Notice2023-03272
United States-Mexico-Canada Agreement: Rules of Procedure for Binational Panel Proceedings, Extraordinary Challenge Committee Proceedings, and Special Committee Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 16, 2023
Issuing agencies
Trade Representative, Office of United States
Abstract
Canada, Mexico, and the United States have finalized the rules of procedure for binational panel proceedings, extraordinary challenge committee proceedings, and special committee proceedings under the USMCA.
Full Text
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<title>Federal Register, Volume 88 Issue 32 (Thursday, February 16, 2023)</title>
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[Federal Register Volume 88, Number 32 (Thursday, February 16, 2023)]
[Notices]
[Pages 10171-10211]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03272]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
United States-Mexico-Canada Agreement: Rules of Procedure for
Binational Panel Proceedings, Extraordinary Challenge Committee
Proceedings, and Special Committee Proceedings
AGENCY: Office of the United States Trade Representative (USTR).
ACTION: Notice of rules of procedure for binational panel proceedings,
extraordinary challenge committee proceedings, and special committee
proceedings under the United States-Mexico-Canada Agreement (USMCA).
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SUMMARY: Canada, Mexico, and the United States have finalized the rules
of procedure for binational panel proceedings, extraordinary challenge
committee proceedings, and special committee proceedings under the
USMCA.
DATES: Applicable as of July 1, 2020, the date USMCA entered into
force. These rules of procedure apply to all binational panel
proceedings, extraordinary challenge committee proceedings, and special
committee proceedings commenced under USMCA.
FOR FURTHER INFORMATION CONTACT: For general questions about this
notice, contact Associate General Counsel Philip Butler or Assistant
General Counsel Thor Petersen at (202) 395-5804. For procedural matters
involving cases under review, contact Vidya Desai, United States
Secretary, USMCA Secretariat, Room 2061, U.S. Department of Commerce,
1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202)
482-5438; email: <a href="/cdn-cgi/l/email-protection#d3a6a0b293b0b2bdfeefb2f3bba1b6b5ee" http: mex-usa-sec.org">mex-usa-sec.org</a>">usa@can-<a href="http://mex-usa-sec.org">mex-usa-sec.org</a></a>.
SUPPLEMENTARY INFORMATION:
Background
Article 10.12 of the USMCA establishes a mechanism for replacing
judicial review of final antidumping and countervailing duty
determinations involving imports from Canada, Mexico or the United
States with review by independent binational panels. If requested,
these panels will review final determinations to determine whether they
are consistent with the antidumping or countervailing duty law of the
importing country.
Annex 10-B.3 of the USMCA establishes a mechanism for the formation
of an extraordinary challenge committee to review the appeal of Article
10.12 panel decisions under certain circumstances described in Article
10.12.13 of the USMCA. Article 10.13 of the USMCA establishes a
mechanism for special committees to review certain procedural
allegations described in Article 10.13.1 of the USMCA. Section 504 of
the United States-Mexico-Canada Agreement Implementation Act, Public
Law 116-113, 134 Stat. 11, amended United States law to implement
Chapter Ten of the USMCA. See, e.g., 19 U.S.C. 4581 et. seq.; see also
19 CFR 356.1 et seq.
The USMCA Rules of Procedure for Article 10.12, Annex 10-B.3, and
Article 10.13 are intended to give effect to the provisions of Chapter
Ten of the USMCA by setting forth the procedures for commencing,
conducting, and completing reviews. These rules are the result of
negotiations among Canada, Mexico, and the United States in compliance
with the terms of the USMCA, and are derived in large part from the
rules established under Chapter 19 of the North American Free Trade
Agreement. The English versions of the rules of procedure under Article
10.12 (Binational Panel Reviews) and
[[Page 10172]]
Article 10.13 (Special Committees) were adopted under Decision No. 2 of
the Free Trade Commission, with French and Spanish versions adopted
under Decision No. 4 of the Free Trade Commission. The English, French,
and Spanish versions of the rules of procedure under Annex 10-B.3
(Extraordinary Challenge Committees) were adopted under Decision No. 4
of the Free Trade Commission.
The USMCA Article 10.12, Annex 10-B.3, and Article 10.13 rules are
reproduced in the annex to this notice. These rules are also available
at: <a href="https://can-mex-usa-sec.org/">https://can-mex-usa-sec.org/</a>.
Juan Millan,
Assistant United States Trade Representative for Monitoring and
Enforcement, Office of the United States Trade Representative.
ANNEX
RULES OF PROCEDURE FOR ARTICLE 10.12 (BINATIONAL PANEL REVIEWS)
Part I: Initial Provisions and Definitions (Rules 1-10)
Application
1. These Rules are established in accordance with Article 10.12.14
(Review of Final Antidumping and Countervailing Duty Determinations) of
the Agreement and apply to all panel reviews under Article 10.12
(Review of Final Antidumping and Countervailing Duty Determinations) of
the Agreement. These Rules will be published in Canada in the Canada
Gazette, in Mexico in the Diario Oficial de la Federaci[oacute]n, and
in the United States in the Federal Register.
Short Title
2. These Rules may be cited as the Article 10.12 Binational Panel
Rules.
Statement of General Intent
3. These Rules are intended to give effect to the provisions of
Chapter 10 (Trade Remedies) of the Agreement with respect to panel
reviews conducted pursuant to Article 10.12 (Review of Final
Antidumping and Countervailing Duty Determinations) of the Agreement
and are designed to result in decisions of panels within 315 days after
the commencement of the panel review. The purpose of these Rules is to
secure the just, speedy, and inexpensive review of final determinations
in accordance with the objectives and provisions of Article 10.12
(Review of Final Antidumping and Countervailing Duty Determinations) of
the Agreement. If a procedural question arises that is not covered by
these Rules, a panel may adopt the procedure to be followed in the
particular case before it by analogy to these Rules or may refer for
guidance to rules of procedure of a court that would otherwise have had
jurisdiction in the importing country.
4. In the event of any inconsistency between these Rules and the
Agreement, the Agreement shall prevail.
Definitions and Interpretation
5. For the purposes of these Rules,
Agreement means the Agreement signed between Canada, Mexico, and
the United States on November 30, 2018, as amended;
Code of Conduct means the code of conduct established by the
Parties pursuant to Article 10.17 (Code of Conduct) of the Agreement;
complainant means a Party or interested person who files a
Complaint pursuant to Rule 44;
counsel means with respect to a panel review of a final
determination made in:
(a) Canada, a person entitled to appear as counsel before the
Federal Court of Canada;
(b) Mexico, a person entitled to appear as counsel before the
Tribunal Federal de Justicia Administrativa; and
(c) the United States, a person entitled to appear as counsel
before a federal court in the United States;
counsel of record means a counsel referred to in subrule 26(1);
final determination means, in the case of Canada, a definitive
decision within the meaning of subsection 77.01(1) of the Special
Import Measures Act, as amended;
first Request for Panel Review means:
(a) if only one Request for Panel Review is filed for review of a
final determination, that Request; and
(b) if more than one Request for Panel Review is filed for review
of the same final determination, the Request that is filed first;
government information means, with respect to a panel review of a
final determination made in:
(a) Canada, information:
(i) the disclosure of which would be injurious to international
relations or national defense or security,
(ii) that constitutes a confidence of the Queen's Privy Council for
Canada, or
(iii) contained in government-to-government correspondence that is
transmitted in confidence;
(b) Mexico, information the disclosure of which is prohibited under
the laws and regulations of Mexico, including:
(i) data, statistics, and documents referring to national security
and strategic activities for scientific and technological development,
and
(ii) information contained in government-to-government
correspondence that is transmitted in confidence, and
(c) the United States, information classified in accordance with
Executive Order No. 12065 or its successor;
interested person means a person who, pursuant to the laws of the
country in which a final determination was made, would be entitled to
appear and be represented in a judicial review of the final
determination;
investigating authority means the competent investigating
authority, as defined in Article 10.8 (Definitions) of the Agreement,
that issued the final determination subject to review and includes, in
respect of the issuance, amendment, modification or revocation of a
Proprietary Information Access Order, a person authorized by the
investigating authority;
involved Secretariat means the Section of the Secretariat located
in the country of an involved Party;
legal holiday with respect to a Party's Section of the Secretariat,
means every Saturday, Sunday, and any other day designated by that
Party as a holiday for the purposes of these Rules and notified by that
Party to its Section of the Secretariat and by that Section to the
other Sections of the Secretariat and the other Parties;
official publication means, in the case of the Government of:
(a) Canada, the Canada Gazette;
(b) Mexico, the Diario Oficial de la Federaci[oacute]n; and
(c) the United States, the Federal Register;
panel means a binational panel established pursuant to Annex 10-B.1
(Establishment of Binational Panels) of the Agreement for the purpose
of reviewing a final determination;
participant means any of the following persons who files a
Complaint pursuant to Rule 44 or a Notice of Appearance pursuant to
Rule 45:
(a) a Party;
(b) an investigating authority; or
(c) an interested person;
Party means the Government of Canada, the Government of Mexico, or
the Government of the United States;
person means:
(a) an individual;
(b) a Party;
(c) an investigating authority;
(d) a government of a province, state, or other political
subdivision of the country of a Party;
(e) a department, agency, or body of a Party or of a government
referred to in paragraph (d); or
(f) a partnership, corporation, or association;
pleading means a Request for Panel Review, a Complaint, a Notice of
Appearance, a Change of Service Address, a Notice of Motion, a Notice
of
[[Page 10173]]
Change of Counsel of Record, a brief, or any other written submission
filed by a participant;
President means the President of the Canada Border Services Agency
appointed under subsection 7(1) of the Canada Border Services Agency
Act, as amended, and includes a person authorized to perform a power,
duty, or function of the President under the Special Import Measures
Act, as amended;
privileged information means with respect to a panel review of a
final determination made in:
(a) Canada, information of the investigating authority that is
subject to solicitor-client privilege under the laws of Canada, or that
constitutes part of the deliberative process with respect to the final
determination, and with respect to which the privilege has not been
waived;
(b) Mexico,
(i) information of the investigating authority that is subject to
attorney-client privilege under the laws of Mexico, or
(ii) internal communications between officials of the Secretariat
of Economy (Secretar[iacute]a de Econom[iacute]a) in charge of
antidumping and countervailing duty investigations or communications
between those officials and other government officials, where those
communications constitute part of the deliberative process with respect
to the final determination; and
(c) the United States, information of the investigating authority
that is subject to the attorney-client, attorney work product or
government deliberative process privilege under the laws of the United
States with respect to which the privilege has not been waived;
proof of service means with respect to a panel review of a final
determination made in:
(a) Canada or Mexico,
(i) an affidavit of service stating by whom the document was
served, the date on which it was served, where it was served, and the
manner of service, or
(ii) an acknowledgement of service by counsel for a participant
stating by whom the document was served, the date on which it was
served and the manner of service, and, if the acknowledgement is signed
by a person other than the counsel, the name of that person followed by
a statement that the person is signing as agent for the counsel; and
(b) the United States, a certificate of service in the form of a
statement of the date and manner of service and of the name of the
person served, signed by the person who made service;
proprietary information means with respect to a panel review of a
final determination made in:
(a) Canada, information referred to in subsection 84(3) of the
Special Import Measures Act, as amended, or subsection 45(3) of the
Canadian International Trade Tribunal Act, as amended, with respect to
which the person who designated or submitted the information has not
withdrawn the person's claim as to the confidentiality of the
information;
(b) Mexico, informaci[oacute]n confidencial, as defined under
article 80 of the Ley de Comercio Exterior and its regulations; and
(c) the United States, business proprietary information under
section 777(f) of the Tariff Act of 1930, as amended, and any
regulations made under that Act;
Proprietary Information Access Application means with respect to a
panel review of a final determination made in:
(a) Canada, a disclosure undertaking in the prescribed form, which
form,
(i) in respect of a final determination by the President, is
available from the President, and
(ii) in respect of a final determination by the Tribunal, is
available from the Tribunal;
(b) Mexico, a disclosure undertaking in the prescribed form, which
form is available from the Secretariat of Economy (Secretar[iacute]a de
Econom[iacute]a); and
(c) the United States, a Protective Order Application,
(i) in respect of a final determination by the International Trade
Administration of the United States Department of Commerce, in a form
prescribed by, and available from, the International Trade
Administration of the United States Department of Commerce, and
(ii) in respect of a final determination by the United States
International Trade Commission, in a form prescribed by, and available
from, the United States International Trade Commission;
Proprietary Information Access Order means in the case of:
(a) Canada, a Disclosure Order issued by the President or the
Tribunal pursuant to a Proprietary Information Access Application;
(b) Mexico, a Disclosure Order issued by the Secretariat of Economy
(Secretar[iacute]a de Econom[iacute]a) pursuant to a Proprietary
Information Access Application; and
(c) the United States, a Protective Order issued by the
International Trade Administration of the United States Department of
Commerce or the United States International Trade Commission pursuant
to a Proprietary Information Access Application;
responsible Secretariat means the Section of the Secretariat
located in the country in which the final determination under review
was made;
responsible Secretary means the Secretary of the responsible
Secretariat;
Secretariat means the Secretariat established pursuant to Article
30.6 (The Secretariat) of the Agreement;
Secretary means the Secretary of the United States Section of the
Secretariat, the Secretary of the Mexican Section of the Secretariat,
or the Secretary of the Canadian Section of the Secretariat, and
includes any person authorized to act on behalf of that Secretary;
service address means:
(a) with respect to a Party, the address filed with the Secretariat
as the service address of the Party, including an electronic mail
address submitted with that address;
(b) with respect to a participant other than a Party, the address
of the counsel of record for the person, including an electronic mail
address submitted with that address, or if the person is not
represented by counsel, the address set out by the participant in a
Request for Panel Review, Complaint or Notice of Appearance as the
address at which the participant may be served, including an electronic
mail address submitted with that address; or
(c) if a Change of Service Address has been filed by a Party or
participant, the address set out as the new service address in that
form, including an electronic mail address submitted with that address;
service list means, with respect to a panel review,
(a) if the final determination was made in Canada, a list
comprising the other involved Party and,
(i) in the case of a final determination made by the President,
persons named on the list maintained by the President who participated
in the proceedings before the President and who were exporters or
importers of goods of the country of the other involved Party or
complainants referred to in section 34 of the Special Import Measures
Act, as amended, and
(ii) in the case of a final determination made by the Tribunal,
persons named on the list maintained by the Tribunal of parties in the
proceedings before the Tribunal who were exporters or importers of
goods of the country of the other involved Party, complainants referred
to in section 31 of the Special Import Measures Act, as amended, or
other domestic parties whose interest in
[[Page 10174]]
the findings of the Tribunal is with respect to goods of the country of
the other involved Party; and
(b) if the final determination was made in Mexico or the United
States, the list, maintained by the investigating authority of persons
who have been served in the proceedings leading to the final
determination; and
Tribunal means the Canadian International Trade Tribunal or its
successor and includes any person authorized to act on its behalf.
6. The definitions set forth in Article 10.8 (Definitions) of the
Agreement are hereby incorporated into these Rules.
7. When these Rules require that notice be given, it shall be given
in writing.
Code of Conduct
8. Candidates being considered for appointment to a panel,
panelists, and their assistants and staff, must comply with the Code of
Conduct established under Article 10.17 (Code of Conduct) of the
Agreement.
9. The responsible Secretariat shall provide a copy of the Code of
Conduct to each candidate being considered for appointment to serve as
a member of a panel, and to each individual selected to serve as a
panelist as well as to their assistants and staff.
10. If a participant believes that a panelist, assistant, or staff
to a panelist is in violation of the Code of Conduct, the participant
shall immediately notify the responsible Secretary in writing of the
alleged violation. The responsible Secretary shall promptly notify the
other involved Secretary and the involved Parties of the allegations.
Part II: General (Rules 11-37)
Duration and Scope of Panel Review
11. A panel review commences on the day on which a first Request
for Panel Review is filed with the Secretariat and terminates on the
day on which a Notice of Completion of Panel Review is effective.
12. A panel review shall be limited to:
(a) the allegations of error of fact or law, including challenges
to the jurisdiction of the investigating authority, that are set out in
the Complaints filed in the panel review; and
(b) procedural and substantive defenses raised in the panel review.
Responsibility of the Secretariat
13. The normal business hours of the Secretariat, during which the
offices of the Secretariat shall be open to the public, shall be from
9:00 a.m. to 5:00 p.m. on each weekday other than, in the case of the:
(a) United States Section of the Secretariat, legal holidays of
that Section;
(b) Canadian Section of the Secretariat, legal holidays of that
Section; and
(c) Mexican Section of the Secretariat, legal holidays of that
Section.
14. The responsible Secretary shall provide administrative support
for each panel review and shall make the arrangements necessary for the
oral proceedings and meetings of each panel, including, if required,
interpreters to provide simultaneous translation.
15. (1) Each Secretary must maintain a file for each panel review.
Subject to subrules (3) and (4), the file must be comprised of either
the original or a copy of all documents filed, whether or not filed in
accordance with these Rules, in the panel review.
(2) The file number assigned to a first Request for Panel Review
must be the Secretariat file number for all documents filed or issued
in that panel review. All documents filed must be stamped by the
Secretariat to show the date and time of receipt.
(3) If, after notification of the selection of a panel pursuant to
Rule 47, a document is filed that is not provided for in these Rules or
that is not in accordance with the Rules, the responsible Secretary may
refer the unauthorized filing to the chair of the Panel for
instructions, provided that the authority has been delegated by the
Panel to its chair pursuant to subrule 22(2).
(4) On a referral referred to in subrule (3), the chair may
instruct the responsible Secretary to:
(a) retain the document in the file, without prejudice to a motion
to strike that document; or
(b) return the document to the person who filed the document,
without prejudice to a motion for leave to file the document.
16. (1) The responsible Secretary shall forward to the other
involved Secretary all orders and decisions issued by the panel. The
responsible Secretary shall also forward to the other involved
Secretary a copy of all documents filed in the office of the
responsible Secretary that are not clearly marked as privileged or
proprietary pursuant to subrules 48(2)(b) and 60(1)(a).
(2) If an involved Secretariat makes a written request to the
responsible Secretary requesting any privileged or proprietary
documents, the responsible Secretary shall forward those documents to
the involved Secretariat forthwith.
17. If under these Rules a responsible Secretary is required to
publish a notice or other document in the official publications of the
involved Parties, the responsible Secretary and the other involved
Secretary shall cause the notice or other document to be published in
the official publication of the country in which that Section of the
Secretariat is located.
18. (1) Each Secretary and every member of the staff of the
Secretariat shall, before taking up duties, file a Proprietary
Information Access Application with each of the President, the
Tribunal, the Secretariat of Economy (Secretar[iacute]a de
Econom[iacute]a), the International Trade Administration of the United
States Department of Commerce, and the United States International
Trade Commission.
(2) If a Secretary or a member of the staff of the Secretariat
files a Proprietary Information Access Application in accordance with
subrule (1), the appropriate investigating authority shall issue to the
Secretary or to the member a Proprietary Information Access Order.
19. (1) The responsible Secretary shall file either physically with
the investigating authority one original and any additional copies
required, or electronically with the investigating authority, of every
Proprietary Information Access Application and any amendments or
modifications thereto, filed by a panelist, assistant to a panelist,
court reporter, interpreter, or translator pursuant to Rule 51.
(2) The responsible Secretary shall ensure that every panelist,
assistant to a panelist, court reporter, interpreter, and translator,
before taking up duties in a panel review, files with the responsible
Secretariat a copy of a Proprietary Information Access Order.
20. If a document containing proprietary information or privileged
information is filed with the responsible Secretariat, each involved
Secretary shall ensure that:
(a) the document is stored, maintained, handled, and distributed in
accordance with the terms of any applicable Proprietary Information
Access Order;
(b) the inner wrapper or cover sheet of the document is clearly
marked to indicate that it contains proprietary information or
privileged information; and
(c) access to the document is limited to officials of, and counsel
for, the investigating authority whose final determination is under
review, and
(i) in the case of proprietary information, the person who
submitted the proprietary information to the investigating authority or
counsel for that person and any persons who have been granted access to
the information
[[Page 10175]]
under a Proprietary Information Access Order with respect to the
document, and
(ii) in the case of privileged information filed in a panel review
of a final determination made in the United States or Canada, persons
with respect to whom the panel has ordered disclosure of the privileged
information under Rule 56, if the persons have filed with the
responsible Secretariat a Proprietary Information Access Order with
respect to the document.
21. (1) Each Secretary shall permit access by any person to the
information in the file in a panel review that is not proprietary
information or privileged information and shall provide copies of that
information on request and payment of an appropriate fee.
(2) Each Secretary shall, in accordance with subrule 20(c) and the
terms of the applicable Proprietary Information Access Order or order
of the panel,
(a) permit access to proprietary information or privileged
information in the file of a panel review; and
(b) on payment of an appropriate fee, provide a copy of the
information referred to in subrule (2)(a).
(3) No document filed in a panel review shall be removed from the
offices of the Secretariat except in the ordinary course of the
business of the Secretariat or pursuant to the direction of a panel.
Internal Functioning of Panels
22. (1) A panel may adopt its own internal procedures, not
inconsistent with these Rules, for routine administrative matters.
(2) A panel may delegate to its chair,
(a) the authority to accept or reject filings in accordance with
subrule 15(4); and
(b) the authority to grant motions consented to by all
participants, other than a motion filed pursuant to Rule 25 or Rule 56,
a motion for remand of a final determination, or a motion that is
inconsistent with an order or decision previously made by the panel.
(3) A decision of the chair referred to in subrule (2) shall be
issued as an order of the panel.
(4) Subject to subrule 31(b), meetings of a panel may be conducted
by means of a telephone or video conference call.
23. Only panelists may take part in the deliberations of a panel,
which shall take place in private and remain secret. Staff of the
involved Secretariats and assistants to panelists may be present by
permission of the panel.
Computation of Time
24. (1) In computing any time period fixed in these Rules or by an
order or decision of a panel, the day from which the time period begins
to run shall be excluded and, subject to subrule (2), the last day of
the time period shall be included.
(2) If the last day of a time period computed in accordance with
subrule (1) falls on a legal holiday of the responsible Secretariat or
on any other day on which the offices of that Section are closed by
order of the government or because of unforeseen circumstances outside
that Party's control, that day and any other legal holidays of the
responsible Secretariat immediately following that day shall be
excluded from the computation.
25. (1) A panel may extend any time period fixed in these Rules if:
(a) adherence to the time period would result in unfairness or
prejudice to a participant or the breach of a general legal principle
of the country in which the final determination was made;
(b) the time period is extended only to the extent necessary to
avoid the unfairness, prejudice, or breach;
(c) the decision to extend the time period is agreed to by four of
the five panelists; and
(d) in fixing the extension, the panel takes into account the
intent of the Rules to secure just, speedy and inexpensive reviews of
final determinations.
(2) A participant may request an extension of time by filing a
Notice of Motion no later than the tenth day prior to the last day of
the time period. Any response to the Notice of Motion shall be filed no
later than seven days after the Notice of Motion is filed.
(3) A participant who fails to request an extension of time
pursuant to subrule (2) may file a Notice of Motion for leave to file
out of time, which shall include reasons why additional time is
required and why the participant has failed to comply with the
provisions of subrule (2).
(4) The panel will normally rule on a motion under subrule (3)
before the last day of the time period which is the subject of the
motion.
Counsel of Record
26. (1) A counsel who signs a document filed pursuant to these
Rules on behalf of a participant shall be the counsel of record for the
participant from the date of filing until a change is effected in
accordance with subrule (2).
(2) A participant may change its counsel of record by filing with
the responsible Secretariat a Notice of Change of Counsel of Record
signed by the new counsel, together with proof of service on the former
counsel and other participants.
(3) A participant other than an individual must be represented by a
counsel of record.
Filing, Service, and Communications
27. (1) Subject to subrule 50(1), Rule 51 and subrules 54(1), 56(3)
and 77(2)(a), a document is filed with the Secretariat when the
responsible Secretariat receives the document, during its normal
business hours and within the time period fixed for filing, physically,
with one original and two copies, or when the document is filed by
electronic means.
(2) The responsible Secretariat shall also acknowledge receipt
physically or electronically, to the party filing the document.
(3) Acknowledgement pursuant to subrule (2) does not constitute a
waiver of any time period fixed for filing or an acknowledgement that
the document has been filed in accordance with these Rules.
28. The responsible Secretary shall be responsible for the service
of the following, which may be satisfied through an electronic
notification if the involved Parties have agreed to an electronic
filing platform that is in use by the responsible Secretariat:
(a) Notices of Intent to Commence Judicial Review and Complaints on
each Party;
(b) Requests for Panel Review on the Parties, the investigating
authority, and the persons listed on the service list; and
(c) Notices of Appearance, Proprietary Information Access Orders
granted to panelists, assistants to panelists, court reporters,
interpreter(s), or translators, and any amendments or modifications
thereto or notices of revocation thereof, decisions and orders of a
panel, Notices of Final Panel Action, and Notices of Completion of
Panel Review on the participants.
29. (1) Subject to subrules (6) and (7), all documents filed by a
participant, other than the administrative record, any supplementary
remand record and any document required by Rule 28 to be served by the
responsible Secretary, shall be served by the participant on the
counsel of record of each of the other participants, or if a
participant is not represented by counsel, on the participant.
(2) If an electronic filing platform agreed upon by the involved
Parties is used for filing, electronic notification by the filing
platform shall satisfy the service requirements of this Rule.
(3) A proof of service shall appear on, or be affixed to, all
documents referred to in subrule (1).
[[Page 10176]]
(4) If a document is served by expedited delivery courier or
expedited mail service, the date of service set out in the affidavit of
service or certificate of service shall be the day on which the
document is consigned to the expedited delivery courier or expedited
mail service.
(5) If a document is served electronically, the date of service
shall be the day on which the document is sent by the sender.
(6) A document containing proprietary information or privileged
information shall be filed and served under seal in accordance with
Rules 48 and 60(1)(a), and shall be served only on:
(a) the investigating authority; and
(b) participants who have been granted access to the proprietary
information or privileged information under a Proprietary Information
Access Order or an order of the panel.
(7) A complainant shall serve a Complaint on the investigating
authority and on all persons listed on the service list.
30. Subject to subrule 31(a), a document may be served by:
(a) mailing or delivering a copy of the document to the service
address of the participant by expedited delivery courier or expedited
mail service;
(b) transmitting a copy of the document to the electronic service
address of the participant;
(c) personal service on the participant; or
(d) any means, including the use of an electronic filing platform
agreed upon by the involved Parties, that the responsible Secretariat,
in consultation with participants, may direct.
31. If proprietary information or privileged information is
disclosed in a panel review to a person pursuant to a Proprietary
Information Access Order, the person shall not:
(a) file, serve, or otherwise communicate the proprietary
information or privileged information by unsecure electronic means
except as authorized by the terms of that Order; or
(b) communicate the proprietary information or privileged
information by telephone.
32. Service on an investigating authority does not constitute
service on a Party and service on a Party does not constitute service
on an investigating authority.
Pleadings and Simultaneous Translation of Panel Reviews in Canada
33. Rules 34 to 36 apply with respect to a panel review of a final
determination made in Canada.
34. A person or panelist may use either English or French in a
document or oral proceeding.
35. (1) Subject to subrule (2), any order or decision including the
reasons for it, issued by a panel, shall be made available
simultaneously in both English and French if:
(a) in the opinion of the panel, the order or decision is in
respect of a question of law of general public interest or importance;
or
(b) the proceedings leading to the issuance of the order or
decision were conducted in whole or in part in English and French.
(2) If an order or decision,
(a) issued by a panel is not required by subrule (1) to be made
available simultaneously in English and French; or
(b) is required by subrule (1)(a) to be made available
simultaneously in both English and French but the panel is of the
opinion that to make the order or decision available simultaneously in
both English and French would occasion a delay prejudicial to the
public interest or result in injustice or hardship to any participant;
the order or decision, including the reasons therefor, shall be issued
in the first instance in either English or French and thereafter at the
earliest possible time in the other language, each version to be
effective from the time the first version is effective.
(3) Nothing in subrule (1) or (2) shall be construed as prohibiting
the oral delivery in either English or French of any order or decision
or any reasons therefor.
(4) No order or decision is invalid by reason only that it was not
made or issued in both English and French.
36. (1) Any oral proceeding conducted in both English and French
shall be translated simultaneously.
(2) If a participant requests simultaneous translation of oral
proceedings in a panel review, the request shall be made as early as
possible in the panel review and preferably at the time of filing a
Complaint or a Notice of Appearance.
(3) If the chair of a panel is of the opinion that there is a
public interest in the panel review, the chair may direct the
responsible Secretary to arrange for simultaneous translation of any of
the oral proceedings in the panel review.
Costs of Participation, Panel Remuneration, and Expenses
37. (1) Each participant shall bear the costs of, and those
incidental to, its own participation in a panel review.
(2) The involved Parties shall bear equally the remuneration and
expenses of panelists selected under Annex 10-B.1 (Establishment of
Binational Panels), and of their assistants, and all administrative
expenses of the panel.
(3) Unless the involved Parties agree otherwise, remuneration for
panelists shall be paid at the rate for non-governmental panelists used
by the WTO on the date the Request for Panel Review is made pursuant to
Article 10.12 (Review of Final Antidumping and Countervailing Duty
Determinations).
(4) Unless the involved Parties agree otherwise, travel expenses
shall be paid at the Daily Subsistence Allowance rate for the location
of the hearing established by the United Nations International Civil
Service Commission on the date a Request for Panel Review is made
pursuant to Article 10.12 (Review of Final Antidumping and
Countervailing Duty Determinations).
(5) Each panelist may hire one assistant to provide research,
translation, or interpretation support, unless a panelist requires an
additional assistant and the involved Parties agree that, due to
exceptional circumstances, the panelist should be permitted to hire an
additional assistant. Each assistant to a panelist shall be paid at a
rate of one-fifth the rate for a panelist.
(6) The expenses authorized for a panel established under Annex 10-
B.1 (Establishment of Binational Panels), shall be as follows:
(a) travel expenses: include the transportation costs of the
panelists and assistants, their accommodations and meals, as well as
related taxes and insurance. Travel arrangements shall be made and
travel expenses reimbursed, in accordance with the administrative
guidelines applied by the responsible Secretariat; and
(b) administrative expenses: include, among others, telephone
calls, courier services, fax, stationery, rent of locations used for
hearings and deliberations, interpreter services, court reporters, or
any other person or service contracted by the responsible Secretariat
to support the proceeding.
(7) Each panelist and assistant shall keep and render a final
account of his or her time and expenses to the responsible Secretariat,
and the panel shall keep and render a final account to the responsible
Secretariat of its administrative expenses. Each panelist and assistant
shall submit this account, including relevant supporting documentation,
such as invoices, in accordance with the administrative guidelines of
the responsible Secretariat. A panelist or assistant may submit
requests for payment of remuneration or reimbursement for expenses
during the
[[Page 10177]]
proceeding on a recommended quarterly basis throughout an ongoing
dispute. Panelists and assistants should submit any final requests for
payment of remuneration or reimbursement within 60 days of the filing
of a Notice of Completion of Panel Review.
(8) All requests for payment shall be subject to review by the
responsible Secretariat. The responsible Secretariat shall make
payments for the remuneration of panelists and assistants, and for
expenses in accordance with the administrative guidelines applied by
the responsible Secretariat, using resources provided equally by the
involved Parties, and in coordination with the involved Parties. No
responsible Secretariat shall be obligated to pay any remuneration or
expense in connection with a panel proceeding prior to receiving the
contributions of the involved Parties.
(9) The responsible Secretariat shall submit to the involved
Parties a final report on payments made in connection with a dispute.
On request of an involved Party, the responsible Secretariat shall
submit to the involved Parties a report of payments made to date at any
time during the panel proceedings.
(10) In case of resignation or removal of a panelist or assistant,
or if a Panel issues an Order dismissing or terminating a proceeding,
the responsible Secretariat will make payment of the remuneration and
expenses owed up until the date of resignation or removal of the
panelist or assistant, or the date of the Order of dismissal or
termination, using resources provided equally by the involved Parties.
A panelist's or assistant's final account of time or expenses must
follow the procedures in paragraph 7 and should be submitted within 60
days of the date of their resignation, or removal, or of an Order
dismissing or terminating the panel proceeding.
Part III: Commencement of Panel Review (Rules 38-46)
Notice of Intent To Commence Judicial Review
38. (1) If an interested person intends to commence judicial review
of a final determination, the interested person shall,
(a) if the final determination was made in Canada, publish a notice
to that effect in the Canada Gazette and serve a Notice of Intent to
Commence Judicial Review on both involved Secretaries and on all
persons listed on the service list; and
(b) if the final determination was made in Mexico or the United
States, no later than 20 days after the date referred to in subrule
(3)(b) or (c), serve a Notice of Intent to Commence Judicial Review on:
(i) both involved Secretaries,
(ii) the investigating authority, and
(iii) all persons listed on the service list.
(2) If the final determination referred to in subrule (1) was made
in Canada, the Secretary of the Canadian Section of the Secretariat
shall serve a copy of the Notice of Intent to Commence Judicial Review
on the investigating authority.
(3) Every Notice of Intent to Commence Judicial Review referred to
in subrule (1) must include the following information (model form
provided in the Schedule):
(a) the information set out in subrules 59(1)(c) to (f);
(b) the title of the final determination for which judicial review
is sought, the investigating authority that issued the final
determination, the file number assigned by the investigating authority,
and, if the final determination was published in an official
publication, the appropriate citation, including the date of
publication; and
(c) the date on which the notice of the final determination was
received by the other Party if the final determination was not
published in an official publication.
Request for Panel Review
39. (1) A Request for Panel Review shall be made in accordance with
the requirements of:
(a) section 77.011 or 96.21 of the Special Import Measures Act, as
amended, and any regulations made thereunder;
(b) section 516A of the Tariff Act of 1930, as amended, and any
regulations made thereunder;
(c) section 504 of the United States-Mexico-Canada Implementation
Act and any regulations made thereunder; or
(d) articles 97 and 98 of the Ley de Comercio Exterior and its
regulations.
(2) A Request for Panel Review must contain the following
information (model form provided in the Schedule):
(a) the information set out in subrule 59(1);
(b) the title of the final determination for which panel review is
requested, the investigating authority that issued the final
determination, the file number assigned by the investigating authority,
and, if the final determination was published in an official
publication, the appropriate citation;
(c) the date on which the notice of the final determination was
received by the other Party if the final determination was not
published in an official publication;
(d) the service list, as defined in Rule 5.
40. (1) On receipt of a first Request for Panel Review, the
responsible Secretary shall:
(a) forthwith forward a copy of the Request to the other involved
Secretary;
(b) forthwith inform the other involved Secretary of the
Secretariat file number; and
(c) serve a copy of the first Request for Panel Review on the
persons listed on the service list together with a statement setting
out the date on which the Request was filed and stating that:
(i) a Party or interested person may challenge the final
determination in whole or in part by filing a Complaint in accordance
with Rule 44 no later than 30 days after the filing of the first
Request for Panel Review,
(ii) a Party, an investigating authority, or other interested
person who does not file a Complaint but who intends to participate in
the panel review must file a Notice of Appearance in accordance with
Rule 45 no later than 45 days after the filing of the first Request for
Panel Review, and
(iii) the panel review will be limited to the allegations of error
of fact or law, including challenges to the jurisdiction of the
investigating authority, that are set out in the Complaints filed in
the panel review and to the procedural and substantive defenses raised
in the panel review.
(2) On the filing of a first Request for Panel Review, the
responsible Secretary shall forthwith publish a notice of that Request
in the official publications of the involved Parties, stating that a
Request for Panel Review has been received and specifying the date on
which the Request was filed, the final determination for which panel
review is requested and the information set out in subrule (1)(c).
Joint Panel Reviews
41. (1) Subject to Rule 42, if a panel is established to review a
final determination made under,
(a) paragraph 41(1)(b) of the Special Import Measures Act, as
amended, with respect to particular goods of the United States or
Mexico and a Request for Panel Review of a final determination made
under subsection 43(1) of that Act with respect to those goods is
filed; or
(b) section 705(a) or 735(a) of the Tariff Act of 1930, as amended,
with respect to particular goods of Canada or Mexico and a Request for
Panel Review of a final determination made under section 705(b) or
735(b) of that Act with
[[Page 10178]]
respect to those goods is filed; no later than 10 days after that
Request is filed, a participant in the former panel review, the
investigating authority in the latter panel review, or an interested
person listed in the service list of the latter panel review may file a
motion in the former panel review requesting that both final
determinations be reviewed jointly by one panel.
(2) Any participant in the former panel review, the investigating
authority in the latter panel review, or an interested person listed in
the service list of the latter panel review who certifies an intention
to become a participant in the latter panel review may, no later than
10 days after a motion is filed under subrule (1), file an objection to
the motion, in which case the motion shall be deemed to be denied and
separate panel reviews shall be held.
42. (1) If a panel is established to review a final determination
made under paragraph 41(1)(b) of the Special Import Measures Act, as
amended, that applies with respect to particular goods of the United
States or Mexico and a Request for Panel Review of a negative final
determination made under subsection 43(1) of that Act with respect to
those goods is filed, the final determinations shall be reviewed
jointly by one panel.
(2) If a panel is established to review a final determination made
under section 705(a) or 735(a) of the Tariff Act of 1930, as amended,
that applies with respect to particular goods of Canada or Mexico and a
Request for Panel Review of a negative final determination made under
section 705(b) or 735(b) of that Act with respect to those goods is
filed, the final determinations shall be reviewed jointly by one panel.
43. (1) Subject to subrules (2) and (3), if final determinations
are reviewed jointly pursuant to Rule 41 or 42, the time periods fixed
under these Rules for the review of the final determination made under
subsection 43(1) of the Special Import Measures Act, as amended, or
section 705(b) or 735(b) of the Tariff Act of 1930, as amended, shall
apply to the joint review, commencing with the date fixed for filing
briefs pursuant to Rule 61.
(2) Unless otherwise ordered by a panel as a result of a motion
under subrule (3), if final determinations are reviewed jointly
pursuant to Rule 42, the panel shall issue its decision with respect to
the final determination made under subsection 43(1) of the Special
Import Measures Act, as amended, or section 705(b) or 735(b) of the
Tariff Act of 1930, as amended, and if the panel remands the final
determination to the investigating authority and the Determination on
Remand is affirmative, the panel shall thereafter issue its decision
with respect to the final determination made under paragraph 41(1)(b)
of the Special Import Measures Act, as amended, or section 705(a) or
735(a) of the Tariff Act of 1930, as amended.
(3) If the final determinations are reviewed jointly pursuant to
Rule 41 or 42, a participant may, unilaterally or with the consent of
the other participants, request by motion that time periods, other than
the time periods referred to in subrule (1), be fixed for the filing of
pleadings, oral proceedings, decisions and other matters.
(4) A Notice of Motion pursuant to subrule (3) must be filed no
later than 10 days after the date fixed for filing Notices of
Appearance in the review of the final determination made under
subsection 43(1) of the Special Import Measures Act, as amended, or
section 705(b) or 735(b) of the Tariff Act of 1930, as amended.
(5) Unless otherwise ordered by a panel, if the panel has not
issued a ruling on a motion filed pursuant to subrule (3) no later than
30 days after the filing of the Notice of Motion, the motion shall be
deemed denied.
Complaint
44. (1) Subject to subrule (3), any interested person who intends
to make an allegation of an error of fact or law, including a challenge
to the jurisdiction of the investigating authority, with respect to a
final determination, shall file with the responsible Secretariat, no
later than 30 days after the filing of a first Request for Panel Review
of the final determination, a Complaint, together with proof of service
on the investigating authority and on all persons listed on the service
list.
(2) Every Complaint referred to in subrule (1) must contain the
following information (model form provided in the Schedule):
(a) the information set out in subrule 59(1);
(b) the precise nature of the Complaint, including the applicable
standard of review and the allegations of errors of fact or law,
including challenges to the jurisdiction of the investigating
authority;
(c) a statement describing the interested person's entitlement to
file a Complaint under this Rule; and
(d) if the final determination was made in Canada, a statement as
to whether the complainant,
(i) intends to use English or French in pleadings and oral
proceedings before the panel, and
(ii) requests simultaneous translation of any oral proceedings.
(3) Only an interested person who would otherwise be entitled to
commence proceedings for judicial review of the final determination may
file a Complaint.
(4) Subject to subrule (5), an amended Complaint must be filed no
later than 5 days before the expiration of the time period for filing a
Notice of Appearance pursuant to Rule 45.
(5) An amended Complaint may, with leave of the panel, be filed
after the time limit set out in subrule (4) but no later than 20 days
before the expiration of the time period for filing briefs pursuant to
subrule 61(1).
(6) Leave to file an amended Complaint may be requested of the
panel by the filing of a Notice of Motion for leave to file an amended
Complaint accompanied by the proposed amended Complaint.
(7) If the panel does not grant a motion referred to in subrule (6)
within the time period for filing briefs pursuant to subrule 61(1), the
motion shall be deemed to be denied.
Notice of Appearance
45. (1) No later than 45 days after the filing of a first Request
for Panel Review of a final determination, the investigating authority
and any other interested person who proposes to participate in the
panel review and who has not filed a Complaint in the panel review must
file with the responsible Secretariat a Notice of Appearance containing
the following information (model form provided in the Schedule):
(a) the information set out in subrule 59(1);
(b) a statement as to the basis for the person's claim of
entitlement to file a Notice of Appearance under this rule;
(c) in the case of a Notice of Appearance filed by the
investigating authority, any admissions with respect to the allegations
set out in the Complaints;
(d) a statement as to whether appearance is made:
(i) in support of some or all of the allegations set out in a
Complaint under subrule 44(2)(b),
(ii) in opposition to some or all of the allegations set out in a
Complaint under subrule 44(2)(b), or
(iii) in support of some of the allegations set out in a Complaint
under subrule 44(2)(b) and in opposition to some of the allegations set
out in a Complaint under subrule 44(2)(b); and
(e) if the final determination was made in Canada, a statement as
to
[[Page 10179]]
whether the person filing the Notice of Appearance:
(i) intends to use English or French in pleadings and oral
proceedings before the panel, and
(ii) requests simultaneous translation of oral proceedings.
(2) Any complainant who intends to appear in opposition to
allegations set out in a Complaint under subrule 44(2)(b) shall file a
Notice of Appearance containing the statements referred to in subrules
(1)(b) and (1)(d)(ii) or (iii).
Record for Review
46. (1) The investigating authority whose final determination is
under review shall, no later than 15 days after the expiration of the
time period fixed for filing a Notice of Appearance, file with the
responsible Secretariat a copy of:
(a) the final determination, including reasons for the final
determination;
(b) an Index comprised of a descriptive list of all items contained
in the administrative record, together with proof of service of the
Index on all participants; and
(c) subject to subrules (3), (4) and (5), the administrative
record.
(2) An Index referred to in subrule (1)(b) must, if applicable,
identify those items that contain proprietary information, privileged
information, or government information by a statement to that effect.
(3) Where a document containing proprietary information is filed,
it must be filed under seal in accordance with Rule 48.
(4) No privileged information may be filed with the responsible
Secretariat unless the investigating authority waives the privilege and
voluntarily files the information, or the information is filed pursuant
to an order of a panel.
(5) No government information may be filed with the responsible
Secretariat unless the investigating authority, after having reviewed
the government information and, if applicable, after having pursued
appropriate review procedures, determines that the information may be
disclosed.
Part IV: Panels (Rule 47)
Announcement of Panel
47. On the completion of the selection of a panel, the responsible
Secretary shall notify the participants and the other involved
Secretary of the names of the panelists.
Part V: Proprietary Information and Privileged Information (Rules 48-
58)
Filing or Service Under Seal
48. (1) If, under these Rules, a document containing proprietary
information or privileged information is required to be filed under
seal with the Secretariat or is required to be served under seal, the
document shall be filed or served in accordance with this Rule and, if
the document is a pleading, in accordance with Rule 60.
(2) A document filed or served under seal shall be:
(a) separate from all other documents;
(b) clearly marked:
(i) with respect to a panel review of a final determination made in
Canada,
(A) in the case of a document containing proprietary information,
``Proprietary'', ``Confidential'', ``De nature exclusive'' or
``Confidentiel'', and
(B) in the case of a document containing privileged information,
``Privileged'' or ``Prot[eacute]g[eacute]'',
(ii) with respect to a panel review of a final determination made
in Mexico,
(A) in the case of a document containing proprietary information,
``Confidencial'', and
(B) in the case of a document containing privileged information,
``Privilegiada'', and
(iii) with respect to a panel review of a final determination made
in the United States,
(A) in the case of a document containing proprietary information,
``Proprietary'', and
(B) in the case of a document containing privileged information,
``Privileged''; and
(c) inside:
(i) an opaque inner wrapper and an opaque outer wrapper, if filed
or served physically, or
(ii) a cover sheet, if filed or served electronically.
(3) An inner wrapper or cover sheet referred to in subrule (2)(c)
shall indicate
(a) that proprietary information or privileged information is
enclosed, as the case may be; and
(b) the Secretariat file number of the panel review.
49. Filing or service of proprietary information or privileged
information with the Secretariat does not constitute a waiver of the
designation of the information as proprietary information or privileged
information.
Proprietary Information Access Orders
50. (1) A counsel of record, or a professional retained by, or
under the control or direction of, a counsel of record, who wishes
disclosure of proprietary information in a panel review must file a
Proprietary Information Access Application with respect to the
proprietary information as follows:
(a) with the responsible Secretariat, two copies; and
(b) with the investigating authority, one original and any
additional copies that the investigating authority requires.
(2) A Proprietary Information Access Application referred to in
subrule (1) shall be served
(a) if the Proprietary Information Access Application is filed
before the expiration of the time period fixed for filing a Notice of
Appearance in the panel review, on the persons listed in the service
list; and
(b) in any other case, on all participants other than the
investigating authority, in accordance with subrule 29(1).
(3) Electronic means may be used to satisfy the service and filing
requirements of subrules (1) and (2).\1\
---------------------------------------------------------------------------
\1\ For greater certainty, for electronic filings with respect
to subrule 50(1)(b), the Mexican investigating authority may verify
the authenticity of the application and the documents submitted.
---------------------------------------------------------------------------
51. (1) Every panelist, assistant to a panelist, court reporter,
interpreter, and translator shall, before taking up duties in a panel
review, physically or electronically \2\ provide to the responsible
Secretary a Proprietary Information Access Application.
---------------------------------------------------------------------------
\2\ For greater certainty, for electronic filings, the Mexican
Secretariat will verify the authenticity of the application and the
documents submitted.
---------------------------------------------------------------------------
(2) A panelist, assistant to a panelist, court reporter,
interpreter, or translator who amends or modifies a Proprietary
Information Access Application shall provide the responsible
Secretariat with a copy of the amendment or modification.
(3) If the investigating authority receives, pursuant to subrule
19(1), a Proprietary Information Access Application or an amendment or
modification thereto, the investigating authority shall issue a
Proprietary Information Access Order, amendment or modification
accordingly.
52. The investigating authority shall, no later than 30 days after
a Proprietary Information Access Application is filed in accordance
with subrule 50(1), serve on the person who filed the Proprietary
Information Access Application,
(a) a Proprietary Information Access Order; or
(b) a notification in writing setting out the reasons why a
Proprietary Information Access Order is not issued.
53. (1) If an investigating authority,
(a) refuses to issue a Proprietary Information Access Order to a
counsel
[[Page 10180]]
of record or to a professional retained by, or under the control or
direction of, a counsel of record; or
(b) issues a Proprietary Information Access Order with terms
unacceptable to the counsel of record;
the counsel of record may file with the responsible Secretariat a
Notice of Motion requesting that the panel review these decisions of
the investigating authority.
(2) If, after consideration of any response made by the
investigating authority referred to in subrule (1), the panel decides
that a Proprietary Information Access Order should be issued or that
the terms of a Proprietary Information Access Order should be modified
or amended, the panel shall so notify counsel for the investigating
authority.
(3) If the final determination was made in the United States and
the investigating authority fails to comply with the notification
referred to in subrule (2), the panel may issue any order that is just
in the circumstances, including an order refusing to permit the
investigating authority to make certain arguments in support of its
case or striking certain arguments from its pleadings.
54. (1) If a Proprietary Information Access Order is issued to a
person in a panel review, the person shall file with the responsible
Secretariat, pursuant to the applicable regulations of the
investigating authority, a copy of the Proprietary Information Access
Order.
(2) If a Proprietary Information Access Order is revoked, amended,
or modified by the investigating authority, the investigating authority
shall provide to the responsible Secretariat and to all participants a
copy of the Notice of Revocation, amendment, or modification.
55. If a Proprietary Information Access Order is issued to a
person, the person is entitled,
(a) to access to the document(s) containing the proprietary
information; and
(b) if the person is a counsel of record, to a copy of the
document(s) containing the proprietary information, on payment of an
appropriate fee, and to service of pleadings containing the proprietary
information.
Privileged Information
56. (1) A Notice of Motion for disclosure of a document in the
administrative record identified as containing privileged information
shall set out,
(a) the reasons why disclosure of the document is necessary to the
case of the participant filing the Notice of Motion; and
(b) a statement of any point of law or legal authority relied on,
together with a concise argument in support of disclosure.
(2) No later than 10 days after a Notice of Motion referred to in
subrule (1) is filed, the investigating authority shall, if it intends
to respond, file the following in response:
(a) an affidavit of an official of the investigating authority
stating that, since the filing of the Notice of Motion, the official
has examined the document and has determined that disclosure of the
document would constitute disclosure of privileged information; and
(b) a statement of any point of law or legal authority relied on,
together with a concise argument in support of non-disclosure.
(3) After having reviewed the Notice of Motion referred to in
subrule (1) and any response filed under subrule (2), the panel may
order:
(a) that the document shall not be disclosed; or
(b) that the investigating authority file two copies of the
document under seal with the responsible Secretariat.
(4) If the panel has issued an order pursuant to subrule (3)(b),
the panel shall select two panelists, one of whom shall be a lawyer who
is a citizen of the country of one involved Party and the other of whom
shall be a lawyer who is a citizen of the country of the other involved
Party.
(5) The two panelists selected under subrule (4) shall:
(a) examine the document in camera; and
(b) communicate their decision, if any, to the panel.
(6) The decision referred to in subrule (5)(b) shall be issued as
an order of the panel.
(7) If the two panelists selected under subrule (4) fail to come to
a decision, the panel shall:
(a) examine the document in camera; and
(b) issue an order with respect to the disclosure of the document.
(8) If an order referred to in subrule (6) or (7)(b) is to the
effect that the document shall not be disclosed, the responsible
Secretary shall return all copies of the document to the investigating
authority by service under seal.
57. In a panel review of a final determination made in the United
States or Canada, if, pursuant to Rule 56, disclosure of a document is
granted,
(a) the panel shall limit disclosure to:
(i) persons who must have access in order to permit effective
representation in the panel review,
(ii) persons, such as the Secretariat staff, court reporters,
interpreters, and translators, who must have access for administrative
purposes in order to permit effective functioning of the panel, and
(iii) members of an Extraordinary Challenge Committee and their
assistants who may need access pursuant to the Extraordinary Challenge
Committee Rules established under Annex 10-B.3(2) (Extraordinary
Challenge Procedure) of the Agreement;
(b) the panel shall issue an order identifying by name and by title
or position the persons who are entitled to access and shall allow for
future access by new counsel of record and by members of an
Extraordinary Challenge Committee and, as necessary, their assistants;
and
(c) the investigating authority shall issue a Propriety Information
Access Order with respect to that document in accordance with the order
of the panel.
Violations of Proprietary Information Access Applications or Orders
58. If a person alleges that the terms of a Proprietary Information
Access Application or of a Proprietary Information Access Order have
been violated, the panel shall refer the allegations to the
investigating authority for investigation and, if applicable, the
imposition of sanctions in accordance with section 77.034 of the
Special Import Measures Act, as amended, section 777(f) of the Tariff
Act of 1930, as amended, or article 93 of the Ley de Comercio Exterior.
Part VI: Written Proceedings (Rules 59-68)
Form and Content of Pleadings
59. (1) Every pleading filed in a panel review shall contain the
following information:
(a) the title of, and any Secretariat file number assigned for, the
panel review;
(b) a brief descriptive title of the pleading;
(c) the name of the Party, investigating authority or interested
person filing the document;
(d) the name of counsel of record for the Party, investigating
authority, or interested person;
(e) the service address, as defined in Rule 5; and
(f) the telephone number and electronic mail address of the counsel
of record referred to in subrule (d) or, if an interested person is not
represented by counsel, the telephone number and
[[Page 10181]]
electronic mail address of the interested person.
(2) Every pleading filed in a panel review shall be on paper 8 \1/
2\ x 11 inches (216 millimeters by 279 millimeters) in size. The text
of the pleading shall be printed, typewritten, or reproduced legibly on
one side only with a margin of approximately 1 \1/2\ inches (40
millimeters) on the left-hand side with double spacing between each
line of text, except for quotations of more than 50 words, which shall
be indented and single-spaced. Footnotes, titles, schedules, tables,
graphs, and columns of figures shall be presented in a readable form.
Briefs and appendices shall be securely bound along the left-hand
margin.
(3) If a pleading is filed by electronic means, that pleading shall
be formatted in a manner that, if printed, it would meet the
requirements of subrule (2).
(4) Every pleading filed on behalf of a participant in a panel
review shall be signed by written or electronic signature, by counsel
for the participant or, if the participant is not represented by
counsel, by the participant.
60. (1) If a participant files a pleading that contains proprietary
information, the participant shall file two sets of the pleading in the
following manner:
(a) one set containing the proprietary information shall be filed
under seal and, with respect to a panel review of a final determination
made in:
(i) Canada, shall be labelled ``Proprietary'', ``Confidential'',
``Confidentiel'' or ``De nature exclusive'', with the top of each page
that contains proprietary information marked with the word
``Proprietary'', ``Confidential'', ``Confidentiel'' or ``De nature
exclusive'' and with the proprietary information enclosed in brackets,
(ii) Mexico, shall be labelled ``Confidencial'', with the top of
each page that contains proprietary information marked with the word
``Confidencial'' and with the proprietary information enclosed in
brackets, and
(iii) the United States, shall be labelled ``Proprietary'', with
the top of each page that contains proprietary information marked with
the word ``Proprietary'' and with the proprietary information enclosed
in brackets; and
(b) no later than one day following the day on which the set of
pleadings referred to in subrule (1)(a) is filed, another set not
containing proprietary information shall be filed, and with respect to
a panel review of a final determination made in:
(i) Canada, shall be labelled ``Non-Proprietary'', ``Non-
Confidential'', ``Non confidentiel'' or ``De nature non exclusive'',
(ii) Mexico, shall be labelled ``No confidencial'', and
(iii) the United States, shall be labelled ``Non-Proprietary'';
with each page from which proprietary information has been deleted
marked to indicate the location from which the proprietary information
was deleted.
(2) If a participant files a pleading that contains privileged
information, the participant shall file two sets of the pleading in the
following manner:
(a) one set containing the privileged information shall be filed
under seal, and with respect to a panel review of a final determination
made in:
(i) Canada, shall be labelled ``Privileged'' or
``Prot[eacute]g[eacute]'', with the top of each page that contains
privileged information marked with the word ``Privileged'' or
``Prot[eacute]g[eacute]'' and with the privileged information enclosed
in brackets,
(ii) Mexico, shall be labelled ``Privilegiada'', with the top of
each page that contains privileged information marked with the word
``Privilegiada'', and with the privileged information enclosed in
brackets, and
(iii) the United States, shall be labelled ``Privileged'', with the
top of each page that contains privileged information marked with the
word ``Privileged'' and with the privileged information enclosed in
brackets; and
(b) no later than one day following the day on which the set of
pleadings referred to in subrule (2)(a) is filed, another set not
containing privileged information shall be filed and with respect to a
panel review of a final determination made in:
(i) Canada, shall be labelled ``Non-Privileged'' or ``Non
prot[eacute]g[eacute]'',
(ii) Mexico, shall be labelled ``No privilegiada'', and
(iii) the United States, shall be labelled ``Non-Privileged'';
with each page from which privileged information has been deleted
marked to indicate the location from which the privileged information
was deleted.
Filing of Briefs
61. (1) Subject to subrule 43(1), every participant who has filed a
Complaint under Rule 44 or a Notice of Appearance with a statement
under subrule 45(1)(d)(i) or (iii) shall file a brief, setting forth
grounds and arguments supporting allegations of the Complaint no later
than 60 days after the expiration of the time period fixed, under
subrule 46(1), for filing the administrative record.
(2) Every participant who has filed a Notice of Appearance with a
statement under subrule 45(1)(d)(ii) or (iii) shall file a brief
setting forth grounds and arguments opposing allegations of a Complaint
no later than 60 days after the expiration of the time period for
filing of briefs referred to in subrule (1).
(3) Every participant who has filed a brief pursuant to subrule (1)
may file a brief replying to the grounds and arguments set forth in the
briefs filed pursuant to subrule (2) no later than 15 days after the
expiration of the time period for filing of briefs referred to in
subrule (2). Reply briefs shall be limited to rebuttal of matters
raised in the briefs filed pursuant to subrule (2).
(4) An appendix containing authorities cited in all briefs filed
under any of subrules (1) to (3) must be filed with the responsible
Secretariat no later than 10 days after the last day on which a brief
under subrule (3) may be filed.
(5) Any number of participants may join in a single brief and any
participant may adopt by reference any part of the brief of another
participant.
(6) A participant may file a brief without appearing to present
oral argument.
(7) If a panel review of a final determination made by an
investigating authority of the United States with respect to certain
goods involves issues that may relate to the final determination of the
other investigating authority for those goods, the latter investigating
authority may file an amicus curiae brief in the panel review in
accordance with subrule (2).
Failure To File Briefs
62. (1) In respect of a panel review of a final determination made
in the United States or Canada, if a participant fails to file a brief
within the time period fixed and no motion pursuant to Rule 25 is
pending, on a motion of another participant, the panel may order that
the participant who fails to file a brief is not entitled to:
(a) present oral argument;
(b) service of any further pleadings, orders, or decisions in the
panel review; or
(c) further notice of the proceedings in the panel review.
(2) The panel may, on its own motion or pursuant to the motion of a
participant, issue an order to show cause why the panel review should
not be dismissed if:
(a) no brief is filed by any complainant or by any participant in
support of any of the complainants within the time periods established
pursuant to these Rules; and
(b) no motion pursuant to Rule 25 is pending.
[[Page 10182]]
(3) If, pursuant to an order under subrule (2), good cause is not
shown, the panel shall issue an order dismissing the panel review.
(4) If no brief is filed by an investigating authority, or by an
interested person in support of the investigating authority, within the
time period fixed in subrule 61(2), a panel may issue a decision
referred to in subrule 76(1).
Content of Briefs and Appendices
63. (1) Every brief filed pursuant to subrule 61(1) or (2) shall
contain information, in the following order, divided into five parts:
Part I
(a) A table of contents; and
(b) A table of authorities cited:
The table of authorities shall contain references to all treaties,
statutes, and regulations cited, any cases primarily relied on in the
briefs, set out alphabetically, and all other documents referred to
except documents from the administrative record. The table of
authorities shall refer to the page(s) of the brief where each
authority is cited and mark, with an asterisk in the margin, those
authorities primarily relied on.
Part II: A Statement of the Case
(a) in the brief of a complainant or of a participant filing a
brief pursuant to subrule 61(1), this Part shall contain a concise
statement of the relevant facts;
(b) in the brief of an investigating authority or of a participant
filing a brief pursuant to subrule 61(2), this Part shall contain a
concise statement of the position of the investigating authority or the
participant with respect to the statement of facts set out in the
briefs referred to in paragraph (a), including a concise statement of
other facts relevant to its case; and
(c) in all briefs, references to evidence in the administrative
record shall be made by page and, where practicable, by line.
Part III: A Statement of the Issues
(a) in the brief of a complainant or of a participant filing a
brief pursuant to subrule 61(1), this Part shall contain a concise
statement of the issues; and
(b) in the brief of an investigating authority or of a participant
filing a brief pursuant to subrule 61(2), this Part shall contain a
concise statement of the position of the investigating authority or the
participant with respect to each issue relevant to its case.
Part IV: Argument
This Part shall consist of the argument setting out concisely the
points of law relating to the issues, with applicable citations to
authorities and the administrative record.
Part V: Relief
This part shall consist of a concise statement precisely
identifying the relief requested.
(2) Paragraphs in Parts I to V of a brief may be numbered
consecutively.
(3) A reply brief filed pursuant to Rule 61(3) shall include a
table of contents and a table of authorities, indicating those
principally relied upon in the argument.
Appendix to the Briefs
64. (1) Authorities referred to in the briefs shall be included in
an appendix, which shall be organized as follows: a table of contents,
copies of all treaty and statutory references, references to
regulations, cases primarily relied on in the briefs, set out
alphabetically, and all other documents referred to in the briefs
except documents from the administrative record.
(2) The appendix required under subrule 61(4) shall be compiled by
a participant who filed a brief under subrule 61(1) and who was so
designated by all the participants who filed a brief. Each participant
who filed a brief under subrule 61(2) shall provide the designated
participant with a copy of each authority on which it primarily relied
in its brief that was not primarily relied on in any other brief filed
under subrule 61(1). Each participant who filed a brief under subrule
61(3) shall provide the designated participant with a copy of each
authority on which it primarily relied in its brief that was not
primarily relied on in briefs filed pursuant to subrule 61(1) or (2).
(3) The costs for compiling the appendix shall be borne equally by
all participants who file briefs.
Motions
65. (1) A motion shall be made by Notice of Motion in writing
(model form provided in the Schedule) unless the circumstances make it
unnecessary or impracticable.
(2) Every Notice of Motion, and any affidavit in support thereof,
shall be accompanied by a proposed order of the panel (model form
provided in the Schedule) and shall be filed with the responsible
Secretariat, together with proof of service on all participants.
(3) Every Notice of Motion shall contain the following information:
(a) the title of the panel review, the Secretariat file number for
that panel review, and a brief descriptive title indicating the purpose
of the motion;
(b) a statement of the precise relief requested;
(c) a statement of the grounds to be argued, including a reference
to any rule, point of law or legal authority to be relied on, together
with a concise argument in support of the motion; and
(d) if necessary, references to evidence in the administrative
record identified by page and, if practicable, by line.
(4) The pendency of any motion in a panel review shall not alter
any time period fixed by these Rules or by an order or decision of the
panel.
(5) A Notice of Motion to which all participants consent shall be
titled a Consent Motion.
66. Subject to subrules 25(2) and 80(5), unless the panel otherwise
orders, a participant may file a response to a Notice of Motion no
later than 10 days after the Notice of Motion is filed.
67. (1) A panel may dispose of a motion based upon the pleadings
filed pertaining to the motion.
(2) The panel may hear oral argument or, subject to subrule 31(b),
direct that a motion be heard by means of a telephone or video
conference call with the participants.
(3) A panel may deny a motion before responses to the Notice of
Motion have been filed.
68. If a panel chooses to hear oral argument or, pursuant to
subrule 67(2), directs that a motion be heard by means of a telephone
or video conference call with the participants, the responsible
Secretary shall, at the direction of the chair, fix a date, time and
place for the hearing of the motion and shall notify all participants
of the same.
Part VII: Oral Proceedings (Rules 69-73)
Location
69. Oral proceedings in a panel review shall take place at the
office of the responsible Secretariat or at another location that the
responsible Secretary arranges.
Pre-Hearing Conference
70. (1) A panel may hold a pre-hearing conference, in which case
the responsible Secretary shall give notice of the conference to all
participants.
(2) A participant may request that the panel hold a pre-hearing
conference by filing with the responsible Secretariat a written request
setting out the matters that the participant proposes to raise at the
conference.
(3) The purpose of a pre-hearing conference shall be to facilitate
the expeditious advancement of the panel review by addressing matters
such as:
[[Page 10183]]
(a) the clarification and simplification of the issues;
(b) the procedure to be followed at the hearing of oral argument;
and
(c) outstanding motions.
(4) Subject to subrule 31(b), a pre-hearing conference may be
conducted by means of a telephone or video conference call.
(5) Following a pre-hearing conference, the panel shall promptly
issue an order setting out its rulings with respect to the matters
considered at the conference.
Oral Argument
71. (1) A panel shall commence the hearing of oral argument no
later than 30 days after the expiration of the time period fixed under
subrule 61(3) for filing reply briefs. At the direction of the panel,
the responsible Secretary must notify all participants of the date,
time, and place for the oral argument.
(2) Oral argument shall be subject to the time constraints set by
the panel and shall, unless the panel otherwise orders, be presented in
the following order:
(a) the complainants and any participant who filed a brief in
support of the allegations set out in a Complaint or partly in support
of the allegations set out in a Complaint and partly in opposition to
the allegations set out in a Complaint;
(b) the investigating authority and any participant who filed a
brief in opposition to the allegations set out in a Complaint, other
than a participant referred to in subrule (2)(a); and
(c) argument in reply, at the discretion of the panel.
(3) If a participant fails to appear at oral argument, the panel
may hear argument on behalf of the participants who are present. If no
participant appears, the panel may decide the case on the basis of the
briefs.
(4) Oral argument on behalf of a participant on a motion or at a
hearing shall be conducted by the counsel of record for that
participant or, if the participant is a self-represented individual, by
the participant.
(5) Oral argument shall be limited to the issues in dispute.
Oral Proceedings in Camera
72. During that part of oral proceedings in which proprietary
information or privileged information is presented, a panel shall not
permit any person other than the following persons to be present:
(a) the person presenting the proprietary information or privileged
information;
(b) a person who has been granted access to the proprietary
information or privileged information under a Proprietary Information
Access Order or an order of the panel;
(c) in the case of privileged information, a person as to whom the
confidentiality of the privileged information has been waived; and
(d) officials of, and counsel for, the investigating authority.
Subsequent Authorities
73. (1) A participant who has filed a brief may bring to the
attention of the panel,
(a) at any time before the conclusion of oral argument, an
authority that is relevant to the panel review;
(b) at any time after the conclusion of oral argument and before
the panel has issued its decision,
(i) an authority that was reported subsequent to the conclusion of
oral argument, or
(ii) with the leave of the panel, an authority that is relevant to
the panel review and that came to the attention of counsel of record
after the conclusion of oral argument;
by filing with the responsible Secretariat a written request, setting
out the citation of the decision or judgment, the page reference of the
brief of the participant to which the decision or judgment relates, and
a concise statement, of no more than one page in length, of the
relevance of the decision or judgment.
(2) A request referred to in subrule (1) must be filed as soon as
possible after the issuance of the decision or judgment by the court.
(3) If a request referred to in subrule (1) is filed with the
responsible Secretariat, another participant may, within no later than
five days after the date on which the request was filed, file a concise
statement, of no more than one page in length, in response.
Part VIII: Decisions and Completions of Panel Reviews (Rules 74-80)
Orders, Decisions, and Terminations
74. The responsible Secretary shall cause notice of every decision
of a panel issued pursuant to subrule 76(1) to be published in the
official publications of the involved Parties.
75. (1) If a participant files a Notice of Motion requesting
dismissal of a panel review, the panel may issue an order dismissing
the panel review.
(2) If a participant files a Notice of Motion requesting
termination of a panel review, all the participants consent to the
request, and an affidavit to that effect is filed, or if all
participants file Notices of Motion requesting termination, the panel
review is terminated and, if a panel has been appointed, the panelists
are discharged.
(3) A panel review is deemed to be terminated on the day after the
expiration of the limitation period established pursuant to subrule
44(1) if no Complaint has been filed in a timely manner. The
responsible Secretariat shall issue a Notice of Completion of Panel
Review.
76. (1) A panel must issue a written decision with reasons,
together with any dissenting or concurring opinions of the panelists,
in accordance with Article 10.12.8 (Review of Final Antidumping and
Countervailing Duty Determinations) of the Agreement, within 90 days of
the oral hearing. The decision will normally be released by noon on the
date of issuance.
(2) The Panel must notify the participants and the involved Parties
of any delay in the issuance of its decision.
Panel Review of Action on Remand
77. (1) An investigating authority shall give notice of the action
taken pursuant to a remand of the panel by filing with the responsible
Secretariat a Determination on Remand within the time specified by the
panel.
(2) If, on remand, the investigating authority has supplemented the
administrative record,
(a) the investigating authority shall file, physically or
electronically, with the responsible Secretariat an Index listing each
item in the supplementary remand record, together with proof of service
of the Index on the counsel of record of each of the participants, or
if a participant is not represented by counsel, on the participant, and
one copy of each non-privileged item listed in that Index, no later
than five days after the date on which the investigating authority
filed the Determination on Remand with the panel;
(b) any participant who intends to challenge the Determination on
Remand shall file a written submission with respect to the
Determination on Remand no later than 20 days after the date on which
the investigating authority filed the Index and supplementary remand
record; and
(c) any response to the written submissions referred to in subrule
(2)(b) shall be filed by the investigating authority, and by any
participant supporting the investigating authority, no later than 20
days after the last day on which written submissions in opposition to
the Determination on Remand may be filed.
(3) If, on remand, the investigating authority has not supplemented
the record,
(a) any participant who intends to challenge the Determination on
Remand shall file a written submission no later
[[Page 10184]]
than 20 days after the date on which the investigating authority filed
the Determination on Remand with the panel; and
(b) any response to the written submissions referred to in subrule
(3)(a) shall be filed by the investigating authority, and by any
participant filing in support of the investigating authority, no later
than 20 days after the last day on which those written submissions may
be filed.
(4) In the case of a panel review of a final determination made in
Mexico, if a participant who fails to file a brief under Rule 61 files
a written submission pursuant to subrule (2)(b) or (3)(a), the
submission shall be disregarded by the panel.
(5) If no written submissions are filed under subrule (2)(b) or
(3)(a) within the time periods established by these Rules, and if no
motion pursuant to Rule 25 is pending, the panel shall, within no later
than 10 days after the later of the due date for those written
submissions and the date of the denial of a motion pursuant to Rule 25,
issue an order affirming the investigating authority's Determination on
Remand.
(6) If a Determination on Remand is challenged, the panel shall
issue a written decision pursuant to subrule 76(1), either affirming
the Determination on Remand or remanding it to the investigating
authority, no later than 90 days after the Determination on Remand is
filed.
78. In setting the date by which a Determination on Remand shall be
due from the investigating authority, the panel shall take into
account, among other factors,
(a) the date that any Determination on Remand with respect to the
same goods is due from the other investigating authority; and
(b) the effect the Determination on Remand from the other
investigating authority might have on the deliberations of the
investigating authority with respect to the making of a final
Determination on Remand.
Re-Examination of Orders and Decisions
79. A clerical error in an order or decision of a panel, or an
error in an order or decision of a panel arising from any accidental
oversight, inaccuracy, or omission, may be corrected by the panel at
any time during the panel review.
80. (1) A participant may, no later than 10 days after a panel
issues its decision, file a Notice of Motion requesting that the panel
re-examine its decision for the purpose of correcting an accidental
oversight, inaccuracy, or omission, which shall set out:
(a) the oversight, inaccuracy, or omission with respect to which
the request is made;
(b) the relief requested; and
(c) if ascertainable, a statement as to whether other participants
consent to the motion.
(2) The grounds for a motion referred to in subrule (1) shall be
limited to one or both of the following grounds:
(a) that the decision does not accord with the reasons therefor; or
(b) that some matter has been accidentally overlooked, stated
inaccurately, or omitted by the panel.
(3) No Notice of Motion referred to in subrule (1) shall set out
any argument already made in the panel review.
(4) There shall be no oral argument in support of a motion referred
to in subrule (1).
(5) Except as the panel may otherwise order under subrule (6)(b),
no participant shall file a response to a Notice of Motion filed
pursuant to subrule (1).
(6) No later than seven days after the filing of a Notice of Motion
under subrule (1), the panel shall:
(a) issue a decision ruling on the motion; or
(b) issue an order identifying further action to be taken
concerning the motion.
(7) A decision or order under subrule (6) may be made with the
concurrence of any three panelists.
Part IX: Completion of Panel Review (Rules 81-89)
Completion of Panel Review
81. (1) Subject to subrule (2), when a panel issues:
(a) an order dismissing a panel review under subrule 62(3) or
75(1);
(b) a decision under subrule 76(1) or 77(6) that is the final
action in the panel review; or
(c) an order under subrule 77(5);
the panel shall direct the responsible Secretary to issue a Notice
of Final Panel Action (model form provided in the Schedule) on the
eleventh day thereafter.
(2) If a motion is filed pursuant to subrule 80(1) regarding a
decision referred to in subrule (1)(b), the responsible Secretary shall
issue the Notice of Final Panel Action on the day on which the panel:
(a) issues a ruling finally disposing of the motion; or
(b) directs the responsible Secretary to issue the Notice of Final
Panel Action, the issuance of which shall constitute a denial of the
motion.
82. If no Request for an Extraordinary Challenge Committee is
filed, the responsible Secretary shall publish a Notice of Completion
of Panel Review in the official publications of the involved Parties,
effective:
(a) on the day on which a panel is terminated pursuant to subrule
75(2); or
(b) in any other case, on the day after the expiration of the
limitation period established pursuant to subrules 41(1) and 41(2)(a)
of the Extraordinary Challenge Committee Rules under Annex 10-B.3(2)
(Extraordinary Challenge Procedure) of the Agreement.
83. If a Request for an Extraordinary Challenge Committee has been
filed, the responsible Secretary shall publish a Notice of Completion
of Panel Review in the official publications of the involved Parties,
effective on the day after the day referred to in Rule 68 or subrule
69(a) of the Extraordinary Challenge Committee Rules under Annex 10-
B.3(2) (Extraordinary Challenge Procedure) of the Agreement.
84. Panelists are discharged from their duties on the day on which
a Notice of Completion of Panel Review is effective, or on the day on
which an Extraordinary Challenge Committee vacates a panel review
pursuant to subrule 69(b) of the Extraordinary Challenge Committee
Rules under Annex 10-B.3(2) (Extraordinary Challenge Procedure) of the
Agreement.
Stays and Suspensions
85. If a panelist becomes unable to fulfill panel duties, is
disqualified or dies, panel proceedings and the running of time periods
shall be suspended, pending the appointment of a substitute panelist in
accordance with the procedures set out in Annex 10-B.1 (Establishment
of Binational Panels) of the Agreement.
86. If a panelist is disqualified, dies or otherwise becomes unable
to fulfill panel duties after the oral argument, the chair may order
that the matter be reheard, on such terms as are appropriate, after
selection of a substitute panelist.
87. (1) A Party may make a request, pursuant to Article
10.13.11(a)(ii) (Safeguarding the Panel Review System) of the
Agreement, that an ongoing panel review be stayed by filing the request
with the responsible Secretariat.
(2) A Party who files a request under subrule (1) shall forthwith
give written notice of the request to the other involved Party and to
the other involved Secretariat.
(3) On receipt of a request under subrule (1), the responsible
Secretary shall:
(a) immediately give written notice of the stay of the panel review
to all participants in the panel review; and
[[Page 10185]]
(b) publish a notice of the stay of the panel review in the
official publications of the involved Parties.
88. On receipt of a report containing an affirmative finding with
respect to a ground specified in Article 10.13.1 (Safeguarding the
Panel Review System) of the Agreement, the responsible Secretary for
panel reviews referred to in Article 10.13.11(a)(i) (Safeguarding the
Panel Review System) of the Agreement shall:
(a) immediately give notice in writing to all participants in those
reviews; and
(b) publish a notice of the affirmative finding in the official
publications of the involved Parties.
89. (1) A Party who intends to suspend the operation of Article
10.12 (Review of Final Antidumping and Countervailing Duty
Determinations) of the Agreement pursuant to Article 10.13.8
(Safeguarding the Panel Review System) or Article 10.13.9 (Safeguarding
the Panel Review System) of the Agreement shall endeavor to give
written notice of that intention to the other involved Party and to the
involved Secretaries at least five days prior to the suspension.
(2) On receipt of a notice under subrule (1), the involved
Secretaries shall publish a notice of the suspension in the official
publications of the involved Parties.
BILLING CODE 3390-F3-P
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BILLING CODE 3390-F3-C
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RULES OF PROCEDURE FOR ANNEX 10-B.3
(EXTRAORDINARY CHALLENGE COMMITTEES)
Part I: Initial Provisions and Definitions (Rules 1-10)
Application
1. These Rules are established in accordance with Annex 10-B.3.2
(Extraordinary Challenge Procedure) of the Agreement and apply to all
extraordinary challenge committee proceedings conducted pursuant to
Article 10.12.13 (Review of Final Antidumping and Countervailing Duty
Determinations) of the Agreement. These Rules will be published in
Canada in the Canada Gazette, in Mexico in the Diario Oficial de la
Federaci[oacute]n, and in the United States in the Federal Register.
Short Title
2. These Rules may be cited as the Extraordinary Challenge
Committee Rules.
Statement of General Intent
3. These Rules give effect to the provisions of Chapter 10 (Trade
Remedies) of the Agreement with respect to extraordinary challenge
procedures conducted pursuant to Article 10.12.13 (Review of Final
Antidumping and Countervailing Duty Determinations) and Annex 10-B.3
(Extraordinary Challenge Procedure) of the Agreement and are designed
to result in decisions within 90 days after the establishment of the
committee. If a procedural question arises that is not covered by these
Rules, a committee may adopt an appropriate procedure that is not
inconsistent with the Agreement.
4. In the event of any inconsistency between the provisions of
these Rules and the Agreement, the Agreement shall prevail.
Definitions and Interpretation
5. For the purposes of these Rules:
Agreement means the Agreement signed between Canada, Mexico, and
the United States on November 30, 2018, as amended;
Code of Conduct means the code of conduct established by the
Parties pursuant to Article 10.17 (Code of Conduct) of the Agreement;
committee means an extraordinary challenge committee established
pursuant to Annex 10-B.3 (Extraordinary Challenge Procedure) of the
Agreement;
counsel means, with respect to an extraordinary challenge of a
panel review of a final determination made in:
(a) Canada, a person entitled to appear as counsel before the
Federal Court of Canada;
(b) Mexico, a person entitled to appear as counsel before the
Tribunal Federal de Justicia Administrativa; and
(c) the United States, a person entitled to appear as counsel
before a federal court in the United States;
counsel of record means a counsel referred to in subrule 18(1);
final determination means, in the case of Canada, a definitive
decision within the meaning of subsection 77.01(1) of the Special
Import Measures Act, as amended;
investigating authority means the competent investigating
authority, as defined in Article 10.8 (Definitions) of the Agreement,
that issued the final determination that was the subject of the panel
review to which an extraordinary challenge procedure relates and
includes, in respect of the issuance, amendment, modification or
revocation of a Proprietary Information Access Order, a person
authorized by the investigating authority;
involved Secretariat means the Section of the Secretariat located
in the country of an involved Party;
legal holiday for a Party's Section of the Secretariat, means every
Saturday and Sunday and any other day designated by that Party as a
holiday for the purposes of these Rules and notified by that Party to
its Section of the Secretariat and by that Section to the other
Sections of the Secretariat and the other Parties;
official publication means in the case of the Government of:
(a) Canada, the Canada Gazette;
(b) Mexico, the Diario Oficial de la Federaci[oacute]n; and
(c) the United States, the Federal Register;
panel means a binational panel established pursuant to Annex 10-B.1
(Establishment of Binational Panels) of the Agreement, the decision of
which is the subject of an extraordinary challenge;
participant means a Party who files a Request for an Extraordinary
Challenge Committee or any of the following persons who files a Notice
of Appearance pursuant to these Rules:
(a) the other involved Party;
(b) a person who participated in the panel review that is the
subject of the extraordinary challenge; and
(c) a panelist against whom an allegation referred to in Article
10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty
Determinations) of the Agreement is made;
Party means the Government of Canada, the Government of Mexico, or
the Government of the United States;
person means:
(a) an individual;
(b) a Party;
(c) an investigating authority;
(d) a government of a province, state or other political
subdivision of the country of a Party;
(e) a department, agency, or body of a Party or of a government
referred to in paragraph (d); or
(f) a partnership, corporation, or association;
personal information means, with respect to an extraordinary
challenge proceeding in which an allegation is made that a member of
the panel was guilty of gross misconduct, bias, or a serious conflict
of interest, or otherwise materially violated the rules of conduct,
information submitted pursuant to subrule 43(2) and Rule 45;
pleading means a Request for an Extraordinary Challenge Committee,
a Notice of Appearance, a Change of Service Address, a Notice of Change
of Counsel of Record, a Notice of Motion, a brief, or any other written
submission filed by a participant;
President means the President of the Canada Border Services Agency
appointed under subsection 7(1) of the Canada Border Services Agency
Act, as amended, and includes a person authorized to perform a power,
duty, or function of the President under the Special Import Measures
Act, as amended;
privileged information means with respect to an extraordinary
challenge of a panel review of a final determination made in:
(a) Canada, information of the investigating authority that is
subject to solicitor-client privilege under the laws of Canada, or that
constitutes part of the deliberative process with respect to the final
determination, with respect to which the privilege has not been waived;
(b) Mexico,
(i) information of the investigating authority that is subject to
attorney-client privilege under the laws of Mexico, or
(ii) internal communications between officials of the Secretariat
of Economy (Secretar[iacute]a de Econom[iacute]a) in charge of
antidumping and countervailing duty investigations or communications
between those officials and other government officials, where those
communications constitute part of the deliberative process with respect
to the final determination; and
(c) the United States, information of the investigating authority
that is
[[Page 10199]]
subject to the attorney-client, attorney work product or government
deliberative process privilege under the laws of the United States and
with respect to which the privilege has not been waived;
proof of service means with respect to an extraordinary challenge
of a panel review of a final determination made in:
(a) Canada or Mexico,
(i) an affidavit of service stating the name of the person who
served the document, the date on which it was served, where it was
served, and the manner of service, or
(ii) a written acknowledgement of service by counsel for a
participant stating the name of the person who served the document, the
date on which it was served, and the manner of service and, if the
acknowledgement is signed by a person other than the counsel, the name
of that person followed by a statement that the person is signing as
agent for the counsel; and
(b) the United States, a certificate of service in the form of a
statement of the date and manner of service and of the name of the
person served, signed by the person who made service;
proprietary information means with respect to an extraordinary
challenge of a panel review of a final determination made in:
(a) Canada, information referred to in subsection 84(3) of the
Special Import Measures Act, as amended, or subsection 45(3) of the
Canadian International Trade Tribunal Act, as amended, and with respect
to which the person who designated or submitted the information has not
withdrawn the person's claim as to the confidentiality of the
information;
(b) Mexico, informaci[oacute]n confidencial, as defined under
article 80 of the Ley de Comercio Exterior and its regulations; and
(c) the United States, business proprietary information under
section 777(f) of the Tariff Act of 1930, as amended, and any
regulations made under that Act;
Proprietary Information Access Application means with respect to an
extraordinary challenge of a panel review of a final determination made
in:
(a) Canada, a disclosure undertaking in the prescribed form, which
form,
(i) in respect of a final determination by the President, is
available from the President, and
(ii) in respect of a final determination by the Tribunal, is
available from the Tribunal;
(b) Mexico, a disclosure undertaking in the prescribed form, which
form is available the from Secretariat of Economy (Secretar[iacute]a de
Econom[iacute]a); and
(c) the United States, a Protective Order Application,
(i) in respect of a final determination by the International Trade
Administration of the United States Department of Commerce, in a form
prescribed by, and available from, the International Trade
Administration of the United States Department of Commerce, and
(ii) in respect of a final determination by the United States
International Trade Commission, in a form prescribed by, and available
from, the United States International Trade Commission;
Proprietary Information Access Order means in the case of:
(a) Canada, a Disclosure Order issued by the President or the
Tribunal pursuant to a Proprietary Information Access Application;
(b) Mexico, a Disclosure Order issued by the Secretariat of Economy
(Secretar[iacute]a de Econom[iacute]a) pursuant to a Proprietary
Information Access Application; and
(c) the United States, a Protective Order issued by the
International Trade Administration of the United States Department of
Commerce or the United States International Trade Commission pursuant
to a Proprietary Information Access Application;
responsible Secretariat means, with respect to an extraordinary
challenge of a panel review, the Section of the Secretariat located in
the country in which the final determination reviewed by the panel was
made;
responsible Secretary means the Secretary of the responsible
Secretariat;
Secretariat means the Secretariat established pursuant to Article
30.6 (The Secretariat) of the Agreement;
Secretary means the Secretary of the United States Section of the
Secretariat, the Secretary of the Mexican Section of the Secretariat,
or the Secretary of the Canadian Section of the Secretariat and
includes any person authorized to act on behalf of that Secretary;
service address means:
(a) with respect to a Party or panelist, the address filed with the
Secretariat as the service address of the Party or panelist, including
an electronic mail address submitted with that address;
(b) with respect to a participant other than a Party or panelist,
the service address of the participant filed with the Secretariat in
the panel review; or
(c) if a Change of Service Address has been filed by a Party,
panelist, or participant, the address set out as the new service
address of the participant in that form, including an electronic mail
address submitted with that address; and
Tribunal means the Canadian International Trade Tribunal or its
successor and includes any person authorized to act on its behalf.
6. The definitions set forth in Article 10.8 (Definitions) of the
Agreement are hereby incorporated into these Rules.
7. When these Rules require that notice be given, it shall be given
in writing.
Code of Conduct
8. Candidates being considered for appointment to a committee,
committee members and their assistants, and staff, must comply with the
Code of Conduct established under Article 10.17 (Code of Conduct) of
the Agreement.
9. The responsible Secretariat shall provide a copy of the Code of
Conduct to each candidate being considered for appointment to serve as
a committee member, and to each individual selected to serve as a
committee member as well as to their assistants and staff.
10. If a participant believes that a committee member, assistant,
or staff to a committee member is in violation of the Code of Conduct,
the participant shall forthwith notify the responsible Secretary in
writing of the alleged violation. The responsible Secretary shall
promptly notify the other involved Secretary and the involved Parties
of the allegations.
Part II: General (Rules 11-27)
Duration and Scope of Proceedings
11. An extraordinary challenge proceeding commences on the day on
which a Request for an Extraordinary Challenge Committee is filed with
the Secretariat and terminates on the day on which a Notice of
Completion of Extraordinary Challenge is effective.
12. The general legal principles of the country in which a final
determination was made apply in an extraordinary challenge of the
decision of a panel with respect to the final determination.
13. A committee may review any part of the record of the panel
review relevant to the extraordinary challenge.
Internal Functioning of Committees
14. (1) For routine administrative matters governing its own
internal functioning, a committee may adopt procedures not inconsistent
with these Rules or the Agreement.
(2) Subject to subrule 38(b), meetings of a committee may be
conducted by means of a telephone or video conference call.
15. Only committee members may take part in the deliberations of a
committee, which shall take place in private and remain secret. Staff
of the
[[Page 10200]]
involved Secretariats and assistants to committee members may be
present by permission of the committee.
Computation of Time
16. (1) In computing any time period fixed in these Rules or by an
order or decision of a committee, the day from which the time period
begins to run shall be excluded and, subject to subrules (2) and (3),
the last day of the time period shall be included.
(2) If the last day of a time period computed in accordance with
subrule (1) falls on a legal holiday of the responsible Secretariat or
on any other day on which the offices of that Section are closed by
order of the government or because of unforeseen circumstances outside
that Party's control, that day and any other legal holidays of the
responsible Secretariat immediately following that day shall be
excluded from the computation.
(3) In computing any time period of five days or less fixed in
these Rules or by an order or decision of a committee, any legal
holiday or any other day on which the offices of that Section are
closed by order of the government or because of unforeseen
circumstances outside that Party's control, that falls within the time
period shall be excluded from the computation.
17. A committee may extend any time period fixed in these Rules if:
(a) the extension is made in the interests of fairness and justice;
and
(b) in fixing the extension, the committee takes into account the
intent of the Rules to secure just, speedy and inexpensive final
resolutions of challenges to decisions of panels.
Counsel of Record
18. (1) Subject to subrule (2), the counsel of record for a
participant in an extraordinary challenge proceeding shall be:
(a) the counsel for the participant in the panel review; or
(b) in the case of a Party who was not a participant in the panel
review or of a panelist, the counsel who signs any document filed on
behalf of the Party or panelist in the extraordinary challenge
proceeding.
(2) A participant may change its counsel of record by filing with
the responsible Secretariat a Notice of Change of Counsel of Record
signed by the new counsel, together with proof of service on the former
counsel and other participants.
Costs of Participation, Committee Remuneration, and Expenses
19. (1) Each participant shall bear the costs of, and those
incidental to, its own participation in an extraordinary challenge
proceeding.
(2) The involved Parties shall bear equally the remuneration and
expenses of committee members selected under Annex 10-B.3
(Extraordinary Challenge Procedure), and of their assistants, and all
administrative expenses of the committee.
(3) Unless the involved Parties agree otherwise, remuneration for
committee members shall be paid at the rate for non-governmental
panelists used by the WTO on the date the Request for Extraordinary
Challenge Committee is made pursuant to Article 10.12.13 (Review of
Final Antidumping and Countervailing Duty Determinations).
(4) Unless the involved Parties agree otherwise, travel expenses
shall be paid at the Daily Subsistence Allowance rate for the location
of the hearing established by the United Nations International Civil
Service Commission on the date a Request for Extraordinary Challenge
Committee is made pursuant to Article 10.12.13 (Review of Final
Antidumping and Countervailing Duty Determinations).
(5) Each committee member may hire one assistant to provide
research, translation, or interpretation support, unless a committee
member requires an additional assistant and the involved Parties agree
that, due to exceptional circumstances, a committee member should be
permitted to hire an additional assistant. Each assistant to a
committee member shall be paid at a rate of one-fifth the rate for a
committee member.
(6) The expenses authorized for a committee established under Annex
10-B.3 (Extraordinary Challenge Procedure), shall be as follows:
(c) travel expenses: include the transportation costs of the
committee members and assistants, their accommodations and meals, as
well as related taxes and insurance. Travel arrangements shall be made
and travel expenses reimbursed, in accordance with the administrative
guidelines applied by the responsible Secretariat; and
(d) administrative expenses: include, among others, telephone
calls, courier services, fax, stationery, rent of locations used for
hearings and deliberations, interpreter services, court reporters, or
any other person or service contracted by the responsible Secretariat
to support the proceeding.
(7) Each committee member and assistant shall keep and render a
final account of his or her time and expenses to the responsible
Secretariat, and the committee shall keep and render a final account to
the responsible Secretariat of its administrative expenses. Each
committee member and assistant shall submit this account, including
relevant supporting documentation, such as invoices, in accordance with
the administrative guidelines of the responsible Secretariat. A
committee member or assistant may submit requests for payment of
remuneration or reimbursement for expenses during the proceeding on a
recommended quarterly basis throughout an ongoing dispute. Committee
members and assistants should submit any final requests for payment of
remuneration or reimbursement within 60 days of the filing of a Notice
of Completion of Extraordinary Challenge.
(8) All requests for payment shall be subject to review by the
responsible Secretariat. The responsible Secretariat shall make
payments for the remuneration of committee members and assistants, and
for expenses in accordance with the administrative guidelines applied
by the responsible Secretariat, using resources provided equally by the
involved Parties, and in coordination with the involved Parties. No
responsible Secretariat shall be obligated to pay any remuneration or
expense in connection with a committee prior to receiving the
contributions of the involved Parties.
(9) The responsible Secretariat shall submit to the involved
Parties a final report on payments made in connection with a dispute.
On request of an involved Party, the responsible Secretariat shall
submit to the involved Parties a report of payments made to date at any
time during the committee proceedings.
(10) In case of resignation or removal of a committee member or
assistant, or if a committee issues an Order terminating a proceeding,
the responsible Secretariat will make payment of the remuneration and
expenses owed up until the date of resignation or removal of the
committee member or assistant, or the date of the Order terminating the
proceeding, using resources provided equally by the involved Parties. A
committee member's or assistant's final account of time or expenses
must follow the procedures in paragraph 7 and should be submitted
within 60 days of the date of their resignation, or removal, or of an
Order terminating the committee proceeding.
Proprietary Information and Privileged Information
20. (1) If proprietary information has been filed in a panel review
that is the subject of an extraordinary challenge proceeding, every
committee member, assistant to a committee member, court
[[Page 10201]]
reporter, interpreter, and translator shall provide the responsible
Secretariat, physically or electronically,\1\ with a Proprietary
Information Access Application.
---------------------------------------------------------------------------
\1\ For greater certainty, for electronic filings, the Mexican
Secretariat will verify the authenticity of the application and the
documents submitted.
---------------------------------------------------------------------------
(2) Upon receipt of a Proprietary Information Access Application,
the responsible Secretary shall file the Proprietary Information Access
Application either physically, one original and any additional copies
required, or electronically, with the appropriate investigating
authority.
(3) The investigating authority shall issue the Proprietary
Information Access Order and provide the responsible Secretariat with
the original and any additional copies of those documents required by
the responsible Secretariat.
(4) Upon receipt of a Proprietary Information Access Order, the
responsible Secretary shall transmit the original Proprietary
Information Access Order to the appropriate committee member, assistant
to a committee member, court reporter, interpreter or translator.
21. (1) A committee member, assistant to a committee member, court
reporter, interpreter, or translator who amends or modifies a
Proprietary Information Access Application shall provide a copy of the
amendment or modification to the responsible Secretariat.
(2) Upon receipt of an amendment or modification to a Proprietary
Information Access Application, the responsible Secretary shall file
the amendment or modification with the appropriate investigating
authority and any additional copies required by the investigating
authority.
(3) Upon receipt of an amendment or modification to a Proprietary
Information Access Application, the investigating authority shall, as
appropriate, amend, modify or revoke the Proprietary Information Access
Order and provide the responsible Secretariat with the original of the
amendment, modification or notice of revocation and any additional
copies of the document required by the responsible Secretariat.
(4) Upon receipt of an amendment or modification to a Proprietary
Information Access Order or a notice of revocation, the responsible
Secretary shall transmit the amendment, modification or notice of
revocation to the appropriate committee member, assistant to a
committee member, court reporter, interpreter or translator.
22. The responsible Secretary shall serve Proprietary Information
Access Orders granted to committee members, assistants to committee
members, court reporters, interpreters, or translators, and any
amendments or modifications thereto or notices of revocation thereof,
on all participants other than the investigating authority.
23. (1) A counsel of record, or a professional retained by, or
under the control or direction of, a counsel of record, who has not
been issued a Proprietary Information Access Order in the panel review
or in these proceedings and who wishes disclosure of proprietary
information in the file of an extraordinary challenge proceeding, must
file a Proprietary Information Access Application, as follows:
(a) with the responsible Secretariat, two copies; and
(b) with the investigating authority, one original and any
additional copies that the investigating authority requires.
(2) A Proprietary Information Access Application referred to in
subrule (1) shall be served on all participants.
(3) Electronic means may be used to satisfy the service and filing
requirements of subrules (1) and (2).\1\
---------------------------------------------------------------------------
\1\ For greater certainty, for electronic filings with respect
to subrule 23(1)(b), the Mexican investigating authority may verify
the authenticity of the application and the documents submitted.
---------------------------------------------------------------------------
(4) The investigating authority shall, no later than 10 days after
a Proprietary Information Access Application is filed with it in
accordance with subrule (1), serve on the person who filed the
Proprietary Information Access Application a:
(a) Proprietary Information Access Order; or
(b) notification in writing setting out the reasons why a
Proprietary Information Access Order is not issued.
24. (1) If an investigating authority:
(a) refuses to issue a Proprietary Information Access Order to a
counsel of record or to a professional retained by, or under the
control or direction of, a counsel of record; or
(b) issues a Proprietary Information Access Order with terms
unacceptable to a counsel of record,
the counsel of record may file with the responsible Secretariat a
Notice of Motion requesting that the committee review the decision of
the investigating authority.
(2) If, after consideration of any response made by the
investigating authority referred to in subrule (1), the committee
decides that a Proprietary Information Access Order should be issued or
that the terms of a Proprietary Information Access Order should be
amended or modified, the committee shall so notify counsel for the
investigating authority.
(3) If the final determination was made in the United States and
the investigating authority fails to comply with the notification
referred to in subrule (2), the committee may issue such orders as are
just in the circumstances, including an order refusing to permit the
investigating authority to make certain arguments in support of its
case or striking certain arguments from its pleadings.
25. (1) If a Proprietary Information Access Order is issued to a
person in an extraordinary challenge proceeding, the person shall file
with the responsible Secretariat a copy of the Proprietary Information
Access Order.
(2) If a Proprietary Information Access Order is revoked, amended
or modified by an investigating authority, the investigating authority
shall provide to the responsible Secretariat and to all participants a
copy of the Notice of Revocation, amendment or modification.
26. In an extraordinary challenge proceeding that commences with a
Request for an Extraordinary Challenge Committee pursuant to Article
10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty
Determinations) of the Agreement, personal information shall be kept
confidential:
(a) if a Notice of Motion is filed pursuant to subrule 45(1)(c),
(i) until the committee makes an order referred to in subrule
49(1)(a), or
(ii) if the committee makes an order referred to in subrule
49(1)(b), indefinitely, unless otherwise ordered by the committee; and
(b) in any other case, until the day after the expiration of the
time period fixed, pursuant to Rule 45, for filing a Notice of Motion
referred to in subrule 45(1)(c).
27. If a person alleges that the terms of a Proprietary Information
Access Application or Proprietary Information Access Order have been
violated, the committee shall refer the allegations to the
investigating authority for investigation and, if applicable, the
imposition of sanctions in accordance with section 77.034 of the
Special Import Measures Act, as amended, section 777(f) of the Tariff
Act of 1930, as amended, or article 93 of the Ley de Comercio Exterior.
Pleadings and Simultaneous Translation of Extraordinary Challenge
Proceedings in Canada
28. Rules 29 to 31 apply with respect to an extraordinary challenge
of a panel review of a final determination made in Canada.
[[Page 10202]]
29. A person, panelist, or committee member may use either English
or French in any document or oral proceeding.
30. (1) Subject to subrule (2), any order or decision including the
reasons for it, issued by a committee shall be made available
simultaneously in both English and French if:
(a) in the opinion of the committee, the order or decision is in
respect of a question of law of general public interest or importance;
or
(b) the proceedings leading to the issuance of the order or
decision were conducted in whole or in part in both English and French.
(2) If an order or decision:
(a) issued by a committee is not required by subrule (1) to be made
available simultaneously in English and French; or
(b) is required by subrule (1)(a) to be made available
simultaneously in both English and French but the committee is of the
opinion that to make the order or decision available simultaneously in
both English and French would occasion a delay prejudicial to the
public interest or result in injustice or hardship to any participant,
the order or decision, including the reasons therefor, shall be
issued in the first instance in either English or French and thereafter
at the earliest possible time in the other language, each version to be
effective from the time the first version is effective.
(3) Nothing in subrule (1) or (2) shall be construed as prohibiting
the oral delivery in either English or French of any order or decision
or any reasons therefor.
(4) No order or decision is invalid by reason only that it was not
made or issued in both English and French.
31. (1) Any oral proceeding conducted in both English and French
shall be translated simultaneously.
(2) If a participant requests simultaneous translation of an
extraordinary challenge proceeding, the request shall be made as early
as possible in the proceedings.
(3) If a committee is of the opinion that there is a public
interest in the extraordinary challenge proceedings, the committee may
direct the responsible Secretary to arrange for simultaneous
translation of the oral proceedings, if any.
Part II: Written Proceedings (Rules 32-44)
Filing, Service, and Communications
32. (1) Subject to subrule 34(1) and, if applicable, Rule 36, a
document is filed with the Secretariat when the responsible Secretariat
receives the document, during its normal business hours and within the
time period fixed for filing, physically, with one original and two
copies, or when the document is filed by electronic means.
(2) The responsible Secretariat shall also acknowledge receipt,
physically or electronically, to the party filing the document.
(3) Acknowledgement pursuant to subrule (2) does not constitute a
waiver of any time period fixed for filing or an acknowledgement that
the document has been filed in accordance with these Rules.
33. (1) All documents filed by a participant, other than documents
required by Rule 62 to be served by the responsible Secretary and
documents referred to in subrule 42(2), Rule 43, subrule 44(2)(a) and
Rule 45 shall be served by the participant on the counsel of record of
each of the other participants or, if another participant is not
represented by counsel, on the other participant.
(2) If an electronic filing platform agreed upon by the involved
Parties is used for filing, electronic notification by the filing
platform shall satisfy the service requirements of this Rule.
(3) Subject to subrules 34(1) and 38(a), a document may be served
by:
(a) mailing or delivering a copy of the document to the service
address of the participant by expedited delivery courier or expedited
mail service;
(b) transmitting a copy of the document to the electronic service
address of the participant;
(c) personal service on the participant; or
(d) any means, including the use of an electronic filing platform
agreed upon by the involved Parties, that the responsible Secretariat,
in consultation with participants, may direct.
(4) A proof of service shall appear on, or be affixed to, all
documents referred to in subrule (1).
(5) If a document is served by expedited delivery courier or
expedited mail service, the date of service set out in the affidavit of
service or certificate of service shall be the day on which the
document is consigned to the expedited delivery courier or expedited
mail service.
(6) If a document is served electronically, the date of service
shall be the day on which the document is sent by the sender.
34. (1) If, under these Rules, a document containing proprietary,
privileged, or personal information is required to be filed under seal
with the Secretariat or is required to be served under seal, the
document shall be filed or served in accordance with this Rule and, if
applicable, in accordance with Rule 36.
(2) A document filed or served under seal shall be:
(a) separate from all other documents;
(b) clearly marked:
(i) with respect to an extraordinary challenge of a panel review of
a final determination made in Canada,
(A) in the case of a document containing proprietary information,
``Proprietary'', ``Confidential'', ``De nature exclusive'' or
``Confidentiel'',
(B) in the case of a document containing privileged information,
``Privileged'' or ``Prot[eacute]g[eacute]'', and
(C) in the case of a document containing personal information,
``Personal Information'' or ``Renseignements personnels''; and
(ii) with respect to an extraordinary challenge of a panel review
of a final determination made in Mexico,
(A) in the case of a document containing proprietary information,
``Confidencial'',
(B) in the case of a document containing privileged information,
``Privilegiada'', and
(C) in the case of a document containing personal information,
``Informaci[oacute]n Personal''; and
(iii) with respect to an extraordinary challenge of a panel review
of a final determination made in the United States,
(A) in the case of a document containing proprietary information,
``Proprietary'',
(B) in the case of a document containing privileged information,
``Privileged'', and
(C) in the case of a document containing personal information,
``Personal Information''; and
(e) inside:
(i) an opaque inner wrapper and an opaque outer wrapper, if filed
or served physically,
(ii) a cover sheet, if filed or served electronically.
(3) An inner wrapper or cover sheet referred to in subrule (2)(c)
shall indicate:
(a) that proprietary, privileged, or personal information is
enclosed, as the case may be; and
(b) the Secretariat file number of the extraordinary challenge
proceeding.
35. Filing or service of proprietary, privileged, or personal
information with the Secretariat does not constitute a waiver of the
designation of the information as proprietary, privileged, or personal
information.
36. (1) If a participant files a pleading that contains proprietary
information, the participant shall file two sets of the pleading in the
following manner:
[[Page 10203]]
(a) one set containing the proprietary information shall be filed
under seal and, with respect to an extraordinary challenge of a panel
review of a final determination made in:
(i) Canada, shall be labelled ``Proprietary'', ``Confidential'',
``Confidentiel'' or ``De nature exclusive'', with the top of each page
that contains proprietary information marked with the word
``Proprietary'', ``Confidential'', ``Confidentiel'' or ``De nature
exclusive'' and with the proprietary information enclosed in brackets,
(ii) Mexico, shall be labelled ``Confidencial'', with the top of
each page that contains proprietary information marked with the word
``Confidencial'' and with the proprietary information enclosed in
brackets, and
(iii) the United States, shall be labelled ``Proprietary'' with the
top of each page that contains proprietary information marked with the
word ``Proprietary'' and with the proprietary information enclosed in
brackets; and
(b) no later than one day following the day on which the set of
pleadings referred to in subrule (1)(a) is filed, another set not
containing proprietary information shall be filed and, with respect to
an extraordinary challenge of a panel review of a final determination
made in:
(i) Canada, shall be labelled ``Non-Proprietary'', ``Non-
Confidential'', ``Non confidentiel'' or ``De nature non exclusive'',
(ii) Mexico, shall be labelled ``No confidencial'', and
(iii) the United States, shall be labelled ``Non-Proprietary'';
with each page from which proprietary information has been deleted
marked to indicate the location from which the proprietary information
was deleted.
(2) If a participant files a pleading that contains privileged
information, the participant shall file two sets of the pleading in the
following manner:
(a) one set containing the privileged information shall be filed
under seal and, with respect to an extraordinary challenge of a panel
review of a final determination made in:
(i) Canada, shall be labelled ``Privileged'' or
``Prot[eacute]g[eacute]'', with the top of each page that contains
privileged information marked with the word ``Privileged'' or
``Prot[eacute]g[eacute]'' and with the privileged information enclosed
in brackets,
(ii) for Mexico, shall be labelled ``Privilegiada'', with the top
of each page that contains privileged information marked with the word
``Privilegiada'' and with the privileged information enclosed in
brackets, and
(iii) the United States, shall be labelled ``Privileged'', with the
top of each page that contains privileged information marked with the
word ``Privileged'' and with the privileged information enclosed in
brackets; and
(b) no later than one day following the day on which the set of
pleadings referred to in subrule (2)(a) is filed, another set not
containing privileged information shall be filed and, with respect to
an extraordinary challenge of a panel review of a final determination
made in:
(i) Canada, shall be labelled ``Non-Privileged'' or ``Non
prot[eacute]g[eacute]'',
(ii) Mexico, shall be labelled ``No privilegiada'', and
(iii) the United States, shall be labelled ``Non-Privileged'';
with each page from which privileged information has been deleted
marked to indicate the location from which the privileged information
was deleted.
(3) If a participant files a pleading that contains personal
information, the pleading shall be filed under seal and, with respect
to an extraordinary challenge of a panel review of a final
determination made in:
(a) Canada, shall be labelled ``Personal Information'' or
``Renseignements personnels'', with the top of each page that contains
personal information marked with the words ``Personal Information'' or
``Renseignements personnels'' and with the personal information
enclosed in brackets;
(b) Mexico, shall be labelled ``Informaci[oacute]n Personal'', with
the top of each page that contains personal information marked with the
words ``Informaci[oacute]n personal'' and with the personal information
enclosed in brackets; and
(c) the United States, shall be labelled ``Personal Information'',
with the top of each page that contains personal information marked
with the words ``Personal Information'' and with the personal
information enclosed in brackets.
37. (1) Subject to subrule (2), a document containing proprietary
or privileged information shall be filed under seal in accordance with
Rule 34 and shall be served only on the investigating authority and on
those participants who have been granted access to the information
under a Proprietary Information Access Order.
(2) If all proprietary information contained in a document was
submitted to the investigating authority by one participant, the
document shall be served on that participant even if that participant
has not been granted access to proprietary information under a
Proprietary Information Access Order.
(3) A document containing personal information shall be filed under
seal in accordance with Rule 34 and shall be served only on persons or
participants who have been granted access to the information under an
order of the committee.
38. If proprietary, privileged, or personal information is
disclosed to a person in an extraordinary challenge proceeding, the
person shall not:
(a) file, serve, or otherwise communicate the proprietary,
privileged, or personal information by unsecure electronic means except
as authorized by the terms of a Proprietary Information Access Order;
or
(b) communicate the proprietary, privileged, or personal
information by telephone.
39. Service on an investigating authority does not constitute
service on a Party and service on a Party does not constitute service
on an investigating authority.
Form and Content of Pleadings
40. (1) Every pleading filed in an extraordinary challenge
proceeding shall contain the following information:
(a) the title of, and any Secretariat file number assigned for, the
extraordinary challenge proceeding;
(b) a brief descriptive title of the pleading;
(c) the name of the participant filing the pleading;
(d) the name of counsel of record for the participant;
(e) the service address, as defined in Rule 5; and
(f) the telephone number and electronic mail address of the counsel
of record of the participant or, if the participant is not represented
by counsel, the telephone number and electronic mail address of the
participant.
(2) Every pleading filed in an extraordinary challenge proceeding
shall be on paper 8\1/2\ x 11 inches (216 millimeters by 279
millimeters) in size. The text of the pleading shall be printed,
typewritten or reproduced legibly on one side only with a margin of
approximately 1\1/2\ inches (40 millimeters) on the left-hand side with
double spacing between each line of text, except for quotations of more
than 50 words, which shall be indented and single-spaced. Footnotes,
titles, schedules, tables, graphs, and columns of figures shall be
presented in a readable form. Briefs and appendices shall be securely
bound along the left-hand margin.
[[Page 10204]]
(3) If a pleading is filed by electronic means, that pleading shall
be formatted in a manner that, if printed, it would meet the
requirements of subrule (2).
(4) Every pleading filed on behalf of a participant in an
extraordinary challenge proceeding shall be signed by written or
electronic signature, by counsel for the participant or, if the
participant is not represented by counsel, by the participant.
Requests for an Extraordinary Challenge Committee
41. (1) If a Party, in its discretion, files with the responsible
Secretary a Request for an Extraordinary Challenge Committee referred
to in Article 10.12.13(a)(ii) (Review of Final Antidumping and
Countervailing Duty Determinations) or (iii) (Review of Final
Antidumping and Countervailing Duty Determinations) of the Agreement,
the Party shall file the Request (model form available from the
Secretariat) no later than 30 days after the issuance, pursuant to Rule
81(2) of the Article 10.12 Binational Panel Rules, of the Notice of
Final Panel Action in the panel review that is the subject of the
Request.
(2) If a Party, in its discretion, files with the responsible
Secretary a Request for an Extraordinary Challenge Committee referred
to in Article 10.12.13(a)(i) (Review of Final Antidumping and
Countervailing Duty Determinations) of the Agreement, the Party shall
file the Request (model form available from the Secretariat):
(a) no later than 30 days after the issuance, pursuant to Rule
81(2) of the Article 10.12 Binational Panel Rules, of the Notice of
Final Panel Action in the panel review that is the subject of the
Request; or
(b) subject to subrule (3), if the Party gained knowledge of the
action of the panelist giving rise to the allegation more than 30 days
after the panel issued a Notice of Final Panel Action, no more than 30
days after gaining knowledge of the action of the panelist.
(3) No Request for an Extraordinary Challenge Committee referred to
in subrule (2) may be filed if two years or more have elapsed since the
effective date of the Notice of Completion of Panel Review.
(4) Notwithstanding subrules (1) to (3), the running of the time
periods referred to in this section:
(a) shall be suspended in the circumstances set out in Article
10.13.11(b) (Safeguarding the Panel Review System) of the Agreement;
and
(b) if suspended under subrule (4)(a), shall be resumed in the
circumstances set out in Articles 10.13.12 (Safeguarding the Panel
Review System) and 10.13.13 (Safeguarding the Panel Review System) of
the Agreement.
42. (1) Subject to subrule (2), every Request for an Extraordinary
Challenge Committee shall be in writing and shall:
(a) include a concise statement of the allegations relied on,
together with a concise statement of how the actions alleged have
materially affected the panel's decision and the way in which the
integrity of the panel review process is threatened;
(b) contain the name of the Party in the panel review, name of
counsel, service address, telephone number, and electronic mail
address; and
(c) if the panel decision was made in Canada, state whether the
Party filing the Request for an Extraordinary Challenge Committee:
(i) intends to use English or French in pleadings and oral
proceedings before the committee, and
(ii) requests simultaneous translation of any oral proceedings.
(2) If a Request for an Extraordinary Challenge Committee contains
an allegation referred to in Article 10.12.13(a)(i) (Review of Final
Antidumping and Countervailing Duty Determinations) of the Agreement,
the identity of the panelist against whom such an allegation is made
shall be revealed only in a confidential annex filed together with the
Request and shall be disclosed only in accordance with Rule 60.
43. (1) Every Request for an Extraordinary Challenge Committee
(model form available from the Secretariat) shall be accompanied by:
(a) those items of the record of the panel review relevant to the
allegations contained in the Request; and
(b) an Index of the items referred to in subrule (1)(a).
(2) If a Request contains an allegation referred to in Article
10.12.13(a)(i) (Review of Final Antidumping and Countervailing Duty
Determinations) of the Agreement, the Request shall be accompanied by,
in addition to the requirements of subrule (1),
(a) any other material relevant to the allegations contained in the
Request; and
(b) if the Request is filed more than 30 days after the panel
issued a Notice of Final Panel Action pursuant to Rule 81(2) of the
Article 10.12 Binational Panel Rules, an affidavit certifying that the
Party gained knowledge of the action of the panelist giving rise to the
allegation no more than 30 days preceding the filing of the Request.
Notices of Appearance
44. (1) No later than 10 days after the Request for an
Extraordinary Challenge Committee is filed, a Party or participant in
the panel review who proposes to participate in the extraordinary
challenge proceeding shall file with the responsible Secretariat a
Notice of Appearance (model form available from the Secretariat)
containing the following information:
(a) the name of the Party or participant, name of counsel, service
address, telephone number and electronic mail address;
(b) a statement as to whether appearance is made:
(i) in support of the Request, or
(ii) in opposition to the Request; and
(c) if the extraordinary challenge is in respect of a panel review
of a final determination made in Canada, a statement as to whether the
person filing the Notice of Appearance:
(i) intends to use English or French in pleadings and oral
proceedings before the committee, and
(ii) requests simultaneous translation of any oral proceedings.
(2) If a Party or participant referred to in subrule (1) proposes
to rely on a document in the record of the panel review that is not
specified in the Index filed with the Request for an Extraordinary
Challenge Committee, the Party or participant shall file, with the
Notice of Appearance:
(a) the document; and
(b) a statement identifying the document and requesting its
inclusion in the extraordinary challenge record.
(3) On receipt of a document referred to in subrule (2), the
responsible Secretary shall include the document in the extraordinary
challenge record.
45. (1) No later than 10 days after a Request for an Extraordinary
Challenge Committee referred to in Article 10.12.13(a)(i) (Review of
Final Antidumping and Countervailing Duty Determinations) of the
Agreement is filed, a panelist against whom an allegation contained in
the Request is made and who proposes to participate in the
extraordinary challenge proceeding:
(a) must file a Notice of Appearance;
(b) may file, under seal, documents to be included in the
extraordinary challenge record relevant to the panelist's defense
against the allegation; and
(c) may file an ex parte motion requesting that the extraordinary
challenge proceeding be conducted in camera.
(2) If a committee issues an order pursuant to subrule 49(1)(a), a
panelist
[[Page 10205]]
who filed documents described in subrule (1)(b) may, no later than five
days after issuance of the order, withdraw any of those documents.
(3) If a panelist withdraws documents pursuant to subrule (2), the
committee shall not consider those documents.
Filing and Content of Briefs and Appendices
46. (1) The Party who has filed the Request for an Extraordinary
Challenge Committee and every participant who has filed a Notice of
Appearance under subrule 44(1)(b)(i) shall file a brief, setting forth
grounds and arguments in support of the Request, no later than 21 days
after the Request for an Extraordinary Challenge Committee is filed.
(2) Every participant who has filed a Notice of Appearance under
subrule 44(1)(b)(ii) shall file a brief, setting forth grounds and
arguments in opposition to the Request for an Extraordinary Challenge
Committee, no later than 21 days after the expiration of the time
period for filing of briefs referred to in subrule (1).
(3) The Party who has filed the Request for an Extraordinary
Challenge Committee and every participant who has filed a Notice of
Appearance under subrule 44(1)(b)(i) may file a brief, replying to the
grounds and arguments set forth in the briefs filed pursuant to subrule
(2), no later than 10 days after the expiration of the time period for
filing of briefs referred to in subrule (2). Reply briefs shall be
limited to rebuttal of matters raised in the briefs filed pursuant to
subrule (2).
(4) Every brief filed under this Rule shall be in the form required
by Rule 47.
(5) Appendices shall be filed with the briefs.
47. (1) Briefs shall contain information, in the following order,
divided into five parts:
Part I
(a) a table of contents; and
(b) a table of authorities cited:
The table of authorities shall contain references to all treaties,
statutes, and regulations cited, any cases primarily relied on in the
briefs, set out alphabetically, and all other documents referred to
except documents from the administrative record. The table of
authorities shall refer to the page(s) of the brief where each
authority is cited and mark, with an asterisk in the margin, those
authorities primarily relied on.
Part II: A Statement of the Case
This Part shall contain a concise statement of the relevant facts
with references to the panel record by page and, if applicable, by
line.
Part III: A Statement of the Issues
(a) in the brief of the Party who files the Request for an
Extraordinary Challenge Committee, this part shall contain a concise
statement of the issues; and
(b) in the brief of any other participant, this part shall contain
a concise statement of the position of the participant with respect to
the issues.
Part IV: Argument
This Part shall consist of the argument, setting out concisely the
points of law relating to the issues, with applicable citations to
authorities and the panel record.
Part V: Relief
This Part shall consist of a concise statement precisely
identifying the relief requested.
(2) Paragraphs in Parts I to V of a brief may be numbered
consecutively.
(3) Authorities referred to in the briefs shall be included in an
appendix, which shall be organized as follows: a table of contents,
copies of all treaty and statutory references, references to
regulations, cases primarily relied on in the briefs, set out
alphabetically, all documents relied on from the panel record, and all
other materials relied on.
Motions
48. (1) Motions, other than motions referred to in subrule
45(1)(c), may be considered at the discretion of the committee.
(2) A committee may dispose of a motion based upon the pleadings
filed on the motion.
(3) A committee may hear oral argument in person or, subject to
subrule 38(b), direct that a motion be heard by means of a telephone or
video conference call with the participants.
Part III: Conduct of Oral Proceedings (Rules 49-52)
49. (1) The order of a committee on a motion referred to in subrule
45(1)(c) shall set out:
(a) that the proceedings shall not be held in camera; or
(b) that the proceedings shall be held in camera; and
(i) that all the participants shall keep confidential all
information received with respect to the extraordinary challenge
proceeding and shall use the information solely for the purposes of the
proceeding, and
(ii) which documents containing personal information the
responsible Secretary shall serve under seal and on whom the documents
shall be served.
(2) The responsible Secretary shall not serve any documents
containing personal information until the time period for withdrawal of
any documents pursuant to subrule 45(2) has expired.
50. A committee may decide the procedures to be followed in the
extraordinary challenge proceeding and may, for that purpose, hold a
pre-hearing conference to determine such matters as the presentation of
evidence and of oral argument.
51. The decision as to whether oral argument will be heard shall be
in the discretion of the committee.
Oral Proceedings in Camera
52. During that part of oral proceedings in which proprietary
information or privileged information is presented, a committee shall
not permit any person other than the following persons to be present:
(a) the person presenting the proprietary information or privileged
information;
(b) a person who has been granted access to the proprietary
information or privileged information under a Proprietary Information
Access Order or an order of the panel or committee;
(c) in the case of privileged information, a person as to whom the
confidentiality of the privileged information has been waived; and
(d) officials of, and counsel for, the investigating authority.
Part IV: Responsibilities of the Secretariat (Rules 53-64)
53. The normal business hours of the Secretariat, during which the
offices of the Secretariat shall be open to the public, shall be from
9:00 a.m. to 5:00 p.m. on each weekday other than, in the case of the:
(a) Canadian Section of the Secretariat, legal holidays of that
Section;
(b) Mexican Section of the Secretariat, legal holidays of that
Section; and
(c) United States Section of the Secretariat, legal holidays of
that Section.
54. On the completion of the selection of the committee members,
the responsible Secretary must notify the participants and the other
involved Secretary of the names of the committee members.
55. The responsible Secretary shall provide administrative support
for each extraordinary challenge proceeding and shall make the
arrangements necessary for meetings and any oral proceedings,
including, if required, interpreters to provide simultaneous
translation.
56. Each involved Secretary must maintain a file for each
extraordinary
[[Page 10206]]
challenge, comprised of either the original or a copy of all documents
filed, whether or not filed in accordance with these Rules.
57. The responsible Secretary shall forward to the other involved
Secretary a copy of all documents filed with the responsible Secretary
and of all orders and decisions issued by a committee.
58. If under these Rules a responsible Secretary is required to
publish a notice or other document in the official publication of the
involved Parties, the responsible Secretary and the other involved
Secretary shall cause the notice or the other document to be published
in the official publication of the country in which that Section of the
Secretariat is located.
59. (1) If a document containing proprietary information or
privileged information is filed with the responsible Secretariat, each
involved Secretary shall ensure that:
(a) the document is stored, maintained, handled, and distributed in
accordance with the terms of an applicable Proprietary Information
Access Order;
(b) the inner wrapper or cover sheet of the document is clearly
marked to indicate that it contains proprietary information or
privileged information; and
(c) access to the document is limited to:
(i) in the case of proprietary information, officials of, and
counsel for, the investigating authority, the person who submitted the
proprietary information to the investigating authority and counsel of
record for that person, and any persons who have been granted access to
the information under a Proprietary Information Access Order, and
(ii) in the case of privileged information relied upon in an
extraordinary challenge of a decision of a panel with respect to a
final determination made in the United States, committee members and
their assistants and persons with respect to whom the panel ordered
disclosure of the privileged information under Rule 56 of the Article
10.12 Binational Panel Rules, if those persons have filed with the
responsible Secretariat a Proprietary Information Access Order with
respect to the document.
(2) If a document containing personal information is filed with the
responsible Secretariat, each involved Secretary shall ensure that:
(a) the document is stored, maintained, handled, and, distributed
in accordance with the terms of any applicable Proprietary Information
Access Order;
(b) the inner wrapper or cover sheet of the document is clearly
marked to indicate that it contains personal information; and
(c) access to the document is limited to persons granted access to
the information pursuant to subrule 49(1)(b).
60. No document filed in an extraordinary challenge proceeding
shall be removed from the offices of the Secretariat except in the
ordinary course of the business of the Secretariat or pursuant to the
direction of a committee.
61. (1) Each involved Secretary shall permit access by any person
to information in the file of an extraordinary challenge proceeding
that is not proprietary information, privileged information or personal
information.
(2) Each involved Secretary shall, in accordance with the terms of
any applicable Proprietary Information Access Order or order of a panel
or committee, permit access to proprietary information, privileged
information or personal information in the file of an extraordinary
challenge proceeding.
(3) Each involved Secretary shall, on request and on payment of the
prescribed fee, provide copies of information in the file of an
extraordinary challenge proceeding to any person who has been given
access to that information.
62. (1) If a Request for an Extraordinary Challenge Committee
pursuant to Article 10.12.13(a)(ii) or (iii) (Review of Final
Antidumping and Countervailing Duty Determinations) of the Agreement is
filed with the responsible Secretariat, the responsible Secretary
shall, upon receipt thereof,
(a) forward a copy of the Request and Index to the other involved
Secretary; and
(b) serve a copy of the Request and Index on the other involved
Party and on the participants in the panel review, together with a
statement setting out the date on which the Request was filed and
stating that all briefs of:
(i) the Party who has filed the Request and of every participant
who files a Notice of Appearance in support of the Request shall be
filed no later than 21 days after the date of filing of the Request,
(ii) every participant who files a Notice of Appearance in
opposition to the Request shall be filed no later than 21 days after
the expiration of the time period, referred to in subrule (1)(b)(i),
for filing of briefs, and
(iii) the Party who has filed the Request and of every participant
who files a brief under subrule (1)(b)(i) in reply to the grounds and
arguments set forth in the briefs filed pursuant to subrule (1)(b)(ii),
shall be filed no later than 10 days after the expiration of the time
period, referred to in subrule (1)(b)(ii), for filing of briefs.
(2) If a Request for an Extraordinary Challenge Committee pursuant
to Article 10.12.13(a)(i) (Review of Final Antidumping and
Countervailing Duty Determinations) of the Agreement is filed, the
responsible Secretary shall, upon receipt thereof,
(a) forward a copy of the Request, Index and annex to the other
involved Secretary; and
(b) serve a copy of the Request, Index and annex on the other
involved Party, on the panelist against whom the allegation contained
in the Request is made and on the participants in the panel review,
together with a statement setting out the date on which the Request was
filed and stating that all briefs of:
(i) the Party who has filed the Request and of every participant
who files a Notice of Appearance in support of the Request shall be
filed no later than 21 days after the date of filing of the Request,
(ii) every participant who files a Notice of Appearance in
opposition to the Request shall be filed no later than 21 days after
the expiration of the time period, referred to in subrule (2)(b)(i),
for filing of briefs, and
(iii) the Party who has filed the Request and of every participant
who files a brief under subrule (2)(b)(i) in reply to the grounds and
arguments set forth in the briefs filed pursuant to subrule (2)(b)(ii)
shall be filed no later than 10 days after the expiration of the time
period, referred to in subrule (2)(b)(ii), for filing of briefs.
(3) The responsible Secretary must serve orders and decisions of a
committee and Notices of Completion of Extraordinary Challenge on the
participants.
(4) If the decision of a committee referred to in subrule (3)
relates to a panel review of a final determination made in Canada, the
decision shall be served by registered mail.
63. The responsible Secretary must cause Notice of a Final Decision
of a committee issued pursuant to Rule 67, and any order that the
committee directs the Secretary to publish, to be published in the
official publications of the involved Parties.
64. If the time period fixed for filing an ex parte motion referred
to in subrule 45(1)(c) has expired, the responsible Secretary shall
serve on all participants:
[[Page 10207]]
(a) if no motion is filed pursuant to that subrule, the documents
referred to in Rules 43 and 45;
(b) if the committee issues an order referred to in subrule
49(1)(a), the documents referred to in Rules 43 and 45 in accordance
with any order of the committee; and
(c) if the committee issues an order referred to in subrule
49(1)(b), the documents referred to in Rules 43 and 45, in accordance
with subrule 49(1)(b)(ii) and any order made by the committee.
Part V: Orders and Decisions (Rules 65-67)
65. All orders and decisions of a committee shall be made by a
majority of the votes of all committee members.
66. (1) If a participant files a Notice of Motion requesting
dismissal of an extraordinary challenge proceeding, the committee may
issue an order dismissing the proceeding.
(2) If all the participants consent to the motion referred to in
subrule (1) and an affidavit to that effect is filed, or if all
participants file Notices of Motion requesting dismissal, the
extraordinary challenge proceeding is terminated.
67. (1) A final decision of a committee shall:
(a) affirm the decision of the panel;
(b) vacate the decision of the panel; or
(c) remand the decision of the panel to the panel for action not
inconsistent with the final decision of the committee.
(2) Every final decision of a committee shall be issued in writing
with reasons, together with any dissenting or concurring opinions of
the committee members.
(3) Subrule (2) shall not be construed as prohibiting the oral
delivery of the decision of a committee.
Part VI: Completion of Extraordinary Challenges (Rules 68-73)
68. If all participants consent to the termination of the
proceeding pursuant to Rule 66, the responsible Secretary shall cause
to be published in the official publications of the involved Parties a
Notice of Completion of Extraordinary Challenge, effective on the day
after the day on which the requirements of Rule 66 have been met.
69. If a committee issues its final decision, the responsible
Secretary shall cause to be published in the official publications of
the involved Parties a Notice of Completion of Extraordinary Challenge,
effective on the day after the day on which:
(a) the committee affirms the decision of the panel;
(b) the committee vacates the decision of the panel; or
(c) if the committee remands the decision of the panel, the day the
responsible Secretary gives notice to the committee that the panel has
given notice that it has taken action not inconsistent with the
committee's decision.
70. The committee members are discharged from their duties on the
day on which a Notice of Completion of Extraordinary Challenge is
effective.
Stays and Suspensions
71. (1) A Party may make a request, pursuant to Article
10.13.11(a)(ii) (Safeguarding the Panel Review System) of the
Agreement, that an ongoing extraordinary challenge proceeding be stayed
by filing the request with the responsible Secretariat.
(2) A Party who files a request under subrule (1) shall forthwith
give written notice of the request to the other involved Party and to
the other involved Secretariat.
(3) On receipt of a request under subrule (1), the responsible
Secretary shall:
(a) immediately give written notice of the stay of the
extraordinary challenge proceedings to all participants in the
extraordinary challenge proceedings; and
(b) publish a notice of the stay of the extraordinary challenge
proceedings in the official publications of the involved Parties.
72. On receipt of a report containing an affirmative finding with
respect to a ground specified in Article 10.13.1 (Safeguarding the
Panel Review System) of the Agreement, the responsible Secretary for
extraordinary challenge proceedings referred to in Article
10.13.11(a)(i) (Safeguarding the Panel Review System) of the Agreement
shall:
(a) immediately give notice in writing to all participants in those
proceedings; and
(b) publish a notice of the affirmative finding in the official
publications of the involved Parties.
73. (1) A Party who intends to suspend the operation of Article
10.12 (Review of Final Antidumping and Countervailing Duty
Determinations) of the Agreement pursuant to Articles 10.13.8 or
10.13.9 (Safeguarding the Panel Review System) of the Agreement shall
endeavor to give written notice of that intention to the other involved
Party and to the involved Secretaries at least five days prior to the
suspension.
(2) On receipt of a notice under subrule (1), the involved
Secretaries shall publish a notice of the suspension in the official
publications of the involved Parties.
RULES OF PROCEDURE FOR ARTICLE 10.13
(SPECIAL COMMITTEES)
Application
1. These Rules are established in accordance with Annex 10-B.4
(Special Committee Procedures) of the Agreement and apply to all
special committee proceedings conducted pursuant to Article 10.13
(Safeguarding the Panel Review System) of the Agreement. These Rules
will be published in Canada in the Canada Gazette, in Mexico in the
Diario Oficial de la Federaci[oacute]n, and in the United States in the
Federal Register.
Short Title
2. These Rules may be cited as the Special Committee Rules.
Statement of General Intent
3. These Rules apply to special committee proceedings conducted
pursuant to Article 10.13 (Safeguarding the Panel Review System) of the
Agreement, unless the involved Parties otherwise agree. If a procedural
question arises that is not covered by these Rules, a special committee
may adopt an appropriate procedure that is not inconsistent with the
Agreement.
4. In the event of any inconsistency between these Rules and the
Agreement, the Agreement shall prevail.
Definitions and Interpretation
5. For the purposes of these Rules:
Agreement means the Agreement signed between Canada, Mexico, and
the United States on November 30, 2018, as amended;
Code of Conduct means the code of conduct established by the
Parties pursuant to Article 10.17 (Code of Conduct) of the Agreement;
Complaining Party means a Party who requests, pursuant to Article
10.13.2 (Safeguarding the Panel Review System) of the Agreement, that a
special committee be established;
involved Secretariat means the responsible Secretariat or the
Section of the Secretariat located in the country of the other involved
Party;
legal holiday, for a Party's Section of the Secretariat, means
every Saturday, Sunday, and any other day designated by that Party as a
holiday for the purposes of these Rules and notified by that Party to
its Section of the Secretariat and by that Section to the other
Sections of the Secretariat and the other Parties;
official publication means in the case of the Government of:
(a) Canada, the Canada Gazette;
[[Page 10208]]
(b) Mexico, the Diario Oficial de la Federaci[oacute]n; and
(c) the United States, the Federal Register;
Party means the Government of Canada, the Government of Mexico or
the Government of the United States;
Responding Party means the Party against whom an allegation is made
under Article 10.13.1 (Safeguarding the Panel Review System) of the
Agreement;
responsible Secretariat means the Section of the Secretariat of the
Responding Party;
responsible Secretary means the Secretary of the responsible
Secretariat;
Secretariat means the Secretariat established pursuant to Article
30.6 (The Secretariat) of the Agreement;
Secretary means the Secretary of the United States Section of the
Secretariat, the Secretary of the Mexican Section of the Secretariat,
or the Secretary of the Canadian Section of the Secretariat and
includes any person authorized to act on behalf of that Secretary; and
special committee means a special committee established pursuant to
Article 10.13 (Safeguarding the Panel Review System) of the Agreement.
6. The definitions set forth in Article 10.8 (Definitions) of the
Agreement apply to these Rules.
7. When these Rules require that notice be given, it must be given
in writing.
Code of Conduct
8. Candidates being considered for appointment to a special
committee, special committee members and their assistants, and staff,
must comply with the Code of Conduct established under Article 10.17
(Code of Conduct) of the Agreement.
9. The responsible Secretariat shall provide a copy of the Code of
Conduct to each candidate being considered for appointment to serve as
a special committee member, and to each individual selected to serve as
a special committee member as well as to their assistants and staff.
10. If a Party believes that a special committee member, assistant,
or staff to a special committee member is in violation of the Code of
Conduct, the Party shall immediately notify the responsible Secretary
in writing of the alleged violation. The responsible Secretary shall
promptly notify the other involved Secretary and the involved Parties
of the allegations.
Internal Functioning of Special Committees
11. (1) Subject to subrule (2), unless the involved Parties
otherwise agree, special committee meetings shall take place at the
offices of the responsible Secretariat or at such alternative location
as the special committee members may agree.
(2) A special committee may conduct meetings or exchange
information by any means, including by electronic mail, telephone, or
video conference.
12. The members of a special committee must select from among
themselves a chair, who must preside over all meetings and hearings of
the special committee.
13. The chair of the special committee must fix the date and time
of its meetings in consultation with other special committee members
and the responsible Secretary.
14. All reports, findings, determinations, and decisions of a
special committee shall be made or issued by a majority vote of all
members of the special committee.
15. A special committee proceeding commences on the day on which a
request for a special committee is filed with the responsible
Secretariat and terminates on the day on which a notice of completion
of the special committee proceeding is issued pursuant to Rule 43.
16. (1) A special committee may adopt internal procedures of its
own, not inconsistent with these Rules, for routine administrative
matters.
(2) A special committee may delegate to its chair the authority to
make decisions regarding internal procedures or routine administrative
matters.
17. The terms of reference of a special committee shall be limited
to:
(a) making a finding as to whether any allegations set out in
Article 10.13.1 (Safeguarding the Panel Review System) of the Agreement
made by the Complaining Party regarding the application of the
Responding Party's domestic law are substantiated;
(b) determining whether a suspension of benefits by the Complaining
Party pursuant to Article 10.13.8(b) (Safeguarding the Panel Review
System) of the Agreement is manifestly excessive; and
(c) determining whether the Responding Party has corrected a
problem with respect to which the special committee has made an
affirmative finding.
Special Committee Remuneration and Expenses
18. (1) The involved Parties shall bear equally the remuneration
and expenses of special committee members selected pursuant to Article
10.13.5 (Safeguarding the Panel Review System), and of their
assistants, and all administrative expenses of the committee.
(2) Unless the involved Parties agree otherwise, remuneration for
special committee members shall be paid at the rate for non-
governmental panelists used by the WTO on the date a request for
Special Committee is made pursuant to Article 10.13 (Safeguarding the
Panel Review System).
(3) Unless the involved Parties agree otherwise, travel expenses
shall be paid at the Daily Subsistence Allowance rate for the location
of the hearing established by the United Nations International Civil
Service Commission on the date a request for Special Committee is made
pursuant to Article 10.13 (Safeguarding the Panel Review System).
(4) Each special committee member may hire one assistant to provide
research, translation, or interpretation support, unless a special
committee member requires an additional assistant and the involved
Parties agree that, due to exceptional circumstances, the special
committee member should be permitted to hire an additional assistant.
Each assistant to a special committee member shall be paid at a rate of
one-fifth the rate for a special committee member.
(5) The expenses authorized for a special committee established
pursuant to Article 10.13 (Safeguarding the Panel Review System), shall
be as follows:
(f) travel expenses: include the transportation costs of the
special committee members and assistants, their accommodations and
meals, as well as related taxes and insurance. Travel arrangements
shall be made and travel expenses reimbursed, in accordance with the
administrative guidelines applied by the responsible Secretariat; and
(g) administrative expenses: include, among others, telephone
calls, courier services, fax, stationery, rent of locations used for
hearings and deliberations, interpreter services, court reporters, or
any other person or service contracted by the responsible Secretariat
to support the proceeding.
(6) Each special committee member and assistant shall keep and
render a final account of his or her time and expenses to the
responsible Secretariat, and the special committee shall keep and
render a final account to the responsible Secretariat of its
administrative expenses. Each special committee member and assistant
shall submit this account, including relevant supporting documentation,
such as invoices, in accordance with the administrative guidelines of
the responsible Secretariat. A special
[[Page 10209]]
committee member or assistant may submit requests for payment of
remuneration or reimbursement for expenses during the proceeding on a
recommended quarterly basis throughout an ongoing dispute. Special
committee members and assistants should submit any final requests for
payment of remuneration or reimbursement within 60 days of the filing
of a notice of completion of the special committee proceeding.
(7) All requests for payment shall be subject to review by the
responsible Secretariat. The responsible Secretariat shall make
payments for the remuneration of special committee members and
assistants, and for expenses in accordance with the administrative
guidelines applied by the responsible Secretariat, using resources
provided equally by the involved Parties, and in coordination with the
involved Parties. No responsible Secretariat shall be obligated to pay
any remuneration or expense in connection with a special committee
prior to receiving the contributions of the involved Parties.
(8) The responsible Secretariat shall submit to the involved
Parties a final report on payments made in connection with a dispute.
On request of an involved Party, the responsible Secretariat shall
submit to the involved Parties a report of payments made to date at any
time during the special committee proceedings.
(9) In case of resignation or removal of a special committee member
or assistant, the responsible Secretariat will make payment of the
remuneration and expenses owed up until the date of resignation or
removal of this special committee member or assistant, using resources
provided equally by the involved Parties. A special committee member's
or assistant's final account of time or expenses must follow the
procedures in paragraph 6 and should be submitted within 60 days of the
date of their resignation or removal.
Filing, Service, and Communications
19. A document to be filed by an involved Party must be filed
either physically, with two copies, or electronically, with the
responsible Secretariat, and must also:
(a) be served on the other involved Party by express courier,
overnight mail, or by any other means agreed upon by the involved
Parties; and
(b) when filed, be accompanied by a proof of service certifying
that the document has been served on the other involved Party,
indicating the manner, date, and time of service.
Written Submissions
20. All written submissions and responses filed with a responsible
Secretariat shall be accompanied by two copies thereof.
21. (1) A request for the establishment of a special committee
under Article 10.13.2 (Safeguarding the Panel Review System) of the
Agreement shall be made by filing the request with the responsible
Secretariat.
(2) On the filing of a request under subrule (1), the responsible
Secretary and the other involved Secretary shall cause a notice of the
filing of the request to be published in the official publications of
the countries in which their Sections of the Secretariat are located.
22. The written initial submission of a Complaining Party shall be
filed with the responsible Secretariat no later than 10 days after the
date on which the last member of the special committee is appointed.
23. A written response by the Responding Party shall be filed with
the responsible Secretariat no later than 20 days after the filing of
the initial submission of the Complaining Party.
24. A special committee may allow each involved Party the
opportunity to make an equal number of further written submissions, no
later than such time as may be fixed by the special committee, having
regard to the time limits fixed by Annex 10-B.4 (Special Committee
Procedures) of the Agreement.
25. The responsible Secretary must forward to the other involved
Secretary a copy of all documents filed with the responsible
Secretariat and of all reports, findings, determinations, and decisions
issued by the special committee.
Hearings
26. (1) At least one hearing shall be held before the special
committee presents its initial report.
(2) The date and time of hearings shall be fixed by the special
committee in consultation with the involved Parties and the responsible
Secretary.
(3) A verbatim transcript shall be taken of all hearings.
27. Unless the involved Parties otherwise agree, special committee
hearings shall take place at the offices of the responsible
Secretariat.
28. (1) All special committee members must be present during
hearings.
(2) No later than five days before the date of a hearing, each
involved Party shall deliver to the responsible Secretariat and to the
other involved Party a list of the names of the persons who will
present oral arguments at the hearing on behalf of that Party and of
other representatives or advisers of the Party who will be attending
the hearing.
29. Oral proceedings shall be conducted in the following order,
ensuring that each involved Party is given equal time:
(a) the argument of the Complaining Party;
(b) the argument of the Responding Party;
(c) a reply of the Complaining Party; and
(d) a counter-reply of the Responding Party.
30. At the request of an involved Party or at the initiative of the
special committee, with the agreement of both involved Parties, and
subject to such terms and conditions as both involved Parties may agree
upon, the special committee may call upon any person to provide
information concerning the matter in dispute.
Language of Proceedings
31. Written and oral proceedings may be in either English, French,
or Spanish, or in any combination thereof.
32. Unless the involved Parties otherwise agree, the reports,
findings, determinations, and decisions of a special committee shall be
issued in an official language of the Responding Party and, if
necessary, shall be promptly translated into an official language of
the other involved Party.
Special Committee Deliberations
33. (1) The deliberations of a special committee shall take place
in private and remain confidential.
(2) Only special committee members may take part in the
deliberations of a special committee.
(3) Staff of the involved Secretariats, assistants to the special
committee members, and any necessary support staff may be present
during deliberations of a special committee by permission of the
special committee.
Reports
34. (1) In accordance with paragraph (b) of Annex 10-B.4 (Special
Committee Procedures) of the Agreement, a special committee must
prepare and present to the involved Parties an initial report, wherever
practicable, no later than 60 days after the appointment of the last
member of the special committee.
(2) The involved Parties may comment in writing or, at the request
of the special committee, orally, on an initial report of a special
committee no later than 14 days after the initial report is presented.
35. An initial report of a special committee shall be kept
confidential.
[[Page 10210]]
36. (1) A special committee must issue a final report, together
with any separate opinions rendered by individual special committee
members, no later than 30 days after the presentation of its initial
report.
(2) Any separate opinions rendered by individual special committee
members must be anonymous.
(3) On the issuance of a final report under subrule (1), the
responsible Secretary must immediately forward copies of the report to
the involved Parties.
(4) Unless the involved Parties otherwise agree:
(a) no later than 10 days after the final report is forwarded to
the involved Parties, the involved Secretaries must cause a notice that
a final report has been issued by a special committee to be published
in the official publications of the involved Parties, indicating that
copies of the report and of any separate opinions by individual special
committee members and written views of either involved Party are
available to the public at the offices of the responsible Secretariat;
and
(b) the responsible Secretariat must make available to the public
copies of the final report of a special committee, together with any
separate opinions by individual special committee members, and any
written views that either involved Party may wish to be published.
Reconvening of Special Committee
37. If a special committee has made an affirmative finding with
respect to grounds specified in Article 10.13.1 (Safeguarding the Panel
Review System) of the Agreement, a Responding Party may request that
the special committee be reconvened by filing a request with the
responsible Secretariat, if the Responding Party is requesting that the
special committee determine whether:
(a) the Responding Party has corrected a problem with respect to
which the special committee has made an affirmative finding, at any
time after the affirmative finding was made; or
(b) a suspension of benefits by the Complaining Party under Article
10.13.8 (Safeguarding the Panel Review System) of the Agreement is
manifestly excessive, at any time after the suspension was made.
38. (1) If a request referred to in subrule 37(a) is filed before
the fortieth day of the 60-day consultation period referred to in
Article 10.13.8 (Safeguarding the Panel Review System) of the
Agreement, the special committee must endeavor to present a report
containing its determination to the involved Parties before the
sixtieth day of that period, and may for that purpose make such orders
as to filing of written submissions and responses and the holding of a
hearing as the special committee considers necessary under the
circumstances.
(2) Rules 39 to 41 apply with respect to requests referred to in
subrule 37(a) that are filed on or after the fortieth day of the 60-day
consultation period referred to in Article 10.13.8 (Safeguarding the
Panel Review System) of the Agreement and to requests referred to in
subrule 37(b).
39. (1) At the time of filing a request pursuant to Rule 37, the
Responding Party shall file a written submission in support of the
request.
(2) A Complaining Party shall file a written response to a
submission referred to in subrule (1) no later than 20 days after that
submission is filed.
40. (1) At the time of filing a request pursuant to Rule 37 or a
written response pursuant to subrule 39(2), an involved Party may
request an opportunity to present oral argument in support of its
request or response.
(2) If an involved Party requests an opportunity to present oral
argument pursuant to subrule (1), the special committee may hold a
hearing, at which both involved Parties shall be granted an equal
opportunity to present oral argument.
41. The special committee must, no later than 45 days of the filing
of a request pursuant to Rule 37, present to the involved Parties a
written report containing its determination pursuant to Article
10.13.10 (Safeguarding the Panel Review System) of the Agreement.
42. Subrules 36(2) to (4) apply, with such modifications as are
necessary, to reports referred to in subrule 38(1) and Rule 41.
Completion of Special Committee Proceedings
43. (1) On completion of a special committee proceeding, as
determined by the special committee in consultation with the involved
Parties, the special committee must request the responsible Secretary
to issue a notice of completion of the proceeding.
(2) A notice referred to in subrule (1) is effective the day after
it is issued.
(3) The responsible Secretary must cause a notice issued under
subrule (1) to be published in the official publications of the
involved Parties.
44. The members of a special committee are discharged from their
duties on the day on which a notice of completion of the special
committee proceeding is effective.
Confidentiality
45. All written submissions to, and communications with, a special
committee and all documents filed with the involved Secretariats shall
be kept confidential.
46. (1) All hearings of a special committee, and all transcripts
thereof, shall be kept confidential.
(2) It is the responsibility of each involved Party to ensure that
the persons attending oral proceedings of a special committee on its
behalf maintain the confidentiality of the proceedings.
Ex Parte Contacts
47. (1) No special committee or member of a special committee shall
meet or contact one involved Party in the absence of the other involved
Party.
(2) No special committee member shall discuss a matter before the
special committee with the involved Parties in the absence of other
special committee members.
Extension and Computation of Time
48. A time period fixed by these Rules may be extended with the
consent of both involved Parties or by a decision of a special
committee.
49. (1) In computing any time period fixed in or under these Rules,
the day from which the time period begins to run shall be excluded and,
subject to subrule (2), the last day of the time period shall be
included.
(2) If the last day of a time period computed in accordance with
subrule (1) falls on a legal holiday of the responsible Secretariat or
on any other day on which the offices of that Section are closed by
order of the government or because of unforeseen circumstances outside
that Party's control, that day and any other legal holidays of the
responsible Secretariat immediately following that day shall be
excluded from the computation.
(3) In computing any time period of five days or less fixed in
these Rules or by a decision of a special committee, any legal holiday
or any other day on which the offices of that Section are closed by
order of the government or because of unforeseen circumstances outside
that Party's control, that falls within the time period shall be
excluded from the computation.
Responsibilities of the Responsible Secretary
50. The responsible Secretary shall provide administrative support
for each special committee proceeding and shall make the arrangements
necessary for the hearings and meetings of the special committee,
including the provision of court reporters and, if required,
[[Page 10211]]
interpreters to provide simultaneous translation.
51. The responsible Secretary must maintain a file for each special
committee proceeding, comprised of the original or a copy of all
documents filed, whether or not filed in accordance with these Rules,
in the special committee proceeding.
Death or Incapacity
52. If a special committee member is disqualified, dies, or
otherwise becomes unable to fulfil special committee duties:
(a) special committee proceedings and computations of time shall be
suspended, pending the appointment of a substitute special committee
member; and
(b) if the disability, disqualification or death occurs after oral
argument has begun, the chair may order that the matter be reheard, on
such terms as are appropriate, after selection of a substitute special
committee member.
Translation and Interpretation
53. (1) Subject to Rule 54, each involved Party shall, within a
reasonable period of time:
(a) after the appointment of the last special committee member,
advise the responsible Secretary in writing of the language in which
its written submissions will be made and in which it wishes to receive
the written submissions of the other involved Party; and
(b) before the date of a hearing, advise the responsible Secretary
in writing of the language in which it will present oral arguments at
the hearing and in which it wishes to hear oral arguments.
(2) On receipt of an advisement submitted pursuant to subrule (1),
the responsible Secretary must promptly notify the other involved
Secretary, the other involved Party and the special committee.
54. (1) In lieu of the procedure set out in Rule 53, a Party may
advise its Secretary of the language in which:
(a) its written submissions will be made in all special committee
proceedings and in which it wishes to receive written submissions of
any other Party involved in a special committee proceeding; and
(b) it will present oral arguments, and in which it wishes to hear
oral arguments, at all special committee hearings.
(2) On receipt of an advisement submitted pursuant to subrule (1),
a Secretary must promptly notify the other Secretaries and Parties
accordingly.
55. If the responsible Secretary is advised that written
submissions or oral arguments in a special committee proceeding will be
in more than one language or on the basis of a request of a special
committee member, the responsible Secretary must arrange for the
translation of the written submission(s) or for the provision of
interpreters to provide simultaneous translation at the hearing, as the
case may be.
56. Any time period applicable to a special committee proceeding
shall be suspended for the period necessary to complete the translation
of any written submission.
57. (1) The costs incurred in the preparation of a translation of a
written submission shall be borne by the Party filing the submission.
(2) Costs for interpretation of oral arguments and for the
translation of the special committee's reports shall be shared equally
by the involved Parties.
[FR Doc. 2023-03272 Filed 2-15-23; 8:45 am]
BILLING CODE 3390-F3-P
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</html>Indexed from Federal Register on February 16, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.