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... the United States is prepared to meet the proper concerns of governments in whose territories transnational enterprises operate. We affirm that enterprises must act in full accordance with the sovereignty of host governments and take full account of their public policy. Countries are entitled to regulate the operations of transnational enterprises within their borders. But countries wishing the benefits of these enterprises should foster the conditions that attract and maintain their productive operation.
The United States therefore believes that the time has come for the international community to articulate standards of conduct for both enterprises and governments. ... We must reach agreement on balanced principles. These should apply to transnational enterprises in their relations with governments, and to governments in their relations with enterprises and with other governments. They must be fair principles, for failure to reflect the interests of all parties concerned would exacerbate rather than moderate the frictions which have damaged the environment for international investment. Specifically, the United States believes that:
-Transnational enterprises are obliged to obey local law and refrain from unlawful intervention in the domestic affairs of host countries. Their activities should take account of public policy and national development priorities. They should respect local customs. They should employ qualified local personnel, or qualify local people through training.
-Host governments in turn must treat transnational enterprises equitably, without discrimination among them, and in accordance with international law. Host governments should make explicit their development priorities and the standards which transnational enterprises are expected to meet, and maintain them with reasonable consistency.
-Governments and enterprises must both respect the contractual obligations that they freely undertake. Contracts should be negotiated openly, fairly, and with full knowledge of their implications. Greater assurance that contracts will be honored will improve the international commercial environment, increase the flow of investment, and expand economic transactions. Destructive and politically explosive investment disputes, which spoil the climate for large commitments and investment, will occur less frequently.
-Principles established for transnational enterprises should apply equally to domestic enterprises, where relevant. Standards should be addressed not only to privately owned corporations, but also to state-owned and mixed transnational enterprises, which are increasingly important in the world economy.
A statement of principles is not the only or necessarily a sufficient way of resolving many of the problems affecting transnational enterprises. We must develop others:
-Governments must harmonize their tax treatment of these enterprises. Without coordination, host-country and home-country policies may inhibit productive investment.
-Factfinding and arbitral procedures must be promoted as means for settling investment disputes. The World Bank's International Center for the Settlement of Investment Disputes and other third-party facilities should be employed to settle the important disputes which inevitably arise.
-Laws against restrictive business practices must be developed, better coordinated among countries, and enforced. The United States has long been vigilant against such abuses in domestic trade, mergers, or licensing of technology. We stand by the same principles internationally. We condemn restrictive practices in setting prices or restraining supplies, whether by private or state-owned transnational enterprises or by the collusion of national governments.
- Insurance for foreign private investors should to the extent possible be multilateralized and should include financial participation by developing countries to reflect our mutual stake in encouraging foreign investment in the service of development.
-And there must be more effective bilateral consultation among governments to identify and resolve investment disputes before they become irritants in political relations.
For the full text of Secretary Kissinger's address to the Seventh Special Session of the U.N. General Assembly on Sept. 1, 1975, see Dept. of State Bulletin, Vol. LXXIII, No. 1891, Sept. 22, 1975, pp. 425-441; Report by Congressional Advisers to the Seventh Special Session of the U.N., Joint Committee Print, Oct. 13, 1975, pp. 35–61.
On November 12, 1975, the U.S. Senate by unanimous consent of 93 yeas agreed to S. Res. 265, “to protect the ability of the United States to trade abroad.” The resolution stated the sense of the Senate that the Special Representative for Trade Negotiations and other designated government officials should initiate negotiations, within the framework of multilateral trade negotiations in Geneva and in other trade negotiations and international forums, to develop a code of conduct in international trading, with procedures for settlement of disputes.
The text of the resolution follows:
S. Res. 265
Whereas recent statements of American corporations before the Congress and recent disclosures of the Securities and Exchange Commission have revealed that policies and practices in foreign nations necessitate the use of special and unusual payments through middlemen, and the use of direct and indirect payments to foreign government officials, to compete reasonably and effectively in those markets;
Whereas public disclosure by American corporations and by the Securities and Exchange Commission have revealed direct and indirect involvements by the governments of other nations in unreasonably and unjustifiably restricting and limiting trade and commerce with its agencies and offices by requiring or inducing political contributions to compete reasonably and effectively in those markets;
Whereas the practices of bribery, indirect payments, kickbacks, unethical political contributions, and other such similar disreputable activities have been found to be widespread internationally and are a significant influence on the conduct of trade and commerce, and may otherwise continue on the part of other governments and business enterprises in other nations, which would give rise to unfair, unjust, and unreasonable conditions of competition in world trade and commerce;
Whereas it is the intent of Congress that American companies be able to compete fairly without participating or being required, coerced, or otherwise induced to participate in such improper practices;
Whereas the Trade Act of 1974 stipulates that the overall objective of the United States in negotiating trade agreements is to obtain more open and equitable market access and the harmonization, reduction, or elimination of devices which distort trade or commerce and stipulates as a major purpose of that Act that trade agreements should assure substantially equivalent competitive opportunities for United States commerce, and provides the President with appropriate negotiating powers toward these ends;
Whereas section 301 of the Trade Act of 1974 requires that “Whenever the President determines that a foreign country or instrumentality . . . (2) engages in discriminatory or other acts or policies which are unjustifiable or unreasonable and which burden or restrict United States commerce, the President shall take all appropriate and feasible steps within his power to obtain the elimination of such restrictions or subsidies . . ."; and
Whereas the Trade Act of 1974 provides that the Committee on Finance shall provide oversight and that the chairman of the Committee on Finance shall appoint congressional delegates to serve as official advisors to conferences, meetings, and negotiating sessions relating to agreements pursuant to the Trade Act of 1974: Now, therefore, be it
Resolved, That the Special Representative for Trade Negotiations, the United States Representative to the United Nations, and appropriate officials of the Departments of State, Commerce, the Treasury, Defense, Agriculture, and Justice, in consultation with the chairman of the Committee on Finance and the congressional delegates for trade agreements initiate at once negotiations within the framework of the current multilateral trade negotiations in Geneva, in other negotiations of trade agreements pursuant to the Trade Act of 1974, and in other appropriate international forums with the intent of developing an appropriate code of conduct and specific trading obligations among governments, together with suitable procedures for the settlement of disputes, which would result in elimination of such practices on an international, multilateral basis, including suitable sanctions to cope with problems posed by nonparticipating nations, such codes and written obligations to become part of the international system of rules and obligations within the framework of the General Agreement on Tariffs and Trade, and other appropriate international trade agreements pursuant to the provisions and intent of the Trade Act of 1974.
SEC. 2. It is the sense of the Senate that the President should include, in the annual reports to the Congress required under section 163 of the Trade Act of 1974, reports on progress made in negotiations with respect to the development and implementation of the international code of conduct referred to in this resolution.
Cong. Rec., Vol. 121, No. 168, Nov. 12, 1975, pp. S19812–19813 (daily ed.).
On December 4, 1975, the United States joined in the consensus approval, by Committee II of the U.N. General Assembly, of a draft resolution on measures against corrupt practices of transnational and other corporations, their intermediaries, and others involved. Ambassador Jacob M. Myerson, U.S. Representative in the Committee, stated that his delegation regarded it as an example of dealing constructively with the issue. He added the following U.S. understanding of the text:
- .. we all agree on the condemnation of corrupt practices, including bribery. The blame for such acts must be shared equally by all who participate. Thus, we interpret the reference to bribery wherever it appears in the text to cover all aspectsthe offering, the payment, the solicitation, the acceptance of illegal payments.
... we believe that states have not only the right but also the responsibility to enact legislation against corrupt practices and to enforce such measures through legal action. It is important that such legislation clearly define the offenses and estab lish specific, measured penalties appropriate to particular offenses—and that offenders should be prosecuted through the courts on the basis of evidence and due process of law. The United States will cooperate with legitimate law enforcement activities of host governments, but we will oppose arbitrary acts of economic reprisal on the basis of uncorroborated charges.
- The question of the appropriate role of home governments in cooperating with host governments to eradicate corrupt practices is a complex one. For example, we have strong reservations about the feasibility or propriety of home countries enacting extraterritorial legislation to deal with this problem. As is suggested in the resolution, we ... believe that this is an area for cooperative action between governments and pledge our support to such efforts. We also believe that these issues need to be carefully examined in the United Nations Commission on Transnational Corporations. In this forum, as elsewhere, the United States will work for a constructive and effective solution to these problems.
- .. my delegation fully supports the concept of information exchange in particular cases within the context of established legal procedures. We do have doubts, however, about the efficacy and appropriateness of a blanket multilateral approach to information exchange.
Press Release USUN-172(75), Dec. 4, 1975. On Dec. 15, 1975, the U.N. General Assembly adopted without vote Res. 3514 (XXX) as recommended by Committee II, the operative paragraphs of which state:
1. Condemns all corrupt practices, including bribery, by transnational and other corporations, their intermediaries and others involved in violation of the laws and regulations of the host countries;
2. Reaffirms the right of any state to adopt legislation and to investigate and take appropriate legal action, in accordance with its national laws and regulations, against transnational and other corporations, their intermediaries and others involved for such corrupt practices;
3. Calls upon both home and host governments to take, within their respective national jurisdictions, all necessary measures which they deem appropriate, including legislative measures, to prevent such corrupt practices and to take consequent measures against the violators;
4. Calls upon governments to collect information on such corrupt practices, as well as on measures taken against such practices, and to exchange information bilaterally and, as appropriate, multilaterally, particularly through the United Nations Center on Transnational Corporations;
5. Calls upon home governments to cooperate with governments of the host countries to prevent such corrupt practices, including bribery, and to prosecute, within their national jurisdictions, those who engage in such acts;
6. Requests the Economic and Social Council to direct the Commission on Transnational Corporations to include in its program of work the question of
corrupt practices of transnational corporations and to make recommendations on ways and means whereby such corrupt practices can be effectively prevented;
7. Requests the Secretary-General to submit a report to the General Assembly at its thirty-first session, through the Economic and Social Council, on the implementation of the present resolution.
On November 28, 1975, Secretary of State Kissinger, in a letter to Attorney General Edward H. Levi, requested that the Attorney General exercise his authority under Section 516 of Title 28 of the United States Code to file a suggestion of interest of the United States in the case of Securities and Exchange Commission v. Lockheed Aircraft Corporation et al., Misc. No. 75-0189. The case, which was pending before Judge John H. Pratt, U.S. District Court for the District of Columbia, concerned the effort of the Securities and Exchange Commission (SEC) to enforce a subpoena and subpoena duces tecum of June 19, 1975, against the Lockheed Corporation. The subpoenas were for testimony and the production of documents in connection with an investigation of allegedly improper activities by Lockheed, including unreported payments to foreign officials. Lockheed had filed a cross-motion and proposed an order which would require the company to comply with the subpoenas, with provision, however, for protection from public disclosure of the names and nationalities of certain foreign persons identified in the documents or in future depositions. Secretary Kissinger's letter stated, in part:
the making of any such payments and their disclosure can have grave consequences for significant foreign relations interests of the United States abroad. We reiterate our strong condemnation of any such payments, but we must note that premature disclosure to third parties of certain of the names and nationalities of foreign officials at this preliminary stage of the proceedings in the present case would cause damage to United States foreign relations. We wish to emphasize that our expression of interest pertains only to a very small number of documents. We would be pleased, should Judge Pratt so desire, to have representatives of the Department meet with him and counsel for the parties in camera, and discuss the precise limits of the Department's area of concern.
The Department has stated and reaffirms its resolve not to shield American firms which have made such payments from legitimate law enforcement actions by responsible authorities of either the host country or the United States. Our interest in having certain documents in this case protected grows simply out of our desire that documents which contain uncorroborated, sensational and potentially damaging information not be made public as long as that is not necessary for purposes of effective law enforcement. The Department of State wishes to make clear