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Model Rules of Procedure for Chapter Twenty-One f the Australia-United States Free Trade Agreement

Application

1. These model
rules, including the appendices thereto, are established pursuant
to Article 21.8 of the Australia-United States Free Trade Agreement
and shall apply to dispute settlement proceedings under Chapter
Twenty-One, Section B of the Agreement unless the Parties otherwise
agree.

Definitions

2. In these
rules:

agreement means the Australia-United States Free Trade
Agreement;

approved person means:

a person who is:

(a)
an authorized representative of a Party designated in accordance
with Appendix 1;

(b)
an authorized employee of an office designated in accordance
with Appendix 1;

(c)
a member of the panel; or

(d)
an assistant to a member of the panel;

authorized employee of a Party's
office
means a person who has been authorized by a
Party's office to work on the dispute, including transcribers
present at the panel hearings;

authorized representative means:

(a)
an official of a Party; or

(b) a legal counsel or
other advisor or consultant of a Party who has been authorized by
the Party to act on its behalf in the course of the dispute and
whose authorization has been notified to the panel and to the other
Party .

complaining Party means any Party that refers a matter to
a dispute settlement panel under Article 21.7.1;

day means calendar day;

deliver means, for an electronic copy, to deliver on a
carrier medium or by electronic transmission, as those terms are
defined in Article 16.8;

document includes any written matter, whether in printed
or electronic form;

Embassy of the other Party means, with respect to a
Party, the embassy of the other Party located in capital of the
first Party;

electronic copy means a version of a submission in a
commercial word processing format that is identical to the paper
copy of the submission;

fund means any fund established by the Joint Committee
under Article 21.12.4;

information means information, however recorded or
stored, including in documents and spoken information;

legal holiday, with respect to a Party, means every
Saturday and Sunday and any other day designated by that Party as a
holiday for the purposes of these rules and notified by that Party
to the other Party;

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;

panel means a panel established under Article 21.7;

Party means a Party to the Agreement;

record means any medium on which information is recorded
or stored;

responsible office means the office of the Party
complained against.

3. Any reference
made in these rules to an Article, Annex, or Chapter is a reference
to the appropriate Article, Annex, or Chapter of the agreement.

Terms of Reference

4. The panel
shall have the following terms of reference unless the Parties
agree otherwise within 30 days after the referral of a matter to
the panel:

"To examine, in light of the relevant provisions of the
Australia-United States Free Trade Agreement, the matter notified
in the referral to the panel and, as provided in Article 21.9, to
make findings, determinations and, recommendations, and deliver
written reports to the Parties."

5. If, on or
before the 30thday after the date of the referral of a matter to a
panel, the Parties agree to alternative terms of reference, the
Parties shall promptly notify and deliver any agreed terms of
reference to their respective offices and on the day after the
chair of the panel is appointed, to the panel the agreed terms of
reference together with the notification.

Written Submissions and Other Documents

6. Each Party
shall deliver to its office the original, four paper copies, and
one electronic copy of each document related to the panel
proceeding, such as, comments on an initial report under Article
21.9.1, or a notice of intent to suspend obligations under Article
21.11.2. Each Party shall deliver an electronic copy of such
document to the Embassy of the other Party at the time it delivers
the document to its office and shall make a paper copy of each of
its documents available to that Embassy. If it is not
possible to deliver any part of a document by electronic means, the
Party submitting that document must indicate this in the electronic
copy.

7. A complaining
Party shall deliver, as specified in rule 6, its initial written
submission no later than 21 days after the date on which the chair
of the panel is appointed. The Party complained against shall
deliver its written rebuttal submission, as specified in rule 6, no
later than 30 days after the date of delivery of the complaining
Party's initial written submission.

8. On receipt of
a document from the complaining Party, the office of the
complaining Party shall immediately deliver the electronic copy and
forward the paper copy by the most expeditious means practicable to
the responsible office. The responsible office shall provide
for immediate delivery to the panel and the Party complained
against of an electronic copy of any document that it receives and
delivery of the paper copy by the most expeditious means
practicable.

9. Minor errors
of a clerical nature in any request, notice, written submission, or
other document related to the panel proceeding may be corrected by
delivery of a new document clearly indicating the changes, without
affecting the panel's schedule.

10. Any delivery of a paper
copy of a document to an office under these rules shall be made
during normal business hours of that office.

11. If the last day for
delivery of a document to an office falls on a legal holiday of
either Party or on any other day on which the office is closed by
order of the government or by force majeure, the document may be
delivered to the office on the next business day.

Public Release of Written Submissions and Other Documents

12. Subject to rules 13 and
14, all documents[1] submitted to, or issued by, a panel, including a Party's
written submissions, written versions of its oral statements, and
written responses to a request or questions from the panel (Party
submission), and all notifications made pursuant to Section B of
Chapter Twenty-One are public. The responsible office shall
make such documents and notifications available to the public no
later than 10 days after a complete copy is delivered to it.
In addition, a Party may disclose statements of its own positions
to the public.

13. To the extent it
considers strictly necessary to protect confidential information or
information described in Article 22.2 a Party may designate,
consistent with the procedures set out in Appendix 2, for
confidential treatment, specific factual information it includes in
a Party submission.[2] Information that may be
designated as confidential information is limited to any sensitive
factual information that is not available in the public
domain. Each Party shall exercise the utmost restraint in
designating information as confidential.

14. An initial report
presented to the Parties pursuant to Article 21.9.1 (Initial
Report) and any comments on it shall be confidential.

15. Where a Party designates
information contained in a document it submits to the panel as
confidential, that Party shall also prepare and submit to the panel
a non-confidential version of the document in which the
confidential information is redacted and, to the maximum extent
possible, summarized.

16. If a Party fails to
prepare and submit a non-confidential version of its submission
within ten days after the submission is submitted, the other Party
may make the submission available to the public after redacting the
document to remove the information designated as confidential and
may include a summary of the confidential information.

17. Where
confidential information has been redacted from a Party submission
pursuant to rules 15 or 16, the document shall indicate clearly
each place where such information has been redacted.

18. A Party shall not
designate any portions of its written legal arguments as
confidential other than to the extent they would reveal specific
factual information described in rule 13.

Procedures for Identification and treatment of Confidential
Information

19. These procedures apply
to all information that a Party submits during the panel
proceedings and designates as confidential; however, except as
provided in Appendix 2, paragraph 1, these procedures do not apply
to a Party with respect to confidential information first submitted
by that Party, including in derivative form.

20. Each Party shall treat
as confidential the information submitted by the other Party to the
panel that the submitting Party has designated as confidential
information in accordance with Appendix 2.

21. A Party
shall identify, use, store, and dispose of confidential information
as specified in Appendix 2.

22. Each Party shall ensure
that its authorized representatives, designated as approved persons
pursuant to Appendix 1, comply with these rules. Each office
shall ensure that its authorized employees, designated as approved
persons pursuant to Appendix 1, comply with these rules. The
panel shall ensure that all other approved persons comply with
these rules.

Operation of Panels

23 The chair of the
panel shall preside at all of its meetings. A panel may
delegate to the chair authority to make administrative and
procedural decisions.

24. Except as otherwise
provided in these rules, the panel may conduct its business by any
means, including by telephone, facsimile transmission, or computer
links.

25. Where a procedural
question arises that is not covered by these rules, a panel may,
pursuant to Article 21.8.2, adopt additional rules.

26. If a panelist dies,
withdraws, is removed pursuant to Rule 27, or otherwise becomes
unavailable to serve, a replacement shall be selected as
expeditiously as possible in accordance with the selection
procedure followed to select the panelist.

27. If the Parties agree
that a Panelist has violated the Code of Conduct or failed to
comply with Article 21.7.5(b), they may remove the panelist, waive
the violation, or request the panelist to take steps within a
specified time period to ameliorate the violation. If the
Parties agree to waive the violation or determine that, after
amelioration, the violation has ceased, the panelist may continue
to serve.

28. Any time period
applicable to the panel proceeding shall be suspended for a period
beginning on the date the panelist dies, withdraws, is removed, is
authorized to seek to ameliorate a violation, or otherwise becomes
unavailable, and ending on the date specified for ameliorating the
violation, the replacement is selected, or the violation has
ceased.

29. The panel may suspend
its work at any time at the request of the complaining Party for a
period not to exceed 12 consecutive months. The panel shall
suspend its work at any time if both parties so request. In
the event of such a suspension, all relevant time-frames set out in
these Rules of Procedure shall be extended by the amount of time
that the work was suspended. If the work of the panel has
been suspended for more than12 consecutive months, the authority
for the establishment of the Panel under Article 21.7 shall
lapse.

30. A panel may, in
consultation with the Parties, modify any time period applicable in
the panel proceeding and make such other procedural or
administrative adjustments as may be required in the proceeding,
such as where a panelist is replaced or where the Parties are
required to reply in writing to the questions of a panel.

Hearings

31. The chair shall fix the
date and time of the hearing in consultation with the Parties, and
the other members of the panel.

32. Unless the Parties
otherwise agree, the hearing shall be held in the capital of the
Party complained against.

33. The panel may convene
additional hearings, if the Parties so agree.

34. All panelists shall be
present at hearings. Where a replacement panelist has been
selected after the hearing has occurred, the panel shall hold a new
hearing.

35.
Hearings shall be open to the public to observe,[3] except that the panel may close a
hearing for the duration of any discussion of confidential
information. Parties shall advise the panel as soon as
possible, and no later than 10 days before the hearing, if they
desire to submit or discuss confidential information. Only
approved persons may be present during a closed portion of a
hearing.

36. No later than five days
before the date of a hearing, each Party shall deliver to the other
Party's office and to the panel a list of the names of
those persons who will be attending the hearing.

37. The panel shall conduct
the hearing in the following manner, ensuring that the complaining
Party and the Party complained against are afforded equal time:

Argument -

(a)
Argument of the complaining Party.

(b)
Argument of the Party complained against.

Rebuttal Argument -

(c)
Reply of the complaining Party.

(d)
Counter-reply of the Party complained against.

38. The panel may direct
questions to any Party at any time during a hearing.

39. The responsible office
shall arrange for a transcript of each hearing to be prepared and
shall, as soon as possible after it is prepared, deliver a copy of
the transcript to the other Party's office and the panel.

Supplementary Written Submissions

40. The panel may at any
time during a proceeding address questions in writing to one or
both of the Parties. The panel shall deliver the written
questions in electronic and paper copy to the Parties through their
respective offices,

41. A Party shall be given
the opportunity to provide written comments on a reply that the
other Party submits within five days after the date of delivery of
a complete copy.

42. Within 10 days after the
date of the hearing, each Party may deliver to its office a
supplementary written submission responding to any matter that
arose during the hearing. The complaining Party's
office shall provide immediately a copy of any such submission to
the responsible office. The responsible office shall deliver
an electronic copy of any supplementary written submissions
immediately to the panel and the other party's office and a
paper copy by the most expeditious means practicable.

Submission of Written Views from Non-governmental Entities

43. A panel may grant the
request of a non-governmental entity established in a Party's
territory to provide written views under Article 21.8.1(d) if the
entity complies with rules 44 and 45.

44. An entity
must deliver an original paper copy and an electronic copy of its
request to submit written views to each Party's office within
seven days after the Party complained against makes its first
written submission or, if that submission contains confidential
information, within seven days after submission of the
non-confidential version. The request shall:

(a)
describe the entity, including the nature of its activities,
membership, legal status, and location in a Party;

(b)
identify the specific issues of fact and law directly relevant to
any legal or factual issue under consideration by the panel that
the entity will address in its written views;

(c)
explain how the entity's written views will contribute to
resolving the dispute and why its views would be unlikely to repeat
legal and factual arguments that a Party has made or can be
expected to make, or why it brings a perspective that is different
from that of the Parties; and

(d)
disclose whether the entity has any relationship, direct or
indirect, with any Party, as well as whether it has
received, or will receive, any assistance, financial or otherwise,
from any Party, other government, person, or organization, other
than from the entity, its members, or its counsel, for the overall
and day-to-day operations of the entity and in the preparation of
the entity's request for leave or its written views.

45. The request
may not exceed four single-spaced pages, must be signed and dated
by a representative of the entity, and must include the
entity's address and other contact information.

46. The responsible office
shall promptly provide all timely requests to the panel and shall
make such requests available to the public. The panel shall
consider each request and, after consulting the Parties, shall
decide within seven days of receipt of the request whether it will
accept the written views in whole or in part. Each
Party's office shall promptly

(a)
notify the entity of the panel's decision, and

(b)
make the decision available to the Parties and the public.

47. In deciding whether to
grant leave, the panel shall take into account the factors listed
in rule 44.

48. If the
panel grants the request, the entity shall submit its views to each
Party's office by the date the panel determines, which shall
not be later than 21 days before the hearing.

49. An entity's
written views must:

(a) be dated and
signed by a representative of the entity;

(b) be no longer than
20 double-spaced typed pages, including any appendices;

(c) address only the
issues of fact and law that the entity described in its request;
and

(d) be provided in
electronic form and in the original and four paper copies.

50. The panel shall provide
each Party adequate opportunity to comment on and respond to any
written views provided by those entities whose request the panel
decides to accept. A panel is not required to address in its
report the written views provided by those entities whose request
it decides to accept or its decision not to accept an
entity's written views.

51. The responsible office
shall promptly make all written views that the panel accepts
available to the public.

52. To facilitate the
submission of requests to provide written views in a dispute, each
Party shall provide public notice of the:

(a) establishment of a
panel;

(b) opportunity for
non-governmental entities in the Parties' territories to
submit requests to provide written views in the dispute; and

(c) procedures and
requirements for making such submissions.

Burden of Proof

53. A Party asserting that a
measure of the other Party is inconsistent with its obligations
under the Agreement, that a Party has otherwise failed to carry out
its obligations under the Agreement, or that a benefit the Party
could reasonably have expected to accrue to it under Chapters Two,
Three, Five, Ten, Fifteen, or Seventeen is being nullified or
impaired in the sense of Article 21.2(c) shall have the burden of
establishing such inconsistency.

54. A Party asserting that a
measure is justified by an affirmative defense under the Agreement
shall have the burden of establishing that the defense applies.

Ex Parte Contacts

55. The panel shall not meet
with or contact one Party in the absence of the other Party.

56. No panelist may discuss
any aspect of the subject matter of the proceeding with a Party in
the absence of the other panelists and the other Party.

57. In the absence of the
Parties, a panel may not meet to discuss matters under
consideration by the panel, or have discussions concerning such
matters, with a person or body providing information or technical
advice.

Requests for Information and Technical Advice

58. No panel may decide to
request information or technical advice under Article 21.8.3 any
later than 15 days after the date of the hearing, whether on its
own initiative or at the request of a Party.

59. Within 25 days after its
decision to request information or technical advice, and after
consulting with the Parties, the panel shall select the person(s)
or body(ies) that shall provide the information or technical
advice.

60. The panel shall not
select as an expert or advisor an individual, who has, or whose
employers, partners, business associates, or family members have, a
financial or other conflict of interest within the meaning of the
Code of Conduct.

61. The Parties may submit
comments on the proposed request for information or technical
advice no later than five days after the person(s) or body(ies) is
selected.

62. The panel shall deliver
a copy of its request for information or technical advice to each
Party's office, which, in turn, shall immediately deliver
electronic copies of the request to the Parties and the
experts.

63. The expert(s) shall
deliver an electronic copy of the information or technical advice
to each Party's office within 30 days after receipt of the
panel's request.

64. A Party may deliver
comments on the information or technical advice to its office
within 14 days after the date of delivery of the information or
technical advice. A Party may submit a response to the other
Party's comments within 10 days of receipt of the
comments.

65. Where a request is made
for information or technical advice, any time period applicable to
the panel proceeding shall be suspended for a period beginning on
the date of the request and ending on the earlier of the date of
delivery of the information or technical advice or 55 days after
the date of the request.

Computation of Time

66. Where anything under the
Agreement or these rules is to be done, or the panel requires
anything to be done, within a number of days after, before or of a
specified date or event, the specified date or the date on which
the specified event occurs shall not be included in calculating
that number of days.

67. Where, by reason of the
operation of rule 6, a Party receives a document on a date other
than the date on which the same document is received by the other
Party, any period of time the calculation of which is dependent on
such receipt shall be calculated from the latest date of
receipt.

SUSPENSION OF BENEFITS AND COMPLIANCE PANELS

68. To the extent possible,
the original panel shall be reconvened when a Party requests a
panel under Article 21.11, 21.12, or 21.13. If an original
panelist is unavailable, a new panelist shall be selected as
expeditiously as possible in accordance with the selection
procedure followed to select the panelist being replaced.

69. These rules shall apply
to a panel established under Article 21.11, 21.12, or 21.13 except
that:

(a) the Party that
requests the establishment of the panel shall deliver its initial
written submission to its office within 10 days after the date on
which the last panelist is selected or the panel is reconvened;

(b) the responding
Party shall deliver its written counter-submission to its office
within 15 days after the date of delivery of the initial written
submission; and

(c) the panel shall
fix the time limit for delivering any further written submissions,
including rebuttal written submissions, so as to provide each Party
with the opportunity to make an equal number of written
submissions, subject to the time limits for panel proceedings set
out in the Agreement and these Rules.

Panels Regarding Investment Disputes in Financial Services

70. These rules shall apply
to a panel convened under Article 13.18, except that the selection
of panelists shall be as set out in Article 13.18.2 and
13.18.3.

Non-Implementation in Certain Disputes

71. Within 14 days after a
complaining Party has provided notice demanding payment of a
monetary assessment pursuant to Article 21.12.3, the Joint
Committee shall seek the views of interested parties in their
territories on how funds should be expended for that particular
case. The Joint Committee shall prepare a notice that shall
include:

(a) a summary of the
dispute;

(b) a summary of any
agreement between the Parties pursuant to Article 21.12.1(b), if
any;

(c) proposals for how
to expend any monies in the fund, with a view to furthering the
objectives of the Agreement; and

(d) instructions as to
how interested parties might obtain pertinent public records.

72. Each Party shall develop
procedures for publishing this notice and receiving comments from
interested parties.

73. Each Party's
office shall provide copies of any comments received to the office
of the other Party. The Joint Committee shall convene within
21 days after the end of the comment period to determine how monies
in the fund should be expended.

74. When meeting to decide
how to expend monies in the fund, the Committee shall include
representatives from government agencies that are responsible for
administering the measure that was the subject matter of the
dispute.

75. In deciding how to
expend monies in the fund, the Joint Committee shall strive to
ensure that the funds are used in a way that promotes the
attainment of the objectives of the Agreement. In particular,
the Joint Committee should strive to use the funds for initiatives
that promote efforts to improve or enhance labor or environmental
law enforcement, as the case may be.

Other Duties of A Responsible Office

76. In addition to the other
duties specified in these Rules and the Code of Conduct, a
responsible office shall:

(a)
provide administrative assistance to the panel and experts in a
particular proceeding;

(b)
make available to the panelists copies of the agreement and other
documents relevant to the proceedings, such as these rules; and

(c)
retain indefinitely a copy of the complete record of the panel
proceeding.

Other Duties of A Party's Office

77.
Pursuant to Article 21.3, each Party's office shall compensate
panelists and pay the general expenses related to a panel
proceeding, including those incurred by the responsible office
under Rule 76(a)


[1] The term
"documents" in rules 12 through 18 is not intended to
include documents that are purely administrative in nature.

[2]To the extent possible, confidential information
should be contained in an exhibit or annex to the submission.

[3]The expression
"observe" does not require physical presence at the hearing. To facilitate public observation of panel hearings, such
hearings may be transmitted to the public.

Last Updated: 31 December 2012
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