Chapter Twelve Dispute Resolution

Article 12.1: Cooperation

  1. The Parties undertake to resolve disputes in a conciliatory, cooperative and harmonious manner.
  2. The Parties shall make every attempt through cooperation, consultations and other dispute avoidance and resolution processes available to them, including the assistance of the Ministers responsible for this Agreement, to arrive at a mutually satisfactory resolution of any matter that may affect the operation of this Agreement.

Article 12.2: Application1

  1. Subject to paragraphs 2 and 3, this Chapter applies to the avoidance and resolution of disputes between Parties, regarding the interpretation or application of this Agreement.
  2. This Chapter applies to Chapter 7 (Financial Services), subject to Article 7.8 (Exceptions), and as modified by Articles 7.11 (Dispute Resolution) and 7.12 (Financial Services Experts Roster).
  3. This Chapter does not apply to complaints made under Article 9.19 (Bid protest procedures). For greater certainty, a Party may not initiate a dispute under this Chapter on behalf of a supplier with respect to a complaint under Article 9.19 (Bid protest procedures).
  4. This Chapter applies to Chapter 10 (Agriculture and Food Goods), subject to paragraphs 3 and 4 of Article 10.2 (Scope and Coverage), and to Article 10.5 (Dispute Settlement).
  5. Where a Party believes that a measure may be inconsistent with both the Agreement on Internal Trade and this Agreement, it may choose one dispute resolution process and, once chosen, shall have no recourse to the other process regarding the same measure.

Article 12.3: Consultations

  1. A Party that considers that a measure of the other Party is or would be inconsistent with that Party’s obligations under this Agreement may request consultations with that Party by delivering written notice to that other Party and to the Secretariat. The notice shall specify the actual or proposed measure complained of, the relevant provisions of this Agreement and a brief summary of the complaint.
  2. Consultations shall be confidential and without prejudice to the rights of the Consulting Parties in any Proceedings.
  3. The Disputing Parties shall exchange all information necessary to enable a full examination to be made of how the actual or proposed measure or other matter may affect the operation of this Agreement. In so doing, the Consulting Parties shall treat any confidential information received on the same basis as the Party providing the confidential information treats it.

Article 12.4: Request for Panel

  1. Where the matter in question has not been resolved to the satisfaction of the Initiating Party, that Party may make a written request to the Secretariat to establish a Panel. No request to establish a Panel may be made sooner than one hundred twenty (120) days after the Initiating Party delivered a request for consultations to the Replying Party pursuant to Article 12.3(1).
  2. A request to establish a Panel shall:
    1. specify the actual or proposed measure complained of;
    2. list the relevant provisions of this Agreement;
    3. provide a brief summary of the complaint;
    4. explain how the measure has impaired or would impair trade between the Parties; and
    5. identify the actual or potential injury or denial of benefit caused by the actual or proposed measure.
  3. The Panel shall be established in accordance with Article 12.5 and shall be composed of three members unless the Disputing Parties agree to a Panel composed of one member.

Article 12.5: Establishment of Presiding Body

  1. Unless inconsistent with, or otherwise required by provisions in this Chapter, a Presiding Body shall be established in accordance with paragraphs 2 to 8.
  2. For the purpose of these dispute resolution procedures, Disputing Parties shall use the Panel, Compliance Panel and Appellate Panel Rosters maintained by the Parties to the Agreement on Internal Trade pursuant to its Annex 1704(2) (Panel, Compliance Panel and Appellate Panel Rosters).2
  3. Within thirty (30) days after the date of delivery by the Complaining Party to the Secretariat of a request to establish a Presiding Body, each Disputing Party shall appoint one bilingual (French and English) Panelist that was nominated to the roster by the other Party. If the Parties have agreed to a Presiding Body composed of one member, they shall agree, within the thirty (30) days, on a bilingual Panelist from the roster with administrative law experience as identified pursuant to paragraph 4 of Annex 1704(2) of the Agreement on Internal Trade.
  4. If a Disputing Party fails to appoint a Panelist within thirty (30) days, or, if the Parties have agreed to a Presiding Body composed of one member and the Parties fail to agree on a Panelist within thirty (30) days, the Secretariat shall select the bilingual Panelist by lot, from the roster.
  5. The appointed Panelists shall, within ten (10) days after the last of them has been appointed, select a bilingual chairperson of the Presiding Body from the roster. If they are unable to agree within that period, the Secretariat shall select the bilingual chairperson by lot from the roster.
  6. If neither of the Panelists appointed or selected pursuant to this Article has administrative law experience as identified pursuant to paragraph 4 of Annex 1704(2) of the Agreement on Internal Trade, the Panelists or the Secretariat, as the case may be, shall select a person with administrative law experience to be the chairperson.
  7. Unless the Disputing Parties otherwise agree, the Panelists or the Secretariat, as the case may be, shall not appoint or select as the chairperson of a Presiding Body any roster member who has been appointed to the roster by a Disputing Party, or is resident in the Province of a Disputing Party.
  8. If a bilingual Panelist with appropriate experience cannot be found within the rosters maintained under Annex 1704 (2) of the Agreement on Internal Trade, a Disputing Party, the Panelists or the Secretariat, as the case may be, may appoint a bilingual candidate with the appropriate qualifications from the public at large.
  9. Unless otherwise specified or unless the Disputing Parties otherwise agree, the terms of reference for a Presiding Body shall be to examine whether the actual or proposed measure or other matter at issue is or would be inconsistent with this Agreement.

Article 12.6: Presiding Body Rules of Procedure

  1. The Panel, Compliance Panel and Appellate Panel Rules of Procedure set out in Annex 12.6 shall apply to all proceedings unless modified, where appropriate, by a Presiding Body.
  2. A Presiding Body may seek information and expert advice from any person or body that it considers appropriate, provided that the Disputing Parties so agree and subject to the following and to such other terms and conditions as the Disputing Parties may agree.
    1. If a procedural question arises, the Presiding Body shall first seek advice from the Disputing Parties. If the procedural question is not resolved to the satisfaction of the Presiding Body, the Presiding Body may request that the Secretariat obtain independent legal advice on the procedural question.
    2. A request pursuant to paragraph (a) shall be in writing to the Secretariat, with copies to the Disputing Parties, and shall outline the procedural question on which advice is sought. The Secretariat shall retain appropriate counsel and transmit the advice immediately to the Presiding Body, with copies to the Disputing Parties.
  3. All proceedings before a Presiding Body shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit.

Article 12.7: Report of Panel

  1. The Panel shall issue a Report based on the submissions of the Disputing Parties and any other information received during the course of the Proceeding.
  2. If the Panel cannot release its final Report within the period mentioned in Rule 43 of Annex 12.6, it does not lose jurisdiction and shall inform the Disputing Parties in writing of the reasons for the delay together with an estimate of the date by which it will issue its Report.
  3. The Report shall contain:
    1. findings of fact;
    2. a determination, with reasons, as to whether the measure in question is or would be inconsistent with this Agreement;
    3. if, under (b), the measure has been found inconsistent, a determination, with reasons, as to whether the measure has impaired or would impair trade and has caused or would cause injury;
    4. recommendations, if requested by a Disputing Party, to assist in resolving the dispute;
    5. where applicable, and at the discretion of the Panel, a stipulation of the period within which the Complaint Recipient must comply with this Agreement, and
    6. A determination as to apportionment of operational costs as provided in Rule 62 of Annex 12.6.
  4. The Panel retains jurisdiction for the purpose of the assessment of a cost order subsequent to the issuance of its Report, and may at the request of a Disputing Party, or on its own initiative, make an order for Operational Costs specifying the amount payable by a Party to the Secretariat.
  5. Within ten (10) days after the receipt of the Report, a Disputing Party may, with notice to the chairperson of the Panel, the Secretariat and to the other Disputing Party, request that the Panel:
    1. clarify one or more aspects of its Report, in which case the Panel shall, within fifteen (15) days of receipt of the notice, provide the clarification; and
    2. correct in its Report any errors in computation or translation, any clerical or typographical errors, or any errors of a similar nature, in which case the Panel may, within fifteen (15) days of receipt of the notice, make such corrections as it considers appropriate.

Article 12.8: Appellate Panel: Jurisdiction and Process

  1. A Disputing Party may appeal a Panel Report to an Appellate Panel on the grounds that the Panel erred in law, failed to observe a principle of natural justice or acted beyond or refused to exercise its jurisdiction.
  2. Where a Disputing Party provides a notice of appeal as provided in Rule 46 of Annex 12.6, an Appellate Panel shall be established in accordance with Article 12.5 and, notwithstanding Article 12.5(3), shall be composed of three members.
  3. Upon receipt by the Secretariat of a notice of appeal, any requirement for a Complaint Recipient to comply with this Agreement within a stipulated time or to pay Operational Costs is suspended until such time as the appeal, and any subsequent re-hearing by the Panel that may be required, are concluded.
  4. The Appellate Panel shall, on the completion of the hearing, issue a report with reasons that:
    1. may confirm, vary, rescind, or substitute the Report of the Panel in whole or in part, or refer the matter back to the Panel for re-hearing; and
    2. shall award Operational Costs in accordance with Rule 62 of Annex 12.6.
  5. If the Appellate Panel cannot release its final report within the period stipulated in Rule 52 of Annex 12.6, it does not lose jurisdiction and shall inform the Parties in writing of the reasons for the delay together with an estimate of the date by which it will issue its decision.
  6. The Appellate Panel retains jurisdiction for the purpose of the assessment of a cost order subsequent to the issuance of its report, and may, at the request of a Disputing Party or on its own initiative, order Operational Costs to be paid and specify to whom it is payable.
  7. If a matter is not referred back for re-hearing, the Appellate Report is deemed to be a Panel Report for purposes of determining compliance under Article 12.11 or matters under Article 12.16, together with those parts of the Report which have not been superseded by the Appellate Report.
  8. If an Appellate Panel refers a matter back to the Panel for re-hearing, the Secretariat shall fix a date to reconvene the Panel forthwith.
  9. Within ten (10) days after receipt of the Appellate Report, either Party may, with notice to the Secretariat, request that the Appellate Panel:
    1. clarify one or more aspects of its Report, in which case the Appellate Panel shall, within fifteen (15) days of receipt of the notice, provide the clarification; and
    2. correct in its report any errors in computation or translation, any clerical or typographical errors, or any errors of a similar nature, in which case the Appellate Panel may, within fifteen (15) days of receipt of the notice, make such corrections as it considers appropriate.

Article 12.9: Mutually Satisfactory Resolution

  1. The Parties agree that the prompt resolution of disputes is for the benefit of all Parties.
  2. Wherever possible, a dispute shall be resolved by removing, amending or not implementing the measure that is or would be inconsistent with this Agreement.
  3. Where the Disputing Parties resolve the dispute at any stage of a Proceeding, written notice of such resolution shall be delivered to the Secretariat. Upon receipt of such notification by the Secretariat, the Proceeding shall be terminated.
  4. Proceedings may be suspended at the request of the Disputing Parties in order to negotiate a mutually satisfactory resolution.
  5. Where a Proceeding has been suspended pursuant to Article 12.9(4), if no Disputing Party has made an application to end the suspension within thirty-six (36) months of the date of suspension, the complaint that initiated the Proceeding is deemed to have been withdrawn and the Proceeding shall be terminated.

Article 12.10: Confirmation of Compliance

  1. After a Panel has determined in a Report that a Complaint Recipient has not complied with this Agreement, the Complaint Recipient may notify the Complaining Party that it has complied with the Agreement in respect of the matters addressed in the Report. Such notice shall be in writing, shall include a description of the manner of such compliance, and shall be delivered to the Complaining Party and to the Secretariat.
  2. A Complaining Party may, within thirty (30) days of delivery to it of the notice pursuant to paragraph 1, object to the notice. Such objection shall be in writing, shall include a description of the reasons for its objection, and shall be delivered to the Complaint Recipient and to the Secretariat.
  3. Where no objection has been delivered pursuant to paragraph 2, a Party that provides notice pursuant to paragraph 1 is deemed to have complied with the Agreement in respect of the matters addressed in the Report.

Article 12.11: Request for Compliance Panel

  1. Upon the expiry of one (1) year following the issuance of a Report, or, where applicable, upon the expiry of an alternate implementation period stipulated by the Panel in its Report, a Disputing Party may request that the Secretariat reconvene the Panel as a Compliance Panel to make a determination as to whether the Complaint Recipient has complied with this Agreement in respect of the matters addressed in the Report.
  2. Notwithstanding paragraph 1, a Complaint Recipient may request a Compliance Panel immediately upon receipt of an objection made pursuant to Article 12.10(2).
  3. The Compliance Panel shall issue a Compliance Report containing:
    1. a determination on whether or not the Complaint Recipient has, with regard to the matter in dispute, brought itself into compliance with this Agreement;
    2. where the determination is that there has not been compliance, a monetary penalty order made in accordance with Articles 12.12(1) and (2);
    3. at the discretion of the Compliance Panel, an order apportioning Operational Costs, as provided for in Rule 62 of Annex 12.6.
  4. The Compliance Panel retains jurisdiction for the purposes of assessing an Operational Costs order after it issues its Compliance Report, and may, at the request of a Disputing Party or on its own initiative, make an order for Operational Costs specifying the amount payable by a Disputing Party to the Secretariat.
  5. Within ten (10) days after receipt of the Compliance Report, a Disputing Party, with notice to the chairperson of the Compliance Panel, the Secretariat and the other Disputing Party, may request that the Compliance Panel:
    1. clarify one or more aspects of its Compliance Report, in which case the Compliance Panel shall, within fifteen (15) days of receipt of the notice, provide the clarification; and
    2. correct in the Compliance Report any errors in computation or translation, any clerical or typographical errors, or any errors of a similar nature, in which case the Compliance Panel may, within fifteen (15) days of receipt of the notice, make such corrections as it considers appropriate.
  6. If the Compliance Panel cannot release its final report within the period mentioned in Rule 57 of Annex 12.6, it does not lose jurisdiction and shall inform the Parties in writing of the reasons for the delay together with an estimate of the date by which it will issue its report.

Article 12.12: Monetary Penalty

  1. In determining the amount of a monetary penalty, the Compliance Panel shall be guided by the primary purpose of a monetary penalty which is to encourage compliance with this Agreement, and the Compliance Panel shall also consider:
    1. the seriousness of the inconsistency with the Party’s obligations under the Agreement;
    2. the commercial prejudice caused by the inconsistency on the market or markets;
    3. whether the Party has made efforts, in good faith, to comply with the Report; and
    4. any other factor the Compliance Panel considers relevant.
  2. The amount of a monetary penalty in a dispute proceeding shall not exceed ten million dollars.

Article 12.13: Limiting Judicial Review/Privative Clause

  1. Unless appealed pursuant to Article 12.8, a Report of a Panel is final and is not subject to judicial review.
  2. A report of a Compliance Panel or Appellate Panel is final and is not subject to judicial review.

Article 12.14: Failure to Participate/Discontinuance

The failure of a Disputing Party to participate, or to continue its participation, in any Proceedings shall not affect the jurisdiction of a Presiding Body which may proceed in that Disputing Party’s absence. A Presiding Body may make an Operational Cost award against a Disputing Party that fails to participate or to continue its participation.

Article 12.15: Publication - Ministerial Council’s Agenda

  1. The Secretariat shall make the report of a Presiding Body public thirty (30) days after the date on which it was issued, or sooner if the Disputing Parties agree.
  2. A Disputing Party may request the Secretariat to add a dispute which was the subject of a report issued by a Presiding Body to the Ministerial Council’s agenda for its next annual meeting. However, such a request may not be made sooner than thirty (30) days after the date on which the report was issued. The dispute shall remain on the agenda for every annual Ministerial Council meeting thereafter until the matter is resolved.
  3. Where a dispute has been added to the Ministerial Council’s agenda pursuant to paragraph 2, the Complaint Recipient shall, at least ten (10) days before each annual Ministerial Council meeting whose agenda includes the dispute, provide the Ministerial Council, through the Secretariat, with a written status report on the Complaint Recipient’s progress in implementing the Panel’s recommendations in the Report or in arriving at a resolution of the dispute.

Article 12.16: Non-Implementation – Retaliatory Action

  1. If, in its Report, a Panel has determined that an actual measure is inconsistent with this Agreement and the dispute has not been resolved within one year after the date on which the Panel issued its Report, or if the Panel has stipulated an alternate implementation period, by the end of such alternate period, the complaining Party may then give written notice to the Ministerial Council, through the Secretariat, of its intention to take retaliatory action against the Complaint Recipient.
  2. Subject to having notified the Ministerial Council of its intention in accordance with paragraph 1, the complaining Party may, within thirty (30) days after the date of delivery of the notification, suspend benefits of equivalent effect or, where this is impracticable, impose retaliatory measures of equivalent effect against the Complaint Recipient until such time as a mutually satisfactory resolution of the dispute is achieved.
  3. In considering what benefits to suspend or retaliatory measures to impose, the complaining Party shall:
    1. suspend benefits or impose retaliatory measures in the same sector as the measure found to be inconsistent with this Agreement; and<
    2. only if such suspension or imposition would be impracticable or ineffective, suspend benefits or impose retaliatory measures in other sectors covered by this Agreement.
  4. On the written request of a Disputing Party delivered to the other Party and the Secretariat, the Secretariat shall convene a Panel, composed of the original Panelists, where possible, within thirty (30) days after the date of delivery of the request, to determine whether the suspension of benefits or the imposition of retaliatory measures by a complaining Party under paragraph 2 is manifestly excessive.
  5. The Parties recognize that any suspension of benefits or imposition of retaliatory measures under paragraph 2 will be temporary and shall only be applied until the Complaint Recipient has amended or removed the inconsistent measure or has otherwise taken action to resolve the dispute.
  6. No separate Panel shall be established under paragraph 4 where a Compliance Panel is established under Article 12.11(1).
  7. A Compliance Panel established under Article 12.11(1) shall have the jurisdiction of a Panel established under paragraph 4.

Article 12.17: Code of Conduct

Presiding body members of the Panel, Compliance Panel and Appellate Panel shall conduct themselves in accordance with Annex 1719 (Code of Conduct for Panelists) of the Agreement on Internal Trade, which shall be read and interpreted as if it where part of this Agreement.

Article 12.18: Limit on Jurisdiction

For greater certainty, a Presiding Body has no jurisdiction to rule on any constitutional issue.

Article 12.19: Contact Points

  1. Where this Chapter requires notice to be sent to a Party, the point of contact for notice shall be that person identified to the Secretariat by the Party as being responsible for the relevant Chapter of Part IV of this Agreement. Where no such person is identified, the point of contact shall be that Party’s Minister responsible for the implementation of this Agreement.
  2. Where this Chapter requires a notice, request, report or other document to be sent to the Ministerial Council or a Presiding Body, it shall be sent to the chairperson of the Council or Presiding Body, as the case may be.

Article 12.20: Definitions

In this Chapter:

Appellant means the Disputing Party appealing a Panel decision pursuant to Article 12.8;

Appellate Panel means a Panel established pursuant to Article 12.8(2);

Appellate Report means a report issued by an Appellate Panel pursuant to Article 12.8(4);

Compliance Panel means a Panel convened pursuant to a request made in accordance with Article 12.11(1);

Compliance Report means a report issued by a Compliance Panel pursuant to Article 12.11(3);

Complaining Party means the Party that has requested a Panel pursuant to Article 12.4(1);

Complaint Recipient means the Party complained against by a Complaining Party pursuant to Article 12.4(1);

Consulting Parties means the Initiating Party and Replying Party;

Disputing Parties means the Complaining Party and the Complaint Recipient;

Initiating Party means a Party that has requested consultations pursuant to Article 12.3(1);

Ministerial Council means the council established pursuant to Article 2.2 of this Agreement;

Operational Costs means all per diem fees and other disbursements payable to Presiding Body members for the performance of their duties as Presiding Body members, fees and disbursements of experts retained by the Presiding Body pursuant to Article 12.6(2) and costs of third Party facilities and equipment used for meetings or hearings involving the Presiding Body;

Panel unless otherwise specified means the Panel established pursuant to Article 12.4(1);

Panelist means a person appointed to a Panel;

Presiding Body means, as the case may be, a Panel, Compliance Panel or Appellate Panel;

Proceeding means a Proceeding before a Panel, Compliance Panel or Appellate Panel, as the case may be;

Report means the report of a Panel issued pursuant to Article 12.7 and includes any amendments made to, or substitutions made for, that report as a result of an appeal;

Replying Party means the Party with which an Initiating Party has requested consultations pursuant to Article 12.3(1);

Respondent means the Disputing Party against which an appeal of a Panel decision is taken pursuant to Article 12.8.

Annex 12.6
Panel, Compliance Panel and Appellate Panel Rules of Procedure

These Rules are intended to give effect to the provisions of Chapter Twelve with respect to Panel, Compliance Panel and Appellate Panel Proceedings conducted pursuant to that Chapter. These Rules should not be construed to extend or limit the jurisdiction of Presiding Bodies.

Application

  1. These Rules are established under Article 12.6 and shall apply to dispute resolution proceedings under Chapter 12.

General Rules

  1. Subject to these Rules, the Presiding Body is to conduct Proceedings in such manner as it considers appropriate, provided that the Proceedings are transparent, that the Parties are treated with equality and that at any stage of the Proceedings each Party is given a full opportunity to present its case.

Interpretation

  1. These Rules shall be liberally construed to secure the fairest, most transparent, least expensive and most expeditious determination of every Proceeding.

Directions on Procedure

  1. Where, in any Proceeding, a question of procedure arises to which these Rules do not provide an answer, or the answer they do provide is incomplete, the question shall be disposed in such manner as the Presiding Body decides is reasonable in the circumstances and consistent with principles of fairness.
  2. To provide for a more expeditious process in a manner that is reasonable in the circumstances and consistent with principles of fairness, the Presiding Body may vary or supplement any of these Rules if it is fair and equitable to do so.

Extending or Abridging Time Limits

  1. If it is fair and equitable to do so, the Presiding Body may extend or abridge the time limits fixed by these Rules or otherwise fixed by the particular Presiding Body, either before or after their expiry.

Defect in Form and Irregularity

  1. No proceeding is invalid by reason of a defect in form or a technical irregularity.

Responsibilities of the Secretariat

  1. The Secretariat shall provide administrative support for all Proceedings, including making arrangements necessary for all oral hearings and meetings of the Presiding Body.
  2. The Secretariat shall maintain the record of each Proceeding, comprised of all relevant documents, including originals or copies, filed in thatProceeding. Where necessary, the Secretariat may certify copies as true copies of the original. All documents filed shall be stamped by the Secretariat to show the file identification number and date and time of receipt.
  3. The Secretariat shall forward copies of any request for a Panel Review pursuant to Article 12.4(1), request for a Compliance Panel Review pursuant to Article 12.11(1), and Notice of Appeal pursuant to Article 12.8(2), to the other Party and shall forward copies of all other documents and submissions filed with the Secretariat in a Proceeding to the other Disputing Party.
  4. The Secretariat shall advise the Disputing Parties in a timely manner of the time and location of all hearings and meetings before the Presiding Body in a proceeding.
  5. The Secretariat shall enter into the record all reports, decisions, orders and directions made by the Presiding Body and shall forward to Parties in a Proceeding copies of all such reports, decisions, orders and directions or other written communications of the Presiding Body. Where an order for a monetary penalty has been made by a Compliance Panel, the Secretariat shall forward a certified copy of the order to each Party affected by the order.

Translation and Interpretation

  1. Written documents and submissions filed by a Disputing Party in connection with or during a Proceeding, and oral hearings, may be in either official language.
  2. The Secretariat shall provide for interpretation and translation, as the case may be, of written documents and submissions, oral hearings and reports of presiding bodies, if a Disputing Party or a member of the Presiding Body so requests. Disputing Parties are encouraged to provide documents and submissions in both official languages whenever feasible.
  3. When a report of a Presiding Body is made public, it shall be issued in both official languages simultaneously. Each version shall be equally authentic.

Operation of the Presiding Body

  1. The chairperson of the Presiding Body of a Proceeding shall take the chair at all its meetings.
  2. The chairperson of the Presiding Body shall fix the date and hour of its hearings in accordance with these Rules following consultations with other Presiding Body members and the Secretariat.
  3. Except to the extent that a Presiding Body otherwise directs, hearings shall be public.
  4. The majority and dissenting opinions of Presiding Body members shall be anonymous.
  5. Presiding Body meetings other than hearings may be conducted by telephone conference call or other electronic means.
  6. A Presiding Body may adopt its own internal procedures for routine administrative matters.

Confidentiality

  1. Where a Disputing Party indicates that any information contained in documents filed with the Secretariat in connection with a Proceeding, is to be treated confidentially:
    1. because the information is commercially sensitive or otherwise protected by law; or
    2. because its disclosure could impair international relations or obligations;

      the Secretariat, the Presiding Body and the other Disputing Party shall take all necessary steps to protect the confidentiality of the information and may enter into pre- hearing agreements regarding the protection of such information.

  2. A Disputing Party may disclose to other persons such information in connection with a Proceeding as it considers necessary to prepare its case, but it shall take all necessary steps to ensure that such other persons maintain the confidentiality of the information.
  3. The Secretariat shall take all necessary steps to ensure that experts, interpreters, translators, court Reporters and other individuals retained by the Secretariat maintain the confidentiality of any information designated as confidential.
  4. On request of a Party, the other Disputing Party shall promptly deliver to the Party and the Secretariat a non-confidential summary of its written submissions.
  5. The Presiding Body shall make the Disputing Parties' written submissions available to the public no later than at the beginning of the hearing before it,except those parts of the written submissions that contain proprietary or confidential information as specified in Rule 22.

Prior Contact with Presiding Body Member Prohibited

  1. A Party intending to appoint a Presiding Body member pursuant to any provision of this Chapter 12 shall not contact the proposed Presiding Body member regarding his or her appointment or regarding any other matter related to the dispute or to any issue to be decided by the Presiding Body.

Panel Proceedings: Notice of Appearance

  1. The Complaint Recipient shall file a notice of appearance with the Secretariat within fifteen (15) days after receiving, from the Secretariat, a request for a Panel under Article 12.4.
  2. The Secretariat shall forward copies of a notice of appearance received under Rule 28 to the other Party.

Panel Proceedings: Written Submissions

  1. A Disputant that has requested a Panel shall file a written submission with the Secretariat within forty-five (45) days after the date on which it delivered the request to the Secretariat and the Secretariat shall forward a copy of the submission to the Complaint Recipient.
  2. The written counter-submissions of the Complaint Recipient shall be filed with the Secretariat within forty-five (45) days after the initial written submission has been filed with the Secretariat and the Secretariat shall forward a copy of the written submissions to the Complainant.
  3. The Panel may allow further written submissions and shall fix the time for their filing.
  4. The Panel may convene a pre-hearing conference in order to determine:
    1. the timing and the location of the hearing;
    2. the order in which the Disputing Parties will be heard at the hearing;
    3. subject to Rule 34, whether an issue in the dispute is within the scope of the Agreement; and
    4. any other matter relevant to the Proceeding.
  5. For the purposes of paragraph (c) of Rule 33:
    1. "scope" means the range of rights and obligations encompassed by the Agreement;
    2. the Panel may refuse to make the requested determination and instead direct that the issue be dealt with at the Panel hearing.

Panel Proceedings: Hearing

  1. The Panel shall fix the date for the hearing within thirty (30) days of receipt of the last written submission and the Secretariat shall forward notice of the date to the Disputing Parties.
  2. The hearing shall, unless the Disputing Parties otherwise agree, be held in the capital city of the Complaint Recipient.
  3. All Panelists must be present during the hearing. A Disputing Party who has not filed submissions may not present oral arguments without the consent of the Panel and the other Disputing Party.
  4. Except to the extent that a Presiding Body otherwise directs, the hearing shall be conducted in the following manner:
    1. argument of the Complaining Party;
    2. argument of the Complaint Recipient;
    3. reply of the Complaining Party.
  5. Oral arguments shall be limited to the issues in dispute.
  6. Where interpretation or translation services are used during a hearing, a Presiding Body shall ensure that Disputing Parties requiring such services are afforded sufficient additional time to make their arguments, presentations or replies.

Panel Proceedings: Supplementary Written Submissions

  1. The Panel may at any time during a Proceeding address questions in writing to any of the Disputing Parties. The Panel shall deliver the written questions to the Disputing Party to whom the questions are addressed through the Secretariat, which shall also provide for delivery of copies of the questions to the other Disputing Party.
  2. A Disputing Party to whom the Panel addresses written questions shall deliver a copy of any written reply to the Secretariat, which in turn shall provide for the delivery of copies of the reply to the other Disputing Party who shall be given the opportunity to provide written comments on the reply within five days after the date of delivery.

Panel Proceedings: Report of Panel

  1. The Panel shall within forty-five (45) days after the date the hearing was completed or such other period of time as the Disputants may agree, issue a report based on the submissions of the Disputing Parties and any other information received during the course of the Proceeding.

Notice of Suspension and Negotiation of Mutually Satisfactory Resolution

  1. Where the Disputing Parties, at any time prior to the issuance of the report of the Presiding Body, agree to suspend the dispute Proceedings for the purposes of negotiating or achieving a mutually satisfactory resolution of the dispute, they shall provide written notification of their agreement to suspend the dispute Proceedings to the Secretariat.
  2. Where the dispute Proceedings have been suspended by consent of the Disputing Parties, any such Party may withdraw its consent and resume the dispute Proceedings at any time subject to procedural direction by the Presiding Body.

Appellate Panel

Notice of Appeal

  1. A Disputing Party that decides to appeal shall provide to the Secretariat and the other Party a notice of appeal that briefly outlines its grounds of appeal and the relief sought.
  2. No appeal may be taken if a notice of appeal has not been provided within thirty (30) days of the issuance of the Panel Report.

Written Submissions

  1. Within seventy-five (75) days of the date of the Panel Report, the Appellant shall provide a written submission in support of its appeal to the Respondent and to the Secretariat.
  2. Within forty-five (45) days of receipt of the Appellant’s submission, the Respondent shall provide a written response to the Appellant and to the Secretariat.

Hearing

  1. Upon receipt of the Notice of Appeal by the Secretariat, a hearing before the Appellate Panel shall be convened forthwith.
  2. Except to the extent the Presiding Body otherwise directs,
    1. the hearing shall be held in the capital city of the Respondent, and
    2. the hearing shall be conducted in the following manner:
      1. Oral argument of the Appellant followed by
      2. Oral argument of the Respondent.

Timing of the Decision of the Appellate Body

  1. The Appellate Panel shall, within ninety (90) days of the completion of the hearing, issue a decision.

Compliance Panel

  1. A Party making a request for a Compliance Panel shall do so in writing and shall deliver it to the other Disputing Party and to the Secretariat and shall include written submissions supporting its position.
  2. Roster members who served on the Panel will also comprise the Compliance Panel. Where one or more members of the Panel are no longer available to serve on the Compliance Panel, members will be appointed in accordance with the procedure set out in Rule 61.
  3. A Disputing Party notified of a request for a Compliance Panel may, within sixty (60) days of receipt of such notice, provide a written reply to submissions delivered pursuant to Rule 53 and shall deliver it to the other disputing Party and to the Secretariat.
  4. The Compliance Panel shall consider submissions of the Parties and may seek further written clarification from them. The Compliance Panel may also, at its discretion, convene a hearing with Disputing Parties.
  5. The Compliance Panel shall issue a Compliance Report within forty-five (45) days of the expiry of the deadline for submissions by disputing Parties under Rule 55 or, where a compliance hearing is held, within forty-five (45) days of the conclusion of the hearing.

Discontinuance

  1. The Complaining Party shall discontinue its participation in the process by filing with the Secretariat a notice of discontinuance, and by serving forthwith a copy of it on the other Disputing Party.

Convening of Panel under Article 12.16

  1. Where a Panel is convened under Article 12.16(4) to determine whether the suspension of benefits or the imposition of retaliatory measures by a complaining Party is manifestly excessive, the Panel shall issue its decision within forty-five (45) days after the matter is referred to it.
  2. The Panel shall as soon as possible after being convened under Article 12.16(4), determine the manner in which it intends to proceed and shall through the Secretariat, notify the Disputing Parties thereof.

Unavailability of Panelist

  1. Where a Panel is to be convened or reconvened pursuant to any provision of Chapter 12, and a Panelist is unable to participate, that Panelist shall be replaced by a bilingual Panelist selected by lot by the Secretariat excluding any person appointed to the roster by the disputing Parties, and ensuring that one member of the Panel has administrative law experience as outlined in Annex 1704(2) (Panel, Compliance Panel and Appellate Panel Rosters) of the Agreement on Internal Trade

Payment of Presiding Body Operational Costs

  1. Unless otherwise specified, operational costs shall be divided equally between Disputing Parties. However, the Panel may apportion operational costs otherwise where justified by the following considerations:
    1. whether the Disputants complied with Article 12.1;
    2. the outcome of the Proceedings; and
    3. other relevant considerations that may justify assessing a major part of the responsibility for Operational Costs to one of the Disputants.
  2. For greater certainty, any other costs incurred unilaterally by a Party including but not being limited to counsel, agents, or experts fees and disbursements shall be born exclusively by that Party.

1As modified by the September 2015 Second Protocol of Amendment

2Pending the addition of Annex 1704(2) to the Agreement on Internal Trade through the 10th Protocol of Amendment, Disputing Parties shall use the Roster established pursuant to Annex 1704.1 of the same Agreement.