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NORTH AMERICAN AGREEMENT ON LABOR COOPERATION
SUPPLEMENTAL AGREEMENT
TO THE NAFTA RELEASED SEPTEMBER 14, 1993.
PREAMBLE
The Government of the United States of America, the Government
of Canada and the Government of the United Mexican States:
RECALLING their resolve in the North American Free Trade
Agreement (NAFTA) to:
-- create an expanded and secure market for the goods and
services produced in their territories,
-- enhance the competitiveness of their firms in global markets,
-- create new employment opportunities and improve working
conditions and living standards in their respective territories, and
-- protect, enhance and enforce basic workers' rights;
AFFIRMING their continuing respect for each Party's
constitution and law;
DESIRING to build on their respective international
commitments and to strengthen their cooperation on labor matters;
RECOGNIZING that their mutual prosperity depends on the
promotion of competition based on innovation and rising levels of
productivity and quality; SEEKING to complement the economic
opportunities created by the NAFTA with the human resource
development, labor-management cooperation and continuous learning
that characterize high-productivity economies;
ACKNOWLEDGING that protecting basic workers' rights will
encourage firms to adopt high-productivity competitive
strategies;
RESOLVED to promote, in accordance with their respective laws,
high-skill, high-productivity economic development in North
America by:
-- investing in continuous human resource
development, including for entry intothe workforce and during
periods of unemployment;
-- promoting employment security and
career opportunities for all workers through referral and other
employment services;
-- strengthening labor-management
cooperation to promote greater dialogue between worker
organizations and employers and to foster creativity and
productivity in the workplace;
-- promoting higher living
standards as productivity increases;
-- encouraging consultation
and dialogue between labor, business and governmentboth in each
country and in North America;
-- fostering investment with due
regard for the importance of labor laws and principles;
-- encouraging employers and employees in each country to comply
with labor laws and to work together in maintaining a
progressive, fair, safe and healthy working
BUILDING on existing institutions and mechanisms in Canada,
Mexico and the United States to achieve the preceding economic
and social goals; and
CONVINCED of the benefits to be gained from further
cooperation between them on labor matters;
HAVE AGREED as follows:
PART ONE OBJECTIVES
Article 1: Objectives
The objectives of this Agreement are to:
(a) improve working conditions and living standards in each
Party's territory;
(b) promote, to the maximum extent possible, the labor
principles set out in Annex 1;
(c) encourage cooperation to promote innovation and rising
levels of productivity and quality;
(d) encourage publication and exchange of information, data
development and coordination, and joint studies to enhance
mutually beneficial understanding of the laws and institutions
governing labor in each Party's territory;
(e) pursue cooperative labor-related activities on the basis
of mutual benefit;
(f) promote compliance with, and effective enforcement by
each Party of, its labor law; and
(g) foster transparency in the administration of labor law.
PART TWO OBLIGATIONS
Article 2: Levels of Protection
Affirming full respect for each Party's constitution, and
recognizing the right of each Party to establish its own domestic
labor standards, and to adopt or modify accordingly its labor
laws and regulations, each Party shall ensure that its labor laws
and regulations provide for high labor standards, consistentwith
high quality and productivity workplaces, and shall continue to
strive to improve those standards in that light.
Article 3: Government Enforcement Action
1. Each Party shall promote compliance with and effectively
enforce its laborlaw through appropriate government action,
subject to Article 42, such as:
(a) appointing and training inspectors;
(b) monitoring compliance and investigating suspected
violations, including through on-site inspections;
(c) seeking assurances of voluntary compliance;
(d) requiring record keeping and reporting;
(e) encouraging the establishment of worker-management
committees to address labor regulation of the workplace;
(f) providing or encouraging mediation, conciliation and
arbitration services; or
(g) initiating, in a timely manner, proceedings to seek
appropriate sanctions or remedies for violations of its labor
law.
2. Each Party shall ensure that its competent authorities give
due consideration in accordance with its law to any request by an
employer, employeeor their representatives, or other interested
person, for an investigation of analleged violation of the
Party's labor law.
Article 4: Private Action 1. Each Party shall ensure that
persons with a legally recognized interest under its law in a
particular matter have appropriate access to administrative,
quasi-judicial, judicial or labor tribuna1s for the enforcement
of the Party's labor law.
2. Each Party's law shall ensure that such persons may have
recourse to, as appropriate, procedures by which rights arising
under:
(a) its labor law, including in respect of occupational
safety and health, employment standards, industrial relations and
migrant workers, and
(b) collective agreements, can be enforced.
Article 5: Procedural Guarantees
1. Each Party shall ensure that its administrative, quasi-
judicial, judicial and labor tribunal proceedings for the
enforcement of its labor law are fair, equitable and transparent
and, to this end, each Party shall provide that:
(a) such proceedings comply with due process of law;
(b) any hearings in such proceedings are open to the public,
except where the administration of justice otherwise requires;
(c) the parties to such proceedings are entitled to support
or defend their respective positions and to present information
or evidence; and
(d) such proceedings are not unneccessarily complicated and
do not entail unreasonable charges or time limits or unwarranted
delays.
2. Each Party shall provide that final decisions on the merits
of the case insuch proceedings are:
(a) in writing and preferably state the reasons on which the
decisions are based;
(b) made available without undue delay to the parties to the
proceedings and, consistent with its law, to the public; and
(c) based on information or evidence in respect of which the
parties were offered the opportunity to be heard.
3. Each Party shall provide, as appropriate, that parties to
such proceedingshave the right, in accordance with its law, to
seek review and, where warranted,correction of final decisions
issued in such proceedings.
4. Each Party shall ensure that tribunals that conduct or
review such proceedings are impartial and independent and do not
have any substantial interest in the outcome of the matter.
5. Each Party shall provide that the parties to
administrative, quasi-judicial, judicial or labor tribunal
proceedings may seek remedies to ensure the enforcement of their
labor rights. Such remedies may include, as appropriate, orders,
compliance agreements, fines, penalties, imprisonment,
injunctions or emergency workplace closures.
6. Each Party may, as appropriate, adopt or maintain labor
defense offices torepresent or advise workers or their
organizations.
7. Nothing in this Article shall be construed to require a
Party to establish, or to prevent a Party from establishing, a
judicial system for the enforcement of its labor law distinct
from its system for the enforcement of laws in general. 8. For
greater certainty, decisions by each Party's administrative,
quasi-judicial, judicial or labor tribunals, or pending
decisions, as well as related proceedings shall not be subject to
revision or reopened under the provisions of this Agreement.
Article 6: Publication
1. Each Party shall ensure that its laws, regulations,
procedures and administrative rulings of general application
respecting any matter covered by this Agreement are promptly
published or otherwise made available in such a manner as to
enable interested persons and Parties to become acquainted with
them.
2. When so established by its law, each Party shall:
(a) publish in advance any such measure that it proposes to
adopt; and
(b) provide interested persons a reasonable opportunity to
comment on such proposed measures.
Article 7: Public Information and Awareness 1. Each Party
shall promote public awareness of its labor law, including by:
(a) ensuring that public information is available related to
its labor law and enforcement and compliance procedures; and
(b) promoting public education regarding its labor law.
PART THREE COMMISSION FOR LABOR COOPERATION
Article 8: The Commission
1. The Parties hereby establish the Commission for Labor
Cooperation.
2. The Commission shall comprise a ministerial Council and a
secretariat. TheCommission shall be assisted by the National
Administrative Office of each Party. Section A: The Council
Article 9: Council Structure and Procedures 1. The Council
shall comprise labor ministers of the Parties or their designees.
2. The Council shall establish its rules and procedures.
3. The Council shall convene:
(a) at least once a year in regular session, and
(b) in special session at the request of any Party. Regular
sessions shall be chaired successively by each Party.
4. The Council may hold public sessions to report on
appropriate matters.
5. The Council may:
(a) establish, and assign responsibilities to, committees,
working groups or expert groups; and
(b) seek the advice of independent experts. 6. All decisions
and recommendations of the Council shall be taken by consensus,
except as the Council may otherwise decide or as otherwise
provided in this Agreement.
Article 10: Council Functions
The Council shall be the governing body of the Commission and
shall:
(a) oversee the implementation and develop recommendations on
the further elaboration of this Agreement and, to this end, the
Council shall, within four years after the date of entry into
force of this Agreement, review its operationand effectiveness in
the light of experience;
(b) direct the work and activities of the Secretariat and of
any committees or working groups convened by the Council;
(c) establish priorities for cooperative action and, as
appropriate, develop technical assistance programs on the matters
set out in Article 11;
(d) approve the annual plan of activities and budget of the
Commission;
(e) approve for publication, subject to such terms or
conditions as it may impose, reports and studies prepared by the
Secretariat, independent experts or working groups;
(f) facilitate Party-to-Party consultations, including
through the exchange of information;
(g) address questions and differences that may arise between
the Parties regarding the interpretation or application of this
Agreement; and
(h) promote the collection and publication of comparable data
on enforcement, labor standards and labor market indicators.
2. The Council may consider any other matter within the scope
of this Agreement and take such other action in the exercise of
its functions as the Parties may agree.
Article 11: Cooperative Activities
The Council shall promote cooperative activities between the
Parties, as appropriate, regarding: (a) occupational safety and
health;
(b) child labor;
(c) migrant workers of the Parties;
(d) human resource development;
(e) labor statistics;
(f) work benefits;
(g) social programs for workers and their families;
(h) programs, methodologies and experiences regarding
productivity improvement; (i) labor-management relations and
collective bargaining procedures;
(j) employment standards and their implementation;
(k) compensation for work-related injury or illness;
(l) legislation relating to the formation and operation of
unions, collective bargaining and the resolution of labor
disputes, and its implementation;
(m) the equality of women and men in the workplace;
(n) forms of cooperation among workers, management and
government;
(o) the provision of technical assistance, at the request of
a Party, for the development of its labor standards; and
(p) such other matters as the Parties may agree.
2. In carrying out the activities referred to in paragraph 1,
the Parties may, commensurate with the availability of resources
in each Party, cooperate through:
(a) seminars, training sessions, working groups and
conferences;
(b) joint research projects, including sectoral studies;
(c) technical assistance; and
(d) such other means as the Parties may agree.
3. The Parties shall carry out the cooperative activities
referred to in paragraph 1 with due regard for the economic,
social, cultural and legislative differences between them.
Section B: The Secretariat Article 12: Secretariat Structure and
Procedures
1. The Secretariat shall be headed by an Executive Director,
who shall be chosen by the Council for a three-year term, which
may be renewed by the Councilfor one additional three-year term.
The position of Executive Director shall rotate consecutively
between nationals of each Party. The Council may remove
theExecutive Director solely for cause.
2. The Executive Director shall appoint and supervise the
staff of the Secretariat, regulate their powers and duties and
fix their remuneration in accordance with general standards to be
established by the Council. The general standards shall provide
that:
(a) staff shall be appointed and retained, and their
conditions of employment shall be determined, strictly on the
basis of efficiency, competence and integrity;
(b) in appointing staff, the Executive Director shall take
into account lists of candidates prepared by the Parties;
(c) due regard shall be paid to the importance of recruiting
an equitable proportion of the professional staff from among the
nationals of each Party; and
(d) the Executive Director shall inform the Council of all
appointments.
3. The number of staff positions shall initially be set at 15
and may be changed thereafter by the Council.
4. The Council may decide, by a two-thirds vote, to reject any
appointment that does not meet the general standards. Any such
decision shall be made and held in confidence.
5. In the performance of their duties, the Executive Director
and the staff shall not seek or receive instructions from any
government or any other authority external to the Council. Each
Party shall respect the international character of the
responsibilities of the Executive Director and the staff and
shall not seek to influence them in the discharge of their
responsibilities.
6. The Secretariat shall safeguard:
(a) from disclosure information it receives that could
identify an organizationor person if the person or organization
so requests or the Secretariat otherwiseconsiders it appropriate;
and
(b) from public disclosure any information it receives from
any organization orperson where the information is designated by
that organization or person as confidential or proprietary.
7. The Secretariat shall act under the direction of the
Council in accordancewith Article 10(1)(b).
Article 13: Secretariat Functions
1. The Secretariat shall assist the Council in exercising its
functions and shall provide such other support as the Council may
direct.
2. The Executive Director shall submit for the approval of the
Council the annual plan of activities and budget for the
Commission, including provision forcontingencies and proposed
cooperative activities.
3. The Secretariat shall report to the Council annually on its
activities andexpenditures.
4. The Secretariat shall periodically publish a list of
matters resolved under Part Four or referred to Evaluation
Committees of Experts.
Article 14: Secretariat Reports and Studies
The Secretariat shall periodically prepare background reports
setting out publicly available information supplied by each Party
on:
(a) labor law and administrative procedures;
(b) trends and administrative strategies related to the
implementation and enforcement of labor law;
(c) labor market conditions such as employment rates, average
wages and labor productivity; and (d) human resource development
issues such as training and adjustment programs. 2. The
Secretariat shall prepare a study on any matter as the Council
may request. The Secretariat shall prepare any such study in
accordance with terms of reference established by the Council,
and may
(a) consider any relevant information;
(b) where it does not have specific expertise in the matter,
engage one or moreindependent experts of recognieed experience;
and
(c) include proposals on the matter.
3. The Secretariat shall submit a draft of any report or study
that it prepares pursuant to paragraph 1 or 2 to the Council. If
the Council considers that a report or study is materially
inaccurate or otherwise deficient, the Council may remand it to
the Secretariat for reconsideration or other disposition.
4. Secretariat reports and studies shall be made public 45
days after their approval by the Council, unless the Council
otherwise decides. Section C: National Administrative Offices
Article 15: National Administrative Office Structure
1. Each Party shall establish a National Administrative Office
(NAO) at the federal government level and noti the Secretariat
and the other Parties of its location.
2. Each Party shall designate a Secretary for its NAO, who
shall be responsible for its administration and management.
3. Each Party shall be responsible for the operation and costs
of its NAO. Article 16: NAO Functions 1. Each NAO shall serve as
a point of contact with: (a) governmental agencies of that Party;
(b) NAOs of the other Parties; and (c) the Secretariat.
2. Each NAO shall promptly provide publicly available
information requested by:
(a) the Secretariat for reports under Article 14(1);
(b) the Secretariat for studies under Article 14(2);
(c) a NAO of another Party; and
(d) an ECE.
3. Each NAO shall provide for the submission and receipt, and
periodically publish a list, of public communications on labor
law matters arising in the territory of another Party. Each NAO
shall review such matters, as appropriate, in accordance with
domestic procedures. Section D: National Committees
Article 17: National Advisory Committee
Each Party may convene a national advisory committee,
comprising members of its public, including representatives of
its labor and business organizations and other persons, to advise
it on the implementation and further elaboration ofthis
Agreement.
Article 18: Govermnental Committee
Each Party may convene a governmental committee, which may
comprise or include representatives of federal and state or
provincial governments, to advise it on the implementation and
further elaboration of this Agreement. Section E: Official
Languages
Article 19: Official Languages The official languages of the
Commission shall be English, French and Spanish. The Council
shall establish rules and procedures regarding interpretation and
translation. PART FOUR COOPERATIVE CONSULTATIONS AND EVALUATIONS
Article 20: Cooperation
The Parties shall at all times endeavor to agree on the
interpretation and application of this Agreement, and shall make
every attempt through cooperation and consultations to resolve
any matter that might affect its operation. Section A:
Cooperative Consultations
Article 21: Consultations between NAOs
1. A NAO may request consultations, to be conducted in
accordance with the procedures set out in paragraph 2, with
another NAO in relation to the other Party's labor law, its
administration, or labor market conditions in its territory. The
requesting NAO shall notify the NAOs of the other Parties and
theSecretariat of its request.
2. In such consultations, the requested NAO shall promptly
provide such publicly available data or information, including:
(a) descriptions of its laws, regulations, procedures,
policies or practices,
(b) proposed changes to such procedures, policies or
practices, and
(c) such clarifications and explanations related to such
matters, as may assistthe consulting NAOs to better understand
and respond to the issues raised.
3. Any other NAO shall be entitled to participate in the
consultations on notice to the other NAOs and the Secretariat.
Article 22: Ministerial Consultations
1. Any Party may request in writing consultations with another
Party at the ministerial level regarding any matter within the
scope of this Agreement. The requesting Party shall provide
specific and sufficient information to allow the requested Party
to respond.
2. The requesting Party shall promptly notify the other
Parties of the request. A third Party that considers it has a
substantial interest in the matter shall be entitled to
participate in the consultations on notice to the other Parties.
3. The consulting Parties shall make every attempt to resolve
the matter through consultations under this Article, including
through the exchange of sufficient publicly available information
to enable a full examination of the matter. Section B:
Evaluations
Article 23: Evaluation Committee of Experts
1. If a matter has not been resolved after ministerial
consultations pursuantto Article 22, any consulting Party may
request in writing the establishment of an Evaluation Committee
of Experts (BCE). The requesting Party shall deliver therequest
to the other Parties and to the Secretariat. Subject to
paragraphs 3 and4, the Council shall establish an ECE on delivery
of the request.
2. The ECE shall analyze, in the light of the objectives of
this Agreement and in a non-adversarial manner, patterns of
practice by each Party in the enforcement of its occupational
safety and health or other technical labor standards as they
apply to the particular matter considered by the Parties
underArticle 22.
3. No ECE may be convened if a Party obtains a ruling under
Annex 23 that thematter:
(a) is not trade-related; or
(b) is not covered by mutually recognized labor laws.
4. No ECE may be convened regarding any matter that was
previously the subject of an ECE report in the absence of such
new information as would warranta further report.
Article 24: Rules of Procedure
1. The Council shall establish rules of procedure for ECEs,
which shall applyunless the Council otherwise decides. The rules
of procedure shall provide that:
(a) an ECE shall normally comprise three members;
(b) the chair shall be selected by the Council from a roster
of experts developed in consultation with the ILO pursuant to
Article 45 and, where possible, other members shall be selected
from a roster developed by the Parties;
(c) ECE members shall
(i) have expertise or experience in labor matters or other
appropriate disciplines,
(ii) be chosen strictly on the basis of objectivity,
reliability and sound judgment,
(iii) be independent of, and not be affiliated with or take
instructions from,any Party or the Secretariat, and
(iv) comply with a code of conduct to be established by the
Council; (d) an ECE may invite written submissions from the
Parties and the public; (e) an ECE may consider, in preparing its
report, any information provided by (i) the Secretariat,
(ii) the NAO of each Party,
(iii) organizations, institutions and persons with relevant
expertise, and
(iv) the public; and (f) each Party shall have a reasonable
opportunity to review and comment on information that the ECE
receives and to make written submissions to the ECE.
2. The secretariat and the NAOs shall provide appropriate
administrative assistance to an ECE, in accordance with the rules
of procedure established by the Council under paragraph 1.
Article 25: Draft Evaluation Reports
1. Within 120 days after it is established, or such other
period as the Council may decide, the ECE shall present a draft
report for consideration by the Council, which shall contain:
(a) a comparative assessment of the matter under
consideration;
(b) its conclusions; and
(c) where appropriate, practical recommendations that may
assist the Parties inrespect of the matter.
2. Each Party may submit written views to the ECE on its draft
report. The ECE shall take such views into account in preparing
its final report. Article 26: Final Evaluation Reports
1. The ECE shall present a final report to the Council within
60 days after presentation of the draft report, unless the
Council otherwise decides.
2. The final report shall be published within 30 days after
its presentation to the Council, unless the Council otherwise
decides. 3. The Parties shall provide to each other and the
Secretariat written responses to the recommendations contained in
the ECE report within 90 days of its publication.
4. The final report and such written responses shall be tabled
for consideration at the next regular session of the Council. The
Council may keep the matter under review.
PART FIVE RESOLUTION OF DISPUTES
Article 27: Consultations
1. Following presentation to the Council under Article 26(1)
of an ECE final report that addresses the enforcement of a
Party's occupational safety and health, child labor or minimum
wage technical labor standards, any Party may request in writing
consultations with any other Party regarding whether there has
been a persistent pattern of failure by that other Party to
effectively enforce such standards in respect of the general
subject matter addressed in thereport.
2. The requesting Party shall deliver the request to the other
Parties and tothe Secretariat.
3. Unless the Council otherwise provides in its rules and
procedures established under Article 9(2), a third Party that
considers it has a substantial interest in the matter shall be
entitled to participate in the consultations on delivery of
written notice to the other Parties and to the Secretariat.
4. The consulting Parties shall make every attempt to arrive
at a mutually satisfactory resolution of the matter through
consultations under this Article.
Article 28: Initiation of Procedures
1. If the consulting Parties fail to resolve the matter
pursuant to Article 27 within 60 days of delivery of a request
for consultations, or such other period as the consulting Parties
may agree, any such Party may request in writing a special
session of the Council.
2. The requesting Party shall state in the request the matter
complained of and shall deliver the request to the other Parties
and to the Secretariat. 3. Unless it decides otherwise, the
Council shall convene within 20 days of delivery of the request
and shall endeavor to resolve the dispute promptly.
4. The Council may:
(a) call on such technical advisers or create such working
groups or expert groups as it deems necessary,
(b) have recourse to good offices, conciliation, mediation or
such other dispute resolution procedures, or
(c) make recommendations, as may assist the consulting
Parties to reach a mutually satisfactory resolution of the
dispute. Any such recommendations shall be made public if the
Council, by a two-thirds vote, so decides.
5. Where the Council decides that a matter is more properly
covered by another agreement or arrangement to which the
consulting Parties are party, it shall refer the matter to those
Parties for appropriate action in accordance with such other
agreement or arrangement.
Article 29: Request for an Arbitral Panel
1. If the matter has not been resolved within 69 days alter
the Council has convened pursuant to Article 28, the Council
shall, on the written request of any consulting Party and by a
two-thirds vote, convene an arbitral panel to consider the matter
where the alleged persistent pattern of failure by the
Partycomplained against to effectively enforce its occupational
safety and health, child labor or minimum wage technical labor
standards is:
(a) trade-related; and
(b) covered by mutually recognized labor laws.
2. A third Party that considers it has a substantial interest
in the matter shall be entitled to join as a complaining Party on
delivery of written notice of its intention to participate to the
disputing Parties and the Secretariat. The notice shall be
delivered at the earliest possible time, and in any event nolater
than seven days after the date of the vote of the Council to
convene a panel.
3. Unless otherwise agreed by the disputing Parties, the panel
shall be established and perform its functions in a manner
consistent with the provisionsof this Part. Article 30: Roster
1. The Council shall establish and maintain a roster of up to
45 individuals who are wi1ing and able to serve as panelists. The
roster members shall be appointed by consensus for terms of three
years, and may be reappointed.
2. Roster members shall:
(a) have expertise or experience in labor law or its
enforcement, or in the resolution of disputes arising under
international agreements, or other relevantscientific, technical
or professional expertise or experience;
(b) be chosen strictly on the basis of objectivity,
reliability and sound judgment;
(c) be independent of, and not be affiliated with or take
instructions from, any Party or the Secretariat; and
(d) comply with a code of conduct to be established by the
Council.
Article 31: Qualifications of Panelists
1. All panelists shall meet the qualifications set out in
Article 30.
2. Individuals may not serve as panelists for a dispute where:
(a) they have participated pursuant to Article 28(4) or
participated as membersof an ECE that addressed the matter; or
(b) they have, or a person or organization with which they
are affiliated has, an interest in the matter, as set out in the
code of conduct established under Article 30(2)(d).
Article 32: Panel Selection
1. Where there are two disputing Parties, the following
procedures shall apply:
(a) The panel shall comprise five members.
(b) The disputing Parties shall endeavor to agree on the
chair of the panel within 15 days after the Council votes to
convene the panel. If the disputing Parties are unable to agree
on the chair within this period, the disputing Partychosen by lot
shall select within five days a chair who is not a citizen of
thatParty.
(c) Within 15 days of selection of the chair, each disputing
Party shall selecttwo panelists who are citizens of the other
disputing Party.
(d) If a disputing Party fails to select its panelists within
such period, suchpanelists shall be selected by lot from among
the roster members who are citizens of the other disputing Party.
2. Where there are more than two disputing Parties, the
following procedures shall apply:
(a) The panel shall comprise five members.
(b) The disputing Parties shall endeavor to agree on the
chair of the panel within 15 days after the Council votes to
convene the panel. If the disputing Parties are unable to agree
on the chair within this period, the Party or Parties on the side
of the dispute chosen by lot shall select within 10 days a chair
who is not a citizen of such Party or Parties.
(c) Within 30 days of selection of the chair, the Party
complained against shall select two panelists, one of whom is a
citizen of a complaining Party, andthe other of whom is a citizen
of another complaining Party. The complaining Parties shall
select two panelists who are citizens of the Party complained
against.
(d) If any disputing Party fails to select a panelist within
such period, such panelist shall be selected by lot in accordance
with the citizenship criteria ofsubparagraph (c).
3. Panelists shall normally be selected from the roster. Any
disputing Party may exercise a peremptory challenge against any
individual not on the roster whois proposed as a panelist by a
disputing Party within 30 days after the individual has been
proposed.
4. If a disputing Party believes that a panelist is in
violation of the code of conduct, the disputing Parties shall
consult and, if they agree, the panelistshall be removed and a
new panelist shall be selected in accordance with this Article.
Article 33: Rules of Procedure
1. The Council shall establish Model Rules of Procedure. The
procedures shallprovide:
(a) a right to at least one hearing before the panel;
(b) the opportunity to make initial and rebuttal written
submissions; and
(c) that no panel may disclose which panelists are assoiated
with majority or minority opinions.
2. Unless the disputing Parties otherwise agree, panels
convened under this Part shall be established and conduct their
proceedings in accordance with the Model Rules of Procedure.
3. Unless the disputing Parties otherwise agree within 20 days
after the Council votes to convene the panel, the terms of
reference shall be: "To examine, in light of the relevant
provisions of the Agreement, including those contained in Part
Five, whether there has been a persistent pattern of failure by
the Party complained against to effectively enforce its
occupational safety and health, child labor or minimum wage
technical labor standards, and tomake findings, determinations
and recommendations in accordance with Article 36(2)."
Article 34: Third Party Participation
A Party that is not a disputing Party, on delivery of a
written notice to thedisputing Parties and the Secretariat, shall
be entitled to attend all hearings,to make written and oral
submissions to the panel and to receive written submissions of
the disputing Parties.
Article 35: Role of Experts
On request of a disputing Party, or on its own initiative, the
panel may seekinformation and technical advice from any person or
body that it deems appropriate, provided that the disputing
Parties so agree and subject to such terms and conditions as such
Parties may agree.
Article 36: Initial Report 1. Unless the disputing Parties
otherwise agree, the panel shall base its report on the
submissions and arguments of the disputing Parties and on any
information before it pursuant to Article 35.
2. Unless the disputing Parties otherwise agree, the panel
shall, within 180 days after the last panelist is selected,
present to the disputing Parties an initial report containing:
(a) findings of fact;
(b) its determination as to whether there has been a
persistent pattern of failure by the Party complained against to
effectively enforce its occupational safety and health, child
labor or minimum wage technical labor standards in a matter that
is trade-related and covered by mutually recognized labor laws,
or any other determination requested in the terms of reference;
and
(c) in the event the panel makes an affirmative determination
under subparagraph (b), its recommendations, if any, for the
resolution of the dispute, which normally shall be that the Party
complained against adopt and implement an action plan sufficient
to remedy the pattern of non-enforcement. 3. Panelists may
furnish separate opinions on matters not unanimously agreed.
4. A disputing Party may submit written comments to the panel on
its initial report within 30 days of presentation of the report.
5. In such an event, and after considering such written
comments, the panel, on its own initiative or on the request of
any disputing Party, may: (a) request the views of any
participating Party;
(b) reconsider its report; and
(c) make any further examination that it considers
appropriate.
Article 37: Final Report
1. The panel shall present to the disputing Parties a final
report, includingany separate opinions on matters not unanimously
agreed, within 60 days of presentation of the initial report,
unless the disputing Parties otherwise agree. 2. The disputing
Parties shall transmit to the Council the final report of the
panel, as well as any written views that a disputing Party
desires to be appended, on a confidential basis within 15 days
after it is presented to them.
3. The final report of the panel shall be published five
days after it is transmitted to the Council.
Article 38: Implementation of Final Report
If, in its final report, a panel determines that there has
been a persistent pattern of failure by the Party complained
against to-effectively enforce its occupational safety and
health, child labor or minimum wage technical labor standards,
the disputing Parties may agree on a mutually satisfactory action
plan, which normally shall conform with the determinations and
recommendations of the panel. The disputing Parties shall
promptly notify the Secretariat and the Council of any agreed
resolution of the dispute. Article 39: Review of Implementation
1. If, in its final report, a panel determines that there has
been a persistent pattern of failure by the Party complained
against to effectively enforce its occupational safety and
health, child labor or minimum wage technical labor standards,
and:
(a) the disputing Parties have not agreed on an action plan
under Article 38 within 60 days of the date of the final report,
or
(b) the disputing Parties cannot agree on whether the Party
complained against is fully implementing
(i) an action plan agreed under Article 38,
(ii) an action plan deemed to have been established by a
panel under paragraph2, or
(iii) an action plan approved or established by a panel under
paragraph 4, any disputing Party may request that the panel be
reconvened. The requesting Party shall deliver the request in
writing to the other Parties and to the Secretariat. The Council
shall reconvene the panel on delivery of the request tothe
Secretariat.
2. No Party may make a request under paragraph 1(a) earlier
than 60 days, or later than 120 days, after the date of the final
report. If the disputing Parties have not agreed to an action
plan and if no request was made under paragraph 1(a), the last
action plan, if any, submitted by the Party complained against to
the complaining Party or Parties within 60 days of the date of
the final report, or such other period as the disputing Parties
may agree, shall be deemed to have been established by the panel
120 days after the date of the final report.
3. A request under paragraph 1(b) may be made no earlier than
180 days after an action plan has been:
(a) agreed under Article 38,
(b) deemed to have been established by a panel under
paragraph 2, or
(c) approved or established by a panel under paragraph 4, and
only during the term of any such action plan.
4. Where a panel has been reconvened under paragraph 1(a), it:
(a) shall determine whether any action plan proposed by the
Party complained against is sufficient to remedy the pattern of
non-enforcement and (i) if so, shall approve the plan, or
(ii) if not, shall establish such a plan consistent with the
law of the Party complained against, and
(b) may, where warranted, impose a monetary enforcement
assessment in accordance with Annex 39, within 90 days after the
panel has been reconvened or such other period as the disputing
Parties may agree.
5. Where a panel has been reconvened under paragraph 1(b), it
shall determineeither that:
(a) the Party complained against is fully implementing the
action plan, in which case the panel may not impose a monetary
enforcement assessment, or
(b) the Party complained against is not fully implementing
the action plan, in which case the panel shall impose a monetary
enforcement assessment in accordance with Annex 39, within 60
days after it has been reconvened or such other period as the
disputing Prrties may agree.
6. A panel reconvened under this Article shall provide that
the Party complained against shall fully implement any action
plan referred to in paragraph 4(a)(ii) or 5(b), and pay any
monetary enforcement assessment imposed under paragraph 4(b) or
5(b), and any such provision shall be final. Article 40: Further
Proceeding
A complaining Party may, at any time beginning 180 days after
a panel determination under Article 39(5)(b), request in writing
that a panel be reconvened to determine whether the Party
complained against is fully implementing the action plan. On
delivery of the request to the other Parties and the Secretariat,
the Council shall reconvene the panel. The panel shall makethe
determination within 60 days after it has been reconvened or such
other period as the disputing Parties may agree.
Article 41: Suspension of Benefits
1. Subject to Annex 41A, where a Party fails to pay a monetary
enforcement assessment within 180 days after it is imposed by a
panel: (a) under Article 39(4)(b), or
(b) under Article 39(5)(b), except where benefits may be
suspended under paragraph 2(a), any complaining Party or Parties
may suspend, in accordance withAnnex 41B, the application to the
Party complained against of NASA benefits in an amount no greater
than that sufficient to collect the monetary enforcement
assessment.
2. Subject to Annex 41A, where a panel has made a
determination under Article39(5)(b) and the panel:
(a) has previously imposed a monetary enforcement assessment
under Article 39(4)(b) or established an action plan under
Article 39(4)(a)(ii), or
(b) has subsequently determined under Article 40 that a Party
is not fully implementing an action plan, the complaining Party
or Parties may, in accordancewith Annex 41B, suspend annually the
application to the Party complained againstof NAFTA benefits in
an amount no greater than the monetary enforcement assessment
imposed by the panel under Article 39(5)(b). 3. Where more than
one complaining Party suspends benefits under paragraph 1 or 2,
the combined suspension shall be no greater than the amount of
the monetary enforcement assessment.
4. Where a Party has suspended benefits under paragraph 1 or
2, the Council shall, on the delivery of a written request by the
Party complained against to the other Parties and the
Secretariat, reconvene the panel to determine whether the
monetary enforcement assessment has been paid or collected, or
whether the Party complained against is fully implementing the
action plan, as the case may be. The panel shall submit its
report within 45 days after it has been reconvened. If the panel
determines that the assessment has been paid or collected, or
that the Party complained against is fully implementing the
actionplan, the suspension of benefits under paragraph 1 or 2, as
the case may be, shall be terminated.
5. On the written request of the Party complained against,
delivered to the other Parties and the Secretariat, the Council
shall reconvene the panel to determine whether the suspension of
benefits by the complaining Party or Partiespursuant to paragraph
1 or 2 is manifestly excessive. Within 45 days of the request,
the panel shall present a report to the disputing Parties
containing its determination. PART SIX GENERAL PROVISIONS
Article 42: Enforcement Principle
Nothing in this Agreement shall be construed to empower a
Party's authoritiesto undertake labor law enforcement activities
in the territory of another Party. Article 43: Private Rights
No Party may provide for a right of action under its domestic
law against anyother Party on the ground that another Party has
acted in a manner inconsistent with this Agreement.
Article 44: Protection of Information
1. If a Patty provides confidential or proprietary information
to another Party, including its NAO, the Council or the
Secretariat, the recipient shall treat the information on the
same basis as the Party providing the information. 2.
Confidential or proprietary information provided by a Party to an
BCE or apanel under this Agreement shall be treated in accordance
with the rules of procedure established under Articles 24 and 33.
Article 45: Cooperation with the ILO
The Parties shall seek to establish cooperative arrangements
with the ILO to enable the Council and Parties to draw on the
expertise and experience of the ILO for purposes of implementing
Article 24(1).
Article 46: Extent of Obligations
Annex 46 applies to the Parties specified in that Annex.
Article 47: Funding of the Commission
Each Patty shall contribute an equal share of the annual
budget of the Commission, subject to the availability of
appropriated funds in accordance withthe Party's legal
procedures. No Party shall be obligated to pay more than any
other Patty in respect of an annual budget.
Article 48: Privileges and Immunities
The Executive Director and staff of the Secretariat shall
enjoy in the territory of each of the Parties such privileges and
immunities as are necessaryfor the exercise of their functions.
Article 49: Definitions
1. For purposes of this Agreement:
A Party had not failed to "effectively enforce its
occupational safety and health, child labor or minimum wage
technical labor standards" or comply with Article 3(1) in a
particular case where the action or inaction by agencies or
officials of that Patty:
(a) reflects a reasonable exercise of the agency's or the
official's discretionwith respect to investigatory,
prosecutorial, regulatory or compliance matters; or
(b) results from bonaflde decisions to allocate resources to
enforcement in respect of other labor matters determined to have
higher priorities;"labor law" means laws and regulations, or
provisions thereof, that are directly related to:
(a) freedom of association and protection of the right to
organize;
(b) the right to bargain collectively;
(c) the right to strike;
(d) prohibition of forced labor;
(e) labor protections for children and young persons;
(f) minimum employment standards, such as minimum wages and
overtime pay, covering wage earners, including those not covered
by collective agreements;
(g) elimination of employment discrimination on the basis of
grounds such as race, religion, age, sex, or other grounds as
determined by each Party's domestic laws;
(h) equal pay for men and women; (i) prevention of
occupational injuries and illnesses;
(j) compensation in cases of occupational injuries and
illnesses;
(k) protection of migrant workers;"mutually recognized labor
laws" means laws of both a requesting Party and the Party whose
laws were the subject of ministerial consultations under Article
22 that address the same general subjectmatter in a manner that
provides enforceable rights, protections or standards;"pattern of
practice" means a course of action or inaction begining after the
date of entry into force of the Agreement, and does not include a
single instance or case;"persistent pattern" means a sustained or
recurring pattern of practice;"province" means a province of
Canada, and includes the Yukon Territory and the Northwest
Territories and their successors;"publicly available information"
means information to which the public has a legal right under the
statutory laws of the Party;"technical labor standards" means
laws andregulations, or specific provisions thereof, that are
directly related to subparagraphs (d) through (k) of the
definition of labor law. For greater certainty and consistent
with the provisions of this Agreement, the setting of all
standards and levels in respect of minimum wages and labor
protections for children and young persons by each Party shall
not be subject to obligations under this Agreement. Each Party's
obligations under this Agreement pertain to enforcing the level
of the general minimum wage and child labor age limits
established by that Party;"territory" means for a Party the
territory of that Party as set out in Annex 49; and"trade-
related" means related to a situation involving workplaces,
firms, companies or sectors that produce goods or provide
services:
(a) traded between the territories of the Parties; or
(b) that compete, in the territory of the Party whose labor
law was the subjectof ministerial consultations under Article 22,
with goods or services produced or provided by persons of another
Party.
PART SEVEN FINAL PROVISIONS
Article 50: Annexes
The Annexes to this Agreement constitute an integral part of
the Agreement. Article 51: Entry into Force This Agreement shall
enter into force on January 1, 1994, immediately after entry into
force of the NAFTA, on an exchange of written notifications
certifying the completion of necessary legal procedures. Article
52: Amendments
1. The Parties may agree on any modification of or addition to
this Agreement.
2. When so agreed, and approved in accordance with the
applicable legal procedures of each Party, a modification or
addition shall constitute an integral part of this Agreement.
Article 53: Accession
Any country or group of countries may accede to this Agreement
subject to such terms and conditions as may be agreed between
such country or countries andthe Council and following approval
in accordance with the applicable legal procedures of each
country.
Article 54: Withdrawal A Party may withdraw from this
Agreement six months after it provides writtennotice of
withdrawal to the other Parties. If a Party withdraws, the
Agreement shall remain in force for the remaining Parties.
Article 55: Authentic Texts
The English, French and Spanish texts of this Agreement are
equally authentic.IN WITNESS WHEREOF, the undersigned, being duly
authorized by the respective Governments, have signed this
Agreement. ANNEX 1 LABOR PRINCIPLES
The following are guiding principles that the Parties are
committed to promote, subject to each Party's domestic law, but
do not establish common minimum standards for their domestic law.
They indicate broad areas of concern where the Parties have
developed, each in its own way, laws, regulations, procedures and
practices that protect the rights and interests of their
respective workforces. 1. Freedom of association and protection
of the right to organize The right of workers exercised freely
and without impediment to establish andjoin organizations of
their own choosing to further and defend their interests. 2.
The right to bargain collectively
The protection of the right of organized workers to freely
engage in collective bargaining on matters concerning the terms
and conditions of employment. 3. The right to strike
The protection of the right of workers to strike in order to
defend their collective interests. 4. Prohibition of forced
labor
The prohibition and suppression of all forms of forced or
compulsory labor, except for types of compulsory work generally
considered acceptable by the Parties, such as compulsory military
service, certain civic obligations, prison labor not for private
purposes and work exacted in cases of emergency.
5. Labor protections for children and young persons
The establishment of restrictions on the employment of
children and young persons that may vary taking into
consideration relevant factors likely to jeopardize the full
physical, mental and moral development of young persons,
including schooling and safety requirements. 6. Minimum
employment standards
The establishment of minimum employment standards, such as
minimum wages and overtime pay, for wage earners, including those
not covered by collective agreements. 7. Elimination of
employment discrimination
Elimination of employment discrimination on such grounds as
race, religion, age, sex or other grounds, subject to certain
reasonable exceptions, such as, where applicable, bona fide
occupational requirements or qualifications and established
practices or rules governing retirement ages, and special
measures of protection or assistance for particular groups
designed to take into account the effects of discrimination. 8.
Equal pay for women and men
Equal wages for women and men by applying the principle of
equal pay for equal work in the same establishment. 9.
Prevention of occupational injuries and illnesses
Prescribing and implementing standards to minimize the causes
of occupationalinjuries and lllnesses. 10. Compensation in
cases of occupational injuries and illnesses
The establishment of a system providing benefits and
compensation to workers or their dependents in cases of
occupational injuries, accidents or fatalities arising out of,
linked with or occurring in the course of employment. 11.
Protection of migrant workers
Providing migrant workers in a Party's territory with the same
legal protection as the Party's nationals in respect of working
conditions.
ANNEX 23 INTERPRETIVE RULING
1. Where a Party has requested the Council to convene an BCE,
the Council shall, on the written request of any other Party,
select an independent expert to make a ruling concerning whether
the matter is:
(a) trade-related; or (b) covered by mutually recognized
labor laws.
2. The Council shall establish rules of procedure for the
selection of the expert and for submissions by the Parties.
Unless the Council decides otherwise,the expert shall present a
ruling within 15 days after the expert is selected.
ANNEX 39 MONETARY ENFORCEMENT ASSESSMENTS 1. For the first year
after the date of entry into force of this Agreement, any
monetary enforcement assessment shallbe no greater than 20
million dollars (U.S.) or its equivalent in the currency of the
Party complained against. Thereafter, any monetary enforcement
assessmentshall be no greater than .007 percent of total trade in
goods between the Parties during the most recent year for which
data are available. 2. In determining the amount of the
assessment, the panel shall take into account:
(a) the pervasiveness and duration of the Party's persistent
pattern of failureto effectively enforce its occupational safety
and health, child labor or minimum wage technical labor
standards;
(b) the level of enforcement that could reasonably be
expected of a Party givenits resource constraints;
(c) the reasons, if any, provided by the Party for not fully
implementing an action plan;
(d) efforts made by the Party to begin remedying the pattern
of nonenforcement after the final report of the panel; and
(e) any other relevant lactors.
3. All monetary enforcement assessments shall be paid in the
currency of the Party complained against into a fund established
in the name of the Commission by the Council and shall be
expended at the direction of the Council to improve or enhance
the labor law enforcement in the Party complained against,
consistent with its law.
ANNEX 41A CANADIAN DOMESTIC ENFORCEMENT AND COLLECTION
1. For the purposes of this Annex, "panel determination"
means:
(a) a determination by a panel under Article 39(4)(b) or 5(b)
that provides that Canada shall pay a monetary enforcement
assessment; and
(b) a determination by a panel under Article 39(5)(b) that
provides that Canadashall fully implement an action plan where
the panel:
(i) has previously established an action plan under Article
39(4)(a)(ii) or imposed a monetary enforcement assessment under
Article 39(4)(b); or
(ii) has subsequently determined under Article 40 that Canada
is not fully implementing an action plan.
2. Canada shall adopt and maintain procedures that provide
that:
(a) subject to subparagraph (b), the Commission, at the
request of a complaining Party, may in its own name file in a
court of competent jurisdictiona certified copy of a panel
determination;
(b) the Commission may file in court a panel determination
that is a panel determination described in paragraph 1(a) only if
Canada has failed to comply with the determination within 180
days of when the determination was made;
(c) when filed, the panel determination, for purposes of
enforcement, shall become an order of the court;
(d) the Commission may take proceedings for enforcement of a
panel determination that is made an order of the court, in that
court, against the person against whom the panel determination is
addressed in accordance with paragraph 6 of Annex 46;
(e) procedings to enforce a panel determination that has been
made an order of the court shall be conducted by way of summary
procedings;
(f) in proceedings to enforce a panel determination that is a
panel determination described in paragraph 1(b) and that has been
made an order of the court, the court shall promptly refer any
question of fact or any question of interpretation of the panel
determination to the panel that made the panel determination, and
the decision of the panel shall be binding on the court;
(g) a panel determination that has been made an order of the
court shall not besubject to domestic review or appeal; and (h)
an order made by the court in proceedings to enforce a panel
determination that has been made an order of the court shall not
be subject to review or appeal.
3. Where Canada is the Party complained against, the
procedures adopted and maintained by Canada under this Annex
shall apply and the procedures set out in Article 41 shall not
apply.
4. Any change by Canada to the procedures adopted and
maintained by Canada under this Annex that have the effect of
undermining the provisions of this Annex shall be considered a
breach of this Agreement.
ANNEX 41B SUSPENSION OF BENEFITS 1. Where a complaining Party
suspends NAFTA tariff benefits in accordance with this Agreement,
the Party may increase the rates of duty on originating goods of
the Party complained against to levels notto exceed the lesser
of:
(a) the rate that was applicable to those goods immediately
prior to the date of entry into force of the NAFTA, and
(b) the Most-Favored-Nation rate applicable to those goods on
the date the Party suspends such benefits, and such increase may
be applied only for such time as is necessary to collect, through
such increase, the monetary enforcementassessment.
2. In considering what tariff or other benefits to suspend
pursuant to Article 41(1) or (2):
(a) a complaining Party shall first seek to suspend benefits
in the same sectoror sectors as that in respect of which there
has been a persistent pattern of failure by the Party complained
against to effectively enforce its occupational safety and
health, child labor or minimum wage technical labor standards;
and
(b) a complaining Party that considers it is not practicable
or effective to suspend benefits in the same sector or sectors
may suspend benefits in other sectors.
ANNEX 46 EXTENT OF OBLIGATIONS 1. On the date of signature of
this Agreement, orof the exchange of written notifications under
Article 51, Canada shall set out in a declaration a list of any
provinces for which Canada is to be bound in respect of matters
within their jurisdiction. The declaration shall be effectiveon
delivery to the other Parties, and shall carry no implication as
to the internal distribution of powers within Canada. Canada
shall notify the other Parties six months in advance of any
modification to its declaration.
2. Unless a communication relates to a matter that would be
under federal jurisdiction if it were to arise within the
territory of Canada, the Canadian NAO shall identify the province
of residence or establishment of the author of any communication
regarding the labor law of another Party that it forwards to the
NAO of another Party. That NAO may choose not to respond if that
province isnot included in the declaration made under paragraph
1.
3. Canada may not request consultations under Article 22, the
establishment of an Evaluation Committee of Experts under Article
23, consultations under Article 27, the initiation of procedures
under Article 28 or the establishment of a panel or join as a
complaining Party under Article 29 at the instance, or primarily
for the benefit, of any government of a province not included in
the declaration made under paragraph 1.
4. Canada may not request consultations under Article 22, the
establishment of an Evaluation Committee of Experts under Article
23, consultations under Article 27, the initiation of procedures
under Article 28 or the establishment of a panel or join as a
complaining Party under Article 29, unless Canada statesin
writing that the matter would be under federal jurisdiction if it
were to arise within the territory of Canada, or:
(a) Canada states in writing that the matter would be under
provincial jurisdiction if it were to arise within the territory
of Canada; and
(b) the federal government and the provinces included in the
declaration account for at least 35 percent of Canada's labor
force for the most recent yearin which data are available, and
(c) where the matter concerns a specific industry or sector, at
least 55 percent of the workers concerned are employed in
provinces included in Canada's declaration under paragaph 1. 5.
No other Party may request consultations under Article 22, the
establishment of an Evaluation Committee of Experts under Article
23, consultations under Article 27, the initiation of procedures
under Article 28 orthe establishment of a panel or join as a
complaining Party under Article 29, concerning a matter related
to a labor law of a province unless that province isincluded in
the declaration made under paragraph 1 and the requirements of
subparagraphs 4(b) and (c) have been met.
6. Canada shall, no later than the date on which an arbitral
panel is convened pursuant to Article 29 respecting a matter
within the scope of paragraph 5 of this Annex, notify in writing
the complaining Parties and the Secretariat of whether any
monetary enforcement assessment or action plan imposed by a panel
under Article 39(4) or (5) against Canada shall be addressed to
Her Majesty in right of Canada or Her Majesty in right of the
province concerned.
7. Canada shall use its best efforts to make the Agreement
applicable to as many of its provinces as possible.
8. Two years after the date of entry into force of this
Agreement, the Council shall review the operation of this Annex
and, in particular, shall consider whether the Parties should
amend the thresholds established in paragraph 4.
ANNEX 49 COUNTRY-SPECIFIC DEFINITIONS For purposes of this
Agreement:"territory" means:
(a) with respect to Canada, the territory to which its customs
laws apply, including any areas beyond the territorial seas of
Canada within which, in accordance with international law and its
domestic law, Canada may exercise rights with respect to the
seabed and subsoil and their natural resources;
(b) with respect to Mexico,
(i) the states of the Federation and the Federal District,
(ii) the islands, including the reefs and keys, in adjacent
seas,
(iii) the islands of Guadalupe and Revillagigedo situated in
the Pacffic Ocean, (iv) the continental shelf and the submarine
shelf of such islands, keys and reefs,
(v) the waters of the territorial seas, in accordance with
international law, and its interior maritime waters,
(vi) the space located above the national territory, in
accordance with international law, and
(vii) any areas beyond the territorial seas of Mexico within
which, in accordance with international law, including the United
Nations Convention on the Law of the Sea, and its domestic law,
Mexico may exercise rights with repectto the seabed and subsoil
and their natural resources; and
(c) with respect to the United States,
(i) the customs territory of the United States, which
includes the 50 states, the District of Columbia and Puerto Rico,
(ii) the foreign trade zones located in the United States and
Puerto Rico, and
(iii) any areas beyond the territorial seas of the United
States within which, in accordance with international law and its
domestic law, the United States may exercise rights with respect
to the seabed and subsoil and their natural resources.
UNDERSTANDING BETWEEN THE PARTIES TO THE NORTH AMERICAN FREE
TRADE AGREEMENT CONCERNING CHAPTER EIGHT--EMERGENCY ACTION
Article 1: Objective
The objectives of this Understanding are to establish
additional procedures to facilitate the effective use of Chapter
Eight of the North American Free Trade Agreement (NAFTA).
Article 2: Working Group on Emergency Action
l. The Parties hereby establish a Working Group on Emergency
Action comprising one representative of each Party to the NAFTA.
The Working Group shall be deemed to be a working group
established under Article 2001(2)(d) of the NAFTA.
2. The Working Group shall report to the Free Trade Commission
established under the NAFTA, and shall be subject to the
supervision of the Commission.
3. The NAFTA Secretariat shall provide technical support to
the Working Group.
4. The Working Group shall meet at least annually, unless the
Parties otherwise agree, and on reguest of any Party.
5. The Working Group may call on the assistance of such
experts and advisers as it deems appropriate.
6. All decisions of the Working Group shall be taken by
consensus, except as otherwise agreed or provided for in this
Understanding.
Article 3: Functions of the Working Group
1. The Working Group shall consider any issue related to
recourse to Chapter Eight of the NAFTA and may make
recommendations to the Commission.
2. The Working Group shall consider any recourse to Article
XIX of the by any Party
to the NAFTA, and, at the request of any Party, may serve as a
forum for consultations before or during any such use of Article
XIX.
3. The Parties may consult in the Working Group on the request
of a Party where a Party considers that:
(a) in accordance with Article 801 or 802, goods originating
in the territory of another Party are being imported in such
increased quantities as to constitute a substantial cause of, or
contribute importantly to, serious injury,or threat thereof, to
its domestic industry, as evidenced by the factors set outin
Annex 803.3(9) of the NAFTA, including trade, productivity, and
employment; or
(b) another Party is contemplating having recourse to Chapter
Eight. Any consultations under this paragraph shall be without
prejudice as to whether any subsequent emergency action
proceeding is consistent with the NAFTA.
4. The Parties may agree that consultations under paragraph C
shall constitute consultations under Article 801(2) or 802(5) of
the NAFTA. 5. Subject to the rights and obligations of the
Parties under the NAFTA, the Working Group shall serve as a forum
for examining, at the request of any Party and with the agreement
of two-thirds of the Parties, trade, productivity, employment and
other economic factors with respect to any good, provided that
such discussions shall not serve as a justification for
restricting or prohibiting trade in any manner inconsistent with
Chapter Eight.
6. The Working Group may make recommendations to the
Commission for any improvements to Chapter Eight of the NAFTA
that the Working Group deems appropriate, consistent with the
objectives of the NAFTA and of this Understanding.
Article 4: Definitions
Unless otherwise specified, all terms of this Understanding
shall have the meaning assigned to them in the NAFTA.
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