36. All arbitrators shall be present during the entirety of any hearing.
37. The following persons may attend the hearing, irrespective of whether the proceedings are open to the public or not:
(a) representatives of the parties;
(b) advisers to the parties;
(c) administrative staff, interpreters, translators; and
(d) arbitrators' assistants.
Only the representatives and advisers of the parties may address the arbitration panel.
38. No later than 5 (five) days before the date of a hearing, each party shall deliver to the arbitration panel a list of the names of persons who will make oral arguments or presentations at the hearing on behalf of that party and of those representatives or advisers who will be attending the hearing. A party may modify its list after that time limit, if duly justified.
39. The hearings of the arbitration panel shall be open to the public, unless the parties decide otherwise. The hearings of the arbitration panel shall be partially or completely closed to the public, if the submission or arguments of a party contain information which that party has designated as confidential.
40. The arbitration panel shall conduct the hearing in the following manner, ensuring that the complaining party and the defending party are afforded equal time:
(a) Argument:
(i) argument of the complaining party;
(ii) argument of the defending party.
(b) Rebuttal argument:
(i) reply of the complaining party;
(ii) counter-reply of the defending party.
41. The arbitration panel may direct questions to either party at any time during the hearing.
42. The arbitration panel shall arrange for a transcript or an audio recording of each hearing to be prepared and delivered as soon as possible to the parties. The parties may comment on the accuracy of the transcript and the arbitration panel may consider those comments.
43. Each party may deliver to the arbitration panel, with a copy to the other party, a supplementary written submission concerning any matter that arose during the hearing, no later than 10 (ten) days after the date of the hearing.
X. QUESTIONS IN WRITING
44. The arbitration panel may at any time during the proceedings address questions in writing to one or both parties and set a reasonable time limit for the submission of their responses. Each of the parties shall receive a copy of any questions put by the arbitration panel to the other party.
45. A party shall also provide to the other party a copy of its written reply to the arbitration panel's questions. Each party shall be given the opportunity to provide written comments on the other party's replies no later than 7 (seven) days after the date of receipt of such replies.
XI. CONFIDENTIALITY
46. The parties and their advisers shall maintain the confidentiality of the arbitration panel hearings if the hearings are held in closed session, in accordance with Rule 39. Each party and its advisers shall treat as confidential any information submitted by the other party to the arbitration panel which that party has designated as confidential. If a party submits a confidential version of its written submissions to the arbitration panel, it shall also, on request of the other party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public as soon as possible but no later than 30 (thirty) days after the date of either the request or the submission, whichever is later. Nothing in this Annex shall preclude a party from disclosing statements of its own positions to the public to the extent that, if making reference to information submitted by the other party, it does not disclose any information designated by the other party as confidential.
XII. EX PARTE CONTACTS
47. The arbitration panel shall not meet or communicate with a party in the absence of the other party.
48. No member of the arbitration panel may discuss any aspect of the subject matter of the proceeding with the parties in the absence of the other arbitrators.
XIII. INFORMATION AND TECHNICAL ADVICE
49. The arbitration panel shall notify the parties of its intention to request the opinion of experts or information from any relevant source. For greater certainty, the opinion or information obtained pursuant to this provision does not discharge the parties of their corresponding burden of proof.
50. The arbitration panel shall take into account the cost of any request for information or opinion of experts in order not to excessively increase the costs of the dispute settlement procedure.
51. The arbitration panel shall provide the parties with a copy of the information or the expert's opinion received and shall grant them a reasonable period of time to present their comments.
XIV. AMICUS CURIAE BRIEFS
52. Unless the parties agree otherwise within 5 (five) days of the date of the establishment of the arbitration panel, the arbitration panel may receive unsolicited written briefs from interested natural persons of a Party or juridical persons established in the territory of a Party and which are independent from the government of any of the Parties, if they are received by the arbitration panel no later than 10 (ten) days after the date of the establishment of the arbitration panel. These submissions are hereinafter referred to as "amicus curiae submissions".
53. Amicus curiae submissions shall:
(a) be concise and in no case longer than 22 500 (twenty-two thousand five hundred) characters typed, including spaces, footnotes, notes at the end of the text and any attachment;
(b) be directly relevant to the issue under consideration by the arbitration panel;
(c) contain a description of the person making the submission, whether natural or juridical, including its nationality or place of establishment, the nature of its activities and, in the case of a juridical person, information on its members, legal status and general objectives;
(d) provide information on any source of financing;
(e) specify the nature of the interest that the person has in the arbitration proceedings; and
(f) be drafted in the language chosen by the parties or any of the WTO official languages in accordance with Rules 56, 57 and 58.
54. The arbitration panel shall list in its award all the submissions it has received that conform to Rules 52 and 53. The arbitration panel shall not be obliged to address in its award the arguments made in such submissions. The arbitration panel shall ensure that the parties have the opportunity to comment in writing on any amicus curiae submission before the date of the hearing. A party shall deliver any comments no later than 10 (ten) days after the receipt of the submission, and any such comments shall be taken into consideration by the arbitration panel.
XV. URGENT CASES
55. In cases of urgency referred to in Chapter 29, the arbitration panel, after consulting the parties, shall adjust the time periods referred to in this Annex as appropriate and shall notify the parties of such adjustments.
XVI. TRANSLATION AND INTERPRETATION
56. During the consultations referred to in Article 29.5, and no later than the meeting referred to in Rule 10(e), the parties shall endeavour to agree on a common working language for the proceedings before the arbitration panel.
57. If the parties are unable to agree on a common working language, each party may choose any of its official languages as its working language for the proceedings. However, if a party chooses a language that is not an official language of the WTO, it shall provide, at the time of filing, a translated version of all its written submissions into the language chosen by the other party and shall arrange for and bear the costs of interpretation of its oral submissions to and from the language chosen by the other party.
58. Arbitral awards and rulings shall be issued in the common working language chosen by the parties. If the parties are unable to agree on a common working language, the arbitral panel awards and arbitration panel rulings shall be issued in any of the official languages of the WTO chosen by the arbitration panel. Any costs incurred for the translation of an arbitral award or a ruling shall be borne equally by the parties.
59. Any party may provide, no later than 5 (five) days after its receipt, comments on the accuracy of the translation of any translated version of a document drawn up in accordance with this Annex.
XVII. CALCULATION OF THE TIME PERIODS
60. Subject to Rule 2, if a party proves that it has received a document on a date other than the date on which this document is received by the other party, any period of time that is calculated on the basis of the date of receipt of that document shall be calculated from the last date of receipt of that document.
XVIII. OTHER PROCEDURES
61. This Annex is also applicable to procedures established under Articles 29.18 to 29.21. Nonetheless, the time periods laid down in this Annex shall be adjusted in line with the special time periods provided for the adoption of a ruling by the arbitration panel in those other procedures.
62. If the original arbitration panel, or some of its members, is unable to reconvene for the procedures established under Articles 29.18, 29.19, 29.20 and 29.21, the procedures set out in Article 29.9 shall apply.
XIX. ARBITRAL AWARDS
63. The arbitral award shall contain the following details, in addition to any other elements which the arbitration panel may consider appropriate for inclusion:
(a) identification of the parties;
(b) the name of each of the members of the arbitration panel and the date of its establishment;
(c) the terms of reference of the arbitration panel, including a description of the measure at issue;
(d) the arguments of each of the parties;
(e) a description of the development of the arbitration procedure, including a summary of the actions taken;
(f) a description of the factual elements of the dispute;
(g) the decision reached in relation to the dispute, indicating the factual and legal grounds;
(h) the date of issue; and
(i) the signature of all the members of the arbitration panel.
ANNEX 29-B. CODE OF CONDUCT FOR MEMBERS OF ARBITRATION PANELS AND MEDIATORS
I. RESPONSIBILITIES TO THE PROCESS
1. Every candidate and arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved. Former arbitrators shall comply with the obligations established in paragraphs 14, 15, 16 and 17 of this Annex.
II. DISCLOSURE OBLIGATIONS
2. Prior to the confirmation of her or his selection as an arbitrator under Article 29.9, a candidate shall disclose any interest, relationship or matter that is likely to affect her or his independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding. To that end, a candidate shall make all reasonable efforts to become aware of such interests, relationships and matters.
3. A candidate or arbitrator shall communicate matters concerning actual or potential violations of this Annex to the Joint Committee in trade configuration for consideration by the parties.
4. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in paragraph 3 and shall disclose them. The disclosure obligation is a continuing duty which requires an arbitrator to disclose such interests, relationships or matters that may arise during any stage of the proceeding. The arbitrator shall disclose such interests, relationships or matters by informing the Joint Committee in trade configuration, in writing, for consideration by the Parties.
III. DUTIES OF ARBITRATORS
5. Upon confirmation of her or his selection, an arbitrator shall be available to perform and shall perform her or his duties thoroughly and expeditiously throughout the course of the proceedings, including any proceedings under Articles 29.18 to 29.21, and with fairness and diligence.
6. An arbitrator shall consider only those issues raised in the proceeding and necessary for a ruling and shall not delegate this duty to any other person.
7. An arbitrator shall take all appropriate steps to ensure that her or his assistant and staff are aware of and comply with the relevant provisions of this Annex, mutatis mutandis.
8. An arbitrator shall not engage in ex parte contacts concerning the proceeding.
IV. INDEPENDENCE AND IMPARTIALITY OF ARBITRATORS
9. An arbitrator 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, loyalty to a Party or fear of criticism. An arbitrator shall not take instructions from any organisation or government or be affiliated to a government, including governmental organisation, of a Party.
10. 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 her or his duties.
11. An arbitrator shall not use her or his position in the arbitration panel to advance any personal or private interests and shall avoid actions that may create the impression that others are in a special position to influence her or him.
12. An arbitrator shall not allow financial, business, professional, family or social relationships or responsibilities to influence her or his conduct or judgement.
13. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect her or his impartiality or that might reasonably create an appearance of impropriety or bias.
V. OBLIGATIONS OF FORMER MEMBERS
14. All former arbitrators shall avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decision or ruling of the arbitration panel.
VI. CONFIDENTIALITY
15. No arbitrator or former arbitrator shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
16. An arbitrator shall not disclose an arbitral award or parts thereof prior to its publication in accordance with Article 29.14(12).
17. An arbitrator or former arbitrator shall not disclose the deliberations of an arbitration panel, or any member's views at any time.
VII. EXPENSES
18. Each arbitrator shall keep a record and render a final account of her or his expenses, as well as the expenses of her or his assistant and staff.
VIII. MEDIATORS
19. The disciplines described in this Annex as applying to arbitrators or former arbitrators shall apply, mutatis mutandis, to mediators and, if applicable, to former mediators.
IX. EXPERTS
20. The following rules apply to the experts whose opinion is requested by the arbitration 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 organisation in delivering their opinion;
(b) They shall not engage in ex parte contacts in the course of the proceeding for which their opinion is requested;
(c) They shall not disclose or use any non-public information acquired during a proceeding for which their opinion is requested, except for the purposes of the proceeding, and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others;
(d) Unless otherwise agreed by the parties, they shall not disclose their opinion or parts thereof prior to the publication of the arbitral award; and
(e) They shall keep a record and render a final account of their expenses.
21. The opinions of experts presented to the arbitration panel shall be accompanied, or preceded, by a declaration by the expert confirming her or his commitment to abide by the obligations described in paragraph 20, as applicable.
ANNEX 29-C. MEDIATION
ARTICLE 1
Objective
The objective of this Annex is to facilitate the finding of a mutually agreed solution through a comprehensive and expeditious procedure with the assistance of a mediator.
ARTICLE 2
Provision of information
1. At the request of a Party, the other Party shall promptly provide information and respond to questions pertaining to any existing or proposed measure that materially affects the operation of Part III of this Agreement.
2. Information provided under this Article is without prejudice as to whether the measure is consistent with Part III of this Agreement.
ARTICLE 3
Initiation of the procedure
1. A Party may at any time request in writing to enter into a mediation procedure with respect to any measure by a Party adversely affecting trade between the Parties. The request shall be sufficiently detailed to present the concerns of the requesting party clearly and shall:
(a) identify the specific measure at issue;
(b) provide a statement of the alleged adverse effects that the requesting party believes the measure has, or will have, on trade between the parties; and
(c) explain how the requesting party considers that those effects are linked to the measure.
2. The mediation procedure may only be initiated by mutual agreement of the parties. If a request is made pursuant to paragraph 1, the party to which the request is made shall give sympathetic consideration to the request and deliver its written acceptance or rejection to the requesting party no later than 10 (ten) days after its receipt. Otherwise, the request shall be regarded as rejected.
3. Consultations, including under Chapter 29, are not required before initiating the mediation procedure. A party should in principle, nevertheless, avail itself of the other relevant cooperation or consultation provisions provided for in Part III of this Agreement before initiating the mediation procedure.
ARTICLE 4
Selection of the mediator
1. The parties shall endeavour to agree on a mediator no later than 15 (fifteen) days after the delivery of the acceptance referred to in Article 3(2) of this Annex.
2. A mediator shall not be a national of either party, unless the parties agree otherwise.
3. If the parties are unable to agree on the mediator within the time frame laid down in paragraph 1, either party may request the co-chair of the Joint Committee in trade configuration from the requesting party, or the co-chair's designee, to select the mediator by lot from the sub-list established under Article 29.8.(3)(c). Representatives of both parties shall be invited, with sufficient advance notice, to be present when the lots are drawn. In any event, the drawing of lots shall be carried out with the party or parties that are present.
4. The co-chair of the Joint Committee in trade configuration from the requesting party, or the co-chair's designee, shall select the mediator within 5 (five) days of the request made pursuant to Article 3(2) of this Annex.
5. Should the sub-list referred to in Article 29.8(3)(c) not be established at the time a request is made pursuant to paragraph 3, the mediator shall be drawn by lot from the individuals who have been formally proposed by one or both parties.
6. The mediator shall, in an impartial and transparent manner, assist the parties in bringing clarity to the measure and its possible trade effects, and in reaching a mutually agreed solution.
7. Annex 29-B applies to mediators, mutatis mutandis.
8. Rules 2 to 9 and 56 to 59 of the Rules of Procedure for Arbitration set out in Annex 29-A apply, mutatis mutandis.
ARTICLE 5
Rules of the mediation procedure
1. No later than 10 (ten) days after the appointment of the mediator, the party which invoked the mediation procedure shall deliver a detailed, written description of its concerns to the mediator and to the other party, in particular of the operation of the measure at issue and its trade effects. No later than 20 (twenty) days after the receipt of this description, the other party may deliver written comments on the description. Either party may include any information that it deems relevant in its description or comments.
2. The mediator may decide on the most appropriate way of bringing clarity to the measure concerned and its possible trade effects. In particular, the mediator may organise meetings between the parties, consult them jointly or individually, and provide any additional support requested by the parties. The mediator shall seek the assistance of, or consult with, relevant experts and stakeholders upon agreement of the parties.
3. The mediator shall not advise or comment on the consistency of the measure at issue with Part III of this Agreement. The mediator may offer advice and propose a solution for the consideration of the parties. The parties may accept or reject the proposed solution, or agree on a different solution.
4. The mediation procedure shall take place in the territory of the party to which the request was addressed, or by mutual agreement of the parties, in any other location or by any other means.
5. The parties shall endeavour to reach a mutually agreed solution no later than 60 (sixty) days after the appointment of the mediator. Pending a final agreement, the parties may consider possible interim solutions, particularly if the measure relates to perishable goods or other goods or services that rapidly lose their quality.
6. The solution may be adopted by means of a decision of the Joint Committee in trade configuration. The conclusion of the mutually agreed solution between the parties may be subject to the completion of any necessary internal procedures. Mutually agreed solutions shall be made publicly available without containing information that a party has designated as confidential.
7. On request of the parties, the mediator shall deliver a draft factual report to the parties, providing a brief summary of the measure at issue, the procedures followed and any mutually agreed solution reached, including possible interim solutions. The mediator shall allow the parties 15 (fifteen) days to comment on the draft report. After considering the comments of the parties received within that period, the mediator shall, within 15(fifteen) days, deliver a final factual report to the parties. The factual report shall not include any interpretation of Part III of this Agreement.
8. The procedure shall be terminated:
(a) by the adoption of a mutually agreed solution by the parties, on the date of the adoption thereof;
(b) by mutual agreement of the parties at any stage of the procedure, on the date of that agreement;
(c) by a written declaration of the mediator, after consultation with the parties, that further efforts at mediation would be to no avail, on the date of that declaration; or
(d) by a written declaration of a party after exploring any possible mutually agreed solutions under the mediation procedure and after having considered any advice and proposed solutions by the mediator, on the date of that declaration.
ARTICLE 6
Implementation of a mutually agreed solution
1. If the parties reached agreement on a solution, each party shall take the measures it considers necessary to implement the mutually agreed solution within the agreed timeframe.
2. The implementing party shall notify the other party, in writing, of any steps or measures taken to implement the mutually agreed solution.
ARTICLE 7
Confidentiality
Unless the parties agree otherwise, and without prejudice to Article 5(6), all steps of the procedure, including any advice or proposed solution, are confidential. However, any party may disclose to the public the fact that mediation is taking place.
ARTICLE 8
Relationship to dispute settlement procedures
1. The mediation procedure is without prejudice to the Parties' rights and obligations under dispute settlement procedures of Part III of this Agreement, or any other agreement.