Australia-United States Free Trade Agreement: Fact sheets

Code of Conduct for the Australia - United States Free Trade Agreement

Preamble

Whereas the Parties place prime importance on the integrity and impartiality of proceedings conducted pursuant to Chapter 21 of the Australia – United States Free Trade Agreement, this Code of Conduct is hereby established to ensure that these principles are respected.

1. Definitions

(a) For purposes of this Code of Conduct,

(i) Agreement means the Australia - United States Free Trade Agreement;

(ii) assistant means a person who, under the terms of appointment of a member, conducts research or provides support for the member;

(iii) candidate means

  • (A) an individual whose name appears on the contingent list established under Article 21.7.4 (Establishment of Panel); or
  • (B) an individual who is under consideration for appointment as a member of a panel pursuant to Article 13.18.3 (Financial Services Dispute Settlement) or Article 21.7.3 (Establishment of a Panel);

(iv) expert means an individual or body providing information or technical advice as set forth in Article 21.8.3.

(v) member means a member of a panel constituted pursuant to Article 13.18 or 21.7;

(vi) 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

(vii) Party means a Party to the Agreement;

(viii) proceeding, unless otherwise specified, means

  • (A) a panel proceeding under Chapter 21, or
  • (B) a proceeding in a dispute arising under Chapter 13 to which Chapter 21 applies;

(ix) responsible office means the office of the Party complained against; and

(x) 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.

2. Statement of Principles

(a) 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.

(b) 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 on the basis of disclosures made.

3. 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.

4. Disclosure Obligations

(a) 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.

(b) 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. Therefore, candidates shall disclose, at a minimum, the following interests, relationships and matters:

(i) any financial interest of the candidate in

  • (A) the proceeding or in its outcome, and
  • (B) an administrative proceeding, a domestic court proceeding or another panel proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;

(ii) any financial interest of the candidate's employer, partner, business associate or family member in

  • (A) the proceeding or in its outcome, and
  • (B) an administrative proceeding, a domestic court proceeding or another panel proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;

(iii) 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

(iv) public advocacy or legal or other representation concerning an issue in dispute in the proceeding or involving the same goods.

(c) Once appointed, a member shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in paragraph 4 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.

(d) In the event of any uncertainty regarding whether an interest, relationship, or matter must be disclosed under subparagraph (b) or (c), a candidate or member should err in favor of disclosure. Disclosure of an interest, relationship, or matter is without prejudice as to whether the interest, relationship, or matter is covered by subparagraph (b) or (c), or whether it warrants recusal, amelioration, or disqualification.

(e) A candidate shall disclose any interests, relationships, and matters described in subparagraph (b) by completing an Initial Disclosure Statement provided by the responsible office and sending it to the responsible office. A member shall disclose such interests, relationships and matters by communicating them in writing to the responsible office for consideration by the Parties.

(f) The disclosure obligations set out in subparagraphs (a) through (e) 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.

5. 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 responsible office can, at all reasonable times, contact the member in order to conduct panel business.

(c) A member shall carry out all duties fairly and diligently.

(d) A member shall comply with the provisions of Chapter 21 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 paragraphs 3, 4 and 8 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 responsible office or is necessary to ascertain whether that candidate or member has violated or may violate the Code.

6. Independence and Impartiality of Members

(a) A member shall be independent and impartial. A member shall act in a fair manner and shall not create an appearance of impropriety or an apprehension of bias.

(b) A member shall not be influenced by self-interest, outside pressure, political considerations, public clamor, 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 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.

(g) If an interest, relationship, or matter of a candidate or member is inconsistent with subparagraphs (a) through (f), the candidate may accept appointment to a panel and a member may continue to serve on a panel if the Parties waive the violation or if, after the candidate or member has taken steps to ameliorate the violation, the Parties determine that the inconsistency has ceased.

7. Duties in Certain Situations

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.

8. 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 panel report issued under Chapter 21 prior to its publication by the Joint Committee. 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 21.

(c) A member or former member shall not at any time disclose the deliberations of a panel, or any member's view, except as required by law.

9. Responsibilities of Assistants and Staff

Paragraphs 3 (Responsibilities to the Process), 4 (Disclosure Obligations), and 8 (Maintenance of Confidentiality) of this Code of Conduct apply also to experts, assistants, and staff.