8. In the event of an alleged breach of this Code of Conduct, Annex 15-B shall apply to any challenge, disqualification, or replacement of an arbitrator.
Disclosure Obligations
9. Throughout the Tribunal proceeding, each candidate or arbitrator has a continuing obligation to disclose any interest, relationship, or matter that may bear on the integrity or impartiality of the dispute settlement process.
10. The disputing parties or the designated appointing authority shall provide a candidate a copy of this Code of Conduct and the Initial Disclosure Statement Form set out in Appendix 15-C.1 to this Code of Conduct.
11. A candidate shall submit the Initial Disclosure Statement Form set out in Appendix 15-C.1 to this Code of Conduct to the disputing parties or the designated appointing authority as soon as possible and no later than seven days from receipt of that Initial Disclosure Statement Form.
12. A candidate shall disclose any interest, relationship, or matter that is likely to affect their independence or impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias in the Tribunal proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interest, relationship or matter. Therefore, a candidate shall disclose, at a minimum, the following interests, relationships and matters:
(a) any financial or personal interest of the candidate in:
(i) the Tribunal proceeding or its outcome; and
(ii) an administrative proceeding, a domestic judicial proceeding, or any other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding for which the candidate is under consideration;
(b) any financial interest of the candidate’s employer, business partner, business associate, or family member in:
(i) the Tribunal proceeding or its outcome; and
(ii) an administrative proceeding, a domestic judicial proceeding, or any other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding for which the candidate is under consideration;
(c) any past or current financial, business, professional, family, or social relationship with any interested parties (15) in the Tribunal proceeding or their counsel, or involving a candidate’s employer, business partner, business associate, or family member; and
(d) any public advocacy or legal or other representation concerning an issue in dispute in the Tribunal proceeding or involving the same investment.
13. Once appointed, an arbitrator shall continue to make all reasonable efforts to become aware of any interest, relationship, or matter referred to in paragraph 12, and shall disclose them. The obligation to disclose is a continuing duty that requires an arbitrator to disclose that interest, relationship, or matter that may arise during any stage of the Tribunal proceeding.
14. In the event of any uncertainty regarding whether an interest, relationship, or matter must be disclosed under paragraph 12 or 13, a candidate or arbitrator should err in favour of disclosure. Disclosure of an interest, relationship or matter is without prejudice as to whether the interest, relationship or matter is covered by paragraph 12 or 13, or whether it warrants recusal, amelioration or disqualification.
15. The disclosure obligations set out in paragraphs 9 through 14 should not be interpreted so that the burden of detailed disclosure makes it impractical for individuals in the legal or business community to serve as arbitrators, thereby depriving the disputing parties of the services of those who might be best qualified to serve as arbitrators. Thus, a candidate or arbitrator should not be called upon to disclose an interest, relationship, or matter whose bearing on the candidate’s or arbitrator’s role in the Tribunal proceeding would be trivial.
Performance of Duties by Candidates and Arbitrators
16. A candidate who accepts an appointment as an arbitrator shall be available to perform, and shall perform, once the arbitrator is appointed, an arbitrator’s duties thoroughly, fairly, diligently, and expeditiously throughout the course of the Tribunal proceeding.
17. An arbitrator shall ensure that they are contactable, at all reasonable times, by the designated appointing authority, disputing parties, administering authority in charge of the proceeding, and other arbitrators of the Tribunal in order to conduct Tribunal work.
18. An arbitrator shall comply with the provisions of Section D and Section E, as applicable, and Annex 15-B.
19. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the Tribunal proceeding.
20. An arbitrator shall consider only those issues raised in the Tribunal proceeding and necessary to make a decision, order, or award.
21. An arbitrator shall not delegate the duty to make a decision, order, or award to any other person.
22. An arbitrator shall take all reasonable steps to ensure that their assistants and staff comply with paragraphs 2, 9, 12, 13, 15, 18, 23, 24 and 34 through 37 of this Code of Conduct.
23. An arbitrator shall not engage in any ex parte contact concerning the Tribunal proceeding.
24. A candidate or arbitrator shall only communicate matters concerning actual or potential violations of this Code of Conduct, or if necessary to ascertain whether that candidate or arbitrator has violated or may violate this Code of Conduct, to the designated appointing authority, the disputing parties and arbitration institution in charge of the proceedings.
25. Each arbitrator shall keep a record and render a final account of the time devoted to the Tribunal proceeding and of their expenses, as well as the time and expenses of their staff and assistants.
Independence and Impartiality of Arbitrators
26. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner and shall not create an appearance of impropriety or an apprehension of bias.
27. An arbitrator shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a disputing party or a non-disputing Party, or fear of criticism.
28. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of their duties.
29. An arbitrator shall not use their position on the Tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator. An arbitrator shall make every effort to prevent or discourage others from representing themselves as being in that position.
30. An arbitrator shall not allow past or ongoing financial, business, professional, family, or social relationships or responsibilities to influence their conduct or judgment.
31. An arbitrator shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect their impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias.
32. If an interest, relationship, or matter of a candidate or arbitrator is inconsistent with paragraphs 26 through 31, the candidate may accept appointment to a Tribunal, and an arbitrator may continue to serve on a Tribunal, if the disputing parties waive the violation or if, after the candidate or arbitrator has taken steps to ameliorate the violation, the disputing parties determine that the inconsistency has ceased.
Duties of Former Arbitrators
33. A former arbitrator shall avoid actions that may create the appearance that the arbitrator was biased in carrying out their duties or would benefit from the decision, order or award of the Tribunal.
Maintenance of Confidentiality
34. An arbitrator or former arbitrator shall not at any time disclose or use any non-public information concerning the Tribunal proceeding or acquired during the Tribunal proceeding, except for the purposes of the Tribunal proceeding and shall not, in any case, disclose or use that information to gain a personal advantage, or an advantage for another person, or to adversely affect the interest of another person.
35. An arbitrator shall not disclose a decision, order, or award, or a part thereof, prior to its publication in accordance with Section D.
36. An arbitrator or former arbitrator shall not at any time disclose the deliberations of the Tribunal, or any arbitrator’s view. (16)
37. An arbitrator shall not make a public statement regarding the merits of a pending Tribunal proceeding.
Responsibilities of Experts, Assistants and Staff
38. Paragraphs 2, 9, 12, 13, 14, 15, 18, 23, 24, and 33 through 37 of this Code of Conduct shall also apply to experts, assistants, and staff.
Review
39. A Party may request to review and amend this Code of Conduct to take into account, as appropriate, relevant developments concerning investor-State dispute settlement.
Appendix 15-C.1. Appendix to the Arbitrator Code of Conduct for Investor-State Dispute Settlement: Initial Disclosure Statement Form
1. I acknowledge having received a copy of the Arbitrator Code of Conduct for Investor-State Dispute Settlement (Code of Conduct).
2. I acknowledge having read and understood the Code of Conduct.
3. I understand that I have a continuing obligation, while participating in the Tribunal proceeding, to disclose an interest, relationship, or matter that may bear on the integrity or impartiality of the dispute settlement process. As a part of this continuing obligation, I am making the following initial disclosures:
(a) My financial interest in the Tribunal proceeding for which I am under consideration or in its outcome is as follows:
(b) My financial interest in any administrative proceeding, domestic judicial proceeding, or other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding is as follows:
(c) The financial interests that any employer, business partner, business associate, or family member of mine may have in the Tribunal proceeding or in its outcome are as follows:
(d) The financial interests that any employer, business partner, business associate, or family member of mine may have in any administrative proceeding, domestic judicial proceeding or other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding are as follows:
(e) My past or current financial, business, professional, family, and social relationships with any interested party in the Tribunal proceeding, or their counsel, are as follows:
(f) The past or current financial, business, professional, family, and social relationships with any interested party in the Tribunal proceeding, or their counsel, involving any employer, business partner, business associate, or family member of mine are as follows:
(g) My public advocacy or legal or other representation concerning an issue in dispute in the Tribunal proceeding or involving the same investment is as follows:
(h) My other interests, relationships and matters that may bear on the integrity or impartiality of the dispute settlement process and that are not disclosed in paragraphs 3(a) through (g) above are as follows:
Signed on this day of , 20 .
By:
Signature
Name
Chapter 16. CROSS-BORDER TRADE IN SERVICES
Article 16.1: Definitions
For the purposes of this Chapter:
computer reservation system services means services provided by computerised systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
cross-border trade in services or cross-border supply of services means the supply of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party,
but does not include the supply of a service in the territory of a Party by a covered investment;
enterprise means an enterprise as defined in Article 1.7 (Initial Provisions and General Definitions – General Definitions), or a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the domestic law of a Party, or a branch of an enterprise located in the territory of a Party and carrying out business activities in that territory;
professional service means a service, the provision of which requires specialized education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include a service provided by a tradesperson, or a vessel or aircraft crew member;
selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
service supplied in the exercise of governmental authority means, for a Party, any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers; and
service supplier of a Party means a person of a Party that seeks to supply or supplies a service.
Article 16.2: Scope
1. This Chapter applies to measures adopted or maintained by a Party relating to cross-border trade in services by a service supplier of the other Party, including a measure relating to:
(a) the production, distribution, marketing, sale or delivery of a service, including by electronic means;
(b) the purchase or use of, or payment for, a service, including by electronic means;
(c) the access to or use of distribution, transport, or telecommunications networks or services in connection with the supply of a service; or
(d) the presence in the Party’s territory of a service supplier of the other Party for the supply of a service.
2. This Chapter does not apply to:
(a) financial services as defined in Article 18.1 (Financial Services – Definitions);
(b) government procurement;
(c) services supplied in the exercise of governmental authority;
(d) subsidies or grants provided by a Party or a state enterprise, including government-supported loans, guarantees, and insurance.
3. This Chapter does not apply to air services, including domestic and international air transport services, whether scheduled or non-scheduled, or to related service in support of air services, other than the following:
(a) aircraft repair and maintenance services during which an aircraft is withdrawn from service, excluding so-called line maintenance;
(b) the selling and marketing of air transport services; and
(c) computer reservation system services.
4. In the event of any inconsistency between this Agreement and a bilateral, plurilateral, or multilateral air services agreement to which both Parties are party, the air services agreement prevails in determining the rights and obligations of the Parties.
5. If the Parties have the same obligations under this Agreement and a bilateral, plurilateral, or multilateral air services agreement, they may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.
6. If the Annex on Air Transport Services of GATS is amended, the Parties shall jointly review any new definitions with a view to aligning the definitions in this Agreement with those definitions, as appropriate.
7. This Chapter does not impose an obligation on a Party with respect to a national of the other Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.
Article 16.3: National Treatment
1. Each Party shall accord to a service or service supplier of the other Party treatment no less favourable than that it accords, in like circumstances, to its own services and service suppliers.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government to services or service suppliers of the Party of which it forms a part.
3. For greater certainty, whether treatment referred to in paragraph 1 is accorded in “like circumstances” depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or services suppliers on the basis of legitimate policy objectives.
Article 16.4: Most-Favoured-Nation Treatment
1. Each Party shall accord to a service or service supplier of the other Party treatment no less favourable than that it accords, in like circumstances, to services and service suppliers of a non-party.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government in its territory to services or service suppliers of a non-party.
3. For greater certainty, whether treatment referred to in paragraph 1 is accorded in “like circumstances” depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or services suppliers on the basis of legitimate policy objectives.
Article 16.5: Market Access
A Party shall not adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, a measure that:
(a) imposes a limitation on:
(i) the number of service suppliers, whether in the form of a numerical quota, monopoly, exclusive service suppliers or the requirement of an economic needs test;
(ii) the total value of service transactions or assets in the form of a numerical quota or the requirement of an economic needs test;
(iii) the total number of service operations or the total quantity of service output expressed in terms of a designated numerical unit in the form of a quota or the requirement of an economic needs test;1 or
(iv) the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of a numerical quota or the requirement of an economic needs test; or
(b) restricts or requires a specific type of legal entity or joint venture through which a service supplier may supply a service.
Article 16.6: Formal Requirements
1. Article 16.3 does not prevent a Party from adopting or maintaining a measure that prescribes formal requirements in connection with the supply of a service, provided these requirements are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination. These measures include requirements:
(a) to obtain a licence, registration, certification, or authorization in order to supply a service or as a membership requirement of a particular profession, such as requiring membership in a professional organization or participation in collective compensation funds for members of professional organizations;
(b) for a service supplier to have a local representative for service or maintain a local address;
(c) to speak a national language or hold a driver’s licence; or
(d) that a service supplier:
(i) post a bond or other form of financial security;
(ii) establish or contribute to a trust account;
(iii) maintain a particular type and amount of insurance;
(iv) provide other similar guarantees; or
(v) provide access to records.
1 Subparagraph (a)(iii) does not cover measures of a Party which limit inputs for the supply of services.
Article 16.7: Non-Conforming Measures
1. Article 16.3, Article 16.4, and Article 16.5 do not apply to:
(a) an existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in its Schedule to Annex I;
(ii) the regional level of government, as set out by that Party in its Schedule to Annex I; or
(iii) a level of government other than at the central and regional level;
(b) the continuation or prompt renewal of a non-conforming measure referred to in subparagraph (a); or
(c) an amendment to a non-conforming measure referred to in subparagraph (a), to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Article 16.3, Article 16.4, or Article 16.5.
2. Article 16.3, Article 16.4 and Article 16.5 do not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors or activities, as set out by that Party in its Schedule to Annex II.
Article 16.8: Recognition
1. For the purposes of the fulfilment, in whole or in part, of a Party’s standards or criteria for the authorization, licensing, or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognize the education or experience obtained, requirements met, or licences or certifications granted in a particular country. This recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned, or may be accorded autonomously.
2. If a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met or licences or certifications granted in the territory of a non-party, Article 16.4 is not to be construed to require the Party to accord recognition to the education or experience obtained, requirements met, or licences or certifications granted in the territory of the other Party.
3. Each Party shall endeavour to publish, by electronic means, relevant information, including appropriate descriptions, concerning a recognition agreement or arrangement of the type referred to in paragraph 1, that the Party or relevant bodies or authorities in its territory have concluded.
4. A Party that is party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate accession to that agreement or arrangement or to negotiate a comparable one. If a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licences or certifications obtained, or requirements met in that other Party’s territory should be recognized.
5. A Party shall not accord recognition in a manner that would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, certification or licensing of service suppliers, or a disguised restriction on trade in services.
6. The Parties should seek to ensure that recognition does not require citizenship or any form of residency, or education, experience, or training in the territory of the host jurisdiction.
7. As set out in Annex 16-A, the Parties shall endeavour to facilitate trade in professional services including through the establishment of a Professional Services Working Group.
Article 16.9: Denial of Benefits
1. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise owned or controlled by a person of a non-party, and the denying Party adopts or maintains a measure with respect to the non-party or a person of the non-party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise.
2. A Party may deny the benefits of this Chapter to a service supplier of the other Party if the service supplier is an enterprise:
(a) that is owned or controlled by a person of a non-party, or by a person of the denying Party; and
(b) that has no substantial business activities in the territory of the other Party.
Article 16.10: Payments and Transfers