Australia-United States Free Trade Agreement: Fact sheets

Model Rules of Procedure for Chapter Twenty-One of the Australia-United States Free Trade Agreement

Application

1. These model rules, including the appendices thereto, are established pursuant to Article 21.8 of the Australia-United States Free Trade Agreement and shall apply to dispute settlement proceedings under Chapter Twenty-One, Section B of the Agreement unless the Parties otherwise agree.

Definitions

2. In these rules:

agreement means the Australia-United States Free Trade Agreement;

approved person means:

a person who is:

(a) an authorized representative of a Party designated in accordance with Appendix 1;

(b) an authorized employee of an office designated in accordance with Appendix 1;

(c) a member of the panel; or

(d) an assistant to a member of the panel;

authorized employee of a Partys office means a person who has been authorized by a Party’s office to work on the dispute, including transcribers present at the panel hearings;

authorized representative means:

(a) an official of a Party; or

(b) a legal counsel or other advisor or consultant of a Party who has been authorized by the Party to act on its behalf in the course of the dispute and whose authorization has been notified to the panel and to the other Party .

complaining Party means any Party that refers a matter to a dispute settlement panel under Article 21.7.1;

day means calendar day;

deliver means, for an electronic copy, to deliver on a carrier medium or by electronic transmission, as those terms are defined in Article 16.8;

document includes any written matter, whether in printed or electronic form;

Embassy of the other Party means, with respect to a Party, the embassy of the other Party located in capital of the first Party;

electronic copy means a version of a submission in a commercial word processing format that is identical to the paper copy of the submission;

fund means any fund established by the Joint Committee under Article 21.12.4;

information means information, however recorded or stored, including in documents and spoken information;

legal holiday, with respect to a Party, means every Saturday and Sunday and any other day designated by that Party as a holiday for the purposes of these rules and notified by that Party to the other Party;

office means the office that a Party designates under Article 21.3, which shall not be considered a part of the Party, for providing administrative assistance and remuneration to panels;

panel means a panel established under Article 21.7;

Party means a Party to the Agreement;

record means any medium on which information is recorded or stored;

responsible office means the office of the Party complained against.

3. Any reference made in these rules to an Article, Annex, or Chapter is a reference to the appropriate Article, Annex, or Chapter of the agreement.

Terms of Reference

4. The panel shall have the following terms of reference unless the Parties agree otherwise within 30 days after the referral of a matter to the panel:

“To examine, in light of the relevant provisions of the Australia-United States Free Trade Agreement, the matter notified in the referral to the panel and, as provided in Article 21.9, to make findings, determinations and, recommendations, and deliver written reports to the Parties.”

5. If, on or before the 30thday after the date of the referral of a matter to a panel, the Parties agree to alternative terms of reference, the Parties shall promptly notify and deliver any agreed terms of reference to their respective offices and on the day after the chair of the panel is appointed, to the panel the agreed terms of reference together with the notification.

Written Submissions and Other Documents

6. Each Party shall deliver to its office the original, four paper copies, and one electronic copy of each document related to the panel proceeding, such as, comments on an initial report under Article 21.9.1, or a notice of intent to suspend obligations under Article 21.11.2. Each Party shall deliver an electronic copy of such document to the Embassy of the other Party at the time it delivers the document to its office and shall make a paper copy of each of its documents available to that Embassy. If it is not possible to deliver any part of a document by electronic means, the Party submitting that document must indicate this in the electronic copy.

7. A complaining Party shall deliver, as specified in rule 6, its initial written submission no later than 21 days after the date on which the chair of the panel is appointed. The Party complained against shall deliver its written rebuttal submission, as specified in rule 6, no later than 30 days after the date of delivery of the complaining Party’s initial written submission.

8. On receipt of a document from the complaining Party, the office of the complaining Party shall immediately deliver the electronic copy and forward the paper copy by the most expeditious means practicable to the responsible office. The responsible office shall provide for immediate delivery to the panel and the Party complained against of an electronic copy of any document that it receives and delivery of the paper copy by the most expeditious means practicable.

9. Minor errors of a clerical nature in any request, notice, written submission, or other document related to the panel proceeding may be corrected by delivery of a new document clearly indicating the changes, without affecting the panel’s schedule.

10. Any delivery of a paper copy of a document to an office under these rules shall be made during normal business hours of that office.

11. If the last day for delivery of a document to an office falls on a legal holiday of either Party or on any other day on which the office is closed by order of the government or by force majeure, the document may be delivered to the office on the next business day.

Public Release of Written Submissions and Other Documents

12. Subject to rules 13 and 14, all documents[1] submitted to, or issued by, a panel, including a Party’s written submissions, written versions of its oral statements, and written responses to a request or questions from the panel (Party submission), and all notifications made pursuant to Section B of Chapter Twenty-One are public. The responsible office shall make such documents and notifications available to the public no later than 10 days after a complete copy is delivered to it. In addition, a Party may disclose statements of its own positions to the public.

13. To the extent it considers strictly necessary to protect confidential information or information described in Article 22.2 a Party may designate, consistent with the procedures set out in Appendix 2, for confidential treatment, specific factual information it includes in a Party submission.[2] Information that may be designated as confidential information is limited to any sensitive factual information that is not available in the public domain. Each Party shall exercise the utmost restraint in designating information as confidential.

14. An initial report presented to the Parties pursuant to Article 21.9.1 (Initial Report) and any comments on it shall be confidential.

15. Where a Party designates information contained in a document it submits to the panel as confidential, that Party shall also prepare and submit to the panel a non-confidential version of the document in which the confidential information is redacted and, to the maximum extent possible, summarized.

16. If a Party fails to prepare and submit a non-confidential version of its submission within ten days after the submission is submitted, the other Party may make the submission available to the public after redacting the document to remove the information designated as confidential and may include a summary of the confidential information.

17. Where confidential information has been redacted from a Party submission pursuant to rules 15 or 16, the document shall indicate clearly each place where such information has been redacted.

18. A Party shall not designate any portions of its written legal arguments as confidential other than to the extent they would reveal specific factual information described in rule 13.

Procedures for Identification and treatment of Confidential Information

19. These procedures apply to all information that a Party submits during the panel proceedings and designates as confidential; however, except as provided in Appendix 2, paragraph 1, these procedures do not apply to a Party with respect to confidential information first submitted by that Party, including in derivative form.

20. Each Party shall treat as confidential the information submitted by the other Party to the panel that the submitting Party has designated as confidential information in accordance with Appendix 2.

21. A Party shall identify, use, store, and dispose of confidential information as specified in Appendix 2.

22. Each Party shall ensure that its authorized representatives, designated as approved persons pursuant to Appendix 1, comply with these rules. Each office shall ensure that its authorized employees, designated as approved persons pursuant to Appendix 1, comply with these rules. The panel shall ensure that all other approved persons comply with these rules.

Operation of Panels

23 The chair of the panel shall preside at all of its meetings. A panel may delegate to the chair authority to make administrative and procedural decisions.

24. Except as otherwise provided in these rules, the panel may conduct its business by any means, including by telephone, facsimile transmission, or computer links.

25. Where a procedural question arises that is not covered by these rules, a panel may, pursuant to Article 21.8.2, adopt additional rules.

26. If a panelist dies, withdraws, is removed pursuant to Rule 27, or otherwise becomes unavailable to serve, a replacement shall be selected as expeditiously as possible in accordance with the selection procedure followed to select the panelist.

27. If the Parties agree that a Panelist has violated the Code of Conduct or failed to comply with Article 21.7.5(b), they may remove the panelist, waive the violation, or request the panelist to take steps within a specified time period to ameliorate the violation. If the Parties agree to waive the violation or determine that, after amelioration, the violation has ceased, the panelist may continue to serve.

28. Any time period applicable to the panel proceeding shall be suspended for a period beginning on the date the panelist dies, withdraws, is removed, is authorized to seek to ameliorate a violation, or otherwise becomes unavailable, and ending on the date specified for ameliorating the violation, the replacement is selected, or the violation has ceased.

29. The panel may suspend its work at any time at the request of the complaining Party for a period not to exceed 12 consecutive months. The panel shall suspend its work at any time if both parties so request. In the event of such a suspension, all relevant time-frames set out in these Rules of Procedure shall be extended by the amount of time that the work was suspended. If the work of the panel has been suspended for more than12 consecutive months, the authority for the establishment of the Panel under Article 21.7 shall lapse.

30. A panel may, in consultation with the Parties, modify any time period applicable in the panel proceeding and make such other procedural or administrative adjustments as may be required in the proceeding, such as where a panelist is replaced or where the Parties are required to reply in writing to the questions of a panel.

Hearings

31. The chair shall fix the date and time of the hearing in consultation with the Parties, and the other members of the panel.

32. Unless the Parties otherwise agree, the hearing shall be held in the capital of the Party complained against.

33. The panel may convene additional hearings, if the Parties so agree.

34. All panelists shall be present at hearings. Where a replacement panelist has been selected after the hearing has occurred, the panel shall hold a new hearing.

35. Hearings shall be open to the public to observe,[3] except that the panel may close a hearing for the duration of any discussion of confidential information. Parties shall advise the panel as soon as possible, and no later than 10 days before the hearing, if they desire to submit or discuss confidential information. Only approved persons may be present during a closed portion of a hearing.

36. No later than five days before the date of a hearing, each Party shall deliver to the other Party’s office and to the panel a list of the names of those persons who will be attending the hearing.

37. The panel shall conduct the hearing in the following manner, ensuring that the complaining Party and the Party complained against are afforded equal time:

Argument -

(a) Argument of the complaining Party.

(b) Argument of the Party complained against.

Rebuttal Argument -

(c) Reply of the complaining Party.

(d) Counter-reply of the Party complained against.

38. The panel may direct questions to any Party at any time during a hearing.

39. The responsible office shall arrange for a transcript of each hearing to be prepared and shall, as soon as possible after it is prepared, deliver a copy of the transcript to the other Party’s office and the panel.

Supplementary Written Submissions

40. The panel may at any time during a proceeding address questions in writing to one or both of the Parties. The panel shall deliver the written questions in electronic and paper copy to the Parties through their respective offices,

41. A Party shall be given the opportunity to provide written comments on a reply that the other Party submits within five days after the date of delivery of a complete copy.

42. Within 10 days after the date of the hearing, each Party may deliver to its office a supplementary written submission responding to any matter that arose during the hearing. The complaining Party’s office shall provide immediately a copy of any such submission to the responsible office. The responsible office shall deliver an electronic copy of any supplementary written submissions immediately to the panel and the other party’s office and a paper copy by the most expeditious means practicable.

Submission of Written Views from Non-governmental Entities

43. A panel may grant the request of a non-governmental entity established in a Party’s territory to provide written views under Article 21.8.1(d) if the entity complies with rules 44 and 45.

44. An entity must deliver an original paper copy and an electronic copy of its request to submit written views to each Party’s office within seven days after the Party complained against makes its first written submission or, if that submission contains confidential information, within seven days after submission of the non-confidential version. The request shall:

(a) describe the entity, including the nature of its activities, membership, legal status, and location in a Party;

(b) identify the specific issues of fact and law directly relevant to any legal or factual issue under consideration by the panel that the entity will address in its written views;

(c) explain how the entity’s written views will contribute to resolving the dispute and why its views would be unlikely to repeat legal and factual arguments that a Party has made or can be expected to make, or why it brings a perspective that is different from that of the Parties; and

(d) disclose whether the entity has any relationship, direct or indirect, with any Party, as well as whether it has received, or will receive, any assistance, financial or otherwise, from any Party, other government, person, or organization, other than from the entity, its members, or its counsel, for the overall and day-to-day operations of the entity and in the preparation of the entity’s request for leave or its written views.

45. The request may not exceed four single-spaced pages, must be signed and dated by a representative of the entity, and must include the entity’s address and other contact information.

46. The responsible office shall promptly provide all timely requests to the panel and shall make such requests available to the public. The panel shall consider each request and, after consulting the Parties, shall decide within seven days of receipt of the request whether it will accept the written views in whole or in part. Each Party’s office shall promptly

(a) notify the entity of the panel’s decision, and

(b) make the decision available to the Parties and the public.

47. In deciding whether to grant leave, the panel shall take into account the factors listed in rule 44.

48. If the panel grants the request, the entity shall submit its views to each Party’s office by the date the panel determines, which shall not be later than 21 days before the hearing.

49. An entity’s written views must:

(a) be dated and signed by a representative of the entity;

(b) be no longer than 20 double-spaced typed pages, including any appendices;

(c) address only the issues of fact and law that the entity described in its request; and

(d) be provided in electronic form and in the original and four paper copies.

50. The panel shall provide each Party adequate opportunity to comment on and respond to any written views provided by those entities whose request the panel decides to accept. A panel is not required to address in its report the written views provided by those entities whose request it decides to accept or its decision not to accept an entity’s written views.

51. The responsible office shall promptly make all written views that the panel accepts available to the public.

52. To facilitate the submission of requests to provide written views in a dispute, each Party shall provide public notice of the:

(a) establishment of a panel;

(b) opportunity for non-governmental entities in the Parties’ territories to submit requests to provide written views in the dispute; and

(c) procedures and requirements for making such submissions.

Burden of Proof

53. A Party asserting that a measure of the other Party is inconsistent with its obligations under the Agreement, that a Party has otherwise failed to carry out its obligations under the Agreement, or that a benefit the Party could reasonably have expected to accrue to it under Chapters Two, Three, Five, Ten, Fifteen, or Seventeen is being nullified or impaired in the sense of Article 21.2(c) shall have the burden of establishing such inconsistency.

54. A Party asserting that a measure is justified by an affirmative defense under the Agreement shall have the burden of establishing that the defense applies.

Ex Parte Contacts

55. The panel shall not meet with or contact one Party in the absence of the other Party.

56. No panelist may discuss any aspect of the subject matter of the proceeding with a Party in the absence of the other panelists and the other Party.

57. In the absence of the Parties, a panel may not meet to discuss matters under consideration by the panel, or have discussions concerning such matters, with a person or body providing information or technical advice.

Requests for Information and Technical Advice

58. No panel may decide to request information or technical advice under Article 21.8.3 any later than 15 days after the date of the hearing, whether on its own initiative or at the request of a Party.

59. Within 25 days after its decision to request information or technical advice, and after consulting with the Parties, the panel shall select the person(s) or body(ies) that shall provide the information or technical advice.

60. The panel shall not select as an expert or advisor an individual, who has, or whose employers, partners, business associates, or family members have, a financial or other conflict of interest within the meaning of the Code of Conduct.

61. The Parties may submit comments on the proposed request for information or technical advice no later than five days after the person(s) or body(ies) is selected.

62. The panel shall deliver a copy of its request for information or technical advice to each Party’s office, which, in turn, shall immediately deliver electronic copies of the request to the Parties and the experts.

63. The expert(s) shall deliver an electronic copy of the information or technical advice to each Party’s office within 30 days after receipt of the panel’s request.

64. A Party may deliver comments on the information or technical advice to its office within 14 days after the date of delivery of the information or technical advice. A Party may submit a response to the other Party’s comments within 10 days of receipt of the comments.

65. Where a request is made for information or technical advice, any time period applicable to the panel proceeding shall be suspended for a period beginning on the date of the request and ending on the earlier of the date of delivery of the information or technical advice or 55 days after the date of the request.

Computation of Time

66. Where anything under the Agreement or these rules is to be done, or the panel requires anything to be done, within a number of days after, before or of a specified date or event, the specified date or the date on which the specified event occurs shall not be included in calculating that number of days.

67. Where, by reason of the operation of rule 6, a Party receives a document on a date other than the date on which the same document is received by the other Party, any period of time the calculation of which is dependent on such receipt shall be calculated from the latest date of receipt.

SUSPENSION OF BENEFITS AND COMPLIANCE PANELS

68. To the extent possible, the original panel shall be reconvened when a Party requests a panel under Article 21.11, 21.12, or 21.13. If an original panelist is unavailable, a new panelist shall be selected as expeditiously as possible in accordance with the selection procedure followed to select the panelist being replaced.

69. These rules shall apply to a panel established under Article 21.11, 21.12, or 21.13 except that:

(a) the Party that requests the establishment of the panel shall deliver its initial written submission to its office within 10 days after the date on which the last panelist is selected or the panel is reconvened;

(b) the responding Party shall deliver its written counter-submission to its office within 15 days after the date of delivery of the initial written submission; and

(c) the panel shall fix the time limit for delivering any further written submissions, including rebuttal written submissions, so as to provide each Party with the opportunity to make an equal number of written submissions, subject to the time limits for panel proceedings set out in the Agreement and these Rules.

Panels Regarding Investment Disputes in Financial Services

70. These rules shall apply to a panel convened under Article 13.18, except that the selection of panelists shall be as set out in Article 13.18.2 and 13.18.3.

Non-Implementation in Certain Disputes

71. Within 14 days after a complaining Party has provided notice demanding payment of a monetary assessment pursuant to Article 21.12.3, the Joint Committee shall seek the views of interested parties in their territories on how funds should be expended for that particular case. The Joint Committee shall prepare a notice that shall include:

(a) a summary of the dispute;

(b) a summary of any agreement between the Parties pursuant to Article 21.12.1(b), if any;

(c) proposals for how to expend any monies in the fund, with a view to furthering the objectives of the Agreement; and

(d) instructions as to how interested parties might obtain pertinent public records.

72. Each Party shall develop procedures for publishing this notice and receiving comments from interested parties.

73. Each Party’s office shall provide copies of any comments received to the office of the other Party. The Joint Committee shall convene within 21 days after the end of the comment period to determine how monies in the fund should be expended.

74. When meeting to decide how to expend monies in the fund, the Committee shall include representatives from government agencies that are responsible for administering the measure that was the subject matter of the dispute.

75. In deciding how to expend monies in the fund, the Joint Committee shall strive to ensure that the funds are used in a way that promotes the attainment of the objectives of the Agreement. In particular, the Joint Committee should strive to use the funds for initiatives that promote efforts to improve or enhance labor or environmental law enforcement, as the case may be.

Other Duties of A Responsible Office

76. In addition to the other duties specified in these Rules and the Code of Conduct, a responsible office shall:

(a) provide administrative assistance to the panel and experts in a particular proceeding;

(b) make available to the panelists copies of the agreement and other documents relevant to the proceedings, such as these rules; and

(c) retain indefinitely a copy of the complete record of the panel proceeding.

Other Duties of A Party’s Office

77. Pursuant to Article 21.3, each Party’s office shall compensate panelists and pay the general expenses related to a panel proceeding, including those incurred by the responsible office under Rule 76(a)


[1] The term “documents” in rules 12 through 18 is not intended to include documents that are purely administrative in nature.

[2]To the extent possible, confidential information should be contained in an exhibit or annex to the submission.

[3]The expression “observe” does not require physical presence at the hearing. To facilitate public observation of panel hearings, such hearings may be transmitted to the public.