"mediator" means an individual who has been selected as a mediator in accordance with Section D (Mediation mechanism);
"panel" means a panel established under Article 24.6 (Establishment of a panel);
"panellist" means a member of a panel;
"Party complained against" means the Party that is alleged to be in violation of the covered provisions; and
"representative of a Party" means an employee or any individual appointed by a government department, agency or any other public entity of a Party who represents the Party for the purposes of a dispute under this Agreement.
Article ARTICLE 24.4
Consultations
The Parties shall endeavour to resolve any dispute referred to in Article 24.3 (Scope) by entering into consultations in good faith, with the aim of reaching a mutually agreed solution.
A Party shall seek consultations by means of a written request delivered to the other Party identifying the measure at issue and the covered provisions that it considers applicable.
The Party to which the request for consultations is made shall reply to the request for consultations promptly, but no later than 10 days after the date of its delivery. Unless the Parties agree otherwise, consultations shall be held within 30 days after the date of delivery of the request and take place in the territory of the Party complained against. The consultations shall be deemed concluded within 40 days after the date of delivery of the request, or within 90 days after that date if the dispute concerns Chapter 17 (Trade and sustainable development), unless the Parties agree to continue consultations.
Consultations on matters of urgency shall be held within 15 days after the date of delivery of the request for consultations. The consultations shall be deemed concluded within 15 days after the date of delivery of the request, unless the Parties agree to continue consultations.
During consultations, each Party shall provide sufficient factual information so as to allow a complete examination of the manner in which the measure at issue could affect the application of this Agreement. Each Party shall endeavour to ensure the participation of personnel of its competent authorities or agencies who have expertise in the matter subject to the consultations.
If the dispute concerns Articles 18.3 (Multilateral labour standards and agreements – Trade and sustainable development Chapter), 18.4 (Trade and gender equality – Trade and sustainable development Chapter), 18.5 (Multilateral environmental agreements – Trade and sustainable development Chapter) or 17.6 (Trade and climate change – Trade and sustainable development Chapter), the Parties shall take into account any information from the International Labour Organization (hereinafter referred to as "ILO") or from other relevant organisations or bodies established under multilateral agreements or instruments referred to in those Articles, that is available to them and relevant to the consultations, with a view to promoting coherence between the work of the Parties and that of such organisations or bodies. If relevant, the Parties should seek advice from such organisations or bodies, or from any other expert or body they deem appropriate.
If the dispute concerns Chapter 18 (Trade and sustainable development), each Party may also seek, if appropriate, the views of its domestic advisory group referred to in Article 21.7 (Domestic advisory groups).
Consultations, and in particular all information designated as confidential and positions taken by the Parties during consultations, shall be confidential and without prejudice to the rights of either Party in any further proceedings.1
The Party that sought consultations may have recourse to Article 24.5 (Initiation of panel procedures) if:
1 For greater certainty, this paragraph applies to any advice or views sought pursuant to paragraphs 6 or 7.
the Party to which the request is made does not respond to the request for consultations within 10 days after the date of its delivery;
the consultations have not been held within the time periods laid down in paragraphs 3 or 4, as applicable;
the consultations have been concluded and no mutually agreed solution has been reached; or
the Parties agree not to have consultations.
Article ARTICLE 24.5
Initiation of panel procedures
If the Parties fail to resolve the dispute through recourse to consultations as provided for in Article 24.4 (Consultations), the Party that sought consultations may request the establishment of a panel (hereinafter referred to as "panel request").
The panel request shall be made in writing and delivered to the other Party. The complaining Party shall identify the measure at issue in its request and explain how that measure constitutes a breach of the covered provisions in a manner sufficient to present the legal basis for the complaint clearly.
The complaining Party shall release to the public a copy of the panel request promptly after it makes that request to the other Party.
If a panel request is made, a panel shall be established in accordance with Article 24.6 (Establishment of a panel).
The Trade Committee may decide to entrust an external body to provide assistance to panels established under this Chapter, including administrative and legal support. Such decision shall address the conditions of the entrustment, including the costs arising from the entrustment. Where applicable, any panel request shall also be delivered to the external body.
Establishment of a panel
A panel shall be composed of three panellists.
Within 10 days after the date of delivery of the panel request, the Parties shall consult with a view to agree on the composition of the panel.
If the Parties do not agree on the composition of the panel within the time period provided for in paragraph 2, each Party shall, within five days after the expiry of the time period established in paragraph 2, appoint a panellist:
from the sub-list of that Party established pursuant to Article 24.7 (Lists of panellists); or
if the dispute concerns Chapter 18 (Trade and sustainable development), from the sub-list of that Party in the TSD list established pursuant to Article 24.7 (Lists of panellists).
If a Party does not appoint a panellist from its sub-list within the time period provided for in paragraph 3, the co-chair of the Trade Committee from the complaining Party shall select by lot, within five days after the expiry of the time period provided for in paragraph 3, the panellist from the sub-list of that Party. The co-chair of the Trade Committee from the complaining Party may delegate such selection by lot of the panellist.
If the Parties do not agree on the chairperson of the panel within the time period established in paragraph 2, the co-chair of the Trade Committee from the complaining Party shall select by lot, within five days after the expiry of that time period, the chairperson of the panel:
from the sub-list of chairpersons established pursuant to Article 24.7 (Lists of panellists); or
if the dispute concerns Chapter 18 (Trade and sustainable development), from the sub-list of chairpersons in the TSD list established pursuant to Article 24.7 (Lists of panellists).
The co-chair of the Trade Committee from the complaining Party may delegate such selection by lot of the chairperson of the panel.
The panel shall be deemed to be established 15 days after all three selected panellists have accepted their appointment in accordance with Rule 11 of Annex 24-A (Rules of procedure), unless the Parties agree otherwise. Each Party shall promptly make public the date of establishment of the panel.
If any of the relevant sub-lists provided for in Article 24.7 (Lists of panellists) have not been established or if no individual on the relevant sub-list is available at the time a selection by lot is to be made pursuant to paragraphs 3 or 4, the panellists shall be drawn by lot in accordance with point (a) of Rule 10 of Annex 24-A (Rules of procedure).
If any of the relevant sub-lists provided for in Article 24.7 (Lists of panellists) no longer contain at least five individuals at the time a selection by lot is to be made pursuant to paragraphs 3 or 4, the panellists shall be drawn by lot in accordance with point (b) of Rule 10 of Annex 24-A (Rules of procedure).
Lists of panellists
The Trade Committee shall, no later than six months after the date of entry into force of this Agreement, establish:
a list of at least 15 individuals who are willing and able to serve as panellists; and
a separate list of 15 individuals who are willing and able to serve as panellists in disputes under Chapter 18 (Trade and sustainable development) (referred to above as "TSD list").
Each list referred to in paragraph 1 shall be composed of the following three sub-lists:
one sub-list of individuals established on the basis of proposals by the Union;
one sub-list of individuals established on the basis of proposals by Australia; and
one sub-list of individuals who are not natural persons of either Party and who shall serve as chairperson of the panel.
Each sub-list referred to in points (a), (b) and (c) of paragraph 2 shall include at least five individuals. The Trade Committee shall ensure that each sub-list is always maintained at this minimum number of individuals.
The sub-list referred to in point (c) of paragraph 1 shall also serve as the list of possible mediators for the purposes of selection by lot pursuant to Article 24.29(2) (Selection of the mediator). When establishing the sub-list referred to in point (c) of paragraph 2, the Trade Committee may also decide to limit the number of possible mediators to certain individuals on that sub-list.
The Trade Committee may establish additional lists of individuals with expertise in specific sectors covered by this Agreement. Subject to the agreement of the Parties, such additional lists shall be used to compose the panel in accordance with the procedure set out in Article 24.6 (Establishment of a panel).
Requirements for panellists
Each panellist shall:
have demonstrated expertise in law2, international trade and other matters covered by this Agreement;
be independent of, and not be affiliated with or take instructions from, either Party;
serve in their individual capacities and not take instructions from any organisation or government with regard to matters related to the dispute; and
comply with Annex 24-B (Code of conduct for panellists and mediators).
The chairperson shall also have experience in dispute settlement procedures.
With respect to disputes concerning Chapter 18 (Trade and sustainable development) and by way of derogation from point (a) of paragraph 1:
each panellist shall have specialised knowledge of, or expertise in:
labour or environmental law;
issues addressed in Chapter 18 (Trade and sustainable development); or
the resolution of disputes under international agreements; and
the chairperson of the panel shall also have demonstrated expertise in law.3
In view of the subject-matter of a particular dispute, the Parties may agree to derogate from the requirements listed in point (a) of paragraph 1 or in point (b) of paragraph 3.
2 For greater certainty, expertise in law can be demonstrated, inter alia, by experience in the resolution of disputes arising under international trade agreements.
3 For greater certainty, expertise in law can be demonstrated, inter alia, by experience in the resolution of disputes arising under international trade agreements.
Functions of the panel
The panel shall:
make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the covered provisions;
set out, in its decisions and reports, the findings of facts, the applicability of, and conformity with, the covered provisions and the basic rationale behind any findings and conclusions that it makes; and
endeavour to consult regularly with the Parties and provide adequate opportunities for the development of a mutually agreed solution.
Terms of reference
Unless the Parties agree otherwise within five days after the date of establishment of the panel, the terms of reference of the panel shall be:
"to examine, in light of the relevant provisions of this Agreement cited by the Parties, the matter referred to in the request for the establishment of the panel, to make findings on the conformity of the measure at issue with the provisions of this Agreement referred to in Article 24.3 (Scope) and to deliver a report in accordance with Articles 24.12 (Interim report) and 24.13 (Final report)."
If the Parties agree on terms of reference other than those set out in paragraph 1, they shall notify the agreed terms of reference to the panel within five days after the date of establishment of the panel.
Decision on urgency
If a Party so requests, the panel shall decide, within 10 days after its establishment, whether the dispute concerns matters of urgency.
If the panel decides that the dispute concerns matters of urgency, the applicable time periods set out in Section C (Panel procedures) shall be half the time specified therein, except for the time periods referred to in Article 24.6 (Establishment of a panel), Article 24.10 (Terms of reference), Article 24.17(3), Article 24.17(5) (Temporary remedies) and Article 24.18(2) (Review of any measure taken to comply after the adoption of temporary remedies).
Interim report
The panel shall deliver an interim report to the Parties within 110 days after the date of establishment of the panel. If the panel considers that this deadline cannot be met, the chairperson of the panel shall notify the Parties in writing, stating the reasons for the delay and the date on which the panel plans to deliver its interim report. The panel shall not deliver its interim report later than 140 days after the date of establishment of the panel.
Each Party may provide to the panel written comments on precise aspects of the interim report within 12 days after its delivery. A Party may respond to the other Party's written comments within eight days after the delivery of the written comments.
Final report
The panel shall deliver its final report to the Parties within 30 days after the date of delivery of the interim report. If the panel considers that this deadline cannot be met, the chairperson of the panel shall notify the Parties in writing, stating the reasons for the delay and the date on which the panel plans to deliver its final report. The panel shall not deliver its final report later than 60 days after the date of delivery of the interim report.
The final report shall clearly address the comments of each Party, if any, made pursuant to Article 24.12(2) (Interim report).
Compliance measures
If a panel finds that the Party complained against is not in conformity with the covered provisions, the Party complained against shall take any measure necessary to comply promptly with the findings and conclusions in the final report in order to bring itself in compliance with the covered provisions.
If a panel finds the Party complained against is not in conformity with the covered provisions, the Party complained against shall, no later than 30 days after delivery of the final report, deliver a notification to the complaining Party of the measures which it has taken or which it envisages to take to comply including, if any, the text of such measures.
In addition, if the dispute concerns Chapter 18 (Trade and sustainable development):
the Party complained against shall, no later than 30 days after the date of delivery of the final report, inform its domestic advisory group referred to in Article 22.7 (Domestic advisory groups – Institutional Provisions Chapter) of the compliance measures it has taken or which it envisages taking to comply. The domestic advisory group may submit observations to the Trade and Sustainable Development Committee in this regard; and
the Trade and Sustainable Development Committee shall monitor the implementation of the compliance measures.
Reasonable period of time
If a panel finds the Party complained against is not in conformity with the covered provisions and immediate compliance is not possible, the Party complained against shall, no later than 30 days after the date of delivery of the final report, deliver a notification to the complaining Party of the length of the reasonable period of time it will require for compliance. The Parties shall endeavour to agree on the length of the reasonable period of time to comply.
If the Parties have not agreed on the length of the reasonable period of time, the complaining Party may, at the earliest 20 days after the delivery of the notification referred to in paragraph 1, request in writing the original panel to determine the length of the reasonable period of time. The panel shall deliver its decision to the Parties within 30 days after the date of delivery of such request.
The Party complained against shall deliver a written notification of its progress in complying with the final report to the complaining Party no later than 30 days before the expiry of the reasonable period of time.
The Parties may agree to extend the reasonable period of time.
Compliance review
The Party complained against shall, no later than at the date of expiry of the reasonable period of time, deliver a notification to the complaining Party of any measure that it has taken to comply with the final report including, if any, the text of such measures.
If the Parties disagree on the existence or the consistency with the covered provisions of any measure taken to comply, the complaining Party may deliver a request, in writing, to the original panel to decide on the matter. Such request shall identify any measure at issue and explain how that
measure constitutes a breach of the covered provisions in a manner sufficient to present the legal basis for the complaint clearly.
The panel shall deliver its interim decision to the Parties within 40 days after the date of delivery of the request referred to in paragraph 2. Each Party may provide written comments to the panel on precise aspects of the interim decision and may respond to the other Party's written comments. The panel shall provide its final decision 20 days after the delivery of the interim decision.
Temporary remedies
The Party complained against shall, on request by and after consultations with the complaining Party, present an offer for temporary compensation if:
the Party complained against delivers a notification to the complaining Party that it is not practicable to comply with the final report;
the Party complained against fails to deliver a notification of any measure taken to comply within the deadline referred to in Article 24.14 (Compliance measures) or before the date of expiry of the reasonable period of time;
the panel finds that no measure taken to comply exists; or
the panel finds that the measure taken to comply is not in conformity with the covered provisions.
In any of the circumstances referred to in paragraph 1, the complaining Party may deliver a written notification to the Party complained against that it intends to suspend the application of obligations under the covered provisions if:
the complaining Party does not make a request under paragraph 1; or
after a request is made under paragraph 1, the Parties do not agree on the temporary compensation within 20 days after the expiry of the reasonable period of time or the delivery of the panel decision under Article 24.16 (Compliance review).
Such notification shall specify the level of intended suspension of obligations.
The complaining Party may suspend obligations 10 days after the date of delivery of the notification referred to in paragraph 2, unless the Party complained against has made a request under paragraph 6.
In the circumstances referred to in points (a)(i) and (b)(i) of paragraph 9, the complaining Party shall only deliver the notification referred to in paragraph 2, if it considers that the violation is sufficiently serious or material in terms of its impact on workers, or on persons engaged in trade between, or investment in, the territories of the Parties to justify the suspension of obligations under this Agreement.
The suspension of obligations shall not exceed the level equivalent to the nullification or impairment caused by the violation.
If the Party complained against considers that the notified level of suspension of obligations exceeds the level equivalent to the nullification or impairment caused by the violation, it may deliver a written request to the original panel before the expiry of the 10-day period set out in paragraph 3 to decide on the matter.
The panel shall deliver its decision on the level of the suspension of obligations to the Parties within 40 days after the date of that request. Obligations shall not be suspended until the panel has delivered its decision. The suspension of obligations shall be consistent with that decision.
The suspension of obligations or the compensation referred to in this Article shall be temporary and shall not be applied if:
the Parties have reached a mutually agreed solution pursuant to Article 24.33 (Mutually agreed solution);
the Parties have agreed that the measure taken to comply brings the Party complained against into conformity with the covered provisions; or
any measure taken to comply which the panel has found to be inconsistent with the covered provisions has been withdrawn or amended so as to bring the Party complained against into conformity with those provisions.
If the dispute concerns Chapter 18 (Trade and sustainable development), this Article applies if:
any of the circumstances set out in points (a), (b) or (c) of paragraph 1 arises and the final report delivered pursuant to Article 24.13 (Final report) finds a violation of:
Article Article 18.3(2) (Multilateral Labour Standards and Agreements - Trade and Sustainable Development Chapter); or
Article Article 18.6(2) (Trade and Climate Change - Trade and Sustainable Development Chapter) by Reason of the Party Complained Against Having Failed to Refrain from Any Act or Omission That Materially Defeats the Object and Purpose of the Paris Agreement; or
the circumstances set out in point (d) of paragraph 1 arise and the decision of the compliance panel delivered pursuant to Article 24.16 (Compliance review) finds a violation of:
Article Article 18.3(2) (Multilateral Labour Standards and Agreements - Trade and Sustainable Development Chapter); or
Article Article 18.6(2) (Trade and Climate Change - Trade and Sustainable Development Chapter) by Reason of the Party Complained Against Having Failed to Refrain from Any Act or Omission That Materially Defeats the Object and Purpose of the Paris Agreement.
Review of any measure taken to comply after the adoption of temporary remedies
The Party complained against shall deliver a notification to the complaining Party of any measure it has taken to comply following the suspension of obligations or following the application of temporary compensation, as the case may be. Except in the circumstances specified in paragraph 2, the complaining Party shall terminate the suspension of obligations within 30 days from the date of delivery of the notification. In cases where compensation has been applied, and except in the circumstances specified in paragraph 2, the Party complained against may terminate the application of such compensation within 30 days from delivery of its notification that it has complied.
If the Parties do not reach an agreement on whether the notified measure brings the Party complained against into conformity with the covered provisions within 30 days after the date of delivery of the notification, the complaining Party shall deliver a written request to the original panel to decide on the matter.
The panel shall deliver its interim decision to the Parties within 50 days after the date of the delivery of the request. Each Party may provide written comments to the panel on precise aspects of the interim decision and may respond to the other Party's written comments. The panel shall provide its final decision within 20 days after the delivery of the interim decision.
If the panel finds that the measure taken to comply is in conformity with the covered provisions, the suspension of obligations or compensation, as the case may be, shall be terminated. When relevant, the complaining Party shall adjust the level of suspension of obligations or of compensation in light of the panel decision.
If the Party complained against considers that the level of suspension of obligations implemented by the complaining Party exceeds the level equivalent to the nullification or impairment caused by the violation, it may deliver a written request to the original panel to decide on the matter. The panel shall deliver its decision to the Parties within 40 days after the date of such request.
Replacement of panellists
If a panellist is unable to participate, withdraws or needs to be replaced because he or she does not comply with Annex 24-B (Code of conduct for panellists and mediators), the procedure provided for in Article 24.6 (Establishment of a panel) applies. The time period for the delivery of any reports or decisions shall be extended for the time necessary for the appointment of the new panellist.
Rules of procedure
Panel procedures shall be governed by this Chapter and Annex 24-A (Rules of procedure).
Any hearing of the panel shall be open to the public unless otherwise provided in Annex 24-A (Rules of procedure).
Suspension and termination
On request of both Parties, the panel shall suspend its work at any time for a period agreed by the Parties which does not exceed 12 consecutive months.
The panel shall resume its work before the date of expiry of the agreed suspension period at the written request of both Parties, or on the day following the date of the expiry of the agreed suspension period at the written request of either Party. The requesting Party shall deliver a notification to the other Party accordingly.
If the panel does not resume its work in accordance with paragraph 2, the authority of the panel shall lapse and the dispute settlement procedure shall be terminated.
If the work of the panel is suspended, the relevant time periods under this Section shall be extended by the same period of time for which the work of the panel was suspended.
Receipt of information
At the request of a Party, or on its own initiative, the panel may seek from the Parties, relevant information it considers necessary and appropriate. The Parties shall respond promptly and fully to any request by the panel for such information.
On the request of a Party or its own initiative, the panel may seek any information it deems appropriate from any source. The panel also has the right to seek the opinion of experts, as it deems appropriate, and subject to any terms and conditions agreed by the Parties, where applicable.