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The United States and the Issue of the Binding or Voluntary Nature of International Codes of Conduct Regarding Restrictive Business Practices

Published online by Cambridge University Press:  27 February 2017

Joel Davidow  and
Lisa Chiles
Joel Davidow
Affiliation:
Antitrust Division, U.S. Department of Justice
Lisa Chiles
Affiliation:
Policy Planning Office, Antitrust Division, U.S. Department of Justice
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Extract

The current administration has announced that one of the foreign policy objectives of the United States is to improve relations with developing countries by being more responsive to their concerns. The former administration was also moving in the same direction, as demonstrated by the Kissinger proposals to the seventh special session of the United Nations in 1975 and by U.S. agreement to the extensive plan of action called for by a final omnibus resolution of the United Nations Conference for Trade and Development (UNCTAD) in Nairobi in May 1976.

Type
Research Article
Information
American Journal of International Law , Volume 72 , Issue 2 , April 1978 , pp. 247 - 271
Copyright
Copyright © American Society of International Law 1978

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References

1 See Statement of Secretary of State Cyrus Vance of May 30, 1977 before the Conference on International Economic Cooperation and Development. 76 Dept. State Bull. 645 (1977).

2 Address written by Secretary of State Henry Kissinger and delivered by Ambassador Daniel P. Moynihan before the the seventh special session of the UN General Assembly, devoted to problems of development and economic cooperation, on September 1, 1975. 73 Dept. State Bull. 425, 432 (1975).

3 The proposal, unanimously adopted by the delegates, called, inter alia, for continued work toward a Code of Conduct for the Transfer of Technology and formulation of principles and rules for the control of restrictive business practices. UNCTAD Res. 93(IV), May 31, 1977. N.Y. Times, May 31, 1976, at 1, col. 4.

4 On May 1, 1974, the UN General Assembly adopted without vote the Declaration and Programme of Action on the Establishment of a New International Economic Order. GA Res. 3201 & 3202, S-7 GAOR, Supp. (No. 1) 3, 5, UN Doc A/9559 (1974),. 68 AJIL 798 (1974), 13 ILM 714 (1974). For the reservations of the United States, see 70 DEPT. STATE BULL. 569-72 (1974). This was followed by the Charter of Economic Rights and Duties of States, adopted on December 12, 1974, over the objections of the United States and five other developed nations; ten other nations abstained. GA Res. 3281, 29 GAOR, Supp. (No. 30) 50, UN Doc. 9631 (1974), 69 AJIL 484 (1975), 14 ILM 252 (1975).

5 Secretary of State Cyrus Vance emphasized, in the statement cited above, that the policy of the United States is that “[t]here should be a new international economic system….We are prepared to help build that new system.” Supra note 1, at 645. See also Statement by Andrew Young, U.S. Ambassador to the United Nations, made on July 8, 1977 before ECOSOC, “Framework for a Dynaamic North-South dialogue,” 77 Dept. State Bull. 383 (1977).

6 UN parlance has gradually shifted from the term “multinational corporations (MNC's)” to “multinational enterprises (MNE's)” to “transnational enterprises (TNE's).” The motives for the changes include a desire to encompass more types of business entities within a single term. In this article the terms (and abbreviations) will be used interchangeably.

7 See, e.g., UNCTAD, Report of the Second Ad Hoc Group of Experts on Restrictive Business Practices, UN Doc. TD/B/600 (1976); CTNC, Report of the Intergovernmental Working Group on the Code of Conduct, UN Doc. E/C.10/31, at 7 (1977); UNCTAD005E Report of the Intergovernmental Group of Experts on a Code of Conduct on the Transfer of Technology, UN Doc. TD/B/C.6/1, at 26 (1975).

8 See, e.g., testimony that U.S. interests may be damaged by action of multinationals abroad in Hearings on Multinational Corporations before the Subcomm. on Multinational Corporations of the Senate Comm. on Foreign Relations, 93d Cong., 1st & 2nd Sess. (1973-1974).

9 See, e.g., Rostow, , Nye, , & Ball, , The Need for International Arrangements, in Global Companies: The Political Economy of World Business 156 (Ball, G., ed. 1975)Google Scholar;

10 The European Parliament, however, has called for legally binding codes covering the activities of TNE's, but Commission lawyers anticipate that the rules may be binding for intracommunity application but voluntary in relationships with other countries. [1977] Comm. Mkt. Rep., No. 433, pt. 1, at 1, 2. Another important exception is the position taken by the United States to an international agreement dealing with corrupt practices. Senate Resolution 265 of November 12, 1975, urged the Executive Rranch to negotiate for an international agreement with sanctions to eliminate distortions of trade resulting from unfair competition by bribery and other corrupt practices. S. Res. 265, 94th Cong., 1st Sess., 121 Cong. Rec. S19812 (daily ed. 1975). During the ECOSOC meeting in Lima in February 1976, the United States proposed that such a treaty should be negotiated. The proposal led ECOSOC to establish an Ad Hoc Intergovernmental Working Group on Corrupt Practices to prepare an international agreement. ECOSOC Res. 2041, 61 ECSOR, Supp. (No. 2) 17, UN Doc. E/5908 (1976).

11 This view is apparently not supported by the Socialist countries of Eastern Europe which have participated in the transfer of technology negotiations. The Outline of a Draft Code for the Transfer of Technology which they have proposed does not indicate what the legal nature of the code should be. UN Doc. TD/AC.1/7, Annex IV (1977). written that the A leading delegate for the Group, however, has code should provide “flexible guidelines.” Soltysinksi, , Patent and Know-How Licenses in Polish Law: The Domestic and International Perspective, 8 Int. Rev. of Industrial Property and Copyright L. 228, 249 (1977)Google Scholar. Doc. TD/AC.1/7, Annex III, at 1 (1977).

12 UN Doc. TD/AC. 1/4, at 2 (1976).

13 The U.S. delegate to ECOSOC recently urged that the prohibiting of illicit practices should not be held up pending the completion of a general code of conduct for TNE's, but should go forward as soon as possible. [1977] Int. Trade Exporter (BNA) C-2 (No. 168).

14 International Chamber of Commerce, Guidelines for International Investment (1972).

15 There are other voluntary guidelines and rules by nongovernmental groups and organizations, such as the ICC Guidelines for International Investment; ICC Incoterms; International Rules for the Interpretation of Trade Terms; ICC Rules of Conciliation and Arbitration; and the York-Antwerp Rules adopted by the International Maritime Committee and the International Law Association. The International Confederation of Free Trade Unions also adopted at its Congress in Mexico in 1975 a Charter of Trade Union Demands for the Legislative Control of Multinational Companies.the interests of nongovernmental groups m the development of codes of conduct, seUN Doc. E/C.10/20 (1976).

16 The OECD is generally considered to be representative of most of the developed countries of the world.

17 OECD, “Guidelines for Multinational Enterprises,” Declaration on International Investment and Multinational Enterprises (1976), reprinted in 15 ILM 297 (1976), 75 Dept. State Bull. 83 (1976) [hereinafter, OECD Declaration]. Other regional organizations working to develop a code of conduct include the nonaligned countries; UN Doc. E/C.10/9/ Add. 1, at 12 (1976); the Organization of American States, Permanent Council Res. 154 (167/75), Corr. 1 (1975); and the parliamentarians of the United States and t he European Economic Community (EEC), who are working on a draft code of principles to be observed by enterprises and governments in international economic activity. 435 European Rep. 1 (July 16, 1977).

18 ECOSOC Res. 1721, 53 ESCOR, Supp. (No. 1), 3, UN Doc. E/5209 (1972) had requested the UN Secretary-General to establish the Group of Eminent Persons to study transnational enterprises.

19 UN Doc. E/5500/Rev.l, ST/ESA/6 (1974). See generally Coonrod, , The United Nations Code of Conduct for Transnational Corporations, 18 Harv. Int. L. J. 273 (1977)Google Scholar.

20 Supra note 19, at 55.

21 ECOSOC Res. 1913, 57 ESCOR, Supp. (No. 1A) 31, UN Doc. E/5570/Add.l (1975).

22 ECOSOC Res. 1908, 57 ESCOR, Supp. (No. 1) 13, UN Doc. E/5570 (1974).

23 59 ESCOR, Supp. (No. 12), UN Docs. E/5655, E./C.10/6, at para. 9 (1975). See Rubin, , Reflections Concerning the United Nations Commission on Transnational Corporations, 70 AJIL 73, 87 (1976)CrossRefGoogle Scholar.

24 61 ESCOR Supp. (No. 5) at paras. 10-17, UN Doc. E/C.10/16 (1977).

25 UN Doc. E/C. 10/31, at para. 16 (1977).

26 Id., at para. 13.

27 UNCTAD was established in 1964 to deal primarily with the economic problems of the developing countries in their relations with the more developed parts of the world. GA Res. 1785, 17 GAOR, Supp. (No. 17) 14, UN Doc. A/5217 (1962); GA Res. 1995, 19 GAOR, Supp. (No. 15) 1, UN Doc. A/5815 (1964).

28 UN Doc. TD/B/600, at para. 1 (1976).

29 Id., at para. 38.

30 Id., at para. 40.

31 UN Doc. TD/B/C.2/AC.6/2, at para. 15 (1976).

32 UN Doc. TD/B/C.6/14 (1976). Both the industrialized nations and the developing countries have offered drafts of the code. The clraft originally proposed by the Group of 77 included a list of 40 restrictive business practices which they thought should be avoided or made unenforceable in international dealings, while the draft of the developed countries contained eight principles. So of 14far a composite text practices has been formulated, although much controversy still surrounds the proposed principles. See generally, Jeffries, , Regulation of Transfer of Technology, An Evaluation of the UNCTAD Code of Conduct, 18 Harv. Int. L. J. 309 (1977)Google Scholar.

33 UN Doc. TD/AC.1/4, at para. 11 (1976).

34 Id., at para. 12.

35 Id., at para. 15.

36 UN Doc. E/C.10/31, at 11 (1977).

37 See the definition of “treaty” in Art. 2, para. 1(a) of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UN Doc. A/CONF.39/27 (1969), 63 AJIL 875 (1969).

38 The European Convention for the Protection of Human Rights and Fundamental Freedoms established a procedure which permits an individual to complain to the European Commission even against his own government. 213 UNTS 221, ECHR, Docs, AND DECS. 1955, 1956, 1957, at 4 (1969).

39 See statement by Secretary of State Kissinger, supra note 2, at 425, 433.

40 UN Doc. E/C.10/6, at paras. 41-59 (1975).

41 ” U N Doc. E/C.10/SR.19, at 2 (1976).

42 ” U N Doc. TD/B/600, at para. 73(c) (1976); see also UN Doc. TD/B/C.6/14 (1976).

43 Doc. TD/AC.1/7, Annex III, at 1 (1977).

44 Id., at 18.

45 See Schachter, , The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977)CrossRefGoogle Scholar.

46 Id., at 303.

47 The existence of a voluntary code such as the OECD code of conduct may eventually make it difficult for a noncomplying TNE to obtain diplomatic protection, insurance for its operations, and financing through international institutions. Plaine, , The OECD Guidelines for Multinational Enterprises, 11 Int. Lawyer 339, 343-45 (1977)Google Scholar.

48 The most frequently cited support for this proposition is the North Sea Continental Shelf cases, Judgment of Feb. 20, 1969, [1969] ICJ Rep. 3; digested in 63 AJIL 591 (1969). On this subject, see Baxter, , Treaties and Custom, 129 Rec. Des Cours 25, 57-64 (1970-1)Google Scholar.

49 I. Brownlie, Principles of Public International Law 10 (2d. ed. 1973).

50 See Anglo-Norwegian Fisheries Case, [1951] ICJ REP. 116.

51 Compare Haight, , The New International Economic Order and the Charter of Economic Rights and Duties of States, 9 Int. Lawyer 591, 597 (1975)Google Scholar (“General Assembly Resolutions do not in any way have the force of law“) with Falk, , On the Quasi-Legislative Competence of the General Assembly, 60 AJIL 782 (1966)CrossRefGoogle Scholar (Professor Falk argues that certain General Assembly resolutions can be said to express a consensus of the world community, and as a result, may functionally operate as law, even though they are not formally binding). See also Sohn, , Voting Procedures in United Nations Conferences for the Codification of International Law, 69 AJIL 310 (1975)CrossRefGoogle Scholar.

52 This point has been raised in connection with pressures by the developing countries for quick passage of a Charter of Economic Rights and Duties in the General Assembly, which was not a legally binding document, but which could be construed by those states rejecting traditional international law as a new standard of international law or as a device to pressure future international lawmaking. Brower, & Tepe, , The Charter of Economic Rights and Duties of States: A Reflection or Rejection of International Law? 9 Int. Lawyer 295, 302 (1975)Google Scholar.

53 The transnational enterprise has created a number of difficulties for the domestic legal systems of both developed and developing countries. See Vagts, , The Multinational Enterprises: A New Challenge for Transnational Law, 83 Harv. L. Rev. 639 (1970)Google Scholar; UN Doc. TD/B/600, at para. 7 (1976).

54 See generally, Vernon, , Storm, Over the Multinationals, 55 Foreign Affairs 243 (1977)CrossRefGoogle Scholar.

55 But see Rubin, , The Multinational Enterprise at Bay, 68 AJIL 475, 476-77 (1974)Google Scholar.

56 See UN Doc. E/C.10/6, at paras. 41-50 (1975).

57 “UN Doc. TD/B/C.2/181, Annex I (1977).

58 UN Doc. TD/AC.1/7, Annex II, at 1 (1977).

59 Id., at 12. This exception clause suggests that developing countries may be seeking to increase their bargaining strength vis-0061-vis TNE's not so much by strict rules in codes as by passing such codes and then gaining leverage based on their ability to grant exceptions.

60 Treaty Establishing the European Economic Community, done Mar. 5, 1957, 298 UNTS 3, 51 AJIL 865 (1957). See E. Stein, P. Hay, & M. Waelbroeck, European Community Law and Institutions in Perspective 17-29 (1976).

61 Each member state has incorporated the Treaty of Rome into its national legal order, but the European Court of Justice has removed from the states the power to determine the extent of their commitments under the treaty. See, e.g., Costa v. Enel, [1964] Comm. Mkt. L. R. 425.

62 See Wilhem v. Bundeskartellamt, [1969] Comm. Mkt. L. R. 100; Amsterdam Bulb B.V. v. Producktshap Voor Siergewassen, [1977] Comm. Mkt. L. R. 218. See generally Markert, , Some Legal and Administrative Problems of the Co-existence of Community and National Competition Law in the E.E.C., 11 Comm. Mkt. Rev. 92 (1974)Google Scholar.

63 See Declaration on Principles of International Law Concerning Friendly Relations, GA Res. 2625, 25 GAOR, Supp. (No. 28) 121, UN Doc. A/8028 (1970), 65 AJIL 243 (1971); Rosenstock, , The Declaration of Principles of International Law Concerning Friendly Relations: A Survey, 65 AJIL 713 (1971)CrossRefGoogle Scholar.

64 The Group of 77 has maintained a certain cohesion at the global multilateral level for negotiation purposes although interests within the Group are diverse. Gosovic, and Ruggie, , On the Creation of a New International Economic Order: Issue Linkage and the Seventh Special Session of the U.N. General Assembly, 30 Int. Organization 309, 312-13 (1976)Google Scholar.

65 Decision 24, Dec. 31, 1970. [1971] Registro Official No. 264, at 1 (Ecuador), translated and reprinted in 10 ILM 152 (1971). See Oliver, , The Andean Foreign Investment Code: A New Phase in the Quest for Normative Order as to Direct ForeignInvestment, 66 AJIL 763 (1972)CrossRefGoogle Scholar.

66 Agreement of Subregional Integration, signed at Bogota, Colombia, May 26, 1969, translated and reprinted in 8 ILM 910 (1969).

67 .w See, e.g., United States v. Aluminum Co. of America, 148 F.2d 416, 433 (2d Cir. 1945). Activities which have no direct or intended effect on U.S. consumers or export opportunities may not be within U.S. antitrust substantive jurisdiction. See U.S. Dept. of Justice, Antitrust Guide for International Operations 7, 53 (1977). But see Timberlane Lbr. Co. v. Bank of America, 549 F.2d 597, 615 (9th Cir. 1976) (Sherman Act is not limited to trade restraints which have both a direct and substantial effect on our foreign commerce); Rahl, , International Application of United States Antitrust Laws: Distribution Arrangements, Fordham Corporate L. Institute 17, 18 (1975)Google Scholar.

68 Article 85(1) of the EEC Treaty, supra note 60, applies only to cartels which have the objective or effect of “preventing, restraining or distorting competition within the Common Market.

69 UN Doc. TD/B/600, at para. 7 (1976).

70 D. P. O'Connell, International Law 602 (2d ed. 1970).

71 See, e.g., complaints raised by Great Britain in United States v. Imperial Chemical Industries, Ltd., 100 F.Supp. 504 (S.D.N.Y. 1951), 105 F.Supp. 215 (S.D.N.Y. 1952) (supplemental opinion on remedies) and by Switzerland in United States v. Watchmakers of Switzerland Information Center, Inc., 1963 Trade Cas. para. 70, 600 (S.D.N.Y. 1962), order modified, 1965 Trade Cas. para. 71,352 (1965). These issues are likely to remain as the continuing enforcement policy if the Justice Department is to prosecute those foreign violations which substantially affect U.S. commerce. Address by Attorney General Griffin B. Bell before the American Bar Assn. (Aug. 8, 1977) (“We are obligated to do all that we reasonably can to prosecute foreign private cartels which have the purpose and effect of causing significant economic harm in the United States in violation of antitrust laws“).

72 e 14 M. Whiteman, Digest of International Law 302-16 (1970); Schwartz, , Are the OECD and UNCTAD Codes Legally Binding? 11 Int. Lawyer 529, 534 (1977)Google Scholar.

73 See, e.g., Code of Conduct for Liner Conferences, UN Doc. TD/CODE/11/Rev. 1 and Corr. 1 (1974); the General Agreement on Tariffs and Trade, 61 Stat (5)(6), TIAS No. 1700, 55-61 UNTS (1948); and the Paris Convention on Protection of Industrial Property, March 20, 1883. as revised Oct. 31, 1958, TIAS No. 4931 (1962) and as revised July 14, 1967, TIAS No. 6923 (1970).

74 ee supra note 64.

75 16 ESCOR, Supp. (No. 11) (1953).

76 Article 34, paragraph 1, of the Statute of the International Court of Justice provides that “only States may be parties in cases before the Court.”

77 See generally Claude, , Collective Legitimization as a Political Function of the United Nations, 20 Int. Organization 367 (1966)CrossRefGoogle Scholar.

78 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 404 (1964); Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F.Supp. 92 (CD. Cal. 1971), affd per curiam, 461 F.2d 1261 (9th Cir.), cert, denied, 409 U.S. 950 (1972); Hunt v. Mobil Oil, 550 F.2d 68 (2d. Cir. 1977). Act of state, sovereign immunity, foreign government compulsion, and considerations of comity may be defenses to any regulation of corporate conduct abroad by the Department of Justice based on antitrust statutes. Hearings on Activities of Multinational Corporations Abroad before the Sub-Comm. on International Economic Policy of the House Comm. on International Relations, 94th Cong., 1st Sess. 89 (1975) (testimony of Donald I. Baker, Deputy Assistant Attorney General, Antitrust Division).

79 See 1 D. P. O’Connell, International Law 378 (2d ed. 1970).

80 The Court in Sabbatino noted that courts in France, Germany, and the Netherlands had applied the doctrine as a matter of conflicts of law, but had not thought themselves compelled to do so by any rules of international law. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964). See also Restatement (Second) of Foreign Relations Law of the United States §41, Comments a (1965).

81 22 U.S.C. 00242370(e)(1) (1970). The amendment required the President to suspend foreign aid to any country taking the property of a U.S. citizen without taking steps to compensate him fully within six months. The Statute was modified to give the President discretion to waive application of the amendment when necessary in the national interest. Pub. L. No. 93-189, 87 Stat. 722 (1973). See Lillich, , Requiem for Hickenlooper, 69 AJIL 97 (1975)CrossRefGoogle Scholar.

82 Trade Act of 197400A7, 502(b)(2), 19 U.S.C. 00A72464(b)(2) (Supp. V 1975). By the operation of the Section, the President cannot authorize duty-free treatment for any country which operates to withhold or raise prices of vital commodities.

83 The Hickenlooper Amendment has been used only once, against Ceylon in 1963. 48 Dept. State Bull. 328 (1963). See Amerasinghe, , The Ceylon Oil Expropriations, 58 AJIL 445 (1964)CrossRefGoogle Scholar. See also, V.S.-Latin American Relations Reeling Under Impact of Reaction to Trade Act, Business Latin America, Feb. 5, 1975, at 41, 43.

84 *UN Doc. TD/B/C.6/AC.l/2/Supp. 1/Rev. 1, at 48 (1975).

85 Id

86 UN Doc. E/C.10/9, at 21 (1976). The United States and most Western European countries are among the forty-two signatories to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 21 UST 2517, TIAS No. 6997, 330 UNTS 3, 53 AJIL 420 (1959). See generally Sohn, , The Function of International Aribration Today, 108 Rec. Des Cours 11 (1963-1)Google Scholar.

87 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. 17 UST 1270, TIAS No. 6090, 575 UNTS 159, 4 ILM 532 (1965). An arbitral award rendered pursuant to the Convention is binding and enforceable in United States courts, but no contracting state is required to submit a dispute to conciliation or arbitration. Convention on the Settlement of Investment Disputes Act of 1966, Pub. L. 89-532, Aug. 11, 1966 (implementing legislation). See Amerasinghe, , Dispute Settlement Machinery in Relations Between States and Multinational Enterprises—With Particular References to the International Centre for Investment Disputes, 11 Int. Lawyer 45 (1977)Google Scholar; Broches, , The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 136 Rec. Des Cours 332 (1972-II)Google Scholar. The Kissinger-Moynihan proposals to the seventh special session of the United Nations advocated the use of the CSID and other third-party facilities to settle international investment disputes. Supra note 2, at 433.

88 The United States is party to a number of multilateral and bilateral treaties requiring the arbitration of disputes arising under those treaties. See 12 M. Whiteman, Digest of International Law 1044-46 (1971).

89 For a list of the developments in the international business community toward common principles for the conduct of international commercial arbitration, see Straus, , The Growing Consensus of International Commercial Arbitration, 68 AJIL 709 (1974)CrossRefGoogle Scholar.

90 Following the doctrine, Latin American governments have required aliens to agree not to seek the diplomatic protection of their own states in disputes arising under concession contracts. See Steiner & Vagts, Transnational Legal Problems 522-30 (2d ed. 1976).

91 American Safety Equipment Corp. v. J. P. Maquire & Co. 391 F.2d 821 (2d Cir. 1968) (antitrust matter may not be arbitrated). Cf. Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (in the area of international commercial transactions, an agreement of the parties to arbitrate any dispute will be respected and enforced by a federal court)

92 Deputy Assistant Secretary of State for Economic and Business Affairs Paul H. Boeker recently stated that, although the position of the U.S. Government has been that broad codes of conduct should be voluntary in nature, “a broad range of consultative mechanisms may be possible even with a voluntary code.” Hearings on Codes of Conduct for Multinational Corporations before the Subcomm. on International Economic Policy of the House Comm. on International Relations, 95th Cong., 1st Sess. (1977). See also UN Doc. TD/B/C.2/AC.5/3 (1975).

93 Id., at para. 22.

94 Id

95 OECD, Declaration, supra note 17.

96 Id., at 21.

97 Although the code is clear on this point, trade unions have recently attempted to use the OECD code to chastise TNE's by presenting the OECD with details of fifteen cases in which TNE's had “infringed” the code. One of the cases was brought directly by the Belgian Government. The general problems to which these cases give rise may be examined at the regular meeting of the Committee this year. How to make business behave better, The Economist, Oct. 8-14, 1977, at 89.

98 Id

99 Zisler, , The Work of the OECD Committee of Experts on Restrictive Business Practices, 29 Antitrust Buix. 289, 290 (1974)Google Scholar.

100 See e.g., Treaty with Italy, Feb. 2, 1948, Art. XVIII, para. 3, 63 Stat. 2255, TIAS No. 1965, 79 UNTS 171 (effective July 26, 1949).

101 U.S. courts do not permit these treaties to insulate foreign defendants from the reach of U.S. antitrust laws. See Calnetics Corp. v. Volkswagen of America, Inc., 353 F.Supp. 1219, 1222 (CD. Cal. 1973), rev'd on other grounds, 1976-1 Trade Case, para. 60,757 (9th Cir. 1976). In United States v. R. P. Oldham Co., 152 F.Supp. 818, 822-23, (N.D. Cal. 1957), the court overruled the defendant's contention that the“restrictive business practices” clause of the Treaty of Friendship, Commerce andNavigation of April 2, 1953, between the United States and Japan provided the exclusiveremedy to the United States. 4 UST 2063, TIAS No. 2863, 206 UNT.S 143.

102 See Haight, , The Restrictive Business Practices Clause in United States Treaties: An Antitrust Tranquilizer for International Trade, 70 Yale L.J. 240 (1960)CrossRefGoogle Scholar.

103 Havana Charter for an International Trade Organization (1948), Dept. of State Pub. 3206, Commercial Policy Series 114 (1948). See Furnish, , A Transnational Approach to Restrictive Business Practices, 4 Int. Lawyer 317 (1969-1970)Google Scholar.

104 The Charter has frequently been discussed in connection with the codes of conduct. See, e.g., UN Doc. TD/B/C.2/AC.5/3, at para. 12 (1975).

105 Id., at para. 15. See GATT Secretariat, Restrictive Business Practices, part 3, ch. 111(1959

106 Id., at para. 9.

107 11 EFTA Bull. Sept.-Oct. 1970, at 13.

108 Art. 22, supra note 73.

109 A minority of the group of experts which had prepared a report on restrictive business practices thought that, when a country was damaged by international cartels, the Contracting Parties should be authorized under Article XXIII to suspend the application of concessions or other obligations under the Agreement (“nullification and impairment“). The majority, however, thought that the necessary consensus did not exist for a multilateral agreement for the control of restrictive business practices. Contracting Parties to GATT, 9th Supp. BISD 28, 171 (1961); See also J. Jackson, World Trade and the Law of Gatt 511-27 (1969). The United States entered into informal antitrust notification and consultation arrangements with Canada in 1959 and in 1969. Each country is to notify and, if possible, consult the other when the interests of the other may be affected by an antitrust enforcement action. See Dept. of Justice Press Release (Nov. 3, 1969). A similar agreement between the U.S. and the Federal Republic of Germany was signed on June 23, 1976.

110 Consultations within GATT have occurred over the use of subsidies and, prior to action taken under Article XIX, the escape clause. Jackson, supra note 109, at 379 n.15, 566.

111 UN Doc. TD/B/C.2/AC.5/3, at para. 20 (1975).

112 Id., at para. 26.

113 Coonrod, supra note 19, at 273, 301.

114 lersupra note 98, at 291.

115 See W. L. Fugate, Foreign Commerce and the Antitrust Laws, 460-65 (1973).

116 unoc. TD/CODE/11/Rev. 1 and Corr. 1, reproduced in 13 ILM 912-51 (1974). Australia, Belgium, France, the Federal Republic of Germany, Japan, Spain, Turkey, the Socialist countries of Eastern Europe, China, and 58 developing countries voted for the Convention. The United States was among those that voted against adoption. Shah, , The Dispute Settlement Machinery in the Convention on a Code of Conduct for Liner Conferences, 7 J. of Maritime Law & Commerce 127, n.2 (1975)Google Scholar.

117 Code of Conduct for Liner Conferences, supra note 116, Art. 23.

118 Id. Art. 46.

119 Id. Art. 30.

120 UN Doc. E/C.10/9, at 21 (1976).

121 See UN Doc. TD/B/C.6/AC.l/2/Supp. 1, at paras. 236, 341-343 (1975).

122 See UN Doc. E/C.10/9, at 18 (1976).

123 See, e.g., Art. 189 of the Treaty of Rome, supra note 60, which provides that Commission regulations are binding and directly applicable, but directives must be implemented by national authorities, and that Commission recommendations and opinions have no binding force

124 Supra note 21.

125 GA Res. 2205. 21 GAOR, Supp. (No. 16) 99, UN Doc. A/6229 (1967).

126 Brown, , UN Commission on International Trade Law (UNCITRAL), 10 Int. Lawyer 366, 367 (1976)Google Scholar.

127 Final Act of the Conference on Security and Cooperation in Europe, signed in Helsinki on Aug. 1, 1975, reproduced in 14 ILM 1292 (1975) and in 73 DEPT. STATE BULL. 323 (1975).

128 See Russell, , The Helsinki Declaration: Brobdingnag or Lilliput? 70 AJIL 242, 246-49 (1976)Google Scholar.

129 For instance, export restrictions in technology transfer licenses are frequently cited as an important and prevalent practice recipient countries would like to eliminate. However, so long as licensors maintain enforceable industrial property rights in home countries or other major export markets, removal of the license restrictions will probably not actually increase exports to a significant 114