- i) whether the matter was previously the subject of a judicial or administrative proceeding, and
- ii) whether private remedies in connection with the matter are available to the person or organization making the submission and whether they have been pursued.
Article 15: Factual Record
1. If the Secretariat considers that the submission, in the light of any response provided by the Party, warrants developing a factual record, the Secretariat shall so inform the Council and provide its reasons.
2. The Secretariat shall prepare a factual record if the Council, by a two-thirds vote, instructs it to do so.
3. The preparation of a factual record by the Secretariat pursuant to this Article shall be without prejudice to any further steps that may be taken with respect to any submission.
4. In preparing a factual record, the Secretariat shall consider any information furnished by a Party and may consider any relevant technical, scientific or other information:
- (a) that is publicly available;
- (b) submitted by interested non-governmental organizations or persons;
- (c) submitted by the Joint Public Advisory Committee; or
- (d) developed by the Secretariat or by independent experts.
5. The Secretariat shall submit a draft factual record to the Council. Any Party may provide comments on the accuracy of the draft within 45 days thereafter.
6. The Secretariat shall incorporate, as appropriate, any such comments in the final factual record and submit it to the Council.
7. The Council may, by a two-thirds vote, make the final factual record publicly available, normally within 60 days following its submission.
