(c) in accordance with the objectives of this Agreement, explore opportunities for the further expansion of trade and promotion of investment between the Parties;
(d) consider any proposal to amend this Agreement and make recommendations to the Parties; and
(e) consider any other matter that may affect the operation of this Agreement.
2. The FTA Joint Commission may:
(a) establish additional committees or ad hoc working groups as necessary and refer matters to any committee or working group for advice;
(b) further the implementation of this Agreement through implementing arrangements;
(c) seek to resolve any differences that may arise regarding the interpretation or application of this Agreement, without prejudice to the dispute settlement mechanism in accordance with Chapter 16 (Dispute Settlement);
(d) seek the advice of non-governmental persons or groups on any matter falling within its responsibilities where this would assist the FTA Joint Commission in discharging its responsibilities; and take such other action in the exercise of its functions as the Parties may agree.
Article 3. Rules of Procedure of the FTA Joint Commission
1. The FTAJoint Commission shall, by mutual agreement, take decisions and make recommendations on any matter within its functions, as set out in Article 2 (Functions of the FTA Joint Commission). If a representative of a Party in the FTA Joint Commission has accepted a decision subject to the fulfilment of the Party's internal legal requirements, the decision shall enter into force on the date which the Party notifies that its internal legal requirements have been fulfilled, unless the decision itself specifies a later date for its entry into force. A Party may apply a decision of the FTA Joint Commission provisionally until such decision enters into force for it, subject to its internal legal requirements.
2. The FTA Joint Commission shall meet within one year from the entry into force of this Agreement. Thereafter, it shall meet whenever necessary but normally once every two years. Its meetings shall be chaired successively by each Party. The FTA Joint Commission shall establish its rules of procedure.
3. Each Party may request at any time, through a notice in writing to the other Party, that a special meeting of the FTA Joint Commission be held. Such a meeting shall take place within 30 days from the date of receipt of the request, unless the Parties otherwise agree.
4. The FTA Joint Commission shall ordinarily meet at the level of senior officials, unless there is a request by either Party to convene the meeting at a higher level.
5. Subject to paragraph 4, each Party shall be responsible for the composition of its delegation to the FTA Joint Commission.
6. The Party chairing a session of the FTA Joint Commission shall provide any necessary administrative support for such session, and shall record any decision taken by the FTA Joint Commission, copies of which shall be provided to the other Party.
Article 4. Contact Point
For the purpose of facilitating communication between the Parties on any matter covered by this Agreement, the following contact points are designated:
(a) for Hong Kong, China: Trade and Industry Department; and
(b) for Georgia: Ministry of Economy and Sustainable Development.
Chapter 16. DISPUTE SETTLEMENT
Article 1. Cooperation
The Parties shall at all times endeavour to cooperate with respect to the interpretation and application of this Agreement, and shall when a dispute arises, make every attempt through cooperation and consultations to arrive at a mutually satisfactory solution of any matter that might affect the operation of this Agreement.
Article 2. Scope of Application
Unless otherwise provided in this Agreement, whenever a Party considers that a measure of the other Party is inconsistent with its obligation under this Agreement or the other Party has failed to carry out its obligations under this Agreement, this Chapter shall apply.
Article 3. Choice of Forum
1. Where a dispute regarding the same matter arises under this Agreement and under the WTO Agreement or other agreements including another free trade agreement to which both Parties are party, the complaining Party may select the forum in which to settle the dispute.
2. Once the complaining Party has selected a forum under any of the agreements referred to in paragraph 1, the forum selected shall be used to the exclusion of other fora.
Article 4. Consultations
1. The Parties shall make every attempt to arrive at a mutually satisfactory solution of any dispute through consultations under this Article.
2. The request for consultations shall be submitted in writing and shall set out reasons for the request, including identification of the measure at issue and indication of the legal basis for the complaint. The complaining Party shall deliver the request to the Party complained against.
3. If a request for consultations is made, the Party complained against shall reply to the request within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of not more than:
(a) 15 days after the date of receipt of the request for urgent matters, including those concerning perishable goods; or
(b) 30 days after the date of receipt of the request for all other matters,
with a view to reaching a mutually satisfactory solution.
4. If the Party complained against does not respond within 10 days or enter into consultations within the timeframes referred to in paragraph 3, then the complaining Party may proceed directly to request the establishment of an arbitral tribunal (hereinafter referred to as "Arbitral Tribunal") in accordance with this Chapter.
5. The consultations shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
Article 5. Good Offices, Conciliation or Mediation
1. The Parties may at any time agree to good offices, conciliation or mediation. They may begin, continue and be terminated at any time, including while proceedings of an Arbitral Tribunal established in accordance with this Chapter are in progress.
2. Proceedings involving good offices, conciliation and mediation, and in particular positions taken by the Parties during those proceedings, shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
Article 6. Establishment of Arbitral Tribunal
1. The complaining Party may request in writing the establishment of an Arbitral Tribunal if:
(a) the consultations referred to in Article 4 (Consultations) fail to resolve a dispute within:
(i) 30 days after the date of receipt of the request for consultations regarding urgent matters, including those concerning perishable goods; or
(ii) 60 days after the date of receipt of the request for consultations regarding all other matters; or
(b) paragraph 4 of Article 4 (Consultations) applies.
2. The complaining Party shall indicate in the request whether consultations were held, identify the specific measure at issue and provide a brief summary of the factual and legal basis of the complaint sufficient to present the problem clearly, and shall deliver the request to the Party complained against.
3. The date of the establishment of the Arbitral Tribunal shall be the date on which the last arbitrator is appointed.
Article 7. Composition of Arbitral Tribunal
1. An Arbitral Tribunal shall comprise three members.
2. Within 15 days after the date of receipt of the request to establish an Arbitral Tribunal, each Party shall designate one member of the Arbitral Tribunal.
3. The Parties shall designate by mutual agreement the third arbitrator within 30 days after the date of receipt of the request to establish an Arbitral Tribunal. The arbitrator so designated shall chair the Arbitral Tribunal.
4. If any member of the Arbitral Tribunal has not been designated under paragraph 2 or paragraph 3, following 30 days after the date of receipt of the request to establish an Arbitral Tribunal, the Director-General of the WTO shall, at the request of either Party, designate the relevant member within 30 days of the request to the Director-General of the WTO. In the event that the Director-General of the WTO is a national or permanent resident of any Party, the Deputy Director-General or the officer next in seniority who is not a national or permanent resident of any Party shall be requested to make the necessary designations.
5. The chair of the Arbitral Tribunal shall not be a national or permanent resident of any Party, nor be employed by either Party.
6. All arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgment;
(c) not have dealt with the matter under dispute in any capacity;
(d) be independent of, and not be affiliated with or take instructions from, either Party; and
(e) comply with a code of conduct in conformity with the rules established in the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes adopted by the WTO Dispute Settlement Body on 11 December 1996.
7. If an arbitrator appointed under this Article resigns or becomes unable to act, a substitute arbitrator shall be appointed within 15 days in accordance with the selection procedure as prescribed for the appointment of the original arbitrator and the substitute arbitrator shall have all the powers and duties of the original arbitrator. The work of the Arbitral Tribunal shall be suspended during the appointment of the substitute arbitrator.
Article 8. Function of Arbitral Tribunal
1. The function of the Arbitral Tribunal is to make an objective assessment of the matter before it, including an examination of the law and facts of the case and the applicability of and conformity with this Agreement.
2. Where an Arbitral Tribunal concludes that a measure is inconsistent with this Agreement or the Party complained against has failed to carry out its obligations under this Agreement, it shall recommend that the Party complained against brings the measure into conformity with this Agreement or complies with its obligations under this Agreement.
3. The Arbitral Tribunal shall interpret this Agreement in accordance with customary rules of interpretation of public international law. The Arbitral Tribunal, in its findings and recommendations, cannot add to or diminish the rights and obligations provided in this Agreement.
Article 9. Rules of Procedure of Arbitral Tribunal
1. Unless the Parties otherwise agree, the arbitral proceedings shall be conducted in accordance with Annex 16- 1 (Rules of Procedure of Arbitral Tribunal).
2. Apart from the rules of procedure set out in this Article and Annex 16-1 (Rules of Procedure of Arbitral Tribunal), the Arbitral Tribunal may, in consultation with the Parties, adopt additional rules of procedure, as it considers appropriate, provided they are not contrary to the provisions of this Chapter and Annex 16-1 (Rules of Procedure of Arbitral Tribunal).
3. The Arbitral Tribunal shall take its decisions by consensus. Where an Arbitral Tribunal is unable to reach consensus, it may take its decisions by majority vote. Arbitrators may furnish separate opinions on matters not unanimously agreed. The Arbitral Tribunal shall indicate separate opinions of the arbitrators on matters not unanimously agreed in its reports, without disclosing which arbitrators are associated with majority or minority opinions. All opinions expressed in the reports of the Arbitral Tribunal by individual arbitrators shall be anonymous.
4. Unless the Parties agree otherwise within 20 days from the date of the establishment of the Arbitral Tribunal, the terms of reference for the Arbitral Tribunal shall be as follows:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an Arbitral Tribunal pursuant to Article 6 (Establishment of Arbitral Tribunal) and to make findings of law and facts and if applicable, make recommendations, together with the reasons therefor, for the resolution of the dispute."
5. After consulting the Parties, the Arbitral Tribunal shall, as soon as practicable and whenever possible within 15 days from the date of its establishment, fix the timetable for the arbitral proceedings.
6. Unless the Parties agree otherwise, each Party shall bear the costs of its appointed arbitrator and its own expenses. The costs of the chair of the Arbitral Tribunal and other expenses associated with the conduct of the arbitral proceedings shall be borne by both Parties in equal shares.
Article 10. Suspension or Termination of Proceedings
1. The Parties may agree that the Arbitral Tribunal suspends its work at any time for a period not exceeding 12 months from the date of such agreement. In such event, the Parties shall jointly notify the chair of the Arbitral Tribunal. If the work of the Arbitral Tribunal has been suspended for more than 12 months, the terms of reference for the Arbitral Tribunal shall lapse unless the Parties otherwise agree.
2. The Parties may agree to terminate the proceedings of an Arbitral Tribunal by jointly notifying the chair of the Arbitral Tribunal at any time before the issuance of the final report to the Parties.
Article 11. Reports of Arbitral Tribunal
1. The reports of the Arbitral Tribunal shall be drafted without the presence of the Parties. The Arbitral Tribunal shall base its reports on the relevant provisions of this Agreement, the submissions and arguments of the Parties and any other information provided to the Arbitral Tribunal pursuant to paragraph 14 of Annex 16-1 (Rules of Procedure of Arbitral Tribunal).
2. The Arbitral Tribunal shall present its draft report to the Parties within 90 days after the date of its establishment or in cases of urgency, including those concerning perishable goods, within 30 days after the date of its establishment. In exceptional cases, if the Arbitral Tribunal considers that it cannot present its draft report within 90 days, or within 30 days in cases of urgency, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will present its draft report. Any delay shall not exceed a further period of 30 days unless the Parties agree otherwise.
3. The Arbitral Tribunal shall set out in its draft report:
(a) a descriptive section summarising the submissions and arguments of the Parties;
(b) its findings on the law and facts of the case and on the applicability of the relevant provisions of this Agreement;
(c) its findings on whether the measure concerned is inconsistent with this Agreement or whether the Party complained against has failed to carry out its obligations under this Agreement and, if applicable, recommendations for the resolution of the matter; and
(d) the reasons for its findings and recommendations in subparagraphs (b) and (c).
4. A Party may submit written comments on the draft report to the Arbitral Tribunal within 10 days after receiving the draft report or within such period as the Parties may agree.
5. After considering any written comments by the Parties and making any further examination it considers necessary, the Arbitral Tribunal shall present its final report to the Parties within 30 days, or 15 days in cases of urgency, after presentation of the draft report, unless the Parties agree otherwise. The final report shall set out any further arguments made by the Parties on the draft report as well as relevant findings and recommendations of the Arbitral Tribunal and the reasons thereto.
6. The final report of the Arbitral Tribunal is final and has binding effect on the Parties in respect of that particular case to which the report refers.
7. Unless the Parties otherwise decide, the final report shall be made available to the public no later than 15 days after its issuance, subject to the protection of confidential information.
Article 12. Implementation of Arbitral Tribunal's Final Report
1. If in its final report the Arbitral Tribunal concludes that a measure is inconsistent with this Agreement or the Party complained against has failed to carry out its obligations under this Agreement, the Party complained against shall eliminate the non-conformity or comply with its obligations under this Agreement.
2. The Party complained against shall promptly comply with the obligations in paragraph 1. If this is not practicable, the Party complained against shall comply with the obligations in paragraph 1 within a reasonable period of time.
Article 13. Reasonable Period of Time
1. The reasonable period of time referred to in Article 12 (Implementation of Arbitral Tribunal's Final Report) shall be mutually determined by the Parties. Where the Parties fail to agree on the reasonable period of time within 30 days after the issuance of the final report of the Arbitral Tribunal, either Party may refer the matter to the original Arbitral Tribunal, which shall determine the reasonable period of time.
2. The Arbitral Tribunal shall provide its determination to the Parties pursuant to paragraph 1 within 30 days after the date of the referral of the matter to it.
3. The reasonable period of time normally should not exceed 15 months from the date of issuance of the final report of the Arbitral Tribunal. The reasonable period of time may be extended by mutual agreement of the Parties.
Article 14. Compliance Review
1. Where there is disagreement as to the existence or consistency with this Agreement of measures taken to comply with the obligations in paragraph 1 of Article 12 (Implementation of Arbitral Tribunal’s Final Report), such dispute shall be decided through arbitral proceedings under this Chapter, including wherever possible by resort to the original Arbitral Tribunal with the same arbitrators. Where this is not possible, any substitute arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and shall have all the powers and duties of the original arbitrator.
2. The Arbitral Tribunal shall provide its report to the Parties in respect of the matter under paragraph 1 within 60 days after the date of the referral of the matter to it. When the Arbitral Tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. Any delay shall not exceed a further period of 15 days unless the Parties agree otherwise.
3. The provisions of this Chapter including Annex 16-1 (Rules of Procedure of Arbitral Tribunal) shall apply, mutatis mutandis, to the arbitral proceedings under this Article.
Article 15. Suspension of Concessions or other Obligations
1. If the Arbitral Tribunal under Article 14 (Compliance Review) finds that the Party complained against fails to comply with the obligations in paragraph 1 of Article 12 (Implementation of Arbitral Tribunalâs Final Report) within the reasonable period of time, or the Party complained against expresses in writing that it will not comply with the obligations in paragraph 1 of Article 12 (Implementation of Arbitral Tribunal's Final Report), such Party shall, if so requested, enter into negotiations with the complaining Party, with a view to agreeing on a mutually acceptable compensation. If the Parties fail to reach an agreement on compensation within 20 days from the date of receipt of such request or if no such request has been made and the reasonable period of time has expired, the complaining Party may suspend the application of concessions or other obligations to the Party complained against. The complaining Party shall notify the Party complained against 30 days before suspending the concessions or other obligations. The notification shall indicate the level and scope of the suspension of concessions or other obligations.
2. The level of the suspension of concessions or other obligations shall be equivalent to the level of the nullification or impairment. For the avoidance of doubt, any suspension of concessions or other obligations shall be restricted to those accruing to the Party complained against under this Agreement.
3. In considering what concessions or other obligations to suspend:
(a) the complaining Party should first seek to suspend concessions or other obligations in the same sector or sectors as that affected by the measure that the Arbitral Tribunal has found to be inconsistent with the obligations of this Agreement or affected by the failure of a Party complained against to carry out its obligations under this Agreement as determined by the Arbitral Tribunal; and
(b) if the complaining Party considers that it is not practicable or effective to suspend concessions or other obligations in the same sector or sectors, it may suspend concessions or other obligations in other sectors. The communication in which it notifies such a decision shall indicate the reasons on which it is based.
4. Upon written request of the Party complained against, the original Arbitral Tribunal shall determine whether the level of the concessions or other obligations suspended or to be suspended by the complaining Party is excessive pursuant to paragraph 2 or determine whether the principles set forth in paragraph 3 have not been followed. If the Arbitral Tribunal cannot be established with its original members, it shall be established according to the procedures provided in Article 7 (Composition of Arbitral Tribunal).
5. The Arbitral Tribunal shall present its determination within 60 days from the request made pursuant to paragraph 4, or if an Arbitral Tribunal cannot be established with its original members, from the date on which the last arbitrator of the newly established Arbitral Tribunal is appointed.
6. The complaining Party may not suspend the application of concessions or other obligations before the issuance of the determination of the Arbitral Tribunal pursuant to paragraph 5.
7. Compensation and the suspension referred to in this Article shall be temporary measures. Neither compensation nor suspension is preferred to the compliance with the obligations in paragraph 1 of Article 12 (Implementation of Arbitral Tribunalâs Final Report). The suspension shall only be applied until such time as the obligations in paragraph 1 of Article 12 (Implementation of Arbitral Tribunalâs Final Report) are complied with or a mutually satisfactory solution is reached.
Article 16. Post Suspension
1. Without prejudice to the procedures in Article 15 (Suspension of Concessions or Other Obligations), if the Party complained against considers that it has brought the measure into conformity with this Agreement or carried out its obligations under this Agreement, it may provide written notice to the complaining Party with a description of how it has brought the measure into conformity with this Agreement or carried out its obligations under this Agreement. If the complaining Party disagrees, it may refer the matter to the original Arbitral Tribunal within 45 days after receipt of such written notice. Otherwise, the complaining Party shall promptly stop the suspension of concessions or other obligations.
2. The Arbitral Tribunal shall release its report within 60 days after the referral of the matter by the complaining Party pursuant to paragraph 1. If the Arbitral Tribunal concludes that the Party complained against has brought the measure into conformity with this Agreement or carried out its obligations under this Agreement, the complaining Party shall promptly stop the suspension of concessions or other obligations.
Article 17. Private Rights
Neither Party may provide for a right of action under its law including the initiation of proceedings before its respective courts against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.
ANNEX 16-1. RULES OF PROCEDURE OF ARBITRAL TRIBUNAL
First Written Submissions
1. The complaining Party shall deliver its first written submission to the Arbitral Tribunal and to the Party complained against no later than 20 days after the date of the establishment of the Arbitral Tribunal. The Party complained against shall deliver its first written submission to the Arbitral Tribunal and to the complaining Party no later than 30 days after the date of delivery of the complaining Party’s first written submission, unless the Arbitral Tribunal decides otherwise.
2. A Party shall provide a copy of its first written submission to each of the arbitrators and to the other Party. The copy shall be delivered against receipt, or by registered post, courier, or facsimile. A copy of the documents shall also be provided in electronic format.
Hearings
3. The chair of the Arbitral Tribunal shall fix the date and time of the hearings in consultation with the Parties and the other members of the Arbitral Tribunal. The venue of the hearings shall be decided by mutual agreement of the Parties. If there is no agreement, the venue shall alternate between the Areas of the Parties with the first hearing to be held in the Area of the Party complained against. The chair of the Arbitral Tribunal shall notify the Parties in writing of the date, time and venue of the hearings.
4. Unless a Party disagrees, the Arbitral Tribunal may decide to convene additional hearings or not to convene a hearing at all.
5. All arbitrators shall be present at the hearings.
6. The hearings of the Arbitral Tribunal shall be held in closed session.
Supplementary Written Submissions
7. Within 20 days after the date of the hearing, each Party may deliver a supplementary written submission responding to any matter that arose during the hearing. The Parties shall not make new complaints or present new evidence at this stage of the arbitral proceedings unless requested or authorised by the Arbitral Tribunal. The supplementary written submissions shall be delivered in accordance with paragraph 2 of this Annex. The Parties shall deliver their supplementary written submissions simultaneously.
Questions in Writing
8. The Arbitral Tribunal may at any time during the proceedings put questions to the Parties in writing.
9. A Party to whom the Arbitral Tribunal addresses a written question shall deliver the written reply to the Arbitral Tribunal and the other Party in accordance with the timetable established by the Arbitral Tribunal. Each Party shall be given the opportunity to provide written comments on the reply of the other Party within five days after the date of delivery of the reply.
Confidentiality
10. The deliberations of the Arbitral Tribunal and written submissions, documents, information or technical advice submitted to the Arbitral Tribunal as well as the hearings of the Arbitral Tribunal and replies to questions made during the hearings of the Arbitral Tribunal shall be kept confidential. Nothing in this Chapter shall preclude a Party from disclosing statements of its own positions to the public provided that there is no disclosure of information which has been designated as confidential by the other Party or any individual or body referred to in paragraph 14 of this Annex. The information submitted by a Party to the Arbitral Tribunal which that Party has designated as confidential shall be treated as confidential information by the Arbitral Tribunal and the other Party. A Party shall within 28 days after a request of the other Party provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.
Ex parte Contacts
11. The Arbitral Tribunal shall not meet or contact a Party in the absence of the other Party.
12. No Party shall contact any arbitrator in relation to the dispute in the absence of the other Party and other arbitrators.
13. No arbitrator shall discuss any aspect of the subject matter of the proceedings with a Party in the absence of the other Party and other arbitrators.
Role of Experts
14. Upon request of a Party or on its own initiative, the Arbitral Tribunal may seek information and technical advice from any individual or body that it deems appropriate. Any information so obtained shall be provided to the Parties for comments. Where the Arbitral Tribunal takes the information or technical advice into account in the preparation of its reports, it shall also take into account any comments by the Parties on the information or technical advice.
Working Language
15. The working language of the dispute settlement proceedings under this Chapter shall be English. Written submissions, documents, oral arguments or presentations, the reports of the Arbitral Tribunal and all written and oral communications between the Parties and with the Arbitral Tribunal shall be in the English language.
Chapter 17. GENERAL PROVISIONS AND EXCEPTIONS
Article 1. Disclosure and Confidentiality of Information
1. Nothing in this Agreement shall require a Party to furnish or allow access to confidential information, which is designated as confidential under its internal legislation or the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
2. Unless otherwise provided in this Agreement, where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information.
Article 2. General Exceptions
1. For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin), Chapter 4 (Customs Procedures and Trade Facilitation), Chapter 5 (Technical Barriers to Trade), Chapter 6 (Sanitary and Phytosanitary Measure), Chapter 7 (Trade Remedies) and the annexes to these Chapters, Article XX of GATT 1994, including its interpretative notes, is incorporated into and made part of this Agreement, mutatis mutandis.
2. For the purposes of Chapter 8 (Trade in Services) and Chapter 10 (Establishment) and the annexes to these Chapters, Article XIV of GATS, including its footnotes, is incorporated into and made part of this Agreement, mutatis mutandis.
Article 3. Security Exceptions
For the purposes of this Agreement, with respect to security exceptions, Article XXI of GATT 1994 and Article XIV bis of GATS are incorporated into and made part of this Agreement, mutatis mutandis.
Article 4. Taxation
This Agreement shall be without prejudice to the interpretation or application of other international agreements relating to taxation to which the Parties are party.
Article 5. Review of Agreement
The Parties shall undertake a general review of this Agreement, with a view to furthering its objectives, within three years from the date of entry into force of this Agreement, and at least every five years thereafter, unless otherwise agreed by the Parties. The review shall include but not be limited to consideration of further liberalisation and expansion of market access.