|
ARTICLE 1904
BINATIONAL PANEL REVIEW PURSUANT TO THE
NORTH AMERICAN FREE TRADE AGREEMENT
| In the Matter of: |
|
CDA-USA-98-1904-03 |
| Certain solder joint pressure pipe fittings and solder joint drainage, waste
and vent pipe fittings, made of cast copper alloy, wrought copper
alloy or wrought copper, originating in or exported from the
United States of America and produced by or on behalf of Elkhart
Products Corporation, Elkhart, Indiana, Nibco Inc., Elkhart,
Indiana, and Mueller Industries, Inc., Wichita, Kansas, theirs
successors and assigns |
(Continuation)
D. The Assertion of a New Relevance Standard
Finally, Complainants say the CITT’s June 26 ruling created a new,
higher “clearly of relevance” standard for issuance of RFIs. The
sentence Complainants object to reads as follows: “Given the tight
overall time frames for the conduct of this review under the Special
Import Measures Act, the Tribunal wishes to remind parties that the
process of directing requests for information to other parties at this
stage of the review must of necessity be limited to matters which are
clearly of relevance to those at issue in this review.”
It is unclear what significance the “clearly of relevance” phrase had
in the proceedings below. As written, it was a “reminder” to the
parties about limitations on RFIs that were necessary “at this stage of
the review.” There was no suggestion that this formulation would apply
at later stages of the case or with regard to the evidence that would be
admitted to the record. Indeed, we know that it did not, since
Complainants sought the same information in the
NMA process and were permitted to compel its production. Moreover, the
CITT’s determination of what information would be required in the RFI
process appears to have been based not on this part of the June 26 letter
but on the CITT’s judgment of what was “necessary for a full and
proper consideration of the issues in this review.” There is no
indication that Complainants objected at the time to what they now view as
the invocation of a new, higher standard of relevance or that they
attributed the rejection of certain RFIs to reliance on such a factor.
Thus, Complainants have made no showing that the CITT’s quoted statement
on the relevance standard in the June 26 ruling flouted principles of
natural justice or constituted an unreasonable exercise of the CITT’s
expertise and discretion.
For all the foregoing reasons, the Panel does not view the CITT’s
actions with respect to the RFI process as unreasonable.
[ Return to the Table
of Contents ]
VI. CONCLUSION
For the reasons set forth above, this Panel hereby affirms the finding of
the CITT in its order of October 16, 1998 in Review No. RR-97-008. The
Panel directs the Canadian Secretary of the NAFTA Secretariat to issue a
Notice of Final Panel Action pursuant to rule 77 of the NAFTA Article 1904
Panel Rules.
SIGNED IN THE ORIGINAL BY:
D. Michael Kaye, Chair D. Michael Kaye, Chair
Jeffery C. Atik Jeffery C. Atik
Jane C. Luxton Jane C. Luxton
E. Neil McKelvey, OC, QC E. Neil McKelvey, OC, QC
David J. Mullan David J. Mullan
Issued on the 3rd day of April, 2000.
[ Return to the Table
of Contents ]
APPENDIX
TABLE 1A
: Cello Request to Nibco
|
Requested Information |
Objection |
Response |
June 26 Ruling |
Challenge on Appeal |
|
1. Schedule of payments on sales of subject and
non-subject goods, from Nibco to NCI from 1996 to the present. |
June 18 objection to non-subject goods, relying
on Tribunal’s June 4 letter. |
June 24 letter states relevance and usefulness
are “readily apparent and self-explanatory.” Asserts
objections are cursory and inadequate. |
Reply ordered for subject goods only. |
Characterized as “outright refusal.” No
description of relevance in briefs. |
|
2. Copy of Nibco Canada’s 1995 financial
statements. |
None. |
None. |
Provide statement if available. |
Characterized as “qualified refusal.” No
description of relevance in briefs. |
|
3. Copy of agreement of sale of Nibco Canada and
related agreements, plus any personal service agreements between
Cliff Sargeant and NCI or Nibco. |
Objected to as irrelevant; no personal service
agreement exists. |
Same response as item 1 on relevance and
adequacy of objections. |
Request not relevant for the review. |
Characterized as “outright refusal.” No
description of relevance in briefs. |
|
4. Explain Nibco’s pricing policy for
non-subject goods to U.S. customers for 1996 to the present. |
Objected to as irrelevant and burdensome. |
Same response as item 1. |
Information on non-subject goods not required. |
Characterized as “outright refusal.” No
description of relevance in briefs. |
|
5. Copies of marketing plans bearing on the sale
of subject goods for Canadian market in the future. |
No objection. |
Same response as item 1. |
Provide if such plans exist. |
Characterized as “qualified refusal.” No
description of relevance in briefs. |
|
6. Copies of plans for additions to production
capacity for subject goods for the next five years. |
No objection. |
Same response as item 1. |
Provide if such plans exist. |
Characterized as “qualified refusal.” No
description of relevance in briefs. |
|
7. [Not contested] |
|
|
|
|
|
8. Details of export prices for all export
markets for 1995 to the present of subject goods. |
Objected to as burdensome and irrelevant. |
Same response as item 1. |
Provide export information and breakdown as
requested in Questionnaire. |
None. |
|
9. Copies of plans exhibiting use of subject
goods production capacity for U.S. and export markets in the
future. |
No objection. |
Same response as item 1. |
Provide if such plans exist. |
Characterized as “qualified refusal.” No
description of relevance in briefs. |
[ Return to the Table of
Contents ]
TABLE 1B
: Bow’s Request to Nibco
| |
Objection |
Response |
June 26 Ruling |
Challenge on Appeal |
|
1. Terms and conditions of sale regarding
subject and non-subject goods made by Nibco to NCI from 1996 to
the present |
Same as objection to Cello #1 in Table 1A. |
General objection to Nibco’s objections;
statement that relevance and usefulness are “readily apparent
and self-explanatory.” |
Reply for subject goods only. |
Assertion that Tribunal’s ruling was “outright
refusal.” |
|
2. Copy of the agreement of sale, plus related
agreements regarding sale of Nibco Canada to Cliff Sargeant and/or
NCI. |
Same as objection to Cello #3 in Table 1A. |
Same as above, plus statement that reference to
the relationship between Nibco and NCI is noted in Exhibit B-1. |
Ruled not relevant. |
Assertion that Tribunal’s ruling was “outright
refusal.” |
|
3. Details of Nibco’s pricing policy in
respect of the sale of non-subject goods to U.S. customers from
1996 to the present. |
Same as objection to Cello #4 in Table 1A. |
Same as above. |
Information on non-subject goods not required. |
Assertion that Tribunal’s ruling was “outright
refusal.” |
|
4. Details of Nibco’s pricing policy in
respect to non-subject goods to NCI from 1996 to the present. |
Same as objection to Cello #1 and #4 in Table
1A. |
Same as above. |
Information on pricing policy to be provided. |
No objection. |
[ Return to the Table of
Contents ]
TABLE 1C
: Cello Request to Streamline and Mueller
| |
Objection |
Response |
June 26 Ruling |
Challenge on Appeal |
|
1. Copies of plans for additions to production
capacity for Mueller for the next 5 years. |
Information is covered in questionnaires and
redundant. |
Objections were filed late (June 22). |
Provide information if such plans exist. |
Assertion that ruling is qualified refusal. |
|
2. Copies of marketing plans for subject goods
for Canadian market in the future. |
Information is covered in questionnaires. |
Objections were filed late (June 22). |
Provide information if such plans exist. |
Assertion that ruling is qualified refusal. |
|
3. Copies of memoranda documenting meetings
between Mueller and/or Streamline and the Department of National
Revenue |
Requests are speculative and irrelevant. |
Objections were filed late (June 22). |
Request not relevant for this review. |
“Outright refusal.” |
|
4. Documentation showing plans for Streamline in
European and Canadian markets if Finding is not rescinded. |
No objection. |
Objections were filed late (June 22). |
Provide information if such plans exist. |
Assertion that ruling is qualified refusal. |
|
5. Details of export prices for all export
markets for sales of the subject goods by Mueller. |
Irrelevant, burdensome, “fishing expedition.” |
Objections were filed late (June 22). |
Adequate information has been provided in
questionnaire responses. |
“Outright refusal.” |
|
6. Copies of any plans exhibiting the use of
subject goods production capacity for U.S. and export markets in
the future by Mueller. |
Irrelevant, burdensome, “fishing expedition.” |
Objections were filed late (June 22). |
Provide information if such plans exist. |
“Qualified refusal.” |
[ Return to the Table
of Contents ]
TABLE 2 :
Comparison
of Denied RFI Requests with Notice of Matters Arising
|
RFI |
June 26 Ruling |
Matters Arising |
Documentation Requested |
July 31 Ruling |
|
1. Schedule of payments for sales of subject and
non-subject goods from Nibco to NCI for 1996 to the present.
[Cello #1; Bow ##1 and 4] |
Information on non-subject goods not relevant. |
1. Differences in payment terms and schedules of
payment for sales of subject and non-subject goods by Nibco to
NCI. |
Payment terms and conditions and internal
memoranda discussing rationale. |
Granted. |
|
2. Copy of agreement of sale of Nibco Canada and
related documents, plus copies of any personal service agreements
between Cliff Sargeant and NCI and/or Nibco. [Cello #3; Bow #2] |
Not relevant. |
2. Explanation of how sale of Nibco Canada to
NCI and/or Mr. Sargeant affects sales and prices by Nibco’s
distributor of subject goods. |
Agreement of sale of Nibco Canada and any
related financing arrangements. |
Ruled not relevant. |
|
3. Explain Nibco’s pricing policy in respect
of non-subject goods to U.S. Customers for 1996 to the present.
[Cello #4; Bow #3] |
Information on non-subject goods not relevant. |
3. Differences, if any, between pricing policies
applicable to non-subject goods sold by Nibco to NCI and to U.S.
distributors, and any effect on prices of subject goods. |
Pricing policies for 1995 to the present. |
Granted. |
[ Return to the Table
of Contents ]
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