Article 18.28. Mutually Agreed Solution
1. The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time.
2. If a mutually agreed solution is reached during the panel procedure, the Parties shall jointly notify that solution to the chairperson of the panel and to the Joint Committee. Upon such notification, the panel procedure shall be terminated.
3. Each Party shall take measures necessary to implement the mutually agreed solution within the agreed time period.
4. No later than at the expiry of the agreed time period, the implementing Party shall inform the other Party, in writing, of any measure that it has taken to implement the mutually agreed solution.
Article 18.29. Time Periods
1. All time periods laid down in this Chapter shall be counted in calendar days from the day following the act to which they refer.
2. Any time period referred to in this Chapter may be modified by mutual agreement of the Parties.
Article 18.30. Request for Clarification of the Final Report
1. Within 10 days after the issuance of the final report, a Party may submit a written request to the panel for clarification of any determinations or recommendations in the final report that the Party considers ambiguous. The panel shall respond to the request within 10 days after the presentation of such request.
2. The submission of a request pursuant to paragraph 1 shall not affect the time periods referred to in Articles 18.20 and 18.23 unless the panel decides otherwise.
Annex 18A. Rules of Procedure for the Panel
Definitions
1. For the purposes of this Annex:
adviser means a person retained by a Party to advise or assist that Party in connection with the Panel proceeding;
assistant means a person who, under the terms of appointment of a panelist, conducts research or provides other professional or administrative support to any panelist;
chapter means Chapter 18;
complaining Party means a Party that requests the establishment of a panel;
expert means a person or group that provides information, technical advice, or expert opinion to a panel;
holiday means every Saturday, Sunday, and any other day designated by a Party as an official holiday;
panel means a panel established under Article 18.8;
panelist means a member of a panel established under Article 18.8;
proceedings means a panel proceeding;
respondent Party means a Party that receives the request for the establishment of a panel;
representative of a Party means an employee or any person appointed by a government department or agency or any other public entity of a Party; and
staff means persons under the direction and control of the panelist, or of the panel, other than assistants.
Timetable
2. After consulting the Parties, the panel shall, whenever possible, within 7 days of the composition of the panel, fix the timetable for the panel process. The indicative timetable included in this Annex should be used as a guide.
3. The panel process shall, as a general rule, not exceed 120 days from the date of composition of the panel until the date of the final report, unless the Parties otherwise agree.
4. Should the panel consider there is a need to modify the timetable, it shall inform the Parties in writing of the proposed modification and the reason for it.
Written Submissions and other Documents
5. The Parties and the panel shall deliver any written submission, request, notification, or other document by delivery against receipt, registered post, courier, facsimile transmission, e-mail, or any other means of telecommunication that provides a record of the sending thereof. Where a Party or a panel delivers physical copies of written submissions or any other documents related to the panel proceeding, it shall deliver at the same time an electronic version of such submissions or documents.
6. The Parties shall deliver simultaneously a copy of their written submissions and any other document to the other Party and to each one of the panelists.
7. Unless the panel otherwise decides, the complaining Party shall deliver its first written submission to the panel no later than 15 days after the date of the composition of the panel. The Party complained against shall deliver its first written submission to the panel no later than 30 days after the date of delivery of the complaining Party's first written submission.
8. At any time a Party may correct minor errors of a clerical nature in any written submission, request, notification or other document related to the proceedings by delivery of a new document clearly indicating the changes.
9. Written submissions, requests, notifications, or other documents of all types shall be deemed to be received, on the date upon which the electronic version of them is received.
10. The deadlines are counted from the day following the date of the receipt of such submission or documents. When a term referred to in this Chapter or in this Annex begins or ends on a holiday observed by a Party or on any other day on which the government offices of that Party are closed by order of the government or by force majeure, it shall be regarded as having begun or ended on the next business day. Upon request of the Party, the other Party shall make available by any means the list of dates of its official holidays.
11. Whenever a Party fails to submit in due time its initial written submission or is absent from a scheduled hearing, the panel shall, upon assessment of the aforesaid circumstances, decide on their effect on the future course of the proceedings.
12. Within 10 days of the conclusion of the hearing, each Party may deliver to the panel and the other Party a supplementary written submission responding to any matter that arose during the hearing.
Operation of the Panel
13. The chair of the panel shall preside at all of its meetings. The panel may delegate to the chair the authority to make administrative and procedural decisions.
14. Pursuant to Article 18.16.1.(a), panel deliberations shall be confidential. Only panelists may take part in the deliberations of the panel. The reports of panels shall be drafted without the presence of the Parties in the light of the information provided and the statements made.
15. Opinions expressed in the panel report by individual panelists shall be anonymous.
16. Unless provided otherwise in these rules, the panel may conduct its activities by any appropriate means, including technological means such as telephone, computer connections, or video-conference, provided that the right of a Party to effectively participate in the proceedings is maintained.
17. The panel shall record minutes of the meetings held during each proceeding, which shall be kept in the files of the dispute.
18. Only panelists may take part in the deliberations of the panel. The panel may permit assistants, interpreters, translators, or stenographers to be present during such deliberations.
19. The panel in consultation with the Parties, may employ, (a) an assistant, interpreter, translator and stenographer as it requires to carry out its functions; and (b) an additional reasonable number of such persons as it deems necessary for the proceeding.
20. Where a procedural question arises that is not covered by these rules, the panel, after consulting the Parties, may adopt an appropriate procedure that is consistent with this Agreement.
21. The panel, upon mutual agreement of the Parties, may modify a time period applicable to the proceedings and make other procedural or administrative adjustments as may be required during the proceeding.
Hearings
22. Each Party shall have a right to at least one hearing before the panel. The panel may convene additional hearings if the Parties so agree.
23. The Panel, in consultation with the Parties, will decide on the logistical administration of the hearings, particularly the venue, the assistance of interpreters, and other staff as necessary.
24. The chair shall fix the date and time of the hearings in consultation with the Parties and the other panelists, and then notify the Parties in writing of those dates and times, no later than 15 days prior to the hearings.
25. All panelists shall be present during the entirety of all hearings.
26. Hearings shall be held in closed sessions. Nevertheless, the following persons may attend the hearings: (a) representatives; (b) advisers; (c) staff and translators; (d) assistants; and (e) court stenographers. Only the representatives and advisers may address the panel. Any such arrangements established by the panel may be modified with the agreement of the Parties.
27. No later than five days before the date of a hearing, each Party shall deliver a list of the names of those persons who will make oral arguments or presentations at the hearing on behalf of that Party and of other representatives or advisers who will be attending the hearing.
28. Each hearing shall be conducted by the panel in a manner that ensures that the complaining Party and the Respondent Party are afforded equal time for arguments, rebuttals, and counter-rebuttals. The panel shall conduct the hearing in the following manner: argument of the complaining Party; argument of the respondent Party; the reply of the complaining Party; the counter-reply of the respondent; closing statement of the complaining Party; and closing statement of the respondent Party. The chair may set time limits for oral arguments to ensure that each Party is afforded equal time.
29. The panel may direct questions to either Party at any time during the hearing.
30. The panel shall arrange for a transcript of each hearing to be prepared and shall, as soon as possible, deliver a copy to each Party.
31. Each Party may deliver a supplementary written submission concerning any matter that arose during the hearing within 10 days from the date of the conclusion of the hearing.
Questions
32. The panel may at any time during the proceedings address questions in writing to one or both Parties and set a time-limit for submission of the responses. The Parties shall receive a copy of any question put by the panel.
33. A Party shall submit its response to the panel in writing and shall provide a copy of its response to the other Party. A Party shall be given the opportunity to provide written comments on the other Party?s response within 10 days after the date of receipt thereof.
Confidentiality
34. The panel's hearings and the documents submitted to it shall be confidential. Each Party shall treat as confidential information submitted to the panel by the other Party which that Party has designated as confidential.
35. Where a Party designates as confidential its written submissions to the panel, it shall, on request ofthe other Party, provide the panel and the other Party with a non-confidential summary of the information contained in its written submissions that could be disclosed to the public no later the other Party, provide the panel and the other Party with a non-confidential summary of the information contained in its written submissions that could be disclosed to the public no later than 10 days after the date of request. Nothing in these Rules shall prevent a Party from disclosing statements of its own positions to the public.
Role of experts
36. On request of a Party, or on its own initiative, the panel may seek information and technical advice from any individual or body that it deems appropriate, provided that the Parties agree and subject to such terms and conditions as the Parties agree. The panel shall provide the Parties with any information so obtained for comment.
Working language
37. The working language of the panel proceedings, including for written submissions, oral arguments or presentations, the report of the panel, and all written and oral communications between the Parties and with the panel, shall be English.
Venue
38. The venue for the hearings of the panel shall be decided by agreement between the Parties. If there is no agreement, the first hearing shall be held in the territory of the respondent Party, and any additional hearings shall alternate between the territories of the Parties.
Remuneration and Expenses
39. The panel shall keep a record and render a final account of all general expenses incurred in connection with the proceedings, including those paid to its assistants, designated note-takers, or other individuals that it retains.
Evidence
40. All the evidence submitted by the Parties shall be kept in the files of the dispute to be maintained by the chair of the panel.
41. In case the Parties so request, the panel shall hear witnesses or experts, in the presence of the Parties, during the hearings.
Burden of Proof
42. A Party asserting that a measure of the other Party is inconsistent with the provisions of this Agreement, or that the other Party has otherwise failed to fulfill its obligations under this Agreement shall have the burden of proving its assertions.
43. A Party complained against asserting that a measure is subject to an exception under this Agreement shall have the burden of proving that the exception applies.
Commencing of the Panel proceedings
44. Unless the Parties agree otherwise, the panel within seven days from its composition shall contact the Parties in order to determine procedural matters that the Parties or the panel deem appropriate.
Urgency Cases
45. In cases of urgency, referred to in Article 18.14, the panel shall, after consulting the Parties, modify the time-limits referred to in these rules as appropriate and shall notify the Parties of any such adjustments.
Indicative Timetable for the Panel
Panel established on xx/xx/xxxx.
1. Receipt of first written submissions of the Parties:
(i) complaining Party: 15 days after the date of the composition of the panel
(ii) respondent Party: 30 days after (i);
2. Date of the first hearing with the Parties: within 20 days after receipt of the first submission of the respondent Party against;
3. Receipt of written supplementary submissions of the Parties: 10 days after the date of the first hearing;
4. Issuance of interim report to the Parties: 90 days after the date of composition of the panel;
5. Deadline for the Parties to provide written comments on the interim report: 15 days after the issuance of the interim report; and
6. Issuance of final report to the Parties: within 120 days of the date of composition of the panel.
Annex 18B. Code of Conduct for Panelists, Conciliators, Mediators, and Experts
Definitions
1. The definitions established in Annex 18A will also apply to this Annex. In addition, for the purposes of this Annex:
(a) candidate means:
(i) a person whose name appears in the list established pursuant to Article 18.9; or
(ii) a person who is under consideration for appointment as a panelist, conciliator, mediator, or expert;
(b) family members means:
(i) the spouse or permanent companion of the panelist or candidate;
(ii) the following relatives of the panelist or candidate: parents, grandparents, great grandparents, children, grandchildren great grandchildren, brothers, sisters, nephews, nieces, uncles, aunts, first cousins, great uncles and great aunts or the spouse of such persons; and
(iii) the following relatives of the spouse of the panelist or candidate: parents, grandparents, brothers, sisters, children and grandchildren.
2. Unless otherwise provided in this Annex, reference to panelists shall also apply to conciliators, mediators, and experts.
Responsibilities to the Process
3. Every panelist 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. Former panel shall comply with the obligations established in this Annex, mutatis mutandis.
Disclosure Obligations
4. Prior to confirmation of his or her selection as a panelist under this Agreement, a candidate shall disclose any interest, relationship, or matter that is likely to affect his or her 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, or matter that is likely to affect his or her 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. The candidate shall disclose such interests, relationships and matters by completing and providing the undertaking Form attached to this Annex to the Joint Committee for consideration by the Parties.
5. Pursuant to the obligation provided in paragraph 3, candidates shall disclose, inter alia, the following interests, relationships and matters:
(a) any direct or indirect financial, business, property, professional or personal interest, past or existing, of the candidate:
(i) in the proceeding or in its outcome; and
(ii) in an administrative, arbitral or court proceeding or another tribunal or committee proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;
(b) any direct or indirect financial, business, property, professional or personal interest, past or existing, of the candidate's employer, partner, business associate or family member:
(i) in the proceeding or in its outcome; and
(ii) in an administrative, arbitral or court proceeding or another tribunal or committee proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;
(c) any past or existing financial, business, professional, family or social relationship with a person or entity that has an interest in the proceeding, or the Party's counsel, representative or adviser, or any such relationship involving a candidate's employer, partner, business associate or family member; and
(d) public advocacy, including statements of personal opinion, or legal or other representation concerning an issue in dispute in the proceeding or involving the same type of goods, services, investments, or government procurement.
6. Once selected, a panelist shall continue to make all reasonable efforts to become aware of any interests, relationships and matters referred to in paragraph 3 and 4 and shall disclose them by communicating them in writing to the Joint Committee for consideration by the Parties. The obligation to disclose is a continuing duty, which requires a panelist to disclose any such interests, relationships and matters that may arise during any stage of the proceeding.
7. This Annex does not determine whether or under what circumstances the Parties will disqualify a candidate or a panelist from being appointed to or serving as a member of a panel, on the basis of disclosures made.
Performance of Duties by Panelists
8. A panelist shall comply with the provisions of this Chapter and the applicable rules of procedure.
9. On selection, a panelist shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
10. A panelist shall not deny other panelists the opportunity to participate in all aspects of the proceeding.
11. A panelist shall consider only those issues raised in the proceeding and necessary to rendering decision and shall not delegate any of his or her duties to any other person.
12. A panelist shall take all appropriate steps to ensure that the panelist?s assistant and staff are aware of, and comply with, this Annex, mutatis mutandis.
13. A panelist shall not engage in ex parte contacts concerning the proceeding.
14. A panelist shall not communicate matters concerning actual or potential violations of this Annex by another panelist unless the communication is to both Parties or is necessary to ascertain whether that panelist has violated or may violate this Annex.
Independence and Impartiality of Panelists
15. A panelist shall be independent and impartial. A panelist shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
16. A panelist shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party, or fear of criticism.
17. A panelist 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 panelist's duties.
18. A panelist shall not use his or her position on the panel to advance any personal or private interests. A panelist shall avoid actions that may create the impression that others are in a special position to influence the panelist. A panelist shall make every effort to prevent or discourage others from representing themselves as being in such a position.
19. A panelist shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the panelist's conduct or judgment.
20. A panelist shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect the panelist's impartiality or that might reasonably create an appearance of impropriety or bias.
21. A panelist shall exercise his or her position without accepting or seeking instructions from any international, governmental or non-governmental organization or any private source, and shall not have been involved in any previous stage of the dispute assigned to him or her, unless otherwise agreed by the Parties.
Duties in Certain Situations
22. A panelist or former panelist shall avoid actions that may create the appearance that the panelist was biased in carrying out the panelist?s duties or would benefit from the final report of the panel.
Maintenance of Confidentiality
23. A panelist or former panelist shall not at any time disclose or use information not in the public domain concerning the proceeding or acquired during the proceeding including the Panel's deliberations or any panelist?s view except for the purposes of the proceeding or except as required by law, and shall not, in any case, disclose or use any such information not in the public domain to gain personal advantage, or advantage for others, or to affect adversely the interest of others.
24. In case disclosure is required by law the panelist shall provide sufficient advance notice to the Parties and the disclosure shall not be broader than necessary to satisfy the legitimate purpose of the disclosure.
25. A panelist or former panelist shall not disclose panel report or decisions or parts thereof prior to their publication in accordance with Article 18.19.
Assistants and Staff
26. The provisions included in this Annex as applying to panelists shall apply, mutatis mutandis, to assistants and staff.
27. The provisions included in paragraphs 10 and 24 of this Annex shall apply to staff.
Reasoned objection against a panelist
28. Where a Party raises a reasoned objection against a panelist or a chair regarding his or her compliance with the Code of Conduct, it shall send a written notice to the other Party providing its reasons based on clear evidence regarding the violation of the
Code of Conduct.
29. The Parties shall consult on the matter and come to a conclusion within seven days from receipt of such notice:
(a) if the Parties agree, that there exists proof of a violation of the Code of Conduct, they shall remove that panelist or chair and select a replacement in accordance with Article 18.11;