9. Canada has not, moreover, demonstrated that TPC contributions will no longer confer a "benefit" within the meaning of Article 1.1(b). The "benefit to recipient" standard adopted by the Panel, and affirmed by the Appellate Body, states that a "benefit" exists if a recipient has "received a 'financial contribution' on terms more favourable than those available to the recipient in the market."¹⁰ Indeed, the Panel determined that while TPC's rate of return on its contributions to the regional aircraft industry was projected at a maximum of [ ] per cent,¹¹ a commercial investor would expect a rate of return of 19.91 - 21.92 per cent on a similar investment. TPC contributions, therefore, are still on terms more favourable than those available to the recipient on the market.

10 TPC's most recent annual report, moreover, distinguishes TPC from commercial financial lenders: "[U]nlike commercial financial institutions that measure return solely in financial terms, the return to TPC is also measured in terms of a broad range of non-financial benefits to Canada that flow from successful projects."¹² The annual report also notes that given the failure of some TPC-funded projects, "TPC's expected repayment may be less than nominal."¹³

11. Under these circumstances, TPC contributions, even after implementation of Canada's purported compliance measures, continue to confer "benefits" and continue to constitute "subsidies" under Article 1.1(b) of the Subsidies Agreement.

C. THE AMENDMENTS TO THE TPC PROGRAMME ARE COSMETIC, AND DO NOT CHANGE THE STATUS OF TPC CONTRIBUTIONS TO THE CANADIAN REGIONAL AIRCRAFT INDUSTRY AS DE FACTO EXPORT CONTINGENT UNDER ARTICLE 3 OF THE SUBSIDIES AGREEMENT

12. Canada's amendments to TPC are merely cosmetic, and do not constitute effective implementation of its obligations under the Subsidies Agreement. Even after the amendments to TPC:
the same three industry sectors will receive TPC assistance;
 

• the same types of projects will be eligible for TPC funds;
   
• the same objectives and fundamental economic realities underlie TPC's creation and continued existence;
   
• the aerospace industry continues to receive far and away the greatest share of TPC contributions and disbursements; and,
   
• the Canadian aerospace industry in general, and the regional aircraft industry in particular, remains export-oriented.

13. The only real difference - apart from the fact that Canada forecasts available TPC funds to increase by 396 per cent between now and 2003¹⁴ - is that the word "export" is less ubiquitous than it was previously, at least in those documents made publicly available by the Canadian government.

14. This is not enough. As the Panel is aware, subsidies provided to the Canadian regional aircraft industry under the auspices of the TPC were found to be prohibited export subsidies in fact, rather than in law. A determination that subsidies are "contingent . . . in fact . . . upon export performance," in the words of the Appellate Body, "must be inferred from the total configuration of the facts constituting and surrounding the granting of the subsidy . . ."¹⁵ This is distinct from a determination of de jure export contingency, which is demonstrated "on the basis of the words of the relevant legislation, regulation or other legal instrument."¹⁶

15. Merely sanitizing publicly-released documents to remove references to the word "export" is not sufficient to bring Canada into compliance with this Panel's determination of de facto export contingency. According to the Appellate Body, demonstration of de facto export contingency depends not upon uncovering express reference to "export" as a condition for receipt of a subsidy (although such references abound in Canadian materials), but rather depends on the inference of export contingency drawn from the totality of the facts. This is the entire purpose of the de facto export contingency provision - to prevent Members from circumventing the prohibition of de jure export contingency by merely purging all references to the term "export."¹⁷ It is this question of proof - demonstrating express contingency on export versus inferred contingency on export - that defines the very difference between a de jure, as opposed to a de facto, case.

16. Canada's implementation measures change only the superficial evidence of export contingency, but make no substantive change whatsoever in the underlying programme. de facto export contingency is still, in the words of the Appellate Body, "inferred from the total configuration of the facts constituting and surrounding" any TPC contributions to the Canadian regional aircraft industry, regardless of Canada's efforts to purge from its documents express reference to the word "export."¹⁸ TPC's structure, objectives and economic backdrop require this inference, and thus require a determination that Canada has not complied with the recommendation and ruling of the DSB that Canada "withdraw the subsidy."

17. Canada may assert, as it has previously, that Brazil's claim of Canadian non-compliance rests solely on the fact that TPC subsidies are granted to "enterprises that export," a fact that, while certainly relevant to the Panel's review,¹⁹ cannot (under footnote 4 to the Subsidies Agreement) form the entire basis of a determination of de facto export contingency. In the sections to follow, however, Brazil will describe a series of facts both related to and apart from the export orientation of the Canadian regional aircraft industry. These facts, together, lead to the very same inference derived by the Panel in its original decision: TPC contributions to the Canadian regional aircraft industries remain de facto contingent upon and in fact tied to export performance.

1. The Canadian Regional Aircraft Industry Remains Export-Oriented, and the Canadian Government's Recognition of the Significance of that Export-Orientation Is Still Evident

18. An expert report included with Brazil's submissions to the Panel, and the Panel itself, noted the export orientation or the export propensity of the Canadian regional aircraft industry.²⁰ This fact remains unchanged. Brazil has attached, as Exhibit Bra-7, a series of tables and supporting documentation updating the results of this expert report. This update demonstrates that during the period from 23 October 1998 (the end date for the earlier expert report) through 15 December 1999, every sale of Canadian regional aircraft - without exception - was for export.

19. Moreover, the appeal of this export orientation to the Canadian government has not been eliminated by Canada's amendments to TPC:

• TPC has previously justified its support to its main beneficiary by pointing out that the industry is "highly export oriented";²¹
   
• The Canadian Minister of Industry has justified particular instances of TPC support with the statement that "[a]erospace is a crucial sector for Canada's economy, with exports growing at 10 per cent per year."²²
   
• The Leader of the Government in the House of Commons has stated that a key "output" of a TPC-supported project - the Dash 8-400 - is "the building of exports," which he argued was, along with job creation, "just what the government had in mind when we established" TPC.²³
   
• As recently as October 1999, the Canadian government touted the Canadian aerospace industry as "[g]lobally competitive with exports exceeding 70 per cent of output," and as "Commercial market focused/Export Oriented."²⁴ TPC, which "invests with industry in near-market opportunities," is listed among those government programmes supporting this export-based industry.²⁵
   
• Industry Canada's 1998/99 Survey of the Canadian Aerospace and Defence Industry, published on 29 November 1999, projects that the Canadian aerospace industry's exports will increase to 70 per cent of total sales in 2000.²⁶
   
• a June 1999 study sponsored in part by Industry Canada concludes that the Canadian aerospace industry exported 78 per cent of its production in 1998, and projects a 90 per cent increase in export sales during the period 1991-2001.²⁷ The same study notes that "rapid growth of the value of export sales" was achieved by a shift from exports of "manufactured components and sub-systems" to exports of "complete aircraft and systems."²⁸
   
• The Aerospace Industries Association of Canada projects that 71 per cent of the industry's sales revenue will be derived from exports in 2000,²⁹ and that the industry's "exports continue to be the principal engine of [its] growth"³⁰ - factors that surely did not escape Industry Canada when it succumbed to the Association's "advocacy efforts [to] secur[e] an additional $150 million in funding for [TPC]."³¹

20. Like any other "fact" relevant under footnote 4 to the Subsidies Agreement, the Canadian government's acknowledgement of the overwhelming export orientation of the industry, and its admission that this factor drives the government's commitment to fund that industry, can serve in part as the basis for an inference that, without that export orientation, the abundant funding sources of TPC would not be available to the industry.

21. The crucial role the regional aircraft industry specifically, and the aerospace industry generally, play in Canada is translated into the funding priorities of Canadian subsidy programmes: as before the amendments announced by the Canadian government on 19 November, TPC continues to provide contributions to the same three categories of industry as before (Aerospace and Defence, Enabling Technologies, and Environmental Technologies),³² and continues, as before, to be captive to the regional aircraft and the aerospace industry. Since inception of the programme, 65 per cent of TPC contributions have gone to the aerospace industry;³³ in the period 1998-1999, 76 per cent of TPC disbursements went to that industry.³⁴ The economic significance of this bias will become increasingly relevant to the industry in the coming years, since available TPC funds are slated to increase by 396 per cent between now and 2003.³⁵

22. Nothing, in short, has changed - neither the industries eligible for TPC contributions, nor the recognized export-orientation of the industry that enjoys the lion's share of those contributions, nor the significance of that industry's export orientation to Canadian government officials, nor that industry's prospects for continued dominance of TPC's treasury. None of these factors is destined for change.

23. When the Canadian government grants TPC funds to the Canadian regional aircraft industry - today as in the past - it is eminently aware, as its statements reveal, of that industry's overwhelming export-orientation. To keep it that way, the Canadian aerospace industry receives the vast majority of the rapidly increasing pool of TPC funds available. These facts lead directly to the unavoidable conclusion that, without exceptional export performance, the Canadian regional aircraft industry would not receive TPC subsidies. The inescapable inference is, therefore, that continued receipt of those subsidies is in fact tied to export performance.

2. Canada's Removal of the "Near to Market" Terminology from TPC Documents Is Irrelevant

24. As part of its implementation strategy, Canada announced that it will now "focus on promoting technological innovation and enhancing the technological capability of Canadian industry, rather than commercialization," and that eligible activities will now be for "industrial research and pre-competitive development."³⁶ Canada then goes on to specify three categories of TPC "Eligible Activities" - "industrial research," "pre-competitive development," and "studies."³⁷ Brazil makes the following three observations regarding this aspect of Canada's implementation strategy.

25. First, TPC's "new" emphasis on "technological innovation" rather than "commercialization" is presumably in response to the Panel's identification of TPC's focus on "'near market R & D'" projects as one factor supporting a finding of de facto export contingency.³⁸ This "new" emphasis, however, does not immunize TPC from characterization as a prohibited export subsidy. The Appellate Body noted that "[i]t is. . . no 'less . . . possible' that the facts, taken together, may demonstrate that a pre-production subsidy for research and development is 'contingent . . . in fact . . . upon . . . export performance.'"³⁹ Removing "commercialization" or the "near market R & D" focus from TPC's focus, therefore, and shifting instead to a focus on "industrial research and pre-competitive development,"⁴⁰ would not make it any less possible to infer from the facts that TPC constitutes a prohibited export subsidy.⁴¹

26. Second, and to the extent that this factor is still relevant as one among many contributing to an inference of de facto export contingency,⁴² Canada's amendments to TPC do not in fact rid it of considerations regarding "commercialization." TPC's most recent "Current Statistics," published on the TPC website on 6 December 1999, state that "TPC contracted projects, if successful, are forecasted to generate sales of more than $89.6 billion . . ."⁴³ TPC still considers that its subsidies are to be used to "generate sales" - a virtual synonym for "commercialization."

27. Moreover, two of the categories of TPC "eligible activities" betray an interest in projects linked to actual products. Under the category of "Industrial research," TPC funds projects "aimed at the discovery of new knowledge, with the objective that such knowledge may be useful in developing new products, processes or services, or in bringing about a significant improvement to existing products, processes or services."⁴⁴ Eligible projects in the category of "Pre-competitive development" specifically include the "translation of industrial research findings into a plan, blueprint or design for new, modified or improved products, processes or services."⁴⁵

28. Finally, immediately after noting that "Canada's aerospace and defence industries supply regional and business jet and turboprop aircraft, commercial helicopters, propulsion and major avionics systems, and electronics parts and components, and aviation support systems such as air traffic control systems," TPC's website states that "[i]nvestments by Technology Partnerships Canada help this vital part of the Canadian economy maintain and expand its position of technological excellence and so contribute to the country's well-being."⁴⁶ The industry's successful commercialization of broad product lines, and TPC's role in "helping" the industry "maintain and expand" its position through commercialization of those products, are two factors that do not escape the Canadian government.

29. Third, the three categories of TPC "eligible activities" are remarkably similar pre- and post-implementation. Brazil has attached as Exhibit Bra-20 an excerpt from the TPC website, dated 21 January 1998, describing certain of the prerequisites for TPC assistance:

The project activities must include one of the following: development or demonstration of a product, process and/or technology; certain preproduction activities; technical or marketing feasibility studies.⁴⁷

30. These descriptions exhibit considerable similarity to the "new" TPC categories of eligible activities: what was previously "development or demonstration" or "preproduction activities," for example, is now "pre-competitive development"; what was then the category of "feasibility studies" is now simply "studies."⁴⁸ Nothing of substance has changed; if funding for the development of commercial products was available in the "old" TPC, it is similarly available in the "new" TPC, and as it did before contributes to an inference of de facto export contingency.

3. The Goals and Objectives of the TPC Programme Remain Intimately Linked to Export

31. Canada's materials regarding the "new" TPC are replete with references to the programme's objectives, most commonly phrased as "increasing economic growth, creating jobs, and supporting sustainable development."⁴⁹ These same objectives are at times characterized as the "new" TPC's "programme objectives,"⁵⁰ but are repeated elsewhere in the TPC materials as part of the programme's mandate,⁵¹ selection criteria,⁵² assessment criteria,⁵³ or examples of strategic benefits to be established by an applicant to secure TPC funds.⁵⁴

32. These same objectives were also central to the "old" TPC. TPC's Charter and its Business Plan formerly stated that the programme's mandate was "to stimulate economic growth and create jobs in Canada," and that two of its objectives were "to increase growth and wealth creation."⁵⁵ The "Terms and Conditions" document for the "old" TPC stated that the programme was to "contribute to achieving Canada's objectives of: (a) increasing economic growth and wealth creation; (b) supporting sustainable development," etc.⁵⁶ Similarly, the closing paragraph of Industry Canada News Releases announcing contributions under the "old" TPC included a statement that TPC "is a central element of the government's agenda to promote technological development as a catalyst for economic growth and job creation, through increased productivity and competitiveness."⁵⁷

33. More importantly, achieving these objectives - increasing or creating economic growth, wealth and jobs - has been expressly linked, by the Canadian government itself, as well as by other organizations, to the export performance of Canadian industry:

• Industry Canada's International Business Strategy ("CIBS") makes clear that "exports are critical to Canada's economic and social well-being, and serve as the engine that is driving Canada's economy." ⁵⁸
   
• In particular, the CIBS makes explicit the connection between job creation and exports, arguing that "[i]ncrease [sic] trade means new and better jobs for Canadians - it is estimated that for every $1 billion of exports, 11,000 Canadian jobs are created or sustained."⁵⁹
   
• In describing its "Jobs Strategy," the aim of which is "to co-ordinate efforts to create more and better jobs for Canadians," Industry Canada states that "[w]ith one in three Canadian jobs dependent on exports, a critical component of the Jobs Strategy is to encourage more Canadian firms to export . . ."⁶⁰
   
• Industry Canada affirms that "Canada's economic growth and job creation in the past three years have been driven by exports to the United States."⁶¹
   
• In its review of the Aerospace and Defence sector, Industry Canada emphasizes that

[t]he Canadian aerospace and defence industry is a vital and growing component of our national economy. It is a major contributor to research and development (R&D); employment; national income; exports; national defence; and international prestige. It is also one of Canada's leading advanced-technology sectors, and its innovative products are recognized around the world. It ranks fifth among world exporters of aircraft and aircraft parts, and could well achieve fourth place, if present trends continue. However, the continued growth of the aerospace and defence industry, and its contribution to the wealth and job creation in Canada, will depend largely on its ability to capture a growing share of world aerospace and defence markets.⁶²

In other words, to achieve wealth and job creation in Canada - two of TPC's objectives - aerospace exports have been, are, and will be necessary.

• The Canadian Minister of Industry has identified the close relationship between Canadian aerospace exports, Canadian economic growth and the creation of Canadian jobs. According to the Minister, "[a]erospace is a crucial sector for Canada's economy, with exports growing at a rate of 10 per cent per year," with the result that "TPC's investment in [aerospace industry] projects will help increase the global competitiveness of this industry, while supporting jobs in Montreal, in Halifax and across the country, generating economic growth and export dollars."⁶³
   
• The Conference Board of Canada also acknowledges the link between exports and TPC's goals of job creation and increasing economic growth, noting that:
  
  Exports have been a driving force in the [Canadian] economy over the past 10 years, with real growth averaging 7 per cent on an annual basis - well ahead of the average 2 per cent annual real GDP growth. One in three jobs in Canada is dependent on trade. If Canadian business cannot continue to access markets abroad for their products, services and investments, the continued growth of the Canadian economy will be threatened.⁶⁴

34. The significance of the link between export performance and growth, wealth or jobs has not changed with Canada's amendments to TPC. When TPC makes the increase or creation of economic growth, wealth and jobs part of its selection criteria,⁶⁵ its assessment criteria,⁶⁶ or a "strategic benefit" to be demonstrated by an applicant to secure a TPC subsidy,⁶⁷ the Panel should infer that it is implicitly conditioning receipt of that subsidy on export performance. Without committing to export performance, an applicant cannot meet TPC's selection or assessment criteria, cannot demonstrate that it will provide the requisite strategic benefits imposed by the TPC programme, and will not receive a TPC subsidy.

4. Canada Has Failed to Provide Many Documents Necessary to Determine Whether the 'New' TPC Programme Remains de facto Contingent on Export

35. Although Canada has made certain documents regarding the "new" TPC publicly available, many others have not been provided. The Panel's decision regarding TPC's de facto export contingency relied, for example, upon the TPC Business Plan, the TPC Aerospace and Defence Generic Model Agreement, TPC Project Summary Forms, and the two-volume, 350-page TPC Interim Reference Binder.⁶⁸ "Business confidential" documents provided by Canada with its replies to questions from the Panel in the original proceedings, moreover, were also relevant to a review of the question of de facto export contingency. These documents include Programme Forecasts and Progress Reports.⁶⁹

36. Yet, none of these documents has been made publicly available with regard to the "new" TPC. Since Canada has not produced replacements for these documents, the Panel should consider that the original documents still apply, and still, as before, constitute facts demonstrating that TPC subsidies are contingent in fact on export performance, as detailed in paragraph 9.340 of the Panel Report.

37. The "new" TPC Framework Document, moreover, refers to several new documents that Canada has not provided, including the Treasury Board's "repayable contributions policy,"⁷⁰ TPC's "Evaluation Framework,"⁷¹ any "specialized reports" developed for the TPC Advisory Board,⁷² "case evaluation" forms,⁷³ the "Memorandum of Understanding" between TPC and the Industry Sector,⁷⁴ "records of decisions" issued by the Secretariat of the Programmes and Services Board,⁷⁵ minutes of Interdepartmental Advisory Committee meetings and TPC Management Board meetings,⁷⁶ and "sector strategies, technical assessments, priorities and technology roadmaps" developed by the Sector Branches.⁷⁷

1 WT/DS70/R (14 April 1999) (Adopted as modified by the Appellate Body, 20 August 1999) [hereinafter "Panel Report"]; WT/DS70/AB/R (2 August 1999) (Adopted 20 August 1999) [hereinafter "Appellate Body Report"].

2 Panel Report, paras. 10.1 ((b) and (f)), 10.3; Appellate Body Report, para. 221.

3 Brazilian Letter to DSB, 23 November 1999 (Exhibit Bra-3).

4 DSU, Article 21.5.

5 Appellate Body Report, para. 167.

6 Appellate Body Report, para. 19.

7 Submission of Appellant Canada, 13 May 1999, paras. 45-46 (Exhibit Bra-28).

8 Superceded TPC Charter (in TPC Interim Reference Binder, March 1998) (Exhibit Bra-4).

9 TPC Special Operating Agency Framework Document, pg. 6 (Exhibit Bra-5) [hereinafter "TPC Framework Document"].

10 Appellate Body Report, para. 157; Panel Report, para. 9.112.

11 Panel Report, para. 9.312. See also Canada's reply to questions from the Panel, dated 21 December 1998, reply to question 33.

12 TPC Annual Report, 1998-1999, pg. 20 (Exhibit Bra-6).

13 Id. at pg. 21.

14 TPC Annual Report, 1998-1999, pg. 28 (row titled "Total funds available for new contributions in future years," comparing 1999-2000 figure with 2002-2003 figure) (Exhibit Bra-6).

15 Appellate Body Report, para. 167 (emphasis in original).

16 Id.

17 Id. The European Communities initially proposed the de facto contingency prohibition "since experience has shown that government practices may be easily manipulated or modified in order to avoid this [de jure] prohibition ," which on its own is therefore "open to circumvention." Elements of the Negotiating Framework, Submission of the European Communities, MTN.GNG/NG10/W/31 (27 November 1989).

18 Appellate Body Report, para. 167.

19 Appellate Body Report, para. 173.

20 Panel Report, para. 9.325 (footnote 623).

21 TPC Annual Report, 1996-1997, pg. 5 (emphasis added) (Exhibit Bra-8).

22 Industry Canada News Release, 10 January 1997 (emphasis added) (Exhibit Bra-9).

23 Industry Canada News Release, 17 December 1996 (emphasis added) (Exhibit Bra-10).

24 "Think Canada, Think Bottom Line, Think Aerospace Industry, Think Investment," October 1999, pgs. 3, 33 (emphasis added) (Exhibit Bra-11).

25 Id. at pg. 20.

26 Industry Canada, "Results of the 1998/99 Survey of the Canadian Aerospace and Defence Industry," 29 November 1999 (emphasis added) (Exhibit Bra-12).

27 "Canadian Aerospace Suppliers Base Strategy for Change," 25 June 1999, pgs. 1, 16-17 (relevant excerpt included at Exhibit Bra-13).

28 Id. at pg. 17(emphasis added).

29 Aerospace Industries Association of Canada Annual Report, 1999, pg. 4 (Exhibit Bra-14).

30 Id. at pg. 13 (emphasis added).

31 Id. at pg. 12.

32 See Framework Document, pgs. 5-6 (Exhibit Bra-5). See also TPC Terms and Conditions, pg. 1 (Exhibit Bra-15); TPC Investment Application Guide, pgs. 3-4 (Exhibit Bra-16).

33 TPC Current Statistics, 6 December 1999 (Exhibit Bra-17).

34 TPC Annual Report, 1998-1999, pg. 27 (Exhibit Bra-6).

35 Id. at pg. 28 (row titled "Total funds available for new contributions in future years," comparing 1999-2000 figure with 2002-2003 figure).

36 Industry Canada News Release, 18 November 1999, pg. 3 (Exhibit Bra-18).

37 TPC Terms and Conditions, pg. 2 (Exhibit Bra-15); TPC Investment Application Guide, pg. 4 (Exhibit Bra-16).

38 Panel Report, paras. 9.339, 9.340, 9.341.

39 Appellate Body Report, para. 174.

40 Industry Canada News Release, 18 November 1999, pg. 3 (Exhibit Bra-18).

41 Appellate Body Report, para. 167.

42 Id.

43 TPC Current Statistics, 6 December 1999 (emphasis added) (Exhibit Bra-17).

44 TPC Terms and Conditions, pg. 2 (emphasis added) (Exhibit Bra-15); TPC Investment Application Guide, pg. 4 (emphasis added) (Exhibit Bra-16).

45 Id. (emphasis added).

46 TPC website, "Aerospace and Defence," pg. 1 (Exhibit Bra-19).

47 TPC website, "Project Identification and Description," 21 January 1998 (Exhibit Bra-20).

48 Compare Id. with TPC Terms and Conditions, pg. 2 (Exhibit Bra-15).

49 Industry Canada News Release, 18 November 1999, pg. 3 (Exhibit Bra-18).

50 TPC Framework Document, pg. 4 (Under section titled "Program Objectives," Canada states that "[c]ontributions under TPC will be administered in a way that will contribute to: increasing economic growth and creating jobs and wealth; supporting sustainable development . . ." etc.) (Exhibit Bra-5).

51 Id. at pg. 4 (Under section titled "Mandate," Canada states that "TPC is a technology investment fund established to contribute to the achievement of Canada's objectives such as increasing economic growth, jobs and wealth creation, and supporting sustainable development.").

52 TPC Investment Application Guide, pg. 6 (Under section titled "What are the criteria that TPC uses for selecting investments," Canada notes that investment outlines and proposals are assessed on the extent to which they demonstrate, among other things, "that the project contributes to the strategic objectives of the government, including technological and net economic benefits to Canada (increasing economic growth, creating jobs and wealth, and supporting sustainable development).") (Exhibit Bra-16).

53 TPC Terms and Conditions, pg. 2 (Under section titled "Assessment Criteria," Canada states that applications for TPC funds will be assessed according to the extent to which they demonstrate, among other things, "that the project contributes to the strategic objectives of the government, including technological and net economic benefits to Canada.") (Exhibit Bra-15).

54 TPC Investment Application Guide, pg. 8 (Under section titled "What is the format for preparing a TPC investment outline," Canada states that certain information regarding "strategic benefit" must be demonstrated, including "[p]otential economic benefit to Canada (for example, jobs created or maintained, economic growth, wealth creation, sector or supplier development, contribution to sustainable development, new corporate mandates, leveraged investments, strategic alliances, etc.)." (Exhibit Bra-16).

55 Superceded TPC Charter (in TPC Interim Reference Binder, March 1998), pg. 3 (Exhibit Bra-4); TPC Business Plan, 1996-1997, pg. iii (Exhibit Bra-21).

56 Superceded TPC Terms and Conditions (in TPC Interim Reference Binder, March 1998), pg. 1 (Exhibit Bra-22).

57 See, e.g., Industry Canada News Release, 10 January 1997 (Exhibit Bra-9); Industry Canada News Release, 17 December 1996 (Exhibit Bra-10).

58 Industry Canada, CIBS Overview, "Executive Summary," pg. 2 (emphasis added) (Exhibit Bra-23).

59 Id. at pg. 1 (emphasis added).

60 Industry Canada, CIBS Strategic Overview, "International Business Development Priorities," pg. 1 (emphasis added) (Exhibit Bra-24).

61 Industry Canada, CIBS Geographic Overview, pg. 1 (emphasis added) (Exhibit Bra-25).

62 Industry Canada, CIBS Aerospace and Defence, pg. 1 (emphasis added) (Exhibit Bra-26).

63 Industry Canada News Release, 10 January 1997 (emphasis added) (Exhibit Bra-9).

64 Conference Board of Canada, Performance and Potential 1999, "Working Smarter, Not Harder," pg. 107 (footnote omitted) (emphasis added) (Exhibit Bra-27).

65 TPC Investment Application Guide, pg. 6 (Section titled "What are the criteria that TPC uses for selecting investments") (Exhibit Bra-16).

66 TPC Terms and Conditions, pg. 2 (Section titled "Assessment Criteria") (Exhibit Bra-15).

67 TPC Investment Application Guide, pg. 8 (Section titled "What is the format for preparing a TPC investment outline") (Exhibit Bra-16).

68 Panel Report, para. 9.340.

69 These documents were included behind "BCI Tab 1" and "BCI Tab 2," respectively, to Canada's 21 December 1998 replies to questions from the Panel.

70 TPC Framework Document, pg. 7 (Exhibit Bra-5). The press release announcing Canada's implementation strategy suggests that TPC's repayment policies have in fact been changed. Industry Canada News Release, 18 November 1999, pg. 4 ("Repayments will no longer be primarily based on royalties tied to product sales but will take different forms depending on the project . . .") (Exhibit Bra-18).

71 TPC Framework Document, pg. 10 (Exhibit Bra-5).

72 Id.

73 Id. at pg. 18, 20.

74 Id. at pg. 18.

75 Id. at pg. 19.

76 Id.

77 Id. at pg. 20.

Continuation: Section 38.

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