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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.

Last Updated: 31 December 2012
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