Annex

Annex 1001.4(c)(ii): Irrevocable Standby Letter of Credit

(To be printed on Bank letterhead)

Month xx, 20__

TO :  Internal Trade Secretariat Corporation (“ITSC”), Trustee for the beneficiaries

Re: Irrevocable Standby Letter of Credit No.      X,

At the request of the PROVINCE of ___________ ,______________(name and address of the bank or financial institution) (the “Bank”) hereby issues in favour of the Internal Trade Secretariat Corporation (“ITSC”), acting as trustee for the Signatories listed in Exhibit “A” (the “Signatories”) to the Canadian Free Trade Agreement , as amended (“CFTA”), this irrevocable Standby Letter of Credit No.__________ (the “Standby”) in the total amount of ______________ (the maximum amount for the Province set out in CFTA Annex 1011.2 and 1028.2) (the “Available Amount”) which is available on receipt by the Bank of:

  1. a written demand from the ITSC for payment addressed to the Bank bearing the clause “drawn under irrevocable Standby Letter of Credit No.________, issued by the Bank”;
  2. a certified copy of the Compliance Panel Order for a Monetary Penalty in the form attached in Exhibit “B”;
  3. a Certificate of the Managing Director of ITSC stating that it has the right to present a demand for payment in accordance with the CFTA; and
  4. a Direction executed by the Managing Director of ITSC instructing the Bank to pay the amount or amounts drawn therein to the Beneficiaries in accordance with the Certificate of Penalty.

The Bank agrees to pay to the Signatories identified as the Complaining Party or Parties in the aforementioned Certificate of Penalty and in the Direction an amount up to _____________ (Available Amount), and to provide the ITSC written confirmation and details of payment.

The Bank will honour any demand for payment under this Standby without any enquiry on its part as to whether ITSC is entitled to make such demand and notwithstanding any disputes or objections between the Province of _______________ and ITSC or any of the Signatories. ITSC shall not have any obligation to institute legal Proceedings against the Province before presenting a demand for payment pursuant to this Standby.

EXPIRY DATE

This Standby shall expire at _____ on ______________ (insert date corresponding to five years from the date of its issuance) (the “Expiry Date”).

IRREVOCABILITY

This Standby shall remain in full force and effect until the earlier of the Expiry Date or the date on which the Bank receives:

  1. from ITSC, a written notice confirming:
    1. that the Province of ____________ has withdrawn from the CFTA in accordance with Article 1214 (Accession and Withdrawal) or
    2. that the Standby is no longer required, or
  2. from ITSC solely or from the Province of ____________ and at least one other Signatory, notice confirming that the CFTA has been terminated.

DRAWS

Partial and multiple draws are permitted under this Standby and with each such draw, the Bank will, concurrently, with the payment requested by ITSC, note on this Standby the amount of such draw, and this Standby with such annotation thereon shall be returned afterwards to ITSC except if the draw is effected by facsimile as described below.

All correspondence or drawing documents shall be presented to the Bank at (address) between 08:30 and 17:00 (local time) on or before the Expiry Date and shall refer to its Standby No._______.  If drawing documents are presented by facsimile, the Bank shall solely consider and examine the drawing documents so transmitted. ITSC is not to further present any original drawing document. Payment shall be made in Canadian currency by wire transfer to the account designated for such purpose by ITSC in its demand for payment.

This Standby is not transferable. ITSC may not assign all or part of the proceeds of any draws hereunder without the prior consent of the Bank.

A dispute related to this Standby will be decided in accordance with the laws of the Province of ____________.  This Standby is subject to the “International Standby Practices ISP98” (1 January 1999) of the International Chamber of Commerce, Publication Number 590 (the “Publication”) and for issues not covered by the Publication, the laws applicable in the Province of                 shall apply.  In case of conflict, the Publication shall prevail.  The courts of the Province of ___________ shall have exclusive jurisdiction over a dispute arising from this Standby.

THIS CREDIT IS NON-TRANSFERABLE.

THE BANK INTERNAL TRADE SECRETARIAT CORPORATION

_____________________ ______________________

Executive Vice President Managing Director

_____________________

Vice President

EXHIBIT “A”

The signatories of the Canadian Free Trade Agreement are the following:

  • Government of Canada
  • Government of Ontario
  • Government of Quebec
  • Government of Nova Scotia
  • Government of New Brunswick
  • Government of Manitoba
  • Government of British Columbia
  • Government of Prince Edward Island
  • Government of Saskatchewan
  • Government of Alberta
  • Government of Newfoundland and Labrador
  • Government of Yukon
  • Government of the Northwest Territories
  • Government of Nunavut

EXHIBIT “B”

(Form of Certification of Order for Monetary Penalty)

{At the end of a copy of a Compliance Panel Order, the Managing Director of the Secretariat will add the following certification:}

I, _____________________, Managing Director of Internal Trade Secretariat Corporation, certify that I have compared this document with the original Compliance Panel Order dated __________________ and certify that it is a true copy thereof.

Signed in __________________ (city), in _____________ (province or territory) on _____________ (date of signing).

______________________

Managing Director
Internal Trade Secretariat Corporation
Suite 101
605 Des Meurons Street
Winnipeg MB
R2H 2R1

Annex 1005.2: Panel, Compliance Panel and Appellate Panel Rosters

  1. Rules 2 through 7 apply to the Panel and Compliance Panel roster only.
  2. Each Party shall be entitled to appoint up to five members to the roster.
  3. Roster members shall:
    1. have expertise or experience in matters covered by this Agreement;
    2. be independent of and not take instructions from any Party; and
    3. serve for a term of five years, with the possibility of reappointment.
  4. At least one member of each Party’s roster shall have expertise in Canadian administrative law or the resolution of disputes arising under Canadian administrative law. Each Party shall identify which of its members have this experience and shall make available details of that experience at the request of another Party or a Person.
  5. Each Party shall endeavour to appoint at least one bilingual (English and French) member to the roster. Each Party shall identify which of its roster members are bilingual.
  6. If there are fewer than 18 bilingual (French and English) roster members appointed by the Parties to the Panel and Compliance Panel roster, the Secretariat shall develop a supplementary list of bilingual individuals qualified to be Panel or Compliance Panel roster members. The Secretariat shall submit such list to the Internal Trade Representatives for approval, and those individuals approved by the Internal Trade Representatives shall be added to, and form part of, the Panel or Compliance Panel roster. The Secretariat may add Panel and Compliance Panel roster members in this manner whenever there are fewer than 18 bilingual roster members appointed to the Panel and Compliance Panel roster by the Parties.
  7. If a roster member becomes unable to sit on the roster or a roster member’s term expires, the Party that appointed the member shall appoint a replacement member to the roster.

Appellate Panel Roster

  1. Rules 9 through 13 apply to Appellate Panels only.
  2. Each Party shall be entitled to appoint up to 5 members to the Appellate Panel roster.
  3. Appellate Panel Roster members shall:
    1. have expertise in Canadian administrative law or the resolution of disputes arising under Canadian administrative law;
    2. be independent of and not take instructions from any Party; and
    3. serve for a term of five years, with the possibility of reappointment.
  4. Each Party shall endeavour to appoint at least one bilingual (English and French) member to the Appellate Panel roster. Each Party shall identify which of its Appellate Panel roster members are bilingual.
  5. If there are fewer than 18 bilingual Appellate Panel Roster members appointed by the Parties to the Appellate Panel roster, the Secretariat shall develop a supplementary list of bilingual individuals qualified to be Appellate Panel roster members. The Secretariat shall submit such list to the Internal Trade Representatives for approval, and those individuals approved by the Internal Trade Representatives shall be added to, and form part of, the Appellate Panel roster. The Secretariat may add Appellate Panel roster members in this manner whenever there are fewer than 18 bilingual roster members appointed to the Appellate Panel roster by the Parties.
  6. If an Appellate Panel roster member becomes unable to sit on the Appellate Panel or such member’s term expires, the Party that appointed the member shall appoint a replacement member to the Appellate Panel roster.

Annex 1007.1 and 1024.1: Panel, Compliance Panel and Appellate Panel Rules of Procedure

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

Application

  1. These Rules are established under Article 1007 and Article 1024 and shall apply to Proceedings under this Chapter.

General Rules

  1. The Presiding Body is to conduct Proceedings in such manner as it considers appropriate, provided that the Proceedings are as transparent as possible, that the Participating Parties or Participants are treated with equality, and that at any stage of the Proceedings each Participating Party or Participant 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. Subject to Article 1007.2 and Article 1024.2, if, in a Proceeding, a question of procedure arises to which these Rules do not provide an answer, or the answer they provide is incomplete, the question shall be disposed of in such manner as the Presiding Body decides is reasonable in the circumstances and consistent with principles of fairness.
  2. Subject to Article 1007.2 and Article 1024.2, 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.

Combining Proceedings

  1. The Panel may, on the written request of a Disputing Party or Disputant, and after hearing the submissions of the Disputing Parties or Disputants, combine two or more Proceedings to provide for a more expeditious process, if it is reasonable in the circumstances and consistent with principles of fairness to do so.

Adding Parties or Persons to a Proceeding

Parties as Intervenors – Panel Proceeding

  1. The Panel may, on the written request of a Party that has not provided the written notice as required under Article 1004.9 or Article 1023.1, add the Party as an Intervenor to the Panel Proceeding if:
    1. the Party has a substantial interest in the matter in dispute within the meaning of Article 1004.11 or Article 1023.3; and
    2. it is reasonable in the circumstances and consistent with principles of fairness to do so.

Parties as Intervenors – Other Proceedings

  1. A Presiding Body may, on the written request of a Party, add the Party as an Intervenor to another Proceeding, if it is reasonable in the circumstances and consistent with principles of fairness to do so.

Complaining Parties – Panel Proceeding

  1. The Panel may, on the written request of a Consulting Participant that has not provided the written notice as required under Article 1004.10, add the Consulting Participant as a Complaining Party to the Proceeding, if it is reasonable in the circumstances and consistent with principles of fairness to do so.

Persons – Panel Proceeding

  1. The Panel may, on the written request of a Person, add the Person as an Intervenor or a Complaining Person to a Proceeding, if it is reasonable in the circumstances and consistent with principles of fairness to do so.

Extending or Abridging Time Limits

  1. If it is fair and equitable to do so, and after having afforded the Participating Parties or Participants, as the case may be, the opportunity to provide comments, the Presiding Body may extend or abridge the time limits fixed by these Rules or otherwise fixed by the 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 Proceedings, including making arrangements necessary for pre-hearing conferences and oral hearings set by the Presiding Body in conjunction with the Participating Parties or Participants, and for 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 that Proceeding. If 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 a request for a Panel pursuant to Article 1004.1 or Article 1018.1, a request for a Compliance Panel pursuant to Article 1010.9 or Article 1027.9, a request for summary dismissal pursuant to Article 1020.1, and a Notice of Appeal pursuant to Article 1009.2 or Article 1026.2, to those Parties and those Participants that are Persons that did not make the request, or provide the Notice of Appeal promptly after receiving such request or notice.
  4. The Secretariat shall forward copies of other documents and submissions filed with the Secretariat in a Proceeding, and reports, decisions, orders, and directions, or other written communications (whether on procedural or other matters) issued by the Presiding Body, to the Participating Parties or Participants, as the case may be, promptly after receiving such documents, submissions, reports, decisions, orders, directions, or other written communications. If an order for a Monetary Penalty has been made by a Compliance Panel, or an order for Tariff Costs or Additional Costs has been made by a Presiding Body, the Secretariat shall forward a certified copy of the order to each Participating Party or Participant affected by the order.
  5. The Secretariat shall advise Participating Parties or Participants, in a timely manner, of the time, date, and location (or dial-in co-ordinates, if applicable) of pre-hearing conferences, oral hearings, or other meetings before the Presiding Body, set by the Presiding Body in conjunction with the Participating Parties or Participants.
  6. The Secretariat shall enter into the record all reports, decisions, orders, directions, and written communications issued by the Presiding Body.
  7. If the Complaint Recipient has filed a Standby pursuant to Article 1001.4(c)(ii) and fails to comply with the Monetary Penalty order within the time specified in Article 1012.3 or Article 1029.5, the Secretariat shall, within seven days after such time, demand payment in accordance with the procedure set out in the Standby. The Secretariat shall provide notice to the Complaint Recipient that its Standby has been presented to the financial institution for payment.

Translation and Interpretation

  1. Written documents and submissions filed by a Participating Party or Participant in connection with or during a Proceeding, and oral hearings, may be in French or English.
  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 Participating Party, Participant, or a member of the Presiding Body so requests. Participating Parties and Participants are encouraged to provide documents and submissions in French and English, whenever feasible.
  3. When a Report of a Presiding Body is made public, it shall be issued in French and English simultaneously. Each version is equally authentic.

Operation of a Presiding Body

  1. The chairperson of a Presiding Body shall take the chair at all its meetings.
  2. The chairperson of a Presiding Body shall fix the date and hour of its hearings in accordance with these Rules following consultations with other Presiding Body members, the Participating Parties, or Participants, as the case may be, and the Secretariat.
  3. Except as otherwise directed by a Presiding Body, hearings shall be public.
  4. If the Report of a Presiding Body is not unanimous, the members supporting each opinion shall be identified.
  5. Meetings of a Presiding Body and pre-hearing conferences before a Presiding Body, but not hearings, may be conducted by telephone conference call or electronic means.
  6. A Presiding Body may adopt its own internal procedures for routine administrative matters.

Confidentiality

  1. If a Participating Party or Participant indicates that any information contained in documents filed with the Secretariat or forwarded to other Participating Parties or Participants, in connection with a Proceeding, is to be treated confidentially because:
    1. the information is commercially sensitive or otherwise protected by law; or
    2. its disclosure could impair intergovernmental relations or obligations,

the Secretariat, the Presiding Body, and the other Participating Parties or Participants 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.

  1. A Participating Party or Participant 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.
  2. 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.
  3. On request of another Participating Party or Participant, a Participating Party or Participant shall promptly deliver to the other Participating Parties or Participants and the Secretariat a non-confidential summary of its written submissions.
  4. The Presiding Body shall make the Participating Parties’ or Participants’ 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 29.

Prior Contact with Presiding Body Member Prohibited

  1. A Person or Party intending to appoint a Presiding Body member pursuant to any provision of this Chapter 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: Written submissions

  1. A Disputing Party or Disputant that has requested a Panel shall file a written submission with the Secretariat within 45 days after the date on which it delivered the request to the Secretariat and the Secretariat shall forward copies of the submission to the other Participating Parties or Participants. The Disputing Party or Disputant shall include in its submission any documentary evidence, including witness statements and experts’ reports, on which it is relying to support its complaint.
  2. The written submissions of the other Participating Parties or Participants shall be filed with the Secretariat,
    1. in the case of a Party that has provided written notice under Article 1004.9 or Article 1023.1 that it intends to join the Panel Proceeding as Intervenor, within 21 days after the initial written submission has been filed with the Secretariat;
    2. in the case of a Consulting Participant that has provided written notice under Article 1004.10 that it wishes to be added to the Panel Proceeding as a Complaining Party, within 21 days after the initial written submission has been filed with the Secretariat; and
    3. in the case of the Complaint Recipient, within 45 days after the initial written submission has been filed by a Disputing Party or Disputant with the Secretariat,

and the Secretariat shall forward copies of the written submissions to each of the Participating Parties or Participants. The Participating Parties or Participants shall include in their submissions any documentary evidence, including witness statements and experts’ reports, on which they intend to rely to support their respective positions.

  1. The Panel may allow further written submissions and shall fix the date for their filing. Participating Parties or Participants permitted to make further written submissions shall include in such submissions any further documentary evidence, including witness statements and experts’ reports, on which they intend to rely.
  2. Documentary evidence not included in a Participating Parties’ or Participants’ submission may not be introduced without the permission of the Presiding Body. If a Presiding Body grants permission, the Presiding Body shall also, if it considers appropriate, allow the other Participating Parties or Participants to submit brief replies to the newly-introduced evidence.
  3. The Panel shall convene a pre-hearing conference of Participating Parties or Participants to:
    1. determine the date of the hearing, which shall be fixed within 30 days after the date on which the last written submission was received by the Secretariat, and shall, to the extent reasonably and practicably possible, accommodate the schedules of the Participating Parties or Participants and their representatives;
    2. determine the place and location of the hearing;
    3. identify, to the extent possible, the Participating Parties or Participants in the Panel Proceeding;
    4. determine how many individuals, including counsel and observers, the Participating Parties or Participants know or expect will attend the hearing;
    5. establish how much time will be allotted for the hearing as a whole, after receiving an estimate of time required for oral submissions from each Participating Party or Participant.
    6. address what steps are to be taken or pre-hearing agreements are required to protect the confidentiality of information that a Participating Party or Participant has indicated shall be treated as confidential pursuant to Rule 29.
  4. The Panel may convene one or more pre-hearing conferences to determine:
    1. whether a Complaining Party has a substantial and direct connection with a Person within the meaning of Article 1004.6, Article 1004.7 or Article 1004.8;
    2. whether a Party has a substantial interest in the matter in dispute within the meaning of Article 1004.11 or Article 1023.3;
    3. whether a Party should be permitted to be added as Intervenor to the Panel Proceedings pursuant to Rule 7;
    4. whether a Consulting Participant should be permitted to be added as a Complaining Party to the Panel Proceedings pursuant to Rule 9;
    5. whether a Person that has requested permission to join the Panel Proceedings as an Intervenor or Complaining Person pursuant to Rule 10 should be permitted to do so;
    6. who will be making oral submissions on behalf of the Participating Parties or Participants and what their roles will be;
    7. the order in which the Participating Parties or Participants will be heard at the hearing;
    8. subject to Rule 43, whether an issue in the Proceedings is within the scope of this Agreement;
    9. whether to permit further written submissions and if so, to fix the date for their filing;
    10. any issues regarding the exchange of information or evidence by Participating Parties or Participants; and
    11. any other matter relevant to the Proceeding.
  5. If a procedural matter is raised by a Participating Party or Participant before the hearing, the Panel shall promptly convene a pre-hearing conference to address the matter in consultation with the Participating Parties or Participants.
  6. The Secretariat shall create and maintain a transcript of each pre-hearing conference. The Presiding Body shall issue a written record of the determinations made by it during the pre-hearing conference, or after the pre-hearing conference as they relate to matters raised in the pre-hearing conference. The Secretariat shall promptly distribute the pre-hearing conference record to the Participating Parties or Participants.
  7. For the purposes of paragraph (h) of Rule 40, “scope” means the range of rights and obligations encompassed by this Agreement. The Panel may refuse to make a determination under paragraph (h) of Rule 40 at a pre-hearing conference, and instead decide to deal with the issue at the Panel hearing.

Panel Proceedings: Hearing

  1. The hearing shall, unless the Participating Parties or Participants otherwise agree, be held in the capital city of the Complaint Recipient.
  2. Members of the Presiding Body shall be present during the hearing. Participating Parties or Disputants who have not filed submissions may not present oral arguments without the consent of the Panel and the other Participating Parties or Disputants.
  3. Participation by an Intervenor in a Panel Proceeding under Part B is limited to the written submission set out in Rule 36(a).
  4. Except as otherwise directed by a Presiding Body, the hearing shall be conducted in the following manner:
    1. argument of the Complaining Party or Complaining Person;
    2. presentation of an Intervenor that has joined a Panel Proceeding pursuant to Article 1004.9 or Article 1023, or Rule 7 or Rule 8 (with permission pursuant to Rule 62, if applicable);
    3. argument of the Complaint Recipient;
    4. reply of the Complaining Party or Complaining Person.
  5. Oral arguments shall be limited to the issues in dispute.
  6. If interpretation or translation services are used during a hearing, a Presiding Body shall ensure that Participating Parties or Participants requiring such services are afforded sufficient additional time to make their arguments, presentations, or replies and to allow them to follow the arguments, presentations, or replies of other Participating Parties or Participants.

Panel Proceedings: Supplementary Written Submissions

  1. The Panel may, at any time during a Proceeding, address questions in writing to one or more of the Participating Parties or Participants. The Panel shall deliver the written questions to the Participating Party or Participant to whom the questions are addressed through the Secretariat, which shall also provide for delivery of copies of the questions to the other Participating Parties or Participants.
  2. A Participating Party or Participant 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 Participating Parties or Participants. Each other Participating Party or Participant 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 Report shall be issued within 45 days after the date the hearing was completed or such other period of time as the Disputing Parties or Disputants may agree.

Notice of Suspension and Negotiation of Mutually Satisfactory Resolution

  1. If the Disputing Parties or Disputants, or some of them, at any time prior to the issuance of the Report of the Presiding Body, agree to suspend the 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 Proceedings to the Secretariat and to any other Disputing Party or Disputant.
  2. If a Disputing Party or Disputant does not agree to the suspension, that Disputing Party or Disputant shall, within 7 days of receiving the notification made under Rule 53, provide written notice of its opposition to the other Disputing Parties or Disputants and to the Secretariat. On receipt of the notice, the Disputing Parties or Disputants that agree with the suspension shall apply to the Presiding Body for an order to suspend the Proceeding.
  3. If an application is made under Rule 54, the Presiding Body shall determine whether to order a suspension of the Proceedings under Article 1010.4 or Article 1027.4.
  4. If the Proceedings have been suspended by consent of the Disputing Parties or Disputants, a Disputing Party or Disputant may withdraw its consent and resume the Proceedings at any time subject to procedural direction by the Presiding Body.
  5. If the Proceedings have been suspended pursuant to an order of the Presiding Body under Rule 55, a Disputing Party or Disputant subject to the order may, on written notice to the other Disputing Parties or Disputants and to the Secretariat, apply to the Presiding Body to terminate the suspension within 36 months of the date of suspension.

Appellate Panel Proceedings: Notice of Appeal

  1. A Disputing Party or Disputant that decides to appeal shall provide to the Secretariat and the other Participating Parties or Participants 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 to the Secretariat within 30 days of the issuance of the Report.

Appellate Panel Proceedings: Written Submissions

  1. Within 75 days of the date of the Report, the Appellant shall provide a written submission in support of its appeal to the Respondent, to the other Participating Parties or Participants, and to the Secretariat.
  2. Within 45 days of receipt of the Appellant’s submission, the Respondent shall, and an Intervenor may, provide a written response to the Appellant, to the other Participating Parties or Participants, and to the Secretariat.
  3. Participation in the appeal process by an Intervenor is limited to the written response set out in Rule 61, unless an Intervenor requests, and the Appellate Panel permits, an Intervenor to participate orally in the hearing.

Appellate Panel Proceedings: Hearing

  1. On receipt of the notice of appeal by the Secretariat, a hearing before the Appellate Panel shall be convened forthwith.
  2. Except as otherwise directed by the Appellate Panel:
    1. the hearing shall be held in the capital city of the Respondent to the appeal, and
    2. the hearing shall be conducted in the following manner: oral argument of the Appellant followed by oral argument of the Respondent.

Appellate Panel Proceedings: Appellate Report

  1. The Appellate Panel shall issue the Appellate Report within 90 days of the completion of the hearing.

Compliance Panel Proceedings: Written Submission and Hearing (Optional)

  1. A Disputing Party or Disputant making a request for a Compliance Panel shall do so in writing, deliver it to the other Disputing Parties or Disputants, and to the Secretariat, and include written submissions supporting its position.
  2. Roster members who served on the Panel shall also comprise the Compliance Panel. If one or more members of the Panel are no longer available to serve on the Compliance Panel, members shall be appointed in accordance with the procedure set out in Rule 74.
  3. A Disputing Party or Disputant notified of a request for a Compliance Panel may, within 60 days of receipt of such notice, provide a written reply to submissions delivered pursuant to Rule 66, and shall deliver it to the other Disputing Parties or Disputants, and to the Secretariat.

Compliance Panel Proceedings: Compliance Report

  1. The Compliance Panel shall consider submissions of the Disputing Parties or Disputants and may seek further written clarification from them. The Compliance Panel may also, at its discretion, convene a hearing with Disputing Parties or Disputants.
  2. The Compliance Panel shall issue a Compliance Report within 45 days of the expiry of the deadline for submissions by Disputing Parties or Disputants under Rule 68 or, if a compliance hearing is held, within 45 days of the conclusion of the hearing.

Discontinuance

  1. A Disputing Party or Disputant that desires to discontinue its participation in a Proceeding shall file with the Secretariat a notice of discontinuance, and, on the same date, provide a copy of it to the other Disputing Parties or Disputants.

Convening of Panel under Article 1013

  1. If a panel is convened by the Committee:
    1. under Article 1013.5 to determine whether the suspension of benefits or the imposition of retaliatory measures by a Complaining Party or Party of the Complaining Person is manifestly excessive; or
    2. under Article 1013.7 to determine whether any action taken by the Complaint Recipient to resolve the dispute is sufficient or satisfactory,

the Panel shall issue its decision within 45 days after the matter is referred to it.

  1. The Panel shall, as soon as possible after being convened under Article 1013.5 or Article 1013.7, determine the manner in which it intends to proceed, and shall, through the Secretariat, notify the Participating Parties or Participants thereof.

Unavailability of Panellist

  1. If a Presiding Body has been convened or reconvened pursuant to any provision of this Chapter, and, for any reason, a member of that Presiding Body is unable to further participate, a replacement member shall be appointed using the same process that was used to appoint the original member.

Annex 1011.2 and 1028.2: Monetary Penalty Tiers

The following tiers, based on the population of a Party from time to time determined by the most recent version of the Census of Canada, published by Statistics Canada, represent the maximum Monetary Penalties, on a per case basis, that a Compliance Panel may order against non-compliant Parties:

  • Population not exceeding 100,000, maximum penalty $250,000;
  • Population greater than 100,000, but not exceeding 300,000, maximum penalty $333,000;
  • Population greater than 300,000, but not exceeding 550,000, maximum penalty $500,000;
  • Population greater than 550,000, but not exceeding 1,500,000, maximum penalty $2,000,000; and
  • Population greater than 1,500,000, maximum penalty $10,000,000.

Annex 1020: Summary Dismissal Proceeding

  1. The Complaint Recipient shall submit its request for summary dismissal of the Proceeding, identifying the grounds for its request under Article 1020, in writing to the Secretariat and Panel, copying the Complaining Person and any Intervenor. The request shall be supported by a written submission of not more than 20 pages, along with any accompanying exhibits, setting out the Complainant Recipient’s grounds for summary dismissal of the Proceeding under Article 1020.
  2. Within 15 days of receipt of a request for summary dismissal, the Complaining Person may submit a Response to the request for summary dismissal in writing to the Secretariat and Panel, copying the Complaint Recipient and any Intervenor. The Response shall be no more than 20 pages.
  3. The Panel shall conduct its review based solely on the written submissions, including any supporting documents.
  4. If the request is not accompanied by all of the requisite documents or if the request and accompanying documents are not sufficiently complete or clear, the Panel may request further documents, information, or clarification from the Person, the Party of the Person, or the Complaint Recipient.
  5. The Panel may request a teleconference or brief hearing with the Disputants and, if relevant, the Party of the Person, to seek additional information or clarification on the matter.
  6. If the documentation originally provided by a Complainant in Article 1016.3 or Article 1018.1 is deficient, the Panel, or chairperson if the matter is heard alone, may, at his or her discretion permit the Person to rectify minor deficiencies and, if so rectified in accordance with the requirements in Article 1016.3 or Article 1018.1, allow the Proceeding to continue. The deficiency and steps taken to rectify such deficiencies by the Complainant should be clearly set out in the Panel’s Report under Article 1021.
  7. With respect to requests made under Article 1020.1(e), if the Panel cannot establish whether the Person is prevented from initiating a Proceeding pursuant to Article 1016.4, Article 1016.5, Article 1033.6, or Article 1033.8, on the sole basis of the written submissions and supporting documents and would require further briefing, the Panel shall not grant a request for summary dismissal, and shall allow the issue to be determined by the Panel in its final Report. The Panel shall state the reasons for its decision in its Report under Article 1021.
  8. In reviewing the complaint, the Panel shall review only whether the grounds for a request for summary dismissal of the Proceeding have been satisfied under Article 1020.1, and not the merits of the complaint.
  9. The Panel shall render a Report within 45 days as provided for in Article 1021.1, and in exceptional circumstances, within 60 days, if agreed to by the Disputants.
  10. If the request for summary dismissal is granted in whole, the Panel shall set out any costs awarded in its Report. If the request for summary dismissal is granted in part or denied, the Panel shall instead set out any costs awarded in its Report issued under Article 1025.
  11. The Secretariat shall make the Panel’s Report public within seven days after it receives notice thereof.
  12. Except as otherwise provided in this Annex, the provisions of this Chapter, including the Rules of Procedure in Annex 1007.1 and 1024.1, apply, with such modifications as may be required, to a summary dismissal Proceeding.

Annex 1037: Code of Conduct for Panellists

PREAMBLE

The Parties place importance on the integrity and impartiality of Proceedings conducted pursuant to the provisions of this Chapter. This Code of Conduct is established to ensure that these principles are respected.

This Code of Conduct is intended to assist the Committee, the Secretariat and Presiding Body members in the operation of dispute resolution procedures involving Presiding Bodies under this Chapter.

The governing principle of this Code of Conduct is that a candidate or member shall disclose the existence of any interest, relationship, or matter that is likely to affect the candidate’s or member’s independence or impartiality, that is, which creates a reasonable apprehension of bias or an appearance of impropriety.

A reasonable apprehension of bias is created where a reasonable person, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, would reasonably conclude that a candidate or member has an interest, relationship, or matter that might have an influence on the exercise of the candidate’s or member’s public duties.

The disclosure obligation, however, should not be interpreted so that the burden of detailed disclosure makes it impractical for persons to serve as members, thereby depriving the Parties and Participants of the services of those who might be best qualified to serve as members. Thus, candidates and members should not be called upon to disclose interests, relationships, or matters whose bearing on their role in the Proceeding would be trivial.

Throughout the Proceeding, candidates and members have a continuing obligation to disclose, in writing, any interest, relationship, or matter that may bear on the integrity or impartiality of the dispute resolution process.

This Code of Conduct does not determine whether or under what circumstances the Parties will disqualify a candidate or member from being appointed to, or serving as a Presiding Body member on the basis of disclosures made.

Part 1: Interpretation

  1. In this Code of Conduct:

candidate means:

  1. an individual whose name appears on a roster established under Annex 1005.2; or
  2. an individual who is under consideration for appointment as a member of a Presiding Body pursuant to Annex 1005.2;

family means two or more individuals related to each other by reason of blood relationships, marriage, or adoption;

member means a member of a Presiding Body established pursuant to this Agreement; and

staff, in respect of a member, means individuals under the direction and control of the member.

Part 2: Responsibilities to the Process

  1. Every candidate, member, and former member has the responsibility to avoid impropriety and the appearance of impropriety, and shall observe high standards of conduct so that the integrity and impartiality of the dispute resolution process is preserved.

Part 3: Disclosure Obligations

Initial Disclosure Obligation

  1. A candidate shall disclose any interest, relationship, or matter that is likely to affect the candidate’s independence or impartiality, or that might create a reasonable apprehension of bias or appearance of impropriety in the Proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships, and matters.
  2. Upon consideration for membership on a Presiding Body, and at the request of the Secretariat, the candidate shall disclose such interests, relationships, and matters by completing an Initial Disclosure Statement provided by the Secretariat, and sending it to the Secretariat.
  3. Without limiting the generality of the foregoing, candidates shall disclose the following interests, relationships, and matters:
    1. any financial or personal interest of the candidate:
      1. arising out of any personal, professional, or other relationship with Persons associated with the Proceeding or who may benefit from its outcome; and
      2. arising out of any issue, that may be decided in the Proceeding for which the candidate is under consideration, or in another Proceeding, or in an administrative or domestic court Proceeding, that involves similar issues;
    2. any financial interest of the candidate’s employer, partner, business associate, or member of his or her family:
      1. arising out of any personal, professional, or other relationship with Persons associated with the Proceeding, or who may benefit from its outcome; and
      2. arising out of any issue that may be decided in the Proceeding for which the candidate is under consideration, or in another Proceeding, or in an administrative or domestic court Proceeding, that involves similar issues;
    3. any past or existing financial, business, professional, family, or social relationship with any Participating Parties or Participants in the Proceeding, or their representatives or counsel, or any such relationship involving a candidate’s employer, partner, business associate, or member of his or her family; and
    4. public advocacy, or legal or other representation, concerning an issue in dispute in the Proceeding, or involving the same goods or services.

Supplemental Disclosure Obligation

  1. A member in a Proceeding shall, after receiving the written submissions and counter-submissions of the Participating Parties or Participants, disclose any interests, advocacy or representation, particularly as referred to in paragraph 5(a)(ii), 5(b)(ii), or paragraph 5(d), by completing a Supplementary Disclosure Statement provided by the Secretariat and sending it to the Secretariat.

Continuing Disclosure Obligation

  1. Once appointed, a member shall continue to make all reasonable efforts to become aware of any interests, relationships, or matters referred to in section 3 and shall disclose them. The obligation to disclose is a continuing duty which requires a member to disclose any such interests, relationships, and matters that may arise during any stage of the Proceeding.
  2. The member shall disclose in writing such interests, relationships, and matters by communicating them to the Secretariat for consideration by the appropriate Parties.

Part 4: The Performance of Duties by Candidates and Members

  1. A candidate who accepts an appointment as a member shall be available to perform, and shall perform, a member’s duties thoroughly and expeditiously throughout the course of the Proceeding.
  2. A member shall carry out all duties fairly and diligently, and comply with the provisions of this Chapter, the applicable rules, and the Code of Conduct.
  3. A member shall not deny other members the opportunity to participate in all aspects of the Proceeding.
  4. A member shall consider only those issues raised in the Proceeding and necessary to make a decision and shall not delegate the duty to decide to any other individual, except as provided in the applicable rules. A member shall make his or her decision based solely on the official record.
  5. A member shall take all reasonable steps to ensure that the member’s staff comply with Parts 2, 3, and 7 of this Code of Conduct.
  6. A member shall not make any communication concerning the Proceeding outside the scope of Presiding Body review. A member shall not have any communication with a Participating Party or Participant, except in the presence of all other members and Participating Parties or Participants.
  7. A candidate or member shall not communicate matters concerning actual or potential violations of this Code of Conduct unless the communication is to the Secretariat and is necessary to ascertain whether that candidate or member has violated or may violate the Code.

Part 5: Independence and Impartiality of Members

  1.  A member shall be independent and impartial. A member shall act in a fair manner and shall avoid creating a reasonable apprehension of bias or an appearance of impropriety.
  2. A member shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party, or fear of criticism.
  3. A member shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of the member’s duties.
  4. A member shall not use the member’s position on the Presiding Body to advance any personal or private interests. A member shall avoid actions that may create the impression that others are in a special position to influence the member. A member shall make every effort to prevent or discourage others from representing themselves as being in such a position.
  5. A member shall not allow past or existing financial, business, professional, family, or social relationships or responsibilities to influence the member’s conduct or judgment.
  6. A member shall avoid entering into any relationship, or acquiring any financial or personal interest, that is likely to affect the member’s impartiality, or that might create a reasonable apprehension of bias or an appearance of impropriety.

Part 6: Post Proceeding Conduct

  1. For a period of one year after the completion of a Proceeding, a former member shall not personally advise or represent any Participating Party or Participant in the Proceeding with respect to any issues which arose in the Proceeding.
  2. A member or former member shall not represent a Participating Party or Participant in a Proceeding involving the issues in dispute before the Presiding Body, or in an administrative or domestic court proceeding involving similar issues.
  3. A former member shall avoid actions that may create the appearance that the member was biased in carrying out the member’s duties or would benefit from the decision of the Presiding Body.

Part 7: Maintenance of Confidentiality

  1. A member or former member shall not at any time disclose or use any non-public information concerning the Proceeding or acquired during the Proceeding, except for the purposes of the Proceeding, nor disclose or use any such information to gain personal advantage or advantage for others, or to affect adversely the interest of another.
  2. A member shall not disclose a Presiding Body Report or Presiding Body decision prior to its release by the Secretariat.
  3. A member or former member shall not disclose the ongoing deliberations of a Presiding Body, except as required by law.

Part 8: Responsibilities of Staff

  1. Parts 2 and 7 of this Code of Conduct also apply to staff. Part 3 applies to staff to the extent that they are not obliged to submit disclosure statements, but have an initial and continuing obligation to disclose to Presiding Body members any interests, relationships, or matters that may bear on the integrity or impartiality of the dispute resolution process.

Part 9: Responsibilities of the Secretariat and Breaches of the Code of Conduct

  1. The Secretariat shall take all necessary steps to protect the confidentiality of disclosure statements and any subsequent disclosures.
  2. Any communication to the Secretariat regarding a conflict of interest, a reasonable apprehension of bias or an appearance of impropriety shall be conveyed to the Participating Parties or Participants for the purposes of determining whether there has been a breach of this Code of Conduct.
  3. If a Disputing Party or Disputant believes that there has been a breach of this Code of Conduct by a member of a Presiding Body before which the Disputing Party or Disputant has appeared or will appear, the Disputing Party or Disputant may submit a written complaint to the Secretariat as soon as possible after discovering the breach. The Secretariat shall immediately distribute the complaint to the other Participating Parties or Participants and to the Presiding Body. The Presiding Body member who is the subject of the complaint may respond to the complaint in writing, by submitting such response to the Secretariat within 10 days after being notified of the complaint. The Secretariat shall distribute any written response to the Participating Parties or Participants and to the other members of the Presiding Body.
  4. If the Presiding Body has only one member, in the event the Disputing Parties or Disputants are unable to agree as to whether there has been a breach of this Code of Conduct, the matter shall be decided by an individual from the Appellate Panel roster selected by lot by the Secretariat, excluding any individual appointed to the roster by a Disputing Party or Disputant, or resident in the territory of a Disputing Party or Disputant.
  5. The Appellate roster member shall issue his or her decision, with reasons, to the Secretariat, which shall forward it to the Participating Parties or Participants. Where the Appellate roster member decides that there has been a breach, the Presiding Body member found to be in breach shall resign and a replacement shall be appointed in accordance with Rule 74 of Annex 1007.1 and 1024.1.
  6. If the Presiding Body has three members, in the event that the Disputing Parties or Disputants are unable to agree as to whether there has been a breach of this Code of Conduct, the matter shall be decided by the remaining members of the Presiding Body.
  7. If the remaining members of the Presiding Body cannot agree that there has been a breach of this Code of Conduct, the Presiding Body member alleged to have breached the Code shall continue to be a member of the Presiding Body. The remaining members of the Presiding Body shall issue their decision, with reasons, to the Secretariat, which shall forward it to the Participating Parties or Participants, without disclosing the position taken by the Presiding Body member.
  8.  If the remaining members of the Presiding Body agree that there has been a breach of this Code of Conduct, the Presiding Body member found to be in breach shall resign and a replacement shall be appointed by the remaining members of the Presiding Body from the applicable roster within 10 days after having reached such agreement. If they are unable to agree on a replacement within that period, the Secretariat shall select a replacement by lot from the applicable roster.
  9. If the Presiding Body member required to be replaced under paragraph 36 was the only member of the Presiding Body with administrative law experience, the remaining members of the Presiding Body or the Secretariat, as the case may be, shall select a replacement with administrative law experience.
  10. The Presiding Body shall determine, in consultation with the Participating Parties or Participants, all procedural matters associated with the resignation of a Presiding Body member and appointment of his or her replacement, including the point from which Proceedings shall resume.

CANADIAN FREE TRADE AGREEMENT
IN THE MATTER OF

(Secretariat file number)
(title of Proceeding)

INITIAL DISCLOSURE STATEMENT

I have read the Code of Conduct for Presiding Body Members (Code of Conduct) and the Panel, Compliance Panel, and Appellate Panel Rules of Procedure under Chapter Ten of the Canadian Free Trade Agreement and understand them. I am fully aware that Part 3 of the Code of Conduct requires that I disclose any interests, relationships, and matters that are likely to affect my independence or impartiality, or that might create a reasonable apprehension of bias or an appearance of impropriety in the Proceeding cited above (“the Proceeding”).

I have read the request for Presiding Body review filed in the Proceeding and have made all reasonable efforts to determine whether there are any such interests, relationships, or matters. I make the following statement fully aware of my duties and obligations under the Code of Conduct.

  1. I do not have any financial or personal interest in the Proceeding or in its outcome, except as follows:
  2. I do not have any financial or personal interest in any other Proceeding, or in an administrative or domestic court proceeding, that involves issues similar to those that may be decided in the Proceeding, except as follows:
  3. Neither my employer, partner, business associate, nor a member of my family has a financial interest in the Proceeding or in its outcome, except as follows:
  4. Neither my employer, partner, business associate, nor a member of my family has a financial interest in another Proceeding, or in an administrative or domestic court proceeding, that involves issues similar to those that may be decided in the Proceeding, except as follows:
  5. I do not have any past or existing financial, business, professional, family, or social relationship with any Participating Parties or Participants in the Proceeding, or their representatives or counsel, nor am I aware of any such relationship involving my employer, partner, business associate, or member of my family, except as follows:
  6. I have not publicly advocated, nor have I provided legal or other representation, concerning any issue in dispute in the Proceeding, or involving the same goods or services, except as follows:
  7. I do not have any interests or relationships, other than those described above, nor am I aware of any matters, that are likely to affect my independence or impartiality or that might create a reasonable apprehension of bias, or an appearance of impropriety, except as follows:

I recognize that, once appointed, I have a continuing duty to make all reasonable efforts to become aware of any interest, relationship, or matter within the scope of Part 3 of the Code of Conduct that may arise during any stage of the Proceeding, and to disclose it in writing to the Secretariat, as and when I become aware of it.

Signature ____________________________________

Name of Signatory ____________________________________

Date ____________________________________

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