Appendix M-3 Dispute Resolution

Technical Advisory Panel

DEFINITIONS

1. In this Appendix:
   
   

   1. "Chapter"

      means the Dispute Resolution Chapter;
      
      

   2. "member"

      means a member of the panel;
      
      

   3. "panel"

      means a technical advisory panel appointed under this Appendix;
      
      

   4. "party"

      means a participating Party to a reference under this Appendix;
      
      

   5. "reference"

      means a reference of a disagreement to the panel; and
      
      

   6. "section"

      means a section in this Appendix.

GENERAL

2. A question of law may not be referred to a panel.
   
   
3. A reference commences on the date the Parties directly engaged in the disagreement have agreed in writing to use a technical advisory panel under paragraph 24 of the Chapter.

APPOINTMENT OF PANEL MEMBERS

4. A panel will have three members unless the parties agree on a panel of five members.
   
   
5. A member will be skilled and knowledgeable in the technical or scientific subject matter or issues of the disagreement.
   
   
6. If there are two parties and the panel will have:
   
   
   1. three members, each party will appoint one member and the two appointed members will jointly appoint the third member; or
      
      
   2. five members, each party will appoint two members and the four appointed members will jointly appoint the fifth member.
      
      
7. If there are three parties and the panel will have:
   
   
   1. three members, each party will appoint one member; or
      
      
   2. five members, each party will appoint one member and the three appointed members will jointly appoint the fourth and fifth members.
      
      
8. In the appointment procedures under sections 6 and 7, if:
   
   
   1. a party fails to appoint the required number of members within 30 days after commencement of the reference; or
      
      
   2. the appointing members fail to appoint the required number of additional members within 15 days after the last appointing member was appointed
      
      
   the required appointments will be made by the neutral appointing authority on the written request of a party that is copied to the other parties.

END OF APPOINTMENT

9. The appointment of a member who is jointly appointed by the parties, by the appointing members, or by the neutral appointing authority, terminates if:
   
   
   1. the member withdraws from office for any reason; or
      
      
   2. the parties agree to the termination.
      
      
10. The appointment of a member appointed by one party, or by the neutral appointing authority in place of the party, terminates if:
    
    
    1. the member withdraws from office for any reason; or
       
       
    2. the appointing party terminates the appointment.
       
       
11. If the appointment of a member jointly appointed by the parties, by the appointing members, or by the neutral appointing authority in place of the parties or members, terminates, a replacement member will be appointed under section 6 or 7, as applicable, within the required time commencing from the termination of the former member's appointment.
    
    
12. Subject to section 13, if the appointment of a member appointed by one party or by the neutral appointing authority in place of the party terminates, a replacement member will be appointed under section 6 or 7, as applicable, within the required time commencing from the termination of the former member's appointment.
    
    
13. A party may elect not to replace a member it had appointed but the party may not withdraw from the reference except as permitted under sections 31 to 35.
    
    

TERMS OF REFERENCE

14. Not more than 15 days after the appointment of the last member of a panel, the parties must provide the panel with written terms of reference that set out at least the following:
    
    
    1. the parties to the disagreement;
       
       
    2. the subject matter or issues of the disagreement;
       
       
    3. the kind of assistance that the parties request from the panel, including giving advice, making determinations, finding facts, conducting, evaluating and reporting on studies and making recommendations;
       
       
    4. the time period within which the parties request the assistance to be provided;
       
       
    5. the time periods or stages of the reference at the conclusion of which the panel must provide the parties with written interim reports on the panel's progress on the referral and on expenditures under the budget described in section 16 as they relate to that progress;
       
       
    6. the time within which the panel must provide the parties with the budget described in section 16; and
       
       
    7. any limitations on the application of sections 36 to 42 to the reference.
       
       
15. The parties may discuss the proposed terms of reference with the panel before they are finally settled.
    
    
16. Within the time referred to in section 14(f), the panel will provide the parties with a budget for the costs of conducting the reference, including:
    
    
    1. fees to be paid to the members who have been jointly appointed by the parties, or by appointing members;
       
       
    2. costs of required travel, food and accommodation of members who have been jointly appointed by the parties, or by appointing members;
       
       
    3. costs of any required administrative assistance; and
       
       
    4. costs of any studies.
       
       
17. The parties will consider the budget submitted by the panel and approve that budget with any amendments agreed by the parties before the panel undertakes any activities under the reference.
    
    
18. The parties are not responsible for any costs incurred by the panel that are in excess of those approved under section 17, and the panel is not authorized to incur any costs beyond that amount without obtaining prior written approval from all the parties.
    
    
19. The parties may amend the written terms of reference or the budget from time to time as they consider necessary, or on recommendation of the panel.

CONDUCT OF REFERENCE TO PANEL

20. The parties will:
    
    
    1. cooperate fully with the panel;
       
       
    2. comply with any requests made by the panel as permitted or required under this Appendix; and
       
       
    3. give prompt attention to and respond to all communications from the panel.
       
       
21. Subject to any limitations or requirements in the terms of reference given and the limits of the budget approved under sections 17 to 19, the panel may conduct its reference using any procedure it considers necessary or appropriate, including holding a hearing.
    
    
22. If a hearing is held, the hearing must be conducted as efficiently as possible and in the manner the panel specifies, after consultation with the parties.
    
    
23. If a hearing is held, the panel must give the parties reasonable written notice of the hearing date, which notice must, in any event, be not less than seven days.
    
    
24. No transcript or recording will be kept of a hearing, but this does not prevent a person attending the hearing from keeping notes of the hearing.
    
    
25. The legal rules of evidence do not apply to a hearing before the panel.
    
    
26. The panel will give the parties the interim and final written reports specified in its terms of reference within the required times.
    
    
27. A report of the panel is not binding on the parties.

PANEL BUSINESS

28. A panel will appoint one of its members to act as chair of the panel.
    
    
29. The chair of a panel is responsible for all communications between the panel, the parties and any other person to whom the panel wishes to communicate, but this does not preclude a member from communicating informally with a party.
    
    
30. A panel will make every reasonable effort to conduct its business, and fulfill its obligations under its terms of reference, by consensus, but:
    
    
    1. if consensus is not possible, by actions approved by a majority of its members; or
       
       
    2. if a majority is not possible, by actions approved by the chair of the panel.

RIGHT TO WITHDRAW

31. If one of two parties to a reference, or two of three parties to a reference, are not satisfied with the progress of the reference:
    
    
    1. after receipt of an interim report; or
       
       
    2. as a result of the panel's failure to submit an interim report within the required time
       
       
    the dissatisfied party or parties, as the case may be, may give written notice to the panel and the other party that the party or parties are withdrawing from the reference and that the reference is terminated.
    
    
32. If one of three parties to a reference is not satisfied with the progress of the reference:
    
    
    1. after receipt of an interim report; or
       
       
    2. as a result of the panel's failure to submit an interim report within the required time
       
       
    the dissatisfied party may give written notice to the panel and the other parties that it is withdrawing from the reference.
    
    
33. Two parties who receive a notice under section 32 will advise the panel in writing that they have agreed:
    
    
    1. to terminate the reference; or
       
       
    2. to continue the reference.
       
       
34. If no party gives a notice under sections 31 or 32 within 10 days after:
    
    
    1. receipt of an interim report; or
       
       
    2. the time required to submit an interim report
       
       
    all parties will be deemed to be satisfied with the progress of the reference until submission of the next required interim report.
    
    
35. No party may withdraw from a reference except as permitted under sections 31 to 34.

CONFIDENTIALITY

36. The parties may, by agreement recorded in the terms of reference of the panel in section 14, limit the application of all or any part of sections 37 to 42 in a reference.
    
    
37. In order to assist in the resolution of the disagreement, a reference will not be open to the public.
    
    
38. The parties, and all persons, will keep confidential:
    
    
    1. all oral and written information disclosed in the reference; and
       
       
    2. the fact that this information has been disclosed.
       
       
39. The parties will not rely on or introduce as evidence in any proceeding, whether or not that proceeding relates to the subject matter of the reference, any oral or written information disclosed in or arising from the reference, including:
    
    
    1. any documents of other parties produced in the course of the reference that are not otherwise produced or producible in that proceeding;
       
       
    2. any views expressed, or suggestions made, in respect of a possible settlement of the disagreement;
       
       
    3. any admissions made by any party in the course of the reference, unless otherwise stipulated by the admitting party;
       
       
    4. the fact that any party has indicated a willingness to make or accept a proposal or recommendation for settlement; and
       
       
    5. any reports of the panel.
       
       
40. Sections 38 and 39 do not apply:
    
    
    1. in any proceeding for the enforcement or setting aside of an agreement resolving the disagreement that was the subject of the reference;
       
       
    2. if the adjudicator in any proceeding determines that the interests of the public or the administration of justice outweigh the need for confidentiality; or
       
       
    3. if the oral or written information referred to in those sections is in the public forum.
       
       
41. A member, or anyone retained or employed by the member, is not compellable in any proceeding to give evidence about any oral or written information acquired or opinion formed by that person as a result of the reference, and all parties will oppose any effort to have that person or that information subpoenaed.
    
    
42. A member, or anyone retained or employed by the member, is disqualified as a consultant or expert in any proceeding relating to the disagreement, including any proceeding that involves persons not a party to the reference.

ATTEMPT TO RESOLVE AFTER REPORT

43. Within 21 days after receipt of the final written report of a panel, the parties will meet and make an effort to resolve the disagreement taking into account the report of the panel or any other considerations.
    
    
44. If the parties and the panel agree, the members of a panel may attend the meeting under section 43, and provide any necessary assistance to the parties.

TERMINATION OF REFERENCE TO PANEL

45. A reference is terminated when any of the following occurs:
    
    
    1. the reference has been terminated as permitted under section 31 or 33;
       
       
    2. the expiration of 30 days after receipt of the final report of the panel, or any longer period agreed by the parties in writing; or
       
       
    3. the parties directly engaged in the disagreement sign a written agreement resolving the disagreement.

COSTS

46. A party is not responsible for sharing any costs of the reference that were incurred after the date that party notified the other parties, under section 32, of its withdrawal from the reference