PART C: General

Article 1033: Removal of Access to Dispute Resolution for Non-Compliance

This Article applies notwithstanding anything else in this Chapter.

Parties

A Party shall not initiate or participate in consultations or Proceedings under this Chapter in a capacity other than as a Replying Party, Complaint Recipient, or Respondent if:
1. the Party has failed to meet any of its obligations under Article 1001.4, Article 1012.4, or Article 1012.5, until the Party fully complies with those obligations;
2. a Compliance Panel has determined that the Party has not complied with this Agreement and the Party has not brought itself into compliance with this Agreement within 180 days of the issuance of the Compliance Report, until the Party brings itself into compliance with this Agreement, and notwithstanding that the Party has paid all Monetary Penalties, Operational Costs, Tariff Costs, and Additional Costs ordered against it or that the Party also has had benefits suspended or retaliatory measures imposed against it under Article 1013; or
3. subject to paragraph 3, the Party has failed to pay all Monetary Penalties, Tariff Costs, Operational Costs, or Additional Costs that have been ordered against it, within any applicable time period specified in this Chapter, until the Party pays the Monetary Penalties and costs, or payment is otherwise obtained.
If, pursuant to Article 1001.4, a Party has provided that a Monetary Penalty or Tariff Costs or Additional Costs order issued against it may be enforced in the same manner as an order against the Crown in the Party’s superior courts, and the Party’s payment process requires the Presiding Body order to be filed with such courts before the Party is able to pay such Monetary Penalty or cost order:
1. within 10 days of the issuance of a Monetary Penalty or cost order against it, the Party shall advise the Party or Person in whose favour the Monetary Penalty or cost order has been issued that the Party requires that Party or Person to take the steps necessary to file the Presiding Body order with the Party’s superior courts to enable the order to be enforced in the same manner as an order against the Crown in those courts; and
2. provided that the requirements of paragraph (a) are met, the prohibition under paragraph 2(c) shall not take effect until 60 days after the date of the Presiding Body order.
Any ongoing consultations or Proceedings that have been initiated by a Party shall be suspended during any period a prohibition under paragraph 2 is in effect against the Party.
If the prohibition under paragraphs 2(b) or 2(c) is in effect against a Party, that Party may, at any time, request the Secretariat to reconvene the Presiding Body that originally determined the Party’s non-compliance or that issued the Monetary Penalty or cost order at issue. The reconvened Presiding Body shall determine whether the Party has brought itself into compliance with this Agreement and paid the Monetary Penalty or cost order and, if so, the prohibition under paragraph 2 shall be immediately lifted.

Persons

Subject to paragraph 7, if a Party is subject to the prohibition in paragraph 2, that Party’s Persons may not initiate or participate in any consultations or Proceedings under Part B, except that:
1. a Person who is a Person of two Parties, one of which is suspended, may proceed under the other Party; and
2. if the Party is the Government of Canada, only Persons of the Government of Canada that are federally-constituted entities are prohibited.
A Proceeding initiated by a Complaining Person under Article 1016 before the Party of that Complaining Person became subject to the prohibition in paragraph 2 shall not be suspended by the operation of paragraph 6.
A Person may not initiate or participate in consultations or Proceedings under Part B if that Person has failed to pay any Tariff Costs or Operational Costs previously ordered against it, within the time period specified in this Chapter. This prohibition continues until the Person has paid all such costs or until payment is otherwise obtained.
For greater certainty, the Party of the Person may initiate or participate in consultations or Proceedings on its own behalf even if a Person of that Party is subject to the prohibition in paragraph 8.

Article 1034: Limiting Judicial Review

Unless appealed pursuant to Article 1009.1 or Article 1026.1, a Report is final and is not subject to judicial review.
A Report of a Compliance Panel or Appellate Panel is final and is not subject to judicial review.

Article 1035: Failure to Participate/Discontinuance

The failure of a Disputing Party or Disputant to participate, or to continue its participation, in any Proceedings shall not affect the jurisdiction of a Presiding Body, which may proceed in that Disputing Party’s or Disputant’s absence, to fulfill the responsibilities assigned to it by this Agreement, including issuing orders for costs.

Article 1036: Publication and Committee Agenda

The Secretariat shall make public any report issued by a Presiding Body under this Chapter 30 days after the date on which it was issued, or sooner, if the Disputing Parties or the Disputants agree.
A Disputing Party or a Disputant may request the Secretariat to add an unresolved dispute which was the subject of a Report to the Committee’s agenda for its next annual meeting. However, such a request may not be made sooner than 30 days after the date on which the Report was issued. The dispute shall remain on the agenda for every annual Committee meeting thereafter until the matter is resolved.
If an unresolved dispute has been added to the Committee’s agenda pursuant to paragraph 2, the Complaint Recipient shall, at least 10 days before each annual Committee meeting whose agenda includes the dispute, provide the Committee with a written status report on the Complaint Recipient’s progress in implementing the Panel’s recommendations in the Report or in arriving at a resolution of the dispute.

Article 1037: Code of Conduct

Members, including prospective and former members, of a Presiding Body shall conduct themselves in accordance with Annex 1037.

Article 1038: Limit on Jurisdiction

For greater certainty, a Presiding Body has no jurisdiction to rule on any constitutional issue.

Article 1039: Contact Points

If this Chapter requires a notice, request, Report, or other document to be sent to a Party, it shall be sent to that Party’s Internal Trade Representative.
If this Chapter requires a notice, request, Report, or other document to be sent to the Committee, a Presiding Body, or a working group, it shall be sent to the chairperson of the Committee, Presiding Body, or working group, as the case may be. If a Presiding Body consists of only one individual, the notice, request, Report, or other document shall be sent to that individual.

Article 1040: Costs

An order for costs under Article 1008.3(f), Article 1009.4(b), Article 1010.11(c), Article 1021.2(c), Article 1021.2(d), Article 1025.3(f), Article 1025.3(g), Article 1026.4(b), or Articles 1027.11(c) through 1027.11(e) shall be made in accordance with Annex 1040.

Article 1041: Definitions

For the purposes of this Chapter:

Additional Costs means reasonable costs incurred by a Person in a Compliance Panel Proceeding in respect of:

counsel or agent’s fees to prepare for the hearing;
counsel or agent’s fees to attend the hearing;
fees and disbursements of experts; and
charges for postage, courier services and disbursements, including travel expenses,

to the extent that they exceed Tariff Costs;

Appellant means the Disputing Party appealing a Panel decision pursuant to Article 1009.1 or the Disputant appealing a Panel decision pursuant to Article 1026.1;

Appellate Panel means a panel established pursuant to Article 1009.2 or Article 1026.2;

Appellate Report means a report issued by an Appellate Panel pursuant to Article 1009.4 or Article 1026.4, including any clarifications or corrections made to that report pursuant to Article 1009.9 or Article 1026.9;

Complaining Party means the Party that has requested a Panel pursuant to Article 1004.1, or a Party added to a Proceeding as a Complaining Party at the discretion of a Presiding Body pursuant to Rule 9 of Annex 1007.1 and 1024.1;

Complaining Person means:

a Person who or that has requested a Panel pursuant to Article 1018.1;
for purposes of Article 1014, a Person of a Party in a Pre-existing Dispute; or
a Person added to a Panel Proceeding as a Complaining Person at the discretion of a Panel pursuant to Rule 10 of Annex 1007.1 and 1024.1;

Complaint Recipient means the Party complained against by a Complaining Party pursuant to Article 1004.1 or by a Person of a Party pursuant to Article 1016.2;

Compliance Panel means a panel convened pursuant to a request made under Article 1010.9 or Article 1027.9;

Compliance Report means a report issued by a Compliance Panel pursuant to Article 1010.11 or Article 1027.11, including any clarifications or corrections made to that report pursuant to Article 1010.13 or Article 1027.13;

Consulting Participant means a Party that has given notice of its intention to participate in consultations in accordance with Article 1003.4 or Article 1017.4;

Consulting Parties means the Initiating Party, Replying Party and Consulting Participant;

Disputants means the Complaining Person and the Complaint Recipient in a Proceeding under Part B;

Disputing Parties means the Complaining Party and the Complaint Recipient in a Proceeding under Part A;

Fund means the Internal Trade Advancement Fund continued under Article 1032;

Initiating Party means a Party that has requested consultations pursuant to Article 1003.1;

Internal Trade Representative means the government official designated by a Party and identified to the Secretariat as the Party’s representative for the purposes of this Agreement;

Intervenor means:

a Party that has joined a Proceeding as an intervenor in accordance with Article 1004.9 or Article 1023, or at the discretion of a Panel pursuant to Rule 7 of Annex 1007.1 and 1024.1;
a Party that has joined any other Proceeding as an intervenor at the discretion of a Presiding Body pursuant to Rule 8 of Annex 1007.1 and 1024.1; or
a Person who or that has joined a Proceeding as an intervenor at the discretion of a Panel pursuant to Rule 10 of Annex 1007.1 and 1024.1;

Monetary Penalty means the penalty ordered by a Compliance Panel in the Compliance Report mentioned in Article 1010.11 and Article 1027.11;

Operational Costs means:

all per diem fees and other disbursements payable to Presiding Body members for the performance of their duties as Presiding Body members;
fees and disbursements of experts retained by the Presiding Body; and
costs of third party facilities and equipment used for meetings or hearings involving the Presiding Body;

Panel means a panel established pursuant to Article 1005 or Article 1019;

Participants means the Disputants and Intervenors (if any) in a Proceeding under Part B;

Participating Parties means the Disputing Parties and Intervenors (if any) in a Proceeding under Part A;

Party of the Person means the Party that refused to initiate Proceedings on the Person’s behalf or request a Panel pursuant to Article 1015.4 or Article 1015.6;

Person means a natural person or enterprise including a trade union as recognized by the applicable legislation of a Party;

Person of a Party means a Person that has a substantial and direct connection with a Party within the meaning of Article 1004.6, Article 1004.7, or Article 1004.8;

Pre-existing Dispute means a dispute for which a request that proceedings be initiated has been made by a Person of a Party pursuant to Article 1712(1) (Initiation of Proceedings by Government on Behalf of Persons) or Article 1713(1) (Initiation of Proceedings by Persons) of the Agreement on Internal Trade, which remains unresolved as of the effective date;

Presiding Body means, as the case may be, a Panel, Compliance Panel, or Appellate Panel;

Proceeding means a dispute resolution proceeding before a Panel, Compliance Panel, or Appellate Panel, or a proceeding for summary dismissal before a Panel pursuant to Article 1020, as the case may be;

Replying Party means the Party with which an Initiating Party has requested consultations pursuant to Article 1003.1;

Report means a report issued by a Panel pursuant to Article 1008.1, Article 1021.1, Article 1025.1, or which is deemed to be a report under Article 1009.7 or Article 1026.7, including any clarifications or corrections made to that report pursuant to Article 1008.5, Article 1009.9, Article 1025.5, or Article 1026.9;

Respondent means the Disputing Party against which an appeal of a Panel decision is taken pursuant to Article 1009.1 or the Disputant against which an appeal of a Panel decision is taken pursuant to Article 1026.1;

Standby means an irrevocable standby letter of credit issued by a Canadian chartered bank or credit union at the request of a Party and for the benefit of the Secretariat acting as trustee for the Parties to this Agreement, and containing the terms set out in Annex 1001.4(c)(ii);

Tariff Costs means reasonable costs incurred by a Party or Person in a Proceeding in respect of:

counsel or agent’s fees to prepare for the hearing, to a maximum of $14,665;
counsel or agent’s fees to attend the hearing for each of the first five days, to a maximum per day of $2,346; and thereafter for each day up to 10 days, to a maximum per day of $1,761;
fees and disbursements of experts, to a maximum of $14,665; and
charges for postage, courier services, and disbursements, including travel expenses;

these maximum allowable amounts are the Tariff Costs that may be awarded in the calendar year in which the effective date falls. Beginning in the following calendar year and in each calendar year thereafter, the Secretariat will increase such amounts by that percentage by which the Consumer Price Index (published by Statistics Canada) has increased between January 1 and December 31 of the previous calendar year. If there has been no increase or if there has been a decrease in that period, the amounts will remain the same for the following calendar year; and

Total Ordered Costs and Monetary Penalties means the total sum of all Tariff Costs, Additional Costs, and any Monetary Penalty that a Complaint Recipient has been ordered to pay by Presiding Bodies over the entire course of a Proceeding, commencing with the request for a Panel under Article 1018, and ending with a Compliance Report issued under Article 1027.

Overview