Article 17.9. List and Qualifications of Panelists
1. Upon entry into force of this Agreement, the Parties shall adopt and maintain a Tentative List of up to 36 individuals. For this purpose, each Party shall select up to 6 individuals who are nationals of that Party to serve on the "Tentative List". Each Party may modify the panelists on its roster as it deems necessary, subject to prior notification to the other Parties.
2. In addition, the Parties shall adopt by agreement among themselves upon entry into force of the Agreement an "Indicative List of Non-Party State Panelists" in which they shall designate up to 6 panelists to serve as Panel Chairpersons in an eventual case. At the request of any Party, the Administrative Commission may modify the "Indicative List of Non-Party State Panelists" at any time.
3. The lists provided for in this Article shall be adopted by decisions of the Administrative Commission.
4. The members of the lists:
(a) have expertise or experience in law, international trade, other matters related to this Agreement, or the settlement of disputes arising under international trade agreements;
(b) shall be selected strictly on the basis of their objectivity, reliability and sound judgment;
(c) shall be independent of, not bound by, and not receive instructions from, the Parties; and
(d) comply with the Code of Conduct to be adopted by the Administrative Commission no later than 90 days following the entry into force of this Agreement.
5. The Parties may use the indicative lists even if they have not been completed with the number of members established in paragraphs 1 and 2.
6. All panelists must meet the requirements set forth in paragraph 4.
7. Persons who have intervened in a dispute under the terms of Article 17.7 may not be panelists for the same dispute.
Article 17.10. Integration of the Arbitration Panel
1. The Arbitration Panel shall be composed as follows:
(a) the Arbitration Panel shall be composed of 3 members;
(b) within 10 days of receipt of the request for the establishment of the Arbitral Panel pursuant to Article 17.8, each Party shall appoint a panelist, preferably from the "Tentative List";
(c) by mutual agreement, the Parties shall appoint a third panelist preferably from the "Indicative List of Non-Party State Panelists" within 10 days of the date on which the last of the 2 panelists referred to in subparagraph (b) was appointed. The third panelist shall chair the Arbitral Panel and may not be a national of the Parties;
(d) if a Party has not designated its panelist within the 10-day period set out in subparagraph (b), such designation shall be made by the other disputing Party or Parties from among the panelists on the "Tentative List". The Party or Parties appointing the panelist pursuant to this subparagraph shall ensure that the panelist to be appointed is a national of the Party that failed to appoint its panelist in a timely manner;
(e) if within 10 days after the deadline set forth in subsection (c) there is no agreement between the Parties to designate the third panelist, the panelist shall be selected by the disputing Parties by drawing lots among the members of the "Indicative List of Non-Party Panelists" or, if this is not feasible, from the WTO Indicative List. The non-attendance of a disputing Party at such a drawing of lots shall not preclude the holding of the drawing of lots;
(f) each Party may appoint a panelist who is not on the "Tentative List", provided that he or she meets the requirements set out in Article 17.9; and
(g) the Parties may by mutual agreement appoint a panelist who is not on the "Indicative List of Non-Party State Panelists", provided that he or she meets the requirements set forth in Article 17.9.
2. In cases where two or more Parties act jointly as claimant or respondent, and there is no agreement among them as to the appointments, one of them, chosen by lot, shall assume the representation of the others with respect to the procedure set forth in paragraph 1.
3. When an Arbitral Panel is constituted pursuant to paragraph 1, the designated office shall notify the panelists of their appointment. The date of the establishment of the arbitration panel shall be the date on which the last of the panelists has notified the disputing Parties and the designated office of the acceptance of his or her selection.
4. Where a disputing Party considers that a panelist has committed a violation of the Code of Conduct, the disputing Parties shall consult and, if agreed, remove that panelist and select a new panelist in accordance with the provisions of this Article.
5. When there is a need to appoint a new panelist, the proceedings before the Arbitration Panel shall be suspended until the new panelist has accepted his or her appointment.
Article 17.11. Participation of the Third Party
1. A Party that considers it has a substantial interest in the matter may become a third party to the proceedings before the Arbitration Panel, upon written notice to the disputing Parties, through the designated office, within 5 days after the establishment of the Arbitration Panel.
2. A third Party shall have the right to attend the hearings, to make written and oral submissions to the Arbitration Panel, and to receive written submissions from the disputing Parties, in accordance with the provisions of the Model Rules of Procedure. Such submissions shall be reflected in the final report of the Arbitration Panel.
Article 17.12. Model Rules of Procedure
1. The Administrative Commission shall adopt no later than 90 days following the entry into force of this Agreement, the Model Rules of Procedure that shall ensure:
(a) the right of the disputing Parties to at least one hearing before the Arbitration Panel;
(b) an opportunity for each disputing Party to submit initial and rebuttal written submissions;
(c) the possibility of using technological means to conduct the proceedings, provided that compliance with the principle of due process and the rules of this Chapter is guaranteed; and
(d) protection of confidential information.
2. Unless otherwise agreed by the disputing Parties, arbitration panel proceedings shall be governed by the Model Rules of Procedure.
3. The Administrative Commission may modify the Model Rules of Procedure.
4. Unless the disputing Parties agree otherwise, within 20 days from the date of delivery of the request for the establishment of the Arbitral Panel, the terms of reference of the Arbitral Panel shall be:
"To examine, in the light of the applicable provisions of the Treaty, the dispute submitted to it under the terms of the request for the establishment of the Arbitral Panel and to issue findings, determinations and recommendations, as set forth in Articles 17.15 and 17.16."
5. If the disputing Parties have agreed on different terms of reference, they shall notify the Arbitration Panel within 2 days of their establishment.
6. If the complaining Party alleges in the request for the establishment of the Arbitration Panel that a matter has given rise to nullification or impairment within the meaning of Annex 17.3, the terms of reference shall so state.
7. Where a disputing Party requests that the Arbitration Panel make findings on the extent of the adverse trade effects on any Party of the measure found to be inconsistent with this Agreement or to have caused nullification or impairment within the meaning of Annex 17.3, the terms of reference shall so state.
Article 17.13. Information and Technical Assistance
On its own motion or at the request of a disputing Party, the Arbitration Panel may seek information and technical advice from such persons or institutions as it deems appropriate, provided that the disputing Parties so agree, and in accordance with such terms and conditions as those Parties may agree pursuant to the provisions of the Model Rules of Procedure.
Article 17.14. Suspension or Termination of Proceedings
1. If the period of 12 months of inactivity has elapsed since the date of the last consultation meeting, and no further steps have been taken, and in the event that the situation that gave rise to the consultations persists and the consulting Party wishes to continue, it shall request new consultations.
2. In the event that the proceeding is at the arbitration stage, at the request of the complaining Party, the Arbitration Panel may suspend such proceeding for a period not to exceed 12 months from the date on which the request for suspension is filed.
3. If the proceedings before the Arbitration Panel have been suspended for more than 12 months, the terms of reference of the Arbitration Panel shall expire. This is without prejudice to the right of the complaining Party to request further consultations on the same matter.
4. At any time prior to the notification of the preliminary report of the Arbitration Panel, the disputing Parties may agree to terminate the proceedings by a mutually satisfactory resolution of the dispute, and shall jointly notify this agreement to the Arbitration Panel, thereby terminating the proceedings before the Arbitration Panel.
Article 17.15. Preliminary Report
1. The Arbitral Panel shall issue a preliminary report based on the applicable provisions of this Agreement, the arguments and submissions made by the disputing Parties, and any information it has received pursuant to Article 17.13.
2. Unless the disputing Parties decide otherwise, the Arbitration Panel shall notify the disputing Parties, within 90 days after the establishment of the Panel, of a preliminary report containing:
(a) findings of fact, including any arising from a request pursuant to Article 17.12;
(b) a determination as to whether the measure in question is inconsistent with the obligations under this Agreement, or is a cause for annulment or impairment within the meaning of Annex 17.3 or any other determination requested in the mandate; and
(c) the draft final report and its recommendations, if any, for the resolution of the dispute.
3. The Arbitration Panel shall not disclose any confidential information in its report, but may state conclusions derived from such information.
4. Where the Arbitration Panel considers that it cannot issue its preliminary report within 90 days, it shall inform the disputing Parties in writing of the reasons for the delay and shall provide at the same time and at the earliest possible stage of the proceedings, an estimate of the time within which it will issue its report. In this case and unless exceptional circumstances apply, the time limit for issuing the report shall not exceed 120 days from the date of establishment of the Arbitration Panel.
5. The Arbitration Panel shall strive to make all decisions by consensus. However, when a decision cannot be made by consensus, the matter shall be decided by majority vote.
6. The disputing Parties may make written comments to the Arbitration Panel on the preliminary report within 15 days of its submission or within such other period of time as the disputing Parties may agree.
7. In this case, and after examining the written observations, the Arbitration Panel may, on its own motion or at the request of any disputing Party:
(a) request the observations of any disputing Party;
(b) conduct any due diligence it deems appropriate; or
(c) reconsider the preliminary report. Article 17.16: Final Report 1. The Arbitration Panel shall notify the disputing Parties of its final report and, where appropriate, written opinions on the issues on which there is no unanimity, within 30 days of the submission of the preliminary report. 2. The panelists may issue written opinions on matters on which there is no unanimity. However, neither the preliminary nor the final report shall disclose the identity of the panelists who voted with the majority or minority.
3. The disputing Parties shall communicate the final report to the Administrative Commission within 5 days following the date on which it was notified to them and shall make it available to the public within 15 days following its communication to the Administrative Commission, subject to the protection of the confidential information contained in the report.
Article 17.17. Compliance with the Final Report
1. The final report shall be binding on the disputing parties.
2. Upon receipt of the final report of the Arbitration Panel, the disputing Parties shall agree on the resolution of the dispute, which shall normally be in accordance with the findings of the Arbitration Panel and its recommendations, if any.
3. If in its final report the Arbitration Panel determines that the Party complained against has failed to comply with its obligations under this Agreement, or that the measure causes nullification or impairment within the meaning of Annex 17.3, the remedy shall, where possible, be non-enforcement or termination of the measure that does not comply with this Agreement or that causes nullification or impairment within the meaning of Annex 17.In the absence of a remedy, the Party complained against may submit offers of compensation, which shall be considered by the complaining Party and, unless otherwise agreed, shall be equivalent to the benefits foregone.
Article 17.18. Noncompliance and Suspension of Benefits
1. Where the Arbitral Panel determines that a measure is inconsistent with the obligations of this Agreement or is a cause for nullification or impairment within the meaning of Annex 17.3, and the disputing Parties:
(a) do not reach a compensation in terms of Article 17.17.3 or a mutually satisfactory settlement of the dispute within 30 days after receipt of the final report; or
(b) have reached an agreement on the settlement of the dispute or on compensation in accordance with Article 17.17.3, and the complaining Party considers that the Party complained against has not complied with the terms of the agreement,
the complaining Party may, upon notice to the Party complained against, suspend the application to that Party of benefits under this Agreement that are equivalent in effect to the benefits foregone.
2. The suspension of benefits shall last until the Party complained against complies with the final report or until the disputing Parties reach a mutually satisfactory agreement on the dispute, as the case may be. However, if the Party complained against is made up of 2 or more Parties, and any of them complies with the final report, or reaches a mutually satisfactory agreement with the complaining Party, the complaining Party shall lift the suspension of benefits.
3. In considering the benefits to be suspended pursuant to this Article:
(a) the complaining Party shall first seek to suspend benefits within the same sector or sectors that are affected by the measure, or by another matter that the Arbitration Panel has found to be inconsistent with the obligations under this Agreement, or that would have caused nullification or impairment within the meaning of Annex 17.3; and
(b) if the complaining Party considers that it is not feasible or effective to suspend benefits in the same sector or sectors, it may suspend benefits in other sectors.
Article 17.19. Review of Suspension of Benefits or of Enforcement
1. A disputing Party may, by written notice to the other disputing Party, request that the original Arbitral Panel established pursuant to Article 17.8 be reconvened to determine:
(a) if the level of suspension of benefits applied by the complaining Party pursuant to Article 17.18.1 is manifestly excessive; or
(b) on any disagreement between the disputing Parties as to compliance with the final report of the Arbitration Panel, or with an agreement reached between them, or as to the compatibility of any measures taken to comply.
2. If the Arbitration Panel hearing a matter under paragraph 1(a) decides that the level of benefits suspended is manifestly excessive, it shall set the level of benefits applied that it considers to be of equivalent effect. In this case, the complaining Party shall adjust the suspension it is applying to that level. If the Arbitration Panel hearing a matter pursuant to paragraph 1(b) decides that the Party complained against has complied, the complaining Party shall immediately terminate the suspension of benefits. If the Party complained against consists of 2 or more Parties and the Arbitration Panel decides that one of them has complied, the complaining Party shall immediately terminate the suspension of benefits with respect to that Party.
3. The proceedings before the arbitration panel constituted for the purposes of paragraph 1 shall be conducted in accordance with the Model Rules of Procedure. The Arbitration Panel shall render its final decision within 60 days of the election of the last panelist, or such other period of time as the disputing Parties may agree.
4. The provisions of Article 17.10 shall apply when the original Arbitral Panel or any of its members cannot be reintegrated to hear the matters provided for in this Article.
Article 17.20. Judicial and Administrative Instances
1. The Administrative Commission shall endeavor to agree, as soon as possible, on an appropriate interpretation or response when:
(a) a Party considers that a question of interpretation or application of this Agreement arising or arising in a judicial or administrative proceeding of another Party warrants interpretation by the Administrative Commission; or
(b) a Party receives a request for an opinion on a question of interpretation or application of this Agreement from a court or administrative body of that Party.
The Party in whose territory the court or administrative body is located shall submit to it the appropriate response or any interpretation agreed upon by the Administrative Commission, in accordance with the procedures of that forum.
2. When the Administrative Commission is unable to agree on an appropriate response or interpretation, the Party in whose territory the court or administrative body is located may submit its own opinion to the court or administrative body, in accordance with the procedures of that forum.
Article 17.21. Rights of Individuals
Neither Party may grant a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.
Article 17.22. Alternative Means of Dispute Resolution
1. Each Party shall, in accordance with its national legislation, promote and facilitate recourse to arbitration and other alternative means for the settlement of international commercial disputes between private parties.
2. To this end, each Party shall provide for appropriate procedures to ensure the enforcement of arbitration agreements and the recognition and enforcement of arbitral awards rendered in such disputes.
3. Parties shall be deemed to be in compliance with paragraph 2 if they are party to and comply with the provisions of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the 1975 Inter-American Convention on International Commercial Arbitration.
4. The Administrative Commission may establish an Advisory Committee on Private Commercial Disputes composed of persons having expertise or experience in the resolution of private international commercial disputes. The Committee shall submit reports and recommendations of a general nature to the Administrative Commission on the existence, use and effectiveness of arbitration and other procedures for the settlement of such disputes.
Chapter XVIII. Transparency
Article 18.1. Definition
For the purposes of this Chapter, the following definitions shall apply: administrative ruling of general application: an administrative ruling or interpretation that applies to all persons and factual situations that generally fall within its scope, and that establishes a rule of conduct, but does not include:
(a) rulings or decisions in an administrative or quasi-judicial proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that resolves with respect to a particular act or practice.
Article 18.2. Points of Contact
1. Each Party shall notify, within 60 days after the date of entry into force of this Agreement, the designation of a contact point to facilitate communications between the Parties on any matter covered by this Agreement.
2. When requested by a Party, the contact point of the other Party shall indicate the unit or official responsible for the matter and provide such support as may be required to facilitate communication with the requesting Party.
Article 18.3. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application that relate to any matter covered by this Agreement are promptly published or made available for the information of the Parties and any interested party.
2. To the extent possible, each Party:
(a) publish in advance any measures it intends to adopt; and
(b) provide interested persons and Parties with a reasonable opportunity to comment on the proposed measures.
Article 18.4. Notification and Provision of Information
1. To the extent possible, each Party shall notify the other Party(ies) of any existing or proposed measure that the Party considers may substantially affect or affect the operation of this Agreement or the interests of another Party under the terms of this Agreement.
2. Each Party shall, at the request of the other Party, provide information and promptly respond to its questions concerning any measure in force or proposed, whether or not that other Party has been previously notified of such measure.
3. The notification or provision of information referred to in this Article shall be made without prejudice to whether or not the measure is compatible with this Agreement.
4. Notwithstanding any other provision of this Agreement, the Parties shall treat confidential information provided by a Party as confidential.
Article 18.5. Administrative Procedures
In order to administer in a consistent, impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that, in its administrative procedures applying the measures referred to in Article 18.3 with respect to particular persons, goods or services of the other Party in specific cases:
(a) whenever possible, persons of the other Party who are directly affected by a proceeding are given, in accordance with domestic law, reasonable notice of the commencement of the proceeding, including a description of its nature, a statement of the competent authority legally responsible for initiating the proceeding, an indication of the legal basis and a general description of all issues in dispute;
(b) where time, the nature of the proceeding and the public interest permit, such persons are given a reasonable opportunity to present facts and arguments in support of their claims prior to any final administrative action; and
(c) their procedures are in accordance with their national legislation.
Article 18.6. Review and Challenge
1. Each Party shall establish or maintain tribunals or procedures of a judicial, quasi-judicial, or administrative nature for the purpose of the prompt review and, where warranted, correction of final administrative actions relating to matters covered by this Agreement. These tribunals shall be impartial and not connected with the agency or administrative enforcement authority, and shall have no substantial interest in the outcome of the matter.
2. Each Party shall ensure that, before such courts or in such proceedings, the parties have the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) adecision based on the evidence and arguments or, in cases where required by national legislation, on the record compiled by the administrative authority.
3. Each Party shall ensure that, subject to the means of challenge or further review available under its domestic law, such rulings are implemented by the agencies or authorities and govern the practice of the agencies or authorities with respect to the administrative action in question.
Chapter XIX. Administration of the Treaty
Article 19.1. Administrative Commission
1. The Parties establish the Administrative Commission, composed of the officials of each Party at the ministerial level referred to in Annex 19.1, or by the persons designated by them.
2. The Administrative Commission shall have the following functions:
(a) to ensure compliance with and the correct application of the provisions of this Treaty;
(b) evaluate the results achieved in the implementation of the Treaty, monitor its development and analyze any proposed amendments and, if necessary, recommend their adoption to the Parties;
(c) propose measures aimed at the administration and development of the Treaty;
(d) contribute to the resolution of disputes arising from its interpretation and application;
(e) to fix the amounts of remuneration and expenses to be paid to panelists, their assistants and experts;
(f) oversee the work of all committees and working groups established pursuant to this Treaty; and
(g) to hear any other matter that may affect the operation of this Agreement, or that may be entrusted to it by the Parties.
3. The Administrative Commission may:
(a) establish and delegate responsibilities to committees and working groups;
(b) adopt, in compliance with the objectives of this Treaty, the necessary decisions to:
(i) accelerate the tariff reduction of the schedules in the sections of Annex 3.4 (Tariff Treatment Schedule), as appropriate;
(ii) incorporate goods into the Tariff Treatment Program set out in the schedules of the sections of Annex 3.4 (Tariff Treatment Program), as appropriate, and improve the conditions of access to the goods contained in that Annex;
(iii) to establish and adapt the CIRI Operating Regulations of Chapter IV (Rules of Origin), Annex 4.20 (Scope of Work of the Regional Input Integration Committee), the Uniform Regulations of Chapter V (Customs Procedures Relating to the Origin of Goods), the Model Rules of Procedure and the Code of Conduct of Chapter XVII (Dispute Settlement); and
(iv) adjust or add Annex 3.16 (Preferential Tariff Treatment for Goods Classified in Chapter 62 of the Harmonized System Incorporating Materials of the United States of America); the rules of origin set forth in Annex 4.3 (Specific Rules of Origin); the Annex 11.31 (Delivery of Documents); adapt Annexes I (Nonconforming Measures), Il (Future Measures) and Ill (Activities Reserved to the State); and Annex 10.2 (Coverage); (c) issue interpretations of the provisions of this Agreement;
(d) seek advice from individuals or groups with no governmental connection; and
(e) adopt measures or any other action that will contribute to the better implementation of this Treaty and for the exercise of its functions.
4. Each Party shall implement, in accordance with its domestic legal procedures, any decision adopted pursuant to paragraph 3(b) within the period agreed by the Parties.
5. When the Administrative Commission adopts a decision pursuant to paragraph 3(b) and it concerns bilateral matters pursuant to paragraphs 8 and 9, the adoption, approval and implementation of that decision by the other Parties shall not be required.
6. The Administrative Commission shall meet at least once a year in ordinary session and, at the request of any Party, in extraordinary session. These meetings may be held in person or by any technological means. The sessions shall be chaired successively by each Party.
7. The Administrative Committee shall establish its rules and procedures. All its decisions shall be taken by consensus, without prejudice to the provisions of paragraphs 8 and 9.