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One of the main criticisms of the ECJ's GATT direct effect doctrine is that it is inconsistent with the Court's doctrine with regard to other international agreements. An analysis of the cases in which the ECJ has dealt with these other international agreements reveals that the Court has examined four principle elements when deciding whether such agreements are capable of having direct effect.[16] These elements are the following: 1) reciprocity in the initial balance of the obligations established by the agreement, 2) reciprocity in the ability to enforce the obligations established by the agreement, 3) the possibility of derogating from the obligations established by the agreement, and 4) the method of dispute settlement established by the agreement.
International Fruit Company and the confirming line of cases[17] show that the ECJ denied direct effect to the GATT 47 based upon a consideration of these same four elements. Critics of the Court's doctrine have argued that because the nature and structure of the GATT 47 did not differ appreciably from the other international agreements with respect to these four elements there was no justification for using them as a reason to deny direct effect to the GATT 47.[18] Kuilwijk attempts to strengthen this criticism by arguing that the existence of the new Uruguay Round Agreement on Safeguards, which limits the ability of the contracting parties to derogate from their GATT obligations, and the increasingly judicial nature of the Agreement on Dispute Settlement Understanding (DSU) mean there is even less of a reason for the Court to deny direct effect to the GATT today. Indeed, he claims that a continued denial of direct effect shows that "the provisions of GATT are instead treated as the `children of a lesser God', not worthy of the Court's attention."[19]
Although it is certainly true that the GATT 47 and the other international agreements were similar in many important ways, it may not be entirely correct to state that there were no reciprocity differences between them which justified different direct effect doctrines. While the other international agreements were designed to implement various stages of economic integration between the Community and its treaty partners, the GATT 47 was designed to create a mechanism for negotiating non-discriminatory and reciprocal tariff reductions among its contracting parties. Thus, the nature of the other international agreements may have been more conducive to direct effect than the GATT 47.
In Kupferberg, for example, the ECJ considered the Free Trade Area Agreement between the Community and Portugal which eliminated all tariffs and other barriers to trade between the two parties. In Pabst & Richarz and Sevince, the Court considered the Greek and Turkish Association Agreements, respectively, which created customs unions, a higher form of integration than a free trade area, between the parties. Finally, the Yaounde Convention considered by the ECJ in Bresciani provided for non-reciprocal duty free entry into the Community of goods from the ACP countries. These agreements, which established rights and obligations similar to those existing between the member states of the Community, all created higher forms of integration than the GATT 47.
The Community and its treaty partners in the other international agreements also had historical ties which did not exist between the contracting parties of the GATT 47. For example, at the time that the ECJ was considering the free trade area agreement in Kupferberg, Portugal had already applied for membership in the Community. In Pabst & Richarz, the ECJ made explicit references to the fact that the association agreement was intended to prepare Greece for entry into the Community. The ACP countries in the Yaounde Convention were by definition those which had historical ties to Community member states. Even Kuilwijk admits that these historical and potential future relationships between the Community and its treaty partners may have resulted in an "extra-territorial solidarity" or an "anticipated solidarity" which did not exist between the GATT 47 contracting parties.[20]
When dealing with the GATT 47, in contrast, the Court always described the agreement's purpose by referring to its preamble which stated that it was an agreement for "entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce."[21] Thus, the Court noted that the GATT 47 contracting parties only agreed to reduce tariffs and to eliminate discrimination between them and not to pursue economic integration. The GATT 47 did not anticipate the creation of a single market like that of the Community, but rather allowed the contracting parties to preserve a diversity of market structures as long as they did not unfairly differentiate between contracting parties. Because the GATT 47 did not attempt to integrate disparate legal and economic systems like the other international agreements did, it may not have required the enhanced enforcement and uniform application of its provisions that would have resulted from granting direct effect.
Finally, one must recognize that the practical position of the Community in the GATT 47 was different than its position in the other international agreements. The other international agreements involved countries which were in a much weaker bargaining position than the Community. Because these agreements allowed the parties to withdraw from the agreement if they so desired, the EC could use threats to do so, and the resulting loss of treaty benefits for the other party, as a means of forcing compliance with the agreement's obligations. Thus, the Community had a real ability to influence the policies of the other parties to these agreements even when these parties did not grant direct effect to the agreement.
In the GATT 47, however, the Community was not in as strong a position to influence the policies of the other contracting parties. The United States and Japan, the two other large contracting parties, had an equal amount of bargaining power as the Community. The Community also could not threaten to withdraw from the system if it felt its rights were not sufficiently respected because such a threat lacked credibility. Thus, the Community was limited to working within the GATT 47 system in a way that it was not in the other international agreements. In this case, it may have been appropriate for the Court to insist upon explicit reciprocity from the other contracting parties before granting direct effect to the GATT 47.[22]
The reasons for being cautious about drawing comparisons between the direct effect granted to the other international agreements and direct effect for the GATT 47 apply to the new GATT as well. The GATT 47 preamble, which is still the preamble to the GATT today, conveys the message that the GATT system is designed merely to provide a forum for engaging in multilateral negotiations directed at trade liberalization. And while it is true that the GATT system has produced some agreements requiring harmonization, most noticeably the Uruguay Round Agreements on Antidumping, Subsidies, and Trade Related Aspects of Intellectual Property (TRIPS), it is also true that those agreements require national law provisions protecting individual rights.[23]
It certainly is true that these agreements could be cited as support for the argument that the ECJ should grant a form of conditional direct effect to the GATT whereby direct effect in any specific case would depend on whether the other countries involved had also agreed to grant direct effect. However, as will be argued in Section 3.1 below, granting even conditional direct effect might deprive the Community of rights which it possesses under the GATT. Thus, there are still substantial differences between reciprocity in the GATT and the other international agreements which show that the Court may not be deliberately treating the GATT as the child of a lesser God but merely as a different species of international agreement.[24]
The ECJ always noted the flexibility of the GATT 47 Article XIX safeguard clauses, which allowed contracting parties to suspend GATT concessions in response to increased imports that "cause or threaten serious injury to domestic producers," among its reasons for denying direct effect.[25] Critics have claimed that the Court acted inconsistently in its analysis of the GATT 47 because it was not bothered by similar safeguard clauses when granting direct effect to other international agreements.[26]
Kuilwijk goes further than the Court's other critics in arguing that the ECJ's treatment of the GATT 47 safeguard clauses "mistakes GATT law for GATT practice."[27] He contends that the safeguard clauses were never really flexible and led the contracting parties to adopt grey area trade measures such as voluntary export restraints (VER's) and orderly marketing agreements (OMA's). He claims that this was a constitutional defect of the GATT 47 which could have been corrected by giving direct effect to the agreement. Given the new Agreement on Safeguards, he concludes that there is no longer any excuse for denying direct effect for the GATT because it now "explicitly prohibits grey area trade restrictions and forms a true example of the new firm commitment to adherence to the law, subscribed to by the Community."[28]
While the ECJ's critics certainly do have valid criticisms, once again the issue is not nearly as one-sided as presented. For example, an examination of the cases in which the ECJ considered other international agreements shows that the safeguard clauses in those agreements differed significantly from those found in the GATT 47 and in the new GATT. In Kupferberg, for instance, the Court stated that the safeguard clauses in the Portugal Free Trade Agreement applied "only in specific circumstances and as a general rule after consideration within the joint committee in the presence of both parties."[29] In Sevince, the Court agreed with Advocate General Darmon's claim that the safeguards in the Turkish Association Agreement could be invoked only in cases where there was a threat of "disturbances on [the] employment market which might seriously jeopardise the standard of living or level of employment in a particular region, branch of activity or occupation."[30] Therefore, the Court appeared to attach importance not only to the fact that the safeguards in the other international agreements were applicable only after political consultation with the other treaty party but also that they could be used in specific circumstances.
Neither of these limitations was found in the GATT 47 nor is found in the GATT today. Article XIX of the GATT 47 only required notification of contracting parties which would be affected by safeguard measures prior to their implementation in order to afford those parties an opportunity to ask for consultation over compensation. Articles 12 and 13 of the new Safeguards Agreement do now require notification of the GATT Committee on Safeguards when initiating an investigation, making a finding of injury, or imposing a safeguard measure. However, nothing in the GATT allows the GATT members or the Committee on Safeguards to prevent the implementation of a safeguard measure by another member.[31] Thus, it appears that GATT safeguards can be used without the same level of prior consultation as required by the other international agreements.
GATT 47 Article XIX also required a threat of, or the existence of, "serious injury" before a contracting party could impose a safeguard measure. However, this determination was left to the discretion of the government imposing the safeguard measure itself.[32] The new Safeguards Agreement Article 2 does now require a member to conduct an open investigation to prove the existence of injury. Article 3, however, still leaves the determination of "serious injury" up to the competent authorities of the GATT member imposing the safeguard. Thus, GATT members can use safeguard measures to remedy a broader range of injuries and have a larger amount of discretion in determining the need for safeguard measures than in the other international agreements. Given these differences, it may not be entirely fair to the Court to claim that its treatment of the GATT safeguards is inconsistent.[33]
Because the ECJ could always grant direct effect to the GATT while at the same time holding that the Community had properly invoked a safeguard clause, one must move beyond the doctrinal question of the ECJ's case law consistency to consider whether the political economy of the GATT safeguard regime really demands direct effect. It is correct to state that, prior to the new Safeguards Agreement, the flaw in the GATT 47 safeguard regime was not that it was too flexible but rather that it was not flexible enough. Contracting parties which did not want to pay compensation for, did not want to meet the non-discrimination requirement of, and did not want to conduct an investigation to justify a safeguard measure often adopted grey area trade measures such as VER's and OMA's to remedy the injuries caused by increasing imports.[34] These measures effectively imposed quota systems on international trade and thus were more economically harmful than tariffs. It is not clear, however, how direct effect could have prevented the use of these measures which were effectively sanctioned under the GATT 47.[35]
The new Agreement on Safeguards does represent a real step forward for the GATT in that it brings grey area trade measures such as VER's and OMA's within the discipline of the GATT and effectively bans them with only a few exceptions. The fact that these measures have been reigned in, however, does not automatically mean that direct effect is now necessary to enforce compliance. In fact, one could say that the adoption of the new safeguards regime indicates that once the GATT contracting parties recognize that there is a problem with the GATT structure and muster the political consensus to address the problem, they will act to do so.[36] In this case, it may not be appropriate for the ECJ to grant direct effect to the GATT and force the Community to adopt unilateral positions before a world political consensus exists. And as will be shown in Section 3.1 below, granting direct effect to the GATT may also deprive the Community of its GATT rights. Thus, one must be very careful indeed not to confuse GATT law with GATT practice.
The dispute settlement mechanism of the GATT 47 was heavily criticized because it did not require rule based adjudication to resolve disputes and effectively allowed the contracting parties to engage in power oriented diplomacy.[37] Despite this, however, the critics of the ECJ's direct effect doctrine claimed that because the GATT 47 dispute settlement mechanism did not differ appreciably from those found in the other international agreements to which the Court had granted direct effect, it should not have been used as a justification for denying direct effect.[38]
While the GATT 47 dispute settlement mechanism was rightly criticized for being weak, there still may have been an important distinction between the GATT 47 and the other international agreements which justified the ECJ's determination that it was part of the reason for different direct effect doctrines. The GATT 47 was an agreement designed to establish a system of multilateral rounds of reciprocal trade negotiations across multiple sectors. Thus, the GATT 47 effectively created a continuing relationship of negotiations between the contracting parties designed to propel the process of trade liberalization and resolve lingering disputes by means of cross-sectoral bargaining.
This was not the case with the other international agreements. These agreements created static systems that resulted from one time negotiations over the rights and obligations of the parties. Thus, direct effect may not have been appropriate for the GATT 47 because it would have effectively allowed an individual to interfere with a process of ongoing negotiations between the contracting parties. That is, direct effect might have prevented contracting parties from blocking panel reports which settled disputes in ways with which they disagreed and hoped to modify through negotiation. While one may not approve of blocking panel reports in order to force negotiations to resolve policy differences, it cannot be denied that this was a significant right which each contracting party possessed under the GATT 47.
The Uruguay Round Agreement on Dispute Settlement Understanding (DSU) significantly strengthened the GATT 47 dispute settlement mechanism. The DSU did so by providing deadlines for all procedures, by creating an Appeals Body, and, most importantly, by reversing the consensus-to-adopt-panel-reports approach of the GATT 47 to a consensus-to-block-panel-reports approach.[39] Given the changes introduced by the DSU, Kuilwijk argues that the dispute settlement mechanism can no longer be characterized as flexible. He concludes that because "the dispute settlement system matured and now closely resembles an actual judicial system [with a] firm commitment to legalism" it should no longer be used by the ECJ as a justification for denying direct effect to the GATT.[40]
One must carefully examine the actual operation of dispute settlement under the GATT, however, before concluding that the changes introduced by the DSU mean that direct effect is now appropriate. Dispute settlement systems do not fall into one of two polar categories, i.e. hard legal or soft political systems, but rather lie along a continuum between the two. Although the DSU has shifted the GATT system towards the legal pole, it is not yet clear where it falls on the continuum. While it certainly has made GATT dispute settlement more legalistic, the DSU does not appear to have replaced all intergovernmental negotiation with strict precedent based application of GATT law.[41] Thus, it may be premature to state, as Kuilwijk does, that the GATT should be given direct effect because the DSU is now a true judicial system.
In fact, the language of the DSU shows that negotiation still plays a large role in the panel procedure. For example, DSU Article 3(3)'s call for the "prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired" indicates that the adoption of panel reports is not the only means of resolving a dispute. DSU Article 4 requires consultations between the disputants before one may request the establishment of a panel to hear the dispute and Article 5 offers the use of good offices, conciliation, and mediation as an alternative means of resolving disputes.
DSU Article 12(7) provides that "where the parties to the dispute have failed to develop a mutually satisfactory solution, the panel shall submit its findings in the form of a written report to the DSB." This implies that negotiations between the disputants may take place on a parallel track with a panel procedure. After the issuance of a panel report, DSU Article 16(1) provides for a 20 day waiting period before the report can be considered for adoption by the DSB. This provides the disputing parties with another opportunity to settle their dispute by negotiated agreement. Finally, even after a panel report has been appealed and the Appeals Body has issued an appellate report, there is still a 30 day waiting period before that report can be adopted by the DSB. This again provides time for the disputing parties to negotiate a settlement of their dispute without the adoption of a panel report.
One should also realize that the DSU procedures are not the only means of settling disputes within the GATT. It has been noted that there are over thirty different ways to resolve disputes within the GATT.[42] Many GATT provisions, such as Article VII:1 which requires a GATT member to review the way it values goods for customs purposes when requested to do so by another member, call for consultations between the GATT members. Other GATT provisions are framed to avoid disputes in the first place, such as Article XXV:5 which allows a GATT member to seek a waiver from its GATT obligations upon approval of the other GATT members. Thus, one should be careful not to focus solely on the DSU when considering the nature of GATT dispute settlement.
The current dispute over the U.S. Helms-Burton Act illustrates some aspects of GATT dispute settlement that may caution against automatically assuming that direct effect is now appropriate for the GATT. After this act took effect on March 12, 1996, pressure from the Community and Canada forced President Clinton to delay enforcement of its provisions which granted U.S. nationals a private right of action against foreign companies that "traffic" in property confiscated by the Cuban government from U.S. nationals.[43] When negotiations to resolve the dispute broke down on October 16, 1996, the Community filed a WTO complaint against the U.S. claiming that the act violated both the MFN principle and the prohibition against quantitative restrictions. The U.S. argued in defense that the act qualified for the GATT Article XXI national security exemption from GATT violations. Although negotiations between the two sides continued, no compromise was reached by the time a panel was formed. At that time, the U.S. stated it would boycott any panel because it did not "believe anything the WTO says or does can force the U.S. to change its laws."[44]
The U.S. stance, which quickly prompted a renewed effort to reach a compromise, illustrates the strengths and limitations of the DSU. Both the U.S. and the Community realized that a panel resolution of the dispute was a "lose-lose" proposition. That is, a ruling for the U.S. would threaten the WTO by encouraging other countries to defend questionable trade-related policies under the GATT's national security exemption while a ruling for the Community would slow momentum for further trade liberalization by weakening domestic political support in the U.S. for the GATT.[45] This merely intensified the pressure for a political settlement of the dispute.[46] Thus, the DSU may actually encourage, rather than inhibit, the use of political negotiation to resolve disputes in cases where there is not strong support for the adoption of panel report to settle the dispute.
In fact, negotiations eventually did lead the Community to suspend its WTO complaint for six months on April 11, 1997 and again on October 15, 1997. The Community agreed to do so in order to allow the Clinton administration time to seek a Congressional change to the Helms-Burton Act. The Community, however, reserved its right to revive the complaint if no satisfactory result was achieved. Stuart Eizenstat, the U.S. Under Secretary of Commerce and chief U.S. negotiator, has stated that "this understanding represents a beginning and not an end. There is absolutely no certainty we will reach an agreement...There is going to be hard bargaining ahead."[47] As of the time of this writing the resolution of this dispute is still uncertain.
This dispute shows that a shift towards a more rule based adjudication of disputes requires a change in the attitude of the GATT member governments not just a change in the DSU.[48] A more legalistic DSU does not change the fact that dispute settlement in the GATT still may involve political negotiations between GATT members.[49] Where the GATT system has well defined rules and disputes are narrowly focused, the DSU will indeed work well. However, when there is no consensus on either the substance or the application of the rules, the more legalistic DSU may not be able to save GATT dispute settlement from political negotiation.[50] Thus, one should carefully consider the actual operation of the DSU before claiming that GATT dispute settlement would benefit from the existence of direct effect.
[16] In his study, Kuilwijk examines the following five cases: Case 87/75, Conceria Daniele Bresciani v. Amministrazione Italiana delle Finanze, 1976 E.C.R. 129, Kupferberg, supra note 3, Case 17/81, Pabst & Richarz KG v. Hauptzollant Oldenburg, 1982 E.C.R. 1331, Case C-192/89, SZ Sevince v. Staatssecretaris Van Justitie, 1990 I E.C.R. 3461, and Case C-18/90, Office national de l'emploi (Onem) v. Bahia Kziber, 1991 I E.C.R. 199. His analysis relies most heavily on Kupferberg and Sevince.
[17] Case 9/73, Carl Schluter v. Hauptzollamt Lorrach, 1973 E.C.R. 1135, Case 126/78, Douaneagent der NV Nederlandse Spoorwegen v. Inspecteur der invoerrechten en accijnzen, 1975 E.C.R. 1439, Case 266/81, Societa Italiana per l'Oleodotto Transalpino (SIOT) v. Ministero delle Finanze and others, 1983 E.C.R. 731, Joined cases 267-269/81, Amministrazione delle Finanze dello Stato v. Societa Petrolifera Italiane SpA (SPI) and SpA Michelin Italiana (SAMI), 1983 E.C.R. 801, Joined cases 290-291/81, Compagnia Singer SpA and Geigy SpA v. Amministrazione delle Finanze dello Stato, 1984 E.C.R. 847, FEDIOL III, supra note 3, Nakajima, supra note 9, NMB (Deutschland) GmbH and others v. EC Commission and another, 1992 I E.C.R. 1689, and Germany v. Council, supra note 6.
[18] See, e.g., Maresceau, "The GATT in the Case-Law of the European Court of Justice," The European Community and GATT, Eds. Meinhard Hilf, Francis G. Jacobs, and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1986, and, Pescatore, "The GATT Dispute Settlement Mechanism: Its Present Situation and its Prospects," 27 Journal of World Trade 5 (No. 1), 1993.
[19] Kuilwijk, supra note 2, at 343.
[20] Although Kuilwijk does recognize that these relationships may distinguish the reciprocity in the other international agreements from that found in the GATT, he contends that Kupferberg "seems to indicate that the Court does not attach too much importance to the different `reciprocity' aspects of the legal nature of an international agreement when considering its capacity to produce direct effect." Kuilwijk, supra note 2, at 121.
[21] See, e.g., International Fruit Company, supra note 3, at 1227, Schluter, supra note 17, at 1157, and Germany v. Council, supra note 6, at 5072.
[22] Lee and Kennedy, supra note 11, at 83.
[23] See, e.g., the Uruguay Round Agreements on Antidumping Article 13, on Subsidies Article 23, and TRIPS Article 41.
[24] It should be noted that Switzerland led an initiative halfway through the Uruguay Round to require each GATT member to give the GATT direct effect, or some equivalent status, in their national law. As Kuijper, supra note 11, at 65, notes this "would have assured equality between the parties in respect of `internal enforcement' of the GATT." The fact that this was not included in the final Uruguay Round Agreement seems to indicate, however, that the GATT members as a whole still do not desire direct effect for the GATT.
[25] See, e.g., International Fruit Company, supra note 3, at 1227.
[26] See, e.g., Petersmann (1991), supra note 11, at 86-92, for a general critique of this part of the ECJ's jurisprudence.
[27] Kuilwijk, supra note 2, at 342.
[28] Id. It should be noted that GATT 47 Article XIX remains in force alongside the Agreement on Safeguards subject to the condition that the Agreement on Safeguards controls in the case of any conflict.
[29] Kupferberg, supra note 3, at 3664.
[30] Sevince, supra note 16, at 3486.
[31] Safeguards Agreement Article 13 does provide that the Committee on Safeguards will monitor the use of safeguard measures and can review the equivalence between the effects of any safeguard measure and the compensation offered. However, the Committee's findings have no legal status in the GATT. Thus, these requirements do not seem to be as strong as those found in Kupferberg where a safeguard measure could not generally be imposed unless approved by the Joint Committee.
[32] GATT 47 panel reports indicated that deference was to be given to a contracting party's determination that a safeguard measure was necessary. See, e.g., the 1951 Hatters' Fur Case, Sales No. GATT 1951-3 (Nov. 1951), in which U.S. safeguards applied against imports of Czechoslovakian hatter's fur were upheld.
[33] In fact, Advocate General Darmon in Sevince directly contrasted the safeguards in the Turkish Association Agreement with those in the GATT 47. He noted "in the first place, that their overall context is more restrictive than that of GATT and, secondly, that they are expressly defined as exceptions to the rule that the provisions in question are to be automatically applied, whereas those of GATT, which appear to be in harmony with the generally `flexible' overall system of which they form part, could hardly be classified as exceptions to a rule of automatic application which, in fact, does not form part of that system." Therefore, he seemed to acknowledge that the safeguards in the GATT 47 might be sufficiently enough more flexible than those in the other international agreements to justify the denial of direct effect to the GATT. Sevince, supra note 16, at 3488.
[34] For example, in the 1980's both the U.S. and the Community negotiated VER's with Japan to limit auto imports from Japan. Presumably, both the U.S. and the Community could have invoked the GATT safeguard clauses but as noted this would have required an investigation to prove that their domestic auto industries were being harmed by the Japanese imports and would have required them to compensate Japan and any other contracting party for the injury caused by any safeguard measures imposed.
[35] Kuilwijk does provide a useful insight when he states that "safeguard clauses in international agreements on trade liberalization always represent a link between two conflicting objectives; first, respect by governments for their commitments regarding trade liberalization, and, second, their concern to keep a margin of manoeuvre thus enabling them to protect the domestic market through the imposition of restrictive measures when necessary." Kuilwijk, supra note 2, at 136. However, the fact that the GATT 47 allowed safeguard measures may indicate that the contracting parties were not able to jointly resolve this conflict.
[36] See, van Themaat, "The Possibilities for National Measures of Implementation to Strengthen the Legal Quality of International Rules on Foreign Trade," Foreign Trade in the Present and a New International Economic Order, Eds. Detlev Chr. Dicke and Ernst-Ulrich Petersmann, Fribourg, Switzerland: University Press, 1988, at 45-46, for an analysis of why it is more politically realistic to undertake efforts to reduce national government discretion on an international rather than a national level.
[37] Of the 195 disputes brought to the attention of the contracting parties under GATT 47 Article XXIII between 1948 and March 1995, only 98 resulted in the circulation of panel reports and only 81 of these panel reports were actually adopted. Komuro, supra note 11.
[38] See, Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System, Salem, New Hampshire: Butterworth Legal Publishers, 1993, for a detailed description of the operation of the GATT 47 dispute settlement. See, Jackson, "The Legal Meaning of a GATT Dispute Settlement Report: Some Reflections," Towards More Effective Supervision by International Organizations, Eds. Niels Blokker and Sam Muller, Dordrecht, The Netherlands Martinus Nijhoff Publishers, 1994, for general criticisms of the GATT 47 dispute settlement. See, van Themaat, "Strengthening the International Legal Framework of the GATT-MTN System: Reform Proposals for the New GATT Round: A Comment," The New GATT Round of Multilateral Trade Negotiations, Eds. Meinhard Hilf and Ernst-Ulrich Petersmann, Deventer, The Netherlands: Kluwer, 1991, for an argument that direct effect for the GATT should await the establishment of an international trade court.
[39] See, Komuro, supra note 11, for a detailed description of the procedures of the DSU.
[40] Kuilwijk, supra note 2, at 342.
[41] See, e.g., Lee and Kennedy, supra note 11, at 81, for an analysis of the first dispute to come under the DSU, a dispute between the U.S. and Japan over cars and car parts. They conclude that the resolution of this dispute by means of a negotiated agreement between the countries, "seems to suggest that, far from becoming a strictly legal device, the dispute resolution system retains its flexible nature and that negotiation, rather than formal, legal complaint, will remain the most common form of conflict resolution."
[42] Trebilcock and Howse, THE REGULATION OF INTERNATIONAL TRADE (1995), at 386.
[43] President Clinton did not suspend the provisions which deny visas to executives and major shareholders of companies which "traffic" in property confiscated by the Cuban government from U.S. nationals.
[44] Sanger, U.S. Won't Offer Trade Testimony on Cuba Embargo, N.Y. TIMES, Feb. 21, 1997, Section A, at 1.
[45] Lawrence, A Cuban Dilemma: Competing Pressures from Home, Abroad Confront Clinton as He Nears Deadline on Helms-Burton, JOURNAL OF COMMERCE, Jan. 6, 1997, at 32C.
[46] After the U.S. announcement, Sir Leon Brittan, the Community's top foreign trade official, stated that the WTO "panel procedure can be halted at any time if the parties reach agreement." WTO chairman Renato Ruggiero also stated that he hoped "the two sides can find a solution to the problem...[and] deal with the dispute settlement procedure in a way which will facilitate agreement by the two sides." Lawrence, U.S. Will Snub WTO Panel on Anti-Cuba Law, JOURNAL OF COMMERCE, Feb. 21, 1997, at 1A.
[47] de Jonquierres and Dunne, Helms-Burton Antagonists Keep Fingers Crossed, FINANCIAL TIMES, April 14, 1997, at 6. While President Clinton agreed to continue to delay enforcement of the provision allowing suits against foreign companies which traffic in seized property, there was no movement on the provision allowing the U.S. to block the entry of officers and shareholders of companies which traffic in such confiscated property. President Clinton stated that he will ask Congress to repeal this measure if the Community concludes and implements a bilateral agreement to constrain the ability of companies to invest in illegally expropriated foreign assets in the future.
[48] See, e.g., Hudec, supra note 38, at 363.
[49] As of May 9, 1997, of the 24 cases brought by the U.S. to the new DSU, 4 had been decided by panels in favor of the U.S., 5 had been settled, 7 were still under consideration by panels, and 8 were in the early stages of negotiation. Of the 10 cases brought against the U.S., 3 had been withdrawn, 3 had been decided by panels against the U.S., 1 had been settled, 1 was still under consideration by a panel, and 2 were in the early stages of negotiations. Sanger, Clinton Grants, Then Suspends, Right to Sue Foreigners, N.Y. TIMES, May 9, 1997, Section A, at 1.
[50] See, Trebilcock and Howse, supra note 42, at 392.
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