On October 11, 1996, the Notification of Suspension of the Panel was sent to the American and Canadian Secretaries, and was published in the Diario Oficial. ²⁵

On November 8, 1996, Panelist Gilbert R. Winham withdrew due to conflicting duties with the government of his country. ²⁶

According to paragraph 9 of Annex 1901(2) of NAFTA, the governments of Canada and Mexico advised on January 13, 1997, that D.M.M. Goldie and W. Roy Hines were designated as substitute Panelists of the Panel. ²⁷

The case in question was reactivated when the Panel was definitively established with Gustavo Vega Cánovas as Chair, D.M.M. Goldie, Lucía Reina Antuña, W. Roy Hines and Rodolfo Terrazas Salgado as members. Peter N. Mantas, ²⁸ Hernán García Corral, ²⁹ Rocío E. Álvarez ³⁰ y Eduarda María Días Oliveira Matos, ³¹ Arturo Reina Celaya, ³² Rafael Dueñas Hernández, ³³ Gabriela Rodríguez Huerta ³⁴ and Francisco J.J. Castro y Ortíz ³⁵ were named as assistants with access to confidential information.

After some delays, the Public Hearing took place on July 18, 1997, in which the Complainants, SECOFI and the domestic industry presented their case. ³⁶

B. Motions and Orders

During the review procedure the Panel issued various orders, most of them in response to motions made by the Parties. However, others were issued by the Panel sua sponte in exercise of its powers. The foundation and motivation for each motion is set out below. The Panel decided that, in addition to the specific foundation of each order, all the orders that were issued in response to the motions were founded on Rule 63 of the Rules of Procedure.

On March 14, 1997, the Panel issued an order in which the dates of the Public Hearing and of the Final Decision of the Panel were extended, based on Rule 20 of the Rules of Procedure, due to the delay in establishing the new Panel. The date for the Public Hearing was set for June 15, 1997, and the date for issuance of the Final Decision of the Panel was to be October 14, 1997. ³⁷

The Panel ordered on April 1, 1997, that SECOFI grant within a period not greater than 10 days after the date of the Order, access authorization to Confidential Information, without requiring the granting of any other guarantee or additional requirement envisaged in the Ley de Comercio Exterior or in the Rules of Procedure, to Francisco Fuentes Ostos as counsel of record of the Complainants, in response to the Motion concerning confidential information access put forward by them on May 28, 1996. ³⁸ In the same Order, the Panel authorized the Complainants to submit documents and additional allegations, if these resulted from the review of the confidential information. ³⁹

On April 7, 1997, the Panel issued an Order ⁴⁰ rejecting the Motion submitted by the Complainants on November 7, 1996, requesting that the allegations and documents the Investigating Authority had submitted to the Panel on October 24, 1996, be rejected. ⁴¹ The Panel decided that the Investigating Authority did not violate the Rules of Procedure 52 (2), 59 and 61 by submitting to it the Decisions of the Panel MEX-94-1904-01 and MEX-94-1904-03, since these are not precedents according to Article 1904 (9) of NAFTA.

That same day, the Panel issued a Order ⁴² accepting the Motion submitted by the Investigating Authority of July 12, 1996 rejecting the arguments of the Complainants in relation to expert opinions attempting to verify that the products exported by one of the Complainants came under the category of identical or similar merchandise classification, since these arguments did not comply with Rules 39 and 40. Further, the Panel empowered the Complainants to submit new arguments that emerged after the review of the confidential information within thirty days after the issuance of the Order in question. ⁴³

On April 18, 1997, according to Rules 2, 49 (2) and 63 (3) of the Rules of Procedure, the Panel rejected the Motion submitted by the Investigating Authority on April 10, 1997 in which it sought to preclude the Complainants’ rights of access to confidential information or to submit new arguments. ⁴⁴

On April 21, 1997, the Panel issued an Order ⁴⁵ to correct the name of AHMSA in a previous Order and to reject the Motion of the Investigating Authority requesting the Panel to reconsider its Order of April 1, 1997, in which SECOFI was ordered to grant access to confidential information to Francisco Fuentes Ostos as counsel of record of the Complainants.

On May 12, 1997, the Panel issued an Order by which it accepted the Complainants’ Motion of April 2 requesting the Investigating Authority to authorize access to confidential information, and allowing the Investigating Authority until May 15, 1997, to issue this authorization. ⁴⁶ The Panel also extended the date of the Public Hearing until July 18, 1997.

On May 21, 1997, the Panel issued an Order rejecting the Motion of the Investigating Authority of May 13, 1997, requesting the rescission of the Panel’s Order of May 12, 1997. ⁴⁷

On July 10, 1997, the Panel issued an Order determining the agenda of the Public Hearing to be held on July 18 at El Colegio de México, A.C. ⁴⁸

On September 17, 1997, the Panel issued an Order requiring the Investigating Authority to file with the Secretariat certain information classified as "privileged" on or before September 24, 1997, and stating that such information was for the exclusive use of the Panelists and their assistants. It also chose November 17, 1997 as the new date to issue its Final Decision. ⁴⁹

On October 17, 1997 the Panel issued an Order ⁵⁰ rejecting the Motion of the Investigating Authority of September 23, 1997, which requested the Panel to rescind its requirement of September 17, 1997 that access to the privileged information be provided to the Panel members and its assistants, within 24 hours. The Panel warned the Investigating Authority that, in case it did not fulfil this requirement, it would issue its Final Decision taking into account the "best available information".

On October 29, 1997, the Panel issued an Order by which it deferred the date of issuance of its Final Decision to December 17, 1997. ⁵¹

C. Resolution of Pending Motions

a. Motion of July 8, 1997

i. Background

On July 8, 1997 the Investigating Authority, in accordance with Rule 61 (1) of the Rules of Procedure submitted a motion to the Panel requesting it to preclude the Complainants’ rights to present additional arguments in the present review.

The Investigating Authority argued that the Complainants’ right to present a new brief related to the confidential information, to which they had access since May 22 1997, which expired because the Complainants did not exercise the right that was given to them by the Panel on May 21 1997.

The motion of the Investigating Authority is valid since it is based on Rule 61 of the Rules of Procedure. This Panel, after referring to rules 2 and 63 (1) of the Rules of Procedure, and after having analyzed the rights and the arguments of the Parties, orders as follows:

ii. Order

The motion of the Investigating Authority presented on July 8 1997 is denied based on the following considerations:

First. - The Panel considers that the facts upon which the Order of May 21 1997 was based have been overtaken by events.

Second. - This Panel considers that given the facts set out in the injury section ⁵² of this Decision, the need to modify the order of May 21 1997 is evident in order to allow the Complainants access to the administrative file on which the Investigating Authority will issue a determination responding to the Panel’s remand. Accordingly, the rights of the Complainants will be preserved in the event that in its response to the remand Order, the Investigating Authority decides to supplement the administrative file. ⁵³

b. Motion of July 18, 1997

i. Background

On July 18, 1997, during the Public Hearing, the Investigating Authority, in accordance with Rule 61 (1) of the Rules of Procedure, filed a Motion to have the issue of accumulation, which was brought forward during the hearing, dismissed as a part of the review.

The Investigating Authority alleged that this Panel must dismiss the accumulation issue because it lacked a foundation in the Rules and in NAFTA. According to the Investigating Authority, this issue was raised by Panelist W. Roy Hines through his questions and enlarged upon by counsel for the Complainants in their reply to that motion. The ground to dismiss was that the accumulation issue was not alleged by the Complainants in their Complaint or Brief and, by virtue of Rule 7(a) of the NAFTA Rules of Procedure, could not be reviewed by this Panel.

In their reply to the Motion of the Investigating Authority, the Complainants requested the Panel to dismiss the Motion of the Investigating Authority since they argued that each had put forward in its Complaint or in their joint Brief the issue of accumulation. The Complainants affirmed they had established that the issues in litigation put forward by them in relation to TITAN-DOFASCO encompassed the calculation of injury in the Final Determination. According to the Complainants, if the Investigating Authority had taken into account TITAN’s information, it would have had to conclude the imports from Canada should not have been accumulated for injury determination since they were insignificant. In conclusion, the Complainants requested this Panel to include the effect of the issue of accumulation of import volumes of rolled steel plate to Mexico from Canada in the Final Decision.

In its rejoinder, or reply to the reply of the Complainants, the Investigating Authority maintained that the arguments put forward by Panelist W. Roy Hines and the Complainants regarding the accumulation of imports from Canada should be dismissed because they did not constitute part of the litis, and because in its opinion, including these issues would leave the Investigating Authority in a state of defenselessness and the principle of fairness would be breached.

On August 13, the Complainants filed a reply to the rejoinder of the Investigating Authority in which they requested its dismissal because they considered it to be a breach of Rule 62 of the Rules of Procedure, which, according to them, does not provide any right to rejoin or reply to the replies of a motion.

On August 20, the Investigating Authority requested the dismissal of the Complainants reply as it considered the Complainants request unlawful since they expressly agreed that the Panel should allow the Authority to file the reply to the rejoinder.

The Motion of the Investigating Authority is lawful as it is provided for in Rule 61 of the Rules of Procedure. This Panel has jurisdiction to rule upon it pursuant to Rule 2, 63 (1) of the Rules of Procedure, and after analyzing the facts and arguments of the Parties, orders as follows:

ii. Order

The Motion filed by the Investigating Authority on July 18 is dismissed based on the following considerations:

First. - The Panel considers the arguments of the Complainants to be well founded in the sense that SECOFI’s error regarding TITAN resulted in the Investigating Authority reaching erroneous conclusions regarding the injury that imports from Canada caused to the domestic industry. ⁵⁴ This error and the imports allegedly credited to Complainants other than TITAN have resulted in the establishment of a price discrimination margin for all of Canada. This directly affects the Complainants as well as any other potential Canadian exporters. SECOFI, when recognizing its error, has introduced in the litis all aspects of the injury determination, including accumulation, which must be made by the Investigating Authority in its determination on remand. From this perspective, this Panel considers that it is subsection (b) and not subsection (a) of Rule 7 of the Rules of Procedure that is applicable in the present case, since the issue of accumulation has become a possible substantive defense during the Panel review.

Second. - This Panel considers that the arguments of the Investigating Authority are unfounded when claiming that the issue of accumulation was improperly mentioned by Panelist W. Roy Hines during the public hearing in violation of Rule 7 (a) of the Rules of Procedure. Panelist Hines neither argued in favour or against the issue of accumulation during the Public Hearing. What he did was to formulate questions on the Panel’s behalf in respect of the apparent contradictions in the Final Determination regarding the evaluation of the data used by SECOFI. These questions were set forth in direct relation to the Final Determination, where numerous references to accumulation can be found.

III. STANDARD OF REVIEW AND POWERS OF THE PANEL

A NAFTA Chapter XIX binational panel, like any other arbitral or jurisdictional body, is governed by a legal framework which endows it with specific powers, limits its functions, standardizes the proceeding upon which it must decide, and provides the standard of review which the Panel must follow in issuing its final decision.

The standard of review this Panel must apply, and the scope of its powers are important for the present review, and this Panel considers that an adequate treatment of these topics requires a careful analysis of the following issues:

1. Legal Nature of the Binational Panel

The Complainants argued that the legal nature of the binational panel was irrelevant and what was important was that this Panel stood in place of the court of the importing party, thus having to apply the legislation in the way a Court does. The Complainants even say the Panel possesses powers to declare the absolute nullity of a challenged Final Determination. The Investigating Authority, instead, asserted that the binational panel is an arbitration body with limited powers that in no way can be compared to a court of the importing party with powers to nullify the determination of the Investigating Authority.

This panel agrees with the Investigating Authority in the sense that a binational panel has features that characterize it as an arbitration body. However, it is important to recognize that its nature as an arbitration body is sui generis, for the following reasons:

a. Without doubt, the arbitral character of a binational panel is indisputable, since the NAFTA contracting States obliged themselves to have their respective investigating authorities abide the jurisdiction of a Panel, in the event the alternative dispute settlement mechanism, contained in chapter XIX of the NAFTA Agreement, was chosen by a party with a right for them to prefer this proceeding to even the one normally followed before jurisdictional tribunals of the importing Party.

b. There is a substantial difference in the procedure followed by a binational panel, compared to ordinary arbitration. In the latter, parties participate in the selection or elaboration of the procedural rules that must be applied, which in the former, such rules are established in advance by the NAFTA contracting parties. These rules reflect at least two different regulatory schemes: the international one, which is composed of the provisions contained in the Agreement, and are related to multilateral rules such as those set out in GATT and its Codes of Conduct; and the domestic one, which reflects the legal provisions dealing with unfair trade practices, which must be followed by binational panels.

c. Based on the foregoing, we conclude the particular characteristics of binational panels make them seem more like jurisdictional tribunals than arbitral tribunals. In fact, given their review powers regarding the proceedings concluded by an investigating authority, they are much more like the relationship between a court of appeal with respect to a first instance court. This follows from the fact that a final decision of the Panel is provided for in paragraph 11 of NAFTA Article 1904, and a challenge may only proceed in an extraordinary manner before a special Committee established according to the Rules of Procedure of the NAFTA Agreement, standing out as a special characteristic is the fact that, according to paragraph 14 of Article 1904, provided that the NAFTA Rules, where appropriate, will be based on judicial rules of appellate procedure. This confirms the conclusion that we are in the presence of an arbitral body whose functions are closer to those of a jurisdictional court of appeal.

2. Nature of the Review Process Before the Tribunal Fiscal de la Federación (Federal Fiscal Court) and Before a Binational Panel

From the foregoing this Panel concludes that it is neither similar to the Federal Fiscal Court nor does it have the same characteristics, attributes and jurisdiction of that court. ⁵⁵ While the jurisdiction and attributes of the Federal Fiscal Court are governed by Mexican law, particularly by many legal provisions of the Federal Fiscal Code, the jurisdiction and attributes of this Panel are ruled by NAFTA in the first place, and secondly by Mexican law but only in the way NAFTA establishes. Therefore, as a consequence a binational panel review differs from that carried out by the Federal Fiscal Court.

Thus in order to define the characteristics of the proceedings before this Panel, which distinguishes it from one before the Federal Fiscal Court, it is important to bear in mind the legal provisions established in paragraph 1 of Article 1904 of NAFTA, which states:

"As provided in this Article, each party shall replace judicial review of final antidumping and countervailing duty determinations with binational panel review."

From this paragraph it is important to point out that each one of the parties must replace the internal judicial review of a Final Determination regarding antidumping and countervailing duties with the review made by a binational panel. It follows that, once the alternative dispute settlement mechanism referred to in Article 97 of the LCE is chosen, it is evident that the proceedings and courts of the importing Party are excluded.

In other words, more than a replacement or substitution (which grammatically means the same thing), strictly this is about what jurisprudence refers to as exclusion of the domestic forum. This alternative mechanism constitutes a proceeding that eliminates the jurisdiction of the domestic courts, because the signatory Parties as public law entities, cannot be subject to any domestic jurisdiction, in order to safeguard their sovereignty. In the same way, paragraph 11 of Article 1904, expressly prohibits the importing party from commencing a judicial review of a Final Determination which is subject to a proceeding before a Panel, or to establish in its internal legislation the possibility of challenging before its tribunals a determination issued by a binational panel.

In conclusion, according to NAFTA Chapter XIX, the alternative mechanism is a legal way to settle an international dispute originating when a review of a Final Determination before a binational panel is requested. This Panel acts as an impartial third party applying the standards established in Article 1904 and its Rules, and excluding the jurisdictional proceeding and the national courts of the importing party, in order to issue a just, inexpensive and speedy decision which is in accord with the objectives of NAFTA.

The standard of review applicable to this proceeding is also determined by NAFTA. This Panel must apply the standard of review set out in NAFTA Article 1904 (3) and Annex 1911. It is a two-part standard review. The first part is

"the standard set out in Article 238 of the Federal Fiscal Code (Código Fiscal de la Federación), or any successor statutes, based solely on the administrative record". ⁵⁶

Article 238 of the Federal Fiscal Code states:

Under the second part of the standard of review, we may also consider:

On the other hand, this Panel has jurisdiction to grant only those remedies that are authorized by NAFTA Article 1904 (8). This provision states:

The Complainants have argued before this Panel that we must consider Article 239 of the Federal Fiscal Code as an integral part of the standard of review. It is noteworthy that a binational panel in a previous case accepted this point of view. ⁵⁹ Nevertheless, this Panel respectfully disagrees with that position, because the inclusion of Article 239 in the standard of review would constitute an undue amplification of its jurisdiction and powers. This Panel is subject to the jurisdiction and powers established by Article 1904(8) of NAFTA, which empowers it to confirm SECOFI’s Final Determination, or to remand it. It does not empower it to nullify that resolution, a power which Article 239 specifically gives to the Federal Fiscal Court.

Therefore, this Panel dismisses the arguments presented to it that Article 239 of the Federal Fiscal Code should be included in the standard of review of this Panel. If the governments of Mexico, the United States and Canada had intended to empower during the review proceeding, in the same way that the Federal Fiscal Court is under Article 239, they would have included that Article in the standard of review, and would have drafted Article 1904 (8) of NAFTA, in a different manner.

In other words, this Panel is convinced that the present text of NAFTA does not give it the same jurisdiction conferred upon the Federal Fiscal Court, so it must act according to the express limits of the jurisdiction conferred on it. ⁶⁰

Therefore, this Panel believes the intention of the negotiating parties of NAFTA was to establish Article 238 of the Federal Fiscal Code as the only standard of review in the case of Mexico. This does not mean --as the Investigating Authority presumes-- that binational panels cannot interpret the legal content of that Article. While it is true that paragraph 2 of Article 1904 of NAFTA establishes that Panels must perform their duties in the same way as a Court of the importing party, this does not lead to the conclusion that they must apply, in a mechanical way, the causes of illegality included in Article 238. On the contrary, the application of this Article in an antidumping investigation is a complex procedure that raises issues that affect the national economy as a whole, commercial relations between two countries, national producers and workers, and importers of foreign products. This Panel cannot apply the standard of review as if it were dealing with administrative resolutions related to tax and other fiscal measures which consist, generally speaking, in matters of the State versus a person regarding with that person’s fiscal obligations. ⁶¹

In other words, a binational panel is always in a position to interpret the legal framework that governs it. When intepreting NAFTA, the Rules of Procedure or any other international legal instrument, the panel must follow the criteria included in Section 3, entitled INTERPRETATION OF TREATIES of the Vienna Convention on the Law of Treaties. ⁶²

This contains three general rules of interpretation:

1. good faith;
2. the literal sense of the provisions, and;
3. the object and ends of the corresponding treaty.

Focusing on this last rule, the objectives of NAFTA are made clear in its Article 102. Paragraph 1, which establishes that NAFTA’s objectives must be developed in relation to its general principles which include those of national treatment, most favoured nation treatment and transparency. In addition, among those objectives is the following found in subrule e), to create effective proceedings for the implementation and application of this Agreement, for its joint administration and for the resolution of disputes.

On the other hand, if the legal provisions on antidumping and countervailing duties of the Importing Party must be interpreted, as established by paragraph 2 of Article 1904, the binational panel must follow the interpretive rules that are commonly used by the jurisdictional bodies of the country in question. If this is not done, the principle of legal certainty of a state of law would be violated. ⁶³

4. The Applicable Legal Framework to be Applied by the Panel

The legal provisions that the Panel must apply in order to issue its decision according to paragraph 2 of Article 1904 in the matter of countervailing and antidumping duties, consist of the relevant statutes, legislative history, regulations, administrative practice and judicial precedents, ⁶⁴ to the extent that a court of the importing party would rely on such materials in reviewing a Final Determination.

As was already pointed out in a previous paragraph, this Panel notes that in the Mexican legal system includes two regulatory schemes: the international, consisting of the provisions of NAFTA and other related provisions such as GATT and its Codes of Conduct; and the domestic, which consists of special legal provisions such as the Ley de Comercio Exterior ⁶⁵ and its regulation, the Organic Law of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal ["LOAPF"]) that relates in matters of jurisdiction of the authorities, as well as the internal regulations of SECOFI and the delegatory directives that derive from these regulations.

As well, this Panel believes that the legislative history contained in the archives of the Congress of the Union, including the reasons for the initiatives and decisions of the Houses, and the debates of the Members of Congress should be considered. Also to be considered are the administrative practices of the Executive branch pursuant to its delegated powers. These consist in the execution of material acts, or acts that decide individual legal cases. These are defined by the Mexican writer of treatises Gabino Fraga, ⁶⁶ who refers to the administrative acts carried out by the State in the exercise of its powers, applicable to a specific case.

Judicial precedents that a Panel in Mexico may or must apply are understood in two ways: those that imply a simple precedent or illustration, but do not bind the tribunal and cannot govern the determination of specific cases but rather may be cited as a persuasive reference, that have not attained the status of jurisprudencia. ⁶⁷ In the opinion of Dr. Ignacio Burgoa, ⁶⁸ "Jurisprudencia can be explained as the interpretation and construction of uniform legal considerations carried out by a judicial authority, empowered to this effect by the law, and regarding one or several special and determined points of law, that arise from a certain number of specific cases that are alike, considering that interpretations are binding on the hierarchical subordinates of the mentioned authorities, as are expressly mentioned by the law". This jurisprudencia is a source of Mexican Law, ⁶⁹ since the Mexican legal system grants the thesis, presented in the determinations of certain judicial authorities, a binding character that should be observed by other judicial authorities of lower rank. For example, the jurisprudencia of the Supreme Court of Mexico which might be created by both the entire court or its chambers, compels the court itself, as well as the lower courts and that of the Tribunal Fiscal de la Federación that is created by the Superior Chamber. ⁷⁰ In antidumping and countervailing cases, there is binding jurisprudence issued by the circuit courts, and the Tribunal Fiscal de la Federación by it superior chambers. In Mexico, jurisprudencia may provide law where there is a vacuum or lacuna in the law, but only to the extent that it fulfils the purpose of occupying the vacuum of law or lacuna.

Finally, concerning the orders and final decisions issued by other Panels, it is clear from paragraph 9 of NAFTA Article 1904, that while these cannot be invoked as binding precedents, they may be referred to a useful guide in order to clarify certain issues.

In summary, this is the legal framework that in accordance to paragraph 2, Article 1904 of NAFTA, a binational panel is obligated to apply in the same measure as a court of the importing party would do in order to decide if the determination of the investigating authority was issued in accordance to legal provisions in antidumping an countervailing matters.

In the following paragraphs of this opinion, the Panel examines each one of the issues raised by the Complainants or arising in the review as well as the responses to these issues. The Panel has applied the standard of review in the terms defined above to each one of these issues and defences, and examines the way in which the intermediate acts of the Investigating Authority and the Final Determination would be declared illegal according to the standard of review, and will issue its decision in the terms allowed by Article 1904(8) of NAFTA.

IV. JURISDICTION OF THE PANEL

The Panel has jurisdiction to review the Final Determination issued by the Investigating Authority based on Articles 1904 and 1906 of NAFTA, and Articles 97 and 98 of the Ley de Comercio Exterior.

V. ISSUES IN LITIGATION

1. JURISDICTION OF THE DIRECCIÓN GENERAL ADJUNTA TÉCNICA JURÍDICA

TITAN, ALGOMA, STELCO and DOFASCO raised issues of competence individually through their Complaints in this Panel proceeding. These Complainants say that the Dirección General Adjunta Técnica Jurídica ("DGATJ") performed certain administrative acts in the conduct of the proceeding, despite the fact that it lacked competence to carry out those acts. They claim that under Article 16 of the Mexican Constitution the administrative unit carrying out those actions must have had competence to do so. Under Article 16, that competence requires that the acting authority be legally created by law or regulation and that the entity must only act in accordance with the express authority granted by Mexican law. They argue further that since these requirements were not fulfilled in this situation, the Final Determination should be declared illegal under paragraph I of Article 238 of the Federal Fiscal Code. The Investigating Authority, in turn, in its response and during the public hearing, argued that the DGATJ had legal existence, in terms of Mexican law, and was legally empowered to carry out its acts during the proceeding.

The Panel believes that the issues of competence presented to it require a detailed analysis of the applicable legal provisions and the arguments raised by the parties. The main elements of this analysis will be reviewed in the following order

1. Jurisdiction of the Administrative Authorities in the Framework of the Mexican Legal System
2. Acts Specifically Challenged by the Companies
3. Legal Existence and Powers of the Unidad de Prácticas Comerciales Internacionales
4. Guidance from Amparo Judgments in Recent Years

A. Jurisdiction of the Administrative Authorities in the Framework of the Mexican Legal System

The LOAPF, which establishes the different departments and ministries, including SECOFI, specifies the jurisdiction and powers of subordinate entities within each ministry and secretariat. Articles 14, 16 and 18 of this law stated, at the relevant time:

Thus, if an administrative unit within SECOFI is exercising powers, the functions of the unit must come from a "law" or from an "internal regulation" or "decree" issued by the President of the Republic. ⁷¹ A delegation of powers to an administrative unit must be published in the Diario Oficial de la Federación. ⁷² Secretaries of State may delegate their powers, except those that must be exercised personally, to the heads of administrative units that have been lawfully created, and to other officials within those same units. ⁷³

The LOAPF is based on, and implements, Article 90 of the Federal Constitution of Mexico, which states:

In addition, Article 89 of the Constitution confers related powers on the President of the Republic:

Mexico's Supreme Court has ruled that only a law, or the President of Mexico, acting through an Internal Regulation or a decree, may create or establish legal organisms of public administration, as can be seen in the following thesis:

According to this thesis, there is a serious question whether the DGATJ had legal existence as an independent legal entity within SECOFI. The DGATJ is not expressly mentioned in any law or in any internal regulation or decree issued by the President of the Republic.

The Investigating Authority argues, however, that according to Mexican law, general directorates can be created in generic form in the laws issued by Congress, especially by the LOAPF in Article 14. ⁷⁵

This Panel disagrees with this argument by the Investigating Authority, because the Supreme Court and other Mexican courts have clearly established the requirement that the existence of an administrative authority must be provided expressly in a law, internal regulation or decree of the President. It is incorrect to conclude that administrative authorities can be created in a generic form.

This requirement has been ratified in recent years in several amparo proceedings by the Fourth Federal District Judge of the Federal District. The federal judge granted protection under the amparo law to several US steel exporters against a Final Determination issued by SECOFI in an antidumping investigation. ⁷⁶ In these amparo proceedings, the companies argued the lack of competence of two administrative units of SECOFI (the Dirección General de Prácticas Comerciales Internacionales ["DGPCI"] and the Dirección de Cuotas Compensatorias ["DCC"]). In his decisions the federal judge confirmed the lack of competence of both units because they were not expressly contained in a legal document. ⁷⁷

SECOFI, however, also argued in its brief and in the public hearing that all the acts challenged by the Complainants were acts carried out by the International Trade Practices Unit or UPCI, the administrative unit with competence to conduct antidumping investigations, and that the director of the DGATJ acted on behalf of UPCI with express delegation of powers by UPCI. ⁷⁸

The Complainants argued that no official or administrative unit could act on behalf of another administrative unit, or be delegated powers to act on its behalf, unless it expressly had legal existence in some legal provision.

Regarding this issue, this Panel believes that an interpretation of Articles 14 and 16 of the LOAPF permit it to reach the conclusion that an administrative unit, lawfully established and with competence to act in certain areas can validly delegate certain powers to officials (funcionarios) who belong to the same administrative unit which delegates. To this extent it is possible for the director of the DGATJ to have acted lawfully as a delegate of UPCI.

In support of this conclusion this Panel will examine: B) the specific acts challenged by the companies; C) the legal existence and powers of the Unidad de Prácticas Comerciales Internacionales (UPCI); and D) guidance from past amparo decisions in recent years.

B. Acts Specifically Challenged by the Companies

The specific acts as shown in the administrative record are of the following types:

1. Resolutions accepting the petition of the domestic industry and several notifications informing of the initiation of the antidumping proceeding; ⁷⁹
2. Resolutions acknowledging the receipt of various pleadings and submissions from the Complainants, AHMSA, HYLSA, and other interested parties; ⁸⁰
3. Notices sent to the exporters informing them of the initiation of the antidumping proceeding, and enclosing an antidumping questionnaire. In addition, these notifications purported to state a deadline by which a response to the questionnaire was required and warned of certain consequences if responses were not submitted; ⁸¹
4. Resolutions granting a deferral for submitting information; ⁸²
5. Resolutions requiring additional information; ⁸³
6. Resolutions giving notification of the Preliminary Determination; ⁸⁴
7. Notifications regarding access to confidential information; ⁸⁵
8. Notifications regarding the treatment and classification of privileged information, and several resolutions refusing to grant the treatment of privilege to information submitted; ⁸⁶
9. Notifications informing all interested parties of the date for the public hearing; ⁸⁷ and
10. Notifications informing all the interested parties of the Final Determination. ⁸⁸

All of the above documents in these categories begin by identifying the following entity:

"UNIDAD DE PRÁCTICAS COMERCIALES INTERNACIONALES".

In some of these documents, the following name is added to the Unidad de Prácticas Comerciales Internacionales:

"DIRECCIÓN GENERAL ADJUNTA TÉCNICA JURÍDICA"

In all of the notifications regarding the Final Determination, the following name is added to the name of the two former administrative entities:

"DIRECCIÓN DE PROCEDIMIENTOS Y PROYECTOS"

After carefully analyzing all of the above documents, this Panel believes that they can be considered as acts carried out by UPCI, and that this entity delegated to the official that signed them, the legal powers to issue them as well.

Our position is based upon the following:

First, Article 33 section 1 of the April 1, 1993, internal regulation of SECOFI gives to UPCI the express powers, "to investigate, carry out and determine the investigation and administrative procedures on unfair international trade practices..." Likewise, paragraph IV of the same article gives UPCI the power to "request documents from the ... exporters".

Second, all of these documents appear as documents of UPCI. This is the first administrative entity that is mentioned in each one of these documents. Immediately after the date of each document, there is a code number identifying the verification order as an UPCI document. For example, the verification order of November 5, 1993, to Productos Estampados de México, S.A. de C.V., is identified as Document No. UPCI.211.93.3741. Also, the two officials mentioned in these documents are described as officials of UPCI. ⁸⁹

Third, there were two legally valid provisions during the time of the investigation that delegated power to the Directors of UPCI and its officials to "sign requests for information, data and documents, and in general to issue official administrative documents related to the activities that are under their responsibility". The first was the Acuerdo [Agreement] que Adscribe Unidades Administrativas y Delega Facultades en los Subsecretarios, Oficial Mayor, Directores Generales y Otros Subalternos de la SECOFI, dated September 12, 1985, and the second was the Acuerdo que Adscribe Orgánicamente unidades Administrativas y Delega Facultades en los Subsecretarios, Oficial Mayor, Jefes de Unidad, Directores Generales y Otros Subalternos de SECOFI, published in the Diario Oficial on March 29, 1994. The first of the previously mentioned "Acuerdos" contained an Article 6 which established that:

At the same time the validity of this agreement was ratified by the Acuerdo de Adscripción Orgánica y de Delegación de Facultades published in the Diario Oficial on April 3, 1989. ⁹¹ The latter Acuerdo states (in the second transitional provision):

The 1985 Acuerdo Delegatorio remained in effect until it was superseded by the second transitional provision of the Acuerdo Delegatorio of SECOFI, published in the Diario Oficial de la Federación on March 29, 1994:

This same Acuerdo of 1994, however, established in Article 5, Section VIII, that all the powers granted to the Chief Officer of UPCI were delegated to the Director General Adjunto Técnico Jurídico, and in his absence, in the Director de Procedimientos y Proyectos.

Consequently, according to the Acuerdo of 1985 and its reforms, and of the Acuerdo of 1994, the Director General Adjunto Técnico Jurídico and the Director de Procedimientos y Proyectos had the power to issue the acts challenged by the Complainants in their Brief.

The language of the September 12, 1985 Acuerdo Delegatorio, and of the 1994 Acuerdo is important. These texts expressly delegate the power to:

and to:

respectively, in the Directors of UPCI as its officials. In addition, the text does not delegate the authority to other administrative units such as Directorates (Direcciones). Instead, the delegation is made to individuals such as Directors (Directores) and Chiefs (Jefes) and, in the case of the 1994 Acuerdo,

One can argue that according to the Acuerdo Delegatorio of 1985, which was confirmed by that of 1994 one, the Officials authorized to conduct the investigation were the Area Director and Subdirector, and that Mr. Velázquez Elizarrarás, in conducting the investigation during April 1993, the time when the Interior Regulations of SECOFI appeared, and March 1994, the time in which the new Acuerdo Delegatorio was published, acted as Director General Adjunto and not Area Director. In this respect, it is important to take into account the third transitional provision of the Internal Regulation of SECOFI of April 1993, which provides:

It is clear that before the appearance of this internal regulation, the administrative unit with competence to investigate unfair trade matters delegated the authority to conduct proceedings to Area directorates or Subdirectorates. When UPCI appeared, it began to delegate authority in officials whose name changed to Directores Generales Adjuntos, and these assumed the roles of the former Area Director. This interpretation is confirmed if we take into account that when the new Acuerdo Delegatorio of 1994 appeared, it clearly established that the legal powers of the Chief Officer of UPCI were delegated to the Directores Generales Adjuntos.

While it is true that, normally, a Director is the person in charge of a separate administrative unit, such as a Directorate (Dirección) or a Department (Departmento), we are not, however, aware of any jurisprudence that requires that a delegation from one lawfully established unit be made only to a second lawfully established entity. Instead, it appears that a proper delegation may also be made by a lawfully established unit to any official who is also within that same administrative unit. The LOAPF thus provides:

Both Articles 14 and 16 contemplate a delegation to individuals as well as to administrative units. There is no requirement that an official to whom powers are delegated must be in a different administrative unit. Rather, the official may be in the same administrative unit, as is the case here with UPCI.

In summary, Mr. Velázquez and Mr. Saldaña were officials of UPCI , and had been delegated by UPCI the authority to carry out acts challenged by the Complainants.

D. Guidance From Amparo Judgments in Recent Years

In a preceding paragraph the Panel made reference to the amparo decisions of a federal judge that declared the incompetence of two administrative units of SECOFI. This Panel does not consider these decisions as applicable to the present case, since the challenged acts in those cases came from officials within administrative units that lacked legal existence. In the present case, the challenged acts were carried out by a legally established administrative entity (UPCI), which delegated authority, clearly established in two Acuerdos Delegatorios, to two officials working within UPCI. We believe this interpretation is consistent with a principle of interpretation expressly recognized by the Mexican courts, which requires that whenever there are two possible contradictory principles of interpretation, the court shall use the one that results in the least legal uncertainty. If one is to accept that the delegation of powers can only take place between two independent administrative units, ⁹⁴ then one would be forced to accept that the Acuerdos Delegatorios lacked legal rationale, since precisely what they do is to establish delegation of powers on officials within the same administrative unit and thus it could not actually be applied. ⁹⁵

2. LATE ISSUANCE OF THE NOTIFICATION OF THE INITIATION OF THE INVESTIGATION

At paragraph 6.A.(1) of the Allegations of Errors of Fact or Law presented by the Complainants, ⁹⁶ they state that the Investigating Authority violated Constitutional Articles 14 and 16, ⁹⁷ LCE Article 53 ⁹⁸ and Article 142 of its Regulations, ⁹⁹ and GATT Antidumping Code Article 6.6, ¹⁰⁰ by not notifying the Complainants on time of the decision to initiate the investigation, and by omitting formal requirements that substantively affected their defences.

The Complainants stated, in their Brief, that "the Investigating Authority was obliged to notify them within thirty days following the publication of the Initial Determination." ¹⁰¹

Notwithstanding the foregoing, in the Reply to the Investigating Authority’s Brief, and to one of the Petitioners’ Brief (AHMSA), the Complainants stated that they "do not allege the illegal notification of the Initial Determination, and therefore they ask the Panel members to not consider such argument..." ¹⁰²

They then set forth that, "if the notification of the Initial Determination was not changed as illegal, it is because the Complainants considered it legal". ¹⁰³

Finally, they argued that, "It is important for the Complainants to draw to the attention of the Panel members that they never alleged the illegality of the notification of the Initial Determination, therefore, the Panel must not take into account the arguments of AHMSA ¹⁰⁴ in relation to this issue.

The Panel believes that, as was stated by the Investigating Authority, ¹⁰⁵ and by one of the Petitioners (AHMSA), ¹⁰⁶ the Authority published the Initial Determination of the Investigation in the Diario Oficial on October 28, 1993, prior to the notification given to the Complainants, and thus complied with all of the provisions related to procedures regarding notifications in this investigation as required by LCE Articles 52, Paragraphs I ¹⁰⁷ and 53. It also complied with the principles of certainty and legality as set forth in Constitutional Articles 14 and 16, since, as was demonstrated in the administrative record, the Complainants ¹⁰⁸ had the opportunity to file arguments and evidence, in defence of their interests. Accordingly, paragraph II of Article 238 ¹⁰⁹ of the FFC, invoked by the Complainants, was not breached.

If the Complainants considered the notification of the Initial Determination an irregularity, they could have raised this defence within thirty days following the publication of the Initial Determination in the Diario Oficial, as set forth in LCE Article 53. By not doing so, the notifications were presumably agreed to, and therefore, are valid.

Finally, as indicated above, the Complainants considered the Initial Determination to be legal, and thus, contradicted themselves in their original Claim and in their Brief.

Accordingly, the Panel has concluded that the allegation of the Complainants is not legally founded, and that the Investigating Authority complied with the formal requirements set forth by the LCE, by adequately giving notification of the Initial Determination. Therefore, paragraph II of Article 238 of the FFC was not breached.

3. ACCEPTANCE OF THE REQUEST FOR THE INITIATION OF THE INVESTIGATION BEYOND THE DEADLINE

In the Allegations of Errors of Fact or Law presented by the Complainants in their Claims, ¹¹⁰ they state that the Investigating Authority, by untimely accepting the request of the initiation of the investigation filed by the Petitioners, infringed LCE Article 52, GATT Antidumping Code Article 1 ¹¹¹ and the NAFTA principle of transparency established for any procedure.

The Complainants stated that on August 4, 1993, the Petitioners, through their legal counsel, appeared before the Investigating Authority to request the application of an antidumping duty regime, and of the initiation of antidumping and countervailing duty investigations over the imports of plate originating and coming from, among other countries, Canada.

On October 28, 1993, the decision accepting the request and declaring the initiation of the antidumping and countervailing duty investigation over the imports on plate was published in the Diario Oficial ("Initial Determination").

The Complainants state that by calculating time pursuant to the terms established in the relevant LCE article, the error of the Investigating Authority was clear, because it accepted the Petitioners request when it was out of time. The deadline to issue the Initial Determination was on September 15, 1993, and it was in fact issued on October 28, 1993. Therefore, the Complainants argue that they were left defenseless, because they did not know of the existence or result of the request.

By virtue of the foregoing, the Complainants argue that the Investigating Authority, by admitting beyond the time limit the request for investigation filed by the Petitioners, did not comply with the formal applicable legal requirements, and thus seriously affected the defence of the Complainants, and moreover, breached paragraph II of Article 238 of the FFC.

In the reply to the Investigating Authority’s Brief, ¹¹² and to the Petitioners’ Briefs, ¹¹³ the Complainants reserved their right to verify the facts described in pages 12 and 13 of AHMSA’s Brief, 25 of HYLSA’s Brief, and 91 and 92 of the Investigating Authority’s Brief, upon receipt of access to the confidential information.

Regarding confidential information, the Panel notes that the Investigating Authority granted access to the Complainants to see the confidential information. Legal counsel of the Complainants did not examine the confidential information, as expressly stated during the public hearing ¹¹⁴ and, accordingly, the Complainants lost the opportunity to verify the facts contained in the pages set forth at the above paragraph of the Investigating Authority’s Brief and of the Petitioners’ Briefs. ¹¹⁵

Notwithstanding the foregoing, this Panel reviewed in detail the administrative record and accepts what was argued by the Investigating Authority and by the Petitioners; namely, that the Initial Determination was within the time limits. The Complainants made an incorrect interpretation of LCE Article 52 and of GATT Antidumping Code Article 1. Even though the petition was not accepted within the 30 days established in Article 52, the Complainants did not take into consideration paragraph II of Article 52, ¹¹⁶ which states that the Investigating Authority can request the Petitioners to provide additional proof or data, and that this must be provided within a 20 day period, and if the Petitioners provide such information, the Investigating Authority then has another 20 day period to accept the request, and to declare the initiation of the investigation through a decision that must be published in the Diario Oficial.

In fact, the Petitioners, first, filed the petition of the initiation on August 4, 1993. ¹¹⁷ Secondly, the Investigating Authority, by means of the official letters UPCI.93.211.2983 and UPCI.93.211.2984 dated September 13, 1993, ¹¹⁸ required from the Petitioners additional information related to the application of the reconstructed value as a normal value. This requirement was fulfilled within the 30 day period set forth in Article 52 of the Foreign Trade Law. Thirdly, the Petitioners provided the information mentioned on September 27, 1993. ¹¹⁹ Fourthly, the 20 day period to comply with the stated requirements expired on October 12, 1993. Fifthly, the Investigating Authority issued the Initial Determination on October 15, 1993, which was published in the Diario Oficial on October 28, 1993, ¹²⁰ i.e., within the 20 business days stated in LCE Article 52.

Taking into account the foregoing, the time that can elapse between the request for additional information and the publication of the initiation may extend to 70 business days. If the request for the initiation of the investigation was submitted on August 4, 1993 and on October 28, 1993, the Initial Decision was published in the Diario Oficial the time period was 60 days.

The Panel concludes that the allegation raised by the Complainants has no legal foundation and is therefore invalid. The Investigating Authority complied with the formal requirements set forth in LCE Article 52 and GATT Antidumping Code Article 1. Therefore, paragraph II of Article 238 of the FFC relied on by the Complainants was not breached.

4. LATE ISSUANCE OF THE NOTIFICATION OF THE PRELIMINARY AND FINAL DETERMINATIONS

In their Brief, the Complainants state that the Investigating Authority violated Constitutional Articles 14 and 16, LCE Articles 57 and 59 ¹²¹ and Article 142 of its Regulations, and GATT Antidumping Code Article 7.7, ¹²² by serving the notifications of the Preliminary and Final Determination to the Complainants beyond the time deadline, and by omitting the formal requirements that substantively affected their defences.

The Preliminary and Final Determination were published in the Diario Oficial on the following dates:

1. On April 18, 1995, the Preliminary Determination was published and in that, determination the Investigating Authority decided to continue with the investigation, without imposing an antidumping duty related to the imports of the investigated product originating in and coming from, among other countries, Canada.
2. On December 28, 1995, the Final Determination regarding the imports of the investigated product originating in and coming from, among other countries, Canada, was published.

The Investigating Authority notified the Complainants of the Preliminary and Final Determinations on April 20, 1995, and on January 9, 1996, respectively.

The Preliminary and Final Determinations must be published in the Diario Oficial according to Articles 52, 57 and 59 of the LCE. The Claimants state that according to Articles 57 and 59, the Investigating Authority is obliged to give personal Notification of the Preliminary and Final Determination to the Parties before publication in the Diario Oficial.

Nevertheless, in accordance with Articles 57 and 59 of the LCE, this Panel concludes that the publication of the respective Determinations in the Diario Oficial is enough for them to enter into legal force, independent of whether the notification of them (personal notification is not compulsory) is done before of after publication.

It is worth noting that the notifications were done on time and in form to all Parties, and as such the Complainants were never left in a state of legal defenselessness. If the Complainants believed the notification of the Preliminary Determination was an irregularity, this could have been raised within thirty days following the publication of this Determination, as set forth in its paragraph 357. By not doing so, the notifications were presumably consented to and therefore are valid.

Therefore, paragraph II of Article 238 of the FFC was not breached. The Investigating Authority complied with all the formal requirement of the LCE and its Regulations, and the defence of the Complainants was not affected.

5. LATE ISSUANCE OF THE PRELIMINARY AND FINAL DETERMINATIONS

The Complainants stated in their Claims ¹²³ that the Investigating Authority seriously infringed Constitutional Articles 14 and 16, FTL Articles 57 and 59, ¹²⁴ and GATT Antidumping Code Articles 5.5 and 6.7, ¹²⁵ by not issuing the Preliminary and Final Determinations on time. They also argued that the Investigating Authority also infringed paragraph III of Article 215 of the Criminal Code ¹²⁶ because the competent officer of the Investigating Authority abused his authority by not issuing the Preliminary and Final Determinations on time.

The Complainants stated that between the date of the notice of the initiation of the investigation published in the Diario Oficial on October 28, 1993, and the date of issuance and publication of the Preliminary Determination on April 18, 1995, more than 130 days elapsed. They also stated that more than 260 days elapsed between the date of the decision to initiate the investigation and the issuance and publication of the Final Determination on December 28, 1995.

The Investigating Authority in its Brief ¹²⁷ noted that the reason for exceeding the time limits set forth in LCE Articles 57 and 59 was because GATT Antidumping Code Article 5.5 permitted the extension of time limits to issue the Preliminary and Final Determinations in exceptional circumstances. Notwithstanding the foregoing, during the Public Hearing, counsel for the Investigating Authority recognized that such exceptional circumstances were not brought to the Complainants’ attention.

Moreover, the Investigating Authority and the domestic industry stated that the investigation due to unfair legal practices of the investigated product was characterized as a complex process for the following reasons:

1. It was a dumping and countervailing duties investigation.
2. The process was carried out jointly with two other steel investigations (cold rolled steel and hot rolled steel plate).
3. In the three steel investigations, several exporters from nine countries were investigated.
4. There were about twenty importers involved.
5. There was a need to obtain numerous documents of various types of subsidies from the governments of the United States of America, Venezuela and Brazil.
6. The end of the investigation was affected by two more events following the public hearing; an expert proof applied for by the enterprise Hogoverns Groep B.V. and SIDOR; and the submission and analysis of price commitments promoted by the last enterprise.

Under these conditions, the investigation of price discrimination and subsidies could not be subject to the regular time limits of a normal investigation and, given the extraordinary characteristics of the investigation procedures carried out, this procedure was subject to Article 5.5. of the GATT Antidumping Code.

This Panel considers that although the Investigating Authority in its Brief invoked GATT Antidumping Code Article 5.5., such argument is dismissed by this Panel. In the view of the Panel, the Investigating Authority had to base its Final Determination in Article 5.5 and it failed to do so.

The Panel concludes that there was always certainty with respect to the legal situation of the Complainants.

Regarding the Initiation decision, the Complainants were notified of the initiation of the investigating procedure, and they were given the opportunity to appear before the Investigating Authority to support their interests and rights.

In paragraph 112 of the Initiation decision a 30 day period, from the date upon which that decision took effect, was allowed the importers, exporters, foreign juridical persons that had an interest in the result of the investigation to appear before SECOFI to argue their interests and file their questionnaires.

Notwithstanding the foregoing, the Complainants ALGOMA, STELCO and DOFASCO did not appear before the Authority, and only TITAN completed the questionnaire requested by SECOFI.

Regarding the Preliminary Determination issued on April 18, 1995, it is also clear the Complainants had legal certainty, as the Investigating Authority decided not to impose provisional countervailing duties, but continued with the administrative investigation. At paragraph 357 of the Preliminary Determination, the Complainants were granted a 30 day period, counted from the publication in the Diario Oficial so that the interested parties could submit additional evidence and arguments. None of the Complainants did this. Thus, it is clear the Complainants were not left defenseless.

This Panel notes that by giving timely notice to the Complainants of the Initiation decision and Preliminary Determination, these firms were able to appear before SECOFI. The legal counsel of record for the Complainants, Mr. Francisco Fuentes Ostos, who, notwithstanding his appearance before SECOFI, considered it unnecessary for his clients to answer the questionnaires directed to ALGOMA, STELCO and DOFASCO. He expressly stated this at the Public Hearing held on July 18, 1997. ¹²⁸

Since, Mr. Francisco Fuentes Ostos appeared at the hearing before SECOFI during the administrative investigation, and as he is and has been the legal representative of all the Complainants throughout, it cannot be said that the Complainants other than TITAN were left in a state of legal defenselessness.

The Investigating Authority timely notified in writing the interested parties of the Initiation, and Preliminary Determination, as appears from the administrative record and gave the opportunity to the parties to file their defences before it. Regarding the Final Determination, although it was not notified within time, the Complainants were not left in a state of legal uncertainty as they possessed sufficient knowledge to elect the review which resulted in this proceeding. In summary, this Panel concludes that the Complainants were not left in a degree of legal uncertainty that would constitute a breach of paragraph III of Article 238 of the FFC. ¹²⁹

Notwithstanding that the Panel considers that, in this particular case, the defences of the Complainants were not affected by the Investigating Authority, this Panel notes that Article 5.5. of GATT Antidumping Code provides that "Investigations shall, except in special circumstances, be concluded within one year after their initiation." In opinion of this Panel, the inclusion of Article 5.5 in the Code was intended to ensure that administrative authorities in member countries did not unduly extend investigations as a means of mitigating potential negative impacts on trade. ¹³⁰

NAFTA Article 1904(2) specifically provides that for the purpose of Panel reviews "the antidumping and countervailing duties statutes of the Parties, as those statutes may be amended from time to time, are incorporated into and made part of this Agreement." Further, Article 1904(15), concerning amendments to domestic laws, is particularly important in respect of the requirements to be adopted by each Signatory Party to fulfil their NAFTA commitments. Paragraph (f) of the schedule for Mexico is most significant in this instance since it required Mexico to amend its antidumping/countervailing duties statutes to provide "explicit and adequate timetables for determinations of the competent investigating authority ..." The time frames set out in Articles 52, 53, 57 and 59 of the LCE appear to be consistent with this requirement. It is relevant to note in this connection that the timeframes provided for in the NAFTA essentially mirror comparable provisions found in the laws of both Canada and the United States and would appear to be in keeping with one of the underlying objectives of NAFTA (Article 1902(2) (d) (ii). ¹³¹

The investigation of imports of steel plate from Canada was initiated in the fall of 1993, shortly after the time limits were adopted in the NAFTA (July 27, 1993) and just prior to the coming into force of NAFTA on January 1, 1994. Moreover, the maximum time limit for investigations provided for in the new WTO Agreement appears to be applicable only to investigations initiated after January 1, 1995. As it seems clear that since this investigation was initiated before these new international agreements took effect, their time limits do not apply in this case. The first indication that the Investigating Authority intended to rely on GATT Code Article 5.5 rather than in NAFTA to justify it’s lengthy investigation was only provided in response to the Brief submitted by the Complainants on July 26, 1996.

This Panel believes that in the absence of legislated and mandatory time limits on the investigation process, uncertainty, risk, excessive costs and lost business can result for all parties involved in a case. While the interests of domestic producers in any particular case may be opposed to those of the importers/exporters, all parties seek prompt decisions. The domestic industry, which is allegedly suffering injury from the dumped/subsidized imports, clearly seeks an early decision in order to protect it’s domestic production from future damage. Importers and exporters likewise want an early decision in the investigation so that they can market their goods free of concerns about unexpected import penalties being imposed in order to remove uncertainty and minimize the very heavy costs now associated with bringing and defending antidumping and countervailing duties cases in many countries. Lengthy antidumping investigations often had the effect of a non-tariff barrier due to the uncertainty created for importers and exporters of the products concerned especially since the allegations of dumping and injury, in many instances, were not supported by the facts. On a more general level, lengthy investigations can have a negative effect at the economy of the importing country as a whole by mitigating the competitive advantages associated with freer trade.

In summary, we consider it important to emphasize that in this case the Complainants did not prove they suffered any economic or legal injury because of the late issuance by the Investigating Authority of the Preliminary and Final Determinations. We are aware that such injury may be caused to other Complainants in future administrative investigations if time limits are not met, and this Panel considers that it is the obligation of the Investigating Authority to adhere to the time limits established in the Articles of the LCE mentioned above. In case of special circumstances requiring the extension of time limits, express mention of the reasons should be made known during the investigating procedure.

Regarding the Complainants’ invocation of the negative answer principle in Article 37 of the FFC, ¹³² this Panel considers that such is not well founded. Negativa ficta in Mexican law is considered as a legal fiction in the sense that if the tax authority is silent regarding a formal request from an individual or juridical person for three months, the interested party may treat that silence as the authority’s denial of the request. Thereupon a remedy is available. In this proceeding, the Complainants did not file any request nor were they ever in a position to claim the benefit of negativa ficta. ¹³³ It is evident that Complainants elected to wait until the Investigating Authority had issued its determinations before taking any steps.

Finally, regarding the Complainant’s argument that the Investigating Authority is subject to the application of the provisions of Article 215 of the Criminal Code for the Federal District, ¹³⁴ which establishes the offences against the administration of justice committed by public officers, this Panel considers that it has no jurisdiction to investigate offences committed by public officers, since Article 21 Constitution establishes the Public Prosecutor as the primary authority for the prosecution of such offences. This argument is dismissed as it was not filed before the competent authority.

The investigation by SECOFI of injury attributable to imports of rolled steel plate from Canada was based on the assumption that all such imports, with the exception of those shipped by ALGOMA to AHMSA, were dumped ¹³⁵ and, when accumulated with imports from other sources, were determined to be injurious to domestic producers. It is important to note that this investigation was concerned with actual injury caused by imports during the investigation period, i.e., 1992, and not a threat of injury. ¹³⁶

In making its determination, SECOFI proceeded on what it considered to be the best information available. This approach was adopted since the Complainants ALGOMA, STELCO and DOFASCO had not responded to the questionnaires, or provided any other relevant information, and because the information that had been received from TITAN was not taken into account. SECOFI decided that the margin for this "trading company" must be the same as that estimated for the producer of the goods. ¹³⁷ In fact, the data used to support the decision on price discrimination against Canadian producers was obtained from the domestic industry. ¹³⁸

In their brief, and at the public hearing, the Complainants argued, among other things, that SECOFI mistakenly assessed the relationship between TITAN and DOFASCO, did not adequately assess the similarity of the imported and domestic products, and omitted to take into account in their injury evaluations the increases in installed capacity and production of rolled steel plate by domestic producers, the effects of the devaluation of the peso exchange rate in 1994, the investment activities of the domestic producers, and certain developments in the domestic economy after the period of investigation.

The Panel has reviewed each of these allegations and SECOFI’s responses to them.

The Panel concurs with the view of SECOFI that the peso devaluation and the economic situation that prevailed subsequent to 1992 are not relevant to the injury decision taken in this instance. Under the law, discretion is provided to SECOFI to decide in any particular case if the facts warrant a determination of injury alone, or whether it should also include the "threat of injury". As indicated above, the decision in this case related to actual injury not a threat of injury and, as such, the injury assessment due to the dumped imports must be limited to the period of investigation, i.e., 1992.

At paragraphs 509 and 510 of the Final Determination, it is noted that more than 50% of the rolled steel plate imports from Canada were purchased by firms who were direct clients of the domestic industry. Based on this data and an examination of the tariff classifications applied to the imported goods, it was concluded by SECOFI that the imported product was similar to the domestic product, and that it was marketed through the same channels of distribution. Further, at paragraph 533, it is stated that during the 10 months of 1992, imports from Canada increased 13%, amounting to 14% of total imports and 4% of the apparent domestic consumption. As a result, SECOFI in accordance with Article 67 of the Foreign Trade Regulations determined that imports originating in Canada were significant during this period, and that they should be accumulated with imports of similar products from Brazil, USA and Venezuela for the purposes of assessing injury. ¹³⁹

Paragraphs 549 to 627 of the Final Determination provide a detailed report on the factors taken into account by SECOFI in its decision on injury. In this regard, the Panel notes that the issues of domestic production, installed capacity and inventories, employment, profits, prices together with other relevant factors were all examined by SECOFI in the process of making the Final Determination. Further, it is noted that SECOFI in its written response to the Complainants’ brief and orally at the public hearing addressed each of the points raised by the Complainants, arguing that its analysis took these points into account.

The Panel notes that the law and the regulations requires that a decision on injury must be based on an examination of the impact of a variety of factors on domestic production and, in this context, the significant requirement is that the investigating authorities evaluate all of the relevant factors. As a result of its analysis, SECOFI concluded that imports originating in the four countries caused damage to domestic production of rolled steel plate due to a considerable growth of dumped imports, in both absolute and relative terms, and substantially lower import prices than domestic prices which, in turn, caused a decrease in domestic price levels, a loss of clients and domestic industry´s participation in the market, and adverse effects on domestic industry production, income, profits and inventories during the investigation period. ¹⁴⁰

In the Panel’s view, SECOFI complied with the provisions of Article 39 of the LCE in concluding that injury was caused to domestic production due to the accumulated imports carried out under conditions of price discrimination.

The main outstanding issue raised by the Complainants in this context which, in the Panel’s view, has a direct bearing on the injury decision against Canadian exporters, relates to the position of TITAN, and the admission by SECOFI that it erred in not establishing a specific margin of price discrimination for this firm.

In this connection, the Panel sought clarification at various points in the public hearing in relation to the statistics covering imports from Canada during the investigation period. Faced with incomplete statistical data, the Panel undertook a careful examination of the figures included in the administrative record. Based on this analysis, the Panel has concluded the following:

1. There is no information in the administrative record to indicate that ALGOMA, STELCO or DOFASCO exported rolled steel plate directly to Mexico in 1992.
2. The Commercial Information System indicates that steel plate imports from Canada in 1992 amounted to approximately 14,400 tons of which 711 tons were imported by AHMSA from ALGOMA.
3. An examination of the actual invoices covering TITAN’s shipments to Mexico in 1992 revealed an amazing coincidence of volumes between its shipments and those attributed by SECOFI to Canada as a whole. Indeed, based on the administrative record, the Panel has concluded that the total volume of imports claimed by SECOFI as originating in Canada could only have been exported by Titan and not other Canadian suppliers.
4. Some of the Titan invoices clearly indicate that some of the goods shipped were "seconds" rather than first quality goods.

Accordingly, as the Panel’s examination of the administrative record indicates that the only supplier of rolled steel plate from Canada to Mexico in 1992 was TITAN, a new decision by SECOFI relating to the margin of price discrimination, if any, for TITAN may also result in a major change in the Final Determination as it relates to injury and the margin, if any, appropriate for other potential Canadian suppliers.

In this regard, it is relevant to note that a dumping/injury determination can only be made against goods which are, in fact, found to be dumped. All other imports must be ignored by the authorities in assessing this crucial causal relationship. Thus, the existence of dumping, the dumping margins involved, and the volume of dumped imports are inextricably linked in all injury determinations. In this case, SECOFI admitted an error in not establishing a price discrimination margin for TITAN in the Final Determination. Whatever margin is established for this firm must, of course, be based on the administrative record and, at this stage, the Panel has no way of knowing whether all or any of the imports from TITAN were, in fact, dumped. Some of these goods may not have been dumped, some may only have a de minimis margin, and others may require differentiated treatment because they were second quality goods. By extension, the volume of dumped goods from TITAN that was factored by SECOFI into its decisions relating to accumulation, whether the imports from Canada were significant, and the injury determination per se may well have been incorrect.

This situation is further compounded by the fact that the Panel’s review of the administrative record confirms that subject goods from Canada were only supplied by TITAN during 1992. Counsel at the public hearing implied that other Canadian producers also shipped product to Mexico during the period of investigation ¹⁴¹ and, as a result, a country-wide margin of price discrimination was established at 31.08%. Given that only exports from TITAN were involved, and as SECOFI did not establish acceptable volume and value calculations for this firm, it appears to the Panel that all calculations relating to imports of rolled steel plate from Canada are also suspect.

In the circumstances, it is the view of the Panel that any new price discrimination margin decision relating to TITAN must clearly indicate the precise volume of TITAN’s exports that were dumped in 1992, the volume of seconds involved, and the dumping margins, if any, applicable to both. Once this determination has been made, SECOFI must proceed to factor this new data into its decision as to whether the dumped imports continue to be "significant", and whether their accumulation with imports from other sources continues to be appropriate for the purpose of determining injury. Further, since TITAN was the sole supplier of these goods to Mexico in 1992, and since its margin must be recalculated, it seems obvious that the need for a country-wide determination, and the level of the margin of price discrimination appropriate to other Canadian exporters, should be reassessed.

It will be apparent from the foregoing that, in the Panel’s view, all aspects of injury during the period of investigation are open to question given the Investigating Authority’s request for a remand to determine a margin for TITAN.

1. The Request for a Remand by the Investigating Authority

With regard to the request for a remand by the Investigating Authority, the Panel notes the following:

1. The Investigating Authority in its Final Determination dated December 19, 1995, declined to establish a specific price discrimination margin for the complainant TITAN, arguing that it played a similar role to the sales department of the producer of the goods.
2. TITAN and the other three Complainants (ALGOMA, DOFASCO and STELCO each timely filed on December 28, 1995, a complaint under Rules 35 and 39 of the Rules of Procedure alleging errors of fact and law by the Investigating Authority in failing to establish a specific antidumping margin for TITAN.
3. The Complainants timely filed on May 28, 1996, a joint brief with grounds and arguments supporting the allegations in their complaints. The issue regarding the relationship between TITAN and DOFASCO was stated as follows:

"4. RELATIONSHIP BETWEEN DOFASCO AND TITAN

SECOFI mistakenly understood the facts. Since the answer to the Initial Determination filed on January 11, 1994 TITAN proved that it was a corporation incorporated in the USA and that it was independent from DOFASCO. Therefore, TITAN answered in time the questionnaire and argued (and proved) that the reconstructed value principle that respondents requested to be applied was not right, due to the provision of Article 32 of the law. All TITAN's operations were done so to "allow it to cover the cost of production and general expenses incurred during the normal course of business". Based on the above, normal value of TITAN's operations must had been determined based on the second paragraph of Article 31 of the Law, as requested by TITAN in its answer to the Initial Determination". ¹⁴²

4. SECOFI, in its brief timely filed on July 26, 1996, in reply, accepted as an issue its failure to determine a specific price discrimination (antidumping) margin for TITAN and stated:

"On the other hand, the Investigating Authority admits that it erred in the Final Determination by not assessing TITAN with a specific antidumping duty. Therefore, it respectfully requested that the Panel remand the administrative file according to Article 1904.8 of NAFTA [...] in order to analyze the information contained within the administrative file, and in due course, to determine a specific antidumping duty for TITAN". ¹⁴³

5. SECOFI also requested the following in concluding its Brief

"PART V. POINTS OF REQUEST:

[...] FIFTH. - To remand the Final Determination to the Investigating Authority in order to proceed to assess the information and evidence in the administrative file, and to determine a specific antidumping duty for TITAN.

SIXTH. - In accordance with Article 1904.8 NAFTA to uphold all other points of the Final Determination for imports of rolled plate from Canada". ¹⁴⁴

With respect to the above two points of the Request, the Panel notes that the purpose of the Rules is to secure the just, speedy and inexpensive review of Final Determinations in accordance with the objectives and provisions of Article 1904. Since July 26, 1996, SECOFI has wished to correct the Final Determination as it relates to TITAN. However, it has not told the Panel or the Complainants what its mistake was, how it would correct that mistake, and what effect the correction would have. Nevertheless, it asks that the Panel uphold all other points of the Final Determination. It would thus be allowed to change the Final Determination but leave the Complainants with no real right of reply. This would amount to a denial of due process, a fundamental rule of procedure. The Panel cannot agree to grant a remand on these terms.

Moreover, the administrative record to which SECOFI refers is defined in Article 1911 as follows:

"Article 1911. Definitions

For the Purposes of this Chapter:

administrative record means, unless otherwise agreed by the Parties and the other persons appearing before a Panel:

1. all documentary or other information presented to or obtained by the competent investigating authority in the course of the administrative proceeding, including any governmental memoranda pertaining to the case, and including any record of ex parte meetings as may be required to be kept;
2. a copy of the Final Determination of the competent investigating authority, including reasons for the determination;
3. all transcripts or record of conferences of hearings before the competent investigating authority; and
4. all notifications published in the official journal of the importing Party in connection with the administrative proceeding;"

Therefore, the administrative record is widely defined to include documents or other information from the public domain (non-confidential), documents or other information of a proprietary character (confidential), documents or other information that are privileged (privileged), and sources of which a complainant has no knowledge.

SECOFI may consult all four of these components of the administrative record in correcting its mistake. Equality of treatment entitles the Complainants to access the same sources of information.

VII. ORDER OF THE PANEL

In view of the foregoing and pursuant to the NAFTA Article 1904(8), the Final Determination is hereby remanded for action by the Investigating Authority so that it may issue a new Final Determination, within 60 days from the notification of this Order, not incompatible with the following:

1. REGARDING TITAN

In making a new Final Determination, the Investigating Authority shall:

1. Establish, based solely on the information contained in the administrative record, whether Titan was the only exporter of Canadian made rolled steel "plate" to Mexico in 1992;
2. Establish definitively the volume of rolled steel plate exports attributable to TITAN during 1992 and indicate how much, if any, were second quality goods;
3. Assess, based on the analysis resulting from (A) and (B), whether the total import from Titan were significant for the purposes of accumulation in accordance with paragraph 2 of Article 67 of the Foreign Trade Law Regulations;
4. Evaluate, based on the results of the foregoing and the administrative record including any accumulation considerations involved, the injurious impact of TITAN’s 1992 exports from Canada on producers in Mexico; and,
5. Substantiate the conclusions respecting points (A) to (D) through the identification of the relevant supporting evidence in the administrative record.

Consistent with the request received from the Investigating Authority in its brief dated July 26, 1996, the Panel remands the Final Determination to enable the Investigating Authority to assess the information and evidence in the administrative record and, taking into account the results of its examination of the points raised in points A) to E) above, to establish, if appropriate, a specific margin of price discrimination in respect of imports from TITAN.

2. REGARDING CANADIAN EXPORTERS OTHER THAN TITAN

As indicated above, except for the specific shipment of steel plate from ALGOMA to AHMSA, the Panel could find no evidence in the administrative record of exports of rolled steel plate to Mexico from these producers, or any other Canadian producers during 1992. All the evidence indicates that TITAN was the sole supplier of these goods to Mexico during the period of investigation. Accordingly, we order that the countrywide price discrimination margins against Canadian producers must be reassessed.

3. REGARDING THE COMPLAINANTS

If the Investigating Authority supplements the administrative record on remand and the Complainants’ wish to challenge the Determination on remand, pursuant to Rule 73(2)(b) of the Rules of Procedure, the Complainants may do so without re-opening their case, and by filing a written submission in accordance with Rule 73(2)(b), and for this purpose may have access to the confidential record. The Panel’s Order of May 21, 1997, is amended accordingly.

Issued on December 17, 1997.

Signed in the original by:

¹ Administrative Record, Confidential Version ("CV"), Vol.s 1-11, Nº 1, File 9303690.

² Administrative Record, CV, Vol. 12, Nº 8, Folio 9304369.

³ Administrative Record, CV, Vol. 10, Nº 14, Folio 35-93/RIP.

⁴ Administrative Record, CV, Vol. 14, Nº 158, Folio 9400178.

⁵ Administrative Record, CV, Vol. 18, Nº 470, File RESP.PRELI.PR.

⁶ Administrative Record, CV, Vol. 25, Nº 751, File 35-93/RFP.

⁷ Application of a Review Before a Panel, Administrative Record, CV, Vol. 1.

⁸ Complaints, Administrative Record, CV, Vol. 1, Doc. Nº 14.

⁹ Brief of the Investigating Authority, July 26, 1996, p. xxii.

¹⁰ Ibid.

¹¹ Administrative Record, CV, Vol. 1, Doc. Nº 16.

¹² Administrative Record, CV, Vol. 1, Doc. Nº 15.

¹³ Administrative Record, CV, Vol. 1, Doc. Nº 18.

¹⁴ Administrative Record, CV, Vol. 4, Doc. Nº 31.

¹⁵ Administrative Record, CV, Vol. 4, Doc. Nº 42.

¹⁶ Administrative Record, CV, Vol. 4, Doc. Nº 43.

¹⁷ Ibid.

¹⁸ Administrative Record, CV, Vol. 4, Doc. Nº 70.

¹⁹ Administrative Record, CV, File Nº SMSTLC-1996-J-520.

²⁰ Ibid.

²¹ Ibid.

²² Ibid.

²³ Administrative Record, CV, Vol. 6, Doc. Nº 58.

²⁴ Administrative Record, CV, Vol. 6, Doc. Nº 61.

²⁵ Administrative Record, CV, Vol. 6, Doc. Nº 62.

²⁶ Administrative Record, CV, Vol. 6 Doc. Nº 65.

²⁷ SECOFI, Subsecretaría de Negociaciones Comeciales Internacionales (Sub-secretary of International Commercial Negotiations), File Nº 511.04.01.97.

²⁸ Administrative Record, CV, Vol. 6, Doc. Nº 71.

²⁹ Administrative Record, CV, Vol. 9, Doc. Nº 113.

³⁰ Administrative Record, CV, Vol. 6, Doc. Nº 72.

³¹ Administrative Record, CV, Vol. 9, Doc. Nº 119.

³² Administrative Record, CV, Vol. 6, Doc. Nº 71.

³³ Administrative Record, CV, Vol. 12, Doc. Nº 155.

³⁴ Administrative Record, CV, Vol. 6, Doc. Nº 71.

³⁶ Administrative Record, CV, Vol. 6, Doc. Nº 71.

³⁷ Administrative Record, CV, Vol. 6, Doc. Nº 73.

³⁸ Administrative Record, CV, Vol. 3, Doc. Nº 30.

³⁹ Administrative Record, CV, Vol. 6, Doc. Nº 75.

⁴⁰ Administrative Record, CV, Vol. 7, Doc. Nº 77.

⁴¹ Administrative Record, CV, Vol. 6, Doc. Nº 64.

⁴² Administrative Record, CV, Vol. 7, Doc. Nº 79.

⁴³ Administrative Record, CV, Vol. 7, Doc. Nº 79.

⁴⁴ Administrative Record, CV, Vol. 7, Doc. Nº 87.

⁴⁵ Administrative Record, CV, Vol. 8, Doc. Nº 89.

⁴⁶ Administrative Record, CV, Vol. 8, Doc. Nº 97.

⁴⁷ Administrative Record, CV, Vol. 9, Doc. Nº 105.

⁴⁸ Administrative Record, CV, Vol. 10, Doc. Nº 125.

⁵⁰ Administrative Record, CV, Vol. 12, Doc. Nº 154.

⁵¹ Administrative Record, CV, Vol. 12, Doc. Nº 164.

⁵² See: the implications of the request for remand of the Investigating Authority developed in the injury section of this Decision.

⁵³ See: Section VII of this Final Decision, regarding the Panel’s Order related to the Complainants, infra.

⁵⁴ See: the implications of the Investigating Authority’s error, which this Panel addresses in the injury section of this Decision.

⁵⁵ According to paragraph XI of article 11 of the Ley Orgánica del Tribunal Fiscal de la Federación published in the Diario Oficial de la Federación on December 15, 1995, the internal judicial review of the final determination on compensatory quotas corresponds to this tribunal.

⁵⁶ NAFTA, Annex 1911.

⁵⁷ This last paragraph of Article 238 was inserted through ammendment published in the Diario Oficial on December 5, 1995, and entered into force on January 1, 1996.

⁵⁸ NAFTA, Article 1904 (3).

⁵⁹ See: the Final Decision MEX-94-1904-02.

⁶⁰ For similar reasons, Article 237 of the Federal Fiscal Code is not part of the standard of review that this Panel must apply.

⁶¹ As an example, recall the economic implications that can be found in paragraph II of Article 238 of the Federal Fiscal Code, implications to which this Panel refers in section V on Issues in Litigation, subsection 5, which corresponds to "Extemporaneiety of the Issuance of the Preliminary and Definitive Resolutions".

⁶² This important instrument of international law is part of Mexican positive law, since, according to the applicable constitutional and legal provisions, was adopted by Mexico on May 23, 1969, was ratified on September 25, 1974, and was published in the Diario Oficial on February 14, 1975. It entered into force on January 27, 1980.

⁶³ The criteria or methods of legal interperetation most commonly used in Mexico are: the logical, the systematical, the authentical and the causal teleological. For more details See: Ignacio Burgoa, Las Garantías Individuales, México, Porrúa, 1991, pp. 575 y 576.

⁶⁴ It is evident that article 1904 excludes the Constitution of each country, that consequently cannot be an applicable provision in matters of countervailing and antidumping duties, since article 1911 contains it in the definition of internal law, but it is only established for the purposes of article 1905.1, this means it is invoked only for the effects of the safeguard of the review system. So the Constitution should not be a direct source of the grounds that the Panel uses to issue its final decision.

⁶⁵ It is important to note that the Código Fiscal de la Federación might eventually become a part of the legislation whose compliance must be safeguarded by the Panel, to the extent that article 85 of the Ley de Comercio Exterior recognises in it a supplementary character in the following terms: "In the absence of an express provision in this law in what relates to administrative procedures in the matter of unfair international trade practices and safeguard measures, supplementary the Código Fiscal will be applied, in accordance with the nature of this proceeding. This provision will not be applied in what relates to notices and verification visits".

⁶⁶ Fraga Gabino, Derecho Administrativo. Mexico, Porrúa, 1968, at 62.

⁶⁷ Jurisprudencia is to be distinguished from the principle in the common law known as stare decisis. Jurisprudencia, when established, is binding on a court of coordinate or lower rank in the judicial hierarchy. When established, it is also a source of Mexican law. Jurisprudencia is established when a certain number of specific decisions of a judicial authority designated by law to have the effect, are alike with respect to one or more points of law.

⁶⁸ Burgoa Ignacio, El Juicio de Amparo. Mexico, Porrúa, 1981, at 819.

⁶⁹ See: García Maynez, Eduardo. Introducción al Estudio del Derecho. Mexico, Porrúa, 1992. at 68.

⁷⁰ Art. 260 of the CFF.

⁷¹ LOAPF, Article 16, 18.

⁷² Ibid., Article 16.

73 Ibid., Article, 14, 16.

⁷⁴ Segunda Sala. Semanario Judicial de la Federación. 8a. época, tomo III, primera parte, p. 277. Amparo en revisión 6458/85. Francisco Javier Vázquez Balderas. 10. de febrero de 1989. 5 votos. Ponente: Manuel Gutiérrez de Velasco. Secretaria: Rosalba Becerril Velázquez. Amparo en revisión 1129/88. Compañía Mexicana de Ingeniería, Sociedad Anónima. 8 de junio de 1988. Unanimidad de votos. Ponente: Atanasio González Martínez. Secretaria: Alicia Rodríguez Cruz de Blanco (8a. época, tomo I, primera parte 1, p. 223). Amparo en revisión 480/84. Compañía Minera Río Colorado, S. A. 23 de agosto de 1984. Unanimidad de 4 votos. Ausente: Santiago Rodríguez Roldán. Ponente: Carlos del Río Rodríguez. Secretaria: Diana Bernal Ladrón Guevara (7a. época, vols. 187-192, tercera parte, p. 65)

⁷⁵ This same position was adopted by the Binational Panel in Case MEX-96-1904-03. For the reasons offered above, this panel respectfully disagrees with this opinion.

⁷⁶ See:, Amparos 193/93; 194/93 y 195/93

⁷⁷ One of these amparo decisions has recently been upheld on appeal. The court in this appeal upheld an amparo based on the lack of competence of the administrative unit because it was not listed in the applicable Internal Regulation of SECOFI. Quinto Tribunal Colegiado en Materia Administrativa del Primer Circuito. Amparo en revisión 3005/94 (Amparo Decision No. 194/93), June 24, 1996

⁷⁸ See: the English version of the transcript of the Public Hearing, pp. 74, ff.

⁷⁹ See: Administrative Record, CV, Nos. 15, 17, 19, 20, 22, 24, 25, 28, 30, 32, 35, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 61, 62, 63, 64, 66, 68, 72, 74, 75, 76, 77, 78, 79, 81, 82, 84, 85, 87, 89, 90, 92, 93, 95, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 110, 112 y 114.

⁸⁰ Ibid., Nos. 118, 148, 150, 151, 154, 156, 157, 161, 162, 164, 167, 168, 171, 173, 176, 178, 180, 184, 186, 187, 188, 190, 193, 196, 197, 199, 201, 203, 205, 207, 210, 214, 215, 235, 247, 248, 251, 253, 255, 256, 261, 263, 265, 268, 272, 304, 306, 313, 316, 318, 320, 480, 482, 505, 514, 565, 567, 584, 618, 630, 634, 635, 638, 676, 679, 687, 689, 691, 693, 698, 702, 704, 706, 711, 742, 745 y 747.

⁸¹ Ibid., Nos. 213, 218, 220, 221, 222, 223, 225, 227, 229, 232 y 233.

⁸² Ibid.,Nos. 115, 179 y 213.

⁸³ See: the Administrative Record, Public Version ("PV"), Nos. 302, 303, 308, 309, 310, 352, 354, 356, 358, 360, 362, 364, 366, 369, 373, 375, 377, 379, 383 and 384.

⁸⁴ Ibid., Nos. 418, 419, 420, 421, 422, 423, 424, 426, 428, 430 and 432.

⁸⁵ See: Administrative Record, CV, Nos. 238 and 241.

⁸⁶ Ibid., Nos. 243, 244 and 245.

⁸⁷ See: the Administrative Record, PV, Nos. 644, 646, 648, 650, 652, 654, 662 and 663.

⁸⁸ Ibid., 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740 and 741. ⁸⁹ Mr. Velázquez Elizarrás is the one who signs all the Doc.s, with the exception of the notifications of the Final Determination, which is signed by Mr. Juan Saldaña.

Article 16. - "Nobody may be disturbed in his person, family, domicile, papers or possessions, but by virtue of a written notice given by a competent authority, that grounds and motivates the legal cause of the procedure."