ASEAN - Australia - New Zealand Free Trade Agreement (2009)
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9. Only members of the arbitral tribunal may take part in the deliberations of the arbitral tribunal.

10. The arbitral tribunal may, in consultation with the Parties to the dispute, retain such number of assistants, interpreters or translators, or designated note takers as may be required for the proceeding and permit them to be present during its deliberations. Any such arrangements established by the arbitral tribunal may be modified by the agreement of the Parties to the dispute.

11. The arbitral tribunal's deliberations shall be confidential.

The members of the arbitral tribunal and the persons retained by the arbitral tribunal shall maintain the confidentiality of arbitral tribunal proceedings and deliberations.

12. There shall be no ex parte communications with the arbitral tribunal concerning matters under consideration by it.

13. The interests of Third Parties and those of other Parties shall be fully taken into account during the arbitral tribunal proceedings.

Written Submissions and Other Documents

14. Each Party to the dispute shall transmit to the arbitral tribunal a first submission in writing setting out the facts of its case and its arguments. Unless the Parties agree otherwise, a Complaining Party shall deliver its first submission to the arbitral tribunal and to the Responding Party within 14 days after the date of the establishment of the arbitral tribunal. The Responding Party shall deliver its first submission to the arbitral tribunal and to the Complaining Party within 21 days after the date of receipt of the first submission of the Complaining Party. Any subsequent written submissions shall be submitted simultaneously.

15. A Party to the dispute shall deliver no less than four copies of its written submissions to the arbitral tribunal and one copy to the other Parties to the dispute. Third Parties shall receive the submissions of the Parties to the dispute to the first substantive hearing.

16. In respect of any request, notice or other document(s) related to the arbitral tribunal proceeding that is not covered by Rules 14 and 15, each Party to the dispute may deliver a copy of the document(s) to the other Party to the dispute by facsimile, email or other means of electronic transmission.

17. A Party to the dispute may at any time correct minor errors of a clerical nature in any request, notice, written submission or other document(s) related to the arbitral tribunal proceeding by delivering a new document clearly indicating the changes.

Hearings

18. At the first substantive hearing with the Parties to the dispute, each Party to the dispute shall present the facts of its case and its arguments. The Complaining Party shall present its position first. The Parties to the dispute shall be given an opportunity for final statements, with the Complaining Party presenting its statement first.

19. All Third Parties shall be invited to present their views during a separate session of the first substantive hearing of the arbitral tribunal set aside for that purpose. All Third Parties may be present during the entirety of this session.

20. The Parties to the dispute and Third Parties shall make available to the arbitral tribunal written versions of their oral statements and responses to questions made in hearings with the arbitral tribunal.

Availability of Information

21. Written submissions to the arbitral tribunal shall be treated as confidential, but shall be made available to the Parties to the dispute. No Party to the dispute shall be precluded 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 a Party to the dispute or Third Party. The Parties to the dispute, Third Parties and the arbitral tribunal shall treat as confidential information submitted by a Party to the dispute to the arbitral tribunal which that Party has designated as confidential. A Party to the dispute shall, upon request of another Party, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.

Information Gathering

22. The Parties to the dispute and Third Parties shall respond promptly and fully to any request by an arbitral tribunal for such information as the arbitral tribunal considers necessary and appropriate.

23. An arbitral tribunal may seek information and technical advice from any individual or body which it deems appropriate. However, before doing so the arbitral tribunal shall seek the views of the Parties to the dispute. Where the Parties to the dispute agree that the arbitral tribunal should not seek the additional information or technical advice, the arbitral tribunal shall not proceed. The arbitral tribunal shall provide the Parties to the dispute with any information or technical advice it receives and an opportunity to provide comments.

Reports

24. The arbitral tribunal shall provide to the Parties to the dispute an interim report, meeting the requirements specified in Article 12.3 (Functions of Arbitral Tribunals).

25. The interim report shall be provided at least four weeks before the deadline for completion of the final report. The arbitral tribunal shall accord adequate opportunity to the Parties to the dispute to review the entirety of its interim report prior to its finalisation and shall include a discussion of any comments made by the Parties to the dispute in its final report.

26. The interim report and final report of the arbitral tribunal shall be drafted without the presence of the Parties to the dispute. Opinions expressed in the reports of the arbitral tribunal by its individual members shall be anonymous.

Venue

27. The venue for the arbitral tribunal hearings shall be decided by mutual agreement between the Parties to the dispute. If there is no agreement, the venue shall alternate between the capitals of the Parties to the dispute with the first hearing to be held in the capital of the Responding Party.

Remuneration and Payment of Expenses

28. The arbitral tribunal shall keep a record and render a final account of all general expenses incurred in connection with the proceedings, including those paid to its assistants, designated note takers or other individuals that it retains pursuant to Rule 10.

Annex on optional procedures for composing arbitral tribunals

As provided in Article 11.3 (Establishment and Re-convening of Arbitral Tribunals), the Parties to the dispute may agree to use any of the following optional procedures, or variations thereof, for the purpose of composing an arbitral tribunal.

Optional Procedure A

1. The Complaining Party and the Responding Party shall each appoint one arbitrator within (period to be agreed by the Parties to the dispute) of the date of the receipt of a request to establish an arbitral tribunal. If either Party fails to appoint an arbitrator within such period, then the arbitrator appointed by the other Party shall act as the sole arbitrator of the arbitral tribunal.

2. Where two arbitrators are appointed in accordance with Paragraph 1, the Parties to the dispute shall designate by common agreement the third arbitrator who shall chair the arbitral tribunal. If the Parties to the dispute have not designated the chair of the arbitral tribunal within (period to be agreed by the Parties to the dispute) of the appointment of the second arbitrator, the two arbitrators appointed in accordance with Paragraph 1 shall designate by common agreement the third arbitrator who shall chair the tribunal. If the chair of the arbitral tribunal has not been designated by the arbitrators within (period to be agreed by the Parties to the dispute) of the appointment of the second arbitrator, the Director-General of the WTO shall, at the request of any Party to the dispute, appoint the chair of the arbitral tribunal within (period to be agreed by the Parties to the dispute) of that request.

Optional Procedure B

1. The Complaining Party and the Responding Party shall each appoint one arbitrator within (period to be agreed by the Parties to the dispute) of the date of the receipt of a request to establish an arbitral tribunal.

2. The Parties to the dispute shall agree on the appointment of the third arbitrator within (period to be agreed by the Parties to the dispute) of the appointment of the third arbitrator who shall serve as chair of the arbitral tribunal. If all three appointments have not been made within (period to be agreed by the Parties to the dispute), the necessary appointments shall be made at the request of any Party to the dispute by the Director-General of the WTO within a further (period to be agreed by the Parties to the dispute).

Optional Procedure C

1. Within (period to be agreed by the Parties to the dispute) of the date of the receipt of a request to establish an arbitral tribunal, each Party to the dispute shall provide to the other Parties to the dispute a list of up to (number to be agreed by the Parties to the dispute) nominees for appointment as arbitrators, including at least two individuals suitable for appointment as chair. The Parties to the dispute shall then consult with each other on the composition of the arbitral tribunal with the objective of appointing the arbitrators drawing as appropriate on the lists of nominees.

2. If all of the arbitrators have not been appointed within (period to be agreed by the Parties to the dispute) of the request to establish an arbitral tribunal, any of the remaining arbitrators shall be appointed at the request of any Party to the dispute by random drawing from the lists of nominees separated for this purpose into separate lists of nominations for appointment as chair or as a regular arbitrator.

Chapter 18. Final Provisions

Article 1. Annexes, Appendices and Footnotes

The Annexes, Appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.

Article 2. Relation to other Agreements

1. Each Party reaffirms its rights and obligations under the WTO Agreement and other agreements to which the Parties are party.

2. Nothing in this Agreement shall be construed to derogate from any right or obligation of a Party under the WTO Agreement and other agreements to which the Parties are party.

3. In the event of any inconsistency between this Agreement and any other agreement to which two or more Parties are party, such Parties shall immediately consult with a view to finding a mutually satisfactory solution.

4. Nothing in this Agreement shall prevent any individual ASEAN Member State from entering into any agreement with any one or more ASEAN Member State and/or Australia and/or New Zealand relating to trade in goods, trade in services, investment, and/or other areas of economic co- operation.

5. The provisions of this Agreement shall not apply to any agreement among ASEAN Member States. The provisions of this Agreement shall also not apply to any agreement involving any ASEAN Member State and/or Australia and/or New Zealand unless otherwise agreed by the parties to that agreement. (1)

(1) This Paragraph does not apply to any future agreement concluded in accordance with this Agreement.

Article 3. Amended or Successor International Agreements

If any international agreement, or a provision therein, referred to in this Agreement (or incorporated into this Agreement) is amended, the Parties shall consult on whether it is necessary to amend this Agreement, unless this Agreement provides otherwise.

Article 4. Disclosure of Information

Unless otherwise provided in this Agreement, nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.

Article 5. Confidentiality

Unless otherwise provided in this Agreement, where a Party provides information to another Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information, except to the extent that the Party receiving the information is required under its domestic law to provide the information to judicial proceedings.

Article 6. Amendments

This Agreement may be amended by agreement in writing by the Parties and such amendments shall come into force on such date or dates as may be agreed among them.

Article 7. Entry Into Force

1. Each Party shall notify each other Party in writing upon completion of its internal requirements (2) necessary for entry into force of this Agreement. This Agreement shall enter into force on 1 July 2009 for any Party that has made such notifications provided that Australia, New Zealand and at least four ASEAN Member States have made such notifications by that date.

2. If this Agreement does not enter into force on 1 July 2009 it shall enter into force, for any Party that has made the notification referred to in Paragraph 1, 60 days after the date by which Australia, New Zealand and at least four ASEAN Member States have made the notifications referred to in Paragraph 1.

3. After the entry into force of this Agreement pursuant to Paragraph 1 or 2, this Agreement shall enter into force for any Party 60 days after the date of its notification referred to in Paragraph 1.

(2) For greater certainty, the term "internal requirements" may include obtaining governmental approval or parliamentary approval in accordance with domestic law.

Article 8. Withdrawal and Termination

1. Any Party may withdraw from this Agreement by giving six months advance notice in writing to the other Parties.

2. This Agreement shall terminate if, pursuant to Paragraph 1:

(b) Australia withdraws;

(c) New Zealand withdraws; or

(d) this Agreement is in force for less than four ASEAN Member States.

Article 9. Review

The Parties shall undertake a general review of this Agreement with a view to furthering its objectives in 2016, and every five years thereafter, unless otherwise agreed by the Parties.

SIGNED at Cha-am, Petchaburi, Thailand, this 27" day of February, two thousand and nine, in three copies in the English language.

For the Government of Brunei Darussalam:

For the Government of Australia:

For the Government of New Zealand:

For the Government of the Kingdom of Cambodia:

For the Government of the Republic of Indonesia:

For the Government of the Lao People's Democratic Republic:

For the Government of Malaysia:

For the Government of the Union of Myanmar:

For the Government of the Republic of the Philippines:

For the Government of the Republic of Singapore:

For the Government of the Kingdom of Thailand:

For the Government of the Socialist Republic of Viet Nam:

Previous page Page 13
  • Chapter   1 Establishment of Free Trade Area, Objectives and General Definitions 1
  • Article   1 Objectives 1
  • Article   2 Establishment of the Asean-australia-new Zealand Free Trade Area 1
  • Article   3 General Definitions 1
  • Chapter   2 Trade In Goods 1
  • Article   1 Reduction and/or Elimination of Customs Duties 1
  • Article   2 Acceleration of Tariff Commitments 1
  • Article   3 Elimination of Agricultural Export Subsidies 1
  • Article   4 National Treatment on Internal Taxation and Regulation 1
  • Article   5 Fees and Charges Connected with Importation and Exportation 1
  • Article   6 Publication and Administration of Trade Regulations 1
  • Article   7 Quantitative Restrictions and Non-tariff Measures 1
  • Article   8 Import Licensing 1
  • Article   9 Modification of Concessions 1
  • Article   10 Contact Points and Consultations 1
  • Article   11 Committee on Trade In Goods 1
  • Article   12 Application 1
  • Chapter   3 Rules of Origin 1
  • Article   1 Definitions 1
  • Article   2 Originating Goods 1
  • Article   3 Goods Wholly Produced or Obtained 1
  • Article   4 Goods Not Wholly Produced or Obtained 2
  • Article   5 Calculation of regional value content 2
  • Article   6 Cumulative rules of origin 2
  • Article   7 Minimal operations and processes 2
  • Article   8 De minimis 2
  • Article   9 Accessories, spare parts and tools 2
  • Article   10 Identical and interchangeable materials 2
  • Article   11 Treatment of packing materials and containers 2
  • Article   12 Indirect materials 2
  • Article   13 Recording of costs 2
  • Article   14 Direct consignment 2
  • Article   15 Certificate of origin 2
  • Article   16 Denial of preferential tariff treatment 2
  • Article   17 Review and appeal 2
  • Article   18 Sub-committee on rules of origin 2
  • Article   19 Consultations, review and modification 2
  • Annex on operational certification procedures 2
  • Appendix 1  Minimum data requirements — application for a certificate of origin 3
  • Appendix 2  Minimum data requirements — certificate of origin 3
  • Chapter   4 Customs procedures 3
  • Article   1 Objectives 3
  • Article   2 Scope 3
  • Article   3 Definitions 3
  • Article   4 Customs procedures and facilitation 3
  • Article   5 Customs co-operation 3
  • Article   6 Use of automated systems 3
  • Article   7 Valuation 3
  • Article   8 Advance rulings 3
  • Article   9 Risk management 3
  • Article   10 Confidentiality 3
  • Article   11 Enquiry points 3
  • Article   12 Consultations 3
  • Article   13 Review and appeal 3
  • Chapter   5 Sanitary and phytosanitary measures 3
  • Article   1 Objectives 3
  • Article   2 Scope 3
  • Article   3 Definitions 3
  • Article   4 General provisions 3
  • Article   5 Equivalence 4
  • Article   6 Competent authorities and contact points 4
  • Article   7 Notification 4
  • Article   8 Co-operation 4
  • Article   9 Consultations 4
  • Article   10 Meetings among the parties on sanitary and phytosanitary matters 4
  • Article   11 Non-application of chapter 17 (consultations and dispute settlement) 4
  • Chapter   6 Standards, technical regulations and conformity assessment procedures 4
  • Article   1 Objectives 4
  • Article   2 Scope 4
  • Article   3 Definitions 4
  • Article   4 Affirmation of the tbt agreement 4
  • Article   5 Standards 4
  • Article   6 Technical regulations 4
  • Article   7 Conformity assessment procedures 4
  • Article   8 Co-operation 4
  • Article   9 Consultations 4
  • Article   10 Agreements or arrangements 4
  • Article   11 Transparency 4
  • Article   12 Contact points 4
  • Article   13 Sub-committee on standards, technical regulations and conformity assessment procedures 4
  • Chapter   7 Safeguard measures 4
  • Article   1 Scope 4
  • Article   2 Definitions 4
  • Article   3 Imposition of a safeguard measure 4
  • Article   4 Investigation 4
  • Article   5 Notification 4
  • Article   6 Scope and duration of transitional safeguard measures 4
  • Article   7 Provisional safeguard measures 5
  • Article   8 Compensation 5
  • Article   9 Relationship to the wto agreement 5
  • Chapter   8 Trade in services 5
  • Article   1 Scope and coverage 5
  • Article   2 Definitions 5
  • Article   3 National treatment 5
  • Article   4 Market access 5
  • Article   5 Additional commitments 5
  • Article   6 Review of commitments 5
  • Article   7 Consultations on most-favoured-nation treatment 5
  • Article   8 Schedules of specific commitments 5
  • Article   9 Modification of schedules 5
  • Article   10 Domestic regulation 5
  • Article   11 Transparency 5
  • Article   12 Development and application of regulations 6
  • Article   13 Disclosure of confidential information 6
  • Article   14 Monopolies and exclusive service suppliers 6
  • Article   15 Business practices 6
  • Article   16 Recognition 6
  • Article   17 Payments and transfers 6
  • Article   18 Subsidies 6
  • Article   19 Safeguard measures 6
  • Article   20 Increasing participation for newer asean member states 6
  • Article   21 Denial of benefits 6
  • Article   22 Treatment and protection of commercial presence 6
  • Article   23 Miscellaneous provisions 6
  • Article   24 Committee on trade in services 6
  • Annex on financial services 6
  • Article   1 Scope and definitions 6
  • Article   2 Definitions 6
  • Article   3 Domestic regulation 6
  • Article   4 Recognition 6
  • Article   5 Regulatory transparency 6
  • Article   6 Financial services exceptions 6
  • Article   7 Transfers of information and processing of information 7
  • Article   8 Dispute settlement 7
  • Annex on telecommunications 7
  • Article   1 Scope and coverage 7
  • Article   2 Definitions 7
  • Article   3 Transitional arrangements 7
  • Article   4 Competitive safeguards 7
  • Article   5 Licensing 7
  • Article   6 Interconnection (2) 7
  • Article   7 Co-location 7
  • Article   8 Leased circuits services 7
  • Article   9 Resolution of disputes 7
  • Article   10 Transparency 7
  • Article   11 Telecommunications regulatory body 7
  • Article   12 Universal service 7
  • Article   13 Allocation and use of scarce resources (4) 7
  • Appendix on transitional arrangements 7
  • Chapter   9 Movement of natural persons 7
  • Article   1 Objectives 7
  • Article   2 Scope 7
  • Article   3 Definitions 7
  • Article   4 Grant of temporary entry 7
  • Article   5 Schedules of commitments for the entry and temporary stay of natural persons 7
  • Article   6 Processing of applications 7
  • Article   7 Immigration measures 7
  • Article   8 Transparency 8
  • Article   9 Application of chapter 17 (consultations and dispute settlement) 8
  • Chapter   10 Electronic commerce 8
  • Article   1 Objectives 8
  • Article   2 Definitions 8
  • Article   3 Transparency 8
  • Article   4 Domestic regulatory frameworks 8
  • Article   5 Electronic authentication and digital certificates 8
  • Article   6 Online consumer protection 8
  • Article   7 Online data protection 8
  • Article   8 Paperless trading 8
  • Article   9 Co-operation on electronic commerce 8
  • Article   10 Non-application of chapter 17 (consultations and dispute settlement) 8
  • Chapter   11 Investment 8
  • Section   A 8
  • Article   1 Scope 8
  • Article   2 Definitions 8
  • Article   3 Relation to other chapters 8
  • Article   4 National treatment (5) 8
  • Article   5 Prohibition of performance requirements 8
  • Article   6 Treatment of investment 8
  • Article   7 Compensation for losses 8
  • Article   8 Transfers 8
  • Article   9 Expropriation and compensation (7) 8
  • Article   10 Subrogation 9
  • Article   11 Denial of benefits 9
  • Article   12 Reservations (11) 9
  • Article   13 Transparency 9
  • Article   14 Special formalities and disclosure of information 9
  • Article   15 Special and differential treatment for the newer asean member states 9
  • Article   16 Work programme 9
  • Article   17 Committee on investment 9
  • Section   B Investment disputes between a party and an investor 9
  • Article   18 Scope and definitions 9
  • Article   19 Consultations 9
  • Article   20 Claim by an investor of a party 9
  • Article   21 Submission of a claim 9
  • Article   22 Conditions and limitations on submission of a claim 9
  • Article   23 Selection of arbitrators 9
  • Article   24 Consolidation 9
  • Article   25 Conduct of the arbitration 9
  • Article   26 Transparency of arbitral proceedings 10
  • Article   27 Governing law 10
  • Article   28 Awards 10
  • Annex on expropriation and compensation 10
  • Chapter   12 Economic co-operation 10
  • Article   1 Scope and objectives 10
  • Article   2 Definitions 10
  • Article   3 Resources 10
  • Article   4 Economic co-operation work programme 10
  • Article   5 Focal points for implementation 10
  • Article   6 Implementation and evaluation of work programme components 10
  • Article   7 Review of work programme 10
  • Article   8 Non-application of chapter 17 (consultations and dispute settlement) 10
  • Chapter   13 Intellectual property 10
  • Article   1 Objectives 10
  • Article   2 Definitions 10
  • Article   3 Affirmation of the trips agreement 10
  • Article   4 National treatment 10
  • Article   5 Copyright 10
  • Article   6 Government use of software 10
  • Article   7 Trademarks and geographical indications 10
  • Article   8 Genetic resources, traditional knowledge and folklore 10
  • Article   9 Co-operation 10
  • Article   10 Transparency 10
  • Article   11 Recognition of transitional periods under the trips agreement 10
  • Article   12 Committee on intellectual property 10
  • Chapter   14 Competition 11
  • Article   1 Basic principles 11
  • Article   2 Co-operation 11
  • Article   3 Contact points 11
  • Article   4 Non-application of chapter 17 (consultations and dispute settlement) 11
  • Chapter   15 General provisions and exceptions 11
  • Article   1 General exceptions 11
  • Article   2 Security exceptions 11
  • Article   3 Taxation measures 11
  • Article   4 Measures to safeguard the balance of payments 11
  • Article   5 Treaty of waitangi 11
  • Chapter   16 Institutional provisions 11
  • Article   1 Fta joint committee 11
  • Article   2 Communications 11
  • Chapter   17 Consultations and dispute settlement 11
  • Section   A Introductory provisions 11
  • Article   1 Objectives 11
  • Article   2 Definitions 11
  • Article   3 Scope and coverage 11
  • Article   4 General provisions 11
  • Article   5 Choice of forum 11
  • Section   B Consultation provisions 11
  • Article   6 Consultations 11
  • Article   7 Good offices, conciliation, mediation 11
  • Section   C Adjudication provisions 11
  • Article   8 Request for establishment of arbitral tribunals 11
  • Article   9 Procedures for multiple complainants 12
  • Article   10 Third parties 12
  • Article   11 Establishment and re-convening of arbitral tribunals 12
  • Article   12 Functions of arbitral tribunals 12
  • Article   13 Arbitral tribunal procedures 12
  • Article   14 Suspension and termination of proceedings 12
  • Section   D Implementation provisions 12
  • Article   15 Implementation 12
  • Article   16 Compliance review 12
  • Article   17 Compensation and suspension of concessions or other obligations 12
  • Section   E Final provisions 12
  • Article   18 Special and differential treatment involving newer asean member states 12
  • Article   19 Expenses 12
  • Article   20 Contact points 12
  • Article   21 Language 12
  • Annex on rules of procedure for arbitral tribunal proceedings 12
  • Annex on optional procedures for composing arbitral tribunals 13
  • Chapter   18 Final provisions 13
  • Article   1 Annexes, appendices and footnotes 13
  • Article   2 Relation to other agreements 13
  • Article   3 Amended or successor international agreements 13
  • Article   4 Disclosure of information 13
  • Article   5 Confidentiality 13
  • Article   6 Amendments 13
  • Article   7 Entry into force 13
  • Article   8 Withdrawal and termination 13
  • Article   9 Review 13