[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.

-----------------------------------------------------------------------

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