Organization of American States - Trade Unit
Article 1901: General Provisions
1. The provisions of Article 1904 shall apply only with respect
to goods that the competent investigating authority of the
importing Party, applying the importing Party's antidumping or
countervailing duty law to the facts of a specific case,
determines are goods of another Party.
2. For the purposes of Articles 1903 and 1904, panels shall be
established in accordance with the provisions of Annex 1901.2.
3. With the exception of Article 2203 (Entry into Force), no
provision of any other chapter of this Agreement shall be
construed as imposing obligations on the Parties with respect to
the Parties' antidumping law or countervailing duty law.
Article 1902: Retention of Domestic Antidumping Law and
Countervailing Duty Law
1. Each Party reserves the right to apply its antidumping law
and countervailing duty law to goods imported from the territory
of any other Party. Antidumping law and countervailing duty law
include, as appropriate for each Party, relevant statutes,
legislative history, regulations, administrative practice and
judicial precedents.
2. Each Party reserves the right to change or modify its
antidumping law or countervailing duty law, provided that in the
case of an amendment to a Party's antidumping or countervailing
duty statute:
(a) such amendment shall apply to goods from another Party
only if the amending statute specifies that it applies
to the Parties to this Agreement;
(b) the amending Party notifies any Party to which the
amendment applies in writing of the amending statute as
far in advance as possible of the date of enactment of
such statute;
(c) following notification, the amending Party, upon
request of any Party to which the amendment applies,
consults with that Party prior to the enactment of the
amending statute; and
(d) such amendment, as applicable to another Party, is not
inconsistent with:
(i) the General Agreement on Tariffs and Trade (GATT),
the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade (the
Antidumping Code) or the Agreement on the
Interpretation and Application of Articles VI, XVI
and XXIII of the General Agreement on Tariffs and
Trade (the Subsidies Code), or successor
agreements to which all the original signatories
to this Agreement are party, or
(ii) the object and purpose of this Agreement and this
Chapter, which is to establish fair and
predictable conditions for the progressive
liberalization of trade among the Parties to this
Agreement while maintaining effective and fair
disciplines on unfair trade practices, such object
and purpose to be ascertained from the provisions
of this Agreement, its preamble and objectives and
the practices of the Parties.
Article 1903: Review of Statutory Amendments
1. A Party to which an amendment of another Party's antidumping
or countervailing duty statute applies may request in writing
that such amendment be referred to a binational panel for a
declaratory opinion as to whether:
(a) the amendment does not conform to the provisions of
Article 1902(2)(d)(i) or (ii); or
(b) such amendment has the function and effect of
overturning a prior decision of a panel made pursuant
to Article 1904 and does not conform to the provisions
of Article 1902(2)(d)(i) or (ii).
Such declaratory opinion shall have force or effect only as
provided in this Article.
2. The panel shall conduct its review in accordance with the
procedures of Annex 1903.2.
3. In the event that the panel recommends modifications to the
amending statute to remedy a non-conformity that it has
identified in its opinion:
(a) the two Parties shall immediately begin consultations
and shall seek to achieve a mutually satisfactory
solution to the matter within 90 days of the issuance
of the panel's final declaratory opinion. Such
solution may include seeking corrective legislation
with respect to the statute of the amending Party;
(b) if corrective legislation is not enacted within nine
months from the end of the 90-day consultation period
referred to in subparagraph (a) and no other mutually
satisfactory solution has been reached, the Party that
requested the panel may
(i) take comparable legislative or equivalent
executive action, or
(ii) terminate this Agreement with regard to the
amending Party upon 60-day written notice to that
Party.
Article 1904: Review of Final Antidumping and Countervailing
Determinations
1. As provided in this Article, the Parties shall replace
judicial review of final antidumping and countervailing duty
determinations with binational panel review.
2. An involved Party may request that a panel review, based
upon the administrative record, a final antidumping or
countervailing duty determination of a competent investigating
authority of a Party to determine whether such determination was
in accordance with the antidumping or countervailing duty law of
the importing Party. For this purpose, the antidumping or
countervailing duty law consists of the relevant statutes,
legislative history, regulations, administrative practice and
judicial precedents to the extent that a court of the importing
Party would rely on such materials in reviewing a final
determination of the competent investigating authority. Solely
for purposes of the panel review provided for in this Article,
the antidumping and countervailing duty statutes of the Parties,
as those statutes may be amended from time to time, are
incorporated into this Agreement.
3. The panel shall apply the standard of review described in
Article 1909 and the general legal principles that a court of the
importing Party otherwise would apply to a review of a
determination of the competent investigating authority.
4. A request for a panel shall be made in writing to the other
involved Party within 30 days following the date of publication
of the final determination in question in the official journal of
the importing Party. In the case of final determinations that
are not published in the official journal of the importing Party,
the importing Party shall immediately notify the other involved
Party of such final determination where it involves goods from
the other involved Party, and the other involved Party may
request a panel within 30 days of receipt of such notice. Where
the competent investigating authority of the importing Party has
imposed provisional measures in an investigation, the other
involved Party may provide notice of its intention to request a
panel under this Article, and the Parties shall begin to
establish a panel at that time. Failure to request a panel
within the time specified in this paragraph shall preclude review
by a panel.
5. An involved Party on its own initiative may request review
of a final determination by a panel and shall, upon request of a
person who would otherwise be entitled under the law of the
importing Party to commence domestic procedures for judicial
review of that final determination, request such review.
6. The panel shall conduct its review in accordance with the
procedures established by the Parties pursuant to paragraph 14.
Where both involved Parties request a panel to review a final
determination, a single panel shall review that determination.
7. The competent investigating authority that issued the final
determination in question shall have the right to appear and be
represented by counsel before the panel. Each Party shall
provide that other persons who, pursuant to the law of the
importing Party, otherwise would have had the right to appear and
be represented in a domestic judicial review proceeding
concerning the determination of the competent investigating
authority, shall have the right to appear and be represented by
counsel before the panel.
8. The panel may uphold a final determination, or remand it for
action not inconsistent with the panel's decision. Where the
panel remands a final determination, the panel shall establish as
brief a time as is reasonable for compliance with the remand,
taking into account the complexity of the factual and legal
issues involved and the nature of the panel's decision. In no
event shall the time permitted for compliance with a remand
exceed an amount of time equal to the maximum amount of time
(counted from the date of the filing of a petition, complaint or
application) permitted by statute for the competent investigating
authority in question to make a final determination in an
investigation. If review of the action taken by the competent
investigating authority on remand is needed, such review shall be
before the same panel, which shall normally issue a final
decision within 90 days of the date on which such remand action
is submitted to it.
9. The decision of a panel under this Article shall be binding
on the involved Parties with respect to the particular matter
between the Parties that is before the panel.
10. This Agreement shall not affect:
(a) the judicial review procedures of any Party; or
(b) cases appealed under those procedures,
with respect to determinations other than final determinations.
11. A final determination shall not be reviewed under any
judicial review procedures of the importing Party if an involved
Party requests a panel with respect to that determination within
the time limits set forth in this Article. No Party shall
provide in its domestic legislation for an appeal from a panel
decision to its domestic courts.
12. The provisions of this Article shall not apply where:
(a) neither involved Party seeks panel review of a final
determination;
(b) a revised final determination is issued as a direct
result of judicial review of the original final
determination by a court of the importing Party in
cases where neither involved Party sought panel review
of that original final determination; or
(c) a final determination is issued as a direct result of
judicial review that was commenced in a court of the
importing Party before the date of entry into force of
this Agreement.
13. Where within a reasonable time after the panel decision is
issued, an involved Party alleges that:
(a) (i) 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,
(ii) the panel seriously departed from a fundamental
rule of procedure, or
(iii) the panel manifestly exceeded its powers,
authority or jurisdiction set forth in this
Article, for example by failing to apply the
appropriate standard of review, and
(b) any of the actions set out in subparagraph (a) has
materially affected the panel's decision and threatens
the integrity of the binational panel review process,
that Party may avail itself of the extraordinary challenge
procedure set out in Annex 1904.13.
14. To implement the provisions of this Article, the Parties
shall adopt rules of procedure by January 1, 1994. Such rules
shall be based, where appropriate, upon judicial rules of
appellate procedure, and shall include rules concerning: the
content and service of requests for panels; a requirement that
the competent investigating authority transmit to the panel the
administrative record of the proceeding; the protection of
business proprietary, government classified, and other privileged
information (including sanctions against persons participating
before panels for improper release of such information);
participation by private persons; limitations on panel review to
errors alleged by the Parties or private persons; filing and
service; computation and extensions of time; the form and content
of briefs and other papers; pre- and post-hearing conferences;
motions; oral argument; requests for rehearing; and voluntary
terminations of panel reviews. The rules shall be designed to
result in final decisions within 315 days of the date on which a
request for a panel is made, and shall allow:
(a) 30 days for the filing of the complaint;
(b) 30 days for designation or certification of the
administrative record and its filing with the panel;
(c) 60 days for the complainant to file its brief;
(d) 60 days for the respondent to file its brief;
(e) 15 days for the filing of reply briefs;
(f) 15 to 30 days for the panel to convene and hear oral
argument; and
(g) 90 days for the panel to issue its written decision.
15. In order to achieve the objectives of this Article, the
Parties shall, with respect to goods of the other Parties, amend
their antidumping and countervailing duty statutes and
regulations, and other statutes and regulations to the extent
that they apply to the operation of the antidumping and
countervailing duty laws. In particular, without limiting the
generality of the foregoing:
(a) each Party shall amend its statutes or regulations to
ensure that existing procedures concerning the refund,
with interest, of antidumping or countervailing duties
operate to give effect to a final panel decision that a
refund is due;
(b) each Party shall amend its statutes or regulations to
ensure that its courts shall give full force and
effect, with respect to any person within its
jurisdiction, to all sanctions imposed pursuant to the
laws of the other Parties to enforce provisions of any
protective order or undertaking that such other Party
has promulgated or accepted in order to permit access
for purposes of panel review or of the extraordinary
challenge procedure to confidential, personal, business
proprietary or other privileged information;
(c) each Party shall amend its statutes or regulations to
ensure that
(i) domestic procedures for judicial review of a final
determination may not be commenced until the time
for requesting a panel under paragraph 4 has
expired, and
(ii) as a prerequisite to commencing domestic judicial
review procedures to review a final determination,
a Party or other person intending to commence such
procedures shall provide notice of such intent to
the Parties concerned and to other persons
entitled to commence such review procedures of the
same final determination no later than 10 days
prior to the latest date on which a panel may be
requested; and
(d) Each Party shall make the further amendments set forth
in Annex 1904.15(d).
Article 1905: Safeguarding the Panel Review System
1. Where a Party alleges that the application of another
Party's domestic law,
(a) has prevented the establishment of a panel requested by
the complaining Party;
(b) has prevented a panel requested by the complaining
Party from rendering a final decision;
(c) has prevented the implementation of the decision of a
panel requested by the complaining Party or denied it
binding force and effect with respect to the particular
matter that was before the panel; or
(d) has resulted in a failure to provide opportunity for
review of a final determination by a court or panel of
competent jurisdiction that is independent of the
competent investigating authorities, that examines the
basis for the investigating authorities' determination
and whether the investigating authority properly
applied domestic antidumping and countervailing duty
law in reaching the challenged determination, and that
employs the relevant standard of review identified in
Article 1911,
that Party may request in writing consultations with the other
Party regarding the allegations. The consultations shall begin
within 15 days of the date of the request.
2. If the matter has not been resolved within 45 days of the
request for consultations or such other period as the consulting
Parties may agree, the complaining Party may request the
establishment of a special committee.
3. Unless otherwise agreed by the disputing Parties, the
special committee shall be established within 15 days of a
request and perform its functions in a manner consistent with the
provisions of this Chapter.
4. The roster for special committees shall be that established
pursuant to Annex 1904.13.1.
5. The special committee shall comprise three members selected
in accordance with the procedures set out in Annex 1904.13.1.
6. The Parties shall establish rules of procedure in accordance
with the principles set out in Annex 1905.7.
7. If the special committee makes an affirmative finding in
respect of one of the grounds specified in paragraph 1, the
complaining Party and the Party complained against shall begin
consultations within 10 days, and shall seek to achieve a
mutually satisfactory solution within 60 days of the issuance of
the committee's report.
8. If, within the 60-day period, the Parties are unable to
reach a mutually satisfactory solution to the matter, or the
Party complained against has not demonstrated to the satisfaction
of the special committee that it has corrected the problem or
problems with respect to which the committee has made an
affirmative finding, the complaining Party may:
(a) suspend the operation of Article 1904 with respect to
the Party complained against; or
(b) suspend the application to the Party complained against
of such benefits under this Agreement as may be
appropriate under the circumstances.
9. In the event that a complaining Party suspends the operation
of Article 1904 with respect to the Party complained against, the
latter Party may reciprocally suspend the operation of Article
1904. If either Party decides to suspend the operation of
Article 1904, it shall provide written notice of such suspension
to the other Party.
10. The special committee may reconvene at any time, at the
request of the Party complained against, to determine:
(a) whether the suspension of benefits by the complaining
Party pursuant to subparagraph 8(b) is manifestly
excessive; or
(b) whether the Party complained against has corrected the
problem or problems with respect to which the committee
has made an affirmative finding.
The special committee shall, within 45 days of the request,
present a report to both Parties containing its determination.
Where the special committee determines that the Party complained
against has corrected the problem or problems, any suspension
effected by the complaining Party or the Party complained
against, or both, pursuant to paragraphs 8 or 9 shall be
terminated.
11. If the special committee makes an affirmative finding with
respect to one of the grounds specified in paragraph 1, then
effective as of the day following the date of issuance of the
special committee's decision:
(a) binational panel or extraordinary challenge committee
review under Article 1904 shall be stayed
(i) with respect to review of any final determination
of the complaining Party requested by the Party
complained against, if such review was requested
after the date on which consultations were
requested pursuant to paragraph 1 of this Article
and in no case later than 150 days prior to an
affirmative finding by the special committee, or
(ii) with respect to review of any final determination
of the Party complained against requested by the
complaining Party, at the request of the
complaining Party; and
(b) the time for requesting panel or committee review under
Article 1904 shall be tolled.
12. If either Party suspends the operation of Article 1904
pursuant to paragraph 8(a), the panel or committee review stayed
under paragraph 11(a) shall be terminated and the challenge to
the final determination shall be irrevocably referred to the
appropriate domestic court for decision, as provided below:
(a) with respect to review of any final determination of
the complaining Party requested by the Party complained
against, at the request of either Party, or of a party
to the panel review under Article 1904; or
(b) with respect to review of any final determination of
the Party complained against requested by the
complaining Party, at the request of the complaining
Party, or of a party of the complaining Party that is a
party to the panel review under Article 1904.
If either Party suspends the operation of Article 1904 pursuant
to paragraph 8(a), any time period tolled under Paragraph 11(b)
of this Article shall resume.
If such suspension does not become effective, panel or committee
review stayed under paragraph 11(a), and any time period tolled
under paragraph 8(b), shall resume.
Article 1906: Prospective Application
The provisions of this Chapter shall apply only
prospectively to:
(a) final determinations of a competent investigating
authority made after the date of entry into force of
this Agreement; and
(b) with respect to declaratory opinions under
Article 1903, amendments to antidumping or
countervailing duty statutes enacted after the date of
entry into force of this Agreement.
Article 1907: Consultations
1. The Parties shall consult annually, or on the request of any
Party, to consider any problems that may arise with respect to
the implementation or operation of this Chapter and recommend
solutions, where appropriate. The Parties shall each designate
one or more officials, including officials of the competent
investigating authorities, to be responsible for ensuring that
consultations occur, when required, so that the provisions of
this Chapter are carried out expeditiously.
2. The Parties further agree to consult on:
(a) the potential to develop more effective rules and
disciplines concerning the use of government subsidies;
and
(b) the potential for reliance on a substitute system of
rules for dealing with unfair transborder pricing
practices and government subsidization.
3. The competent investigating authorities of the Parties shall
consult annually or on the request of any Party and may submit
reports to the Commission, if appropriate. In the context of
these consultations, the Parties agree that it is desirable in
the administration of anti-dumping and countervailing duty laws
to:
(a) publish notice of initiation of investigations in the
importing country's official journal, setting forth the
nature of the proceeding, the legal authority under
which the proceeding is initiated, and a description of
the product at issue;
(b) provide notice of the times for submissions of
information and for decisions that the competent
investigating authorities are expressly required by
statute or regulations to make;
(c) provide explicit written notice and instructions as to
the information required from interested parties,
including foreign interests, and reasonable time to
respond to requests for information;
(d) accord reasonable access to information
(i) "reasonable access" in this context means access
during the course of the investigation, to the
extent practicable, so as to permit an opportunity
to present facts and arguments as set forth in
paragraph (e); when it is not practicable to
provide access to information during the
investigation in such time as to permit an
opportunity to present facts and arguments,
reasonable access shall mean in time to permit the
adversely affected party to make an informed
decision as to whether to seek judicial or panel
review,
(ii) "access to information" in this context means
access to representatives determined by the
competent investigating authority to be qualified
to have access to information received by that
competent investigating authority, including
access to confidential (business proprietary)
information, but does not include information of
such high degree of sensitivity that its release
would lead to substantial and irreversible harm to
the owner or which is required to be kept
confidential in accordance with domestic
legislation of a Party; any privileges arising
under domestic law of the importing Party relating
to communications between the competent
investigating authorities and a lawyer in the
employ of, or providing advice to, those
authorities may be maintained;
(e) provide the opportunity for interested parties,
including foreign interests, to present facts and
arguments, to the extent time permits, including an
opportunity to comment on the preliminary determination
of dumping or of subsidization;
(f) protect confidential (business proprietary)
information, received by the competent investigating
authority, to ensure that there is no disclosure except
to representatives determined by the competent
investigating authorities to be qualified;
(g) prepare administrative records, including
recommendations of official advisory bodies that may be
required to be kept, and any record of ex parte
meetings that may be required to be kept;
(h) provide disclosure of relevant information upon which
any preliminary or final determination of dumping or of
subsidization is based, within a reasonable time after
a request by interested parties, including foreign
interests. Such information shall include an
explanation of the calculation or the methodology used
to determine the margin of dumping or the amount of
subsidy;
(i) provide a statement of reasons concerning the final
determination of dumping or subsidization; and
(j) provide a statement of reasons for final determinations
concerning material injury to a domestic industry,
threat of material injury to a domestic industry or
material retardation of the establishment of such an
industry.
Inclusion of an item in paragraphs (a) through (j) is not
intended to serve as guidance to a binational panel reviewing a
final antidumping or countervailing duty determination pursuant
to Article 1904 in determining whether such determination was in
accordance with the antidumping or countervailing duty law of the
importing Party.
Article 1908: Special Secretariat Provisions
1. The Parties shall establish a section within the Secretariat
established pursuant to Article 2002 to facilitate the operation
of this Chapter and the work of panels or committees that may be
convened pursuant to this Chapter.
2. The secretaries of the Secretariat established pursuant to
Article 2002 shall act jointly to service all meetings of panels
or committees established pursuant to this Chapter. The
secretary of the Party in which a panel or committee proceeding
is held shall prepare a record thereof and shall preserve an
authentic copy of the same in the permanent offices. Such
secretary shall upon request provide to the secretary of any
other Party a copy of such portion of the record as is requested,
except that only public portions of the record shall be provided
to the secretary of the Party that is not an involved Party.
3. Each secretary shall receive and file all requests, briefs
and other papers properly presented to a panel or committee in
any proceeding before it that is instituted pursuant to this
Chapter and shall number in numerical order all requests for a
panel or committee. The number given to a request shall be the
file number for briefs and other papers relating to such request.
4. Each secretary shall forward to the secretary of the other
involved Party copies of all official letters, documents or other
papers received or filed with the Secretariat office pertaining
to any proceeding before a panel or committee, except for the
administrative record, which shall be handled in accordance with
paragraph 1. The secretary of an involved Party shall provide
upon request to the secretary of the Party that is not an
involved Party in the proceeding a copy of such public documents
as are requested.
5. The remuneration of panelists or committee members, their
travel and lodging expenses, and all general expenses of the
panels or committees shall be borne equally by the involved
Parties. Each panelist or committee member shall keep a record
and render a final account of the person's time and expenses, and
the panel or committee shall keep a record and render a final
account of all general expenses. The Commission shall establish
amounts of remuneration and expenses that will be paid to the
panelists and committee members.
Article 1909: Code of Conduct
The Parties shall, by the date of entry into force of this
Agreement, exchange letters establishing a code of conduct for
panelists and members of committees established pursuant to
Articles 1903, 1904 and 1905.
Article 1910: Miscellaneous
Upon request, the competent investigating authority of a
Party shall provide the other Party or Parties with copies of all
public information submitted to it for the purposes of an
investigation with respect to goods of that other Party or
Parties.
Article 1911: Definitions
For purposes of this Chapter:
administrative record means, unless otherwise agreed by the
Parties and the other persons appearing before a panel:
(a) all documentary or other information presented to or
obtained by the competent investigating authority in
the course of the administrative proceeding, including
any governmental memoranda pertaining to the case, and
including any record of ex parte meetings as may be
required to be kept;
(b) a copy of the final determination of the competent
investigating authority, including reasons for the
determination;
(c) all transcripts or records of conferences or hearings
before the competent investigating authority; and
(d) all notices published in the official journal of the
importing party in connection with the administrative
proceeding;
antidumping statute as referred to in Articles 1902 and 1903
means "antidumping statute" as defined in Annex 1911;
competent investigating authority means "competent investigating
authority" of a Party, as defined in Annex 1911;
countervailing duty statute as referred to in Articles 1902 and
1903 means "countervailing duty statute" as defined in Annex
1911;
domestic law for the purposes of Article 1905(1) means a Party's
constitution, statutes, regulations and judicial decisions to the
extent they are relevant to the antidumping and countervailing
duty laws;
final determination means "final determination" as defined in
Annex 1911;
foreign interests includes exporters or producers of the Party
whose goods are the subject of the proceeding or, in the case of
a countervailing duty proceeding, the government of the Party
whose goods are the subject of the proceeding;
general legal principles includes principles such as standing,
due process, rules of statutory construction, mootness and
exhaustion of administrative remedies;
importing Party means the Party that issued the final
determination;
involved Party means:
(a) the importing Party; or
(b) a Party whose goods are the subject of the final
determination;
remand means a referral back for a determination not inconsistent
with the panel or committee decision; and
standard of review means the standards set out in Annex 1911, as
may be amended from time to time by a Party.
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ANNEX 1901.2
Establishment of Binational Panels
1. Prior to the date of entry into force of this Agreement, the
Parties shall develop a roster of individuals to serve as
panelists in disputes under this Chapter. The roster shall
include sitting or retired judges to the fullest extent
practicable. The Parties shall consult in developing the roster,
which shall include at least 75 candidates. Each Party shall
select at least 25 candidates, and all candidates shall be
citizens of Canada, the United States or Mexico. Candidates
shall be of good character, high standing and repute, and shall
be chosen strictly on the basis of objectivity, reliability,
sound judgment and general familiarity with international trade
law. Candidates shall not be affiliated with a Party, and in no
event shall a candidate take instructions from a Party. Judges
shall not be considered to be affiliated with a Party. The
Parties shall maintain the roster, and may amend it, when
necessary, after consultations.
2. A majority of the panelists on each panel shall be lawyers
in good standing. Within 30 days of a request for a panel, each
involved Party shall appoint two panelists, in consultation with
the other involved Party. The involved Parties normally shall
appoint panelists from the roster. If a panelist is not selected
from the roster, the panelist shall be chosen in accordance with
and be subject to the criteria of paragraph 1. Each involved
Party shall have the right to exercise four peremptory
challenges, to be exercised simultaneously and in confidence,
disqualifying from appointment to the panel up to four candidates
proposed by the other involved Party. Peremptory challenges and
the selection of alternative panelists shall occur within 45 days
of the request for the panel. If an involved Party fails to
appoint its members to a panel within 30 days or if a panelist is
struck and no alternative panelist is selected within 45 days,
such panelist shall be selected by lot on the 31st or 46th day,
as the case may be, from that Party's candidates on the roster.
3. Within 55 days of the request for a panel, the involved
Parties shall agree on the selection of a fifth panelist. If the
involved Parties are unable to agree, they shall decide by lot
which of them shall select, by the 61st day, the fifth panelist
from the roster, excluding candidates eliminated by peremptory
challenges.
4. Upon appointment of the fifth panelist, the panelists shall
promptly appoint a chairman from among the lawyers on the panel
by majority vote of the panelists. If there is no majority vote,
the chairman shall be appointed by lot from among the lawyers on
the panel.
5. Decisions of the panel shall be by majority vote and based
upon the votes of all members of the panel. The panel shall
issue a written decision with reasons, together with any
dissenting or concurring opinions of panelists.
6. Panelists shall be subject to the code of conduct
established pursuant to Article 1909. If an involved Party
believes that a panelist is in violation of the code of conduct,
the involved Parties shall consult and if they agree, the
panelist shall be removed and a new panelist shall be selected in
accordance with the procedures of this Annex.
7. When a panel is convened pursuant to Article 1904 each
panelist shall be required to sign:
(a) an application for protective order for information
supplied by the United States or its persons covering
business proprietary and other privileged information;
(b) an undertaking for information supplied by Canada or
its persons covering confidential, personal, business
proprietary and other privileged information; or
(c) an undertaking for information supplied by Mexico or
its persons covering confidential, business
proprietary, and other privileged information.
8. Upon a panelist's acceptance of the obligations and terms of
an application for protective order or disclosure undertaking,
the importing Party shall grant access to the information covered
by such order or disclosure undertaking. Each Party shall
establish appropriate sanctions for violations of protective
orders or disclosure undertakings issued by or given to any
Party. Each Party shall enforce such sanctions with respect to
any person within its jurisdiction. Failure by a panelist to
sign a protective order or disclosure undertaking shall result in
disqualification of the panelist.
9. If a panelist becomes unable to fulfill panel duties or is
disqualified, proceedings of the panel shall be suspended pending
the selection of a substitute panelist in accordance with the
procedures of this Annex.
10. Subject to the code of conduct established pursuant to
Article 1909, and provided that it does not interfere with the
performance of the duties of such panelist, a panelist may engage
in other business during the term of the panel.
11. While acting as a panelist, a panelist may not appear as
counsel before another panel.
12. With the exception of violations of protective orders or
disclosure undertakings, signed pursuant to paragraph 7,
panelists shall be immune from suit and legal process relating to
acts performed by them in their official capacity.
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ANNEX 19O3.2
Panel Procedures Under Article 1903
1. The panel shall establish its own rules of procedure unless
the Parties otherwise agree prior to the establishment of that
panel. The procedures shall ensure a right to at least one
hearing before the panel, as well as the opportunity to provide
written submissions and rebuttal arguments. The proceedings of
the panel shall be confidential, unless the two Parties otherwise
agree. The panel shall base its decisions solely upon the
arguments and submissions of the two Parties.
2. Unless the Parties otherwise agree, the panel shall, within
90 days after its chairman is appointed, present to the two
Parties an initial written declaratory opinion containing
findings of fact and its determination pursuant to Article 1903.
3. If the findings of the panel are affirmative, the panel may
include in its report its recommendations as to the means by
which the amending statute could be brought into conformity with
the provisions of Article 1902(2)(d). In determining what, if
any, recommendations are appropriate, the panel shall consider
the extent to which the amending statute affects interests under
this Agreement. Individual panelists may provide separate
opinions on matters not unanimously agreed. The initial opinion
of the panel shall become the final declaratory opinion, unless a
Party to the dispute requests a reconsideration of the initial
opinion pursuant to paragraph 4.
4. Within 14 days of the issuance of the initial declaratory
opinion, a Party to the dispute disagreeing in whole or in part
with the opinion may present a written statement of its
objections and the reasons for those objections to the panel. In
such event, the panel shall request the views of both Parties and
shall reconsider its initial opinion. The panel shall conduct
any further examination that it deems appropriate, and shall
issue a final written opinion, together with dissenting or
concurring views of individual panelists, within 30 days of the
request for reconsideration.
5. Unless the Parties to the dispute otherwise agree, the final
declaratory opinion of the panel shall be made public, along with
any separate opinions of individual panelists and any written
views that either Party may wish to be published.
6. Unless the Parties to the dispute otherwise agree, meetings
and hearings of the panel shall take place at the office of the
amending Party's Section of the Secretariat.
ANNEX 1904.13
Extraordinary Challenge Procedure
1. The involved Parties shall establish an extraordinary
challenge committee, composed of three members, within 15 days of
a request pursuant to Article 1904(13). The members shall be
selected from a 15-person roster comprised of judges or former
judges of a federal judicial court of the United States or a
judicial court of superior jurisdiction of Canada, or a Federal
Judicial Court of Mexico. Each Party shall name five persons to
this roster. Each involved Party shall select one member from
this roster and the involved Partie's shall decide by lot which
of them shell select the third member from the roster.
2. The Parties shall establish by the date of entry into force
of the Agreement rules of procedure for committees. The rules
shall provide for a decision of a committee within 90 days of its
establishment.
3. Committee decisions shall be binding on the Parties with
respect to the particular matter between the Parties that was
before the panel. After examination of the legal and factual
analysis underlying the findings and conclusions of the panel's
decision in order to determine whether one of the grounds set out
in Article 1904(13) has been established, and upon finding that
one of those grounds has been established, the committee shall
vacate the original panel decision or remand it to the original
panel for action not inconsistent with the committee's decision;
if the grounds are not established, it shall deny the challenge
and, therefore, the original panel decision shall stand affirmed.
If the original decision is vacated, a new panel shall be
established pursuant to Annex 1901.2.
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ANNEX 1904.15(d)
Amendments to Domestic Laws
Part A - Schedule of Canada
1. Canada shall amend sections 56 and 58 of the Special Import
Measures Act, as amended, to allow the United States or Mexico or
a United States or a Mexican manufacturer, producer, or exporter,
without regard to payment of duties, to make a written request
for a re-determination; and section 59 to require the Deputy
Minister to make a ruling on a request for a redetermination
within one year of a request to a designated officer or other
customs officer;
2. Canada shall amend section 18.3(1) of the Federal Court Act,
as amended, to render that section inapplicable to the United
States and to Mexico; and shall provide in its statutes or
regulations that persons (including producers of goods subject to
an investigation) have standing to ask Canada to request a panel
review where such persons would be entitled to commence domestic
procedures for judicial review if the final determination were
reviewable by the Federal Court pursuant to section 18.1(4);
3. Canada shall amend the Special Import Measures Act, as
amended, and any other relevant provisions of law, to provide
that the following actions of the Deputy Minister shall be deemed
for the purposes of this Article to be final determinations
subject to judicial review:
(a) a determination by the Deputy Minister pursuant to
section 41;
(b) a re-determination by the Deputy Minister pursuant to
section 59; and
(c) a review by the Deputy Minister of an undertaking
pursuant to section 53(1).
4. Canada shall amend Part II of the Special Import Measures
Act, as amended, to provide for binational panel review
respecting goods of the Mexico and the United States;
5. Canada shall amend Part II of the Special Import Measures
Act, as amended, to provide for definitions related to this
Agreement, as may be required;
6. Canada shall amend Part II the Special Import Measures Act,
as amended, to permit the governments of Mexico and the United
States to request binational panel review of final
determinations;
7. Canada shall amend Part II of Special Import Measures Act,
as amended, to provide for the establishment of panels requested
to review final determinations in respect of goods of Mexico and
goods of the United States;
8. Canada shall amend Part II of Special Import Measures Act,
as amended, to provide for the conduct of review of a final
determination in accordance with Chapter XX of this Agreement;
9. Canada shall amend Part II of the Special Import Measures
Act, as amended, to provide for request and conduct of an
extraordinary challenge proceeding in accordance with Article
1904 of this Agreement;
10. Canada shall amend Part II of the Special Import Measures
Act, as amended, to provide for a code of conduct, immunity,
disclosure undertakings respecting confidential information and
remuneration for members of panels established pursuant to this
Agreement; and
11. Canada shall make such amendments as are necessary to
establish a Canadian Secretariat for this Agreement and generally
to facilitate the operation of Chapter 19 of this Agreement.
Part B - Schedule of Mexico
Mexico shall amend its antidumping and countervailing duty
statutes and regulations, and other statutes and regulations to
the extent that they apply to the operation of the antidumping
and countervailing duty laws, to provide the following:
1. elimination of the possibility of imposing duties within the
five day period after the acceptance of a petition; substitution
of the term Resoluci¢n de Inicio for Resoluci¢n Provisional and
the term Resoluci¢n Provisional for Resoluci¢n que revisa a la
Resoluci¢n Provisional;
2. full participation in the administrative process for
interested parties, including foreign interests, as well as the
right to administrative appeal and judicial review of final
determinations of investigations, reviews, product coverage or
other final decisions affecting them;
3. elimination of the possibility of imposing provisional
duties before the issuance of a preliminary determination;
4. the right to immediate access to review of final
determinations by binational panels, to interested parties,
including foreign interests, without the need to exhaust first
the administrative appeal;
5. explicit and adequate timetables for determinations of the
competent investigating authority and for the submission of
questionnaires, evidence and comments by interested parties,
including foreign interests, as well as an opportunity for them
to present facts and arguments in support of their positions
prior to any final determination, to the extent time permits,
including an opportunity to be adequately informed in a timely
manner of and to comment on all aspects of preliminary
determinations of dumping or subsidization;
6. written notice to interested parties, including foreign
interests, of any of the actions or resolutions rendered by the
competent investigating authority, including initiation of an
administrative review as well as its conclusion;
7. disclosure meetings by the competent investigating authority
with interested parties, including foreign interests, in
investigations and reviews, within seven calendar days after the
date of publication in the Diario Oficial de la Federacion of
preliminary and final determinations, to explain the margins of
dumping and the amount of subsidies calculations and to provide
them with copies of sample calculations and, if used, computer
programs;
8. timely access by eligible counsel of interested parties,
including foreign interests, during the course of the proceeding
(including disclosure meetings) and on appeal, either before a
national tribunal or a panel, to all information contained in the
administrative record of the proceeding, including confidential
information, excepting proprietary information of such a high
degree of sensitivity that its release would lead to substantial
and irreversible harm to the owner as well as government
classified information, subject to an undertaking for
confidentiality that strictly forbids use of the information for
personal benefit and its disclosure to persons who are not
authorized to receive such information; and for sanctions that
are specific to violations of undertakings in proceedings before
national tribunals or panels;
9. timely access by interested parties, including foreign
interests, during the course of the proceeding, to all non-
confidential information contained in the administrative record
and access to such information by interested parties or their
representatives in any proceeding after 90 days following the
issuance of the final determination;
10. a mechanism requiring that any person submitting documents
to the competent investigating authority shall simultaneously
serve on interested persons, including foreign interests, any
submissions after the complaint;
11. preparation of summaries of ex parte meetings held between
the competent investigating authority and any interested party
and the inclusion in the administrative record of such summaries,
which shall be made available to parties to the proceeding; if
such summaries contain business proprietary information, such
documents must be disclosed to a party's representative under an
undertaking to ensure confidentiality;
12. maintenance by the competent investigating authority of an
administrative record as defined in this Chapter and a
requirement that the final determination be based solely on the
administrative record;
13. informing interested parties, including foreign interests,
in writing of all data and information the administering
authority requires them to submit for the investigation, review,
product coverage proceeding, or other antidumping and
countervailing duty proceedings;
14. the right to an annual individual review on request by the
interested parties, including foreign interests, through which
they can obtain their own dumping margin or countervailing duty
rate, or can change the margin or rate they received in the
investigation or a previous review, reserving to the competent
investigating authority the ability to initiate a review, at any
time, on its own motion and requiring that the competent
investigating authority issue a notice of initiation within a
reasonable period of time after the request;
15. application of determinations issued as a result of
judicial, administrative, or panel review, to the extent they are
relevant to interested parties, including foreign interests, in
addition to the plaintiff, so that all interested parties will
benefit;
16. issuance of binding decisions by the competent investigating
authority if an interested party, including a foreign interest,
seeks clarification outside the context of an antidumping or
countervailing duty investigation or review as to whether a
particular product is covered by an antidumping or countervailing
duty order;
17. a detailed statement of reasons and legal basis concerning
final determinations in a manner sufficient to permit interested
parties, including foreign interests, to make an informed
decision as to whether to seek judicial or panel review,
including an explanation of methodological or policy issues
raised in the calculation of dumping or subsidization;
18. written notice to interested parties, including foreign
interests, and publication in the Diario Oficial de la Federacion
of initiation of investigations setting forth the nature of the
proceeding, the legal authority under which the proceeding is
initiated, and a description of the product at issue;
19. documentation in writing of all advisory bodies' decisions
or recommendations, including the basis for the decision, and
release of such written decision to parties to the proceeding;
all decisions or recommendations of any advisory body shall be
placed in the administrative record and made available to parties
to the proceeding; and
20. a standard of review to be applied by binational panels as
defined in Article 1911.
Part C - Schedule of the United States
1. The United States shall amend section 301 of the Customs
Courts Act of 1980, as amended, and any other relevant provisions
of law, to eliminate the authority to issue declaratory judgments
in any civil action involving an antidumping or countervailing
duty proceeding regarding a class or kind of Canadian or Mexican
merchandise;
2. The United States shall amend section 405(a) of the United
States-Canada Free-Trade Agreement Implementation Act of 1988, 19
U.S.C. section 2112 note, to provide that the interagency group
established under section 242 of the Trade Expansion Act of 1962
shall prepare a list of individuals qualified to serve as members
of binational panels, extraordinary challenge committees, and
special committees convened under chapter 19 of this Agreement;
3. The United States shall amend section 405(b) of the United
States-Canada Free-Trade Agreement Implementation Act of 1988, 19
U.S.C. section 2112 note, to provide that panelists selected to
serve on panels or committees convened pursuant to chapter XX of
this Agreement, and individuals designated to assist such
appointed individuals, shall not be considered employees of the
United States;
4. The United States shall amend section 405(c) of the United
States-Canada Free-Trade Agreement Implementation Act of 1988, 19
U.S.C. section 2112 note, to provide that panelists selected to
serve on panels or committees convened pursuant to chapter XX of
this Agreement, and individuals designated to assist the
individuals serving on such panels or committees, shall be immune
from suit and legal process relating to acts performed by such
individuals in their official capacity and within the scope of
their functions as such panelists or committee members, except
with respect to the violation of protective orders described in
section 777f(d)(3) of the Tariff Act of 1930;
5. The United States shall amend section 405(d) of the United
States-Canada Free-Trade Agreement Implementation Act of 1988, 19
U.S.C. section 2112 note, to establish a United States
Secretariat to facilitate, inter alia, the operation of chapter
XX of this Agreement and the work of the binational panels,
extraordinary challenge committees, and special committees
convened under that chapter;
6. The United States shall amend section 407 of the United
States-Canada Free-Trade Agreement Implementation Act of 1988, 19
U.S.C. section 2112 note, to provide on that an extraordinary
challenge committee convened pursuant to chapter XX of this
Agreement shall have authority to obtain information in the event
of an allegation that a member of a binational panel was guilty
of gross misconduct, bias, or a serious conflict of interest, or
otherwise materially violated the rules of conduct, and for the
committee to summon the attendance of witnesses, order the taking
of depositions, and obtain the assistance of any district or
territorial court of the United States in aid of the committee's
investigation;
7. The United States shall amend section 408 of the United
States-Canada Free-Trade Agreement Implementation Act of 1988, 19
U.S.C. section 2112 note, to provide that, in the case of a final
determination of a competent investigating authority of Mexico,
as well as Canada, the filing with the United States Secretary of
a request for binational panel review by a person described in
Article 1904.5 of this Agreement shall be deemed, upon receipt of
the request by the Secretary, to be a request for binational
panel review within the meaning of Article 1904.4 of that
Agreement;
8. The United States shall amend section 516A of the Tariff Act
of 1930 to provide that judicial review of antidumping or
countervailing duty cases regarding Mexican, as well as Canadian,
merchandise shall not be commenced in the Court of International
Trade if binational panel review is requested;
9. The United States shall amend section 516A(a) of the Tariff
Act of 1930 to provide that the time limits for commencing an
action in the Court of International Trade with regard to
antidumping or countervailing duty proceedings involving Mexican
or Canadian merchandise shall not begin to run until the 31st day
after the date of publication in the Federal Register of notice
of the final determination or the antidumping duty order;
10. The United States shall amend section 516A(g) of the Tariff
Act of 1930 to provide, in accordance with the terms of this
Agreement, for binational panel review of antidumping and
countervailing duty cases involving Mexican or Canadian
merchandise. Such amendment shall provide that if binational
panel review is requested such review will be exclusive;
11. The United States shall amend section 516A(g) of the Tariff
Act of 1930 to provide that the competent investigating authority
shall, within the period specified by any panel formed to review
a final determination regarding Mexican or Canadian merchandise,
take action not inconsistent with the decision of the panel or
committee;
12. The United States shall amend section 777 of the Tariff Act
of 1930 to provide for the disclosure to authorized persons under
protective order of proprietary information in the administrative
record if binational panel review of a final determination
regarding Mexican or Canadian merchandise is requested; and
13. The United States shall amend section 777 of the Tariff Act
of 1930 to provide for the imposition of sanctions on any person
who the competent investigating authority finds to have violated
a protective order issued by the competent investigating
authority of the United States or disclosure undertakings entered
into with an authorized agency of Mexico or with a competent
investigating authority of Canada to protect proprietary material
during binational panel review.
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ANNEX 1905.7
Special Committee Procedures
1. The Parties shall establish rules of procedure by the date
of entry into force of this Agreement in accordance with the
following principles:
(a) the procedures shall assure a right to at least one
hearing before the special committee as well as the
opportunity to provide initial and rebuttal written
submissions;
(b) the procedures shall assure that the special committee
shall prepare an initial report typically within
60 days of the appointment of the last member, and
shall afford the Parties 14 days to comment on that
report prior to issuing a final report 30 days after
presentation of the initial report;
(c) the special committee's hearings, deliberations, and
initial report, and all written submissions to and
communications with the special committee shall be
confidential;
(d) unless the parties to the dispute otherwise agree, the
decision of the special committee shall be published 10
days after it is transmitted to the disputing Parties,
along with any separate opinions of individual members
and any written views that either Party may wish to be
published; and
(e) unless the Parties to the dispute otherwise agree,
meetings and hearings of the special committee shall
take place at the office of the section of the
Secretariat of the Party complained against.
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ANNEX 1911
Country-Specific Definitions
For purposes of this Chapter:
antidumping statute means:
(a) in the case of Canada, the relevant provisions of the
Special Import Measures Act, as amended, and any
successor statutes;
(b) in the case of the United States, the relevant
provisions of Title VII of the Tariff Act of 1930, as
amended, and any successor statutes;
(c) in the case of Mexico, the relevant provisions of the
Ley Reglamentaria del Art¡culo 131 de la Constituci¢n
Pol¡tica de los Estados Unidos Mexicanos en Materia de
Comercio Exterior Implementing Article 131 of the
Constitution of the United Mexican States, as amended,
and any successor statutes; and
(d) the provisions of any other statute that provides for
judicial review of final determinations under
subparagraph (a), (b) or (c), or indicates the standard
of review to be applied to such determinations.
competent investigating authority means:
(a) in the case of Canada;
(i) the Canadian International Trade Tribunal, or its
successor, or
(ii) the Deputy Minister of National Revenue for
Customs and Excise as defined in the Special
Import Measures Act, or the Deputy Minister's
successor;
(b) in the case of the United States;
(i) the International Trade Administration of the
United States Department of Commerce, or its
successor, or
(ii) the United States International Trade Commission,
or its successor; and
(c) in the case of Mexico, the designated authority within
the Secretar¡a de Comercio y Fomento Industrial, or its
successor.
countervailing duty statute means:
(a) in the case of Canada, the relevant provisions of the
Special Import Measures Act, as amended, and any
successor statutes;
(b) in the case of the United States, section 303 and the
relevant provisions of Title VII of the Tariff Act of
1930, as amended, and any successor statutes;
(c) in the case of Mexico, the relevant provisions of the
Ley Reglamentaria del Art¡culo 131 de la Constituci¢n
Pol¡tica de los Estados Unidos Mexicanos en Materia de
Comercio Exterior, as amended, and any successor
statutes; and
(d) the provisions of any other statute that provides for
judicial review of final determinations under
subparagraph (a), (b) or (c), or indicates the standard
of review to be applied to such determinations.
final determination means:
(a) in the case of Canada,
(i) an order or finding of the Canadian International
Trade Tribunal under subsection 43(1) of the
Special Import Measures Act,
(ii) an order by the Canadian International Trade
Tribunal under subsection 76(4) of the Special
Import Measures Act, continuing an order or
finding made under subsection 43(1) of the Act
with or without amendment,
(iii) a determination by the Deputy Minister of
National Revenue for Customs and Excise
pursuant to section 41 of the Special Import
Measures Act,
(iv) a re-determination by the Deputy Minister pursuant
to section 59 of the Special Import Measures Act,
(v) a decision by the Canadian International Trade
Tribunal pursuant to subsection 76(3) of the
Special Import Measures Act not to initiate a
review,
(vi) a reconsideration by the Canadian International
Trade Tribunal pursuant to subsection 91(3) of the
Special Import Measures Act, and
(vii) a review by the Deputy Minister of an
undertaking pursuant to section 53(1) of the
Special Import Measures Act;
(b) in the case of the United States,
(i) a final affirmative determination by the
International Trade Administration of the United
States Department of Commerce or by the United
States International Trade Commission under
section 705 or 735 of the Tariff Act of 1930, as
amended, including any negative part of such a
determination,
(ii) a final negative determination by the
International Trade Administration of the United
States Department of Commerce or by the United
States International Trade Commission under
section 705 or 735 of the Tariff Act of 1930, as
amended, including any affirmative part of such a
determination,
(iii) a final determination, other than a
determination in (iv), under section 751 of
the Tariff Act of 1930, as amended,
(iv) a determination by the United States International
Trade Commission under section 751(b) of the
Tariff Act of 1930, as amended, not to review a
determination based upon changed circumstances,
and
(v) a final determination by the International Trade
Administration of the United States Department of
Commerce as to whether a particular type of
merchandise is within the class or kind of
merchandise described in an existing finding of
dumping or antidumping or countervailing duty
order; and
(c) in the case of the Mexico,
(i) a final resolution regarding anti-dumping or
countervailing duties investigations by the
Secretar¡a de Comercio y Fomento Industrial,
pursuant to Article 13 of the Ley Reglamentaria
del Art¡culo 131 de la Constituci¢n Pol¡tica de
los Estados Unidos Mexicanos en Materia de
Comercio Exterior, as amended,
(ii) a final resolution regarding an annual
administrative review of anti-dumping or
countervailing duties by the Secretar¡a de
Comercio y Fomento Industrial, as described in
Article 1904.15(q)(xiv), and
(iii) a final resolution by the Secretaria de
Comercio y Fomento Industrial as to whether a
particular type of merchandise is within the
class or kind of merchandise described in an
existing antidumping or countervailing duty
resolution.
standard of review means:
(a) in the case of Canada, the grounds set forth in section
18.1(4) of the Federal Court Act with respect to all
final determinations;
(b) in the case of the United States,
(i) the standard set forth in section 516A(b)(l)(B) of
the Tariff Act of 1930, as amended, with the
exception of a determination referred to in (ii),
and
(ii) the standard set forth in section 516A(b)(l)(A) of
the Tariff Act of 1930, as amended, with respect
to a determination by the United States
International Trade Commission not to initiate a
review pursuant to section 751(b) of the Tariff
Act of 1930, as amended; and
(c) in the case of the Mexico, the standard set forth in
Article 238 of the C¢digo Fiscal de la Federaci¢n, or
any successor statutes, based solely on the
administrative record.
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