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:
(a) the importing Party; or
(b) a Party whose goods are the subject of the final determination;
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:
(a) in the case of Canada, the grounds set out in subsection 18.1(4) of the Federal Court Act, as amended, with respect to all final determinations;
(b) in the case of Mexico, the standard set out in Article 51 of the Federal Act of Administrative Litigation Procedure (Ley Federal de Procedimiento Contencioso Administrativo), ot any successor statutes, based solely on the administrative tecord; and
(c) in the case of the United States;
(i) the standard set out in section 516A(b)d)(B) of the Tariff Act of 1930, as amended, with the exception of a determination referred to in (ii); and
(ii) the standard set out in section 516A(b)()(A) of the Tariff Act of 1930, as amended, with respect to a determination by the United States International Trade Commission not to initiate a review pursuant to section 751(b) of the Tariff Act of 1930, as amended.
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:
(a) such amendment shall apply to goods from another Party only if the amending statute specifies that it applies to goods from that Party or from the Parties to this Agreement;
(b) the amending Party notifies in writing the Parties to which the amendment applies of the amending statute as far in advance as possible of the date of enactment of such statute;
(c) following notification, the amending Party, on request of any Party to which the amendment applies, consults with that Party prior to the enactment of the amending statute; and
(d) such amendment, as applicable to that other Party, is not inconsistent with:
(i) GATT 1994, the AD Agreement or the SCM Agreement, or any successor agreement to which the Parties are party, or
(ii) the object and purpose of this Agreement and this Chapter, which is to establish fair and predictable conditions for the progressive liberalization of trade between the Parties to this Agreement while maintaining effective and fair disciplines on unfair trade practices, such object and purpose to be ascertained from the provisions of this Agreement, its preamble and objectives, and the practices of the Parties.
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:
(a) the amendment does not conform to the provisions of Article 10.10(2)(d)(i) or (ii) (Retention of Domestic Antidumping Law and Countervailing Duty Law); or
(b) such amendment has the function and effect of overturning a prior decision of a panel made pursuant to Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) and does not conform to the provisions of Article 10.10(2)(d)G@) or (ii) (Retention of Domestic Antidumping Law and Countervailing Duty Law).
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:
(a) the two Parties shall immediately begin consultations and shall seek to achieve a mutually satisfactory solution to the matter within 90 days of the issuance of the panel's final declaratory opinion. Such solution may include seeking corrective legislation with respect to the statute of the amending Party;
(b) if corrective legislation is not enacted within nine months from the end of the 90 day consultation period referred to in subparagraph (a) and no other mutually satisfactory solution has been reached, the Party that requested the panel may:
(i) take comparable legislative or equivalent executive action, or
(ii) terminate this Agreement with regard to the amending Party on 60 day written notice to that Party.
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:
(a) the judicial review procedures of any Party; or
(b) cases appealed under those procedures, 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:
(a) neither involved Party seeks panel review of a final determination;
(b) a revised final determination is issued as a direct result of judicial review of the original final determination by a court of the importing Party in cases where neither involved Party sought panel review of that original final determination; or
(c) a final determination is issued as a direct result of judicial review that was commenced in a court of the importing Party before the date of entry into force of this Agreement.
13. Where, within a reasonable time after the panel decision is issued, an involved Party alleges that:
(a) (i) 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,
(ii) the panel seriously departed from a fundamental rule of procedure, or
(ii) the panel manifestly exceeded its powers, authority or jurisdiction set out in this Article, for example by failing to apply the appropriate standard of review, and
(b) any of the actions set out in subparagraph (a) has materially affected the panel's decision and threatens the integrity of the binational panel review process,
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:
(a) 30 days for the filing of the complaint;
(b) 30 days for designation or certification of the administrative record and its filing with the panel;
(c) 60 days for the complainant to file its brief;
(d) 60 days for the respondent to file its brief;
(e) 15 days for the filing of reply briefs;
(f) 15 to 30 days for the panel to convene and hear oral argument; and
(g) 90 days for the panel to issue its written decision.
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:
(a) maintain or amend its statutes or regulations to ensure that existing procedures concerning the refund, with interest, of antidumping or countervailing duties operate to give effect to a final panel decision that a refund is due;
(b) maintain or amend its statutes or regulations to ensure that its courts shall give full force and effect, with respect to any person within its jurisdiction, to all sanctions imposed pursuant to the laws of the other Parties to enforce provisions of any protective order or undertaking that such other Party has promulgated or accepted in order to permit access for purposes of panel review or of the extraordinary challenge procedure to confidential, personal, business proprietary or other privileged information;
(c) maintain or amend its statutes or regulations to ensure that:
(i) domestic procedures for judicial review of a final determination may not be commenced until the time for requesting a panel under paragraph 4 has expired, and
(ii) as a prerequisite to commencing domestic judicial review procedures to review a final determination, a Party or other person intending to commence such procedures shall provide notice of such intent to the Parties concerned and to other persons entitled to commence such review procedures of the same final determination no later than 10 days prior to the latest date on which a panel may be requested; and
(d) maintain the amendments set out in its Schedule to Annex 1904.15 of the NAFTA 1994, as reproduced in Annex 10-B.5 (Amendments to Domestic Laws), and make any conforming amendments necessary.
Article 10.13. Safeguarding the Panel Review System
1. Where a Party alleges that the application of another Party's domestic law:
(a) has prevented the establishment of a panel requested by the complaining Party;
(b) has prevented a panel requested by the complaining Party from rendering a final decision;
(c) has prevented the implementation of the decision of a panel requested by the complaining Party or denied it binding force and effect with respect to the particular matter that was before the panel; or
(d) has resulted in a failure to provide opportunity for review of a final determination by a panel or court of competent jurisdiction that is independent of the competent investigating authorities, that examines the basis for the competent investigating authority's determination and whether the competent investigating authority properly applied domestic antidumping and countervailing duty law in reaching the challenged determination, and that employs the relevant standard of review identified in Article 10.8 (Definitions);
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:
(a) the operation of Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) with respect to the Party complained against; or
(b) the application to the Party complained against of such benefits under this Agreement as may be appropriate under the circumstances.
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:
(a) the suspension of benefits by the complaining Party pursuant to paragraph 8(b) is manifestly excessive; or
(b) the Party complained against has corrected the problem or problems with respect to which the committee has made an affirmative finding.
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:
(a) binational panel or extraordinary challenge committee review under Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations) shall be stayed
(i) in the case of review of any final determination of the complaining Party requested by the Party complained against, if such review was requested after the date on which consultations were requested pursuant to paragraph 1, and in no case more than 150 days prior to an affirmative finding by the special committee, or
(ii) in the case of review of any final determination of the Party complained against requested by the complaining Party, at the request of the complaining Party; and
(b) the time set out in Article 10.12(4) (Review of Final Antidumping and Countervailing Duty Determinations) or Annex 10-B.3 (Extraordinary Challenge Procedure) for requesting panel or committee review shall not run unless and until resumed in accordance with paragraph 12.
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:
(a) in the case of review of any final determination of the complaining Party requested by the Party complained against, at the request of either Party, or of a party to the panel review under Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations); or
(b) in the case of review of any final determination of the Party complained against requested by the complaining Party, at the request of the complaining Party, or of a person of the complaining Party that is a party to the panel review under Article 10.12 (Review of Final Antidumping and Countervailing Duty Determinations).
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:
(a) final determinations of a competent investigating authority made after the date of entry into force of this Agreement; and
(b) with respect to declaratory opinions under Article 10.11 (Review of Statutory Amendments), amendments to antidumping or countervailing duty statutes enacted after the date of entry into force of this Agreement.
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:
(a) the potential to develop more effective rules and disciplines concerning the use of government subsidies; and
(b) the potential for reliance on a substitute system of rules for dealing with unfair transborder pricing practices and government subsidization.
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:
(a) publish notice of initiation of investigations in the importing Party's official journal, setting forth the nature of the proceeding, the legal authority under which the proceeding is initiated, and a description of the goods at issue;
(b) provide notice of the times for submissions of information and for decisions that the competent investigating authorities are expressly required by statute or regulations to make;
(c) provide explicit written notice and instructions as to the information required from interested parties and reasonable time to respond to requests for information;
(d) accord reasonable access to information, noting that in this context
(i) "reasonable access" means access during the course of the investigation, to the extent practicable, so as to permit an opportunity to present facts and arguments as set out in paragraph (e); when it is not practicable to provide access to information during the investigation in such time as to permit an opportunity to present facts and arguments, reasonable access shall mean in time to permit the adversely affected party to make an informed decision as to whether to seek judicial or panel review, and
(ii) "access to information" means access to representatives determined by the competent investigating authority to be qualified to have access to information received by that competent investigating authority, including access to confidential (business proprietary) information, but does not include information of such high degree of sensitivity that its release would lead to substantial and irreversible harm to the owner or which is required to be kept confidential in accordance with domestic law of a Party; any privileges arising under the domestic law of the importing Party relating to communications between the competent investigating authorities and a lawyer in the employ of, or providing advice to, those authorities may be maintained;
(e) provide an opportunity for interested parties to present facts and arguments, to the extent time permits, including an opportunity to comment on the preliminary determination of dumping or of subsidization;
(f) protect confidential (business proprietary) information received by the competent investigating authority to ensure that there is no disclosure except to representatives determined by the competent investigating authority to be qualified;
(g) prepare administrative records, including recommendations of official advisory bodies that may be required to be kept, and any record of ex parte meetings that may be required to be kept;
(h) provide disclosure of relevant information, including an explanation of the calculation or the methodology used to determine the margin of dumping or the amount of the subsidy, on which any preliminary or final determination of dumping or of subsidization is based, within a reasonable time after a request by interested parties;
(i) provide a statement of reasons concerning the final determination of dumping or subsidization; and
(j) provide a statement of reasons for final determinations concerning material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.
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.
Chapter 11. TECHNICAL BARRIERS TO TRADE
Article 11.1. Definitions
1. Annex 1 of the TBT Agreement, including the chapeau and explanatory notes, is incorporated into and made part of this Chapter, mutatis mutandis.
2. For the purposes of this Chapter:
international conformity assessment systems means systems that facilitate voluntary recognition or acceptance of the results of conformity assessment or accreditation bodies by the authorities of another Party based on compliance with international standards for conformity assessment;
international standard means a standard that is consistent with the TBT Committee Decision on International Standards;
mutual recognition agreement means an intergovernmental agreement that specifies the conditions by which a Party will recognize the results of conformity assessment procedures produced by another Party's conformity assessment bodies that demonstrate fulfillment of appropriate standards or technical regulations; (1)
mutual recognition arrangement or multilateral recognition arrangement means an international or regional arrangement among accreditation bodies in the territories of the Parties, in which the accreditation bodies, on the basis of peer evaluation, accept the results of each other's accredited conformity assessment bodies or among conformity assessment bodies in the territories of the Parties recognizing the results of conformity assessment;
proposed technical regulation or conformity assessment procedure means the entirety of the text setting forth: