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Canada-United States-Mexico Agreement (CUSMA) – Chapter 10 – Trade remedies

Section A: Safeguards

Article 10.1: Definitions

For the purposes of this Section:

competent investigating authority means:

Article 10.2: Rights and Obligations

1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Safeguards Agreement except those regarding compensation or retaliation and exclusion from an action to the extent that such rights or obligations are inconsistent with this Article. Any Party taking an emergency action under Article XIX and the Safeguards Agreement shall exclude imports of a good from each other Party from the action unless:

2. In determining whether:

3. A Party taking such action, from which a good from another Party or Parties is initially excluded pursuant to paragraph 1, shall have the right subsequently to include that good from the other Party or Parties in the action in the event that the competent investigating authority determines that a surge in imports of such good from the other Party or Parties undermines the effectiveness of the action.

4. A Party shall, without delay, deliver written notice to the other Parties of the institution of a proceeding that may result in emergency action under paragraph 1 or 3.

5. No Party may impose restrictions on a good in an action under paragraph 1 or 3:

6. The Party taking an action pursuant to this Article shall provide to the Party or Parties against whose good the action is taken mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the action. If the Parties concerned are unable to agree on compensation, the Party against whose good the action is taken may take action having trade effects substantially equivalent to the action taken under paragraph 1 or 3.

Article 10.3: Administration of Emergency Action Proceedings

Each Party shall entrust determinations of serious injury, or threat thereof, in emergency action proceedings to a competent investigating authority, subject to review by judicial or administrative tribunals, to the extent provided by domestic law. Negative injury determinations shall not be subject to modification, except by such review. The competent investigating authority empowered under domestic law to conduct such proceedings should be provided with the necessary resources to enable it to fulfill its duties.

Section B: Antidumping and Countervailing Duties

Article 10. 4: Definitions

For purposes of this Section and Annex 10-A (Practices Relating to Antidumping and Countervailing Duty Proceedings):

confidential information means information that is provided to an investigating authority on a confidential basis and that is by its nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), whether in its original form or in a form other than the one in which it was originally provided;

interested partyFootnote 1 means:  

investigating authority means any authority of a Party that conducts antidumping or countervailing duty proceedings;

proceeding means:

responding party means:

segment of a proceeding means for Canada and the United States,Footnote 2 an antidumping or countervailing duty investigation, review, or other relevant action conducted by an investigating authority. For Canada, relevant actions conducted by an investigating authority do not cover duty assessment and related procedures.

Article 10. 5: Rights and Obligations

1. Each Party retains its rights and obligations under Article VI of GATT 1994, the AD Agreement, and the SCM Agreement.

2. Except as provided in Annex 10-A (Practices Relating to Antidumping and Countervailing Duty Proceedings), nothing in this Agreement shall be construed to confer any rights or impose any obligations on the Parties with respect to antidumping or countervailing duty proceedings or measures taken pursuant to Article VI of GATT 1994, the AD Agreement, or the SCM Agreement.

3. No Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Section or Annex 10-A (Practices Relating to Antidumping and Countervailing Duty Proceedings).

Section C: Cooperation on Preventing Duty Evasion of Trade Remedy Laws

Article 10. 6: General

1. The Parties recognize their shared concerns regarding duty evasionFootnote 3 of antidumping, countervailing, and safeguard duties, and the importance of cooperation, including through information sharing, to combat duty evasion.

2. The Parties agree to strengthen and expand their customs and trade enforcement efforts in matters related to duty evasion, and to strengthen their cooperation as set out in the Article 10. 7 (Duty Evasion Cooperation).

Article 10. 7: Duty Evasion Cooperation

1. Each Party shall, in accordance with its law cooperate with the other Parties for the purposes of enforcing or assisting in the enforcement of their respective measures concerning duty evasion.

2. Each Party shall, subject to its law, share customs information with the other Parties pertaining to imports, exports, and transit transactions, to help enable the Parties to combat duty evasion and conduct joint or coordinated analysis and investigations of suspected duty evasion. In addition, each Party shall maintain a mechanism through which it can share information with the other Parties regarding entries that may involve evasion of antidumping, countervailing, or safeguard duties, including the information described in paragraph 3. The information referred to in this paragraph may be trader-specific or it may include an industry sector or group of traders.

3. Each Party shall, subject to its law and on the request of another Party, provide the requesting Party with information collected in connection with the imports, exports and transit, and other relevant information that it has or can reasonably obtain, that will help enable the requesting Party to determine whether an entry into its territory is subject to antidumping, countervailing, or safeguard duties imposed by the requesting Party.Footnote 4

4. A request for information described in paragraph 3 shall be made in writing, by the customs administration of the requesting Party to the customs authority of the requested Party, by electronic means or any other acceptable method, and shall include sufficient information for the requested Party to respond.

5. A Party may request in writing that another Party conduct a duty evasion verificationFootnote 5 in the requested Party’s territory for the purposes of obtaining information, including documents, from an exporter or producer, to enable the requesting Party to determine whether a particular entry into the requesting Party’s territory is subject to antidumping, countervailing, or safeguard duties imposed by the requesting Party. The requested Party shall respond to the request promptly and in any case no later than 30 days after the date it receives the request. The response must include whether it will conduct the duty evasion verification. If the Party does not intend to conduct the duty evasion verification, the response must indicate the basis for refusal. If a Party will conduct the duty evasion verification, the response must indicate the intended timing and other relevant details.

6. If the requested Party conducts a duty evasion verification under paragraph 5 it shall provide the requesting Party promptly on completing the duty evasion verification a report containing the relevant information including data and documents, obtained during its duty evasion verification.

7. Regardless of whether a request to conduct a verification was made under paragraph 5, a duty evasion verification may be conducted in the relevant facilities located in the territory of the requested Party, as a result of a request. The requested Party normally shall grant the other Party access to its territory to participate in the duty evasion verification, absent extraordinary circumstances, provided that:

8. Each Party shall maintain procedures that permit the sharing of confidential information with the other Parties, as a result of a request under paragraph 3 or a duty evasion verification report under paragraph 6, for the limited purpose of determining if duty evasion exists. If a Party, or a verified party, provides information to another Party in accordance with this Section and designates the information as confidential or is confidential under the receiving Party’s law, such receiving Party shall keep the information confidential in accordance with its law. If the receiving Party has not kept the information confidential in accordance with its law, a Party may decline to provide information requested by another Party in future requests for confidential information. The receiving Party may use or disclose confidential information received from the other Party under this Section but only for the purposes of administration or enforcement of its customs laws or as otherwise provided under the Party’s law, including in an administrative, quasi-judicial, or judicial proceeding.

Section D: Review and Dispute Settlement in Antidumping and Countervailing Duty Matters

Article 10.8: Definitions

For purposes of this Section and Annex 10-B.1 (Establishment of Binational Panels), Annex 10-B.2 (Panel Procedures under Article 10.11), Annex 10-B.3 (Extraordinary Challenge Procedure), Annex 10-B.4 (Special Committee Procedures), and Annex 10-B.5 (Amendments to Domestic Laws):

administrative record means, unless otherwise agreed by the Parties and the other persons appearing before a panel:

antidumping statute means:

competent investigating authority means:

countervailing duty statute means:

domestic law for purposes of Article 10.13.1 (Safeguarding the Panel Review System) 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:

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;

goods of a Party means domestic products as these are understood in the GATT 1994;

importing Party means the Party that issued the final determination;

interested parties includes foreign interests;

involved Party means:

remand means a referral back for a determination not inconsistent with the panel or committee decision; and

standard of review means the following standards, as may be amended from time to time by the relevant Party:

Article 10.9: General Provisions

1. Article 10.12 (Review of Final Antidumping Law and Countervailing Duty Law) applies 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 purposes of Article 10.11 (Review of Statutory Amendments) and Article 10.12 (Review of Final Antidumping Law and Countervailing Duty Law), panels shall be established in accordance with the provisions of Annex 10-B.1 (Establishment of Binational Panels).

3. Except for Article 34.5 (Entry into Force), no provision of any other Chapter of this Agreement shall be construed as imposing obligations on a Party with respect to the Party's antidumping law or countervailing duty law.

Article 10.10:  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:

Article 10.11:  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:

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 10-B.2 (Panel Procedures under Article 10.11).

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:

Article 10.12: Review of Final Antidumping and Countervailing Duty Determinations

1. As provided in this Article, each Party 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 on the administrative record, a final antidumping or countervailing duty determination of a competent investigating authority of an importing 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 and made a part of this Section.

3. The panel shall apply the standard of review set out in Article 10.8 (Definitions) 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, on 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:

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 out in this Article. No Party may provide in its domestic legislation for an appeal from a panel decision to its domestic courts.

12. This Article shall not apply where:

13. Where, within a reasonable time after the panel decision is issued, an involved Party alleges that:

that Party may avail itself of the extraordinary challenge procedure set out in Annex 10-B.3 (Extraordinary Challenge Procedure).

14. For purposes of this Article, the Parties shall adopt or maintain rules of procedure based, where appropriate, on 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:

15. In order to achieve the objectives of this Article, the Parties shall maintain or amend their antidumping and countervailing duty statutes and regulations with respect to antidumping or countervailing duty proceedings involving goods of the other Parties, 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, each Party shall:

Article 10.13: Safeguarding the Panel Review System

1. Where a Party alleges that the application of another Party’s domestic law:

the 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 this Section.

4. The roster for special committees shall be that established under Annex 10-B. 3 (Extraordinary Challenge Procedure).

5. The special committee shall comprise three members selected in accordance with the procedures set out in Annex 10-B.3 (Extraordinary Challenge Procedure).

6. The Parties shall establish or maintain rules of procedure in accordance with the principles set out in Annex 10-B. 4 (Special Committee Procedures).

7. Where the special committee makes an affirmative finding with respect to one of the grounds specified in paragraph 1, the complaining Party and the Party complained against shall begin consultations within 10 days thereafter 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 suspend:

If the complaining Party decides to take action under this paragraph, it shall do so within 30 days after the end of the 60-day consultation period.

9. In the event that a complaining Party suspends the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) with respect to the Party complained against, the latter Party may reciprocally suspend the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) within 30 days after the suspension of the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) by the complaining Party. If either Party decides to suspend the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations), it shall provide written notice of such suspension to the other Party.

10. On the request of the Party complained against, the special committee shall reconvene to determine whether:

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 paragraph 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 report:

12. If either Party suspends the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) 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:

13. If either Party suspends the operation of Article 10.12 (Review of Antidumping Law and Countervailing Duty Law) pursuant to paragraph 8(a), any running of time suspended under paragraph 11(b) shall resume.

14. If the suspension of the operation of Article 10.12 (Review of Antidumping Law and Countervailing Duty Law) does not become effective, panel or committee review stayed under paragraph 11(a), and any running of time suspended under paragraph 11(b), shall resume.

15. If the complaining Party suspends the application to the Party complained against of such benefits under the Agreement as may be appropriate under the circumstances pursuant to paragraph 8(b), panel or committee review stayed under paragraph 11(a), and any running of time suspended under paragraph 11(b), shall resume.

16. Each Party shall provide in its domestic legislation that, in the event of an affirmative finding by the special committee, the time for requesting judicial review of a final antidumping or countervailing duty determination shall not run unless and until the Parties concerned have negotiated a mutually satisfactory solution under paragraph 7, have suspended the operation of Article 10.12 (Review of Antidumping Law and Countervailing Duty Law) or the application of other benefits under paragraph 8.

Article 10.14: Prospective Application

This Section shall apply only prospectively to:

Article 10.15: 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 Section 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 Section are carried out expeditiously.

2. The Parties further agree to consult on:

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, where appropriate. In the context of these consultations, the Parties agree that it is desirable in the administration of antidumping and countervailing duty laws to:

Inclusion of an item in subparagraphs (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 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) in determining whether such determination was in accordance with the antidumping or countervailing duty law of the importing Party.

Article 10.16:  Special Secretariat Provisions

1. Each Party shall maintain a Secretariat to facilitate the operation of this Section, including the work of panels or committees that may be convened pursuant to this Section.

2. The Secretaries of the Secretariat shall act jointly to provide administrative assistance to all panels or committees established pursuant to this Section. The Secretary for the Section 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 that Party’s Section office. Such Secretary shall, on request, provide to the Secretary for the Section of another 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 for the Section of any 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 Section 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. The Secretary for the Section of the Party in which a panel or committee proceeding is held shall forward to the Secretary for the Section of the other involved Party copies of all official letters, documents or other papers received or filed with that Party’s Section office pertaining to any proceeding before a panel or committee, except for the administrative record, which shall be handled in accordance with paragraph 2. The Secretary for the Section of an involved Party shall provide on request to the Secretary for the Section of a Party that is not an involved Party in the proceeding a copy of such public documents as are requested.

Article 10.17: Code of Conduct

The Parties shall exchange letters establishing or maintaining a code of conduct for panelists and members of committees established pursuant to Article 10.11 (Review of Statutory Amendments), Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations), and Article 10.13 (Safeguarding the Panel Review System).

Article 10.18: Miscellaneous

On request of another Party, the competent investigating authority of a Party shall provide to the other Party copies of all public information submitted to it for purposes of an antidumping or countervailing duty investigation with respect to goods of that other Party.

ANNEX 10-A

PRACTICES RELATING TO ANTIDUMPING AND COUNTERVAILING DUTY PROCEEDINGS

The Parties recognize the right to apply trade remedy measures consistent with Article VI of GATT 1994, the AD Agreement, and the SCM Agreement, and the importance of promoting transparency in antidumping and countervailing duty proceedings and of ensuring the opportunity of all interested parties to participate meaningfully in such proceedings.Footnote 7

1. To facilitate access to information relevant to antidumping and countervailing duty proceedings, a Party shall publish online the following:

In publishing information online, a Party shall endeavor to minimize the number of webpages on which it provides such information. A Party shall also endeavor to publish online other information relevant to antidumping and countervailing duty proceedings such as manuals, guidelines, templates, and other reference and orientation materials, where applicable.Footnote 8

2. For each antidumping and countervailing duty proceeding which involves imports of another Party, initiatedFootnote 9 after the date of entry into force of this Agreement, each investigating authority of a Party shall maintain and make available without charge online for all interested parties:Footnote 10

If technical constraints prevent online access to a document that is part of its administrative record for each segment of a proceeding, or proceeding in the case of Mexico, the investigating authority may instead make the document available for all interested parties, pursuant to the domestic legislation of the Party, by means of physical inspection during the investigating authority’s normal business hours.

3. Each investigating authority of a Party shall maintain or establish a system through which interested parties participating in an antidumping or countervailing duty segment of a proceeding, or proceeding in the case of Mexico, shall submit documents electronically in such a segment of a proceeding, or proceeding in the case of Mexico. Notwithstanding the previous sentence, each investigating authority of a Party may require manual submission of a petition, or of other documents in exceptional circumstances, including where technical constraints may impact the ability of interested parties to submit certain documents electronically.

4. For the purposes of paragraphs 2 and 3, the online access point and the system for submitting documents electronically shall be established or maintained beginning no later than five years after the date of entry into force of this Agreement.

5. On receipt of a formally filed antidumping or countervailing duty application with respect to imports of another Party, and normally no later than seven days prior to the date on which the investigating authority issues a determination on the application, the Party shall notify the other Party or Parties that it received the application.Footnote 12  

6. In any segment of a proceeding, or proceeding in the case of Mexico, in which an investigating authority of a Party determines to conduct an in-person verification of information provided by a responding party and pertinent to the calculation of an antidumping duty margin or the level of a countervailable subsidy, the investigating authority shall promptly notify the responding party of its intent to do so, and normally shall:

7. An investigating authority of a Party shall disclose, among other things,for each interested party for whom the investigating authority has determined an individual rate of duty, the calculations used to determine the rate of dumping or countervailable subsidization and, if different, the calculations used to determine the rate of duty to be applied to imports of the interested party. The disclosure and explanation shall be in sufficient detail so as to permit the interested party to reproduce the calculations without undue difficulty. Such disclosure shall include, whether in electronic format, such as a computer program or spreadsheet, or in any other medium, a detailed explanation of the information the investigating authority used, the sources of that information, and any adjustments it made to the information when used in the calculations.Footnote 13 The investigating authority shall provide interested parties adequate opportunity to respond to the disclosure.

8. On receipt of a formally filed antidumping or countervailing duty application by the investigating authority of a Party against imports of goods from a non-Party, the investigating authorities of the other Parties may consider the information and data in the application and make a determination as to whether self-initiation of an antidumping or countervailing duty investigation or other relevant action is warranted.

9. To the extent feasible, Parties may exchange non-Parties’ subsidy information and consider whether self-initiation of a countervailing duty investigation or other relevant action is warranted.

ANNEX 10-B.1

ESTABLISHMENT OF BINATIONAL PANELS

1. On the date of entry into force of this Agreement, the Parties shall establish or maintain a roster of individuals to serve as panelists in disputes under Section D. The roster shall include judges or former 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, Mexico, or the United States. 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. 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. On appointment of the fifth panelist, the panelists shall promptly appoint a chair from among the lawyers on the panel by majority vote of the panelists. If there is no majority vote, the chair shall be appointed by lot from among the lawyers on the panel.

5. Decisions of the panel shall be by majority vote and based on 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 10.17 (Code of Conduct). 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 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) each panelist shall be required to sign:

8. On 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 an application for 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 10.17 (Code of Conduct), 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.

ANNEX 10-B.2  

PANEL PROCEDURES UNDER ARTICLE 10.11

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 on the arguments and submissions of the two Parties.

2. Unless the Parties to the dispute otherwise agree, the panel shall, within 90 days after its chair is appointed, present to the two Parties an initial written declaratory opinion containing findings of fact and its determination pursuant to Article 10.11 (Review of Statutory Amendments).

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 10.10(2)(d) (Retention of Domestic Antidumping Law and Countervailing Duty Law). 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 10-B.3

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 10.12.13 (Review of Final Antidumping and Countervailing Duty Determinations). 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 or quasi-judicial tribunal of Mexico. Each Party shall name five persons to this roster. Each involved Party shall select one member from this roster and the involved Parties shall decide by lot which of them shall select the third member from the roster.

2. The Parties shall establish or maintain 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 10.12.13 (Review of Final Antidumping and Countervailing Duty Determinations) has been established, and on 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 10-B.1 (Establishment of Binational Panels).

ANNEX 10-B.4

SPECIAL COMMITTEE PROCEDURES

By the date of entry into force of this Agreement the Parties shall establish or maintain rules of procedure in accordance with the following principles:

ANNEX 10-B.5

AMENDMENTS TO DOMESTIC LAWS

Schedule of Canada

1. Canada shall amend sections 56 and 58 of the Special Import Measures Act, as amended, to allow the United States with respect to goods of the United States or Mexico with respect to goods of 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 redetermination; and section 59 to require the President 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 President shall be deemed for the purposes of Section D to be final determinations subject to judicial review:

4. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for binational panel review respecting goods of 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 Section D, as may be required.

6. Canada shall amend Part II of 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 respecting goods of Mexico and the United States.

7. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for the establishment of binational panels requested to review final determinations in respect of goods of Mexico and the United States.

8. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide that binational panel review of a final determination shall be conducted in accordance with this Chapter.

9. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide that an extraordinary challenge proceeding shall be requested and conducted in accordance with Article10.12 (Review of Final Antidumping and Countervailing Duty Determinations) and Annex 10-B.3 (Extraordinary Challenge Procedure).

10. Canada shall amend Part II of the Special Import Measures Act, as amended, to provide for a code of conduct, immunity for anything done or omitted to be done during the course of panel proceedings, the signing of and compliance with disclosure undertakings respecting confidential information, and remuneration for members of panels and committees established pursuant to this Chapter.

11. Canada shall make such amendments as are necessary to establish a Canadian Secretariat for this Agreement and generally to facilitate the operation of Section D and the work of the binational panels, extraordinary challenge committees and special committees convened under this Chapter.

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:

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, 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 this Chapter.

3. The United States shall amend section 405(b) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that panelists selected to serve on panels or committees convened pursuant to this Chapter, 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, to provide that panelists selected to serve on panels or committees convened pursuant to this Chapter, 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, as amended.

5. The United States shall amend section 405(d) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to establish a United States Secretariat to facilitate the operation of Section D and the work of the binational panels, extraordinary challenge committees and special committees convened under this Chapter.

6. The United States shall amend section 407 of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to provide that an extraordinary challenge committee convened pursuant to Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) and Annex 10-B.3 (Extraordinary Challenge Procedure) 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, 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 10.12.5 (Review of Final Antidumping and Countervailing Duty Determinations) shall be deemed, on receipt of the request by the Secretary, to be a request for binational panel review  within the meaning of Article 10.12.4 (Review of Final Antidumping and Countervailing Duty Determinations).

8. The United States shall amend section 516A of the Tariff Act of 1930, as amended, 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, as amended, 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, as amended, to provide, in accordance with the terms of this Chapter, 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, as amended, 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, as amended, 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.

13. The United States shall amend section 777 of the Tariff Act of 1930, as amended, 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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