1. The Complaining Party may request in writing for the establishment of an Arbitration Panel, if:
(a) the Party complained against does not enter into consultations within 30 days after the date of its receipt of the request for consultations under Article 12.4 (Consultations);
(b) the Parties fail to resolve a dispute 30 days after the date of receipt of the request for consultations regarding a matter concerning perishable goods; or
(c) the Parties fail to resolve a dispute 60 days after the date of receipt of the request for consultations regarding any other matter.
2. The request to establish an Arbitration Panel shall identify:
(a) the specific measures at issue;
(b) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached or any other relevant provisions; and
(c) the factual basis for the complaint.
3. The establishment of an Arbitration Panel shall not be requested on any matter relating to a proposed measure.
Article 12.7. Terms of Reference
Unless the Parties otherwise agree within 20 days from the date of receipt of the request for the establishment of the Arbitration Panel, the terms of reference of the Arbitration Panel shall be: "To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an Arbitration Panel pursuant to Article 12.6 (Request for the Establishment of an Arbitration Panel), to make findings of law and fact and determinations on whether the measure is not in conformity with the Agreement and to issue a written report for the resolution of the dispute. If the Parties agree, the Arbitration Panel may make recommendations for resolution of the dispute."
Article 12.8. Composition and Establishment of Arbitration Panel
1. An Arbitration Panel shall consist of three arbitrators. Each Party shall appoint one arbitrator, who may be its national, within 30 days of the date of the receipt of the request for the establishment of the Arbitration Panel.
2. The Parties shall agree on and appoint the third arbitrator, who shall be the chairperson of the Arbitration Panel, within 45 days of the date of receipt of the request for the establishment of the Arbitration Panel. If the chair of the Arbitration Panel has not been designated by the Parties within 15 days 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 Panel. If the chair of the Arbitration Panel has not been designated by the arbitrators within 30 days of the appointment of the second arbitrator, either Party may request the Director General of the WTO to appoint the third arbitrator to chair the Arbitration Panel. In the event where the Director General of the WTO is not able to appoint the third arbitrator, for any reason, within 45 days, the Parties to the dispute shall consult each other in order to jointly appoint the third arbitrator within a further period of 30 days. During this consultation, the Parties shall take into consideration the indicative list of governmental and non-governmental panellists established by the WTO.
3. The date of establishment of an Arbitration Panel shall be the date on which the last arbitrator is appointed.
4. All arbitrators shall have specialized knowledge or experience in law, international trade or other matters relating to this Agreement or in the resolution of disputes arising under international trade agreements. They shall be independent, serve in their individual capacities and not be affiliated with, nor take instructions from any Party or organisation related to this dispute and shall comply with Annex 12-1 of this Agreement.
5. The chair of the Arbitration Panel shall not be a national of a Party, nor have his or her usual place of residence in the territory of a Party and not be employed by either Party or have dealt with the matter in any capacity.
6. Where a Party considers that an arbitrator does not comply with the requirements of Code of Conduct, the Parties shall consult and, if so agreed, they shall replace that arbitrator in accordance with paragraph 7.
7. If an arbitrator appointed under this Article becomes unable to participate in the proceeding or resigns or is to be replaced according to paragraph 6, a successor shall be selected within 10 days in the same manner as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator. The work of the Arbitration Panel shall be suspended for a period beginning on the date the arbitrator becomes unable to participate in the proceeding, resigns, or is to be replaced according to paragraph 6. The work of the Arbitration Panel shall resume on the date the successor is appointed.
Article 12.9. Functions and Proceedings of the Arbitration Panel
1. The function of an Arbitration Panel is to make an objective assessment of the matter before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement, and make such other findings and rulings necessary for the resolution of the dispute referred to it.
2. Arbitration Panels shall interpret this Agreement in accordance with customary rules of interpretation of public international law.
3. Arbitration Panel meetings shall be closed to the public, unless the Parties decide otherwise. 4. The Parties shall be given the opportunity to provide at least one written submission and to attend any of the presentations, statements or rebuttals in the proceedings. All information or written submissions submitted by a Party to the Arbitration Panel, including any comments on the interim report and responses to questions put by the Arbitration Panel, shall be made available to the other Party.
5. A Party asserting that a measure of the other Party is inconsistent with this Agreement shall have the burden of establishing such inconsistency. A Party asserting that a measure is subject to an exception under this Agreement shall have the burden of establishing that the exception applies.
6. The Arbitration Panel should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution.
7. The Arbitration Panel shall take its decisions by consensus. In the event where the Arbitration Panel is unable to reach a consensus, it may take its decisions by majority vote.
8. On request of a Party or on its own initiative and subject to such terms and conditions as the Parties may agree within 10 days of the date of establishment of the Arbitration Panel, the Arbitration Panel may seek information from any relevant source and may consult experts to obtain their opinion or advice on certain aspects of the matter. The Arbitration Panel shall provide the Parties with a copy of any advice or opinion obtained and an opportunity to provide comments. Where the Arbitration Panel takes the information or technical advice into account in the preparation of its report, it shall also address any comments by the Parties on the information or technical advice.
9. The deliberations of the Arbitration Panel and the documents submitted to it shall be kept confidential.
10. Notwithstanding paragraph 9, either Party may make public statements as to its own position or submissions regarding the dispute, but shall treat as confidential, information and written submissions submitted by the other Party to the Arbitration Panel which the other Party has designated as confidential. Where a Party has provided information or written submissions designated to be confidential, that Party shall, within 30 days of a request of the other Party, provide a non-confidential summary of the information or written submissions which may be disclosed to the public.
Article 12.10. Expenses
Each Party shall bear the cost of its appointed arbitrator and its own expenses. The cost of the chairperson of an Arbitration Panel and other expenses associated with the conduct of the proceedings shall be borne by the Parties in equal shares.
Article 12.11. Arbitration Panel Report
1. The reports of the Arbitration Panel shall be drafted without the presence of the Parties. The Arbitration Panel shall base its reports on the relevant provisions of this Agreement and the submissions and arguments of the Parties, and may take into account any other relevant information provided to the Arbitration Panel in accordance with paragraph 8 of Article 12.9 (Functions and Proceedings of the Arbitration Panel).
2. The Arbitration Panel shall issue to the Parties an initial report setting out the findings of facts, the applicability of the relevant provisions, the basic rationale behind any findings and its conclusions within 90 days of the date of establishment of the Arbitration Panel. Where the Arbitration Panel considers it cannot issue its initial report within 90 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Under no circumstances should the initial report be issued later than 120 days after the date of the establishment of the Arbitration Panel.
3. Any Party may submit written comments to the Arbitration Panel on its initial report within 14 days of its issuance. After considering any written comments by the Parties on the initial report, the Arbitration Panel may reconsider its report and make any further examination it considers appropriate.
4. The Arbitration Panel shall issue its final report to the Parties within 120 days of the date of the establishment of the Arbitration Panel. Where the Arbitration Panel considers it cannot issue its final report within 120 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Under no circumstances should the ruling be issued later than 150 days after the date of the establishment of the Arbitration Panel.
5. The final report shall contain:
(a) the descriptive part summarising the submissions and arguments of the Parties;
(b) the findings of the fact;
(c) the applicability of relevant provisions and the basic rationale behind any findings;
(d) recommendation that the Party complained against bring the measure into conformity with the obligations under this Agreement; and
(e) recommendations, if the Parties agree, on the means to resolve the dispute. 6. The report of the Arbitration Panel shall be final and binding on the Parties.
7. The findings and determinations of the Arbitration Panel and, if applicable, any recommendations cannot add to or diminish the rights and obligations of the Parties provided in this Agreement.
8. On matters of urgency, including those regarding perishable goods, the Arbitration Panel shall make every effort to issue its interim and final reports to the Parties within half of the respective time periods under paragraphs 2 and 4. The Arbitration Panel may give a preliminary report on whether a case is urgent.
Article 12.12. Suspension or Termination of Proceedings
1. The Parties may agree that the Arbitration Panel suspend its work at any time for a period not exceeding 12 months from the date of such agreement. In the event of such a suspension, the time-frames regarding the work of the Arbitration Panel shall be extended by the amount of time that the work was suspended. If the work of the Arbitration Panel has been suspended for more than 12 months, the authority for establishment of the Arbitration Panel shall lapse unless the Parties agree otherwise. This shall not prejudice the rights of the complaining Party to request at a later stage, the establishment of an Arbitration Panel on the same subject matter.
2. The Parties may agree to terminate the proceedings of the Arbitration Panel by jointly so notifying the chairperson of the Arbitration Panel at any time before the issuance of the report to the Parties.
Article 12.13. Implementation
1. The Party complained against shall promptly comply with the findings and rulings of the Arbitration Panel. Where it is not practicable to comply immediately, the Party complained against shall comply with the findings and rulings within a reasonable period of time. The reasonable period of time shall be mutually determined by the Parties, or where the Parties fail to agree on the reasonable period of time within 45 days of the release of the final report of the Arbitration Panel referred to in Article 12.11 (Arbitration Panel Report), either Party may refer the matter to an Arbitration Panel, which shall determine the reasonable period of time following consultation with the Parties.
2. The Party complained against shall notify to the complaining Party the implementing measures that it has taken to comply with the determinations and recommendations, if any, of the Arbitration Panel, before the expiry of the reasonable period of time agreed by the Parties or determined in accordance with paragraph 1.
3. Where there is disagreement between the Parties as to whether the Party complained against eliminated the non-conformity as determined in the report of the Arbitration Panel within the reasonable period of time as determined pursuant to paragraph 2, either Party may refer the matter to an Arbitration Panel.
4. The Arbitration Panel for the purpose of this Article shall be the Arbitration Panel as established under paragraph 2 of Article 12.15 (Review).
Article 12.14. Compensation and Suspension of Benefits
1. If the Party complained against fails to notify the implementing measures before the expiry of the reasonable period of time, or notifies the complaining Party that it is impracticable, or the Arbitration Panel to which the matter is referred pursuant to paragraph 3 of Article 12.13 (Implementation) rules that the Party complained against has failed to eliminate the non-conformity within the reasonable period of time, the Party complained against shall, if so requested by the complaining Party, enter into negotiations with the complaining Party with a view to reaching mutually satisfactory compensation.
2. If there is no agreement on satisfactory compensation within 20 days of the date of receipt of the request mentioned in paragraph 1, the complaining Party may, by giving notification, suspend benefits conferred on the other Party under this Agreement. Such suspension shall only take effect after 30 days of the notification.
3. The compensation referred to in paragraph 1 and the suspension referred to in paragraph 2 shall be temporary measures. Neither compensation nor suspension is preferred to full elimination of the non-conformity as determined in the report of the Arbitration Panel referred to in Article 12.11 (Arbitration Panel Report). The suspension shall only be applied until such time as the non-conformity is fully eliminated or a mutually satisfactory solution is reached.
4. In considering what concessions or other obligations to suspend pursuant to paragraph 2:
(a) the complaining Party should first seek to suspend benefits with respect to the same sector(s) as that affected by the measure or other matter that the Arbitration Panel referred to in Article 12.11 (Arbitration Panel Report) has found to be inconsistent with this Agreement;
(b) if the complaining Party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may suspend concessions or other obligations with respect to other sectors. The notification of such suspension pursuant to paragraph 2 shall indicate the reasons on which it is based; and
(c) the level of suspension referred to in paragraph 2 shall be equivalent to the level of benefits that have been impaired.
Article 12.15. Review
1. Without prejudice to the procedures in Article 12.14 (Compensation and Suspension of Benefits), the Party complained against may request an Arbitration Panel to determine whether the requirements for the suspension of benefits set out in paragraph 2, 3 or 4 of Article 12.14 (Compensation and Suspension of Benefits), have not been met. 2. The Arbitration Panel that is established for the purposes of this Article or Article 12.13 (Implementation) shall have, to the extent possible, as its arbitrators, the arbitrators of the original Arbitration Panel. If this is not possible, then the arbitrators to the Arbitration Panel that is established for the purposes of this Article or Article 12.13 (Implementation) shall be appointed pursuant to Article 12.8 (Composition and Establishment of Arbitration Panel). The Arbitration Panel established under this Article or Article 12.13 (Implementation) shall issue its report to the Parties within 20 days on the reasonable period of time and 45 days on the other issues after the date when the matter is referred to it. When the Arbitration Panel considers that it cannot issue its report within the aforementioned periods, it may extend that period for a maximum of 30 days with the consent of the Parties. The report shall be final and binding on the Parties.
3. If the Arbitration Panel decides that the Party complained against has eliminated the non-conformity, the complaining Party shall promptly reinstate any benefits it has suspended under Article 12.14 (Compensation and Suspension of Benefits). If the Arbitration Panel decides that the level of benefits suspended by the complaining Party is excessive, the complaining Party shall modify the level of suspension of concessions accordingly.
Article 12.16. Rules of Procedure
1. Dispute settlement procedures under this Chapter shall be governed by Annex 12-2 of this Agreement. Arbitration Panels may, after consulting the Parties, adopt additional rules of procedure not inconsistent with this Agreement.
2. Any time period or other rules and procedures for Arbitration Panels provided for in this Chapter may be modified by mutual consent of the Parties. The Parties may also agree at any time not to apply any provision of this Chapter.
Chapter 13. General Exceptions
Article 13.1. General Exceptions
For the purposes of this Agreement, Article XX of GATT 1994 and its interpretive notes (including its footnotes) are incorporated into and made part of this Agreement, mutatis mutandis.
Article 13.2. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) to prevent a Party from taking any actions which it considers necessary for the protection of its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials or relating to the supply of services as carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment;
(ii) taken in time of war or other emergency in international relations;
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Joint Committee shall be informed to the fullest extent possible of measures taken under subparagraphs 1(b) and (c) and of their termination.
Article 13.3. Disclosure of Information
Nothing in this Agreement shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers:
(a) would be contrary to the public interest as determined by its legislation;
(b) is contrary to any of its legislation, including but not limited to those protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
(c) would impede law enforcement; or
(d) would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 13.4. Balance-of-payments Exceptions on Trade In Goods
1. Should a Party decide to impose measures for balance-of-payments purposes, it shall do so, only in accordance with its rights and obligations under GATT 1994, including the Declaration on Trade Measures Taken for Balance of Payments Purposes and the Understanding on the Balance of Payments Provisions of the GATT 1994.
2. Any restrictive measures adopted or maintained by a Party or any changes therein, shall be promptly notified to the other Party from the date such measures are taken. The Party adopting or maintaining any restrictive measures under paragraph 1 shall promptly commence consultations with the other Party in order to review the measures adopted or maintained by it.
3. The Parties shall endeavour to avoid the application of the restrictive measures referred to in paragraph 1.
4. Nothing in this Agreement shall be regarded as altering the rights enjoyed and obligations undertaken by a Party, as a party to the Articles of Agreement of the International Monetary Fund, as may be amended.
Article 13.5. Taxation Measures
1. Unless otherwise provided for in this Agreement, the provisions of this Agreement shall not apply to any taxation measures.
2. For the purposes of this Agreement, "taxation measures" means any measures levying direct or indirect taxes, including excise duties and sales tax, as defined by the national laws and regulations of the Parties as long as these taxes are not used for the purpose of protecting the domestic industry of the Party levying the duties.
3. This Agreement shall only grant rights or impose obligations with respect to taxation measures where corresponding rights or obligations are also granted or imposed under the WTO Agreement.
4. Nothing in this Agreement shall affect the rights and obligations of either Party under any other agreement on taxation measures. In the event of any inconsistency between this Agreement and any such agreement on taxation measures, the latter shall prevail to the extent of the inconsistency.
Chapter 14. Final Provisions
Article 14.1. Annexes, Appendices, Notes and Footnotes
The Annexes, Appendices, Notes and Footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 14.2. Succession of Treaties or International Agreements
Any reference in this Agreement to any other treaty or international agreement shall be made in the same terms to its successor treaty or international agreement to which a Party is party.
Article 14.3. Evolutionary Clause
1. The Parties may mutually agree to extend this Agreement with the aim of broadening and supplementing its scope to specific sectors or activities in the light of the experience gained during its implementation.
2. The Parties agree to begin negotiations on trade in services one year after the entry into force of this Agreement with a view to progressively liberalize trade in services between them in conformity with Article V of GATS. They also agree to begin exploratory talks on investment one year after the entry into force of this Agreement with a view to include a Chapter on Investment to this Agreement, on a mutually advantageous basis.
Article 14.4. Confidentiality
Where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. 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 it may be required to be disclosed in the context of judicial proceedings.
Article 14.5. Amendments
1. This Agreement may be amended in writing by agreement between the Parties.
2. Notwithstanding paragraph 1, amendments relating only to the Annexes to this Agreement may be made through diplomatic notes exchanged between the Parties.
3. Amendments to this Agreement shall be approved by the Parties in accordance with their respective legal procedures, and shall enter into force on the first day of the second month following the date on which the Parties exchange written notification that such procedures have been completed, or on a date to be agreed upon by the Parties.
4. Amendments shall not affect the rights and obligations of the Parties provided for under this Agreement until the amendments enter into force.
Article 14.6. General Review
The Parties shall undertake a general review of the Agreement, with a view to furthering its objectives, within two years of the entry into force of this Agreement and at least every five years thereafter.
Article 14.7. Termination of Existing Agreements
The following Agreements shall be terminated on the date of entry into force of this Agreement: (a) Trade Agreement between the Republic of Turkey and Malaysia (signed on 13 February 1977); and (b) Economic and Technical Cooperation Agreement between the Government of the Republic of Turkey and the Government of Malaysia (signed on 13 February 1977).
Article 14.8. Duration and Termination
1. This Agreement shall be valid unless it is terminated.
2. Either Party may give written notice to the other Party of its intention to terminate this Agreement. Termination shall take effect on the first day of the seventh month after the date of the notice of termination.
3. The other Party may request in writing consultations concerning any matter that would arise from the termination within 45 days after the date of receipt of the notice referred to in paragraph 2.
4. The requested Party shall enter into consultations in good faith with a view to reaching an equitable agreement within 30 days after the date of receipt of the request referred to in paragraph 3.
Article 14.9. Entry Into Force
1. The Parties shall ratify this Agreement in accordance with their domestic legal procedures. The Parties shall exchange written notification upon completion of such procedures.
2. This Agreement shall enter into force on the first day of the second month following the date on which the Parties exchange written notification that such procedures have been completed.
Article 14.10. Authentic Texts
This Agreement shall be done in Turkish and English languages, both being equally authentic. In case of divergence, the English text shall prevail.
Conclusion
Article Article
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement. DONE at Ankara, in two originals, this seventeenth day of April, 2014. FOR THE GOVERNMENT OF MALAYSIA: : Dato' Sri Mustapa MOHAMED Minister of International of Trade and Industry FOR THE GOVERNMENT OF THE REPUBLIC OF TURKEY Nihat ZEYBEKCİ Minister of Economy