[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3930]
[[Page Unknown]]
[Federal Register: February 23, 1994]
_______________________________________________________________________
Part V
Department of Commerce
_______________________________________________________________________
International Trade Administration
_______________________________________________________________________
North American Free Trade Agreement: Code of Conduct for Proceedings
Under Chapters Nineteen and Twenty; Notice
DEPARTMENT OF COMMERCE
International Trade Administration
North American Free Trade Agreement: Code of Conduct for
Proceedings Under Chapters Nineteen and Twenty
AGENCY: North American Free Trade Agreement, NAFTA Secretariat, United
States Section, International Trade Administration, Department of
Commerce.
ACTION: Code of Conduct for Proceedings Under NAFTA Chapters Nineteen
and Twenty.
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SUMMARY: Canada, Mexico, and the United States have negotiated a Code
of Conduct for proceedings under Chapters Nineteen and Twenty of the
North American Free Trade Agreement (``Agreement''). The Code applies
to members of panels established pursuant to Article 1903, 1904 or
2008, including Article 2008 panels established pursuant to Article
1414, and to members of committees established pursuant to Article 1905
or Annex 1904.13 of the Agreement. In addition, the Code establishes
disclosure obligations for members of rosters established pursuant to
Article 1414 or 2009 or Annex 1901.2 or 1904.13 of the Agreement and
for individuals not on a roster who are under consideration for
appointment to a panel or committee.
EFFECTIVE DATE: January 1, 1994, the date of entry into force of the
North American Free Trade Agreement.
FOR FURTHER INFORMATION CONTACT: James R. Holbein, United States
Secretary, NAFTA Secretariat, room 2061, U.S. Department of Commerce,
14th and Constitution Avenue, NW., Washington DC 20230; telephone:
(202) 482-5438; fax: (202) 482-0148.
SUPPLEMENTARY INFORMATION: To ensure the integrity and impartiality of
proceedings conducted pursuant to Articles 1903, 1904, 1905, and 2008
of the North American Free Trade Agreement (``Agreement''), which
entered into force on January 1, 1994, Canada, Mexico, and the United
States have negotiated a Code of Conduct pursuant to Articles 1909 and
2009 of the Agreement. The Code of Conduct governs the conduct of
members of panels established pursuant to Article 1903, 1904 or 2008,
including Article 2008 panels established pursuant to Article 1414, and
to members of committees established pursuant to Article 1905 or Annex
1904.13 of the Agreement. In addition, the Code of Conduct establishes
disclosure obligations for members of rosters established pursuant to
Article 1414 or 2009 or Annex 1901.2 or 1904.13 of the Agreement and
for individuals not on a roster who are under consideration for
appointment to a panel or committee. It is based on the Code of Conduct
existing under the United States-Canada Free Trade Agreement, with
certain changes made to better ensure the integrity and impartiality of
the proceedings under the Agreement.
Code of Conduct for Dispute Settlement Procedures Under Chapters 19
and 20 of the North American Free Trade Agreement
Preamble
Whereas the Parties place prime importance on the integrity and
impartiality of proceedings conducted pursuant to Chapters 19 and 20 of
the North American Free Trade Agreement between the Government of
Canada, the Government of the United Mexican States and the Government
of the United States of America, this Code of Conduct is hereby
established to ensure that these principles are respected.
Interpretation
A. In this Code of Conduct,
``Agreement'' means the North American Free Trade Agreement;
``assistant'' means a person who, under the terms of appointment of
a member, conducts research or provides support for the member;
``candidate'' means
(a) an individual whose name appears on a roster or list
established under Article 1414, Annex 1901.2 or 1904.13 or Article
2009,
(b) an individual who is under consideration for appointment as a
member of a panel pursuant to Annex 1901.2 or Article 1903, 1904 or
2011, or
(c) an individual who is under consideration for appointment as a
member of a committee pursuant to Annex 1904.13 or Article 1905;
``member'' means
(a) a member of a panel constituted pursuant to Annex 1901.2 or
Article 1414, 1903, 1904, 2008 or 2011,
(b) a member of an extraordinary challenge committee constituted
pursuant to Annex 1904.13, or
(c) a member of a special committee constituted pursuant to Article
1905;
``participant'' has the meaning assigned in the Rules of Procedure
for Article 1904 Binational Panel Reviews;
``Party'' means a Party to the Agreement;
``proceeding'', unless otherwise specified, means
(a) a panel review under Article 1903 or 1904,
(b) an extraordinary challenge proceeding under Annex 1904.13,
(c) a special committee proceeding under Article 1905,
(d) a panel proceeding under Chapter 20, or
(e) a proceeding in a dispute arising under Chapter 11 or 14 to
which Chapter 20 applies;
``Secretariat'' means the Secretariat established pursuant to
Article 2002; and
``staff'', in respect of a member, means persons under the
direction and control of the member, other than assistants.
B. Any reference made in this Code of Conduct to an Article, Annex
or Chapter is a reference to the appropriate Article, Annex or Chapter
of the Agreement.
I. Responsibilities to the Process
Every candidate, member and former member shall avoid impropriety
and the appearance of impropriety and shall observe high standards of
conduct so that the integrity and impartiality of the dispute
settlement process is preserved.
II. Disclosure Obligations
[Introductory Note:
The governing principle of this Code of Conduct is that a candidate
or member must disclose the existence of any interest, relationship or
matter that is likely to affect the candidate's or member's
independence or impartiality or that might reasonably create an
appearance of impropriety or an apprehension of bias. An appearance of
impropriety or an apprehension of bias is created where a reasonable
person, with knowledge of all the relevant circumstances that a
reasonable inquiry would disclose, would conclude that a candidate's or
member's ability to carry out the duties with integrity, impartiality
and competence is impaired.
These disclosure obligations, however, should not be interpreted so
that the burden of detailed disclosure makes it impractical for persons
in the legal or business community 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 interests, relationships and matters that may
bear on the integrity or impartiality of the dispute settlement
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 member of, a panel or committee on
the basis of disclosures made.]
A. A candidate shall disclose any interest, relationship or matter
that is likely to affect the candidate's independence or impartiality
or that might reasonably create an appearance of impropriety or an
apprehension of bias in the proceeding. To this end, a candidate shall
make all reasonable efforts to become aware of any such interests,
relationships and matters.
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.
Without limiting the generality of the foregoing, candidates shall
disclose the following interests, relationships and matters:
(1) any financial interest of the candidate
(a) in the proceeding or in its outcome, and
(b) in an administrative proceeding, a domestic court proceeding or
another panel or committee proceeding that involves issues that may be
decided in the proceeding for which the candidate is under
consideration;
(2) any financial interest of the candidate's employer, partner,
business associate or family member
(a) in the proceeding or in its outcome, and
(b) in an administrative proceeding, a domestic court proceeding or
another panel or committee proceeding that involves issues that may be
decided in the proceeding for which the candidate is under
consideration;
(3) any past or existing financial, business, professional, family
or social relationship with any interested parties in the proceeding,
or their counsel, or any such relationship involving a candidate's
employer, partner, business associate or family member; and
(4) public advocacy or legal or other representation concerning an
issue in dispute in the proceeding or involving the same goods.
B. A member in an Article 1904 proceeding shall, after receiving
the complaint, disclose any interests, advocacy or representation
referred to in paragraph A (1)(b) or (2)(b) or subsection (4) by
completing a Supplementary Disclosure Statement provided by the
Secretariat and sending it to the Secretariat for consideration by the
appropriate Parties.
C. Once appointed, a member shall continue to make all reasonable
efforts to become aware of any interests, relationships or matters
referred to in section A 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.
The member shall disclose such interests, relationships and matters
by communicating them in writing to the Secretariat for consideration
by the appropriate Parties.
III. The Performance of Duties By Candidates and Members
A. 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.
B. A member shall ensure that the Secretariat can, at all
reasonable times, contact the member in order to conduct panel or
committee business.
C. A member shall carry out all duties fairly and diligently.
D. A member shall comply with the provisions of Chapter 19 or 20
and the applicable rules.
E. A member shall not deny other members the opportunity to
participate in all aspects of the proceeding.
F. A member shall consider only those issues raised in the
proceeding and necessary to a decision and shall not delegate the duty
to decide to any other person, except as provided in the applicable
rules.
G. A member shall take all reasonable steps to ensure that the
member's assistant and staff comply with Parts I, II and VI of this
Code of Conduct.
H. A member shall not engage in ex parte contacts concerning the
proceeding.
I. 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 or is necessary to ascertain
whether that candidate or member has violated or may violate the Code.
IV. Independence and Impartiality of Members
A. A member shall be independent and impartial. A member shall act
in a fair manner and shall avoid creating an appearance of impropriety
or an apprehension of bias.
B. A member shall not be influenced by self-interest, outside
pressure, political considerations, public clamour, loyalty to a Party
or fear of criticism.
C. 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.
D. A member shall not use the member's position on the panel or
committee 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.
E. 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.
F. A member shall avoid entering into any relationship, or
acquiring any financial interest, that is likely to affect the member's
impartiality or that might reasonably create an appearance of
impropriety or an apprehension of bias.
V. Duties in Certain Situations
A. For a period of one year after the completion of an Article 1904
proceeding, a former member shall not personally advise or represent
any participant in the proceeding with regard to antidumping or
countervailing duty matters.
B. In the case of an Article 1904 proceeding, a member or a former
member shall not represent a participant in an administrative
proceeding, a domestic court proceeding or another Article 1904
proceeding involving the same goods.
C. 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 panel or committee.
VI. Maintenance of Confidentiality
A. 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 and shall not,
in any case, disclose or use any such information to gain personal
advantage or advantage for others or to affect adversely the interest
of another.
B. A member shall not disclose a declaratory opinion under Article
1903 or a panel or extraordinary challenge committee order or decision
under Article 1904 prior to its issuance by the panel or committee.
C. A member shall not disclose a special committee report or
decision under Article 1905 prior to its public release by the
Secretariat. A member or former member shall not at any time disclose
which members are associated with majority or minority opinions in an
Article 1905 proceeding.
D. A member shall not disclose a panel report issued under Chapter
20 prior to its publication by the Commission. A member or former
member shall not at any time disclose which members are associated with
majority or minority opinions in a proceeding under Chapter 20.
E. A member or former member shall not at any time disclose the
deliberations of a panel or committee, or any member's view, except as
required by law.
VII. Responsibilities of Assistants and Staff
Parts I (Responsibilities to the Process), II (Disclosure
Obligations) and VI (Maintenance of Confidentiality) of this Code of
Conduct apply also to assistants and staff.
Dated: February 10, 1994.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
[FR Doc. 94-3930 Filed 2-22-94; 8:45 am]
BILLING CODE 3510-GT-P