Australia-United States Free Trade Agreement: Fact sheets

Appendices

APPENDIX 1—APPROVED PERSONS

1. Within 5 days after appointment of the Chair of a panel, each Party shall submit to the panel and the other Party a list of its authorized representatives who need access to confidential information submitted by the other Party and whom it wishes to have designated as approved persons. Each Party shall keep the number of persons on its list as limited as possible. Each Office shall submit to the panel and the Parties a list of the authorized employees of the office who need access to confidential information in the dispute and whom it wishes to have designated as approved persons. The Parties and the offices may submit amendments to their list at any time. The amended lists shall be submitted to the Panel through the responsible office.

2. A Party may object to a person being designated as an approved person within 7 days after receipt of the list or amendments to the list. Within 7 days after receipt of an objection, the panel shall decide on the objection, having regard to any potential harm arising from the designation to the interests of the owner or source of confidential information.

3. If the panel allows the designation of a person after an objection, confidential information may not be disclosed to the approved person until the Party submitting the information has had a reasonable opportunity to:

(a) withdraw the information, in which case the panel and the responsible office shall return any record containing the information to the Party submitting it and the other Party shall, in accordance with the domestic law of such Party either

(i) destroy any record containing the information, or

(ii) return any such record to the Party submitting the information; or

(b) withdraw the designation of the information as confidential.

4. Subject to any decision on objection to proposed persons, the panel shall designate the persons on the lists submitted under paragraph 1 as approved persons for the dispute. All approved persons must sign and submit to the panel the Declaration of Non‑Disclosure included in Appendix 2.

APPENDIX 2—CONFIDENTIAL INFORMATION

1. A Party shall identify confidential information by:

(a) clearly marking information recorded in printed and electronic records with the notation ‘CONFIDENTIAL INFORMATION’ in the header and footer on each page of the record, and on each page where confidential information appears by enclosing the information in double square brackets;

(b) clearly using the notation ‘CONFIDENTIAL INFORMATION’ in the file name and in any electronic transmission of the information and by enclosing the confidential information in the electronic transmission in double square brackets; and

(c) declaring spoken information to be “Confidential Information” prior to its disclosure.

2. Where a Party submits confidential information first submitted by the other Party, it shall identify that information as confidential information by:

(a) clearly marking the information recorded in printed and electronic records with the notation ‘CONFIDENTIAL INFORMATION’ in the header and footer on each page of the record, and on each page where confidential information appears by enclosing the information in double square brackets; and with the name of the disputing Party or Third Party that first submitted the information;

(b) clearly using the notation ‘CONFIDENTIAL INFORMATION’ in the file name and in any electronic transmission of the information and by enclosing the information in double square brackets; and with the name of the disputing Party or Third Party that first submitted the information; and

(c) prior to its disclosure, declaring spoken information to be “Confidential Information” and identifying the disputing Party or the Third Party that first submitted the information.

3. An approved person shall take all necessary precautions to safeguard confidential information when a record containing the information is in use or being stored.

4. Only approved persons may view or hear confidential information. No approved person who views or hears confidential information may disclose it, or allow it to be disclosed, to any person other than another approved person.

5. Approved persons who view or hear confidential information shall use that information only for the purposes of the panel proceedings.

6. The panel shall not disclose confidential information in its report, but may state conclusions drawn from that information.

7. After the conclusion of the panel proceeding, each Party shall, in accordance with the domestic law of such Party, either

(a) destroy any record containing the information, or

(b) return any such record to the Party submitting the information, unless the Party that first submitted the confidential information otherwise agrees.

8. Subject to agreement by the Parties, the panel may establish additional procedures that it considers necessary to protect confidential information.

9. The panel may, at the request of or with the consent of the Parties, modify or waive any part of the procedures set out in this Appendix for treatment of confidential information. In that case, each approved person will sign a modified Declaration of Non-Disclosure Form, as appropriate.

Declaration of Non‑Disclosure Form

1. I acknowledge having received a copy of the Rules of Procedure governing the treatment of confidential information (the “Procedures”).

2. I acknowledge having read and understood the Procedures.

3. I agree to be bound by, and to adhere to, the Procedures and, accordingly, without limitation, to treat confidentially all confidential information that I may view or hear from time to time in accordance with the Procedures and to use that information solely for purposes of the panel proceedings.

Executed on this __________ day of ____________, 20__.

BY: _____ (Signature)_____________________

Name: