under the direction of such person, and shall then be subscribed by the
deponent. Any individual, partnership, corporation, association,
organization, or other entity may be compelled to appear and be
deposed and to produce documentary evidence in the same manner as
witnesses may be compelled to appear and testify and produce
documentary evidence before the committee, as provided in this
section.
House Ways & Means Committee Report
Section 403 of H.R. 3450, relating to the powers of extraordinary challenge
committees to secure testimony and document production, parallels the
language of the U.S.-Canada FTA Implementation Act. This authority is
necessary because Article 1904(13)(a)(i) of the NAFTA, unchanged from the
U.S.-Canada FTA, provides in certain circumstances for an ECC if a NAFTA
country alleges that a panelist has engaged in gross misconduct, is biased, or
has a serious conflict of interest. In such circumstances, an ECC might need
to compel production of evidence.
One significant change to Article 1904 in the NAFTA as compared to the
predecessor U.S.-Canada FTA provision is the extraordinary challenge
committee provision at Article 1904(13) clarifying and emphasizing that
failure by a binational panel to apply the appropriate standard of review
would qualify as a ground for ECC review under Article 1904(13)(a)(iii). In
negotiating the NAFTA, the Parties decided to make explicit in Article
1904.13(a)(iii) of the NAFTA what was clearly implied in Article 1904.13(a)(iii)
of the U.S.-Canada FTA, namely that a binational panel that failed to apply
the appropriate standard of review would per se be considered to have
manifestly exceeded its powers, authority or jurisdiction.
This amendment affirms the central importance to the functioning of the
binational panel system of strict adherence by panels to the proper
application of the judicial standard of review of the importing country. The
Committee strongly shares the Parties' and Administration's view that strict
adherence by panels to the proper application of the judicial standard or
review is critical to the functioning of the binational panel process.
Strict adherence by binational panels to the requirement in Article 1904(3)
that panels apply the judicial standard of review of the importing country is
the cornerstone of the binational panel process. Scholars have noted the
potential within the system for lack of uniformity of panel decisions with each
other and established U.S. law. See A.F. Lowenfeld, "Binational Panel Dispute
Settlement Under Chapters 18 and 19 of the Canada-United States Free Trade
Agreement: An Interim Appraisal" 81 (December 1990). In order to ensure
that such lack of uniformity does not develop through panel decisions under
the NAFTA, binational panels must take care to apply properly the importing
country's law and standard of judicial review.
