13. If the last day for delivery of a document to a Contact Unit or Administrative Unit falls on a non-business day in that Party, or on any other day on which such Units are closed, the document shall be delivered on the next business day.
14. Each Party shall provide to the Administrative Unit a list of the non-business days in that Party, as well as the normal business hours of its Contact Units, no later than ten (10) days after the date of acceptance of the last arbitrator appointed.
Treatment of confidential information
15. Where a Party wishes to designate specific information as confidential, it shall enclose such information in double square brackets, include a cover page that clearly states that the document contains confidential information, and identify the relevant pages with a legend to that effect.
16. Pursuant to Article 22.10.6, where a Party submits to the arbitral tribunal a document containing information designated as confidential, it shall, at the request of the other Party, provide a non-confidential summary thereof within thirty (30) days of the request.
17. During and even after the arbitral proceedings, the Parties, their representatives, the arbitrators or any other person who has participated in the arbitral proceedings shall keep confidential the information qualified as such, as well as the deliberations of the arbitral tribunal, the draft award and any comments thereon.
18. The Administrative Unit shall take all reasonable measures necessary to ensure that experts, stenographers and other persons involved in arbitral proceedings safeguard the confidentiality of information qualified as such.
Functioning of arbitral tribunals
19, Once an arbitrator has been appointed pursuant to Article 22.7, the Administrative Unit shall notify the arbitrator by the most expeditious means possible. A copy of the Code of Conduct and a sworn statement of confidentiality and compliance with the Code of Conduct shall be provided to each person appointed to the arbitral tribunal, whether as an arbitrator or an alternate arbitrator, together with the notice. Each person appointed to the arbitral tribunal shall have three (3) days to communicate his or her acceptance, in which case he or she shall return the duly signed affidavit to the Administrative Unit. If the person designated does not communicate his or her acceptance to serve on the arbitral tribunal in writing to the Administrative Unit within the time period indicated, it shall be understood that he or she does not accept the position.
20. The Administrative Unit shall inform the Parties, by the most expeditious means possible, of the response of each person appointed to the arbitral tribunal or of the fact that no response has been received. Once the persons appointed to the arbitral tribunal as arbitrators and alternate arbitrators have communicated their acceptance, the Administrative Unit shall, by the most expeditious means possible, so inform the Parties.
21. Pursuant to Article 22.7.10, any Party may challenge an arbitrator or a prospective arbitrator if it considers that the arbitrator or prospective arbitrator does not meet the requirements set forth in Article 22.7.6.
21.1. Request for Challenge of an Arbitrator or Alternate Arbitrator Appointed by a Party
(a) Any Party that becomes aware of an alleged violation or breach by the arbitrator or alternate arbitrator appointed by the other Party of the requirements for appointment as arbitrator or of the obligations set forth in the Code of Conduct and in Article 22.7.6 may request his or her challenge. The request for challenge shall be reasoned and notified in writing to the other Party, the challenged arbitrator and the arbitral tribunal within fifteen (15) days after the appointment of the arbitrator or after the fact giving rise to the request for challenge has come to the knowledge of the other Party.
(b) The Parties shall attempt to reach an agreement on the challenge within fifteen (15) days following the notification of the request. The arbitrator may, after the challenge has been raised, resign from his or her function, without this implying acceptance of the validity of the reasons for the challenge.
(c) If the Parties are unable to reach an agreement or if the challenged arbitrator does not withdraw, the request for a challenge shall be decided by the chairman of the arbitral tribunal within fifteen (15) days after the expiration of the time limit set forth in (b). In the event that the chairman of the arbitral tribunal has not accepted his designation by the date of expiration of the time limit set forth in (b), the challenge shall be submitted once the chairman of the arbitral tribunal has accepted his designation.
(d) If, pursuant to (b) or (c), the request for disqualification of the original arbitrator is granted or the original arbitrator withdraws, the substitute arbitrator appointed pursuant to Article 22.7 shall act as the original arbitrator. If the challenge concerns an incumbent arbitrator who was an alternate arbitrator, a successful challenge shall entitle the Party that appointed the incumbent arbitrator to appoint a new incumbent arbitrator in accordance with Article 22.7.
21.2. Challenge of the president of the arbitral tribunal
(a) Any Party that becomes aware of an alleged violation or breach by the chairman of the arbitral tribunal of the requirements for appointment as chairman of the arbitral tribunal or of the obligations set forth in the Code of Conduct and Article 22.7.6 may request the removal of the chairman of the arbitral tribunal. The request for disqualification shall be reasoned and notified in writing to the other Party, the chairman of the arbitral tribunal and the arbitral tribunal within fifteen (15) days after the appointment, drawing of lots or knowledge of the fact giving rise to the request for disqualification.
(b) The Parties shall attempt to reach an agreement on the request for a challenge of the chairman of the arbitral tribunal within fifteen (15) days after the notification of the challenge. The chairman of the arbitral tribunal may, after the challenge has been raised, resign from his or her position, without this implying acceptance of the validity of the reasons for the challenge.
(c) If it is not possible to reach agreement or if the challenged arbitrator does not withdraw, the request for challenge shall prevail and the alternate arbitrator shall take the place of the challenged arbitrator. Each Party may make a single request for a challenge of the chairman of the arbitral tribunal. However, a request for a challenge of the presiding arbitrator in which the presiding arbitrator has resigned pursuant to subparagraph (b) shall not be counted as a request for a challenge for purposes of this subsection.
22. The time limits provided for in this Chapter and in these Rules, which are counted from the appointment of the last arbitrator, shall start to run from the date on which the last arbitrator accepted his appointment.
23. The chairman of the arbitral tribunal shall preside at all its meetings. The arbitral tribunal may delegate to its chairman the power to take administrative and procedural decisions.
24. The arbitral tribunal shall conduct its proceedings in person or by any technological means.
25. Only the arbitrators may take part in the deliberations of the arbitral tribunal, unless, after notice to the Parties to the dispute, the arbitral tribunal permits the presence of their assistants,
26. For procedural matters not covered by these Rules, the arbitral tribunal, in consultation with the Parties, may establish supplementary rules of procedure, provided that they do not conflict with the provisions of the Agreement and these Rules. When supplementary rules of procedure are adopted, the presiding arbitrator shall immediately notify the Parties.
Hearings
27. The Parties shall designate their representatives before the arbitral tribunal, and may appoint counsel to defend their rights. Only representatives of the Parties may address the arbitral tribunal.
28. The presiding arbitrator shall fix the place, date and time of the hearing, in consultation with the Parties, subject to Rule 10. The date of the hearing shall be fixed after the Parties have filed their initial and rebuttal written submissions, respectively. The Administrative Unit shall notify the Parties, by the most expeditious means practicable, of the place, date and time of the hearing.
29. Unless the Parties agree otherwise, the hearing shall be held in the capital of the Party complained against.
30. When it considers it necessary, the arbitral tribunal may, with the agreement of the Parties, convene additional hearings.
31. All arbitrators must be present at the hearings, otherwise the hearings cannot take place. The hearings shall be held in person. However, the arbitral tribunal may, with the consent of the Parties, agree to hold the hearing by any other means.
32. All hearings shall be closed to the public. However, where a Party for justified reasons so tequests, and with the agreement of the other Party, such hearings may be open, except when information designated as confidential by one of the Parties is discussed. When hearings are open, unless the Parties agree otherwise, the presence of the public shall be ensured through simultaneous transmission by closed-circuit television or any other technological means.
33. Where a Party wishes to submit confidential information at the hearing, it shall so advise the Administrative Unit at least ten (10) days prior to the hearing. The Administrative Unit shall take the necessary steps to ensure that the hearing is conducted in accordance with Rule 32.
34. Unless the Parties agree that the hearing shall be open, only those present at the hearings may be present:
(a) representatives of the Parties, officials and advisers designated by them, and
(b) referee assistants if required.
The presence of any person who could reasonably be expected to benefit from access to confidential information is excluded in all circumstances.
35. The Parties may object to the presence of any of the persons referred to in Rule 34 no later than two (2) days before the hearing, stating the reasons for such objection. The objection shall be decided by the arbitral tribunal prior to the commencement of the hearing.
36. No later than five (5) days before the date of the hearing, each Party shall submit to the Administrative Unit a list of the persons who will attend the hearing as representatives and other members of its delegation.
37. The hearing shall be conducted by the presiding arbitrator, who shall ensure that the Parties are given equal time to present their oral arguments.
38. The hearing will be conducted in the following order:
(a) pleadings
(i) the Complaining Party's pleading, and (ii) The Complained Party's pleading. (b) replies and rejoinders
(ii) reply of the complaining Party, and
(iii) rejoinder of the Party complained against.
39. The arbitral tribunal may put questions to any Party at any time during the hearing.
40. The Administrative Unit shall adopt the necessary measures to keep a system for recording oral presentations. Such record shall be made by any means, including transcription, that ensures the preservation and reproduction of its contents. At the request of either Party or the arbitral tribunal, the Administrative Unit shall provide a copy of the record.
Supplementary documents
41. The arbitral tribunal may put questions in writing to any Party at any time during the proceedings, and shall determine the time period within which it shall deliver its answers.
42. Each Party shall be given an opportunity to comment in writing on the answers referred to in Rule 41 within such period of time as the arbitral tribunal may prescribe.
43. Notwithstanding the provisions of Rule 10, within ten (10) days after the date of the conclusion of the hearing, the Parties may submit supplemental written submissions regarding any matter that arose during the hearing.
Burden of proof in respect of incompatible measures and defences
44. Where the complaining Party considers that a measure of the Party complained against is inconsistent with its obligations under the Agreement; or that the Party complained against has otherwise failed to comply with its obligations under the Agreement, it shall have the burden of proving such inconsistency or failure, as the case may be.
45. Where the Party complained against considers that a measure is justified by an exception under the Agreement, it shall have the burden of proving this.
46. The Parties shall offer or submit evidence with the initial and rebuttal submissions in support of the arguments made in those submissions. The Parties may also submit additional evidence at the time of their rebuttal and rejoinder submissions.
Ex parte contacts
47. The arbitral tribunal shall not meet or contact a Party in the absence of the other Party.
48. No arbitrator may discuss any matter relating to the arbitration proceedings with a Party in the absence of the other Party and the other arbitrators.
49. In the absence of the Parties, an arbitral tribunal may not meet or have discussions concerning the subject matter of the arbitral proceedings with a person or entity that provides information or technical advice.
Information and technical advice
50. The arbitral tribunal may not request information or technical advice pursuant to Article 22.10.7, whether at the request of a Party or on its own initiative, later than ten (10) days after the date of the hearing, unless the Parties agree otherwise.
51. Within five (5) days after the date of the arbitral tribunal's request to obtain the agreement of the Parties pursuant to Article 22.10.7 and, if there is such agreement, the arbitral tribunal shall select the person or entity to provide such information or technical advice.
52. The arbitral tribunal shall select experts or advisors strictly on the basis of their expertise, objectivity, impartiality, independence, reliability and sound judgment.
53. The arbitral tribunal may not select as an expert or advisor a person who has, or whose employers, partners, associates or relatives have, a financial, personal or other interest which may affect his or her independence and impartiality in the proceedings.
54. The arbitral tribunal shall deliver a copy of its request for information or technical advice to the Administrative Unit, which in turn shall deliver it by the most expeditious means possible to the Parties and to the persons or entities that are to provide the information or technical advice.
55. The persons or entities shall deliver the information or technical advice to the Administrative Unit within the time period established by the arbitral tribunal, which in no event shall exceed ten (10) days from the date of receipt of the arbitral tribunal's request. The Administrative Unit shall deliver to the Parties and to the arbitral tribunal, by the most expeditious means possible, the information provided by the experts or technical advisors.
56. Either Party may submit comments on the information provided by the experts or technical advisors within five (5) days from the date of delivery. Such comments shall be submitted to the Administrative Unit, which shall, no later than the following day, deliver them to the other Party and to the arbitral tribunal.
57. Where a request for information or technical advice is made, the Parties may agree to suspend the arbitral proceedings for a period of time to be determined by the arbitral tribunal in consultation with the Parties.
Calculation of deadlines
58. All time limits set forth in this Chapter, in these Rules or by the arbitral tribunal shall be calculated from the day after the notice, request or document relating to the arbitral proceedings has been received.
59. In the event that any action is required to be taken, before or after a date or event, the day of that date or event shall not be included in the computation of the time limit.
60. Where the period begins or expires on a non-business day, the provisions of Rule 13 shall apply.
61. All time limits set forth in this Chapter and these Rules may be modified by mutual agreement of the Parties.
Contact unit
62. Each Party shall designate a Contact Unit to provide administrative support to the arbitral tribunal. Once designated, its address shall be communicated to the Administrative Commission no later than sixty (60) days after the date of entry into force of this Agreement. Administrative Unit
63. The Administrative Unit shall have the following functions:
(a) provide administrative assistance to the arbitral tribunal, to the arbitrators and their assistants, to persons or entities selected by the arbitral tribunal to provide information or technical advice and to other persons involved in the arbitral proceedings;
(b) make available to the arbitrators, upon acceptance of their appointment, documents relevant to the arbitral proceedings;
(c) keep a copy of the complete file of each arbitration proceeding;
(d) inform the Parties of the amount of costs and other expenses associated with the arbitral proceedings that each Party will bear; and
(e) organize logistical issues related to the hearings.
Costs and other associated expenses
64. Each Party shall bear the cost of the arbitrator it appoints or should have appointed pursuant to Article 22.7, as well as the cost of any assistants, travel, lodging and other expenses associated with the conduct of the proceeding. Unless the Parties agree otherwise, the remuneration of the arbitrators shall be paid according to the WTO scale of payments for non-governmental arbitrators in a WTO dispute as of the date on which the complaining Party requests the establishment of the arbitral tribunal under Article 22.6.
65. The costs of the presiding arbitrator, his or her assistants, if any, travel, lodging and other expenses associated with the proceedings shall be borne by the Parties in equal proportions.
66. Each arbitrator shall keep a complete record of the expenses incurred and submit a settlement, together with supporting documents, for the purpose of determining their appropriateness and subsequent payment. The same shall apply to assistants and experts.
67. The amount of the fees of the arbitrators, their assistants and experts, as well as the expenses that may be authorized, shall be established by the Administrative Commission.
68. Where the chairman of the arbitral tribunal or an arbitrator requires one or more assistants for the conduct of the arbitral tribunal's work, this shall be agreed upon by both parties.
Compliance Review and Suspension of Benefits Arbitral Tribunal
69. Without prejudice to the foregoing rules, in the case of a proceeding conducted under Article 22.16 the following shall apply:
(a) where a Party requests the establishment of the arbitral tribunal, it shall deliver its initial written statement within five (5) days after the constitution of the arbitral tribunal pursuant to Article 22.16;
(b) the other Party shall deliver its written counter-submission within fifteen (15) days of the date of receipt of the initial written submission, and
(c) subject to the time limits set forth in the Agreement and these Rules, the arbitral tribunal shall establish the time limit for the delivery of any supplementary documents, ensuring that each Party has an equal opportunity to submit documents.
Procedure for selecting the chairman of the arbitral tribunal in the event of non-appointment
70. Unless the Parties agree otherwise, the following procedure shall apply for the purpose of selecting the presiding arbitrator pursuant to Article 22.7:
(a) the drawing of lots shall take place in the capital of the complaining Party;
(b) the complaining Party shall notify the Party complained against of the date of the drawing of lots at least five (5) days in advance. The Party complained against shall designate a representative to be present during the drawing of lots;
(c) the complaining Party shall provide a container with envelopes containing the names of the candidates for the presiding arbitrators of the arbitral tribunal, in accordance with Article 22.7. The Party complained against shall check each envelope before it is sealed for the drawing of lots;
(d) after all the envelopes have been sealed and placed in the container, the representative of the Party complained against shall draw one of the envelopes, at random and without any possibility of discerning the identity of the candidate whose name is on the envelope;
(e) the candidate whose name is on the envelope drawn shall be the chairman of the arbitral tribunal.
(f) after the selection of the chairman of the arbitral tribunal, the procedure set out in this Rule shall apply to the selection of his alternate.
71. If, after the notification referred to in Rule 70(b), the representative of the Party complained against fails to appear at the drawing of lots, or if such representative refuses to draw an envelope from the container in accordance with Rule 70(d), the complaining Party shall draw the envelope.
72. Ifa Party fails to submit its list of candidates, the president of the arbitral tribunal shall be appointed by drawing lots from the list submitted by the other Party.
Procedure for selecting an arbitrator in case of non-appointment
73. Ifa Party fails to appoint its arbitrator within the time period provided for in Article 22.7, the arbitrator shall be appointed by the other Party from the indicative list of WTO panelists for the Party that failed to appoint the arbitrator. In the event that candidates from that list are not available, the arbitrator shall be selected from the indicative list of WTO panelists for any Member other than a Party.
Annex 22.2. Code of Conduct for Arbitral Dispute Resolution
Preamble
PROCEEDINGS
Whereas the Parties attach paramount importance to the integrity and fairness of proceedings conducted pursuant to this Chapter, the Parties establish this Code of Conduct pursuant to Article 22.7.6(d).
1. Definitions
For purposes of this Code of Conduct:
(a) arbitrator means the person appointed by the Parties under Article 22.7 to serve on an arbitral tribunal and who has accepted his or her appointment;
(b) assistant means a person who provides support to the referee;
(c) Affidavit means the Affidavit of Confidentiality and Code of Conduct Compliance, which is set forth in the Appendix to this Code of Conduct;
(d) expert means a person who provides technical information or advice in accordance with Rules 50 to 57 of Annex 22.1;
(e) family member means the spouse or cohabitant of the arbitrator, his or her relatives by blood and by affinity, and the spouses of such persons;
(f) procedure means, unless otherwise specified, the procedure of an arbitral tribunal under this Chapter;
(g) arbitral tribunal means the arbitral tribunal established under Article 22.6;
(h) Contact Unit means the office that both Parties designate to provide administrative support to the arbitral tribunal, pursuant to Rule 62 of Annex 22.1, and
(i) Administrative Unit means the Designated Unit of the Party complained against, pursuant to Rule 63 of Annex 22.1.
2. Current Principles
(a) Arbitrators shall be independent and impartial and shall avoid direct or indirect conflicts of interest. They shall not receive instructions from any government or governmental or non-governmental organization.
(b) Arbitrators and former arbitrators shall respect the confidentiality of the proceedings of the arbitral tribunal.
(c) Arbitrators must disclose the existence of any interest, relationship or matter that could influence their independence or impartiality and that might reasonably create an appearance of impropriety or bias. An appearance of impropriety or bias exists when a reasonable person, with knowledge of all relevant circumstances that a reasonable inquiry might reveal, would conclude that an arbitrator's ability to perform his or her duties with integrity, impartiality and competence is impaired.
(d) This Code of Conduct does not state under what circumstances the Parties shall disqualify an arbitrator.
3. Responsibilities towards the Procedure
Arbitrators and former arbitrators shall avoid being or appearing improper and shall maintain high standards of conduct to preserve the integrity and impartiality of the dispute resolution process.
4. Disclosure Obligations
(a) Throughout the proceedings, arbitrators have a continuing obligation to disclose interests, relationships and matters that may be linked to the integrity or fairness of the arbitration dispute resolution proceedings,
(b) As expeditiously as possible, after it becomes known that a Party has appointed a person as an arbitrator to serve on the arbitral tribunal, the Administrative Unit shall provide such person with a copy of this Code of Conduct and the Affidavit.
(c) The person appointed to the arbitral tribunal shall have three (3) days to accept his or her appointment, in which case he or she shall return the duly signed Affidavit to the Administrative Unit. The person appointed to the arbitral tribunal shall disclose any interest, relationship or matter that might influence his or her independence or impartiality or that might reasonably create the appearance of impropriety or bias in the proceeding. To this end, the person appointed to the arbitral tribunal shall make all reasonable efforts to become aware of such interests, relationships and matters. For this purpose, he or she shall disclose, at a minimum, the following interests, relationships and matters:
(i) any financial or personal interest of yours in:
(A) the procedure or its outcome, and
(B) an administrative proceeding, a domestic judicial proceeding or other international dispute settlement proceeding involving issues that can be decided in the proceeding for which it is being considered;
(ii) any financial interest of your employer, partner, associate or family member in:
(A) the procedure or its outcome, and
(B) an administrative proceeding, domestic judicial proceeding or other international dispute settlement proceeding involving issues that can be decided in the proceeding for which it is being considered;
(iii) any current or former relationship of a financial, business, professional, family or social nature with any of the Parties to the proceeding or their counsel or any such relationship involving their employer, partner, associate or family member, and
(iv) public advocacy or legal or other representation on any matter in controversy in the proceeding or involving the same goods or services.
(d) Once appointed, the arbitrator shall continue to make every reasonable effort to become aware of any interest, relationship or matter referred to in subparagraph (c) and shall disclose them. The duty of disclosure is an ongoing duty requiring arbitrators to disclose any interests, personal relationships and matters that may arise at any stage of the proceeding.
(e) If there is any doubt as to whether an interest, personal relationship or matter should be disclosed under subparagraph (c) or (d), an arbitrator must choose in favour of disclosure. Disclosure of an interest, personal relationship or matter is without prejudice to whether the interest, personal relationship or matter is covered by subparagraphs (c) or (d), or whether it warrants cure under subsection 6(g) or disqualification.
(f) The disclosure obligations set forth in subparagraphs (a) through (e) should not be interpreted in such a way that the burden of a detailed disclosure makes that it is impractical to serve as arbitrators individuals from the legal or business community, thus depriving the Parties of the services of those who might be best qualified to serve as arbitrators.
5. Performance of duties by arbitrators
(a) Bearing in mind that the prompt settlement of disputes is essential to the effective functioning of this Agreement, the arbitrators shall perform their duties in a thorough and expeditious manner throughout the course of the proceedings.
(b) The arbitrators shall ensure that the Administrative Unit can, at all reasonable times, contact the arbitrators in order to carry out the work of the arbitral tribunal.
(c) Arbitrators shall perform their duties fairly and diligently.
(d) Arbitrators shall comply with the provisions of this Chapter.
(e) An arbitrator shall not deny the other arbitrators on the tribunal the opportunity to participate in all aspects of the proceedings.
(f) Arbitrators shall not make ex parte contacts in connection with the proceeding pursuant to Rule 47 of Schedule 22.1.
(g) Arbitrators shall consider only such matters presented in the proceedings as are necessary to make a decision and shall not delegate their decision making duty to any other person.
(h) Arbitrators shall take the necessary steps to ensure that their assistants comply with paragraphs 3, 4, 5(d), 5(f) and 8 of this Code of Conduct.