[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: 94-3929]
[[Page Unknown]]
[Federal Register: February 23, 1994]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
International Trade Administration
_______________________________________________________________________
North American Free Trade Agreement: Rules of Procedure for Article
1904 Extraordinary Challenge Committees; Notice
DEPARTMENT OF COMMERCE
International Trade Administration
North American Free Trade Agreement: Rules of Procedure for
Article 1904 Extraordinary Challenge Committees
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 Extraordinary
Challenge Committees.
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SUMMARY: Canada, Mexico, and the United States have negotiated the
rules of procedure for Article 1904 extraordinary challenge committee
proceedings. These rules apply to extraordinary challenges 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 extraordinary challenge committee
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
extraordinary challenge committee proceedings, 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.
In instances in which one of the Parties to the Agreement alleges,
pursuant to Article 1904.13 of the Agreement, that (a)(i) a member of a
panel materially violated the rules of conduct, (ii) the panel
seriously departed from a fundamental rule of procedure, or (iii) the
panel manifestly exceeded its powers, authority or jurisdiction, and
that (b) any of the actions set out in (a) has materially affected the
panel's decision and threatens the integrity of the binational panel
review process, that Party may request formation of an extraordinary
challenge committee (``ECC''). Extraordinary challenge committee review
is therefore not a routine appeal. Rather, as the name suggests,
Canada, Mexico, or the United States may have recourse to an ECC only
in extraordinary cases.
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 Extraordinary Challenge Committee Rules are intended to
give effect to the ECC provisions of Chapter Nineteen of the Agreement
by setting forth the procedures for commencing, conducting, and
completing extraordinary challenge proceedings. 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 Extraordinary Challenge Committee Rules under the United
States-Canada Free Trade Agreement.
North American Free Trade Agreement
Rules of Procedure for Article 1904 Extraordinary Challenge
Committees
Contents
Preamble
Rule
1. Short Title
2. Statement of General Intent
3. Interpretation
Part I--General
8. Internal Functioning of Committees
10. Computation of Time
12. Counsel of Record
13. Costs
14. Proprietary Information and Privileged Information
22. Violation of Code of Conduct
23. Pleadings and Simultaneous Translation of Extraordinary
Challenge Proceedings in Canada
Part II--Written Proceedings
28. Filing, Service and Communications
36. Form and Content of Pleadings
37. Requests for an Extraordinary Challenge Committee
40. Notices of Appearance
42. Filing and Content of Briefs and Appendices
44. Motions
Part III--Conduct of Oral Proceedings
48. Oral Proceedings in Camera
Part IV--Responsibilities of the Secretary
Part V--Orders and Decisions
Part VI--Completion of Extraordinary Challenges
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 paragraph 2 of Annex 1904.13 to Chapter Nineteen
of the Agreement;
Adopted the 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 extraordinary challenge committee proceedings conducted
pursuant to Article 1904 of the Agreement.
Short Title
1. These rules may be cited as the NAFTA Extraordinary Challenge
Committee 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 extraordinary
challenges conducted pursuant to Article 1904 of the Agreement and are
designed to result in decisions within 90 days after the establishment
of the committee. Where a procedural question arises that is not
covered by these rules, a committee may adopt an appropriate procedure
that is not inconsistent with the Agreement. In the event of any
inconsistency between the provisions of these Rules and the Agreement,
the Agreement shall prevail.
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;
``committee'' means an extraordinary challenge committee
established pursuant to Annex 1904.13 to Chapter Nineteen of the
Agreement;
``counsel'' means
(a) with respect to an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of 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 12(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;
``investigating authority'' means the competent investigating
authority that issued the final determination that was the subject of
the panel review to which an extraordinary challenge relates 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), President's 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
other 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 the United States, the Federal
Register;
``panel'' means a binational panel established pursuant to Annex
1901.2 to Chapter Nineteen of the Agreement, the decision of which is
the subject of an extraordinary challenge;
``participant'' means a Party who files a Request for an
Extraordinary Challenge Committee or any of the following persons who
files a Notice of Appearance pursuant to these rules:
(a) the other involved Party,
(b) a person who participated in the panel review that is the
subject of the extraordinary challenge, and
(c) a panelist against whom an allegation referred to in Article
1904.13(a)(i) of the Agreement is made;
``Party'' means the Government of Canada, the Government of Mexico
or the Government of the United States;
``person'' means
(a) an individual,
(b) a Party,
(c) an investigating authority,
(d) a government of a province, state or other political
subdivision of the country of a Party,
(e) a department, agency or body of a Party or of a government
referred to in paragraph (d), or
(f) a partnership, corporation or association;
``personal information'' means, with respect to an extraordinary
challenge proceeding in which an allegation is made that a member of
the panel was guilty of gross misconduct, bias or a serious conflict of
interest or otherwise materially violated the rules of conduct, the
information referred to in subrule 39(2) and rule 41;
``pleading'' means a Request for an Extraordinary Challenge
Committee, a Notice of Appearance, a Change of Service Address, a
Notice of Change of Counsel of Record, a Notice of Motion, a brief or
any other written submission filed by a participant;
``privileged information'' means
(a) with respect to an extraordinary challenge of 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, with respect to which the privilege
has not been waived,
(b) with respect to an extraordinary challenge of 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 an extraordinary challenge of 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 and with respect to which the
privilege has not been waived;
``proof of service'' means
(a) with respect to an extraordinary challenge of a panel review of
a final determination made in Canada or Mexico,
(i) an affidavit of service stating the name of the person who
served the document, the date on which it was served, where it was
served and the manner of service, or
(ii) a written acknowledgement of service by counsel for a
participant stating the name of the person who served the document, the
date on which it was served and the manner of service and, 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 an extraordinary challenge of 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 an extraordinary challenge of 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, and with respect to which the person who designated or
submitted the information has not withdrawn the person's claim as to
the confidentiality of the information,
(b) with respect to an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of 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, with respect to an extraordinary
challenge of a panel review, the section of the Secretariat located in
the country in which the final determination reviewed by the panel was
made;
``responsible Secretary'' means the Secretary of the responsible
Secretariat;
``Secretariat'' meant 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 or panelist, the address filed with the
Secretariat as the service address of the Party or panelist, including
any facsimile number submitted with that address,
(b) with respect to a participant other than a Party or panelist,
the service address of the participant in the panel review, or
(c) where a Change of Service Address has been filed by a Party,
panelist or participant, the address set out as the new service address
of the participant in that form, including any facsimile number
submitted with that address;
``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 19 of the Agreement are hereby incorporated into
these rules.
Part I--General
5. An extraordinary challenge proceeding commences on the day on
which a Request for an Extraordinary Challenge Committee is filed with
the Secretariat and terminates on the day on which a Notice of
Completion of Extraordinary Challenge is effective.
6. The general legal principles of the country in which a final
determination was made apply in an extraordinary challenge of the
decision of a panel with respect to the final determination.
7. A committee may review any part of the record of the panel
review relevant to the extraordinary challenge.
Internal Functioning of Committees
8. (1) For routine administrative matters governing its own
internal functioning, a committee may adopt procedures not inconsistent
with these rules or the Agreement.
(2) Subject to subrule 34(b), meetings of a committee may be
conducted by means of a telephone conference call.
9. Only committee members may take part in the deliberations of a
committee, which shall take place in private and remain secret. Staff
of the involved Secretariats and assistants to committee members may be
present by permission of the committee.
Computation of Time
10. (1) In computing any time period fixed in these rules or by an
order or decision of a committee, the day from which the time period
begins to run shall be excluded and, subject to subrules (2) and (3),
the last day of the time period shall be included.
(2) 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.
(3) In computing any time period of five days or less fixed in
these rules or by an order or decision of a committee, any legal
holiday that falls within the time period shall be excluded from the
computation.
11. A committee may extend any time period fixed in these rules if
(a) the extension is made in the interests of fairness and justice;
and
(b) in fixing the extension, the committee takes into account the
intent of the rules to secure just, speedy and inexpensive final
resolutions of challenges to decisions of panels.
Counsel of Record
12. (1) Subject to subrule (2), the counsel of record for a
participant in an extraordinary challenge proceeding shall be
(a) the counsel for the participant in the panel review; or
(b) in the case of a Party who was not a participant in the panel
review or of a panelist, the counsel who signs any document filed on
behalf of the Party or panelist in the extraordinary challenge
proceeding.
(2) A participant may change its counsel of record by filing with
the responsible Secretariat a Notice of Change of Counsel of Record
signed by the new counsel, together with proof of service on the former
counsel and other participants.
Costs
13. Each participant shall bear the costs of, and incidental to,
its own participation in an extraordinary challenge proceeding.
Proprietary Information and Privileged Information
14. (1) Where proprietary information has been filed in a panel
review that is the subject of an extraordinary challenge proceeding,
every member of a committee, assistant to a committee member, court
reporter, interpreter and translator shall provide the responsible
Secretariat with a Proprietary Information Access Application.
(2) Upon receipt of a Proprietary Information Access Application,
the responsible Secretary shall file with the appropriate investigating
authority the Proprietary Information Access Application and any
additional copies of those documents required by the investigating
authority.
(3) The investigating authority shall issue the Proprietary
Information Access Order and provide the responsible Secretariat with
the original and any additional copies of those documents required by
the responsible Secretariat.
(4) Upon receipt of a Proprietary Information Access Order, the
responsible Secretary shall transmit the original Proprietary
Information Access Order to the appropriate member of a committee,
assistant to a committee member, court reporter, interpreter or
translator.
15. (1) A member of a committee, assistant to a committee member,
court reporter, interpreter or translator who amends or modifies a
Proprietary Information Access Application shall provide a copy of the
amendment or modification to the responsible Secretariat.
(2) Upon receipt of an amendment or modification to a Proprietary
Information Access Application, the responsible Secretary shall file
with the appropriate investigating authority that document and any
additional copies of that document required by the investigating
authority.
(3) Upon receipt of an amendment or modification to a Proprietary
Information Access Application, the investigating authority shall, as
appropriate, amend, modify or revoke the Proprietary Information Access
Order and provide the responsible Secretariat with the original of the
amendment, modification or notice of revocation and any additional
copies of the document required by the responsible Secretariat.
(4) Upon receipt of an amendment or modification to a Proprietary
Information Access Order or a notice of revocation, the responsible
Secretary shall transmit the amendment, modification or notice of
revocation to the appropriate member of a committee, assistant to a
committee member, court reporter, interpreter or translator.
16. The responsible Secretary shall serve Proprietary Information
Access Orders granted to members of a committee, assistants to
committee members, court reporters, interpreters or translators, and
any amendments or modifications thereto or notices of revocation
thereof, on all participants other than the investigating authority.
17. (1) A counsel of record, or a professional retained by, or
under the control or direction of, a counsel of record, who has not
been issued a Proprietary Information Access Order in the panel review
or in these proceedings and who wishes disclosure of proprietary
information in the file of an extraordinary challenge proceeding, shall
file a Proprietary Information Access Application, 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 on all participants.
(3) The investigating authority shall, within 10 days after a
Proprietary Information Access Application is filed with it in
accordance with subrule (1), serve on the person who filed the
Proprietary Information Access Application
(a) a Proprietary Information Access Order; or
(b) a notification in writing setting out the reasons why a
Proprietary Information Access Order is not issued.
18. (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 a counsel of record,
the counsel of record may file with the responsible Secretariat a
Notice of Motion requesting that the committee review the decision of
the investigating authority.
(2) Where, after consideration of any response made by the
investigating authority referred to in subrule (1), the committee
decides that a Proprietary Information Access Order should be issued or
that the terms of a Proprietary Information Access Order should be
amended or modified, the committee shall so notify counsel for the
investigating authority.
(3) 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 committee may issue such orders as are
just in the circumstances, including an order refusing to permit the
investigating authority to make certain arguments in support of its
case or striking certain arguments from its pleadings.
19. (1) Where a Proprietary Information Access Order is issued to a
person in an extraordinary challenge proceeding, the person shall file
with the responsible Secretariat a copy of the Proprietary Information
Access Order.
(2) Where a Proprietary Information Access Order is revoked,
amended or modified by an investigating authority, the investigating
authority shall provide to the responsible Secretariat and to all
participants a copy of the Notice of Revocation, amendment or
modification.
20. In an extraordinary challenge proceeding that commences with a
Request for an Extraordinary Challenge Committee pursuant to Article
1904.13(a)(i) of the Agreement, personal information shall be kept
confidential
(a) where a Notice of Motion is filed pursuant to subrule 41(1)(c),
(i) until the committee makes an order referred to in subrule
45(1)(a), or
(ii) where the committee makes an order referred to in subrule
45(1)(b), indefinitely, unless otherwise ordered by the committee; and
(b) in any other case, until the day after the expiration of the
time period fixed, pursuant to rule 41, for filing a Notice of Motion
referred to in subrule 41(1)(c).
21. Where a person alleges that the terms of a Proprietary
Information Access Application or Proprietary Information Access Order
have been violated, the committee shall refer the allegations to the
investigating authority for investigation and, 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.
Violation of Code of Conduct
22. Where a participant believes that a committee member or an
assistant to a committee member is in violation of the Code of Conduct,
the participant shall forthwith notify the responsible Secretary in
writing of the alleged violation. The responsible Secretary shall
promptly notify the other involved Secretary and the involved Parties
of the allegations.
Pleadings and Simultaneous Translation of Extraordinary Challenge
Proceedings in Canada
23. Rules 24 to 26 apply with respect to an extraordinary challenge
of a panel review of a final determination made in Canada.
24. Either English or French may be used by any person, panelist or
member of a committee in any document or oral proceeding.
25. (1) Subject to subrule (2), any order or decision including the
reasons therefor, issued by a committee shall be made available
simultaneously in both English and French where
(a) In the opinion of the committee, the order or decision is in
respect of a question of law of general public interest or importance;
or
(b) the proceedings leading to the issuance of the order or
decision were conducted in whole or in part in both English and French.
(2) Where
(a) an order or decision issued by a committee 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 committee
is of the opinion that to make the order or decision available
simultaneously in both English and French would occasion a delay
prejudicial to the public interest or result in injustice or hardship
to any participant, the order or decision, including the reasons
therefor, shall be issued in the first instance in either English or
French and thereafter at the earliest possible time in the other
language, each version to be effective from the time the first version
is effective.
(3) Nothing in subrule (1) or (2) shall be construed as prohibiting
the oral delivery in either English or French of any order or decision
or any reasons therefor.
(4) No order or decision is invalid by reason only that it was not
made or issued in both English and French.
26. (1) Any oral proceeding conducted in both English and French
shall be translated simultaneously.
(2) Where a participant requests simultaneous translation of an
extraordinary challenge proceeding, the request shall be made as early
as possible in the proceedings.
(3) Where a committee is of the opinion that there is a public
interest in the extraordinary challenge proceedings, the committee may
direct the responsible Secretary to arrange for simultaneous
translation of the oral proceedings, if any.
Part II--Written Proceedings
27. Where these rules require that notice be given, it shall be
given in writing.
Filing, Service and Communications
28. (1) No document is filed with the Secretariat until one
original and five 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.
29. (1) All documents filed by a participant, other than documents
required by rule 58 to be served by the responsible Secretary and
documents referred to in subrule 38(2), rule 39, subrule 40(2)(a) and
rule 41 shall be served by the participant on the counsel of record of
each of the other participants or, where another participant is not
represented by counsel, on the other participant.
(2) Subject to subrule 34(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.
(3) A proof of service shall appear on, or be affixed to, all
documents referred to in subrule (1).
(4) 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.
30. (1) Where, under these rules, a document containing proprietary
information, privileged information or personal information is required
to be filed under seal with the Secretariat or is required to be served
under seal, the document shall be filed of served in accordance with
this rule and, where applicable, in accordance with rule 32.
(2) A document filed or served under seal shall be
(a) bound separately from all other documents;
(b) clearly marked
(i) with respect to an extraordinary challenge of a panel review of
a final determination made in Canada,
(A) in the case of a document containing proprietary information,
``Proprietary'', ``Confidential'', ``De nature exclusive'' or
``Confidentiel'', and
(B) in the case of a document containing privileged information,
``Privileged'' or ``Protege'', and
(C) in the case of a document containing personal information,
``Personal Information'' or ``Renseignements personnels'',
(ii) with respect to an extraordinary challenge of a panel review
of a final determination made in Mexico,
(A) in the case of a document containing proprietary information,
``Confidencial'',
(B) in the case of a document containing privileged information,
``Privilegiada'', and
(C) in the case of a document containing personal information,
``Informacion Personal'', and
(iii) with respect to an extraordinary challenge of a panel review
of a final determination made in the Untied 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) in the case of a document containing personal information,
``Personal Information''; 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, privileged information or
personal information is enclosed, as the case may be; and
(b) the Secretariat file number of the extraordinary challenge
proceeding.
31. Filing or service of proprietary information, privileged
information or personal information with the Secretariat does not
constitute a waiver of the designation of the information as
proprietary information, privileged information or personal
information.
32. (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 an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of a panel review
of a final determination made in Mexico, shall be labelled ``Non-
confidencial'', and
(iii) with respect to an extraordinary challenge of 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 an extraordinary challenge of a panel review of
a final determination made in Canada, shall be labelled ``Privileged''
or ``Protege'', with the top of each that contains privileged
information marked with the word ``Privileged'' or ``Protege'' and with
the privileged information enclosed in brackets,
(ii) with respect to an extraordinary challenge of 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 an extraordinary challenge of 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 an extraordinary challenge of a panel review of
a final determination made in Canada, shall be labelled ``Non-
Privileged'' or ``Non-protege'',
(ii) with respect to an extraordinary challenge of a panel review
of a final determination made in Mexico, shall be labelled ``No-
privilegiada'', and
(iii) with respect to an extraordinary challenge of 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.
(3) Where a participant files a pleading that contains personal
information, the pleading shall be filed under seal and
(a) with respect to an extraordinary challenge of a panel review of
a final determination made in Canada, shall be labelled ``Personal
Information'' or ``Renseignements personnels'', with the top of each
page that contains personal information marked with the words
``Personal Information'' or ``Renseignements personnels'' and with the
personal information enclosed in brackets;
(b) with respect to an extraordinary challenge of a panel review of
a final determination made in Mexico, shall be labelled ``Informacion
Personal'', with the top of each page that contains personal
information marked with the words ``Informacion Personal'' and with the
personal information enclosed in brackets; and
(c) with respect to an extraordinary challenge of a panel review of
a final determination made in the United States, shall be labelled
``Personal Information'', with the top of each page that contains
personal information marked with the words ``Personal Information'' and
with the personal information enclosed in brackets.
33. (1) Subject to subrule (2), a document containing proprietary
or privileged information shall be filed under seal in accordance with
rule 30 and shall be served only on the investigating authority and on
those participants who have been granted access to the information
under a Proprietary Information Access Order.
(2) Where all proprietary information contained in a document was
submitted to the investigating authority by one participant, the
document shall be served on that participant even if that participant
has not been granted access to proprietary information under a
Proprietary Information Access Order.
(3) A document containing personal information shall be filed under
seal in accordance with rule 30 and shall be served only on persons or
participants who have been granted access to the information under an
order of the committee.
34. Where proprietary information, privileged information or
personal information is disclosed to a person in an extraordinary
challenge proceeding, the person shall not
(a) file, serve or otherwise communicate the information by
facsimile transmission; or
(b) communicate the information by telephone.
35. Service on an investigating authority does not constitute
service on a Party and service on a Party does not constitute service
on an investigating authority.
Form and Content of Pleadings
36. (1) Every pleading filed in an extraordinary challenge
proceeding shall contain the following information:
(a) the title of, and any Secretariat file number assigned for, the
extraordinary challenge proceeding;
(b) a brief descriptive title of the pleading;
(c) the name of the participant filing the pleading;
(d) the name of counsel of record for the participant;
(e) the service address, as defined in rule 3; and
(f) the telephone number of the counsel of record of the
participant or, where the participant is not represented by counsel,
the telephone number of the participant.
(2) Every pleading filed in an extraordinary challenge proceeding
shall be on paper 8\1/2\ x 11 inches (216 millimetres by 279
millimetres) 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 an
extraordinary challenge proceeding shall be signed by counsel for the
participant or, where the participant is not represented by counsel, by
the participant.
Requests for an Extraordinary Challenge Committee
37. (1) Where a Party, in its discretion, files with the
responsible Secretary a Request for an Extraordinary Challenge
Committee referred to in Article 1904.13(a) (ii) or (iii) of the
Agreement, the Party shall file the Request (model form available from
the Secretariat) within 30 days after the issuance, pursuant to rule 77
of the NAFTA Article 1904 Panel Rules, of the Notice of Final Panel
Action in the panel review that is the subject of the Request.
(2) Where a Party, in its discretion, files with the responsible
Secretary a Request for an Extraordinary Challenge Committee referred
to in Article 1904.13(a)(i) of the Agreement, the Party shall file the
Request (model form available from the Secretariat)
(a) within 30 days after the issuance, pursuant to rule 77 of the
NAFTA Article 1904 Panel Rules, of the Notice of Final Panel Action in
the panel review that is the subject of the Request; or
(b) subject to subrule (3), where the Party gained knowledge of the
action of the panelist giving rise to the allegation more than 30 days
after the panel issued a Notice of Final Panel Action, no more than 30
days after gaining knowledge of the action of the panelist.
(3) No Request for an Extraordinary Challenge Committee referred to
in subrule (2) may be filed if two years or more have elapsed since the
effective date of the Notice of Completion of Panel Review.
(4) Notwithstanding subrules (1) to (3), the running of the time
periods referred to in this section
(a) shall be suspended in the circumstances set out in Article
1905.11 of the Agreement; and
(b) where suspended under subrule (a), shall be resumed in the
circumstances set out in Articles 1905.12 and 1905.13 of the Agreement.
38. (1) Subject to subrule (2), every Request for an Extraordinary
Challenge Committee shall be in writing and shall
(a) include a concise statement of the allegations relied on,
together with a concise statement of how the actions alleged have
materially affected the panel's decision and the way in which the
integrity of the panel review process is threatened;
(b) contain the name of the Party in the panel review, name of
counsel, service address and telephone number; and
(c) where the panel decision was made in Canada, state whether the
Party filing the Request for an Extraordinary Challenge Committee
(i) intends to use English or French in pleadings and oral
proceedings before the committee, and
(ii) requests simultaneous translation of any oral proceedings.
(2) Where a Request for an Extraordinary Challenge Committee
contains an allegation referred to in Article 1904.13(a)(i) of the
Agreement, the identity of the panelist against whom such an allegation
is made shall be revealed only in a confidential annex filed together
with the Request and shall be disclosed only in accordance with rule
60.
39. (1) Every Request for an Extraordinary Challenge Committee
(model form available from the Secretariat) shall be accompanied by
(a) those items of the record of the panel review relevant to the
allegations contained in the Request; and
(b) an Index of the items referred to in subrule (a).
(2) Where a Request contains an allegation referred to in Article
1904.13(a)(i) of the Agreement, the Request shall be accompanied by, in
addition to the requirements of subrule (1),
(a) any other material relevant to the allegations contained in the
Request; and
(b) if the Request is filed more than 30 days after the panel
issued a Notice of Final Panel Action pursuant to rule 77 of the NAFTA
Article 1904 Panel Rules, an affidavit certifying that the Party gained
knowledge of the action of the panelist giving rise to the allegation
no more than 30 days preceding the filing of the Request.
Notices of Appearance
40. (1) Within 10 days after the Request for an Extraordinary
Challenge Committee is filed, a Party or participant in the panel
review who proposes to participate in the extraordinary challenge
proceeding shall file with the responsible Secretariat a Notice of
Appearance (model form available from the Secretariat) containing the
following information:
(a) the name of the Party or participant, name of counsel, service
address and telephone number;
(b) a statement as to whether appearance is made
(i) in support of the Request, or
(ii) in opposition to the Request; and
(c) where the extraordinary challenge is in respect of a panel
review of a final determination made in Canada, a statement as to
whether the person filing the Notice of Appearance
(i) intends to use English or French in pleadings and oral
proceedings before the committee, and
(ii) requests simultaneous translation of any oral proceedings.
(2) Where a Party or participant referred to in subrule (1)
proposes to rely on a document in the record of the panel review that
is not specified in the Index filed with the Request for an
Extraordinary Challenge Committee, the Party or participant shall file,
with the Notice of Appearance,
(a) the document; and
(b) a statement identifying the document and requesting its
inclusion in the extraordinary challenge record.
(3) On receipt of a document referred to in subrule (2), the
responsible Secretary shall include the document in the extraordinary
challenge record.
41. (1) Within 10 days after a Request for an Extraordinary
Challenge Committee referred to in Article 1904.13(a)(i) of the
Agreement is filed, a panelist against whom an allegation contained in
the Request is made and who proposes to participate in the
extraordinary challenge proceeding
(a) shall file a Notice of Appearance;
(b) may file, under seal, documents to be included in the
extraordinary challenge record relevant to the panelist's defense
against the allegation; and
(c) may file an ex parte motion requesting that the extraordinary
challenge proceeding be conducted in camera.
(2) Where a committee issues an order pursuant to subrule 45(1)(a),
a panelist who filed documents described in subrule (1)(b) may, within
five days after issuance of the order, withdraw any of those documents.
(3) Where a panelist withdraws documents pursuant to subrule (2),
the committee shall not consider those documents.
Filing and Content of Briefs and Appendices
42. (1) The Party who has filed the Request for an Extraordinary
Challenge Committee and every participant who has filed a Notice of
Appearance under subrule 40(1)(b)(i) shall file a brief, setting forth
grounds and arguments in support of the Request, no later than 21 days
after the Request for an Extraordinary Challenge Committee is filed.
(2) Every participant who has filed a Notice of Appearance under
subrule 40(1)(b)(ii) shall file a brief, setting forth grounds and
arguments in opposition to the Request for an Extraordinary Challenge
Committee, no later than 21 days after the expiration of the time
period for filing of briefs referred to in subrule (1).
(3) The Party who has filed the Request for an Extraordinary
Challenge Committee and every participant who has filed a Notice of
Appearance under subrule 40(1)(b)(i) may file a brief, replying to the
grounds and arguments set forth in the briefs filed pursuant to subrule
(2), no later than 10 days after the expiration of the time period for
filing of briefs referred to in subrule (2). Reply briefs shall be
limited to rebuttal of matters raised in the briefs filed pursuant to
subrule (2).
(4) Every brief filed under this rule shall be in the form required
by rule 43.
(5) Appendices shall be filed with the briefs.
43. (1) Briefs shall contain information, in the following order,
divided into five parts:
Part I:
(a) A table of contents; and
(b) A table of authorities cited:
The table of authorities shall contain references to all treaties,
statutes and regulations cited, any cases primarily relied on in the
briefs, set out alphabetically, and all other documents referred to
except documents from the administrative record. The table of
authorities shall refer to the page(s) of the brief where each
authority is cited and mark, with an asterisk in the margin, those
authorities primarily relied on.
Part II: A statement of the case:
This part shall contain a concise statement of the relevant facts
with references to the panel record by page and, where applicable, by
line.
Part III: A statement of the issues:
(a) In the brief of the Party who files the Request for an
Extraordinary Challenge Committee, this part shall contain a concise
statement of the issues.
(b) In the brief of any other participant, this part shall contain
a concise statement of the position of the participant with respect to
the issues.
Part IV: Argument:
This part shall consist of the argument, setting out concisely the
points of law relating to the issues, with applicable citations to
authorities and the panel record.
Part V: Relief:
This part shall consist of a concise statement precisely
identifying the relief requested.
(2) Paragraphs in Parts I to V of a brief may be numbered
consecutively.
(3) Authorities referred to in the briefs shall be included in an
appendix, which shall be organized as follows: a table of contents,
copies of all treaty and statutory references, references to
regulations, cases primarily relied on in the briefs, set out
alphabetically, all documents relied on from the panel record and all
other materials relied on.
Motions
44. (1) Motions, other than motions referred to in subrule
41(1)(c), may be considered at the discretion of the committee.
(2) A committee may dispose of a motion based upon the pleadings
filed on the motion.
(3) A committee may hear oral argument in person or, subject to
subrule 34(b), direct that a motion be heard by means of a telephone
conference call with the participants.
Part III--Conduct of Oral Proceedings
45. (1) The order of a committee on a motion referred to in subrule
41(1)(c) shall set out
(a) that the proceedings shall not be held in camera; or
(b) that the proceedings shall be held in camera and
(i) that all the participants shall keep confidential all
information received with respect to the extraordinary challenge
proceeding and shall use the information solely for the purposes of the
proceeding, and
(ii) which documents containing personal information the
responsible Secretary shall serve under seal and on whom the documents
shall be served.
(2) The responsible Secretary shall not serve any documents
containing personal information until the time period for withdrawal of
any documents pursuant to subrule 41(2) has expired.
46. A committee may decide the procedures to be followed in the
extraordinary challenge proceeding and may, for that purpose, hold a
pre-hearing conference to determine such matters as the presentation of
evidence and of oral argument.
47. The decision as to whether oral argument will be heard shall be
in the discretion of the committee.
Oral Proceedings in Camera
48. During that part of oral proceedings in which proprietary
information or privileged information is presented, a committee shall
not permit any person other than the following persons to be present:
(a) the person presenting the proprietary information or privileged
information;
(b) a person who has been granted access to the proprietary
information or privileged information under a Proprietary Information
Access Order or an order of the panel or committee;
(c) in the case of privileged information, a person as to whom the
confidentiality of the privileged information has been waived; and
(d) officials of, and counsel for, the investigating authority.
Part IV--Responsibilities of the Secretary
49. The normal business hours of the Secretariat, during which the
offices of the Secretariat shall be open to the public, shall be from 9
a.m. to 5 p.m. on each weekday other than
(a) in the case of the Canadian Section of the Secretariat, legal
holidays of that Section;
(b) in the case of the Mexican Section of the Secretariat, legal
holidays of that Section; and
(c) in the case of the United States Section of the Secretariat,
legal holidays of that Section.
50. On the completion of the selection of the members of a
committee, the responsible Secretary shall notify the participants and
the other involved Secretary of the names of the members of the
committee.
51. The responsible Secretary shall provide administrative support
for each extraordinary challenge proceeding and shall make the
arrangements necessary for meetings and any oral proceedings,
including, if required, interpreters to provide simultaneous
translation.
52. Each involved Secretary shall maintain a file for each
extraordinary challenge, comprised of either the original or a copy of
all documents filed, whether or not filed in accordance with these
rules.
53. The responsible Secretary shall forward to the other involved
Secretary a copy of all documents filed with the responsible Secretary
and of all orders and decisions issued by a committee.
54. Where under these rules a notice or other document is required
to be published, the responsible Secretary and the other involved
Secretary shall each cause the document to be published in the official
publication of the country in which that section of the Secretariat is
located.
55. (1) Where a document containing proprietary information or
privileged information is filed with the involved Secretariats, each
involved Secretary shall ensure that
(a) the document is stored, maintained, handled, and distributed in
accordance with the terms of an applicable Proprietary Information
Access Order;
(b) the inner wrapper of the document is clearly marked to indicate
that it contains proprietary information or privileged information; and
(c) access to the document is limited to
(i) in the case of proprietary information, officials of, and
counsel for, the investigating authority, the person who submitted the
proprietary information to the investigating authority and counsel of
record for that person, and any persons who have been granted access to
the information under a Proprietary Information Access Order, and
(ii) in the case of privileged information relied upon in an
extraordinary challenge of a decision of a panel with respect to a
final determination made in the United States, committee members and
their assistants and persons with respect to whom the panel ordered
disclosure of the privileged information under rule 52 of the NAFTA
Article 1904 Panel Rules, if those persons have filed with the
responsible Secretariat a Proprietary Information Access Order with
respect to the document.
(2) Where a document containing personal information is filed with
the involved Secretariats, 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 personal information; and
(c) access to the document is limited to persons granted access to
the information pursuant to subrule 45(1)(b).
56. No document filed in an extraordinary challenge proceeding
shall be removed from the offices of the Secretariat except in the
ordinary course of the business of the Secretariat or pursuant to the
direction of a committee.
57. (1) Each involved Secretary shall permit access by any person
to information in the file of an extraordinary challenge proceeding
that is not proprietary information, privileged information or personal
information.
(2) Each involved Secretary shall, in accordance with the terms of
any applicable Proprietary Information Access Order or order of a panel
or committee, permit access to proprietary information, privileged
information or personal information in the file of an extraordinary
challenge proceeding.
(3) Each involved Secretary shall, on request and on payment of the
prescribed fee, provide copies of information in the file of an
extraordinary challenge proceeding to any person who has been given
access to that information.
58. (1) Where a Request for an Extraordinary Challenge Committee
pursuant to Article 1904.13(a) (ii) or (iii) of the Agreement is filed
with the responsible Secretariat, the responsible Secretary shall, upon
receipt thereof,
(a) forward a copy of the Request and Index to the other involved
Secretary; and
(b) serve a copy of the Request and Index on the other involved
Party and on the participants in the panel review, together with a
statement setting out the date on which the Request was filed and
stating that all briefs of
(i) the Party who has filed the Request and of every participant
who files a Notice of Appearance in support of the Request shall be
filed no later than 21 days after the date of filing of the Request,
(ii) every participant who files a Notice of Appearance in
opposition to the Request shall be filed no later than 21 days after
the expiration of the time period, referred to in subrule (i), for
filing of briefs, and
(iii) the Party who has filed the Request and of every participant
who files a brief under subrule (i) in reply to the grounds and
arguments set forth in the briefs filed pursuant to subrule (ii) shall
be filed no later than 10 days after the expiration of the time period,
referred to in subrule (ii), for filing of briefs.
(2) Where a Request for an Extraordinary Challenge Committee
pursuant to Article 1904.13(a)(i) of the Agreement is filed, the
responsible Secretary shall, upon receipt thereof,
(a) forward a copy of the Request, Index and annex to the other
involved Secretary; and
(b) serve a copy of the Request, Index and annex on the other
involved Party, on the panelist against whom the allegation contained
in the Request is made and on the participants in the panel review,
together with a statement setting out the date on which the Request was
filed and stating that all briefs of
(i) the Party who has filed the Request and of every participant
who files a Notice of Appearance in support of the Request shall be
filed no later than 21 days after the date of filing of the Request,
(ii) every participant who files a Notice of Appearance in
opposition to the Request shall be filed no later than 21 days after
the expiration of the time period, referred to in subrule (i), for
filing of briefs, and
(iii) the Party who has filed the Request and of every participant
who files a brief under subrule (i) in reply to the grounds and
arguments set forth in the briefs filed pursuant to subrule (ii) shall
be filed no later than 10 days after the expiration of the time period,
referred to in subrule (ii), for filing of briefs.
(3) The responsible Secretary shall serve orders and decisions of a
committee and Notices of Completion of Extraordinary Challenge on the
participants.
(4) Where the decision of a committee referred to in subrule (3)
relates to a panel review of a final determination made in Canada, the
decision shall be served by registered mail.
59. The responsible Secretary shall cause notice of a final
decision of a committee issued pursuant to rule 63, and any order that
the committee directs the Secretary to publish, to be published in the
official publications of the involved Parties.
60. Where the time period fixed, pursuant to rule 41, for filing an
ex parte motion referred to in subrule 41(1)(c) has expired, the
responsible Secretary shall serve on all participants
(a) where no motion is filed pursuant to that subrule, the
documents referred to in rules 39 and 41;
(b) where the committee issues an order referred to in subrule
45(1)(a), the documents referred to in rules 39 and 41 in accordance
with any order of the committee; and
(c) where the committee issues an order referred to in subrule
45(1)(b), the documents referred to in rules 39 and 41, in accordance
with subrule 45(1)(b)(ii) and any order made by the committee.
Part V--Orders and Decisions
61. All orders and decisions of a committee shall be made by a
majority of the votes of all members of the committee.
62. (1) Where a Notice of Motion requesting dismissal of an
extraordinary challenge proceeding is filed by a participant, the
committee may issue an order dismissing the proceeding.
(2) Where the motion referred to in subrule (1) is consented to by
all the participants and an affidavit to that effect is filed, or where
all participants file Notices of Motion requesting dismissal, the
extraordinary challenge proceeding is terminated.
63. (1) A final decision of a committee shall
(a) affirm the decision of the panel;
(b) vacate the decision of the panel; or
(c) remand the decision of the panel to the panel for action not
inconsistent with the final decision of the committee.
(2) Every final decision of a committee shall be issued in writing
with reasons, together with any dissenting or concurring opinions of
the members of the committee.
(3) Subrule (2) shall not be construed as prohibiting the oral
delivery of the decision of a committee.
Part VI--Completion of Extraordinary Challenges
64. Where all participants consent to the termination of the
proceeding pursuant to rule 62, the responsible Secretary shall cause
to be published in the official publications of the involved Parties a
Notice of Completion of Extraordinary Challenge, effective on the day
after the day on which the requirements of rule 62 have been met.
65. Where a committee issues its final decision, the responsible
Secretary shall cause to be published in the official publications of
the involved Parties a Notice of Completion of Extraordinary Challenge,
effective on the day after the day on which
(a) the committee affirms the decision of the panel;
(b) the committee vacates the decision of the panel; or
(c) where the committee remands the decision of the panel, the day
the responsible Secretary gives notice to the committee that the panel
has given notice that it has taken action not inconsistent with the
committee's decision.
66. The members of the committee are discharged from their duties
on the day on which a Notice of Completion of Extraordinary Challenge
is effective.
67. (1) A Party may make a request, pursuant to Article
1905.11(a)(ii) of the Agreement, that an ongoing extraordinary
challenge proceeding be stayed by filing the request with the
responsible Secretariat.
(2) A Party who files a request under subrule (1) shall forthwith
give written notice of the request to the other involved Party and to
the other involved Secretariat.
(3) On receipt of a request under subrule (1), the responsible
Secretary shall
(a) immediately give written notice of the stay of the
extraordinary challenge proceedings to all participants in the
extraordinary challenge proceedings; and
(b) publish a notice of the stay of the extraordinary challenge
proceedings in the official publications of the involved Parties.
68. 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 extraordinary challenge proceedings referred
to in Article 1905.11(a)(i) of the Agreement shall
(a) immediately give notice in writing to all participants in those
proceedings; and
(b) publish a notice of the affirmative finding in the official
publications of the involved Parties.
69. (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.
Dated: February 10, 1994.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
[FR Doc. 94-3929 Filed 2-22-94; 8:45 am]
BILLING CODE 3510-GT-P
