under the direction of such person and shall then be subscribed by the deponent

Under the direction of such person and shall then be

This preview shows page 211 - 212 out of 496 pages.

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.
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