Preamble (Rules 1-4)

The Parties,

Having regard to Chapter Nineteen of the North American Free Trade Agreement between Canada, the United Mexican States and the United States of America;

Acting pursuant to paragraph 2 of Annex 1904.13 to Chapter Nineteen of the Agreement;

Adopted the Rules of Procedure, which shall come into force on the same day as the Agreement enters into force and from that day shall govern all extraordinary challenge committee proceedings conducted pursuant to Article 1904 of the Agreement.

Short Title

1. These rules may be cited as the NAFTA Extraordinary Challenge Committee Rules.

Statement of General Intent

2. These rules are intended to give effect to the provisions of Chapter Nineteen of the Agreement with respect to extraordinary challenges conducted pursuant to Article 1904 of the Agreement and are designed to result in decisions within 90 days after the establishment of the committee. Where a procedural question arises that is not covered by these rules, a committee may adopt an appropriate procedure that is not inconsistent with the Agreement. In the event of any inconsistency between the provisions of these Rules and the Agreement, the Agreement shall prevail.

Interpretation

3. In these rules,

"Agreement" means the North American Free Trade Agreement; (Accord) (Tratado)

"Code of Conduct" means the code of conduct established by the Parties pursuant to Article 1909 of the Agreement; (Code de conduite) (Código de Conducta)

"committee" means an extraordinary challenge committee established pursuant to Annex 1904.13 to Chapter Nineteen of the Agreement; (comité) (comite)

"counsel" means

(a) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, a person entitled to appear as counsel before the Federal Court of Canada, 

(b) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, a person entitled to appear as counsel before the Tribunal Fiscal de la Federación, and 

(c) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, a person entitled to appear as counsel before a federal court in the United States; (avocat) (representante)

"counsel of record" means a counsel referred to in subrule 12(1); (avocat au dossier) (representante legal acreditado)

"Deputy Minister" means the Deputy Minister of National Revenue for Customs and Excise, or the successor thereto, and includes any person authorized to perform a power, duty or function of the Deputy Minister under the Special Import Measures Act, as amended; (sous-ministre) (Deputy Minister)

"final determination" means, in the case of Canada, a definitive decision within the meaning of subsection 77.01(1) of the Special Import Measures Act, as amended; (décision définitive) (resolución definitiva)

"investigating authority" means the competent investigating authority that issued the final determination that was the subject of the panel review to which an extraordinary challenge relates and includes, in respect of the issuance, amendment, modification or revocation of a Proprietary Information Access Order, any person authorized by the investigating authority; (autorité chargée de l'enquête) (autoridad investigadora)

"involved Secretariat" means the section of the Secretariat located in the country of an involved Party; (Secrétariat en cause) (Secretariado implicado)

"legal holiday" means

(a) with respect to the Canadian Section of the Secretariat, every Saturday and Sunday, New Year's Day (January 1), Good Friday, Easter Monday, Victoria Day, Canada Day (July 1), Labour Day (first Monday in September), Thanksgiving Day (second Monday in October), Remembrance Day (November 11), Christmas Day (December 25), Boxing Day (December 26), any other day fixed as a statutory holiday by the Government of Canada or by the province in which the Section is located and any day on which the offices of the Canadian Section of the Secretariat are officially closed in whole or in part,

(b) with respect to the Mexican Section of the Secretariat, every Saturday and Sunday, New Year's Day (January 1), Constitution Day (February 5), Benito Juárez's Birthday (March 21), Labor Day (May 1), Battle of Puebla (May 5), Independence Day (September 16), Congressional Opening Day (November 1), Revolution Day (November 20), Transmission of the Federal Executive Branch (every six years on December 1), Christmas Day (December 25), any day designated as a statutory holiday by the Federal Laws or, in the case of Ordinary Elections, by the Local Electoral Laws and any day on which the offices of the Mexican Section of the Secretariat are officially closed in whole or in part, and

(c) with respect to the United States Section of the Secretariat, every Saturday and Sunday, New Year's Day (January 1), Martin Luther King's Birthday (third Monday in January), Presidents' Day (third Monday in February), Memorial Day (last Monday in May), Independence Day (July 4), Labor Day (first Monday in September), Columbus Day (second Monday in October), Veterans' Day (November 11), Thanksgiving Day (fourth Thursday in November), Christmas Day (December 25), any other day designated as a holiday by the President or the Congress of the United States and any day on which the offices of the Government of the United States located in the District of Columbia or the offices of the United States Section of the Secretariat are officially closed in whole or in part; (jour férié) (días inhábiles)

"Mexico" means the United Mexican States; (Mexique)

"official publication" means

(a) in the case of the Government of Canada, the Canada Gazette,

(b) in the case of the Government of Mexico, the Diario Oficial de la Federación, and

(c) in the case of the Government of the United States, the Federal Register; (journal officiel) (publicación oficial)

"panel" means a binational panel established pursuant to Annex 1901.2 to Chapter Nineteen of the Agreement, the decision of which is the subject of an extraordinary challenge; (groupe spécial) (panel)

"participant" means a Party who files a Request for an Extraordinary Challenge Committee or any of the following persons who files a Notice of Appearance pursuant to these rules:

(a) the other involved Party,

(b) a person who participated in the panel review that is the subject of the extraordinary challenge, and

(c) a panelist against whom an allegation referred to in Article 1904.13(a)(i) of the Agreement is made; (participant) (participante)

"Party" means the Government of Canada, the Government of Mexico or the Government of the United States; (Partie) (Parte)

"person" means

(a) an individual,

(b) a Party,

(c) an investigating authority,

(d) a government of a province, state or other political subdivision of the country of a Party,

(e) a department, agency or body of a Party or of a government referred to in paragraph (d), or

(f) a partnership, corporation or association; (personne) (persona)

"personal information" means, with respect to an extraordinary challenge proceeding in which an allegation is made that a member of the panel was guilty of gross misconduct, bias or a serious conflict of interest or otherwise materially violated the rules of conduct, the information referred to in subrule 39(2) and rule 41; (renseignements personnels) (información personal)

"pleading" means a Request for an Extraordinary Challenge Committee, a Notice of Appearance, a Change of Service Address, a Notice of Change of Counsel of Record, a Notice of Motion, a brief or any other written submission filed by a participant; (acte de procédure) (promoción)

"privileged information" means

(a) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, information of the investigating authority that is subject to solicitor-client privilege under the laws of Canada, or that constitutes part of the deliberative process with respect to the final determination, with respect to which the privilege has not been waived, 

(b) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico,

(i) information of the investigating authority that is subject to attorney-client privilege under the laws of Mexico, or

(ii) internal communications between officials of the Secretaría de Comercio y Fomento Industrial in charge of antidumping and countervailing duty investigations or communications between those officials and other government officials, where those communications constitute part of the deliberative process with respect to the final determination, and

(c) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, information of the investigating authority that is subject to the attorney-client, attorney work product or government deliberative process privilege under the laws of the United States and with respect to which the privilege has not been waived; (renseignements protégés) (información privilegiada)

"proof of service" means

(a) with respect to an extraordinary challenge of a panel review of a final determination made in Canada or Mexico,

(i) an affidavit of service stating the name of the person who served the document, the date on which it was served, where it was served and the manner of service, or

(ii) a written acknowledgement of service by counsel for a participant stating the name of the person who served the document, the date on which it was served and the manner of service and, where the acknowledgement is signed by a person other than the counsel, the name of that person followed by a statement that the person is signing as agent for the counsel, and

(b) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, a certificate of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person who made service; (preuve de signification) (comprobante de envío)

"proprietary information" means

(a) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, information referred to in subsection 84(3) of the Special Import Measures Act, as amended, or subsection 45(3) of the Canadian International Trade Tribunal Act, as amended, and with respect to which the person who designated or submitted the information has not withdrawn the person's claim as to the confidentiality of the information,

(b) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, información confidencial, as defined under article 80 of the Ley de Comercio Exterior and its regulations, and

(c) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, business proprietary information under section 777(f) of the Tariff Act of 1930, as amended, and any regulations made under that Act; (renseignements de nature exclusive) (información confidencial)

"Proprietary Information Access Application" means

(a) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, a disclosure undertaking in the prescribed form, which form

(i) in respect of a final determination by the Deputy Minister, is available from the Deputy Minister, and

(ii) in respect of a final determination by the Tribunal, is available from the Tribunal,

(b) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, a disclosure undertaking in the prescribed form, which form is available the from Secretaría de Comercio y Fomento Industrial, and

(c) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, a Protective Order Application

(i) in respect of a final determination by the International Trade Administration of the United States Department of Commerce, in a form prescribed by, and available from, the International Trade Administration of the United States Department of Commerce, and

(ii) in respect of a final determination by the United States International Trade Commission, in a form prescribed by, and available from, the United States International Trade Commission; (demande relative à la communication de renseignements) (compromiso de confidencialidad)

"Proprietary Information Access Order" means

(a) in the case of Canada, a Disclosure Order issued by the Deputy Minister or the Tribunal pursuant to a Proprietary Information Access Application,

(b) in the case of Mexico, a Disclosure Order issued by the Secretaría de Comercio y Fomento Industrial pursuant to a Proprietary Information Access Application, and

(c) in the case of the United States, a Protective Order issued by the International Trade Administration of the United States Department of Commerce or the United States International Trade Commission pursuant to a Proprietary Information Access Application; (ordonnance relative à la communication de renseignements) (autorización de acceso a la información confidencial)

"responsible Secretariat" means, with respect to an extraordinary challenge of a panel review, the section of the Secretariat located in the country in which the final determination reviewed by the panel was made; (Secrétariat responsable) (Secretariado responsable)

"responsible Secretary" means the Secretary of the responsible Secretariat; (secrétaire responsable) (Secretario responsable)

"Secretariat" means the Secretariat established pursuant to Article 2002 of the Agreement; (Secrétariat) (Secretariado)

"Secretary" means the Secretary of the United States Section of the Secretariat, the Secretary of the Mexican Section of the Secretariat or the Secretary of the Canadian Section of the Secretariat and includes any person authorized to act on behalf of that Secretary; (secrétaire) (Secretario)

"service address" means

(a) with respect to a Party or panelist, the address filed with the Secretariat as the service address of the Party or panelist, including any facsimile number submitted with that address,

(b) with respect to a participant other than a Party or panelist, the service address of the participant in the panel review, or

(c) where a Change of Service Address has been filed by a Party, panelist or participant, the address set out as the new service address of the participant in that form, including any facsimile number submitted with that address; (adresse aux fins de signification) (domicilio para oír y recibir notificaciones)

"Tribunal" means the Canadian International Trade Tribunal or its successor and includes any person authorized to act on its behalf. (Tribunal) (Tribunal)

"United States" means the United States of America. (États-Unis) (Estados Unidos

4. The definitions set forth in Article 1911 of the Agreement and Annex 1911 to Chapter 19 of the Agreement are hereby incorporated into these rules.