In principle, the two Parties have agreed on the following provisions to address trade remedies and dispute settlement: A. Domestic Antidumping and Countervailing dury Laws • The investigating authorities of each Party shall continue to enforce domestic antidumping and countervailing duty laws within their jurisdiction. • The free trade agreement shall provide that each Party reserves fully its right to change its domestic antidumping and countervailing duty laws, provided that: no future changes in such laws can be applied to the other Party unless it is so specified in the legislation; ⚫ it notified such proposed changes to the other Party and entered into prior consultations with the other Party upon request; it makes only changes applicable to the other Party which are consistent with the GATT Antidumping Code and Subsidies Code, and with the object and purpose of the free trade agreement including the object and purpose of these dispute settlement provisions. The object and purpose is to establish fair and predictable conditions for the progressive liberalization of trade between the two countries while maintaining effective disciplines on unfair trade practices, such object and purpose to be ascertained from the provisions of the free trade agreement, its preamble and objectives and the practices of the Parties. IDA B-2 B. Remedial Process A panel may issue declaratory opinions with respect to changes by a into force of the FTA with respect : i) their consistency with the GATT Antidumping Code and Subsidies Code, and with the objects and purpose of the free trade agreement including the objects and purpose of the dispute settlement provisions; and ii) whether it has the effect of overturning a prior decision of a binational dispute settlement panel. In the event the panel recommends modifications to the changes in the anti-dumping or countervailing duty statutes, this action will: (a) trigger compulsory consultation for 90 days; (b) during which period the parties will seek a mutually agreable solution which may include seeking remedial legislation, and (c) in the event such legislation is not introduced and enacted into law within 9 months, and no other agreement is reached the other party may: (i) take comparable legislative or equivalent executive action, or A new binational panel would replace judicial review in both the At either party's request, this panel would review, based upon the administrative record, final AD/CVD orders to determine if an investigating authority of either party made a decision not in accordance with its laws (including statutes, legislative history, regulations, administrative practice and judicial precedent). În such review, the binational panel would apply the appropriate 11 MA B-3 standard of judicial review applicable under the domestic law of the The panel would be a temporary, ad hoc body selected from a The Parties would agree on procedures for resort to and decisions • The decision of a panel shall be binding on the Parties and their D. Application of this Arrangement This arrangement shall be in effect for five years pending the Both Parties agree to establish a Working Group to develop a This arrangement would apply only prospectively, after entry into antidumping and countervailing duty investigations in which a • Administrative reviews of antidumping and countervailing duty B-4 Tab 1 BINATIONAL PANELS A panel for this purpose would consist of five members, two appointed by each party from an agreed roster of panelists in consultation with the other party. The fifth panelist would be selected by agreement of both parties; in the event that the parties were unable to agree within days, the fifth panelist would be selected by agreement among the other four panelists. If a fifth panelist still has not been selected by this procedure, the fifth panelist shall be chosen by lot from the roster. In the selection of panelists, each party would be permitted to exercise _preemptory strikes, disqualifying from appointment to the panel up to candidates proposed by the other party. Prior to the entry into force of the FTA, the parties would agree on a roster of possible panelists composed equally of candidates suggested by one party and candidates suggested by the other party. The parties would consult concerning their respective candidates for the roster. The parties would normally form panels drawn from the roster, but would not be compelled to do so exclusively. 13 B-5 Tab 2 PANEL PROCEDURES When the investigating authorities of one government have made preliminary determinations regarding both injury and sales at less than fair value or subsidies, the other government may provide notice of its intention to resort to a panel ruling to the first government. At that time, the two governments would name panelists and make necessary arrangements with those panelists. The procedures for resort to a panel at the conclusion of an AD or CVD case (ie, at the time an order is issued) would be as follows: 30 days for the complaining party to file its complaint. 30 days for designation of the administrative record and its filing with the panel. - 60 days for complainant to file its brief. 60 days for respondent to file its brief. 15 days for each party to file reply briefs. 15-30 days for the panel to convene to hear oral argument by each party. 90 days for the panel to issue its decision. the investigating authority concerned would take action not inconsistent with the decision of the panel, within time limits set by the panel taking into account the complexity and difficulty of such action (e.g., whether the investigating authority needs to obtain new factual information to take such action). . 14 |