[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3928]
[[Page Unknown]]
[Federal Register: February 23, 1994]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
International Trade Administration
_______________________________________________________________________
North American Free Trade Agreement:
Rules of Procedure for Article 1904
Binational Panel Review; Notice
DEPARTMENT OF COMMERCE
International Trade Administration
North American Free Trade Agreement: Rules of Procedure for
Article 1904 Binational Panel Reviews
AGENCY: North American Free Trade Agreement, NAFTA Secretariat, United
States Section, International Trade Administration, Department of
Commerce.
ACTION: Rules of Procedure for NAFTA Article 1904 Binational Panel
Reviews.
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SUMMARY: Canada, Mexico, and the United States have negotiated the
rules of procedure for Article 1904 binational panel reviews. These
rules apply to binational panel proceedings conducted pursuant to
Article 1904 of the North American Free Trade Agreement.
EFFECTIVE DATE: January 1, 1994, the date of the entry into force of
the North American Free Trade Agreement (``Agreement''). These Rules of
Procedure shall apply to all binational panel proceedings under the
Agreement commenced on or after the effective date.
FOR FURTHER INFORMATION CONTACT: Lisa B. Koteen, Senior Attorney, Stacy
J. Ettinger, Attorney-Advisor, or Terrence J. McCartin, Attorney-
Advisor, Office of the Chief Counsel for Import Administration, room B-
099, U.S. Department of Commerce, 14th and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202) 482-0836, (202) 482-4618, or
(202) 482-5031, respectively. For procedural matters involving cases
under panel review, contact James R. Holbein, United States Secretary,
NAFTA Secretariat, room 2061, U.S. Department of Commerce, 14th and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
5438; fax: (202) 482-0148.
SUPPLEMENTARY INFORMATION:
Background
Chapter Nineteen of the North American Free Trade Agreement
(``Agreement'') 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
expeditiously review final determinations to determine whether they are
consistent with the antidumping or countervailing duty law of the
importing country.
Title IV of the North American Free Trade Agreement Implementation
Act of 1993, Public Law No. 103-182, 107 Stat. 2057, amends United
States law to implement Chapter Nineteen of the Agreement.
The NAFTA Article 1904 Panel Rules are intended to give effect to
the panel review provisions of Chapter Nineteen of the Agreement by
setting forth the procedures for commencing, conducting, and completing
panel reviews. These rules are the result of negotiations among Canada,
Mexico, and the United States in compliance with the terms of the
Agreement, and are derived in large part from the Article 1904 Panel
Rules under the United States-Canada Free Trade Agreement.
North American Free Trade Agreement
Rules of Procedure for Article 1904 Binational Panel Reviews
Content
Preamble
Rule
1. Short Title
2. Statement of General Intent
3. Definitions and Interpretation
Part I--General
6. Duration and Scope of Panel Review
8. Responsibilities of the Secretary
17. Internal Functioning of Panels
19. Computation of Time
21. Counsel of Record
22. Filing, Service and Communications
28. Pleadings and Simultaneous Translation of Panel Reviews in
Canada
32. Costs
Part II--Commencement of Panel Review
33. Notice of Intent to Commence Judicial Review
34. Request for Panel Review
36. Joint Panel Reviews
39. Complaint
40. Notice of Appearance
41. Record for Review
Part III--Panels
42. Announcement of Panel
43. Violation of Code of Conduct
Part IV--Proprietary and Privileged Information
44. Filing or Service under Seal
46. Proprietary Information Access Orders
52. Privileged Information
54. Violations of Proprietary Information Access Applications or
Orders
Part V--Written Proceedings
55. Form and Content of Pleadings
57. Filing of Briefs
58. Failure to File Briefs
59. Content of Briefs and Appendices
60. Appendix to the Briefs
61. Motions
Part VI--Oral Proceedings
65. Location
66. Pre-hearing Conference
67. Oral Argument
68. Subsequent Authorities
69. Oral Proceedings in Camera
Part VII--Decisions and Completions of Panel Reviews
70. Orders, Decisions and Terminations
73. Panel Review of Action on Remand
75. Re-examination of Orders and Decisions
Part VIII--Completion of Panel Review
81. Stays and Suspensions
Schedule--Procedural Forms
Preamble
The Parties,
Having regard to Chapter Nineteen of the North American Free Trade
Agreement between Canada, the United Mexican States and the United
States of America;
Acting pursuant to Article 1904.14 of the Agreement;
Adopt the following Rules of Procedure, which shall come into force
on the same day as the Agreement enters into force and from that day
shall govern all panel reviews conducted pursuant to Article 1904 of
the Agreement.
Short Title
1. These rules may be cited as the NAFTA Article 1904 Panel Rules.
Statement of General Intent
2. These rules are intended to give effect to the provisions of
Chapter Nineteen of the Agreement with respect to panel reviews
conducted pursuant to Article 1904 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 1904. Where 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. In the event of any inconsistency between the provisions of
these rules and the Agreement, the Agreement shall prevail.
Definitions and Interpretation
3. In these rules,
``Agreement'' means the North American Free Trade Agreement;
``Code of Conduct'' means the code of conduct established by the
Parties pursuant to Article 1909 of the Agreement;
``complainant'' means a Party or interested person who files a
Complaint pursuant to rule 39;
``counsel'' means
(a) with respect to a panel review of a final determination made in
Canada, a person entitled to appear as counsel before the Federal Court
of Canada,
(b) with respect to a panel review of a final determination made in
Mexico, a person entitled to appear as counsel before the Tribunal
Fiscal de la Federacion, and
(c) with respect to a panel review of a final determination made in
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 21(1);
``Deputy Minister'' means the Deputy Minister of National Revenue
for Customs and Excise, or the successor thereto, and includes any
person authorized to perform a power, duty or function of the Deputy
Minister under the Special Import Measures Act, as amended;
``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) where only one Request for Panel Review is filed for review of
a final determination, that Request, and
(b) where 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
(a) with respect to a panel review of a final determination made
in Canada, information
(i) the disclosure of which would be injurious to international
relations or national defence 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) with respect to a panel review of a final determination made in
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) with respect to a panel review of a final determination made in
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 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, any person
authorized by the investigating authority;
``involved Secretariat'' means the section of the Secretariat
located in the country of an involved Party;
``legal holiday'' means
(a) with respect to the Canadian Section of the Secretariat, every
Saturday and Sunday, New Year's Day (January 1), Good Friday, Easter
Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in
September), Thanksgiving Day (second Monday in October), Remembrance
Day (November 11), Christmas Day (December 25), Boxing Day (December
26), any other day fixed as a statutory holiday by the Government of
Canada or by the province in which the Section is located and any day
on which the offices of the Canadian Section of the Secretariat are
officially closed in whole or in part,
(b) With respect to the Mexican Section of the Secretariat, every
Saturday and Sunday, New Year's Day (January 1), Constitution Day
(February 5), Benito Juarez's Birthday (March 21), Labor Day (May 1),
Battle of Puebla (May 5), Independence Day (September 16),
Congressional Opening Day (November 1), Revolution Day (November 20),
Transmission of the Federal Executive Branch (every six years on
December 1), Christmas Day (December 25), any day designated as a
statutory holiday by the Federal Laws or, in the case of Ordinary
Elections, by the Local Electoral Laws and any day on which the offices
of the Mexican Section of the Secretariat are officially closed in
whole or in part, and
(c) with respect to the United States Section of the Secretariat,
every Saturday and Sunday, New Year's Day (January 1), Martin Luther
King's Birthday (third Monday in January), Presidents' Day (third
Monday in February), Memorial Day (last Monday in May), Independence
Day (July 4), Labor Day (first Monday in September), Columbus Day
(second Monday in October), Veterans' Day (November 11), Thanksgiving
Day (fourth Thursday in November), Christmas Day (December 25), any day
designated as a holiday by the President or the Congress of the United
States and any day on which the offices of the Government of the United
States located in the District of Columbia or the offices of the United
States Section of the Secretariat are officially closed in whole or in
part;
``Mexico'' means the United Mexican States;
``official publication'' means
(a) in the case of the Government of Canada, the Canada Gazette;
(b) in the case of the Government of Mexico, the Diario Oficial de
la Federacion, and
(c) in the case of the Government of United States, the Federal
Register;
``panel'' means a binational panel established pursuant to Annex
1901.2 to Chapter Nineteen 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 39 or a Notice of Appearance pursuant to
rule 40:
(a) a Party,
(b) an investigating authority, and
(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 Change of Counsel of Record, a brief or any other written
submission filed by a participant;
``privileged information'' means
(a) with respect to a panel review of a final determination made in
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) with respect to a panel review of a final determination made in
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 Secretaria de
Comercio y Fomento Industrial 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) with respect to a panel review of a final determination made in
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
(a) with respect to a panel review of a final determination made in
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, where 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) with respect to a panel review of a final determination made in
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
(a) with respect to a panel review of a final determination made in
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) with respect to a panel review of a final determination made in
Mexico, informacion confidencial, as defined under article 80 of the
Ley de Comercio Exterior and its regulations, and
(c) with respect to a panel review of a final determination made in
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
(a) with respect to a panel review of a final determination made in
Canada, a disclosure undertaking in the prescribed form, which form
(i) in respect of a final determination by the Deputy Minister, is
available from the Deputy Minister, and
(ii) in respect of a final determination by the Tribunal, is
available from the Tribunal,
(b) with respect to a panel review of a final determination made in
Mexico, a disclosure undertaking in the prescribed form, which form is
available from the Secretaria de Comercio y Fomento Industrial, and
(c) with respect to a panel review of a final determination made in
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
(a) in the case of Canada, a Disclosure Order issued by the Deputy
Minister or the Tribunal pursuant to a Proprietary Information Access
Application,
(b) in the case of Mexico, a Disclosure Order issued by the
Secretaria de Comercio y Fomento Industrial pursuant to a Proprietary
Information Access Application, and
(c) in the case of 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 2002 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 any facsimile number
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 any facsimile number
submitted with that address or, where 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 any facsimile number submitted
with that address, or
(c) where 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 any facsimile number submitted with that address;
``service list'' means, with respect to a panel review,
(a) where 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 Deputy
Minister, persons named on the list maintained by the Deputy Minister
who participated in the proceedings before the Deputy Minister 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 the findings of the Tribunal
is with respect to goods of the country of the other involved Party,
and
(b) where 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;
``Tribunal'' means the Canadian International Trade Tribunal or its
successor and includes any person authorized to act on its behalf;
``United States'' means the United States of America.
4. The definitions set forth in Article 1911 of the Agreement and
Annex 1911 to Chapter Nineteen of the Agreement are hereby incorporated
into these rules.
5. Where these rules require that notice be given, it shall be
given in writing.
Part I--General
Duration and Scope of Panel Review
6. 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.
7. 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.
Responsibilities of the Secretary
8. 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
(a) in the case of the United States Section of the Secretariat,
legal holidays of that Section;
(b) in the case of the Canadian Section of the Secretariat, legal
holidays of that Section; and
(c) in the case of the Mexican Section of the Secretariat, legal
holidays of that Section.
9. 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.
10. (1) Each Secretary shall maintain a file for each panel review.
Subject to subrules (3) and (4), the file shall 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
shall be the Secretariat file number for all documents filed or issued
in that panel review. All documents filed shall be stamped by the
Secretariat to show the date and time of receipt.
(3) Where, after notification of the selection of a panel pursuant
to rule 42, 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 chairperson of the Panel for
instructions, provided such authority has been delegated by the Panel
to its chairperson pursuant to rule 17.
(4) On a referral referred to in subrule (3), the chairperson may
instruct the responsible Secretary to
(a) retain the document in the file, without prejudice to a motion
to strike such document; or
(b) return the document to the person who filed the document,
without prejudice to a motion for leave to file the document.
11. The responsible Secretary shall forward to the other involved
Secretary a copy of all documents filed in the office of the
responsible Secretary in a panel review and of all orders and decisions
issued by the panel.
12. Where 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.
13. (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 Deputy Minister, the
Tribunal, the Secretaria de Comercio y Fomento Industrial, the
International Trade Administration of the United States Department of
Commerce and the United States International Trade Commission.
(2) Where 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.
14. (1) The responsible Secretary shall file with the investigating
authority one original, and any additional copies required by 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 47.
(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.
15. Where 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 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 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, persons with
respect to whom the panel has ordered disclosure of the privileged
information under rule 52, if the persons have filed with the
responsible Secretariat a Proprietary Information Access Order with
respect to the document.
16. (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 15(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 (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
17. (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 chairperson
(a) the authority to accept or reject filings in accordance with
subrule 10(4); and
(b) the authority to grant motions consented to by all
participants, other than a motion filed pursuant to rule 20 or 52, 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 chairperson referred to in subrule (2) shall
be issued as an order of the panel.
(4) Subject to subrule 26(b), meetings of a panel may be conducted
by means of a telephone conference call.
18. 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
19. (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) Where the last day of a time period computed in accordance with
subrule (1) falls on a legal holiday of the responsible Secretariat,
that day and any other legal holidays of the responsible Secretariat
immediately following that day shall be excluded from the computation.
20. (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 concurred in 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 such a motion before the last
day of the time period which is the subject of the motion.
Counsel of Record
21. (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.
Filing, Service and Communications
22. (1) Subject to subrule 46(1), rule 47 and subrules 52(3) and
73(2)(a), no document is filed with the Secretariat until one original
and eight copies of the document are received by the responsible
Secretariat during its normal business hours and within the time period
fixed for filing.
(2) The responsible Secretariat shall accept, date and time stamp
and place in the appropriate file every document submitted to the
responsible Secretariat.
(3) Receipt, date and time stamping or placement in the file of a
document by the responsible Secretariat 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.
23. The responsible Secretary shall be responsible for the service
of
(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 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.
24. (1) Subject to subrules (4) and (5), all documents filed by a
participant, other than the administrative record, any supplementary
remand record and any document required by rule 23 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 where a
participant is not represented by counsel, on the participant.
(2) A proof of service shall appear on, or be affixed to, all
documents referred to in subrule (1).
(3) Where 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.
(4) A document containing proprietary information or privileged
information shall be filed and served under seal in accordance with
rule 44, 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.
(5) A complainant shall serve a Complaint on the investigating
authority and on all persons listed on the service list.
25. Subject to subrule 26(a), a document may be served by
(a) delivering a copy of the document to the service address of the
participant;
(b) sending a copy of the document to the service address of the
participant by facsimile transmission or by expedited delivery courier
or expedited mail service, such as express mail in the United States or
Priority Post in Canada; or
(c) personal service on the participant.
26. Where 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 facsimile transmission; or
(b) communicate the proprietary information or privileged
information by telephone.
27. 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
28. Rules 29 to 31 apply with respect to a panel review of a final
determination made in Canada.
29. Either English or French may be used by any person or panelist
in any document or oral proceeding.
30. (1) Subject to subrule (2), any order or decision including the
reasons therefor, issued by a panel shall be made available
simultaneously in both English and French where
(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 both English and French.
(2) Where
(a) an order or decision issued by a panel is not required by
subrule (1) to be made available simultaneously in English and French,
or
(b) an order or decision 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.
31. (1) Any oral proceeding conducted in both English and French
shall be translated simultaneously.
(2) Where 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 Notice of Appearance.
(3) Where the chairperson of a panel is of the opinion that there
is a public interest in the panel review, the chairperson may direct
the responsible Secretary to arrange for simultaneous translation of
any of the oral proceedings in the panel review.
Costs
32. Each participant shall bear the costs of, and those incidental
to, its own participation in a panel review.
Part II--Commencement of Panel Review
Notice of Intent to Commence Judicial Review
33. (1) Where an interested person intends to commence judicial
review of a final determination, the interested person shall
(a) where 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) where the final determination was made in Mexico or the United
States, within 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) Where 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) shall include the following information (model form
provided in the Schedule):
(a) the information set out in subrules 55(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
34. (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 404 of the United States North American Free Trade
Agreement 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 shall contain the following
information (model form provided in the Schedule):
(a) the information set out in subrule 55(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) where a Notice of Intent to Commence Judicial Review has been
served and the sole reason that the Request for Panel Review is made is
to require review of the final determination by a panel, a statement to
that effect; and
(e) the service list, as defined in rule 3.
35. (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 39 within 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 shall file a Notice of Appearance in accordance with rule
40 within 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
36. (1) Subject to rule 37, where
(a) a panel is established to review a final determination made
under paragraph 41(1)(a) 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) 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,
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 respect to those goods is filed,
within 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, within 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.
37. (1) Where a panel is established to review a final
determination made under paragraph 41(1)(a) 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) Where 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.
38. (1) Subject to subrules (2) and (3), where final determinations
are reviewed jointly pursuant to rule 36 or 37, 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 57.
(2) Unless otherwise ordered by a panel as a result of a motion
under subrule (3), where final determinations are reviewed jointly
pursuant to rule 37, 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 where 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)(a)
of the Special Import Measures Act, as amended, or section 705(a) or
735(a) of the Tariff Act of 1930, as amended.
(3) Where the final determinations are reviewed jointly pursuant to
rule 36 or 37, any 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) shall 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, where the panel has not
issued a ruling on a motion filed pursuant to subrule (3) within 30
days after the filing of the Notice of Motion, the motion shall be
deemed denied.
Complaint
39. (1) Subject to subrule (3), any interested person who intends
to make allegations of errors of fact or law, including challenges to
the jurisdiction of the investigating authority, with respect to a
final determination, shall file with the responsible Secretariat,
within 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) shall contain the
following information (model form provided in the Schedule):
(a) the information set out in subrule 55(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) where 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 shall be filed no
later than 5 days before the expiration of the time period for filing a
Notice of Appearance pursuant to rule 40.
(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 57(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) Where the panel does not grant a motion referred to in subrule
(6) within the time period for filing briefs pursuant to subrule 57(1),
the motion shall be deemed to be denied.
Notice of Appearance
40. (1) Within 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 shall 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 55(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 39(2)(b),
(ii) in opposition to some or all of the allegations set out in a
Complaint under subrule 39(2)(b), or
(iii) in support of some of the allegations set out in a Complaint
under subrule 39(2)(b) and in opposition to some of the allegations set
out in a Complaint under subrule 39(2)(b); and
(e) where the final determination was 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 panel, and
(ii) requests simultaneous translation of any oral proceedings.
(2) Any complainant who intends to appear in opposition to
allegations set out in a Complaint under subrule 39(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
41. (1) The investigating authority whose final determination is
under review shall, within 15 days after the expiration of the time
period fixed for filing a Notice of Appearance, file with the
responsible Secretariat
(a) nine copies of the final determination, including reasons for
the final determination;
(b) two copies of 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), two copies of the
administrative record.
(2) An Index referred to in subrule (1) shall, where 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 shall be filed under seal in accordance with rule 44.
(4) No privileged information shall 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 shall be filed with the responsible
Secretariat unless the investigating authority, after having reviewed
the government information and, where applicable, after having pursued
appropriate review procedures, determines that the information may be
disclosed.
Part III--Panels
Announcement of Panel
42. 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.
Violation of Code of Conduct
43. Where a participant believes that a panelist or an assistant to
a panelist 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 IV--Proprietary Information and Privileged Information
Filing or Service Under Seal
44. (1) Where, 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,
where the document is a pleading, in accordance with rule 56.
(2) A document filed or served under seal shall be
(a) bound separately 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 ``Protege'',
(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) contained in an opaque inner wrapper and an opaque outer
wrapper.
(3) An inner wrapper 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.
45. 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
46. (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 shall file a
Proprietary Information Access Application with respect to the
proprietary information as follows:
(a) with the responsible Secretariat, four 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) where 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 24(1).
47. (1) Every panelist, assistant to a panelist, court reporter,
interpreter and translator shall, before taking up duties in a panel
review, provide to the responsible Secretary a Proprietary Information
Access Application.
(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) Where the investigating authority receives, pursuant to subrule
14(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.
48. The investigating authority shall, within 30 days after a
Proprietary Information Access Application is filed in accordance with
subrule 46(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.
49. (1) Where
(a) an investigating authority 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) an investigating authority 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 the decision of the
investigating authority.
(2) Where, 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) Where 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 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.
50. (1) Where a Proprietary Information Access Order is issued to a
person in a panel review, the person shall file with the responsible
Secretariat a copy of the Proprietary Information Access Order.
(2) Where 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.
51. Where a Proprietary Information Access Order is issued to a
person, the person is entitled
(a) to access to the document; and
(b) where the person is a counsel of record, to a copy of the
document containing the proprietary information, on payment of an
appropriate fee, and to service of pleadings containing the proprietary
information.
Privileged Information
52. (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) Within 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) Where 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) Where 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) Where an order referred to in subrule (6) or (7) 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.
53. In a panel review of a final determination made in the United
States, where, pursuant to rule 52, 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 NAFTA Extraordinary
Challenge Committee Rules;
(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
54. Where 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, where 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 V--Written Proceedings
Form and Content of Pleadings
55. (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 3; and
(f) the telephone number of the counsel of record referred to in
subrule (d) or, where an interested person is not represented by
counsel, the telephone number of the interested person.
(2) Every pleading filed in a panel review shall be on paper 8\1/2\
x 11 inches (216 millimetres 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 millimetres)
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) Every pleading filed on behalf of a participant in a panel
review shall be signed by counsel for the participant or, where the
participant is not represented by counsel, by the participant.
56. (1) Where 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
(i) with respect to a panel review of a final determination made in
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) with respect to a panel review of a final determination made
in 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) with respect to a panel review of a final determination made
in 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 (a) is filed, another set not
containing proprietary information shall be filed and
(i) with respect to a panel review of a final determination made in
Canada, shall be labelled ``Non-Proprietary'', ``Non-Confidential'',
``Non confidentiel'' or ``De nature non exclusive'',
(ii) with respect to a panel review of a final determination made
in Mexico, shall be labelled ``No-confidencial'', and
(iii) with respect to a panel review of a final determination made
in 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) Where 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
(i) with respect to a panel review of a final determination made in
Canada, shall be labelled ``Privileged'' or ``Protege'', with the top
of each page that contains privileged information marked with the word
``Privileged'' or ``Protege'' and with the privileged information
enclosed in brackets,
(ii) with respect to a panel review of a final determination made
in 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) with respect to a panel review of a final determination made
in 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 (a) is filed, another set not
containing privileged information shall be filed and
(i) with respect to a panel review of a final determination made in
Canada, shall be labelled ``Non-Privileged'' or ``Non protege'',
(ii) with respect to a panel review of a final determination made
in Mexico, shall be labelled ``No-privilegiada'', and
(iii) with respect to a panel review of a final determination made
in 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
57. (1) Subject to subrule 38(1), every participant who has filed a
Complaint under rule 39 or a Notice of Appearance with a statement
under subrule 40(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 41(1), for filing the administrative record.
(2) Every participant who has filed a Notice of Appearance with a
statement under subrule 40(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) shall be filed with the responsible
Secretariat within 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) Where 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 with respect to 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
58. (1) In respect of a panel review of a final determination made
in the United States or Canada, where a participant fails to file a
brief within the time period fixed and no motion pursuant to rule 20 is
pending, on a motion of another participant, the panel may order that
the participant who fails to file a brief is not entitled
(a) to present oral argument;
(b) to service of any further pleadings, orders or decisions in the
panel review; or
(c) to further notice of the proceedings in the panel review.
(2) Where
(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 20 is pending, 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.
(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) Where 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 57(2), a panel may issue a decision
referred to in rule 72.
Content of Briefs and Appendices
59. (1) Every brief filed pursuant to subrule 57 (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 57(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 57(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 57(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 57(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 57(3) shall include a
table of contents and a table of authorities, indicating those
principally relied upon in the argument.
Appendix to the Briefs
60. (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 57(4) shall be compiled by
a participant who filed a brief under subrule 57(1) and who was so
designated by all the participants who filed a brief. Each participant
who filed a brief under subrule 57(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 57(1). Each participant who filed a brief under subrule
57(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 57 (1) or (2).
(3) The costs for compiling the appendix shall be borne equally by
all participants who file briefs.
Motions
61. (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) where necessary, references to evidence in the administrative
record identified by page and, where practicable, by line.
(4) The pendency of any motion in a panel review shall not alter
any time period fixed in these rules or by an order or decision of the
panel.
(5) A Notice of Motion to which all participants consent shall be
entitled a Consent Motion.
62. Subject to subrules 20(2) and 76(5), unless the panel otherwise
orders, a participant may file a response to a Notice of Motion within
10 days after the Notice of Motion is filed.
63. (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 26(b),
direct that a motion be heard by means of a telephone conference call
with the participants.
(3) A panel may deny a motion before responses to the Notice of
Motion have been filed.
64. Where a panel chooses to hear oral argument or, pursuant to
subrule 63(2), directs that a motion be heard by means of a telephone
conference call with the participants, the responsible Secretary shall,
at the direction of the chairperson, fix a date, time and place for the
hearing of the motion and shall notify all participants of the same.
Part VI--Oral Proceedings
Location
65. Oral proceedings in a panel review shall take place at the
office of the responsible Secretariat or at such other location as the
responsible Secretary may arrange.
Pre-hearing Conference
66. (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 such
matters as
(a) the clarification and simplification of the issues;
(b) the procedure to be followed at the hearing of oral argument;
and
(c) any outstanding motions.
(4) Subject to subrule 26(b), a pre-hearing conference may be
conducted by means of a telephone 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
67. (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 57(3) for filing reply briefs. At the direction of the panel,
the responsible Secretary shall 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 (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
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, where the participant is an individual appearing pro
se, by the participant.
(5) Oral argument shall be limited to the issues in dispute.
Subsequent Authorities
68. (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) shall be filed as soon as
possible after the issuance of the decision or judgment by the court.
(3) Where a request referred to in subrule (1) is filed with the
responsible Secretariat, any other participant may, within 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.
Oral Proceedings in Camera
69. 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.
Part VII--Decisions and Completions of Panel Reviews
Orders, Decisions and Terminations
70. The responsible Secretary shall cause notice of every decision
of a panel issued pursuant to rule 72 to be published in the official
publications of the involved Parties.
71. (1) Where a Notice of Motion requesting dismissal of a panel
review is filed by a participant, the panel may issue an order
dismissing the panel review.
(2) Where a Notice of Motion requesting termination of a panel
review is filed by a participant and is consented to by all the
participants, and an affidavit to that effect is filed, or where all
participants file Notices of Motion requesting termination, the panel
review is terminated and, if a panel has been appointed, the panelists
are discharged.
72. A panel shall issue a written decision with reasons, together
with any dissenting or concurring opinions of the panelists, in
accordance with Article 1904.8 of the Agreement. The decision will
normally be released by noon on the date of issuance.
Panel Review of Action on Remand
73. (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 with the responsible
Secretariat an Index listing each item in the supplementary remand
record, and a copy of each non-privileged item listed in that Index,
within 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 within 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
(b) shall be filed by the investigating authority, and by any
participant supporting the investigating authority, within 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 within 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
(a) shall be filed by the investigating authority, and by any
participant filing in support of the investigating authority, within 20
days after the last day on which such written submissions may be filed.
(4) In the case of a panel review of a final determination made in
Mexico, where a participant who fails to file a brief under rule 57
files a written submission pursuant to subrule (2) or (3), 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 20 is pending, the panel shall, within 10 days
after the later of the due date for such written submissions and the
date of the denial of a motion pursuant to rule 20, issue an order
affirming the investigating authority's Determination on Remand.
(6) Where a Determination on Remand is challenged, the panel shall
issue a written decision pursuant to rule 72, 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.
74. 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
75. 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.
76. (1) A participant may, within 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
(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) Within 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 VIII--Completion of Panel Review
77. (1) Subject to subrule (2), when a panel issues:
(a) an order dismissing a panel review under subrule 58(3) or
71(1),
(b) a decision under rule 72 or subrule 73(6) that is the final
action in the panel review, or
(c) an order under subrule 73(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) Where a motion is filed pursuant to subrule 76(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.
78. 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
71(2); or
(b) in any other case, on the 31st day following the date on which
the responsible Secretary issues a Notice of Final Panel Action.
79. Where 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 64 or
subrule 65(a) of the NAFTA Extraordinary Challenge Committee Rules.
80. 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 65(b) of the NAFTA Extraordinary Challenge
Committee Rules.
Stays and Suspensions
81. Where 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 1901.2 to Chapter
Nineteen of the Agreement.
82. Where a panelist is disqualified, dies or otherwise becomes
unable to fulfill panel duties, after the oral argument, the
chairperson may order that the matter be reheard, on such terms as are
appropriate, after selection of a substitute panelist.
83. (1) A Party may make a request, pursuant to Article
1905.11(a)(ii) 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
(b) publish a notice of the stay of the panel review in the
official publications of the involved Parties.
84. On receipt of a report containing an affirmative finding with
respect to a ground specified in Article 1905.1 of the Agreement, the
responsible Secretary for panel reviews referred to in Article
1905.11(a)(i) 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.
85. (1) A Party who intends to suspend the operation of Article
1904 of the Agreement pursuant to Article 1905.8 or 1905.9 of the
Agreement shall endeavour 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.
Schedule--Procedural Forms
Forms (1) through (7) follow.
Form (1)
Article 1904 Binational Panel Review Pursuant to the North American
Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Final Determination)
Notice of Intent to Commence Judicial Review
Pursuant to Article 1904 of the North American Free-Trade
Agreement, notice is hereby served that
----------------------------------------------------------------------
(interested person filing notice)
intends to commence judicial review in the
----------------------------------------------------------------------
(name of the court)
of the final determination referenced below. The following
information is provided pursuant to Rule 33 of the NAFTA Article
1904 Panel Rules:
1. __________________________________
(The name of the interested person filing this notice)
2. __________________________________
(The name of counsel for the interested person, if any)
3. __________________________________
__________________________________
__________________________________
(The service address, as defined by Rule 3 of the NAFTA Article
1904 Panel Rules, including facsimile number, if any)
4. __________________________________
(The telephone number of counsel for the interested person or the
telephone number of the interested person, if not represented by
counsel)
5. __________________________________
(The title of the final determination for which notice of intent
to commence judicial review is served)
6. __________________________________
(The investigating authority that issued the final determination)
7. __________________________________
(The file number of the investigating authority)
8. (a) ______________________________
(The citation and date of publication of the final determination
in the Federal Register, Canada Gazette or Diario Oficial de la
Federacion); or
(b) ______________________________
(If the final determination was not published, the date notice
of the final determination was received by the other Party)
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Signature of Counsel (or interested person, if not represented
by counsel)
Form (2)
Article 1904 Binational Panel Review Pursuant to the North American
Free-Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
Secretariat File No. __________
Request for Panel Review
Pursuant to Article 1904 of the North American Free-Trade
Agreement, panel review is hereby requested of the final
determination referenced below. The following information is
provided pursuant to Rule 34 of the NAFTA Article 1904 Panel Rules:
1. __________________________________
(The name of the Party or the interested person filing this
request for panel review)
2. __________________________________
(The name of counsel for the Party or the interested person, if
any)
3. __________________________________
__________________________________
__________________________________
(The service address, as defined by Rule 3 of the NAFTA Article
1904 Panel Rules, including facsimile number, if any)
4. __________________________________
(The telephone number of counsel for the Party or the interested
person or the telephone number of the interested person, if not
represented by counsel)
5. __________________________________
(The title of the final determination for which panel review is
requested)
6. __________________________________
(The investigating authority that issued the final determination)
7. __________________________________
(The file number of the investigating authority)
8. (a) ______________________________
(The citation and date of publication of the final determination
in the Federal Register, Canada Gazette or Diario Oficial de la
Federacion); or
(b) ______________________________
(If the final determination was not published, the date notice
of the final determination was received by the other Party)
9. Yes ______ No ______ Non-Applicable ______
(Where a Notice of Intent to Commence Judicial Review has been
served, is the sole reason for requesting review of the final
determination to require review by a panel?)
10. The Service List, as defined by Rule 3 of the NAFTA Article 1904
Panel Rules, is attached.
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Signature of Counsel (or interested person, if not represented
by counsel)
Form (3)
Article 1904 Binational Panel Review Pursuant to the North American
Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
Secretariat File No. __________
Complaint
1. __________________________________
(The name of the interested person filing the complaint)
2. __________________________________
(The name of counsel for the interested person, if any)
3. __________________________________
__________________________________
__________________________________
(The service address, as defined by Rule 3 of the NAFTA Article
1904 Panel Rules, including facsimile number, if any)
4. __________________________________
(The telephone number of counsel for the interested person or
telephone number of the interested person, if not represented by
counsel)
5. Statement of the Precise Nature of the Complaint (See Rule 39 of
the NAFTA Article 1904 Panel Rules)
A. The Applicable Standard of Review
B. Allegations of Errors of Fact or Law
C. Challenges to the Jurisdiction of the Investigating Authority
6. Statement of the Interested Person's Entitlement to File a
Complaint under Rule 39 of the NAFTA Article 1904 Panel Rules
7. For Panel Reviews of Determinations Made in Canada:
(a) Complainant intends to use the specified language in
pleadings and oral proceedings (Specify one)
______ English ______ French
(b) Complainant requests simultaneous translation of oral
proceedings (Specify one)
______ Yes ______ No
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Signature of Counsel (or interested person, if not represented
by counsel)
Form (4)
Article 1904 Binational Panel Review Pursuant to the North American
Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
Secretariat File No. __________
Notice of Appearance
1. __________________________________
(The name of the investigating authority or the interested person
filing this notice of appearance)
2. __________________________________
(The name of counsel for the investigating authority or the
interested person, if any)
3. __________________________________
__________________________________
__________________________________
(The service address, as defined by Rule 3 of the NAFTA Article
1904 Panel Rules, including facsimile number, if any)
4. __________________________________
(The telephone number of counsel for the investigating authority
or the interested person or the telephone number of the interested
person, if not represented by counsel)
5. This Notice of Appearance is made:
______ in support of some or all of the allegations set out in a
Complaint;
______ in opposition to some or all of the allegations set out in
a Complaint; or
______ in support of some of the allegations set out in a
Complaint and in opposition to some of the allegations set out in a
Complaint.
6. Statement as to the basis for the interested person's entitlement
to file a Notice of Appearance under rule 40 of the NAFTA Article
1904 Panel Rules
7. For Notices of Appearance Filed by the Investigating Authority
Statement by the Investigating Authority regarding any
admissions with respect to the allegations set out in the Complaints
8. For Panel Reviews of Determinations Made in Canada:
(a) I intend to use the specified language in pleadings and oral
proceedings (Specify one)
______ English ______ French
(b) I request simultaneous translation of oral proceedings
(Specify one)
______ Yes ______ No
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Signature of Counsel (or interested person, if not represented
by counsel)
Form (5)
Article 1904 Binational Panel Review Pursuant to the North American
Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
Secretariat File No. __________
Notice of Motion
----------------------------------------------------------------------
(descriptive title indicating the purpose of the motion)
1. __________________________________
(The name of the investigating authority or the interested person
filing this notice of motion)
2. __________________________________
(The name of counsel for the investigating authority or the
interested person, if any)
3. __________________________________
__________________________________
__________________________________
(The service address, as defined by Rule 3 of the NAFTA Article
1904 Panel Rules, including facsimile number, if any)
4. __________________________________
(The telephone number of the counsel for the investigating
authority or the interested person or the telephone number of the
interested person, if not represented by counsel)
5. Statement of the precise relief requested
6. Statement of the grounds to be argued, including references to
any rule, point of law, or legal authority to be relied on
7. Arguments in support of the motion, including references to
evidence in the administrative record by page and, where
practicable, by line
8. Draft order attached (see Rule 61 and Form (6) of the NAFTA
Article 1904 Panel Rules)
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Signature of Counsel (or interested person, if not represented
by counsel)
Form (6)
Article 1904 Binational Panel Review Pursuant to the North American
Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
Secretariat File No. __________
Order
Upon consideration of the motion for
__________________________________,
(relief requested)
filed on behalf of __________________________________,
and upon all
(participant filing motion)
other papers and proceedings herein, it is hereby Ordered that the
motion is ____________________
Issue Date-------------------------------------------------------------
Panelist name----------------------------------------------------------
Panelist name----------------------------------------------------------
Panelist name----------------------------------------------------------
Panelist name----------------------------------------------------------
Panelist name----------------------------------------------------------
Form (7)
Article 1904 Binational Panel Review Pursuant to the North American
Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
Secretariat File No. __________
Notice of Final Panel Action
Under the direction of the panel, pursuant to rule 77 of the
NAFTA Article 1904 Panel Rules, Notice is hereby given that the
panel has taken its final action in the above-referenced matter.
This Notice is effective on __________________________________.
Issue Date-------------------------------------------------------------
Signature of the Responsible
Secretary--------------------------------------------------------------
Dated: February 10, 1994.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
[FR Doc. 94-3928 Filed 2-22-94; 8:45 am]
BILLING CODE 3510-GT-P
