Annex 1040

Panel and Compliance Panel Proceedings

1. Rules 1 through 4 apply to a Panel Proceeding or Compliance Panel Proceeding initiated under Part A.
2. Operational Costs
   • 2.1 Operational Costs shall be paid by one or more of the Participating Parties.  Subject to Rule 2.3, a Presiding Body shall apportion Operational Costs among the Participating Parties in such amounts as it considers appropriate.
   • 2.2 In exercising its discretion, the Presiding Body may consider:
     1. whether the Participating Parties complied with Article 1000;
     2. the outcome of the Proceeding; and
     3. other relevant considerations that may justify all or a major part of the responsibility for Operational Costs being borne by one of the Participating Parties.
   • 2.3 If there are one or more Intervenors in a Proceeding, Operational Costs may also be apportioned among the Intervenors, but in no instance shall Intervenors be collectively responsible for more than one-third of Operational Costs.
3. Tariff Costs

Tariff Costs are not available to a Participating Party in a Proceeding to which this Rule applies.

4. Additional Costs

Additional Costs are not available to a Participating Party in a Proceeding to which this Rule applies.

Appellate Panel Proceedings

5. Rules 5 through 8 apply to Appellate Panel Proceedings initiated under Part A.
6. Operational Costs
   • 6.1 Operational Costs shall be paid by the Appellant, Respondent, or both, or by any one or both of the foregoing together with one or more Intervenors.  Subject to Rules 6.2 through 6.5, an Appellate Panel shall apportion Operational Costs with a view to discouraging non-meritorious appeals.
   • 6.2 In exercising its discretion, the Appellate Panel shall ordinarily order:
     1. that Operational Costs be borne by the Appellant if an appeal is unsuccessful; or
     2. that Operational Costs be borne equally by the Appellant and Respondent if an appeal is successful.
   • 6.3 The Appellate Panel may apportion Operational Costs between the Appellant and Respondent differently than provided in Rule 6.2 if justified by other relevant considerations, including:
     1. the conduct of an Appellant or Respondent; and
     2. the extent of an Appellant’s or Respondent’s success.
   • 6.4 If there are one or more Intervenors in an appeal, Operational Costs may also be apportioned among Intervenors commensurate with the Operational Costs incurred as a result of their participation, but in no instance shall Intervenors collectively be responsible for more than one-third of Operational Costs.
   • 6.5 For greater certainty, an Appellate Panel retains the jurisdiction to issue an order respecting Operational Costs if an Appellate Panel Proceeding is discontinued.
7. Tariff Costs
   • 7.1 Subject to Rules 7.2 through 7.7, an Appellate Panel may order Tariff Costs to be paid in such amount, up to but not exceeding the maximum allowable amounts for the calendar year in which the order is made, as it considers appropriate.
   • 7.2 The primary objective of an order of Tariff Costs is to discourage non-meritorious appeals.
   • 7.3 If an appeal is unsuccessful, the Appellate Panel shall ordinarily order the Appellant to pay the Tariff Costs of the Respondent.
   • 7.4 If an appeal is successful, the Appellate Panel shall ordinarily make no order respecting Tariff Costs.
   • 7.5 Notwithstanding Rules 7.3 and 7.4, the Appellate Panel may make a different order respecting Tariff Costs if justified by other relevant considerations, including:
     1. the conduct of the Appellant or Respondent during the Proceeding;
     2. the extent of the Appellant’s or Respondent’s success; and
     3. the reasonableness of the costs based on the complexity of the complaint and the duration of the Proceeding.
   • 7.6 The Appellate Panel shall make no order respecting the Tariff Costs of an Intervenor.  An Intervenor shall bear its own Tariff Costs.
   • 7.7 For greater certainty, the Appellate Panel retains the jurisdiction to issue an order respecting Tariff Costs if an appeal is discontinued.
8. Additional Costs

Additional Costs are not available to an Appellant, Respondent or Intervenor in an Appellate Panel Proceeding.