1 Suy, , Innovations in International Law-Making Processes, in The International Law of Human Welfare 187 (Macdonald, Johnston, & Morris, eds. 1978)Google Scholar.

2 UN Doc. A/32/143 (1977).

3 Review of the Multilateral Treaty-Making Process, Report of the Secretary-General, UN Doc. A/35/312 (1980).

4 An exception is the report of the International Law Commission. See id.. Add. 2.

5 A brief report on the GATT treaty-making process was provided to the Secretary-General in response to Resolution 32/48. See id., Annex. A copy of this report was provided to the authors by the GATT secretariat.

6 See Curzon, G., Multilateral Commercial Diplomacy (1965)Google Scholar [hereinafter cited as G. Curzon]; Kock, K., International Trade Policy and the GATT: 1947–67 (1969)Google Scholar; Jackson, J., World Trade and the Law of GATT (1969)Google Scholar; Dam, K., The GATT-Law and International Economic Organization (1970)Google Scholar; Evans, J., The Kennedy Round and American Trade Policy: The Twilight of the GATT? (1971)Google Scholar; Hudec, R., The Gatt Legal System and World Trade Diplomacy (1975)Google Scholar; and Curzon, G. & V., The Management of Trade Relations in the GATT, Google Scholar in Shonfield, A., Curzon, G., Curzon, V., Warley, T., & Ray, G., International Economic Relations of the Western World 1959–1971, Vol. I: Politics and Trade (1976)Google Scholar.

7 J. Jackson, supra note 6, at 36–37.

8 Id. at 220–21.

9 K. Dam, supra note 6, at 57.

10 J. Jackson, supra note 6, at 243; K. Kock, supra note 6, at 100.

11 Article I provides that “any advantage, favour, privilege or immunity granted by any contracting Party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting Parties.”

12 G. Curzon, supra note 6, at 102.

13 Ministerial Meeting, May 1963, Conclusions and Resolutions Adopted on 21 May 1963, General Agreement on Tariffs and Trade, Basic Instruments and Selected Documents [hereinafter cited as BISD], 12th Supp. 47 (1964).

14 K. Dam, supra note 6, at 69–70.

15 For collections of articles discussing the results of the Tokyo Round, see 11 L. & Pol’y Int’l Bus. 1257 (1979); and 13 Cornell Int’l LJ. 145 (1980). See also Finlayson, & Zacher, , The GATT and the Regulation of Trade Barriers: Regime Dynamics and Effects, 35 Int’l Org. 561 (1981)CrossRefGoogle Scholar, for an analysis of the evolution of the GATT system.

16 Declaration of Ministers Approved at Tokyo on 14 September 1973, GATT Doc. Min (73) 1, BISD, 20th Supp. 19 (1972–73).

17 BISD, 15th Supp. 67–72 (1966–67). The Council established a Committee on Trade in Industrial Products and an Agriculture Committee, and reactivated the Committee on Trade and Development’s Special Group on Tropical Products.

18 GATT Doc. W.26/5 (1970).

19 GATT Doc. L/3348 (1970).

20 GATT Doc. L/3366 (1970), BISD, 17th Supp. 18–19 (1968–70).

21 GATT Doc. L/3641 (1971), BISD, 18th Supp. 37 (1970–71).

22 Id. at 40.

23 The Tokyo Round of Multilateral Trade Negotiations: Report by the Director-General 49 (1979) [hereinafter cited as Director-General’s Report].

24 GATT Doc. S.R.28/8, at 112 (1972).

25 GATT Doc. L/3773/Rev.1, BISD, 19th Supp. 12 (1971–72).

26 GATT Doc. Min (73) W/2.

27 Supra note 16 [hereinafter cited as Tokyo Declaration].

28 Tokyo Declaration, para. 2.

29 Id., para.

30 Id., para. 10.

31 Id., paras. 5 and 9. The most significant of these is the most-favored-nation status accorded to all GATT contracting parties under Article I.

32 Tokyo Declaration, paras. 5 and 6.

33 E.g., Brazil, Argentina, India.

34 1 Director-General’s Report, supra note 23, at 16.

35 See generally Jackson, , The General Agreement on Tariffs and Trade in United States Domestic Law, 66 Mich. L. Rev. 249 (1967)CrossRefGoogle Scholar.

36 1 Director-General’s Report, supra note 23, at 109.

37 UN Doc. TD/B/455, at 5 (1973).

38 In the Tokyo Round, unlike previous rounds, participation was open to noncontracting parties to GATT.

39 MTN/P/1, para. 19, at 4 (1973).

40 Id. at 6.

41 MTN/P/2 (1974).

42 MTN/2 (1974).

43 Groups 3(c) (sector), and (d) (safeguards) did not meet until after October 1974.

44 MTN/4 (1974).

45 MTN/5 (1974).

46 MTN/P/3, at 2 (1974).

47 1 Director-General’s Report, supra note 23, at 8.

48 MTN/P/3, at 2 (1974).

49 Ibid.

50 TN/AG/9 (1978).

51 MTN/W/10 (1975).

52 MTN/17(1976).

53 1 Director-General’s Report, supra note 23, at 38–39.

54 MTN/TAR/W/4 (1975). The checklist was revised by the secretariat following the group’s July meeting; see MTN/TAR/W/4/Rev. 1 (1975).

55 1 Director-General’s Report, supra note 23, at 45.

56 Id. at 42.

57 MTN/NTM/W/4 (1975).

58 MTN/P/2(1974).

59 MTN/12, at 2 (1975).

60 It was agreed, however, that the participants would send summary notes of their meetings to the secretariat, which in turn would distribute them to other participants. MTN/AG/5 (1976).

61 1 Director-General’s Report, supra note 23, at 26.

62 Id. at 88–89.

63 Id. at 93.

64 MTN/17(1976).

65 1 Director-General’s Report, supra note 23, at 98.

66 According to Curzon, in this way “no country can receive offers of concessions unless it itself has made such offers.” G. Curzon, supra note 6, at 72–73.

67 K. Dam, supra note 6, at 61.

68 G. Curzon, supra note 6, at 73, states:

Before negotiations begin, each contracting party knows what all its partners are willing to offer. If the offer of an individual country is not enough in itself, the knowledge that a second or third country is willing to pay something too for a given concession allows the negotiations to open under more propitious auspices than might have been the case in a classical bilateral situation.

69 No agreement was considered final until the round was concluded, in order to allow for subsequent reopening in the light of other concessions.

70 In view of this extension of benefits to other states, there would be a period at the end of each round “during which requests and offers previously made were reshuffled.” K. Dam, supra note 6, at 63. Dam regards this as the “only truly multilateral element of the negotiations.” Ibid. See also Finlayson & Zacher, supra note 15, at 586.

71 General Agreement on Tariffs and Trade, TIAS No. 1700, 55 UNTS 194, amended March 10, 1955, 8 UST 1767, TIAS No. 3930, 278 UNTS 168, Art. XVIII bis, para. 2(a).

72 Conclusions and Resolutions, supra note 13, BISD, 12th Supp. 47 (1964).

73 BISD, 13th Supp. 109 (1964).

74 Some countries were expressly excluded from the linear tariff reduction formula, and were allowed to negotiate on a product-by-product basis. Id. at 112.

75 1 Director-General’s Report, supra note 23, at 49.

76 The formula that resulted from meetings between U.S. Special Trade Representative Robert Strauss and EEC Commissioner for External Relations Haferkamp in Brussels in July and September 1977 was based on a Swiss proposal that had been placed before Group Tariffs. The formula was agreed to as a “working hypothesis” and was generally acquiesced in by the major trading participants in the Tokyo Round. The procedure agreed to at that time was that there would be a general tariff plan based on the tariff-cutting formula, followed by a tabling of requests for specific tariff reductions. Id. at 47.

77 Id. at 38–39.

78 MTN/NTM/35 (1977).

79 Id. at 3.

80 MTN/NTM/36 (1977).

81 MTN/NTM/40 (1978).

82 MTN/NTM/41 (1978).

83 MTN/W/24 (1975).

84 MTN/INF/11 (1977).

85 Some of the initial participants were the United States, the EEC, Japan, Canada, the Nordic countries, Austria, Switzerland, Mexico, Argentina, Brazil, and India.

86 The two officials met in Brussels on several occasions during the Tokyo Round. 87 MTN/P/5, at 2 (1979).

87 MTN/NTM/65–69 (1979).

89 MTN/P/5, at 5 (1979).

90 BISD, 26th Supp. 189–91 (1980).

91 As noted previously, the round had been convened by a meeting of Ministers in Tokyo, and not by the decision of a GATT organ.

92 2 Director-General’s Report, supra note 23, at 20.

93 Decision of Nov. 28, 1979 (L/4905), BISD, 26th Supp. 201 (1980).

94 It was also provided that the committees set up under the agreements would send reports to the GATT contracting parties and provision was made for GATT contracting parties that were not parties to the agreements to attend meetings of committees as observers.

95 Decision of Nov. 28, 1979 (L/4903).

96 Adopted on Nov. 28, 1979 (L/4904).

97 Adopted on Nov. 28, 1979 (L/4897).

98 Decision of Nov. 28, 1979 (L/4907).

99 Decision of Nov. 28, 1979 (L/4899).

100 The type of preparatory work that was undertaken involved the study of different approaches to tariff negotiating formulas. The exchange of lists of requests and lists of offers prior to the earlier rounds can also be seen as a form of preparatory work.

101 Buzan, , Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL 324 (1981)CrossRefGoogle Scholar.

102 Some observers have suggested that the lower profile of the Director-General of GATT in the Tokyo Round (as compared with that of his predecessor in the Kennedy Round) may have contributed to the need for the creation of an informal steering committee. On the other hand, there was some precedent in GATT for such an informal body. In 1975 the “Consultative Group of 18,” which was a committee of high-level officials of member states, was set up on a provisional basis to discuss sensitive issues of international trade. The success of the Consultative Group resulted in its being constituted as a permanent GATT body in November 1979. BISD, 25th Supp. 289–90 (1977–78).

103 J. Jackson, supra note 6, at 145–48.

104 R. Hudec, supra note 6, at 76–77.

105 However, the choice of secretariat officials resulted from the inability of the participants to choose chairmen from the representatives of states.

106 On the one hand, this action by the secretariat may be seen as a further aspect of its assistance to developing countries. On the other hand, by taking an active role and directing the course of negotiations the secretariat ensured that the developing countries would not turn Group Framework into a forum for debate on the New International Economic Order.

107 Jackson, , The Crumbling Institutions of the Liberal Trade System, 12 J. World Trade L. 93, 96 (1978)Google Scholar.

108 No more than 20–30 states participated in the early rounds. In the Tokyo Round there were over 100 participants, the increase being attributable to greater participation by developing states.

109 MTN/P.l,at 1 (1973).

110 Id. at 4.

111 MTN/P.4, at 2 (1978).

112 The group included the United States, the EEC, Japan, Switzerland, Canada, New Zealand, the Nordic countries, Australia, and Austria.

113 MTN/INF/33 (1978).

114 MTN/INF/38 (1978).

115 It is the view of some participants that a two-thirds majority voting rule in the TNC would have led to the collapse of the Tokyo Round and perhaps put GATT’s future in doubt.

116 The documents are found in BISD, 26th Supp. (1980).

117 For the protocol to the GATT following the Kennedy Round, see BISD, 15th Supp. 4–5 (1966–67).

118 The term “agreement” will be used to cover both “agreements” and “arrangements.”

119 Art. 14(23). A similar provision is found in the Agreement on the Implementation of Article VII of the GATT (Customs Valuation), Art. 20(11). See BISD, 26th Supp. 116 (1980).

120 Agreement on the Interpretation and Application of Articles VI, XVI and XXIII of GATT (Subsidies and Countervailing Duties), Art. 18. See BISD, 26th Supp. 171 (1980). For the view that provisions of this nature oust the GATT dispute settlement procedure completely, see Bourgeois, , The Tokyo Round Agreements on Technical Barriers and on Government Procurement in International and EEC Perspective, 19 Common Mkt. L.R. 5, 17 (1982)Google Scholar.

121 Agreement on Import Licensing Procedures, Art. 4(2). See BISD, 26th Supp. 154 (1980).

122 Jackson, , The Birth of the GATT-MTN System: A Constitutional Appraisal, 12 L. & Pol’y Int’l Bus. 21, 52(1980)Google Scholar.

123 Id. at 56.

124 Ibid.

125 The delegate of Yugoslavia, speaking to the TNC on behalf of the developing countries, made clear that the concerns of those countries were both substantive and procedural: “In spite of the fact that at some stages of the negotiations the developing countries were not invited, and that transparencies were often absent, we could not assume that proposals and requests submitted by the developing countries were not known. It is regrettable that many of them were ignored. . . .” MTN/P/5, at 36 (1979).

126 See UNCTAD, Monthly Bull., No. 179, December 1981.

127 R. Hudec, supra note 6, at 265, makes the point that the Tokyo Round was concerned with “trade negotiations,” not “law reform negotiations.” But the various agreements that resulted from the round are, in fact, exercises in law reform.

128 The most-favored-nation provision of Article I of GATT has this effect.