Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/nafta/19dum_a.asc

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                             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.