6. Prior to confirmation of their appointment as a panellist under this Chapter, a candidate shall complete and submit to the Parties the Undertaking and Initial Disclosure Statement set out in the Appendix to this Annex. To this end, before a candidate’s appointment is confirmed, the nominating Party shall provide that candidate with a copy of this Code of Conduct and Undertaking and Initial Disclosure Statement. The candidate shall complete the Undertaking and Initial Disclosure Statement and submit it to the Parties no later than seven days of the date on which they receive the documents from the nominating Party.
7. Once appointed, a panellist shall continue to make all reasonable efforts to become aware of interests, relationships, or matters referred to in paragraph 3 of this Annex and shall disclose them. The obligation to disclose is a continuing duty that requires a panellist to disclose those interests, relationships, and matters that may arise during any stage of the proceedings. The panellist shall promptly disclose those interests, relationships, and matters by informing the Parties, in writing, for consideration by them.
8. In the event of any uncertainty regarding whether an interest, relationship, or matter shall be disclosed, a candidate or panellist should err in favor of disclosure. Disclosure of an interest, relationship, or matter is without prejudice as to whether the interest, relationship, or matter is covered by paragraph 3, 5, 6 or 7, or whether it warrants recusal, disqualification, or other remedial measures.
9. The disclosure obligations set out in paragraphs 3 through 8 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 panellists, thereby depriving the Parties of the services of those who might be best qualified to serve as panellists. These disclosure obligations do not require candidates or panellists to disclose interests, relationships or matters whose bearing on a panellist’s role in the proceedings would be trivial.
10. This Annex does not determine whether or under what circumstances the Parties will disqualify a candidate or panellist from being appointed to, or serving as a member of, a panel on the basis of disclosures made.
Performance of Duties by Panellists
11. Recognizing that the prompt settlement of disputes is essential to the effective functioning of this Agreement, a panellist shall:
(a) be available to perform, and shall perform, all duties thoroughly and expeditiously throughout the course of the proceedings and shall avoid unnecessary expense and delay;
(b) ensure that they can be contacted, at all reasonable times, for the purposes of conducting the work of the panel;
(c) carry out all duties fairly and diligently;
(d) comply with the provisions of this Chapter and Annex 27-B;
(e) not deny other panelists the opportunity to participate in all aspects of the proceedings;
(f) consider only those issues raised in the proceedings and necessary to make a decision;
(g) not delegate the duty to decide to any other person;
(h) take all reasonable steps to ensure that their assistants and staff comply with paragraphs 2 through 23 of this Annex.
Independence and Impartiality of Panellists
12. A panellist shall be independent and impartial and avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public opinion, and loyalty to a Party or fear of criticism. A panellist shall not take instructions from any organization or government or be affiliated to a government, including governmental organization, of a Party to this Agreement.
13. A panellist 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.
14. A panellist shall not use their position on the panel to advance any personal or private interests. A panellist shall avoid actions that may create the impression that others are in a special position to influence them. A panellist shall make every effort to prevent or discourage others from representing themselves as being in that position.
15. A panellist shall not allow past or existing financial, business, professional, family, or social relationships or responsibilities to influence their conduct or judgment.
16. A panellist 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.
17. If the Parties decide that an interest, relationship, or matter of a panellist is inconsistent with paragraphs 12 through 16, the panellist may continue to serve on a panel if the Parties waive the inconsistency or if, after the panellist has taken steps to ameliorate the violation, the Parties determine that the inconsistency has ceased and decide the panellist should continue to serve.
Duties in Certain Situations
18. In any proceedings under this Chapter, a panellist shall refrain, for the duration of the proceedings, from acting as counsel or party-appointed expert witness in any new or pending dispute, under this Agreement or other international agreements, that directly addresses the same measure in dispute in, or arises out of the facts giving rise to, the proceedings under this Chapter.
19. A former panellist shall avoid actions that may create the appearance that the panellist was biased in carrying out their duties or would benefit from the decision of the panel.
Confidentiality
20. A panellist or former panellist shall not at any time disclose or use any non-public information concerning proceedings or acquired during proceedings except for the purposes of those proceedings and shall not, in any case, disclose or use this information to gain personal advantage or advantage for others or to affect adversely the interest of others.
21. A panellist shall not disclose a panel report or parts thereof prior to its issuance pursuant to Article 27.13.
22. A panellist or former panellist shall not disclose the deliberations of a panel, or the views of any member of the panel.
23. A panellist shall not make a public statement regarding the merits of pending proceedings.
Experts
24. The following conditions apply to an expert whose opinion is requested by the panel:
(a) They shall disclose any interest, relationship or matter that could affect their independence or impartiality. Experts shall act in their own capacity and shall not accept or seek instructions from any government or organization in delivering their opinion;
(b) They shall not engage in ex parte contacts in the course of the proceedings for which their opinion is requested;
(c) They shall not disclose or use any non-public information acquired during proceedings for which their opinion is requested except for the purposes of the proceedings and shall not, in any case, disclose or use this information to gain personal advantage or advantage for others or to adversely affect the interest of others;
(d) Unless the Parties decide otherwise, they shall not disclose to the public their opinion or parts thereof prior to the publication of the panel award; and
(e) They shall keep a record and render a final account of their expenses for the purposes of the proceedings.
25. The opinion of an expert presented to the panel shall be accompanied, or preceded, by a declaration by the expert confirming their commitment to abide by the obligations described in paragraph 24, as applicable.
Responsibilities of Experts, Assistants and Staff
26. Paragraphs 2 through 23 of this Annex also apply to experts, assistants and staff.
Appendix 27-C.1
Undertaking and Initial Disclosure Statement
1. By means of this Undertaking and Initial Disclosure Statement I accept the appointment and confirm my availability to serve as a panellist in accordance with Chapter 27 of the Canada-Ecuador Free Trade Agreement. If my appointment as a panellist is confirmed, I undertake to act in accordance with Chapter 27 (Dispute Settlement), including Annex 27-B (Rules of Procedure) and Annex 27-C (Code of Conduct).
2. I acknowledge having received a copy of the Code of Conduct set out as Annex 27-C to Chapter 27 of the Canada-Ecuador Free Trade Agreement.
I acknowledge having read and understood the Code of Conduct and hereby undertake to fully comply with my obligations under the Code of Conduct.
3. I understand that I have a continuing obligation, while participating in the proceedings, to disclose interests, relationships and matters that may undermine 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 proceedings or in its outcome is as follows:
(b) My financial interest in any administrative proceedings, domestic judicial proceedings or other international dispute settlement proceedings that involve issues that may be decided in the proceedings is as follows:
(c) The financial interest that any employer, business partner, business associate or family member of mine may have in the proceedings or in its outcome are as follows:
(d) The financial interest that any employer, business partner, business associate or family member of mine may have in any administrative proceedings, domestic judicial proceedings or other international dispute settlement proceedings that involve issues that may be decided in the proceedings are as follows:
(e) My past or current financial, business, professional, family and social relationships with any interested parties in the proceedings, or their counsel, are as follows:
(f) The past or current financial, business, professional, family and social relationships with any interested parties in the proceedings, 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 proceedings or involving the same goods, services, investments or government procurement is as follows:
(h) My other interests, relationships and matters that may undermine the integrity or impartiality of the dispute settlement process and that are not disclosed in subparagraphs (a) through (g) above are as follows:
Signed on this day of , 20 .
By:
(Name)
(Signature)
Chapter 28. EXCEPTIONS AND GENERAL PROVISIONS
Section A. Exceptions
Article 28.1. General Exceptions
1. For the purposes of Chapters 2 (National Treatment and Market Access for Goods), 3 (Rules of Origin), 4 (Origin Procedures), 5 (Customs and Trade Facilitation), 7 (Technical Barriers to Trade) and 10 (State-Owned Enterprises and Designated Monopolies), Article XX of the GATT 1994, is incorporated into and made part of this Agreement.
2. The Parties understand that:
(a) the measures referred to in Article XX(b) of the GATT 1994 include environmental measures necessary to protect human, animal or plant life or health; and
(b) Article XX(g) of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
3. For the purposes of Chapters 10 (State-Owned Enterprises and Designated Monopolies), 16 (Cross-Border Trade in Services), 18 (Financial Services), 19 (Temporary Movement of Business Persons), 20 (Telecommunications), and
21 (Digital Trade), the chapeau, as well as paragraphs (a), (b), and (c) of Article XIV of the GATS are incorporated into and made part of this Agreement.
4. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal or plant life or health.
5. The Parties recognize that the measures under Article XX(b) and (g) of the GATT 1994 and Article XIV(b) of the GATS include measures taken by the Parties to address climate change, and may include measures taken to implement multilateral environmental agreements.
6. This Agreement does not prevent a Party from taking action, including maintaining or increasing a customs duty, that is authorized by the Dispute Settlement Body of the WTO or is taken as a result of a decision by a dispute settlement panel under a free trade agreement to which the Party taking action and the Party against which the action is taken are party.
Article 28.2. Security Exceptions
This Agreement does not:
(a) require a Party to furnish or allow access to information if that Party determines that the disclosure of the information would be contrary to its essential security interests; or
(b) prevent a Party from taking an action that it considers necessary to protect its essential security interests:
(i) related to traffic in arms, ammunition and implements of war and to traffic and transactions in other goods and materials carried out, directly or indirectly, for the purpose of supplying a military or other security establishment;
(ii) related to the supply of services and technology, and to economic activities, carried out directly or indirectly for the purpose of supplying a military or other security establishment;
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of biological weapons, chemical weapons, nuclear weapons, or other nuclear explosive devices; or
(iv) taken in time of war or other emergency in international relations; or
(c) prevent a Party from taking action in pursuance of its international obligations for the maintenance of international peace and security.
Article 28.3. Taxation
1. For the purposes of this Article:
designated authorities means:
(a) for Canada, the Assistant Deputy Minister for Tax Policy, Department of Finance; and
(b) for Ecuador, the Ecuadorian Revenue Service (“SRI”);
or any successor of these designated authorities as notified in writing to the other Party;
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
taxes and taxation measures include excise duties, but do not include:
(a) a “customs duty” as defined in Article 2.1 (National Treatment and Market Access for Goods – Definitions); or
(b) the measures listed in subparagraphs (a), (b), (c) and (d) of that definition.
2. Except as provided in this Article, this Agreement does not apply to taxation measures.
3. This Agreement does not affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any tax convention, that convention prevails to the extent of the inconsistency.
4. In the case of a tax convention between the Parties, if an issue arises as to whether any inconsistency exists between this Agreement and the tax convention, the issue shall be referred to the designated authorities of the Parties. The designated authorities of the Parties shall have six months from the date of referral of the issue to make a determination as to the existence and extent of any inconsistency. If those designated authorities agree, the period may be extended up to 12 months from the date of referral of the issue. No procedures concerning the measure giving rise to the issue may be initiated under Chapter 27 (Dispute Settlement) or Article 15.23 (Investment – Submission of a Claim to Arbitration) until the expiry of the six-month period, or any other period as may have been agreed by the designated authorities. A panel or tribunal established to consider a dispute related to a taxation measure shall accept as binding a determination of the designated authorities of the Parties made under this paragraph.
5. Notwithstanding paragraph 3, Article 2.3 (National Treatment and Market Access for Goods – National Treatment) and other provisions of this Agreement as are necessary to give effect to that Article apply to taxation measures to the same extent as does Article III of the GATT 1994.
6. Subject to paragraph 3:
(a) Article 16.3 (Cross-Border Trade in Services – National Treatment) and Article 18.3 (Financial Services – National Treatment) apply to taxation measures on income, on capital gains, on the taxable capital of corporations, or on the value of an investment or property (1) (but not on the transfer of that investment or property), that relate to the purchase or consumption of particular services, except that this subparagraph does not prevent a Party from conditioning the receipt or continued receipt of an advantage that relates to the purchase or consumption of particular services on requirements to provide the service in its territory;
(b) Article 15.6 (Investment – National Treatment), Article 15.7 (Investment – Most-Favoured Nation Treatment), Article 16.3 (Cross-Border Trade in Services – National Treatment), Article 16.4 (Cross-Border Trade in Services – Most-Favoured Nation Treatment), Article 18.3 (Financial Services – National Treatment), Article 18.4 (Financial Services – Most-Favoured Nation Treatment) and Article 21.10 (Digital Trade – Non-Discriminatory Treatment of Digital Products) apply to all taxation measures, other than those on income, on capital gains, on the taxable capital of corporations, on the value of an investment or property (2) (but not on the transfer of that investment or property), or taxes on estates, inheritances, gifts and generation-skipping transfers; and
(c) Article 21.10 (Digital Trade – Non-Discriminatory Treatment of Digital Products) applies to taxation measures on income, on capital gains, on the taxable income of corporations, or on the value of an investment or property (3) (but not on the transfer of that investment or property), that relate to the purchase or consumption of particular digital products, except that this subparagraph does not prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular digital products on requirements to provide the digital product in its territory,
but the Articles referred to in subparagraphs (a), (b) and (c) do not apply to:
(d) any most-favoured nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(e) a non-conforming provision of any existing taxation measure;
(f) the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(g) an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;
(h) the adoption or enforcement of any new taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes, including any taxation measure that differentiates between persons based on their place of residence for tax purposes, provided that the taxation measure does not arbitrarily discriminate between persons, goods or services of the Parties; (4)
(i) a provision that conditions the receipt or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, pension plan, superannuation fund or other arrangement to provide pension, superannuation or similar benefits, on a requirement that the Party maintain continuous jurisdiction, regulation or supervision over that trust, plan, fund or other arrangement.
7. Subject to paragraph 3, and without prejudice to the rights and obligations of the Parties under paragraph 5, paragraphs 2 and 3 of Article 15.12 (Investment – Performance Requirements) apply to taxation measures.
8. Article 15.10 (Investment – Expropriation) applies to taxation measures. However, no investor may invoke Article 15.10 (Investment – Expropriation) as the basis for a claim if it has been determined pursuant to this paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 15.10 (Investment – Expropriation) with respect to a taxation measure must first refer to the designated authorities of the Party of the investor and the respondent Party, at the time that it gives its notice of intent under Article 15.23 (Investment – Submission of a Claim to Arbitration), the issue of whether that taxation measure is not an expropriation. If the designated authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of the referral, the investor may submit its claim to arbitration under Article 15.23 (Investment – Submission of a Claim to Arbitration).
Article 28.4. Cultural Industries
1. For the purposes of this Article:
cultural industry means a person engaged in the following activities:
(a) the publication, distribution, or sale of books, magazines, periodicals or newspapers in print or machine readable form but not including the sole activity of printing or typesetting any of the foregoing;
(b) the production, distribution, sale or exhibition of film or video recordings;
(c) the production, distribution, sale or exhibition of audio or video music recordings;
(d) the publication, distribution or sale of music in print or machine readable form;
(e) radiocommunications in which the transmissions are intended for direct reception by the general public, and all radio, television and cable broadcasting undertakings and all satellite programming and broadcast network services.
2. This Agreement does not apply to a measure adopted or maintained by a Party with respect to a cultural industry except as specifically provided in Article 2.5 (National Treatment and Market Access for Goods – Reduction or Elimination of Customs Duties on Imports).
Article 28.5. Balance of Payments
1. This Agreement does not prevent a Party from adopting or maintaining a restrictive measure with regard to payments or transfers for current account transactions in the event of serious balance of payments and external financial difficulties or threats thereof.
2. This Agreement does not prevent a Party from adopting or maintaining a restrictive measure with regard to payments or transfers relating to the movements of capital:
(a) in the event of serious balance of payments and external financial difficulties or threats thereof; or
(b) if, in exceptional circumstances, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for macroeconomic management.
3. Any measure adopted or maintained under paragraph 1 or 2 shall:
(a) not be inconsistent with Article 15.6 (Investment – National Treatment), Article 15.7 (Investment – Most-Favoured-Nation Treatment), Article 16.3 (Cross-Border Trade in Services – National Treatment), Article 16.4 (Cross-Border Trade in Services – Most-Favoured-Nation Treatment), Article 18.3 (Financial Services – National Treatment) and Article 18.4 (Financial Services – Most-Favoured-Nation Treatment); (5)
(b) be consistent with the Articles of Agreement of the International Monetary Fund, done at Bretton Woods, on 22 July 1944;
(c) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(d) not exceed those measures necessary to deal with the circumstances described in paragraph 1 or 2;
(e) be temporary and be phased out progressively as the situations specified in paragraph 1 or 2 improve and shall not exceed 18 months in duration. In exceptional circumstances, a Party may extend that measure for additional periods of one year, by notifying the other Party in writing within 30 days of the extension, unless after consultations the other Party advises, in writing, within 30 days of receiving the notification that they do not agree that the extended measure is designed and applied to satisfy subparagraphs (c) and (d), in which case the Party imposing the measure shall remove the measure, or otherwise modify the measure to bring it into conformity with subparagraphs (c) and (d), taking into account the views of the other Party, within 90 days of receiving notification that the Party does not agree;
(f) not be inconsistent with Article 15.10 (Investment – Expropriation). (6)
4. A Party shall endeavour to provide that any measure adopted or maintained under paragraph 1 or 2 be price-based, and if that measure is not price-based, the Party shall explain the rationale for using quantitative restrictions when it notifies the other Party of the measure.
5. In the case of trade in goods, Article XII of the GATT 1994 and the Understanding on the Balance of Payments Provisions of the General Agreement on Tariffs and Trade 1994, set out in Annex 1-A to the WTO Agreement are incorporated into and made part of this Agreement. Any measure adopted or maintained under this paragraph shall not impair the relative benefits accorded to the other Party under this Agreement as compared to the treatment of a non-party.
6. With respect to trade in services, this Agreement does not prevent a Party from adopting a trade restrictive measure in order to safeguard its external financial position or balance of payments. This restrictive measure shall be compatible with the GATS.
7. A Party adopting or maintaining a measure under paragraph 1, 2 or 6 shall:
(a) notify, in writing, the other Party of the measure, including any changes therein, along with the rationale for its imposition, within 30 days of its adoption;
(b) present, as soon as possible, either a time schedule or the conditions necessary for its removal;
(c) promptly publish the measure; and
(d) promptly begin consultations with the other Party, with the purpose of reviewing the measure maintained or previously adopted by it, provided that consultations related to the measure are not being carried out before the WTO or under a trade agreement to which both Parties are party.
8. For the purposes of the consultations under this Article, the Parties shall accept all statistical or other factual findings presented by the International Monetary Fund on exchange, monetary reserves and balance of payments issues, and the conclusions shall be based on the evaluation made by the International Monetary Fund about the external financial and balance of payments situation of the Party subject to consultations.
Article 28.6. Indigenous Peoples Rights
Provided that the measure is not used as a means of arbitrary or unjustified discrimination against persons of the other Party or as a disguised restriction on trade in goods, services or investment, this Agreement does not prevent a Party from adopting or maintaining a measure it considers necessary to fulfill its legal obligations to Indigenous Peoples. (7)
Article 28.7. WTO Waivers
If the WTO Ministerial Conference decides to waive a right or obligation in the WTO Agreement pursuant to Article IX:3 of the WTO Agreement, the corresponding right or obligation in this Agreement shall also be waived for the Parties under the same terms and conditions that govern the application and duration of the WTO waiver.
Section B. General Provisions
Article 28.8. Disclosure of Information
This Agreement does not require a Party to furnish or allow access to information, the disclosure of which would be contrary to its law, or would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of a public or private enterprise.