
                section 154(b) of the Trade Act of 1974) beginning on 
                the date on which the Congress receives an affirmative 
                report from the Commission pursuant to section 4(b)(2); 
                or
                    (B) in the case of a joint resolution described in 
                subsection (b)(2), the Commission has submitted 3 
                affirmative reports pursuant to section 4(b)(2) during 
                a 5-year period, and the Congress adopts and transmits 
                the joint resolution to the President before the end of 
                the 90-day period (excluding any day described in 
                section 154(b) of the Trade Act of 1974) beginning on 
                the date on which the Congress receives the third such 
                affirmative report.
            (2) Presidential veto.--In any case in which the President 
        vetoes the joint resolution, the requirements of this 
        subsection are met if each House of Congress votes to override 
        that veto on or before the later of the last day of the 90-day 
        period referred to in subparagraph (A) or (B) of paragraph (1), 
        whichever is applicable, or the last day of the 15-day period 
        (excluding any day described in section 154(b) of the Trade Act 
        of 1974) beginning on the date on which the Congress receives 
        the veto message from the President.
            (3) Introduction.--
                    (A) Time.--A joint resolution to which this section 
                applies may be introduced at any time on or after the 
                date on which the Commission transmits to the Congress 
                an affirmative report pursuant to section 4(b)(2), and 
                before the end of the 90-day period referred to in 
                subparagraph (A) or (B) of paragraph (1), as the case 
                may be.
                    (B) Any member may introduce.--A joint resolution 
                described in subsection (b) may be introduced in either 
                House of the Congress by any Member of such House.
            (4) Expedited procedures.--
                    (A) General rule.--Subject to the provisions of 
                this subsection, the provisions of subsections (b), 
                (d), (e), and (f) of section 152 of the Trade Act of 
                1974 (19 U.S.C. 2192(b), (d), (e), and (f)) apply to 
                joint resolutions described in subsection (b) to the 
                same extent as such provisions apply to resolutions 
                under such section.
                    (B) Report or discharge of committee.--If the 
                committee of either House to which a joint resolution 
                has been referred has not reported it by the close of 
                the 45th day after its introduction (excluding any day 
                described in section 154(b) of the Trade Act of 1974), 
                such committee shall be automatically discharged from 
                further consideration of the joint resolution and it 
                shall be placed on the appropriate calendar.
                    (C) Finance and ways and means committees.--It is 
                not in order for--
                            (i) the Senate to consider any joint 
                        resolution unless it has been reported by the 
                        Committee on Finance or the committee has been 
                        discharged under subparagraph (B); or
                            (ii) the House of Representatives to 
                        consider any joint resolution unless it has 
                        been reported by the Committee on Ways and 
                        Means or the committee has been discharged 
                        under subparagraph (B).
                    (D) Special rule for house.--A motion in the House 
                of Representatives to proceed to the consideration of a 
                joint resolution may only be made on the second 
                legislative day after the calendar day on which the 
                Member making the motion announces to the House his or 
                her intention to do so.
            (5) Consideration of second resolution not in order.--It 
        shall not be in order in either the House of Representatives or 
        the Senate to consider a joint resolution (other than a joint 
        resolution received from the other House), if that House has 
        previously adopted a joint resolution under this section 
        relating to the same matter.
    (d) Rules of House of Representatives and Senate.--This section is 
enacted by the Congress--
            (1) as an exercise of the rulemaking power of the House of 
        Representatives and the Senate, respectively, and as such is 
        deemed a part of the rules of each House, respectively, and 
        such procedures supersede other rules only to the extent that 
        they are inconsistent with such other rules; and
            (2) with the full recognition of the constitutional right 
        of either House to change the rules (so far as relating to the 
        procedures of that House) at any time, in the same manner, and 
        to the same extent as any other rule of that House.

SEC. 7. DEFINITIONS.

    For purposes of this title:
            (1) Adverse finding.--The term ``adverse finding'' means--
                    (A) in a panel or Appellate Body proceeding 
                initiated against the United States, a finding by the 
                panel or the Appellate Body that any law or regulation 
                of, or application thereof by, the United States is 
                inconsistent with the obligations of the United States 
                under a Uruguay Round Agreement (or nullifies or 
                impairs benefits accruing to a WTO member under such an 
                Agreement); or
                    (B) in a panel or Appellate Body proceeding in 
                which the United States is a complaining party, any 
                finding by the panel or the Appellate Body that a 
                measure of the party complained against is not 
                inconsistent with that party's obligations under a 
                Uruguay Round Agreement (or does not nullify or impair 
                benefits accruing to the United States under such an 
                Agreement).
            (2) Affirmative report.--The term ``affirmative report'' 
        means a report described in section 4(b)(2) which contains 
        affirmative determinations made by the Commission under 
        paragraph (3) of section 4(a).
            (3) Appellate body.--The term ``Appellate Body'' means the 
        Appellate Body established by the Dispute Settlement Body 
        pursuant to Article 17.1 of the Dispute Settlement 
        Understanding.
            (4) Dispute settlement body.--The term ``Dispute Settlement 
        Body'' means the Dispute Settlement Body established pursuant 
        to the Dispute Settlement Understanding.
            (5) Dispute settlement panel; panel.--The terms ``dispute 
        settlement panel'' and ``panel'' mean a panel established 
        pursuant to Article 6 of the Dispute Settlement Understanding.
            (6) Dispute settlement understanding.--The term ``Dispute 
        Settlement Understanding'' means the Understanding on Rules and 
        Procedures Governing the Settlement of Disputes referred to in 
        section 101(d)(16) of the Uruguay Round Agreements Act.
            (7) Terms of reference.--The term ``terms of reference'' 
        has the meaning given such term in the Dispute Settlement 
        Understanding.
            (8) Trade representative.--The term ``Trade 
        Representative'' means the United States Trade Representative.
            (9) Uruguay round agreement.--The term ``Uruguay Round 
        Agreement'' means any of the Agreements described in section 
        101(d) of the Uruguay Round Agreements Act.
            (10) World trade organization; wto.--The terms ``World 
        Trade Organization'' and ``WTO'' mean the organization 
        established pursuant to the WTO Agreement.
            (11) WTO agreement.--The term ``WTO Agreement'' means the 
        Agreement Establishing the World Trade Organization entered 
        into on April 15, 1994.
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