[Federal Register Volume 59, Number 26 (Tuesday, February 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2783]
[[Page Unknown]]
[Federal Register: February 8, 1994]
_______________________________________________________________________
Part V
Department of Commerce
_______________________________________________________________________
International Trade Administration
_______________________________________________________________________
United States-Canada Free Trade Agreement: Amendments to Rules of
Procedure for Article 1904 Extraordinary Challenge Committees; Notice
=======================================================================
DEPARTMENT OF COMMERCE
International Trade Administration
United States-Canada Free Trade Agreement: Amendments to Rules of
Procedure for Article 1904 Extraordinary Challenge Committees
AGENCY: United States-Canada Free Trade Agreement, Binational
Secretariat, United States Section, International Trade Administration,
Department of Commerce.
ACTION: Amendments to rules of procedure for Article 1904 Extraordinary
Challenge Committees.
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SUMMARY: Canada and the United States have amended the rules of
procedure for Annex 1904.13 extraordinary challenge proceedings. These
amendments are intended to improve the extraordinary challenge
proceeding process under Chapter Nineteen of the United States-Canada
Free Trade Agreement in order to increase its efficiency and
effectiveness.
EFFECTIVE DATE: February 8, 1994. The Rules of Procedure, herewithin,
apply to all extraordinary challenge committee proceedings under the
United States-Canada Free Trade Agreement (``Agreement'') commenced on
or after the effective date. Specifically, these Rules of Procedure
govern any extraordinary challenge arising out of a panel review of any
final determination published or, in the case of a determination that
is not published, for which notice is received prior to January 1,
1994, the date of entry into force of the North American Free Trade
Agreement (``NAFTA''). In the event that either Canada or the United
States withdraws from the NAFTA, the Agreement would revive between
them and these Rules of Procedure again would apply.
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, and
(202) 482-5031, respectively. For procedural matters involving cases
under extraordinary challenge committee review, contact James R.
Holbein, United States Secretary, Binational Secretariat, room 2061,
U.S. Department of Commerce, 14th and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202) 482-5438.
SUPPLEMENTARY INFORMATION:
Background
Chapter Nineteen of the United States-Canada Free Trade Agreement
(``Agreement'') establishes a mechanism for replacing judicial review
of final antidumping and countervailing duty determinations involving
imports from Canada 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, the
United States or Canada may have recourse to an ECC only in
extraordinary cases. Title IV of the United States-Canada Free Trade
Agreement Implementation Agreement Act of 1988, Public Law No. 100-449,
102 Stat. 1851 (1988) amends United States law to implement Chapter
Nineteen of the Agreement.
The Extraordinary Challenge Committee Rules are intended to give
effect to the extraordinary challenge committee provisions of Chapter
Nineteen of the Agreement by setting forth the procedures for
commencing, conducting and completing extraordinary challenge
proceedings. Originally published on December 30, 1988 (53 Fed. Reg.
53212, 53222), the Extraordinary Challenge Committee Rules became
effective on January 1, 1989, the date the Agreement entered into
force. These amendments to the Extraordinary Challenge Committee Rules
are the result of negotiations between the United States and Canada.
The amendments improve the extraordinary challenge committee review
process by providing for the smooth functioning of that process and by
making the rules more easily understood by counsel.
A summary of the amendments to the Extraordinary Challenge
Committee Rules is contained in the following section-by-section
analysis. Amendments involving typographical errors, corrected cross-
referencing, minor ministerial corrections, and any other changes not
explained below, are considered drafting clarifications and have no
substantive significance.
Preamble
The Preamble has been amended to clarify that paragraph 2 of Annex
1904.13 provides the mandate for the Extraordinary Challenge Committee
Rules.
Rule 2
Rule 2 has been added in view of the entry into force of the North
American Free Trade Agreement (``NAFTA'') and in light of the
possibility that a Party may withdraw from NAFTA. The Extraordinary
Challenge Committee Rules govern any proceeding in which a Request for
an Extraordinary Challenge Committee is filed in respect of a panel
review of any final determination published or, in the case of a
determination that is not published, for which notice is received,
prior to the entry into force of NAFTA. If either Canada or the United
States were to withdraw from NAFTA, the Agreement would revive between
them and these rules would again apply.
Rule 3
Rule 3 amends former rule 2 to clarify that where procedural
questions arise which are not covered by the Extraordinary Challenge
Committee Rules, any procedure adopted by a committee should not be
inconsistent with the Agreement.
Rule 3 also has been amended to add a provision corresponding to
the final sentence of Rule 2 of the Article 1904 Panel Rules, which
provides that the Agreement prevails where there is an inconsistency or
ambiguity between the Extraordinary Challenge Committee Rules and the
Agreement.
Rule 4
The definition of ``Disclosure Undertaking'' corresponds to an
amendment to the Article 1904 Panel Rules and has been added to
eliminate the need to refer to the form of the undertaking in the body
of the Extraordinary Challenge Committee Rules or in an attached
schedule.
The definition of ``investigating authority'' corresponds to an
amendment to the Article 1904 Panel Rules and has been added to include
a delegation of power by the competent investigating authority in
matters regarding the issuance, amendment, modification and revocation
of Disclosure Orders and Protective Orders.
The definition of ``personal information'' has been added to
account for a class of information not found in the administrative
record under review by a panel and consists of information produced in
respect of a request for an extraordinary challenge committee arising
from an allegation under Article 1904.13(a)(i) of the Agreement.
The definition of ``pleading'' has been amended to remove the
Notice of Request for an Extraordinary Challenge Committee and to add
the Notice of Motion.
The definition of ``proof of service'', as it applies to an
extraordinary challenge proceeding requested in respect of a panel
review of a final determination made in the United States, has been
amended to remove acknowledgement of service as an alternative form of
proof of service because it is not standard practice in the United
States.
The definition of ``Protective Order Application'' corresponds to
an amendment to the Article 1904 Panel Rules and has been added to
eliminate the need to refer to the form of the application in the body
of the Extraordinary Challenge Committee Rules or in an attached
schedule.
The definition of ``service address'' has been amended to
correspond to an amendment to the Article 1904 Panel Rules and has been
rephrased to clarify that an address, rather than a facsimile number,
is the principal service address.
Rule 5
Rule 5, formerly rule 4, provides for the incorporation of the
definitions in Article 1911 of the Agreement into the Extraordinary
Challenge Committee Rules.
Rules 6 to 8
Rules 6 to 8 consolidate the general rules applicable to all
extraordinary challenge proceedings.
Rule 6 provides for the duration of an extraordinary challenge
proceeding.
Rule 7, formerly rule 25, indicates which legal principles govern
an extraordinary challenge proceeding.
Rule 8, formerly rule 26, gives a committee the discretion to
review any portion of the panel record.
Rules 9 and 10
Rules 9 and 10 consolidate the rules for the routine functioning of
committees.
Rule 9, formerly rule 14, provides that a committee may adopt rules
for its own routine administrative matters.
Rule 10, formerly rule 15, sets out who may participate in the
deliberations of a committee.
Rules 11 and 12
Rules 11 and 12 provide for the computation of time.
Rule 11, formerly rule 16, sets out the provisions for computation
of time and has been amended to add subrule 11(3), which provides for
the computation of time periods of five days or less. This provision
was added due to the relatively short period of time within which an
extraordinary challenge proceeding typically takes place--30 days from
the date of establishment of the committee.
Rule 12, formerly rule 17, gives a committee the discretion to
extend time periods, if certain conditions are met.
Rule 13
Rule 13, formerly rule 18, sets out the conditions for a counsel to
become counsel of record for a participant in an extraordinary
challenge proceeding.
Rule 14
Rule 14, formerly rule 31, provides for the allocation of costs.
Rules 15 to 22
Rules 15 to 22 provide for the protection of non-public
information: proprietary information, privileged information and
personal information. These rules set out the procedures whereby
committee members, their assistants, court reporters and translators,
as well as participants in an extraordinary challenge proceeding, may
gain access to this non-public information and the conditions which
participants must fulfill in order to gain access to this information.
Subrule 15(1), formerly subrule 11(1), provides for the filing with
the responsible Secretary of Disclosure Undertakings or Protective
Order Applications by committee members, their assistants, court
reporters and translators who may require access to documents
containing non-public information.
Subrule 15(2) has been added to provide that the responsible
Secretary shall file the Disclosure Undertaking or the Protective Order
Application with the appropriate investigating authority.
Subrules 15(3) and (4) address the requirements for issuance of a
Disclosure Order or Protective Order. Former subrule 11(3) had provided
that the person to whom the Disclosure Order or Protective Order was
issued would file with the responsible Secretariat the order and the
required number of copies. Under new subrule 15(3), the investigating
authority issues the appropriate Order and transmit it to the
responsible Secretary.
Under subrule 15(4) the responsible Secretary, on receipt of the
appropriate Order, transmits that Order to the person named in the
Order. The rationale for this amendment was to ensure that the
Secretary could act as the conduit for assembling, filing and receipt
of Orders for all persons who are not counsel in an extraordinary
challenge proceeding.
Rule 16 has been added to correspond to the procedure under
subrules 49(2), 49(3) and 49(4) of the Article 1904 Panel Rules and
provides for the amendment and modification of Disclosure Undertakings
and Protective Order Applications and for the amendment, modification
or revocation of Disclosure Orders and Protective Orders.
Under subrule 16(1), a committee member, assistant to a committee
member, court reporter, or translator provides to the responsible
Secretariat a copy of any amendment or modification made to a
Disclosure Undertaking or Protective Order Application.
Under subrule 16(2), the responsible Secretary then files the
amendment or modification to the Disclosure Undertaking or Protective
Order Application with the competent investigating authority.
Under subrule 16(3), the competent investigating authority, as
appropriate, amends, modifies or revokes the Disclosure Order or
Protective Order and then transmits to the responsible Secretariat the
amended or modified Order or the notice of revocation of the Order.
Under subrule 16(4), the responsible Secretary transmits the
amended or modified Order or the notice of revocation of the Order to
the person named therein.
Rule 17 has been added to correspond to the procedure under subrule
23(d) of the Article 1904 Panel Rules for service by the responsible
Secretary of Disclosure Orders and Protective Orders, amendments and
modifications thereto and notices of revocation thereof.
Rule 18 has been added to correspond to the procedure under rule
48(1) of the Article 1904 Panel Rules and provides for the issuance of
Disclosure Orders or Protective Orders to new counsel of record or any
professional retained by, or under the control of, new counsel of
record. A professional retained by counsel refers, for example, to a
professional who is retained on a contractual basis. A professional
under the control of counsel refers, for example, to an employee of
counsel who is not hired on a contractual basis, but takes direction
from counsel.
Subrule 18(1) provides that a new counsel of record or such
professional shall file a Disclosure Undertaking or Protective Order
Application with the responsible Secretariat and with the competent
investigating authority.
Subrule 18(2) provides that the Disclosure Undertaking or
Protective Order Application shall be served on all participants.
Subrule 18(3) limits the competent investigating authority to 10 days
after the filing of the Disclosure Undertaking or Protective Order
Application to issue or to transmit reasons for not issuing a
Disclosure Order or Protective Order.
Rule 19 has been added to correspond to rule 50 of the Article 1904
Panel Rules. Subrule 19(1) provides that counsel may file a notice of
motion requesting that a committee review the decision of a competent
investigating authority refusing to issue a Disclosure Order or
Protective Order to persons named in subrule 18(1) or issuing a
Disclosure Order or Protective Order with terms unacceptable to a
person named in subrule 18(1).
Subrule 19(2) provides for notice by a committee to counsel and the
competent investigating authority where the committee decides that an
order should be issued or that the terms of a Disclosure Order or
Protective Order should be amended or modified.
Subrule 19(3) provides that if a United States investigating
authority fails to comply with a notice of the committee set out in
subrule 19(2), the committee may issue such orders as are just in the
circumstances.
Rule 20 has been added to correspond to rule 52 of the Article 1904
Panel Rules and provides for the amendment, modification or revocation
of Disclosure Orders or Protective Orders issued to persons in
committee proceedings.
Rule 21, formerly rule 39, sets out conditions under which personal
information, filed pursuant to a request for an extraordinary challenge
under Article 1904.13(a)(i) of the Agreement, shall be kept
confidential.
Rule 22, formerly rule 33, sets out procedures where there have
been allegations of violations of the terms of a Disclosure Order or
Protective Order.
Rule 23
Rule 23 sets out procedures for giving notice of allegations of
violations of the Code of Conduct and has been added to correspond to
the amendments to rule 45 of the Article 1904 Panel Rules. Rule 23
applies to both committee members and their assistants. Notice of such
an allegation must be given forthwith to the responsible Secretary who,
in turn, is required to notify promptly the other Secretary and both
Parties.
Rules 24 to 27
Rules 24 to 27, formerly rules 27 to 30, provide for the language
of pleadings and simultaneous translation of extraordinary challenge
proceedings in Canada.
Rule 28
Rule 28, formerly rule 5, provides that all notices required under
these rules be given in writing.
Rules 29 to 36
Rules 29 to 36 consolidate the procedures for the filing and
service of documents and other communications.
Rule 29 amends former rule 19 to provide that the original plus
five copies of a document are to be filed with the responsible
Secretariat.
Rule 30, which consolidates former subrules 21(2) and (3) and rule
22, sets out the requirements for service of public documents. Subrule
30(1) sets out which of the documents filed by a participant are
required to be served by that participant on the other participants.
Subrule 30(2) sets out three alternative methods of service of the
documents set out in subrule 30(1).
Subrule 30(3) provides that proof of service be set out on all
documents served under subrule 30(1).
Subrule 30(4) sets out the requirements for establishing the date
of service where a document is served by special delivery courier or
expedited mail service.
Rules 31 to 35 consolidate former subrule 21(4) and former rules
23, 47, 48 and 50. The new rules provide for the filing and service of
documents under seal, i.e., those documents containing personal
information, privileged information or proprietary information.
Subrule 31(1), formerly subrule 47(10), provides that the filing
and service of documents under seal are required to accord with the
procedures set out in this subrule and rule 33.
Subrule 31(2), formerly rule 47(2), provides for the binding,
marking and wrapping of documents filed under seal.
Subrule 31(3) provides that the opaque inner wrapper containing
documents filed under seal shall be labelled to indicated its contents,
i.e., proprietary information, privileged information, or personal
information, and the Secretariat file number.
Rule 32, formerly rule 48, provides that the filing and service of
documents under seal does not waive the privilege attached to the
personal, privileged and proprietary information contained in those
documents.
Subrule 33 (1), formerly subrule 50(1), provides for the filing of
pleadings containing proprietary information and sets out the method
for filing each of the two sets of pleadings required. Subrule 33(2),
formerly subrule 50(2), makes similar provisions for privileged
information.
Subrules 33(1)(b) and (2)(b) have been amended to allow the filing
of pleadings containing non-proprietary and non-privileged information
no later than one day after the filing of pleadings containing the
proprietary or privileged information.
Subrule 33(3), formerly subrule 50(3), makes similar provisions for
personal information and sets out the method for filing the one set of
pleadings required.
Rule 34 has been added to provide for restrictions on service of
documents under seal. Subrule 34(1) has been added to correspond to
subrule 24(4) of the Article 1904 Panel Rules and limits service of
documents filed under seal to the investigating authority and those
participants with Disclosure Orders or Protective Orders.
Subrule 34(2) has been added to provide for service of documents on
a participant without a Disclosure Order or Protective Order where that
participant submitted the proprietary information contained in those
documents.
Subrule 34(3) has been added to limit access to information in
documents containing personal information to those persons granted
access by order of a committee.
Rule 35, formerly rule 23, provides that persons receiving
documents under seal shall not file, serve or otherwise communicate any
personal, privileged or proprietary information contained in those
documents by facsmile transmission or by telephone.
Rule 36, formerly rule 24, provides that service on an
investigating authority is not service on a Party and service on a
Party is not service on an investigating authority.
Rule 37
Rule 37 amends former rule 49 and provides for the form and content
of pleadings. Subrule 37(1) has been amended to correspond to subrule
58(1) of the Article 1904 Panel Rules and sets out the information
required in every pleading. Subrule 37(2) has been amended to move the
requirement for the binding of briefs to subrule 44(1).
Rules 38 to 40
Rules 38 to 40 provide for requests for extraordinary challenge
committees.
Rule 38, which consolidates portions of former rules 34 and 40 and
which provides for request for an extraordinary challenge committee,
has been amended to reflect the addition of rule 79A to the Article
1904 Panel Rules. Rule 79A provides for the issuance of a Notice of
Final Panel Action which triggers the running of the time period for
filing a Request for an Extraordinary Challenge Committee.
Subrule 38(1), therefore, requires that a Party file a Request for
an Extraordinary Challenge Committee referred to in Article
1904.13(a)(ii) or (iii) within 30 days after the issuance, pursuant to
rule 79A of the Article 1904 Panel Rules, of the Notice of Final Panel
Action in the panel review that is the subject of the Request.
Subrule 38(2)(a) requires that a Request for an Extraordinary
Challenge Committee referred to in Article 1904.13(a)(i) also be filed
within 30 days after the issuance of the Notice of Final Panel Action.
Where, however, a Party gains knowledge of the action of the panelist
giving rise to the allegation under Article 1904.13(a)(i) more than 30
days after the issuance of a Notice of Final Panel Action, subject to
subrule 38(3), subrule 38(2)(b) requires a Party to file the Request no
more than 30 days after gaining knowledge of the action of the
panelist. There is a limitation, found in subrule 38(3), which states
that no Request pertaining to a panelist's action may be filed if two
years or more have elapsed since the issuance of the Notice of
Completion of Final Panel Review pursuant to rule 80 or 81 of the
Article 1904 Panel Rules.
Rule 39 consolidates former subrule 35(a) and portions of subrule
40(1) and sets out the information to be contained in a Request for
Extraordinary Challenge Committee. Subrule 39(2) has been added to
provide that where a Request 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 61.
Rule 40, which consolidates former subrule 35(b) and portions of
former subrule 40(1), provides for the materials to accompany a Request
for Extraordinary Challenge Committee.
Rules 41 and 42
Rules 41 and 42 provide for Notices of Appearance.
Rule 41 consolidates former rules 37 and 42, and sets out the
procedure for filing Notices of Appearance in response to a Request for
an Extraordinary Challenge Committee.
Subrule 41(1) provides for filing of the Notice and for the
information to be contained in the Notice.
Subrules 41 (2) and (3) provide for the submission of documents on
the administrative record of the panel review not specified in the
Index.
Rule 42, formerly rule 43, provides that where a panelist has made
a motion for an in camera hearing and has filed documents under seal in
support of that motion, and where the committee denies the motion, the
panelist is permitted to withdraw those documents.
Rules 43 and 44
Rules 43 and 44 provide for the filing and content of briefs and
appendices.
Rule 43, formerly rule 38, provides for the filing of briefs and
has been amended to provide for the filing of appendices along with the
briefs.
Rule 44, formerly rule 51, sets out the structure and content of
briefs.
Subrule 44(1) has been amended to add the requirement for binding
of briefs.
Subrule 44(1) has been further amended and subrule 44(3) has been
added to clarify the structure and content of a table of authorities.
Rule 45
Rule 45, which amends former rule 52, provides for motions. The new
rule clarifies that a committee may dispose of a motion based on the
pleadings and that, if there is oral argument, it may be heard by
telephone conference call, so long as there is no disclosure of
personal, privileged or proprietary information.
Rules 46 to 49
Rules 46 to 49 provide for the conduct of oral proceedings.
Rule 46, which amends former rule 45, provides for orders of a
committee on a motion for in camera hearings.
Subrule 46(2) has been added to clarify that the responsible
Secretary is not to serve documents containing personal information
filed by a panelist on a motion for an in camera hearing prior to the
time for withdrawal by the panelist of documents filed under seal on
the motion.
Rule 47, formerly rule 46, provides that a committee may decide the
procedure to be followed in an extraordinary challenge proceeding.
Rule 48, formerly rule 53, provides that oral argument in a
committee proceeding is at the discretion of the committee.
Rule 49, formerly rule 54, provides for oral proceedings in camera.
Rules 50 to 61
Rules 50 to 61 consolidate and, by amendment, clarify the
responsibilities of the Secretary.
Rule 50 has been added to correspond to rule 8 of the Article 1904
Panel Rules, which sets out the business hours of the Secretariat.
Rule 51, formerly rule 32, provides guidance to the Secretary as to
who is to receive notice on completion of the selection of the members
of a committee.
Rule 52, formerly rule 7, sets out the administrative support to be
provided by the Secretary. The new rule removes the requirement that
the Secretary should make arrangements for simultaneous translation
because such a service is included in the term ``administrative
support''.
Rule 53, formerly rule 8, specifies that each Secretary shall
maintain a file of all documents filed in each extraordinary challenge,
whether or not a document was filed in accordance with these rules,
reflecting that the Secretaries do not have any discretion to reject a
document that is submitted for filing. The issue of whether a document
is properly filed is for the committee to determine.
Rule 54, formerly rule 9, provides for the forwarding of documents
from the responsible Secretary to the other Secretary.
Rule 55, which amends former rule 10, provides for the publication
of documents. Under the new rule, both Secretaries cause a document to
be published. The provision in the former rule for forwarding a
document from one Secretary to the other has been removed because it is
part of the Secretary's administrative practice.
Rule 56, formerly rule 12, provides for the storage, wrapping,
handling and access to documents filed with the Secretary, which
contain personal, privileged or proprietary information. The term
``storage'' has been expanded to include storage, maintenance, handling
and distribution of documents.
Rule 57, formerly subrule 13(3), provides for removal from the
Secretary's office of documents filed in an extraordinary challenge
proceeding.
Subrule 58(1), formerly part of subrule 13(1), provides for access
to information in the file of an extraordinary challenge proceeding
that is not personal, privileged or proprietary.
Subrule 58(3), formerly part of subrule 13(1), sets out the
procedure for providing copies of information to persons who have been
given access to the information.
Rule 59 amends former rules 20, 26 and 41 and sets out the
responsibilities of the Secretary for the forwarding and service of
documents, orders and decisions. Subrules 59(1) and (2) provide for the
forwarding and service of documents upon the filing of a Request for
Extraordinary Challenge Committee.
Subrules 59(3) and (4) provide for the service of orders and
decisions of a committee and of Notices of Completion of Extraordinary
Challenges.
Rule 60, formerly rule 56, provides for publication of the final
decisions and orders of a committee.
Rule 61
Rule 61, formerly rule 44, provides for the service of documents in
cases where the time period fixed for filing a motion by a panelist for
an in camera hearing has expired.
Rules 62 to 64
Rules 62 to 64 set out procedures on orders and decisions of a
committee.
Rule 62, formerly rule 55, provides that all committee orders and
decisions require a majority vote.
Rule 63, which amends former rule 57, provides for Notices of
Motion requesting dismissal.
Subrule 63(1) provides that a committee may terminate an
extraordinary challenge proceeding where a motion requesting dismissal
of the proceeding has been filed.
Subrule 63(2) has been amended to remove the requirement for an
order of the committee where termination is by consent of all
participants. The subrule now provides that an extraordinary challenge
proceeding is terminated when all participants consent to dismissal and
an affidavit to that effect is filed.
Rule 64, formerly rule 58, sets out three alternative actions which
a committee may take on a final decision. The rule has been amended to
include the possibility of a remand in a proceeding based on a Request
for Extraordinary Challenge Committee filed under Article 1904.13(a)(i)
of the Agreement.
Rules 65 to 67
Rules 65 to 67 provide for the completion of extraordinary
challenge proceedings.
Rule 65 amends former rule 59 to provide that publication of a
Notice of Termination on termination of an extraordinary challenge
proceeding by consent occurs on the day after the day on which all
requirements under subrule 63(2) are met, given that termination on
consent no longer requires issuance of an order by the committee.
Rule 66, formerly rule 60, provides for publication of a Notice of
Completion of Extraordinary Challenge on issuance of a final decision
by a committee.
Subrule 60(c) has been amended to provide that on remand to a
panel, it is the Secretary, not the panel as in the former rule, who
gives notice to the committee that the panel has taken action not
inconsistent with the decision of the committee.
Rule 67, formerly rule 61, provides for discharge of committee
members.
United States-Canada Free Trade Agreement Rules of Procedure for
Article 1904 Extraordinary Challenge Committees
Contents
Preamble
Rule
1. Short Title
2. Application
3. Statement of General Intent
4. Interpretation
Part I--General
9. Internal Functioning of Committees
11. Computation of Time
13. Counsel of Record
14. Costs
15. Protection of Non-Public Information
23. Violation of Code of Conduct
24. Pleadings and Simultaneous Translation of Extraordinary
Challenge Proceedings in Canada
Part II--Written Proceedings
29. Filing, Service and Communications
37. Form and Content of Pleadings
38. Request for an Extraordinary Challenge Committee
41. Notice of Appearance
43. Filing and Content of Briefs and Appendices
45. Motions
Part III--Conduct of Oral Proceedings
49. Oral Proceedings in Camera
Part IV--Responsibilities of the Secretary
Part V--Orders and Decisions
Part VI--Completion of Extraordinary Challenges
Schedule--Procedural Forms
Preamble
The Parties,
Having regard to Chapter Nineteen of the Free Trade Agreement
between Canada and the United States of America;
Acting pursuant to paragraph 2 of Annex 1904.13 to Chapter Nineteen
of the Agreement;
Adopted Rules of Procedure governing all extraordinary challenge
committee proceedings conducted pursuant to Article 1904 of the
Agreement;
Adopt the following amended Rules of Procedure, effective on the
date of publication in the Federal Register, which 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 Extraordinary Challenge
Committee Rules.
Application
2. These rules apply to any proceeding in which a Request for an
Extraordinary Challenge Committee is filed in respect of a panel review
made pursuant to Article 1904 of the Agreement.
Statement of General Intent
3. 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 typically within 30 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 ambiguity or inconsistency between the provisions of these Rules
and the Agreement, the Agreement shall prevail.
Interpretation
4. In these rules,
``Agreement'' means the Free Trade Agreement between Canada and the
United States of America, signed on January 2, 1988;
``Code of Conduct'' means the code of conduct established by the
Parties pursuant to Article 1910 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 final
determination made in the United States, a person entitled to appear as
counsel before a federal court in the United States; and
(b) with respect to an extraordinary challenge of a final
determination made in Canada, a person entitled to appear as counsel
before the Federal Court of Canada;
``Counsel of record'' means a counsel referred to in subrule 13(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;
``Disclosure Undertaking'' means an undertaking, in the prescribed
form, which form--
(a) in respect of a review of a final determination by the Deputy
Minister, is available from the Deputy Minister, and
(b) in respect of a review of a final determination by the
Tribunal, is available from the Tribunal;
``final determination'' means, in the case of Canada, a definitive
decision within the meaning of subsection 77.1(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 Disclosure Order or Protective Order, any person
authorized by the investigating authority;
``legal holiday'' means--
(a) 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
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 are officially
closed in whole or in part, and
(b) 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;
``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 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 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 40(2) and rule 42;
``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 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, and
(b) 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;
``proof of service'' means:
(a) 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, and
(b) with respect to an extraordinary challenge of a panel review of
a final determination made in Canada,
(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;
``proprietary information'' means:
(a) with respect to an extraordinary challenge of a panel review of
a final determination made in the United States, business proprietary
information under the laws of the United States, and
(b) with respect to an extraordinary challenge of a panel review of
a final determination made in Canada, information that was accepted by
the Deputy Minister or the Tribunal as confidential in the proceedings
before the Deputy Minister or the Tribunal 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;
``Protective Order Application'' means an application,
(a) in respect of a review 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
(b) in respect of a review 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;
``responsible Secretariat'' means, with respect to an extraordinary
challenge of a panel review, the section of the Secretariat located in
the country in which the final determination reviewed by the panel was
made;
``responsible Secretary'' means the Secretary of the responsible
Secretariat;
``Secretariat'' means the Secretariat established pursuant to
Article 1909 of the Agreement;
``Secretary'' means the Secretary of the United States Section or
the Secretary of the Canadian Section of the Secretariat and includes
any person authorized to act on behalf of a 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
participant, the new address set out as the 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.
5. The definitions set forth in Article 1911 of the Agreement are
hereby incorporated into these rules.
Part I--General
6. 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.
7. 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.
8. A committee may review any part of the record of the panel
review relevant to the extraordinary challenge.
Internal Functioning of Committees
9. (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 35(b), meetings of a committee may be
conducted by means of a telephone conference call.
10. Only committee members may take part in the deliberations of a
committee, which shall take place in private and remain secret. Staff
of the Secretariat and assistants to committee members may be present
by permission of the committee.
Computation of Time
11. (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.
12. 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 of decisions of panels.
Counsel of Record
13. (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
14. Each participant shall bear the costs of, and incidental to,
its own participation in an extraordinary challenge proceeding.
Protection of Non-Public Information
15. (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 and translator shall provide the responsible Secretariat with
a Disclosure Undertaking or a Protective Order Application.
(2) Upon receipt of a Disclosure Undertaking or Protective Order
Application, the responsible Secretary shall file with the appropriate
investigating authority the Disclosure Undertaking or Protective Order
Application and any additional copies of those documents required by
the investigating authority.
(3) The investigating authority shall, if appropriate, issue the
Disclosure Order or Protective 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 Disclosure Order or Protective Order, the
responsible Secretary shall transmit the original Disclosure Order or
Protective Order to the appropriate member of a committee, assistant to
a committee member, court reporter or translator.
16. (1) A member of a committee, assistant to a committee member,
court reporter or translator who amends or modifies a Disclosure
Undertaking or Protective Order Application shall provide a copy of the
amendment or modification to the responsible Secretariat.
(2) Upon receipt of an amended or modified Disclosure Undertaking
or Protective Order 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 amended or modified Disclosure Undertaking
or Protective Order Application, the investigating authority shall, as
appropriate, amend, modify or revoke the Disclosure Order or Protective
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 amended or modified Disclosure Order or
Protective Order or a notice of revocation, the responsible Secretary
shall transmit the amended or modified Disclosure Order or Protective
Order or the notice of revocation to the appropriate member of a
committee, assistant to a committee member, court reporter or
translator.
17. The responsible Secretary shall serve Disclosure Orders and
Protective Orders granted to members of a committee, assistants to
committee members, court reporters or translators, and any amendments
or modifications thereto or notices of revocation thereof, on all
participants other than the investigating authority.
18. (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 Disclosure Order or Protective 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 Disclosure Undertaking or a Protective Order 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 Disclosure Undertaking or Protective Order Application
referred to in subrule (1) shall be served on all participants.
(3) The investigating authority shall, within 10 days after a
Disclosure Undertaking or Protective Order Application is filed with it
in accordance with subrule (1), serve on the person who filed the
Disclosure Undertaking or Protective Order Application
(a) a Disclosure Order or Protective Order; or
(b) a notification in writing setting out the reasons why a
Disclosure Order or Protective Order is not issued.
19. (1) Where
(a) the investigating authority refuses to issue a Disclosure Order
or Protective 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) the investigating authority issues a Disclosure Order or
Protective 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 Disclosure Order or Protective Order should be issued or
that the terms of a Disclosure Order or Protective 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.
20. (1) Where a Disclosure Order or Protective Order is issued to a
person in an extraordinary challenge proceeding, the person shall file
with the responsible Secretariat a copy of the Disclosure Order or
Protective Order.
(2) Where a Disclosure Order or Protective 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.
21. 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 42(1)(c),
(i) until the committee makes an order referred to in subrule
46(1)(a), or
(ii) where the committee makes an order referred to in subrule
46(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 42, for filing a Notice of Motion
referred to in subrule 42(1)(c).
22. Where a person alleges that the terms of a Disclosure
Undertaking or Protective 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 77.26 of the Special Import Measures Act, as amended, or
section 777(f) of the Tariff Act of 1930, as amended.
Violation of Code of Conduct
23. 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 Secretary and the Parties of the allegations.
Pleadings and Simultaneous Translation of Extraordinary Challenge
Proceedings in Canada
24. Rules 25 to 27 apply with respect to an extraordinary challenge
of a panel review of a final determination made in Canada.
25. Either English or French may be used by any person, panelist or
member of a committee in any document or oral proceeding.
26. (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.
27. (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
28. Where these rules require that notice be given, it shall be
given in writing.
Filing, Service and Communications
29. 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.
30. (1) All documents filed by a participant, other than documents
required by rule 59 to be served by the responsible Secretary and
documents referred to in subrule 39(2), rule 40, subrule 41(2)(a) and
rule 42 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 subrules 35(a) and 59(4), 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 an 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 an 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 courier service or expedited mail service.
31. (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 or served in accordance with
this rule and, where applicable, in accordance with rule 33.
(2) A document filed or served under seal shall be
(a) bound separately from all other documents;
(b) clearly marked
(i) in the case of a document containing proprietary information,
``Proprietary'' or ``Confidential'',
(ii) in the case of a document containing privileged information,
``Privileged'', and
(iii) 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.
32. 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.
33. (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 shall be filed under seal, containing the proprietary
information and labelled ``Proprietary'' or ``Confidential'', with the
top of each page that contains proprietary information marked with the
word ``Proprietary'' or ``Confidential'' 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 labelled ``Non-
Proprietary'' or ``Non-Confidential'', 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 shall be filed under seal, containing the privileged
information and 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 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 labelled
``Personal Information''.
34. (1) Subject to subrule (2), a document containing proprietary
or privileged information shall be filed under seal in accordance with
rule 31 and shall be served only on the investigating authority and on
those participants who have been granted access to the information
under a Disclosure Order or Protective 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
Disclosure Order or Protective Order.
(3) A document containing personal information shall be filed under
seal in accordance with rule 31 and shall be served only on persons or
participants who have been granted access to the information under an
order of the committee.
35. 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.
36. 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
37. (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 4; 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.
(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.
Request for an Extraordinary Challenge Committee
38. (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 within 30 days after the
issuance, pursuant to rule 79A of the 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
(a) within 30 days after the issuance, pursuant to rule 79A of the
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 issuance of 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)(b) may be filed if two years or more have elapsed since
the effective date of the Notice of Completion of Panel Review pursuant
to rule 80 or 81 of the Article 1904 Panel Rules.
39. (1) Subject to subrule (2), every Request for an Extraordinary
Challenge Committee (model form provided in the Schedule) 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 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 61.
40. (1) Every Request for an Extraordinary Challenge Committee
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 79A of the
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.
Notice of Appearance
41. (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 provided in the Schedule) 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.
42. (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 46(1)(a),
a panelist who filed documents described in subrule (1)(b) may, within
5 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
43. (1) All briefs shall be filed within 21 days after the Request
for an Extraordinary Challenge Committee is filed and shall be in the
form required by rule 44.
(2) Appendices shall be filed with the briefs.
44. (1) Briefs and appendices shall be securely bound along the
left-hand margin. 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:
The table of authorities shall arrange the cases alphabetically,
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 upon.
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 a Party that files a Request, this part shall
contain a concise statement of the issues; and
(b) In the brief of any other participant, this part shall contain
a concise statement of the position of the participant with respect to
the issues.
Part IV: Argument:
This part shall consist of the argument, setting out concisely the
points of law relating to the issues, with applicable citations to
authorities and the panel record.
Part V: Relief:
This part shall consist of a concise statement precisely
identifying the relief requested.
(2) Paragraphs in Parts I to V of a brief may be numbered
consecutively.
(3) Authorities referred to in the briefs shall be included in an
appendix, which shall be organized as follows: a table of contents,
copies of all treaty and statutory references, references to
regulations, cases primarily relied on in the briefs, set out
alphabetically, all documents relied on from the panel record and all
other materials relied on.
Motions
45. (1) Motions, other than motions referred to in subrule
42(1)(c), may be considered at the discretion of the committee (model
form provided in the Schedule).
(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 35(b), direct that a motion be heard by means of a telephone
conference call with the participants.
Part III--Conduct of Oral Procedings
46. (1) The order of a committee on a motion referred to in subrule
42(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 42(2) has expired.
47. 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.
48. The decision as to whether oral argument will be heard shall be
in the discretion of the committee.
Oral Proceedings in Camera
49. 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;
(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
50. 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 United States Section of the Secretariat,
legal holidays of that Section; and
(b) in the case of the Canadian Section of the Secretariat, legal
holidays of that Section.
51. On the completion of the selection of the members of a
committee, the responsible Secretary shall notify the participants and
the other Secretary of the names of the members of the committee.
52. The responsible Secretary shall provide administrative support
for each extraordinary challenge proceeding and shall make the
arrangements necessary for meetings and any oral proceedings.
53. Each 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. All
documents filed shall be stamped by the Secretariat to show the date
and time of receipt.
54. The responsible Secretary shall forward to the other Secretary
a copy of all documents filed with the responsible Secretary and of all
orders and decisions issued by a committee.
55. Where under these rules a notice or other document is required
to be published in the Canada Gazette and the Federal Register, the
responsible Secretary and the other Secretary shall each cause the
document to be published in the publication of the country in which
that section of the Secretariat is located.
56. (1) Where a document containing proprietary information or
privileged information is filed with the responsible Secretariat, each
Secretary shall ensure that
(a) the document is stored, maintained, handled, and distributed in
accordance with the terms of an applicable Disclosure Order or
Protective Order; and
(b) 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 Disclosure Order or Protective 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 55 of the Article
1904 Panel Rules, if those persons have filed with the responsible
Secretariat a Protective Order with respect to the document.
(2) Where a document containing personal information is filed with
the Secretariat, each Secretary shall ensure that
(a) the document is stored, maintained, handled, and distributed in
accordance with the terms of any applicable Disclosure Order or of
Protective Order; and
(b) access to the document is limited to persons granted access to
the information pursuant to subrule 46(1)(b).
57. 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.
58. (1) Each 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 Secretary shall, in accordance with the terms of any
applicable Disclosure Order, Protective 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 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.
59. (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 Secretary;
and
(b) serve a copy of the Request and Index on the other 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
shall be filed within 21 days of the date of filing of the Request.
(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
Secretary; and
(b) serve a copy of the Request, Index and annex on the other
Party, on the panelist against whom the allegation contained in the
Request is made and on the participants in the panel review.
(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.
60. The responsible Secretary shall cause notice of a final
decision of a committee issued pursuant to rule 64, and any order that
the committee directs the Secretary to publish, to be published in the
Canada Gazette and the Federal Register.
61. Where the time period fixed, pursuant to rule 42, for filing an
ex parte motion referred to in subrule 42(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 40 and 42;
(b) where the committee issues an order referred to in subrule
46(1)(a), the documents referred to in rules 40 and 42 in accordance
with any order of the committee; and
(c) where the committee issues an order referred to in subrule
46(1)(b), the documents referred to in rules 40 and 42, in accordance
with subrule 46(1)(b)(ii) and any order made by the committee.
Part V--Orders and Decisions
62. All orders and decisions of a committee shall be made by a
majority of the votes of all members of the committee.
63. (1) Where a Notice of Motion requesting dismissal of an
extraordinary challenge proceeding is filed by a participant, the
committee may issue an order terminating 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.
64. (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
65. Where all participants consent to the termination of the
proceeding pursuant to rule 63, the responsible Secretary shall cause
to be published in the Canada Gazette and the Federal Register a Notice
of Completion of Extraordinary Challenge, effective on the day after
the day on which the requirements of rule 63 have been met.
66. Where a committee issues its final decision, the responsible
Secretary shall cause to be published in the Canada Gazette and the
Federal Register 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.
67. The members of the committee are discharged from their duties
on the day on which a Notice of Completion of Extraordinary Challenge
is effective.
Schedule--Procedural Forms
Forms (1) through (4) follow.
Form (1)
Article 1904--Extraordinary Challenge Proceeding Pursuant to the United
States-Canada Free Trade Agreement
In the matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
----------------------------------------------------------------------
Secretariat File No. ________
Request For An Extraordinary Challenge Committee
Pursuant to Article 1904 of the Canada-United States Free Trade
Agreement, (the Party) hereby requests an Extraordinary Challenge
Committee review of the panel decision referenced below. The
following information is provided pursuant to rules 39 and 40 of the
Extraordinary Challenge Committee Rules:
1.--------------------------------------------------------------------
(The name of the Party filing this Request)
2.--------------------------------------------------------------------
(The name of counsel for the Party)
3.--------------------------------------------------------------------
----------------------------------------------------------------------
(The service address, as defined by Rule 4 of the Extraordinary
Challenge Committee Rules, including facsimile number, if any)
4.--------------------------------------------------------------------
(The telephone number of counsel for the Party)
5.--------------------------------------------------------------------
(The title of the panel review for which an Extraordinary Challenge
Committee is requested)
6. 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.
7. Items of the record of the panel review relevant to the
allegations contained in the Request, and an Index of the items are
attached (see rule 40(1)).
8. Where a Request contains an allegation referred to in Article
1904.13(a)(i) of the Agreement
(a) confidential annex is attached containing the identity of
the panelist against whom such an allegation is made (see subrule
39(2)),
(b) items of the record of the panel review relevant to the
allegations contained in the Request, and an Index of the items are
attached (see subrule 40(1)),
(c) any other material relevant to the allegations contained in
the Request is attached (see subrule 40(2)(a)), and
(d) if the Request is filed more than 30 days after the panel
issued a Notice of Final Panel Action pursuant to rule 79A of the
Article 1905 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
(see subrule 40(2)(b)).
9. Where the Panel Decision Was 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
Form (2)
Article 1904 Extraordinary Challenge Proceeding Pursuant to the United
States-Canada Free Trade Agreement
In the Matter of:
----------------------------------------------------------------------
----------------------------------------------------------------------
(Title of Panel Review)
----------------------------------------------------------------------
Secretariat File No. ________
Notice of Appearance
1. -------------------------------------------------------------------
(The name of the Party or participant filing this notice of
appearance)
2. -------------------------------------------------------------------
(The name of counsel for Party or participant)
3. -------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(The service address, as defined by Rule 4 of the Extraordinary
Challenge Committee Rules, including facsimile number, if any)
4. -------------------------------------------------------------------
(The telephone number of counsel for the Party or participant or the
telephone number of the participant, if not represented by counsel)
5. This Notice of Appearance is made:
________ in support of the Request; or
________ in opposition to the Request.
6. Where a Party or participant 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
(a) statement identifying the document and requesting its
inclusion in the extraordinary challenge record, and
(b) attach the document (see subrule 41(2)).
7. Where the Panel Decision Was 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
----------------------------------------------------------------------
Date Signature of Counsel (or participant, if not represented by
counsel)
Form (3)
Article 1904 Extraordinary Challenge Proceeding Pursuant to the United
States-Canada 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 Party or participant filing this notice of motion)
2. -------------------------------------------------------------------
(The name of counsel for the Party or participant)
3. -------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(The service address, as defined by Rule 4 of the Extraordinary
Challenge Committee Rules, including facsimile number, if any)
4. -------------------------------------------------------------------
(The telephone number of counsel for the Party or participant or the
telephone number of the participant, 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, and
arguments in support of the motion.
7. Draft order attached (see Form (4)).
----------------------------------------------------------------------
Date
----------------------------------------------------------------------
Signature of Counsel (or participant, if not represented by counsel)
Form (4)
Article 1904 Extraordinary Challenge Proceeding Pursuant to the United
States-Canada 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
__________________________________,
(participant filing motion)
and upon all other papers and proceedings herein, it is hereby
Ordered that the motion is ____________.
----------------------------------------------------------------------
Issue Date
----------------------------------------------------------------------
Member name
----------------------------------------------------------------------
Member name
----------------------------------------------------------------------
Member name
Dated: January 25, 1994.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
[FR Doc. 94-2783 Filed 2-3-94; 1:06 pm]
BILLING CODE 3510-GT-P
