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ARTICLES

LEGAL RESOURSES

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    • Article 1905: Safeguarding the Panel Review System

    1. Where a Party alleges that the application of another Party's domestic law:

  • Has prevented the establishment of a panel requested by the complaining Party;

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  • Has prevented a panel requested by the complaining Party from rendering a final decision;

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  • 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

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  • Has resulted in a failure to provide opportunity for review of a final determination by a panel or court of competent jurisdiction that is independent of the competent investigating authorities, that examines the basis for the competent investigating authority's determination and whether the competent 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 (TLCAN: Art. 1911), the 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 this Chapter.

    4. The roster for special committees shall be that established under Annex 1904.13 (TLCAN: Anexo 1904.13).

    5. The special committee shall comprise three members selected in accordance with the procedures set out in Annex 1904.13 (TLCAN: Anexo 1904.13).

    6. The Parties shall establish rules of procedure in accordance with the principles set out in Annex 1905.6 (TLCAN: Anexo 1905.6).

    7. Where the special committee makes an affirmative finding with respect to one of the grounds specified in paragraph 1, the complaining Party and the Party complained against shall begin consultations within 10 days thereafter 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 suspend:

  • The operation of Article 1904 (TLCAN: Art. 1904) with respect to the Party complained against; or

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  • The application to the Party complained against of such benefits under this Agreement as may be appropriate under the circumstances.

    • If the complaining Party decides to take action under this paragraph, it shall do so within 30 days after the end of the 60day consultation period.

    9. In the event that a complaining Party suspends the operation of Article 1904 (TLCAN: Art. 1904) with respect to the Party complained against, the latter Party may reciprocally suspend the operation of Article 1904 (TLCAN: Art. 1904) within 30 days after the suspension of the operation of Article 1904 (TLCAN: Art. 1904) by the complaining Party. If either Party decides to suspend the operation of Article 1904 (TLCAN: Art. 1904), it shall provide written notice of such suspension to the other Party.

    10. At the request of the Party complained against, the special committee shall reconvene to determine whether:

  • The suspension of benefits by the complaining Party pursuant to paragraph 8(b) is manifestly excessive; or

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  • 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 paragraph 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 report:

  • Binational panel or extraordinary challenge committee review under Article 1904 (TLCAN: Art. 1904) shall be stayed

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  • In the case of 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, and in no case more than 150 days prior to an affirmative finding by the special committee, or

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  • In the case of review of any final determination of the Party complained against requested by the complaining Party, at the request of the complaining Party; and

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  • The time set out in Article 1904(4) (TLCAN: Art. 1904) or Annex 1904.13 (TLCAN: Anexo 1904.13) for requesting panel or committee review shall not run unless and until resumed in accordance with paragraph 12.

    • 12. If either Party suspends the operation of Article 1904 (TLCAN: Art. 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:

  • In the case of 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 (TLCAN: Art. 1904); or

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  • In the case of 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 person of the complaining Party that is a party to the panel review under Article 1904 (TLCAN: Art. 1904).

    • If either Party suspends the operation of Article 1904 (TLCAN: Art. 1904) pursuant to paragraph 8(a), any running of time suspended under paragraph 11(b) shall resume.

    If the suspension of the operation of Article 1904 (TLCAN: Art. 1904) does not become effective, panel or committee review stayed under paragraph 11(a), and any running of time suspended under paragraph 11(b), shall resume.

    13. If the complaining Party suspends the application to the Party complained against of sucBh benefits under the Agreement as may be appropriate under the circumstances pursuant to paragraph 8(b), panel or committee review stayed under paragraph 11(a), and any running of time suspended under paragraph 11(b), shall resume.

    14. Each Party shall provide in its domestic legislation that, in the event of an affirmative finding by the special committee, the time for requesting judicial review of a final antidumping or countervailing duty determination shall not run unless and until the Parties concerned have negotiated a mutually satisfactory solution under paragraph 7, have suspended the operation of Article 1904 (TLCAN: Art. 1904) or the application of other benefits under paragraph 8.