3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination, or a disguised restriction on trade; and
(b) does not impose restrictions on the use or location of computing facilities greater than are required to achieve the objective.
Annex VI. Code of Conduct for Panellists and Others Engaged in Dispute Settlement Proceedings Under this Agreement
Definitions
1. For the purposes of this Annex:
(a) assistant means a person who, under the terms of appointment of a panellist, conducts research or provides support for the panellist;
(b) candidate means a person who is under consideration for selection as a panellist;
(c) panellist means a member of the Arbitral Tribunal established under Article 18 (Settlement of Disputes Between the Parties);
(d) proceeding, unless otherwise specified, means the proceeding of a panel under this Agreement;
(e) staff, in respect of a panelist, means persons under the direction and control of the panelist, other than assistants; and
(f) expert means an individual or body providing information or technical advice.
Provision of Code of Conduct
2. The Parties shall provide this Code of Conduct and Annex VI-A (Initial Disclosure Statement) to a candidate prior to confirmation of their appointment to serve as a panellist under Article 18 (Settlement of Disputes Between the Parties).
3. A panellist shall provide this Code of Conduct and Annex VI-A (Initial Disclosure Statement) to their assistants and staff.
4. The Panel shall provide this Code of Conduct and Annex VI-A (Initial Disclosure Statement) to an expert when they are requested to provide information or technical advice to the Arbitral Tribunal established under Article 18 (Settlement of Disputes Between the Parties).
Responsibilities to the Process
5. Every panellist 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 process are preserved.
Disclosure Obligations
6. Prior to confirmation of their selection as a panellist under this Agreement, a candidate shall disclose any interest, relationship or matter that is likely to affect their independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
7. Once selected, a panellist shall continue to make all reasonable efforts to become aware of any interests, relationships and matters referred to in paragraph 6 and shall disclose them by communicating them in writing to the Parties. The obligation to disclose is a continuing duty, which requires a panellist to disclose any such interests, relationships and matters that may arise during any stage of the proceeding.
Performance of Duties by Panellists
8. A panellist shall comply with the provisions of this Agreement and its Annexes.
9. On selection, a panellist shall perform their duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
10. A panellist shall not deny other panellists the opportunity to participate in all aspects of the proceeding.
11. A panellist shall consider only those issues raised in the proceeding and necessary to rendering a decision and shall not delegate the duty to decide to any other person.
12. A panellist shall take all appropriate steps to ensure that the panellist’s assistant and staff are aware of, and comply with, paragraphs 5, 6, 7, 24, 25, 26 and 27 of this Annex.
13. A panellist shall not engage in ex parte contacts concerning the proceeding.
14. Each panellist shall keep a record and render a final account of the time devoted to the panel proceedings and of their expenses, as well as the time and expenses of their staff and assistants.
15. A panellist shall not communicate matters concerning actual or potential violations of this Annex by another panellist unless the communication is to both Parties or is necessary to ascertain whether that panellist has violated or may violate this Annex.
Independence and Impartiality of Panellists
16. A panellist shall be independent and impartial. A panellist shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
17. A panellist shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party or fear of criticism.
18. 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 the panellist's duties.
19. 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 the panellist. A panellist shall make every effort to prevent or discourage others from representing themselves as being in such a position.
20. A panellist shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the panellist's conduct or judgment.
21. A panellist or former panellist shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect the panellist's impartiality or that might reasonably create an appearance of impropriety or bias.
Duties in Certain Situations
22. A panellist or former panellist shall avoid actions that may create the appearance that the panellist was biased in carrying out the panellist's duties or would benefit from the decision or report of the panel.
23. In any proceeding under Article 18 (Settlement of Disputes Between the Parties), a panellist shall refrain, for the duration of the proceeding, from acting as counsel or party-appointed expert witness in any new or pending dispute, under the Agreement or another international agreement, that directly addresses the same measure in dispute in, or arises out of the facts giving rise to, the proceeding under Article 18 (Settlement of Disputes Between the Parties).
Maintenance of Confidentiality
24. A panellist, former panellist or expert shall not at any time disclose or use any confidential or non-public information concerning the proceeding or acquired during the proceeding 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 affect adversely the interest of others.
25. A panellist, former panellist or expert shall not disclose a panel report, or parts thereof, prior to its publication.
26. A panellist or former panellist shall not at any time disclose the deliberations of a panel, or any panellist's view, except as required by applicable laws and regulations.
27. A panellist, former panellist or expert shall not make a public statement regarding the panel proceeding.
Appendix VI-A. INITIAL DISCLOSURE STATEMENT
1. I acknowledge having received a copy of the Code of Conduct for dispute settlement under Article 18 (Settlement of Disputes Between the Parties) of this Agreement.
2. I acknowledge having read and understood the Code of Conduct and hereby undertake to comply with my obligations under the Code of Conduct.
3. I understand that I have a continuing obligation, while participating in the proceeding, to disclose interests, relationships and matters that may bear on the integrity or impartiality of the dispute settlement process. As a part of this continuing obligation, I make the following initial disclosures:
(a) my financial interest in the proceeding for which I am under consideration or in its outcome is as follows:
(b) my financial interest in any administrative proceeding, domestic judicial proceeding, arbitration proceeding, or another international dispute settlement proceeding that involves issues that may be decided in the proceeding is as follows:
(c) the financial interest that any employer, business partner, business associate, or family member of mine may have in the proceeding or in its outcome is as follows:
(d) the financial interest that any employer, business partner, business associate, or family member of mine may have in any administrative proceeding, domestic judicial proceeding, arbitration proceeding, or another international dispute settlement proceeding that involves issues that may be decided in the proceeding is as follows:
(e) my past or existing financial, business, professional, family, and social relationships with any interested parties in the proceeding, or their counsel, is as follows:
(i) the past or existing financial, business, professional, family, and social relationships with any interested parties in the proceeding, or their counsel, involving any employer, business partner, business associate or family member of mine is as follows:
(ii) my public advocacy or legal or other representation concerning an issue in dispute in the proceeding or involving the same matters is as follows:
(iii) my other interests, relationships, and matters that may bear on the integrity or impartiality of the dispute settlement process and that are not disclosed in paragraphs (a) to (h) of this Initial Disclosure Statement are as follows:
Signed on this __________ day of ____________, 20__.
By:
Signature_________________________________________
Name____________________________________________
Annex VII. Schedule of Australia
EXPLANATORY NOTES
1. This Annex sets out, pursuant to Article 13 (Non-Conforming Measures), the specific sectors, subsectors or activities for which Australia may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:
(a) Article 4 (National Treatment)
(b) Article 5 (Most-Favoured-Nation Treatment)
(b) Article 9 (Performance Requirements); or
(c) Article 10 (Senior Management and Board of Directors).
2. Each entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Subsector where referenced, refers to the specific subsector for which the entry is made;
(c) Obligations Concerned specifies the obligations referred to in Paragraph 1 that, pursuant to Article 13 (Non-Conforming Measures), do not apply to the sectors, subsectors or activities listed in the entry;
(d) Description sets out the scope of the sector, subsector or activities covered by the entry; and
(e) Existing Measures where specified, identifies, for transparency purposes, a non-exhaustive list of existing measures that apply to the sectors, subsectors or activities covered by the entry.
3. In accordance with Article 13 (Non-Conforming Measures), the Articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the sectors, subsectors and activities identified in the Description element of that entry.
4. For greater certainty, where Australia has more than one entry in this Annex that could apply to a measure, each entry is to be read independently, and is without prejudice to the application of any other entry to the measure.
1. Sector: All Sectors
Subsector: -
Obligations Concerned: National Treatment, Performance Requirements, Senior Management and Boards of Directors
Description: Australia reserves the right to adopt or maintain any measure that accords preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation. For the purpose of this reservation, an Indigenous person means a person of the Aboriginal and Torres Strait Islander peoples.
Existing measures: Legislation and ministerial statements at all levels of government including Australia’s Foreign Investment Framework, and the Native Title Act 1993 (Cth).
2. Sector: All Sectors
Subsector : -
Obligations Concerned : National Treatment, Most-Favoured-Nation Treatment, Performance Requirements, Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure with respect to:
(a) the devolution to the private sector of services provided in the exercise of governmental authority at the time of entry into force of this Agreement; and
(b) the privatisation of government owned entities or assets.
Existing Measures : -
3. Sector : All Sectors
Subsector : -
Obligations Concerned : National Treatment, Most-Favoured-Nation Treatment, Performance Requirements, Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure (17) with respect to the provision of law enforcement and correctional services, and the following services (18) to the extent that they are social services established or maintained for a public purpose:
• income security or insurance;
• social security or insurance;
• social welfare;
• public education;
• public training;
• health (19);
• child care;
• public utilities;
• public transport; and
• public housing.
Existing Measures : -
4. Sector : Communications Services; Recreational, Cultural and Sporting Services
Subsector : -
Obligations Concerned : National Treatment, Most-Favoured-Nation Treatment, Performance Requirements,,Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure with respect to:
(a) the creative arts (20), cultural heritage (21) and other cultural industries, including audio-visual services, entertainment services and libraries, archives, museums and other cultural services; and
(b) broadcasting and audio-visual services, including measures with respect to planning, licensing and spectrum management, and including:
(i) services offered in Australia; and
(ii) international services originating from Australia.
Existing Measures : Broadcasting Services Act 1992 (Cth) Radiocommunications Act 1992 (Cth) Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Screen Australia Act 2008 (Cth) Australia Council Act 2013 (Cth) Broadcasting Services (Australian Content and Children’s Television) Standards 2020 Broadcasting Services (Australian Content in Advertising) Standard 2018 Broadcasting Services (Events) Notice (No.1) 2010 ABC Codes of Practice SBS Codes of Practice Commercial Radio Codes of Practice and Guidelines Community Radio Broadcasting Codes of Practice Subscription Narrowcast Radio Codes of Practice Open Narrowcasting Codes of Practice and the associated Narrowcasting for Radio Guidelines International Co-Production Programs.
5. Sector : Education Sector
Subsector : -
Obligations Concerned : National Treatment, Most-Favoured-Nation Treatment, Performance Requirements, Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure with respect to primary education.
Existing Measures : -
6. Sector : Gambling and Betting
Subsector : -
Obligations Concerned : National Treatment, Performance Requirements Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure with respect to gambling and betting.
Existing Measures : Legislation and Ministerial Statements, including the Interactive Gambling Act 2001 (Cth).
7. Sector : Transport Services
Subsector : -
Obligations Concerned : National Treatment, Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure with respect to investment in federal leased airports.
Existing Measures : Airports Act 1996 (Cth) Airports (Ownership-Interests in Shares) Regulations 1996 (Cth) Airports Regulations 1997 (Cth).
8. Sector : Maritime Transport
Subsector : -
Obligations Concerned : National Treatment, Performance Requirements Senior Management and Boards of Directors
Description : Australia reserves the right to adopt or maintain any measure with respect to maritime cabotage services and offshore transport services. (22)
Australia reserves the right to adopt or maintain any measure with respect to the registration of vessels in Australia.
Existing Measures : Customs Act 1901 (Cth) Fair Work Act 2009 (Cth) Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) hipping Registration Act 1981 (Cth) Shipping Registration Regulations 1981 (Cth) Income Tax Assessment Act 1936 (Cth) Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth) Shipping Reform (Tax Incentives) Act 2012 (Cth).
9. Sector : Agriculture