Annex 1040

Panel and Compliance Panel Proceedings

9. Rules 9 through 13 apply to a Panel Proceeding, summary dismissal of Proceedings, or Compliance Panel Proceeding initiated under Part B.
10. Operational Costs
    • 10.1 Operational Costs shall be paid by one or more of the Participants. Subject to Rule 10.3, a Presiding Body shall apportion Operational Costs among the Participants in such amounts as it considers appropriate.
    • 10.2 In exercising its discretion, the Presiding Body may consider:
      1. the outcome of the Proceedings; and
      2. other relevant considerations that may justify all or a major part of the responsibility for Operational Costs being borne by one of the Participants.
    • 10.3 If there are one or more Intervenors in a Proceeding, Operational Costs may also be apportioned among Intervenors, but in no instance shall Intervenors be collectively responsible for more than one-third of Operational Costs.
    • 10.4 A Presiding Body may, at the request of a Participant or on its own initiative, require a Participant that is a Complaining Person to post security for Operational Costs that may be apportioned to such Participant.
    • 10.5 Notwithstanding anything else in this Rule, a Party may, in its discretion, assume full or partial responsibility for paying Operational Costs (if any) that have been apportioned to a Person of that Party under this Rule.
11. Tariff Costs
    • 11.1 Subject to Rules 11.2 through 11.5, a Presiding Body may order Tariff Costs to be paid by a Party in such amount not exceeding the maximum allowable amounts for the calendar year in which the order is made, as it considers appropriate.
    • 11.2 A Presiding Body may only make an order respecting Tariff Costs in favour of the successful Complaining Person in a Proceeding.
    • 11.3 In exercising its discretion, the Presiding Body shall consider:
      1. the conduct of the Complaining Person during the Proceeding; and
      2. the reasonableness of the costs based on the complexity of the complaint and the duration of the Proceeding.
    • 11.4 When determining the amount of Tariff Costs to be paid to a Complaining Person, a Presiding Body shall not take into account:
      1. whether or not it has ordered a Party to pay a Monetary Penalty; or
      2. the amount of a Monetary Penalty it has ordered a Party to pay.
    • 11.5 When determining the amount of Tariff Costs to be paid to a Complaining Person, the Presiding Body shall ensure that the limitation in Article 1029.2 is not exceeded.
12. Additional Costs – Panel Proceedings or summary dismissal of Proceedings

Additional Costs are not available to a Participant in a Panel Proceeding or summary dismissal of Proceeding to which this Rule applies.

13. Additional Costs – Compliance Panel Proceedings
    • 13.1 Subject to Rules 13.2 through 13.5, a Compliance Panel may order Additional Costs to be paid by a Party in such amount as it considers appropriate.
    • 13.2 A Compliance Panel may only make an order respecting Additional Costs in favour of the successful Complaining Person in a Compliance Panel Proceeding.
    • 13.3 In exercising its discretion, the Compliance Panel shall consider:
      1. the conduct of the Complaining Person during the Proceeding; and
      2. the reasonableness of the costs based on the complexity of the complaint and the duration of the Proceeding.
    • 13.4 When determining the amount of Additional Costs to be paid to a Complaining Person, a Compliance Panel shall not take into account:
      1. whether or not it has ordered a Party to pay a Monetary Penalty; or
      2. the amount of any Monetary Penalty it has ordered a Party to pay.
    • 13.5 When determining the amount of Additional Costs to be paid to a Complaining Person, the Compliance Panel shall ensure that the limitation in Article 1029.2 is not exceeded.

Appellate Panel Proceedings

14. Rules 14 through 17 apply to Appellate Panel Proceedings initiated under Part B.
15. Operational Costs
    • 15.1 Operational Costs of an Appellate Panel Proceeding shall be paid by the Appellant or Respondent or both, or by any one or both of the foregoing together with one or more Intervenors. Subject to Rule 15.4, an Appellate Panel shall apportion Operational Costs with a view to discouraging non-meritorious appeals.
    • 15.2 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.
    • 15.3 The Appellate Panel may apportion Operational Costs between the Appellant and Respondent differently than provided in Rule 15.2 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.
    • 15.4 If there are one or more Intervenors in an appeal, Operational Costs may also be allocated to 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.
    • 15.5 An Appellate Panel may, at the request of an Appellant or Respondent or on its own initiative, require an Appellant or Respondent that is a Complaining Person to post security for Operational Costs that may be apportioned to such Appellant or Respondent.
    • 15.6 For greater certainty, an Appellate Panel retains the jurisdiction to issue an order respecting Operational Costs if an Appellate Panel Proceeding is discontinued.
16. Tariff Costs
    • 16.1 Subject to Rules 16.2 through 16.10, 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.
    • 16.2 The primary objective of an order of Tariff Costs is to discourage non-meritorious appeals.
    • 16.3 If an appeal is unsuccessful, the Appellate Panel shall ordinarily order the Appellant to pay the Tariff Costs of the Respondent.
    • 16.4 If an appeal is successful, the Appellate Panel shall ordinarily make no order respecting Tariff Costs.
    • 16.5 Notwithstanding Rules 16.3 and 16.4, 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;
      3. the reasonableness of the costs based on the complexity of the complaint and the duration of the Proceeding.
    • 16.6 When determining the amount of Tariff Costs to be paid to a Complaining Person, the Appellate Panel shall not take into account:
      1. whether or not it has ordered a Party to pay a Monetary Penalty; or
      2. the amount of any Monetary Penalty it has ordered a Party to pay.
    • 16.7 When determining the amount of Tariff Costs to be paid to a Complaining Person, the Appellate Panel shall ensure that the limitation in Article 1029.2 is not exceeded.
    • 16.8 The Appellate Panel shall make no order respecting the Tariff Costs of an Intervenor. An Intervenor shall bear its own Tariff Costs.
    • 16.9 An Appellate Panel may, at the request of an Appellant or Respondent or on its own initiative, require an Appellant or Respondent that is a Complaining Person to post security for Tariff Costs that may be apportioned to such Appellant or Respondent.
    • 16.10 For greater certainty, the Appellate Panel retains the jurisdiction to issue an order respecting Tariff Costs if an appeal is discontinued.
17. Additional Costs

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

18. Effect of Interpretive Notes on Costs

A request under this Rule may be made in a Proceeding initiated under Part B.

If an interpretive note is issued by the Parties under Article 1208 (Issuance of Interpretative Notes) before all possible Proceedings with respect to a measure that is or has been the subject of a request for a Panel under Article 1018 have been completed, a Presiding Body may, if reasonable in the circumstances and consistent with principles of fairness, do one or more of the following on the Complaining Person’s request:

1. cause the security for costs posted by the Complaining Person or any monies realized therefrom to be returned to the Complaining Person or otherwise released to the Complaining Person;
2. cause the Complaining Person to be reimbursed for any expenses incurred in the course of posting such security;
3. cause the Complaining Person to be reimbursed for any Operational Costs or Tariff Costs the Complaining Person has paid;
4. direct one or more Participants that are Parties, or other Parties, to fund the payments or reimbursements referred to in paragraphs (a) through (c); or
5. repeal any order of a Presiding Body pursuant to which the Complaining Person has been ordered to pay Operational Costs or Tariff Costs.