Annex 1901.2: Establishment of Binational Panels
1. On the date of entry into force of this Agreement, the Parties
shall establish and thereafter maintain a roster of individuals
to serve as panelists in disputes under this Chapter. The roster
shall include judges or former judges to the fullest extent practicable.
The Parties shall consult in developing the roster, which shall
include at least 75 candidates. Each Party shall select at least
25 candidates, and all candidates shall be citizens of Canada,
Mexico or the United States. Candidates shall be of good character,
high standing and repute, and shall be chosen strictly on the
basis of objectivity, reliability, sound judgment and general
familiarity with international trade law. Candidates shall not
be affiliated with a Party, and in no event shall a candidate
take instructions from a Party. The Parties shall maintain the
roster, and may amend it, when necessary, after consultations.
2. A majority of the panelists on each panel shall be lawyers
in good standing. Within 30 days of a request for a panel, each
involved Party shall appoint two panelists, in consultation with
the other involved Party. The involved Parties normally shall
appoint panelists from the roster. If a panelist is not selected
from the roster, the panelist shall be chosen in accordance with
and be subject to the criteria of paragraph 1. Each involved Party
shall have the right to exercise four peremptory challenges, to
be exercised simultaneously and in confidence, disqualifying from
appointment to the panel up to four candidates proposed by the
other involved Party. Peremptory challenges and the selection
of alternative panelists shall occur within 45 days of the request
for the panel. If an involved Party fails to appoint its members
to a panel within 30 days or if a panelist is struck and no alternative
panelist is selected within 45 days, such panelist shall be selected
by lot on the 31st or 46th day, as the case may be, from that
Party's candidates on the roster.
3. Within 55 days of the request for a panel, the involved Parties
shall agree on the selection of a fifth panelist. If the involved
Parties are unable to agree, they shall decide by lot which of
them shall select, by the 61st day, the fifth panelist from the
roster, excluding candidates eliminated by peremptory challenges.
4. On appointment of the fifth panelist, the panelists shall promptly
appoint a chairman from among the lawyers on the panel by majority
vote of the panelists. If there is no majority vote, the chairman
shall be appointed by lot from among the lawyers on the panel.
5. Decisions of the panel shall be by majority vote and based
on the votes of all members of the panel. The panel shall issue
a written decision with reasons, together with any dissenting
or concurring opinions of panelists.
6. Panelists shall be subject to the code of conduct established
pursuant to Article 1909. If an involved Party believes that a
panelist is in violation of the code of conduct, the involved
Parties shall consult and if they agree, the panelist shall be
removed and a new panelist shall be selected in accordance with
the procedures of this Annex.
7. When a panel is convened pursuant to Article 1904 each panelist
shall be required to sign:
(a) an application for protective order for information supplied
by the United States or its persons covering business proprietary
and other privileged information;
(b) an undertaking for information supplied by Canada or its persons
covering confidential, personal, business proprietary and other
privileged information; or
(c) an undertaking for information supplied by Mexico or its persons
covering confidential, business proprietary and other privileged
information.
8. On a panelist's acceptance of the obligations and terms of
an application for protective order or disclosure undertaking,
the importing Party shall grant access to the information covered
by such order or disclosure undertaking. Each Party shall establish
appropriate sanctions for violations of protective orders or disclosure
undertakings issued by or given to any Party. Each Party shall
enforce such sanctions with respect to any person within its jurisdiction.
Failure by a panelist to sign an application for a protective order or disclosure
undertaking shall result in disqualification of the panelist.
9. If a panelist becomes unable to fulfill panel duties or is
disqualified, proceedings of the panel shall be suspended pending
the selection of a substitute panelist in accordance with the
procedures of this Annex.
10. Subject to the code of conduct established pursuant to Article
1909, and provided that it does not interfere with the performance
of the duties of such panelist, a panelist may engage in other
business during the term of the panel.
11. While acting as a panelist, a panelist may not appear as counsel
before another panel.
12. With the exception of violations of protective orders or disclosure
undertakings, signed pursuant to paragraph 7, panelists shall
be immune from suit and legal process relating to acts performed
by them in their official capacity.
Annex 1903.2: Panel Procedures Under Article 1903
1. The panel shall establish its own rules of procedure unless
the Parties otherwise agree prior to the establishment of that
panel. The procedures shall ensure a right to at least one hearing
before the panel, as well as the opportunity to provide written
submissions and rebuttal arguments. The proceedings of the panel
shall be confidential, unless the two Parties otherwise agree.
The panel shall base its decisions solely on the arguments and
submissions of the two Parties.
2. Unless the Parties to the dispute otherwise agree, the panel
shall, within 90 days after its chairman is appointed, present
to the two Parties an initial written declaratory opinion containing
findings of fact and its determination pursuant to Article 1903.
3. If the findings of the panel are affirmative, the panel may
include in its report its recommendations as to the means by which
the amending statute could be brought into conformity with the
provisions of Article 1902(2)(d). In determining what, if any,
recommendations are appropriate, the panel shall consider the
extent to which the amending statute affects interests under this
Agreement. Individual panelists may provide separate opinions
on matters not unanimously agreed. The initial opinion of the
panel shall become the final declaratory opinion, unless a Party
to the dispute requests a reconsideration of the initial opinion
pursuant to paragraph 4.
4. Within 14 days of the issuance of the initial declaratory opinion,
a Party to the dispute disagreeing in whole or in part with the
opinion may present a written statement of its objections and
the reasons for those objections to the panel. In such event,
the panel shall request the views of both Parties and shall reconsider
its initial opinion. The panel shall conduct any further examination
that it deems appropriate, and shall issue a final written opinion,
together with dissenting or concurring views of individual panelists,
within 30 days of the request for reconsideration.
5. Unless the Parties to the dispute otherwise agree, the final
declaratory opinion of the panel shall be made public, along with
any separate opinions of individual panelists and any written
views that either Party may wish to be published.
6. Unless the Parties to the dispute otherwise agree, meetings
and hearings of the panel shall take place at the office of the
amending Party's Section of the Secretariat.
Annex 1904.13: Extraordinary Challenge Procedure
1. The involved Parties shall establish an extraordinary challenge
committee, composed of three members, within 15 days of a request
pursuant to Article 1904(13). The members shall be selected from
a 15-person roster comprised of judges or former judges of a federal
judicial court of the United States or a judicial court of superior
jurisdiction of Canada, or a federal judicial court of Mexico.
Each Party shall name five persons to this roster. Each involved
Party shall select one member from this roster and the involved
Parties shall decide by lot which of them shall select the third
member from the roster.
2. The Parties shall establish by the date of entry into force
of the Agreement rules of procedure for committees. The rules
shall provide for a decision of a committee within 90 days of
its establishment.
3. Committee decisions shall be binding on the Parties with respect
to the particular matter between the Parties that was before the
panel. After examination of the legal and factual analysis underlying
the findings and conclusions of the panel's decision in order
to determine whether one of the grounds set out in Article 1904(13)
has been established, and on finding that one of those grounds
has been established, the committee shall vacate the original
panel decision or remand it to the original panel for action not
inconsistent with the committee's decision; if the grounds are
not established, it shall deny the challenge and, therefore, the
original panel decision shall stand affirmed. If the original
decision is vacated, a new panel shall be established pursuant
to Annex 1901.2.
Continue on to Annexe 1904.15: Amendments to Domestic Laws