Chapter Nineteen

Review and Dispute Settlement in Antidumping

and Countervailing Duty Matters

Article 1901: General Provisions

1. The provisions of Article 1904 shall apply 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 the purposes of Articles 1903 and 1904, panels shall be

established in accordance with the provisions of Annex 1901.2.

3. With the exception of Article 2203 (Entry into Force), no

provision of any other chapter of this Agreement shall be

construed as imposing obligations on the Parties with respect to

the Parties' antidumping law or countervailing duty law.

Article 1902: 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 the Parties to this Agreement;

(b) the amending Party notifies any Party to which the

amendment applies in writing of the amending statute as

far in advance as possible of the date of enactment of

such statute;

(c) following notification, the amending Party, upon

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 another Party, is not

inconsistent with:

(i) the General Agreement on Tariffs and Trade (GATT),

the Agreement on Implementation of Article VI of

the General Agreement on Tariffs and Trade (the

Antidumping Code) or the Agreement on the

Interpretation and Application of Articles VI, XVI

and XXIII of the General Agreement on Tariffs and

Trade (the Subsidies Code), or successor

agreements to which all the original signatories

to this Agreement 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 among 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 1903: 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 1902(2)(d)(i) or (ii); or

(b) such amendment has the function and effect of

overturning a prior decision of a panel made pursuant

to Article 1904 and does not conform to the provisions

of Article 1902(2)(d)(i) or (ii).

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 1903.2.

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 upon 60-day written notice to that

Party.

Article 1904: Review of Final Antidumping and Countervailing

Determinations

1. As provided in this Article, the Parties 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

upon the administrative record, a final antidumping or

countervailing duty determination of a competent investigating

authority of a 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 this Agreement.

3. The panel shall apply the standard of review described in

Article 1909 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, upon 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 forth in this Article. No Party shall

provide in its domestic legislation for an appeal from a panel

decision to its domestic courts.

12. The provisions of 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

(iii) the panel manifestly exceeded its powers,

authority or jurisdiction set forth 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 1904.13.

14. To implement the provisions of this Article, the Parties

shall adopt rules of procedure by January 1, 1994. Such rules

shall be based, where appropriate, upon 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, with respect to goods of the other Parties, amend

their antidumping and countervailing duty statutes and

regulations, 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:

(a) each Party shall 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) each Party shall 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) each Party shall 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) Each Party shall make the further amendments set forth

in Annex 1904.15(d).

Article 1905: 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 court or panel of

competent jurisdiction that is independent of the

competent investigating authorities, that examines the

basis for the investigating authorities' determination

and whether the 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 1911,

that 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 the

provisions of this Chapter.

4. The roster for special committees shall be that established

pursuant to Annex 1904.13.1.

5. The special committee shall comprise three members selected

in accordance with the procedures set out in Annex 1904.13.1.

6. The Parties shall establish rules of procedure in accordance

with the principles set out in Annex 1905.7.

7. If the special committee makes an affirmative finding in

respect of one of the grounds specified in paragraph 1, the

complaining Party and the Party complained against shall begin

consultations within 10 days, 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:

(a) suspend the operation of Article 1904 with respect to

the Party complained against; or

(b) suspend the application to the Party complained against

of such benefits under this Agreement as may be

appropriate under the circumstances.

9. In the event that a complaining Party suspends the operation

of Article 1904 with respect to the Party complained against, the

latter Party may reciprocally suspend the operation of Article

1904. If either Party decides to suspend the operation of

Article 1904, it shall provide written notice of such suspension

to the other Party.

10. The special committee may reconvene at any time, at the

request of the Party complained against, to determine:

(a) whether the suspension of benefits by the complaining

Party pursuant to subparagraph 8(b) is manifestly

excessive; or

(b) whether 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 paragraphs 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 decision:

(a) binational panel or extraordinary challenge committee

review under Article 1904 shall be stayed

(i) with respect to 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 of this Article

and in no case later than 150 days prior to an

affirmative finding by the special committee, or

(ii) with respect to 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 for requesting panel or committee review under

Article 1904 shall be tolled.

12. If either Party suspends the operation of Article 1904

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) with respect to 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 1904; or

(b) with respect to 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 party of the complaining Party that is a

party to the panel review under Article 1904.

If either Party suspends the operation of Article 1904 pursuant

to paragraph 8(a), any time period tolled under Paragraph 11(b)

of this Article shall resume.

If such suspension does not become effective, panel or committee

review stayed under paragraph 11(a), and any time period tolled

under paragraph 8(b), shall resume.

Article 1906: Prospective Application

The provisions of this Chapter 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 1903, amendments to antidumping or

countervailing duty statutes enacted after the date of

entry into force of this Agreement.

Article 1907: 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 Chapter 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 Chapter 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, if appropriate. In the context of

these consultations, the Parties agree that it is desirable in

the administration of anti-dumping and countervailing duty laws

to:

(a) publish notice of initiation of investigations in the

importing country's official journal, setting forth the

nature of the proceeding, the legal authority under

which the proceeding is initiated, and a description of

the product 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,

including foreign interests, and reasonable time to

respond to requests for information;

(d) accord reasonable access to information

(i) "reasonable access" in this context 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 forth 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,

(ii) "access to information" in this context 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

legislation of a Party; any privileges arising

under 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 the opportunity for interested parties,

including foreign interests, 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 authorities 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 upon which

any preliminary or final determination of dumping or of

subsidization is based, within a reasonable time after

a request by interested parties, including foreign

interests. Such information shall include an

explanation of the calculation or the methodology used

to determine the margin of dumping or the amount of

subsidy;

(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 paragraphs (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 1904 in determining whether such determination was in

accordance with the antidumping or countervailing duty law of the

importing Party.

Article 1908: Special Secretariat Provisions

1. The Parties shall establish a section within the Secretariat

established pursuant to Article 2002 to facilitate the operation

of this Chapter and the work of panels or committees that may be

convened pursuant to this Chapter.

2. The secretaries of the Secretariat established pursuant to

Article 2002 shall act jointly to service all meetings of panels

or committees established pursuant to this Chapter. The

secretary 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 the permanent offices. Such

secretary shall upon request provide to the secretary of any

other 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 of the 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

Chapter 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. Each secretary shall forward to the secretary of the other

involved Party copies of all official letters, documents or other

papers received or filed with the Secretariat office pertaining

to any proceeding before a panel or committee, except for the

administrative record, which shall be handled in accordance with

paragraph 1. The secretary of an involved Party shall provide

upon request to the secretary of the Party that is not an

involved Party in the proceeding a copy of such public documents

as are requested.

5. The remuneration of panelists or committee members, their

travel and lodging expenses, and all general expenses of the

panels or committees shall be borne equally by the involved

Parties. Each panelist or committee member shall keep a record

and render a final account of the person's time and expenses, and

the panel or committee shall keep a record and render a final

account of all general expenses. The Commission shall establish

amounts of remuneration and expenses that will be paid to the

panelists and committee members.

Article 1909: Code of Conduct

The Parties shall, by the date of entry into force of this

Agreement, exchange letters establishing a code of conduct for

panelists and members of committees established pursuant to

Articles 1903, 1904 and 1905.

Article 1910: Miscellaneous

Upon request, the competent investigating authority of a

Party shall provide the other Party or Parties with copies of all

public information submitted to it for the purposes of an

investigation with respect to goods of that other Party or

Parties.