Part II: Written Proceedings (Rules 27-44)

27. Where these rules require that notice be given, it shall be given in writing.

Filing, Service and Communications

28. (1) No document is filed with the Secretariat until one original and five copies of the document are received by the responsible Secretariat during its normal business hours and within the time period fixed for filing.

(2) The responsible Secretariat shall accept, date and time stamp and place in the appropriate file every document submitted to the responsible Secretariat.

(3) Receipt, date and time stamping or placement in the file of a document by the responsible Secretariat does not constitute a waiver of any time period fixed for filing or an acknowledgement that the document has been filed in accordance with these rules.

29. (1) All documents filed by a participant, other than documents required by rule 58 to be served by the responsible Secretary and documents referred to in subrule 38(2), rule 39, subrule 40(2)(a) and rule 41 shall be served by the participant on the counsel of record of each of the other participants or, where another participant is not represented by counsel, on the other participant.

(2) Subject to subrule 34(a), a document may be served by

(a) delivering a copy of the document to the service address of the participant;

(b) sending a copy of the document to the service address of the participant by facsimile transmission or by expedited delivery courier or expedited mail service, such as express mail in the United States or Priority Post in Canada; or

(c) personal service on the participant.

(3) A proof of service shall appear on, or be affixed to, all documents referred to in subrule (1).

(4) Where a document is served by expedited delivery courier or expedited mail service, the date of service set out in the affidavit of service or certificate of service shall be the day on which the document is consigned to the expedited delivery courier or expedited mail service.

30. (1) Where, under these rules, a document containing proprietary information, privileged information or personal information is required to be filed under seal with the Secretariat or is required to be served under seal, the document shall be filed or served in accordance with this rule and, where applicable, in accordance with rule 32.

(2) A document filed or served under seal shall be

(a) bound separately from all other documents;

(b) clearly marked

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

(A) in the case of a document containing proprietary information, "Proprietary", "Confidential", "De nature exclusive" or "Confidentiel", and

(B) in the case of a document containing privileged information, "Privileged" or "Protégé", and

(C) in the case of a document containing personal information, "Personal Information" or "Renseignements personnels",

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

(A) in the case of a document containing proprietary information, "Confidencial",

(B) in the case of a document containing privileged information, "Privilegiada", and

(C) in the case of a document containing personal information, "Información Personal", and

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

(A) in the case of a document containing proprietary information, "Proprietary", and

(B) in the case of a document containing privileged information, "Privileged", and

(C) in the case of a document containing personal information, "Personal Information"; and

(c) contained in an opaque inner wrapper and an opaque outer wrapper.

(3) An inner wrapper referred to in subrule (2)(c) shall indicate

(a) that proprietary information, privileged information or personal information is enclosed, as the case may be; and

(b) the Secretariat file number of the extraordinary challenge proceeding.

31. Filing or service of proprietary information, privileged information or personal information with the Secretariat does not constitute a waiver of the designation of the information as proprietary information, privileged information or personal information.

32. (1) Where a participant files a pleading that contains proprietary information, the participant shall file two sets of the pleading in the following manner:

(a) one set containing the proprietary information shall be filed under seal and

(i) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, shall be labelled "Proprietary", "Confidential", "Confidentiel" or "De nature exclusive", with the top of each page that contains proprietary information marked with the word "Proprietary", "Confidential", "Confidentiel" or "De nature exclusive" and with the proprietary information enclosed in brackets,

(ii) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, shall be labelled "Confidencial", with the top of each page that contains proprietary information marked with the word "confidencial" and with the proprietary information enclosed in brackets, and

(iii) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, shall be labelled "Proprietary", with the top of each page that contains proprietary information marked with the word "Proprietary" and with the proprietary information enclosed in brackets; and

(b) no later than one day following the day on which the set of pleadings referred to in subrule (a) is filed, another set not containing proprietary information shall be filed and

(i) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, shall be labelled "Non-Proprietary", "Non-Confidential", "Non confidentiel" or "De nature non exclusive",

(ii) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, shall be labelled "No-confidencial", and

(iii) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, shall be labelled "Non-Proprietary",

with each page from which proprietary information has been deleted marked to indicate the location from which the proprietary information was deleted.

(2) Where a participant files a pleading that contains privileged information, the participant shall file two sets of the pleading in the following manner:

(a) one set containing the privileged information shall be filed under seal and

(i) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, shall be labelled "Privileged" or "Protégé", with the top of each page that contains privileged information marked with the word "Privileged" or "Protégé" and with the privileged information enclosed in brackets,

(ii) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, shall be labelled "Privilegiada", with the top of each page that contains privileged information marked with the word "Privilegiada" and with the privileged information enclosed in brackets, and

(iii) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, shall be labelled "Privileged", with the top of each page that contains privileged information marked with the word "Privileged" and with the privileged information enclosed in brackets; and

(b) no later than one day following the day on which the set of pleadings referred to in subrule (a) is filed, another set not containing privileged information shall be filed and

(i) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, shall be labelled "Non-Privileged" or "Non protégé",

(ii) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, shall be labelled "No-privilegiada", and

(iii) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, shall be labelled "Non-Privileged",

with each page from which privileged information has been deleted marked to indicate the location from which the privileged information was deleted.

(3) Where a participant files a pleading that contains personal information, the pleading shall be filed under seal and

(a) with respect to an extraordinary challenge of a panel review of a final determination made in Canada, shall be labelled "Personal Information" or "Renseignements personnels", with the top of each page that contains personal information marked with the words "Personal Information" or "Renseignements personnels" and with the personal information enclosed in brackets;

(b) with respect to an extraordinary challenge of a panel review of a final determination made in Mexico, shall be labelled "Información Personal", with the top of each page that contains personal information marked with the words "Información personal" and with the personal information enclosed in brackets; and

(c) with respect to an extraordinary challenge of a panel review of a final determination made in the United States, shall be labelled "Personal Information", with the top of each page that contains personal information marked with the words "Personal Information" and with the personal information enclosed in brackets.

33. (1) Subject to subrule (2), a document containing proprietary or privileged information shall be filed under seal in accordance with rule 30 and shall be served only on the investigating authority and on those participants who have been granted access to the information under a Proprietary Information Access Order.

(2) Where all proprietary information contained in a document was submitted to the investigating authority by one participant, the document shall be served on that participant even if that participant has not been granted access to proprietary information under a Proprietary Information Access Order.

(3) A document containing personal information shall be filed under seal in accordance with rule 30 and shall be served only on persons or participants who have been granted access to the information under an order of the committee.

34. Where proprietary information, privileged information or personal information is disclosed to a person in an extraordinary challenge proceeding, the person shall not

(a) file, serve or otherwise communicate the information by facsimile transmission; or

(b) communicate the information by telephone.

35. Service on an investigating authority does not constitute service on a Party and service on a Party does not constitute service on an investigating authority.

Form and Content of Pleadings

36. (1) Every pleading filed in an extraordinary challenge proceeding shall contain the following information:

(a) the title of, and any Secretariat file number assigned for, the extraordinary challenge proceeding;

(b) a brief descriptive title of the pleading;

(c) the name of the participant filing the pleading;

(d) the name of counsel of record for the participant;

(e) the service address, as defined in rule 3; and

(f) the telephone number of the counsel of record of the participant or, where the participant is not represented by counsel, the telephone number of the participant.

(2) Every pleading filed in an extraordinary challenge proceeding shall be on paper 8 1/2 X 11 inches (216 millimetres by 279 millimetres) in size. The text of the pleading shall be printed, typewritten or reproduced legibly on one side only with a margin of approximately 1 1/2 inches (40 millimetres) on the left-hand side with double spacing between each line of text, except for quotations of more than 50 words, which shall be indented and single-spaced. Footnotes, titles, schedules, tables, graphs and columns of figures shall be presented in a readable form. Briefs and appendices shall be securely bound along the left-hand margin.

(3) Every pleading filed on behalf of a participant in an extraordinary challenge proceeding shall be signed by counsel for the participant or, where the participant is not represented by counsel, by the participant.

Requests for an Extraordinary Challenge Committee

37. (1) Where a Party, in its discretion, files with the responsible Secretary a Request for an Extraordinary Challenge Committee referred to in Article 1904.13(a)(ii) or (iii) of the Agreement, the Party shall file the Request (model form available from the Secretariat) within 30 days after the issuance, pursuant to rule 77 of the NAFTA Article 1904 Panel Rules, of the Notice of Final Panel Action in the panel review that is the subject of the Request.

(2) Where a Party, in its discretion, files with the responsible Secretary a Request for an Extraordinary Challenge Committee referred to in Article 1904.13(a)(i) of the Agreement, the Party shall file the Request (model form available from the Secretariat)

(a) within 30 days after the issuance, pursuant to rule 77 of the NAFTA Article 1904 Panel Rules, of the Notice of Final Panel Action in the panel review that is the subject of the Request; or

(b) subject to subrule (3), where the Party gained knowledge of the action of the panelist giving rise to the allegation more than 30 days after the panel issued a Notice of Final Panel Action, no more than 30 days after gaining knowledge of the action of the panelist.

(3) No Request for an Extraordinary Challenge Committee referred to in subrule (2) may be filed if two years or more have elapsed since the effective date of the Notice of Completion of Panel Review.

(4) Notwithstanding subrules (1) to (3), the running of the time periods referred to in this section

(a) shall be suspended in the circumstances set out in Article 1905.11 of the Agreement; and

(b) where suspended under subrule (a), shall be resumed in the circumstances set out in Articles 1905.12 and 1905.13 of the Agreement.

38. (1) Subject to subrule (2), every Request for an Extraordinary Challenge Committee shall be in writing and shall

(a) include a concise statement of the allegations relied on, together with a concise statement of how the actions alleged have materially affected the panel's decision and the way in which the integrity of the panel review process is threatened;

(b) contain the name of the Party in the panel review, name of counsel, service address and telephone number; and

(c) where the panel decision was made in Canada, state whether the Party filing the Request for an Extraordinary Challenge Committee

(i) intends to use English or French in pleadings and oral proceedings before the committee, and

(ii) requests simultaneous translation of any oral proceedings.

(2) Where a Request for an Extraordinary Challenge Committee contains an allegation referred to in Article 1904.13(a)(i) of the Agreement, the identity of the panelist against whom such an allegation is made shall be revealed only in a confidential annex filed together with the Request and shall be disclosed only in accordance with rule 60.

39. (1) Every Request for an Extraordinary Challenge Committee (model form available from the Secretariat) shall be accompanied by

(a) those items of the record of the panel review relevant to the allegations contained in the Request; and

(b) an Index of the items referred to in subrule (a).

(2) Where a Request contains an allegation referred to in Article 1904.13(a)(i) of the Agreement, the Request shall be accompanied by, in addition to the requirements of subrule (1),

(a) any other material relevant to the allegations contained in the Request; and

(b) if the Request is filed more than 30 days after the panel issued a Notice of Final Panel Action pursuant to rule 77 of the NAFTA Article 1904 Panel Rules, an affidavit certifying that the Party gained knowledge of the action of the panelist giving rise to the allegation no more than 30 days preceding the filing of the Request.

Notices of Appearance

40. (1) Within 10 days after the Request for an Extraordinary Challenge Committee is filed, a Party or participant in the panel review who proposes to participate in the extraordinary challenge proceeding shall file with the responsible Secretariat a Notice of Appearance (model form available from the Secretariat) containing the following information:

(a) the name of the Party or participant, name of counsel, service address and telephone number;

(b) a statement as to whether appearance is made

(i) in support of the Request, or

(ii) in opposition to the Request; and

(c) where the extraordinary challenge is in respect of a panel review of a final determination made in Canada, a statement as to whether the person filing the Notice of Appearance

(i) intends to use English or French in pleadings and oral proceedings before the committee, and

(ii) requests simultaneous translation of any oral proceedings.

(2) Where a Party or participant referred to in subrule (1) proposes to rely on a document in the record of the panel review that is not specified in the Index filed with the Request for an Extraordinary Challenge Committee, the Party or participant shall file, with the Notice of Appearance,

(a) the document; and

(b) a statement identifying the document and requesting its inclusion in the extraordinary challenge record.

(3) On receipt of a document referred to in subrule (2), the responsible Secretary shall include the document in the extraordinary challenge record.

41. (1) Within 10 days after a Request for an Extraordinary Challenge Committee referred to in Article 1904.13(a)(i) of the Agreement is filed, a panelist against whom an allegation contained in the Request is made and who proposes to participate in the extraordinary challenge proceeding

(a) shall file a Notice of Appearance;

(b) may file, under seal, documents to be included in the extraordinary challenge record relevant to the panelist's defense against the allegation; and

(c) may file an ex parte motion requesting that the extraordinary challenge proceeding be conducted in camera.

(2) Where a committee issues an order pursuant to subrule 45(1)(a), a panelist who filed documents described in subrule (1)(b) may, within five days after issuance of the order, withdraw any of those documents.

(3) Where a panelist withdraws documents pursuant to subrule (2), the committee shall not consider those documents.  

Filing and Content of Briefs and Appendices

42. (1) The Party who has filed the Request for an Extraordinary Challenge Committee and every participant who has filed a Notice of Appearance under subrule 40(1)(b)(i) shall file a brief, setting forth grounds and arguments in support of the Request, no later than 21 days after the Request for an Extraordinary Challenge Committee is filed.

(2) Every participant who has filed a Notice of Appearance under subrule 40(1)(b)(ii) shall file a brief, setting forth grounds and arguments in opposition to the Request for an Extraordinary Challenge Committee, no later than 21 days after the expiration of the time period for filing of briefs referred to in subrule (1).

(3) The Party who has filed the Request for an Extraordinary Challenge Committee and every participant who has filed a Notice of Appearance under subrule 40(1)(b)(i) may file a brief, replying to the grounds and arguments set forth in the briefs filed pursuant to subrule (2), no later than 10 days after the expiration of the time period for filing of briefs referred to in subrule (2). Reply briefs shall be limited to rebuttal of matters raised in the briefs filed pursuant to subrule (2).

(4) Every brief filed under this rule shall be in the form required by rule 43.

(5) Appendices shall be filed with the briefs.

43. (1) Briefs shall contain information, in the following order, divided into five parts:

Part I:

(a) A table of contents; and

(b) A table of authorities cited:

The table of authorities shall contain references to all treaties, statutes and regulations cited, any cases primarily relied on in the briefs, set out alphabetically, and all other documents referred to except documents from the administrative record. The table of authorities shall refer to the page(s) of the brief where each authority is cited and mark, with an asterisk in the margin, those authorities primarily relied on.

Part II: A statement of the case:

This part shall contain a concise statement of the relevant facts with references to the panel record by page and, where applicable, by line.

Part III: A statement of the issues:

(a) In the brief of the Party who files the Request for an Extraordinary Challenge Committee, this part shall contain a concise statement of the issues.

(b) In the brief of any other participant, this part shall contain a concise statement of the position of the participant with respect to the issues.

Part IV: Argument:

This part shall consist of the argument, setting out concisely the points of law relating to the issues, with applicable citations to authorities and the panel record.

Part V: Relief:

This part shall consist of a concise statement precisely identifying the relief requested.

(2) Paragraphs in Parts I to V of a brief may be numbered consecutively.

(3) Authorities referred to in the briefs shall be included in an appendix, which shall be organized as follows: a table of contents, copies of all treaty and statutory references, references to regulations, cases primarily relied on in the briefs, set out alphabetically, all documents relied on from the panel record and all other materials relied on.

Motions

44. (1) Motions, other than motions referred to in subrule 41(1)(c), may be considered at the discretion of the committee.

(2) A committee may dispose of a motion based upon the pleadings filed on the motion.

(3) A committee may hear oral argument in person or, subject to subrule 34(b), direct that a motion be heard by means of a telephone conference call with the participants.