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Published online by Cambridge University Press: 09 March 2016
Competing Goals in Formulating a Code of Conduct on Restrictive Business Practices
For the past thirty years efforts to formulate and implement acceptable international norms to regulate restrictive business practices (R.B.P.’s) affecting international trade have largely failed. Yet, none can deny the necessity of such international norms in the face of the inability of national legal systems to cope with an economic order of international dimensions. The abortive International Trade Organization, as part of the Havana Charter of 1948, and the Draft E.C.O.S.O.C. International Agreement of 1953, which were originally initiated by the United States, were eventually rejected by it because “the various national policies, legislation, and enforcement procedures in this field were not sufficiently comparable.”
1 For an historical treatment of efforts to regulate restrictive business practices on an international basis, see Joelson, M. R., “The Proposed International Codes of Conduct as Related to Restrictive Business Practices,” 8 L. & Pol. Int’l Bus. 837 (1976).Google Scholar
2 Comment submitted pursuant to E.C.O.S.O.C. Resolution 487 (XVI) of July 31, 1953, Е/2612/Add. 2, April 4, 1955, at 4-5; in Timberg, S., “Restrictive Business Practices as an Appropriate Subject for United Nations Action,” 1 Antitrust Bulletin 409, 411 (1955–56).Google Scholar
3 “Codes of Conduct“ are used in their widest sense to include guidelines and a set of multilaterally agreed equitable rules and principles. Codes of conduct, by establishing clear “rules of the game,” should provide greater stability and predictability to international economic relations. The range of legal relationships indicated by a code is elaborated in a Report of the Secretariat: International Codes and Reciprocal Agreements Relating to Transnational Corporations, Doc. E/C.10/g, paras. 3 et seq., January 30, 1976. This article is not concerned with the binding or non-binding nature of the code of conduct on R.B.P.’s. As to the effect and nature of international agreements entered into by states but not intended to be legally binding on the parties, see Schachter, O., “Editorial Comment: The Twilight Existence of Nonbinding International Agreements,” 71 Am. J. Int’l L. 296 (1977).CrossRefGoogle Scholar
Restrictive business practices were originally dealt with exclusively in the Committee on Manufactures of U.N.C.T.A.D. But, in 1975, U.N.C.T.A.D. divided the work between the Committee on Manufactures and the Committee on the Transfer of Technology:
(a) the Committee on the Transfer of Technology should be responsible for work on restrictive practices and limitations involved in arrangements covering predominantly the use of proprietary and nonproprietary technology; and
(b) the Committee on Manufactures should be responsible for work on restrictive business practices which predominantly involve restraints on commercial policy affecting trade in manufactured and semi-manufactured goods, including cartel practices, marketing arrangements, and practices arising from the abuse of market power of transnational corporations. (TD/B/C.2/142. May 1, 1975, item 7)
Thus, any study of R.B.P.’s must bear in mind the work on the code of conduct on the transfer of technology. As well, the work on the code relating to transnational corporations deals with R.B.P.’s Cf. Reports of the Secretariat: Transnational Corporations: Issues involved in the Formulation of a Code of Conduct, U.N.C.T.A.D. Doc. E/C. 10/17, July 20, 1976; and Transnational Corporations: Material Relevant to the Formulation of a Code of Conduct, U.N.C.T.A.D. Doc. E/C.10/18, December 20, 1976.
4 Timberg, S., “An International Antitrust Convention: A Proposal to Harmonize Conflicting National Priorities towards the Multinational Corporation,” 8 J. Int’l L. & Econ. 157, 172–73 (1973)Google Scholar; Furnish, D. C. , “A Transnational Approach to Restrictive Business Practices,” 4 Int’l Lawyer 317, 347 (1969–70).Google Scholar
5 Report of the Second Ad Hoc Group of Experts on Restrictive Business Practices, U.N.C.T.A.D. Doc. TD/B/600, para. 41, March 8, 1976 (hereinafter referred to as Second Experts).
6 Ibid., para. 38.
7 Ibid., para. 41.
8 Interim Report by the U.N.C.T.A.D. Secretariat on Restrictive Business Practices, U.N.C.T.A.D. Doc. TD/B/C.2/104 (Rev. 1), paras. 7 et seq., (1971).
9 Ibid., See also Report by the Ad Hoc Group of Experts: Restrictive business practices in relation to the trade and development of developing countries, U.N.C.T.A.D. Doc. TD/B/C.2/119, paras. 9–24, 29–55, April 26, 1973 (hereinafter referred to as First Experts).
10 Second Experts, op. cit. supra note 5, paras. 15-16. See also Davidow, J., “Extraterritorial Application of U.S. Antitrust Law in a Changing World,” 8 L. & Pol. Int’l Bus. 895, 901 (1976).Google Scholar
11 Note by the U.N.C.T.A.D. Secretariat: Issues in connection with the formulation of a set of multilaterally agreed equitable principles and rules for the control of restrictive business practices, U.N.C.T.A.D. Doc. TD/B/C.2/ AC.6/2, para. 7, October 25, 1976.
12 Second Experts, op. cit. supra note 5, para. 74(a) (1). Also, Report of Third Ad Hoc Group of Experts on Restrictive Business Practices on its First Session, U.N.C.T.A.D. Doc. TD/B/C.2/AC.6/4 (hereinafter referred to as Third Experts), Annex I, Proposal submitted on behalf of the experts from the Group of 77, para. A(i).
13 O. Schachter, Sharing the World’s Resources 24 (Columbia University Press, 1977).
14 First Experts, op. cit. supra note 9, para. 63.
15 Third Experts, op. cit. supra note 12, para. 9.
16 Schachter, op. cit. supra note 13, at 7.
17 Third Experts, op. cit. supra note 12, para. 22. See Appendix I.
18 R. L. Rothstein, Global Bargaining: Commodities and the Quest for a New International Economic Order (unpublished article).
19 Zartman, W., “Negotiations: Theory and Reality,” 9 J. Int’l Aff. 69, 71–72 (1975).Google Scholar
20 Haq, M., The Poverty Curtain 182 (New York: Columbia University Press, 1975).Google Scholar
21 Rothstein, op. cit. supra note 18. Moreover, even if referents could be established, definitional problems arise in putting the referents into practice. As Iklé has noted, deductions from a framework agreement (which is what agreement on referents would constitute) work well between friendly nations, but are likely to break down in a “a climate of acute antagonism … because the opponents will be tempted to depart from the agreed framework or from the methods of deduction in order to shift the outcome to their advantage”: Iklé, F. C., How Nations Negotiate 215 (New York: Praeger, 1967).Google Scholar
The risk involved in formulating issues as referents is that concessions by one side at this level may encourage resistance by the other, for ”… sudden large concessions from one player tend to encourage increased demands on the part of the other”: Zartman, W. I., “The Political Analysis of Negotiation: Who Gets What and When,” XXVI World Politics 385, 390 (April 1974).CrossRefGoogle Scholar
22 Gosovic, B., “U.N.G.T.A.D.: North-South Encounter,” 568 Int’l Conciliation, para. 21 (May 1968).Google Scholar
23 Ibid. But note U.N.C.T.A.D.’s admonition to its members that “not every country can expect to benefit from every single measure being taken”: Improvement of the International Machinery and the Methods of Work: Draft Resolutions on Institutional Arrangements Remitted by the Conference, U.N.C.T.A.D. Doc. TD/B/173, para. 19.
24 Ibid., paras. 29–30. See also Walters, R. S., “International Organizations and Political Communication: The Use of U.N.C.T.A.D. by Less Developed Countries,” 1971 Int’l Organ. 818, 832.CrossRefGoogle Scholar
25 Gosovic, op. cit. supra note 22, para. 30.
26 Walters, op. cit. supra note 24, at 832. See also supra note 23 for U.N.C.T.A.D.’s recognition of such a tendency to confrontation.
27 Schwarzenberger, G., “Equality and Discrimination in International Economic Law (I),” (1971) Y.B. World Affairs 163.Google Scholar
28 Goldsmith, P. and Sonderkotter, F., “Equity and Discrimination in International Economic Law (IV): The European Communities,” 1974 Y.B. World Affairs 262,Google Scholar and “Equality and Discrimination in International Economic Law (V): The European Communities and the Wider World,” 1975 Y.B. World Affairs 265.
29 I.L.C. Report of 28th session (1976), G.A. Off. Rec, 31st sess., Suppl. No. 10(A/31/10), para. 38.
30 Ibid., 41–42.
31 Schwarzenberger, G., Foreign Investments and International Law 120 (1969).Google Scholar
32 Schachter, O., “The Evolving International Law of Development,” 15 Colum. J. Transnat’l L. 1, 2 (1976).Google Scholar
33 See Schachter op. cit. supra note 13, at 28 for a discussion of balanced resolutions and equity oriented resolutions; about the latter he stated that “they aim both at delegitimizing norms that were previously influential and engendering expectations as to future patterns of more equitable distribution.”
34 See generally Schachter, O., “The Relation of Law, Politics and Action in the United Nations,” 109 Recueil des Cours 187 (1963)Google Scholar; “Scientific Advances and International Law Making,“ 55 Cal. L. Rev. 423 (1967); “The Evolving International Law of Development,“ 15 Col. J. Trans’l L. 1 (1976); op. cit. supra note 13, at 3–4 and fn. 2 therein for additional references. See also Asamoah, D. Y., The Legal Significance of the Declaration of the General Assembly of the United Nations (1966)Google Scholar; Feuer, G., “Réflexions sur la Charte des Droits et Devoirs Economiques des Etats,” 79 Revue Générale de Droit International Public 271, 300 (1975)Google Scholar; and Friedmann, W., “The Relevance of International Law to the Process of Economic and Social Development,” 1966 Proc. Amer. Soc. Int’l L. 8, 10.Google Scholar
35 Resolution 3201 (S-VI), Resolution of the U.N. General Assembly Sixth Special Session (May 1, 1974), para. 3(n).
36 Resolution 3202 (S-VI), Resolution of U.N. General Assembly Sixth Special Session (May 1, 1974) para. 3(b).
37 Resolution 3281, adopted by the General Assembly 29th session (December 12, 1974)) Art. 19.
38 Observations on the issues for consideration by the Group of Experts: Note by the U.N.C.T.A.D. Secretariat, U.N.C.T.A.D. Doc. TD/B/C.2/AC.5/2, September 16, 1975.
39 G. Fueur, supra note 34, at 294.
40 De Lacharrière, G. L., “L’Influence de l’inégalité de développement des états sur le droit international,” (1973) Recueil des Cours Tome II, 227, 249.Google Scholar
41 Virally, M., “La Charte des Droits et Devoirs Economiques des Etats: notes de lecture,” 1974 Annuaire Français de Droit International 57, 74.CrossRefGoogle Scholar See also De Lacharrière, supra note 40, at 251.
42 Virally, supra note 41, at 75; De Lacharrière, supra note 40, at 253, cited Part IV G.A.T.T. and the U.N.C.T.A.D. exceptions to M.F.N, clause for L.D.C.’s as examples. Cf. also P. M. Martin, “Le Nouvel Ordre économique international,” Avril-Juin 1976, no. 2 Revue Générale de Droit International Public 502, 519: “Les pays en voie de développement veulent que soit instauré en leur faveur un ’double standard.’ Ils veulent donc avoir droit à un traitement préférentiel sans réciprocité.”
43 First Experts, op. cit. supra note 9, para. 4.
44 Ibid., para. 82.
45 Resolution 9 (VII), para. 3(d), Convening of Another Ad Hoc Group of Experts on Restrictive Business Practices, July 4, 1975.
46 The secretariat cited General Assembly resolution 3362 (S-VII) of September 19, 1975, Section i, para. 10:
Restrictive business practices adversely affecting international trade, particularly that of developing countries, should be eliminated and efforts should be made at the national and international levels with the objective of negotiating a set of equitable principles and rules.
The substitution of equitable for acceptable by the U.N.C.T.A.D. secretariat was what “should form the basis of the Group’s work.”
47 The Note prepared by the secretariat reflects the ambivalence between the U.N.C.T.A.D. resolution and the General Assembly resolution even in its title: Examination of the Possibility of Formulating Multilaterally Acceptable Principles on Restrictive Business Practices which Aim at Remedying those Practices which Adversely Affect the Trade and Development of Developing Countries; The Formulation of Equitable Principles and Rules at National and International Levels for the Control of Restrictive Business Practices Adversely Affecting International Trade and Particularly that of Developing Countries: Note by the U.N.C.T.A.D. secretariat, U.N.C.T.A.D. Doc. TD/B/C.2/AC.5/5, January 27, 1976, para. 9 (emphasis added).
48 Second Experts, op. cit supra note 5, para. 29.
49 Ibid., para. 32.
50 De Lacharrière, supra note 40, at 253.
51 Issues in connection with the formulation of a set of multilaterally agreed equitable principles and rules for the control of restrictive business practices; Note by the U.N.C.T.A.D. secretariat, U.N.C.T.A.D. Doc. TD/B/C.a/ AC.6/2, October 25, 1976, para. 25.
52 Third Experts, op. cit. supra note 12, Annex II, at 4, para. C(vi).
53 Ibid., Annex I, at 4, para. C(v).
54 Ibid., 3, para. B(iv).
55 Ibid., 5, para. D, last two subparagraphs. Paragraph D deals with the rules of code (whereas paragraph В only spells out the scope of the rules). The Nairobi Conference called for the development of rules by the experts, namely “the establishment of specific implementing measures or regulations.“ See Issues in connection with the formulation of a set of multilaterally agreed equitable principles and rules for the control of R.B.P.’s; note by the U.N.C.T.A.D. secretariat, supra note 51, para. 3.
56 Third Experts, op. cit. supra note 12, Annex I, at 4, para. C(vi).
57 Infra 218–31.
58 Second Experts, op. cit. supra note 5, para. 38, was entitled “Restrictive business practices which may adversely affect trade and development of developing countries,” but note the debate as to this approach in footnote 3: The experts from developed market economy countries thought this title should be ’Restrictive business practices which may affect international trade and development, particularly that of developing countries,’ as they felt this was a more accurate description of the practices.
The experts of developing countries considered that, in accordance with the Group’s mandate in resolution 9 (VII) of the Committee on Manufactures, the titles in Chapter III should reflect the tasks, namely of identifying restrictive business practices in the context of the need for appropriate remedial measures aimed at controlling those practices adversely affecting the trade and development of developing countries.
59 Rothstein, op. cit. supra note 18.
60 See Second Experts, op. cit. supra note 5, para. 38, as to their effects on international trade. See generally Restrictive Business Practices: Interim Report by the U.N.C.T.A.D. secretariat 1971, U.N.C.T.A.D. Doc. TD/B/C.2/104/ Rev. 1; First Experts, op. cit. supra note 9; Restrictive Business Practices: informational requirements for the control of restrictive business practices originating with firms of developed countries; Report by U.N.C.T.A.D. secretariat, April 22, 1975, U.N.C.T.A.D. Doc. TD/B/C.2/156; Jackson, M. R., “The Proposed International Codes of Conduct as Related to Restrictive Business Practices,” 8 L. & Pol. Int’l Bus. 837 (1976).Google Scholar
61 Ibid., para. 41.
62 This was recognized in a subsequent U.N.C.T.A.D. secretariat report and was to be taken up by the Third Ad Hoc Group. See Issues in connection with the formulation of a set of multilaterally agreed equitable principles and rules for the control of restrictive business practices, U.N.C.T.A.D. Doc, TD/B/C.2/ AC.6/2, para. 29.
63 S. Timberg, supra note 4, at 170.
64 Second Experts, op. cit. supra note 5, para. 38, note 2.
65 Timberg, supra note 4, at 171.
66 Schachter, O., “Just Prices in World Markets: Proposals de lege feranda,” 69 Amer. J. Int’l L. 101,102 (1975).CrossRefGoogle Scholar
67 Restrictive Business Practices: Control of restrictive business practices in Latin America; Report by the U.N.C.T.A.D. secretariat, February 6, 1975, U.N.C.T.A.D. Doc. TD/B/C.2/143, para. 9.
68 Review of Major Developments in the Area of Restrictive Business Practices; Report by the U.N.C.T.A.D. secretariat, 1975. U.N.C.T.A.D. Doc. TD/B/ C.2/159, para. 13.
89 Timberg, supra note 4, at 172–73.
70 Informational requirements for the control of restrictive business practices originating with firms of developed countries; Report by the U.N.C.T.A.D. secretariat, April 22, 1975, U.N.C.T.A.D. Doc TD/B/C.2/156.
71 Provisions regarding the regulation of R.B.P.’s of state-owned enterprises will prove difficult. State-owned enterprises engaged in commercial activities, both in D.C.’s and L.D.C.’s, are generally exempted from domestic R.B.P. legislation: see Issues for consideration in the context of determining elements of a model law or laws on restrictive business practices for developing countries, U.N.C.T.A.D. Doc. TD/B/C.2/160, para. 25 (1975). It was stated that “In the case of the developing countries so far studied, it would seem that all State-owned or controlled enterprises are excluded (from R.B.P. legislation).”
In the Second Experts Report, op. cit. supra note 5, para. 73(f), the B Group proposed that “such guidelines or principles should make clear that an enterprise should not be expected to refrain from practices which are generally or specifically accepted under applicable national or international law.” Does this not mean exemptions for state-owned enterprises where permitted under national law? And if so, what are the consequences for a minimum international standard as one of the objectives of such a code? Such an exemption would no longer be necessary under an approach that recognizes a right of countervailing power for L.D.C, (state-owned) enterprises in their dealings with D.C.’s and this right of countervailing power is only feasible in a code in which the right of access is limited to inter-D.C.-L.D.C. economic relations.
72 Second Experts, op. cit. supra note 5, para 38.
73 The Impact of Multinational Corporations on the Development Process and on International Relations; Report of the Group of Eminent Persons to Study the Role of Multinational Corporations on Development and on International Relations, May 22, 1974, Е/5500/Add. 1 (Parts I and II). See also First Experts, op. cit. supra note 9.
74 J. R. Friedman could write in 1971 that equality as equalization was beyond the “pale of international law,“ and that the doctrine of equality does not “create obligations for states collectively or individually to facilitate or attain equalization of this kind“: “The Confrontation of Equality and Equalitarianism: Institution-Building through International Law,” in Deutsch, K. and Hoffmann, S., eds., The Relevance of International Law 231 Google Scholar et seq. (Anchor Books, 1971 ). But the equity-oriented resolutions of the past few years have displaced that view. See O. Schachter, op. cit. supra note 13, at 28 et seq.
It has been suggested that the International Court of Justice in the North Sea Continental Shelf cases defined equality relatively. In that case, equity tempered equality to prevent an inequality; can it not be used to bring about equality? See Chattopadhyay, S. K., “Equity in International Law: Its Growth and Development,” 5 Ga. J. Int’l & Comp. L. 381, 384 (1975).Google Scholar But note Judge Hudson’s support of the maxim “equality is equity,” Ibid., fn. 11.
75 Weston, B. H., “‘Constructive Takings’ under International Law: A Modest Foray into the Problem of ‘Creeping Expropriation’,” 16 Va. J. Int’l L. 103, 109 (1975).Google Scholar
76 S.C. 1973–74, c. 46, s. 2.
77 15 Int’l Leg. Mat. 967, para. II. 4 (1976).
78 For Argentina, see Foreign Investment Law No. 20, 557 of December 6, 1973, Arts. 5, 6 and for Mexico, see Law for the Promulgation of Mexican Investments and the Regulation of Foreign Investment, Art. 13, in Control of Restrictive Business Practices in Latin America, U.N.C.T.A.D. Doc. ST/MD/ 4, para. 218. See also Argentina Decree No. 413/73, Art. 43 requiring public notice of proposed foreign investment and opportunity for competing domestic enterprises to raise objections. For a summary of this paper, see Report of the Secretariat: Control of Restrictive Business Practices in Latin America, U.N.C.T.A.D. Doc. TD/B/C.2/143, para. 15. Also, Decision No. 24 of the Andean Group does not permit foreign investment if satisfactorily performed by existing enterprises.
79 See generally Robinson, R. D., National Control of Foreign Business Entry: A Survey of Fifteen Countries (Praeger Publishers, 1976).Google Scholar In Canada, the Foreign Investment Review Act, S.C., 1973-74, c. 46, subjects foreign takeovers and new direct foreign investment to special tests because the extent of foreign control of Canadian industry, trade, and commerce may affect “the ability of Canadians to maintain effective control over their economic environment” and this is seen as a “matter of national concern” (Section 2(1)).
80 Harris, D. J., Cases and Materials on International Law 400 (Sweet and Maxwell, 1973).Google Scholar
81 Case Concerning the Barcelona Traction, Light and Power Company Limited, [1970] I.C.J. Rep. 32.
82 1934 P.C.I.J., Series A/B No. 63, at 87. This definition of discrimination was supported by a vote of 6 to 5 of the Court.
83 Fatouros, “International Law and the Third World,” 50 Va. L. Rev. 783, 807–11 (1964), states that “the precise meaning of ’unjust discrimination’ … is not clear.” See the Neer Claim for a statement of this principle: U.S. v. Mexico (1926), U.S.-Mexican General Claims Commission, 4 U.N. R.I.A.A. 60.
84 Second Restatement, Foreign Relations Law of the United States (1965), Sections 165-66. This definition has been followed by the В Group, albeit in a different context, where discriminatory pricing was defined as “unreasonably differentiated” pricing. See Third Experts, op. cit. supra note 12, Annex II, para 1(d).
85 Friedmann, W. et al., Cases and Materials on International Law 778 (1969).Google Scholar
86 It is submitted that it is in this sense that Roth formulated his statement of equal treatment for aliens: “In cases where the national policies of foreign States allow aliens to undertake economic activities, however, general international law assures aliens of equality of commercial treatment among themselves.”
Roth takes into account as well certain fundamental rights to flesh out a minimum international standard — thereby recognizing as acceptable different treatment than that accorded nationals. See Roth, A., The Minimum Standard of International Law Applied to Aliens 185–86 (1949),Google Scholar cited in Mc-Dougal, M. S., Lasswell, H. O., and Chen, L., “The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights,” 70 Am. J. Int’l L. 432, 450–51 (1976).CrossRefGoogle Scholar The authors adopt Roth’s summary with the warning that “some commentators may not agree with all his characterizations.”
G. Schwarzenberger, op. cit. supra note 31, at 163, also in the context of expropriation, offers a similar response: “… the prohibition of all forms of discrimination, as distinct from those of an arbitrary or unreasonable character, appears to go beyond the requirements of the minimum standard of international customary law and the protection needed by foreign property.”
87 70 Am. J. Int’l L. 432, 450–51 (1976).
88 Cited in Garcia-Amador, F. V. et al., Recent Codification of the Law of State Responsibility for Injury to Aliens 3 (1974).Google Scholar See also United States Court of Appeals decision in the Sabbatino case, which, on the question of equality of treatment principle, was not overturned by the Supreme Court: “And, perhaps, international law is not violated when equal treatment is accorded aliens and natives, regardless of the quality of the treatment or the motives behind that treatment” — Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845, 864–68 (1962).
89 O.E.C.D. Declaration, op. cit. supra note 6, para. II. 1, but note that para. 7 of the Guidelines imposes on states the obligation to prescribe laws “subject to international law…“ Thus, rather than a national treatment standard, the O.E.G.D. Guidelines for M.N.E.’s impose a minimum international standard.
90 N.V. Verenigde Deli-Maatschapijen and N.V. Senembah-Matchapij v. Deutsche Indonesische Tabak-Handelsgesellschaft m.b. H. (1959): cited in C. F. Amerasingle, State Responsibility for Injury to Aliens 138 (1967).
91 Italy v. Commission (13/63), (1963), G.M.L.R. 289, 311–12.
92 Wurttenbergische Milchverwertung-Sudmilch AG. v. Ugliola (15/69), (1970) C.M.L.R. 194, 202. A similar argument was presented by the British in the Anglo-Iranian Oil Co. case in which the Iranian Oil Nationalization Act of 1951 was challenged on the basis that while the Act specified nationalization of the “oil industry throughout all parts of the country, without exception,“ in fact, the “oil industry” consisted of the Anglo-Iranian Oil Co. alone. See Anglo-Iranian Oil Co. Case — I.C.J. Pleadings, 81 (1952).
93 This Subcommission argued that a clear distinction existed between “differentiation,“ which may be justified in the interests of true equality, and “discrimination,” which is never justified: see McKean, W. A., “The Meaning of Discrimination in International and Municipal Law,” 1970 Brit. Y.B. Int’l L. 177.Google Scholar
94 Goldsmith et al., op. cit. supra note 28, at 282.
95 First Experts, op. cit. supra note g, para. 19.
96 Third Experts, op. cit. supra note 12, Annex I, para. B (iv).
97 Restrictive Business Practices: Interim Report by the U.N.C.T.A.D. Secretariat, TD/B/C.2/104/Rev. 1 (1971), para. 84.
98 Ibid.
99 The Impact of M.N.C.’s on the Development Process and on International Relations, op. cit. supra note 73, at 67. See also Transnational Corporations: Issues Involved in the Formulation of a Code of Conduct; Report of the Secretariat, E/C. 10/17 (1976)) para. 103.
100 Roback, S. H. and Simmonds, K., International Business and Multinational Enterprise 151 (1973).Google Scholar
101 Control of R.B.P.’s in Latin America, op. cit. supra note 78, paras. 248 et seq.
102 T.N.C.’s: Issues Involved in the Formulation of a Code, op. cit. supra note 99, para. 48.
103 Control of R.B.P.’s in Latin America, op. cit. supra note 78, para, (xiii) (a). Different economic structures or status relates to size, level of diversification, and production and marketing systems. The latter is frequently overlooked as the basis for control of the market place.
104 Ibid., para. (xiii).
105 Ibid.
106 Interim Report of the Third Ad Hoc Group of Experts on Restrictive Business Practices to the Committee on Manufactures at its Eighth Session, TD/B/C.2/AC.6/7 (June 14, 1977), Annex I, Set of Multilateral Agreed Equitable Principles and Rules: Agreed to text and comparison of the proposals of the Group of 77 and В Group on provisions not agreed; see Group of 77, Section O, paras. 6 and 7 for provisions aimed at T.N.C.’s to refrain from using and abusing their positions of dominant market power.
107 Jenks, C. Wilfred, The Prospects of International Adjudication 184 (1964).Google Scholar
108 For the argument that restraints in U.S. export trade which only injure persons in foreign markets may be made subject to the jurisdiction of U.S. courts, see J. P. Rahl, “Foreign Commerce Jurisdiction of the American Antitrust Laws,“ 43 Antitrust L.J. 525 (1974); J. P. Rahl, “American Antitrust and Foreign Operations: What is Covered?,“ 8 Cornell Int. L. J. 1 (1974). Contra, see Rosenthal, D. E., “Subject-Matter Jurisdiction in U.S. Export Trade,” 71 Proc. Am. Soc. Int’l L. 214 (1977),Google Scholar in which also note that under the recent Government of India case, a foreign government was recognized as having the standing to sue in the United States under the Sherman Act.
109 B. H. Weston, supra note 75, at 124.
110 See infra note 115.
111 The Impact of M.N.C.’s on the Development Process, supra note 73, 70.
112 B. H. Weston, supra note 75, at 125.
113 Hansen, R. D., “Regional Integration: Reflections on a Decade of Theoretical Efforts,” January 1969, World Politics 242.CrossRefGoogle Scholar
114 Kaplan, G. G., “Equality and Discrimination in International Economic Law (II): The U.N.C.T.A.D. Scheme for Generalised Preferences,” 1972 Y.B. World Affairs 267, 285.Google Scholar
115 Ibid.
116 Report of the Intergovernmental Group of Experts on an International Code of Conduct on Transfer of Technology, U.N.C.T.A.D. Doc. TD/AC.1/4 (1976), Annex II, at 6, para. 2.7. The B Group notes this distinction but does not indicate how it will be implemented.
Internal inequities — within a nation-state — are becoming a matter of international concern, for example, international action for peasant farmers and the urban poor: International Fund for Agricultural Lending and New Lending Policy of the World Bank, and Habitat Conference and the Foundation for Human Settlement. See O. Schachter, supra note 32, at notes 22 & 23. It is with even greater reason a matter of international concern to deal with inter-L.D.C. inequities. U.N.C.T.A.D. has given inadequate attention to this problem. Thus, in recommending a single preferential trading area for manufactures for all L.D.C.’s on a non-discriminatory basis, an exception was suggested for countries at lower stages of development. This type of approach is inadequate for the most seriously affected of the L.D.C.’s: see A Comprehensive Policy for Strengthening and Diversifying the Exports of Developing Countries in Manufactures and Semi-Manufactures, U.N.C.T.A.D. Doc. TD/B/C.2/153 (June 13, 1975), paras. 53–54.
A recent U.N.C.T.A.D. study recognized four main levels of development of technology transfer among L.D.C.’s:
(1) states relatively high on the industrialization scale, which have begun to initiate appropriate technology policies and establish institutions;
(2) mainly large states, well endowed with resources, having development strategies which place emphasis on industrialization, but still technologically dependent;
(3) mainly small countries, often less well endowed with resources, with clear-cut development strategies but even more dependent as regards technology;
(4) the least developed countries, some of them very small, which have not yet devised technology strategies.
See Progress in Implementing Conference Resolution 39 (III) and Other Relevant Resolutions and Revisions in the Field of Transfer of Technology: Establishment of Centres for the Transfer and Development of Technology, U.N.C.T.A.D. Doc. TD/B/C.6/g/Add. 3, para. 49 (1975).
A similar assessment of levels of development of regulating international R.B.P.’s having national effects should be pursued.
117 See Behrman, J., “The Multinational Corporation and World Economic Development,” 66 Proc. Am. Soc. Int’l L. 14 (1972).CrossRefGoogle Scholar
118 Lipton, M., “U.N.C.T.A.D. SCHUMUNCTAD? Why Not Start Again from Scratch?,” 247 The Round Table 297, 298 (1972).CrossRefGoogle Scholar
119 Rothstein, op. cit. supra note 18.
* Interim Report of the Third Ad Hoc Group of Experts on Restrictive Business Practices to the Committee on Manufactures at its Eighth Session. U.N.C.T.A.D. Doc. TD/B/C.2/AC.6/7, June 14, 1977, Annex I.
