Part I: General (Rules 5-26)

5. An extraordinary challenge proceeding commences on the day on which a Request for an Extraordinary Challenge Committee is filed with the Secretariat and terminates on the day on which a Notice of Completion of Extraordinary Challenge is effective.

6. The general legal principles of the country in which a final determination was made apply in an extraordinary challenge of the decision of a panel with respect to the final determination.

7. A committee may review any part of the record of the panel review relevant to the extraordinary challenge.

Internal Functioning of Committees

8. (1) For routine administrative matters governing its own internal functioning, a committee may adopt procedures not inconsistent with these rules or the Agreement.

(2) Subject to subrule 34(b), meetings of a committee may be conducted by means of a telephone conference call.

9. Only committee members may take part in the deliberations of a committee, which shall take place in private and remain secret. Staff of the involved Secretariats and assistants to committee members may be present by permission of the committee.

Computation of Time

10. (1) In computing any time period fixed in these rules or by an order or decision of a committee, the day from which the time period begins to run shall be excluded and, subject to subrules (2) and (3), the last day of the time period shall be included.

(2) Where the last day of a time period computed in accordance with subrule (1) falls on a legal holiday of the responsible Secretariat, that day and any other legal holidays of the responsible Secretariat immediately following that day shall be excluded from the computation.

(3) In computing any time period of five days or less fixed in these rules or by an order or decision of a committee, any legal holiday that falls within the time period shall be excluded from the computation.

11. A committee may extend any time period fixed in these rules if

(a) the extension is made in the interests of fairness and justice; and

(b) in fixing the extension, the committee takes into account the intent of the rules to secure just, speedy and inexpensive final resolutions of challenges to decisions of panels.

Counsel of Record

12. (1) Subject to subrule (2), the counsel of record for a participant in an extraordinary challenge proceeding shall be

(a) the counsel for the participant in the panel review; or

(b) in the case of a Party who was not a participant in the panel review or of a panelist, the counsel who signs any document filed on behalf of the Party or panelist in the extraordinary challenge proceeding.

(2) A participant may change its counsel of record by filing with the responsible Secretariat a Notice of Change of Counsel of Record signed by the new counsel, together with proof of service on the former counsel and other participants.

Costs

13. Each participant shall bear the costs of, and incidental to, its own participation in an extraordinary challenge proceeding.

Proprietary Information and Privileged Information

14. (1) Where proprietary information has been filed in a panel review that is the subject of an extraordinary challenge proceeding, every member of a committee, assistant to a committee member, court reporter, interpreter and translator shall provide the responsible Secretariat with a Proprietary Information Access Application.

(2) Upon receipt of a Proprietary Information Access Application, the responsible Secretary shall file with the appropriate investigating authority the Proprietary Information Access Application and any additional copies of those documents required by the investigating authority.

(3) The investigating authority shall issue the Proprietary Information Access Order and provide the responsible Secretariat with the original and any additional copies of those documents required by the responsible Secretariat.

(4) Upon receipt of a Proprietary Information Access Order, the responsible Secretary shall transmit the original Proprietary Information Access Order to the appropriate member of a committee, assistant to a committee member, court reporter, interpreter or translator.

15. (1) A member of a committee, assistant to a committee member, court reporter, interpreter or translator who amends or modifies a Proprietary Information Access Application shall provide a copy of the amendment or modification to the responsible Secretariat.

(2) Upon receipt of an amendment or modification to a Proprietary Information Access Application, the responsible Secretary shall file with the appropriate investigating authority that document and any additional copies of that document required by the investigating authority.

(3) Upon receipt of an amendment or modification to a Proprietary Information Access Application, the investigating authority shall, as appropriate, amend, modify or revoke the Proprietary Information Access Order and provide the responsible Secretariat with the original of the amendment, modification or notice of revocation and any additional copies of the document required by the responsible Secretariat.

(4) Upon receipt of an amendment or modification to a Proprietary Information Access Order or a notice of revocation, the responsible Secretary shall transmit the amendment, modification or notice of revocation to the appropriate member of a committee, assistant to a committee member, court reporter, interpreter or translator.

16. The responsible Secretary shall serve Proprietary Information Access Orders granted to members of a committee, assistants to committee members, court reporters, interpreters or translators, and any amendments or modifications thereto or notices of revocation thereof, on all participants other than the investigating authority.

17. (1) A counsel of record, or a professional retained by, or under the control or direction of, a counsel of record, who has not been issued a Proprietary Information Access Order in the panel review or in these proceedings and who wishes disclosure of proprietary information in the file of an extraordinary challenge proceeding, shall file a Proprietary Information Access Application, as follows:

(a) with the responsible Secretariat, four copies; and

(b) with the investigating authority, one original and any additional copies that the investigating authority requires.

(2) A Proprietary Information Access Application referred to in subrule (1) shall be served on all participants.

(3) The investigating authority shall, within 10 days after a Proprietary Information Access Application is filed with it in accordance with subrule (1), serve on the person who filed the Proprietary Information Access Application

(a) a Proprietary Information Access Order; or

(b) a notification in writing setting out the reasons why a Proprietary Information Access Order is not issued.

18. (1) Where

(a) an investigating authority refuses to issue a Proprietary Information Access Order to a counsel of record or to a professional retained by, or under the control or direction of, a counsel of record, or

(b) an investigating authority issues a Proprietary Information Access Order with terms unacceptable to a counsel of record, the counsel of record may file with the responsible Secretariat a Notice of Motion requesting that the committee review the decision of the investigating authority.

(2) Where, after consideration of any response made by the investigating authority referred to in subrule (1), the committee decides that a Proprietary Information Access Order should be issued or that the terms of a Proprietary Information Access Order should be amended or modified, the committee shall so notify counsel for the investigating authority.

(3) Where the final determination was made in the United States and the investigating authority fails to comply with the notification referred to in subrule (2), the committee may issue such orders as are just in the circumstances, including an order refusing to permit the investigating authority to make certain arguments in support of its case or striking certain arguments from its pleadings.

19. (1) Where a Proprietary Information Access Order is issued to a person in an extraordinary challenge proceeding, the person shall file with the responsible Secretariat a copy of the Proprietary Information Access Order.

(2) Where a Proprietary Information Access Order is revoked, amended or modified by an investigating authority, the investigating authority shall provide to the responsible Secretariat and to all participants a copy of the Notice of Revocation, amendment or modification.

20. In an extraordinary challenge proceeding that commences with a Request for an Extraordinary Challenge Committee pursuant to Article 1904.13(a)(i) of the Agreement, personal information shall be kept confidential

(a) where a Notice of Motion is filed pursuant to subrule 41(1)(c),

(i) until the committee makes an order referred to in subrule 45(1)(a), or

(ii) where the committee makes an order referred to in subrule 45(1)(b), indefinitely, unless otherwise ordered by the committee; and

(b) in any other case, until the day after the expiration of the time period fixed, pursuant to rule 41, for filing a Notice of Motion referred to in subrule 41(1)(c).

21. Where a person alleges that the terms of a Proprietary Information Access Application or Proprietary Information Access Order have been violated, the committee shall refer the allegations to the investigating authority for investigation and, where applicable, the imposition of sanctions in accordance with section 77.034 of the Special Import Measures Act, as amended, section 777(f) of the Tariff Act of 1930, as amended, or article 93 of the Ley de Comercio Exterior.  

Violation of Code of Conduct

22. Where a participant believes that a committee member or an assistant to a committee member is in violation of the Code of Conduct, the participant shall forthwith notify the responsible Secretary in writing of the alleged violation. The responsible Secretary shall promptly notify the other involved Secretary and the involved Parties of the allegations.

Pleadings and Simultaneous Translation
of Extraordinary Challenge Proceedings in Canada

23. Rules 24 to 26 apply with respect to an extraordinary challenge of a panel review of a final determination made in Canada.

24. Either English or French may be used by any person, panelist or member of a committee in any document or oral proceeding.

25. (1) Subject to subrule (2), any order or decision including the reasons therefor, issued by a committee shall be made available simultaneously in both English and French where

(a) in the opinion of the committee, the order or decision is in respect of a question of law of general public interest or importance; or

(b) the proceedings leading to the issuance of the order or decision were conducted in whole or in part in both English and French.

(2) Where

(a) an order or decision issued by a committee is not required by subrule (1) to be made available simultaneously in English and French, or

(b) an order or decision is required by subrule (1)(a) to be made available simultaneously in both English and French but the committee is of the opinion that to make the order or decision available simultaneously in both English and French would occasion a delay prejudicial to the public interest or result in injustice or hardship to any participant, the order or decision, including the reasons therefor, shall be issued in the first instance in either English or French and thereafter at the earliest possible time in the other language, each version to be effective from the time the first version is effective.

(3) Nothing in subrule (1) or (2) shall be construed as prohibiting the oral delivery in either English or French of any order or decision or any reasons therefor.

(4) No order or decision is invalid by reason only that it was not made or issued in both English and French.

26. (1) Any oral proceeding conducted in both English and French shall be translated simultaneously.

(2) Where a participant requests simultaneous translation of an extraordinary challenge proceeding, the request shall be made as early as possible in the proceedings.

(3) Where a committee is of the opinion that there is a public interest in the extraordinary challenge proceedings, the committee may direct the responsible Secretary to arrange for simultaneous translation of the oral proceedings, if any.