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.
 
    