Preamble (Rules 1-5)

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 Article 1904.14 of the Agreement;

Adopted Rules of Procedure governing all panel reviews conducted pursuant to Article 1904 of the Agreement; and now

Adopt the following amended Rules of Procedure, which will take effect in Canada from the date of their publication in the Canada Gazette, in Mexico from the date of their publication in the Diario Oficial de la Federación, and in the United States from the date of their publication in the Federal Register, for panels requested pursuant to Article 1904(2) of the North American Free Trade Agreement following such publication.

Short Title

1. These rules may be cited as the NAFTA Article 1904 Panel 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 panel reviews conducted pursuant to Article 1904 of the Agreement and are designed to result in decisions of panels within 315 days after the commencement of the panel review. The purpose of these rules is to secure the just, speedy and inexpensive review of final determinations in accordance with the objectives and provisions of Article 1904. Where a procedural question arises that is not covered by these rules, a panel may adopt the procedure to be followed in the particular case before it by analogy to these rules or may refer for guidance to rules of procedure of a court that would otherwise have had jurisdiction in the importing country. In the event of any inconsistency between the provisions of these rules and the Agreement, the Agreement shall prevail.

Definitions and Interpretation

3. In these rules,

Agreement” means the North American Free Trade Agreement;

CBSA President” means the President of the Canada Border Services Agency appointed under subsection 7(1) of the Canada Border Services Agency Act, or the successor thereto, and includes any person authorized to perform a power, duty or function of the CBSA President under the Special Import Measures Act, as amended;

Code of Conduct” means the code of conduct established by the Parties pursuant to Article 1909 of the Agreement;

complainant” means a Party or interested person who files a Complaint pursuant to rule 39;

counsel” means

(a)  with respect to 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 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 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;

counsel of record” means a counsel referred to in subrule 21(1);

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;

first Request for Panel Review” means

(a)  where only one Request for Panel Review is filed for review of a final determination, that Request, and
(b)  where more than one Request for Panel Review is filed for review of the same final determination, the Request that is filed first;

government information” means

(a)  with respect to a panel review of a final determination made in Canada, information

(i)  the disclosure of which would be injurious to international relations or national defence or security,
(ii)  that constitutes a confidence of the Queen’s Privy Council for Canada, or
(iii) contained in government-to-government correspondence that is transmitted in confidence,

(b) with respect to a panel review of a final determination made in Mexico, information the disclosure of which is prohibited under the laws and regulations of Mexico, including

(i)  data, statistics and documents referring to national security and strategic activities for scientific and technological development, and
(ii)  information contained in government-to-government correspondence that is transmitted in confidence, and

(c)  with respect to a panel review of a final determination made in the United States, information classified in accordance with Executive Order No. 12065 or its successor;

interested person” means a person who, pursuant to the laws of the country in which a final determination was made, would be entitled to appear and be represented in a judicial review of the final determination;

investigating authority” means the competent investigating authority that issued the final determination subject to review and includes, in respect of the issuance, amendment, modification or revocation of a Proprietary Information Access Order, any person authorized by the investigating authority; 

involved Secretariat” means the section of the Secretariat located in the country of an involved Party;

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 Juarez’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 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;

Mexico” means the United Mexican States;

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 United States, the Federal Register;

panel” means a binational panel established pursuant to Annex 1901.2 to Chapter Nineteen of the Agreement for the purpose of reviewing a final determination;

participant” means any of the following persons who files a Complaint pursuant to rule 39 or a Notice of Appearance pursuant to rule 40:

(a) a Party,
(b)  an investigating authority, and
(c)  an interested person; 

Party” means the Government of Canada, the Government of Mexico or the Government of the United States;

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;

pleading” means a Request for Panel Review, a Complaint, a Notice of Appearance, a Change of Service Address, a Notice of Motion, a Notice of Change of Counsel of Record, a brief or any other written submission filed by a participant;

privileged information” means

(a)  with respect to 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, and with respect to which the privilege has not been waived,
(b)  with respect to 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 Secretaria de Economia 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 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 with respect to which the privilege has not been waived;

proof of service” means 

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

(i)  an affidavit of service stating by whom the document was served, the date on which it was served, where it was served and the manner of service, or
(ii)  an acknowledgement of service by counsel for a participant stating by whom the document was served, 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 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;

proprietary information” means  

(a)  with respect to 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, 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 a panel review of a final determination made in Mexico, informacion confidencial, as defined under article 80 of the Ley de Comercio Exterior and its regulations, and
(c)  with respect to 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;

Proprietary Information Access Application” means

(a)  with respect to 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 CBSA President, is available from the CBSA President, and
(ii)  in respect of a final determination by the Tribunal, is available from the Tribunal,

(b)  with respect to a panel review of a final determination made in Mexico, a disclosure undertaking in the prescribed form, which form is available from the Secretaria de Economia, and
(c) with respect to 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;

Proprietary Information Access Order” means

(a)  in the case of Canada, a Disclosure Order issued by the CBSA President or the Tribunal pursuant to a Proprietary Information Access Application,
(b)  in the case of Mexico, a Disclosure Order issued by the Secretaria de Economia 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;

responsible Secretariat” means the section of the Secretariat located in the country in which the final determination under review was made;

responsible Secretary” means the Secretary of the responsible Secretariat;

Secretariat” means the Secretariat established pursuant to Article 2002 of the Agreement;

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;

service address” means

(a)  with respect to a Party, the address filed with the Secretariat as the service address of the Party, including any facsimile number submitted with that address,
(b)  with respect to a participant other than a Party, the address of the counsel of record for the person, including any facsimile number submitted with that address or, where the person is not represented by counsel, the address set out by the participant in a Request for Panel Review, Complaint or Notice of Appearance as the address at which the participant may be served, including any facsimile number submitted with that address, or
(c)  where a Change of Service Address has been filed by a Party or participant, the address set out as the new service address in that form, including any facsimile number submitted with that address;

service list” means, with respect to a panel review,

(a)  where the final determination was made in Canada, a list comprising the other involved Party and

(i)  in the case of a final determination made by the CBSA President, persons named on the list maintained by the CBSA President who participated in the proceedings before the CBSA President and who were exporters or importers of goods of the country of the other involved Party or complainants referred to in section 34 of the Special Import Measures Act, as amended, and
(ii)  in the case of a final determination made by the Tribunal, persons named on the list maintained by the Tribunal of parties in the proceedings before the Tribunal who were exporters or importers of goods of the country of the other involved Party, complainants referred to in section 31 of the Special Import Measures Act, as amended, or other domestic parties whose interest in the findings of the Tribunal is with respect to goods of the country of the other involved Party, and

(b)  where the final determination was made in Mexico or the United States, the list, maintained by the investigating authority of persons who have been served in the proceedings leading to the final determination;

Tribunal” means the Canadian International Trade Tribunal or its successor and includes any person authorized to act on its behalf;

United States” means the United States of America.

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

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