Article 9.19. Interpretation of Annexes
1. Where a respondent asserts as a defence that the measure alleged to be a breach is within the scope of an entry set out in Section A or B of its Schedule of Non- Conforming Measures in Annex IH, the tribunal shall, on request of the respondent, request the interpretation of the Parties on the issue. The Parties shall submit in writing any joint decision declaring their interpretation to the tribunal within 90 days of delivery of the tribunal's request.
2. A joint decision issued under paragraph 1 by the Parties, acting through the Committee on Investment, shall be binding on the tribunal, and any decision or award issued by the tribunal must be consistent with that joint decision. If the Parties fail to issue such a decision within 90 days, the tribunal shall decide the issue. In such a case, the tribunal shall draw no inference from the fact that the Parties fail to issue such a decision.
3. A joint decision issued under paragraph 1 by the Parties shall also be binding on the tribunal of any dispute subsequent to the date of the joint decision to the extent applicable and not modified by another joint decision issued pursuant to paragraph 1 subsequent to the first said joint decision.
Article 9.20. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorised by the applicable arbitration rules, a tribunal, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety, or other scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 9.21. Consolidation
1. Where two or more claims have been submitted separately to arbitration under Article 9.12.2 and the claims have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order in accordance with the agreement of all the disputing parties sought to be covered by the order or the terms of paragraphs 2 through 11.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General and to all the disputing parties sought to be covered by the order and shall specify in the request:
(a) the names and addresses of all the disputing parties sought to be covered by the order;
(b) the nature of the order sought; and (c) the grounds on which the order is sought.
3. Unless the Secretary-General finds within 30 days after receiving a request under paragraph 2 that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the disputing parties sought to be covered by the order otherwise agree, a tribunal established under this Article shall comprise three arbitrators:
(a) one arbitrator appointed by agreement of the claimants; (b) one arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the Secretary-General from the list of chairpersons established pursuant to Article 9.15.5.
5. If, within 60 days after the Secretary-General receives a request made under paragraph 2, the respondent fails or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, on the request of any disputing party sought to be covered by the order, shall appoint the arbitrator or arbitrators not yet appointed from the list of arbitrations established pursuant to Article 9.15.5.
6. In the event that the Secretary-General is required to appoint an arbitrator or arbitrators under paragraph 4 or 5, and the list referred to in Article 9.15.5 has not been established, the Secretary-General shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed. The Secretary-General shall not appoint a national of either Party as the presiding arbitrator unless the disputing parties otherwise agree.
7. Where a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration under Article 9.12.2 have a question of law or fact in common, and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
(a) assume jurisdiction over, and hear and determine together, all or part of the claims;
(b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others; or
(c) instruct a tribunal previously established under Article 9.15 to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that
(i) that tribunal, at the request of any claimant not previously a disputing party before that tribunal, shall be reconstituted with its original members, except that the arbitrator for the claimants shall be appointed pursuant to paragraphs 4(a), 5 and 6; and
(ii) that tribunal shall decide whether any prior hearing shall be repeated.
8. Where a tribunal has been established under this Article, a claimant that has submitted a claim to arbitration under Article 9.12.2 and that has not been named in a request made under paragraph 2 may make a written request to the tribunal that it be included in any order made under paragraph 7, and shall specify in the request:
(a) the name and address of the claimant;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
The claimant shall deliver a copy of its request to the Secretary-General. 9. A tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Agreement and the Side Letter on Transparency Rules Applicable to ISDS. 10. _A tribunal established under Article 9.15 shall not have jurisdiction to decide a claim, or a part of a claim, over which a tribunal established or instructed under this Article has assumed jurisdiction.
11. On application of a disputing party, a tribunal established under this Article, pending its decision under paragraph 7, may order that the proceedings of a tribunal established under Article 9.15 be stayed, unless the latter tribunal has already adjourned its proceedings.
Article 9.22. Awards
1. Where a tribunal makes an award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
2. A tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
3. Subject to paragraph 1, where a claim is submitted to arbitration under Article 9.12.2(b):
(a) an award of restitution of property shall provide that restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable laws and regulations provided that such relief does not grant or result in duplicated remedies to any person in light of the award rendered.
4. A tribunal may not award punitive damages.
5. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
6. Subject to paragraph 7, a disputing party shall abide by and comply with an award without delay.
7. A disputing party may not seek enforcement of an award until: (a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and (b) in the case of an award made under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to Article 9.12.4(d), (i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
8. Each Party shall provide for the enforcement of an award in its territory.
Article 9.23. Appellate Review
Within three years after the date of entry into force of this Agreement, the Parties shall commence negotiations with a view to establishing an appellate mechanism to review awards rendered under Article 9.22 in arbitrations commenced after any such appellate mechanism is established. Any such appellate mechanism would hear appeals on questions of law.
Article 9.24. Annexes and Footnotes
The Annexes and footnotes shall form an integral part of this Agreement.
Article 9.25. Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 9-B.
ANNEX 9-A. Code of conduct
Responsibilities to the Process
1. Every 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 process are preserved. Former arbitrators shall comply with the obligations established in paragraphs 16, 17, 18 and 19.
Disclosure Obligations
2. Prior to confirmation of his or her selection as an arbitrator 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, relationships and matters.
3. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships and matters referred to in paragraph 2 and shall disclose them by communicating them in writing to the disputing parties. The obligation to disclose is a continuing duty, which requires an arbitrator to disclose any such interests, relationships and matters that may arise during any stage of the proceeding.
Performance of Duties by Arbitrators
4. An arbitrator shall comply with the provisions of this Chapter and the applicable tules of procedure.
5. On selection, an arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
6. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the proceeding.
7. An arbitrator 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.
8. An arbitrator shall take all appropriate steps to ensure that the arbitrator's assistant and staff are aware of, and comply with, paragraphs 1, 2,3, 18, 19 and 20.
9. An arbitrator shall not engage in ex parte contacts concerning the proceeding.
10. An arbitrator shall not communicate matters concerning actual or potential violations by another arbitrator unless the communication is to both disputing parties or is necessary to ascertain whether that arbitrator has violated or may violate this Annex.
Independence and Impartiality of Arbitrators
11. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
12. An arbitrator shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party or a disputing party or fear of criticism.
13. 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 the arbitrator's duties.
14. An arbitrator shall not use his or her position on the arbitral tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator. An arbitrator shall make every effort to prevent or discourage others from representing themselves as being in such a position.
15. An arbitrator shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the arbitrator's conduct or judgment.
16. An arbitrator shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect the arbitrator's impartiality or that might reasonably create an appearance of impropriety or bias.
Duties in Certain Situations
17. An arbitrator or former arbitrator shall avoid actions that may create the appearance that the arbitrator was biased in carrying out the arbitrator's duties or would benefit from the decision or award of the arbitral tribunal.
Maintenance of Confidentiality
18. An arbitrator or former arbitrator shall not at any time disclose or use any 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.
19. An arbitrator shall not disclose an arbitral tribunal award or parts thereof prior to its publication.
20. An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitral tribunal, or any arbitrator's view, except as required by legal or constitutional requirements.
Definitions
21. For the purposes of this Annex:
assistant means a person who, under the terms of appointment of an arbitrator, conducts research or provides support for the arbitrator;
arbitrator means a member of an arbitral tribunal established under Section B of this Chapter;
proceeding, unless otherwise specified, means the proceeding of an arbitral tribunal under Section B of this Chapter; and
staff, in respect of an arbitrator, means persons under the direction and control of the arbitrator, other than assistants.
ANNEX 9-B. Service of documents on a party under section b
Australia
Notices and other documents in disputes under Section B shall be served on Australia by delivery to:
Department of Foreign Affairs and Trade RG Casey Building
John McEwen Crescent
Barton ACT 0221 Australia
China
Notices and other documents in disputes under Section B shall be served on China by delivery to:
Ministry of Commerce
NO.2 Dongchangan Street, Dongcheng District Beijing, China, 100731
Chapter 10. Movement of Natural Persons
Article 10.1. Scope
1. This Chapter shall apply to measures affecting the movement of natural persons of a Party into the territory of the other Party under any of the categories referred to in Annex 10-A.
2. This Chapter shall not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party, nor shall it apply to measures regarding citizenship, nationality, or residence or employment on a permanent basis.
3. Nothing contained in this Agreement shall prevent a Party from applying measures to regulate the entry or temporary stay of natural persons of the other Party in its territory, including measures necessary to protect the integrity of its territory and to ensure the orderly movement of natural persons across its borders, provided such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this Chapter. (1)
Article 10.2. Definitions
For the purposes of this Chapter:
(a) immigration measure means any measure (2) affecting the entry and stay of foreign nationals in a Party;
(b) immigration formality means a visa, permit, pass or other document or electronic authority granting a natural person of a Party temporary entry to the other Party;
(c) natural person of a Party means a natural person who under the law of the Party,
(i) for Australia, is an Australian citizen or a permanent resident of Australia; and
(ii) for China, is a natural person who under Chinese law is a national of China;
(d) temporary employment entry means entry by a natural person of a Party, including a skilled worker, into the territory of the other Party in order to temporarily work under an employment contract concluded pursuant to the law of the receiving Party, without the intent to establish permanent residence; and
(e) temporary entry means entry by a natural person covered by this Chapter, including, where relevant, temporary employment entry, without the intent to establish permanent residence.
Article 10.3. Expeditious Application Procedures
1. Each Party shall expeditiously process complete applications for immigration formalities received from natural persons of the other Party covered by this Chapter, including further immigration formality requests or extensions thereof.
2. Each Party shall, on request and within a reasonable period after a complete application by a natural person of the other Party covered by this Chapter requesting temporary entry is lodged, notify the applicant, either directly or through their authorised representative, of:
(a) receipt of the application;
(b) the status of the application; and
(c) where a decision has been made, the decision concerning the application, including:
(i) if approved, the period of stay and other conditions; or
(ii) if refused, the reasons for refusal.
3. The Parties affirm their voluntary commitments established in the APEC Business Travel Card Operating Framework.
4. Each Party shall ensure that fees charged by its competent authorities in respect of the processing of an immigration formality are reasonable and do not in themselves represent an unjustifiable impediment to the movement of natural persons of the other Party under this Chapter.
5. Each Party shall endeavour, to the extent possible, to provide facilities for online lodgement and processing of immigration formalities.
Article 10.4. Grant of Temporary Entry
1. Each Party shall set out in Annex 10-A the specific commitments it undertakes for each of the categories of natural persons specified therein. The Parties may make commitments in respect of the temporary employment entry of natural persons.
2. Where a Party makes a commitment under paragraph 1, it shall grant temporary entry or extension of temporary stay to natural persons of the other Party to the extent provided for in that commitment, provided that those natural persons:
(a) follow the prescribed application procedures for the relevant immigration formality; and
(b) meet all relevant eligibility requirements for such temporary entry.
3. In respect of the specific commitments on temporary entry in this Chapter, unless otherwise specified in Annex 10-A, neither Party shall:
(a) impose or maintain any limitations on the total number of visas to be granted to natural persons of the other Party; or
(b) require labour market testing, economic needs testing or other procedures of similar effect as a condition for temporary entry.
4. Each Party shall limit any fees for processing applications for temporary entry of natural persons in a manner consistent with Article 10.3.
5. Temporary entry granted in accordance with this Chapter does not replace the requirements needed to carry out a profession or activity according to the applicable laws and regulations in force in the territory of the Party authorising the temporary entry.
Article 10.5. Transparency
Further to the commitments in Chapter 13 (Transparency), each Party shall:
(a) provide to the other Party such materials as will enable it to become acquainted with that Party's measures relating to this Chapter;
(b) no later than six months after the date of entry into force of this Agreement, prepare, publish on the internet where possible or, if not, otherwise make publicly available in a consolidated manner, explanatory material, relevant forms and documents, and average processing times regarding temporary entry under this Chapter in such a manner as will enable natural persons of the other Party to become acquainted with them;
(c) establish or maintain appropriate mechanisms to respond to enquiries from interested persons regarding measures relating to temporary entry covered by this Chapter; and
(d) upon modifying or amending an immigration measure that affects the temporary entry of natural persons, ensure that such modifications or amendments are promptly published or otherwise made available pursuant to subparagraph (b).
Article 10.6. Committee on Movement of Natural Persons
1. The Parties hereby establish a Committee on Movement of Natural Persons that shall meet within two years of entry into force of this Agreement, or as agreed by the Parties or on the request of the FTA Joint Commission, to consider any matter arising under this Chapter.
2. The Committee's functions shall include: (a) reviewing the implementation and operation of this Chapter; and (b) identification and recommendation of measures to promote increased movement of natural persons between the Parties; and to improve the commitments undertaken by the Parties under this Chapter, on a mutually advantageous basis.
Article 10.7. Dispute Settlement
1. The Parties shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect the operation of this Chapter.
2. The dispute settlement procedures in Chapter 15 (Dispute Settlement) shall not apply to this Chapter unless:
(a) the matter involves a pattern of practice; and
(b) the natural persons of a Party concerned have exhausted administrative remedies, where available, regarding the particular matter.
3. The remedies referred to in paragraph 2(b) shall be deemed to be exhausted if a final determination in the matter has not been issued within one year after the date of the institution of proceedings (not including any review or appeal) for such remedy, and the failure to issue such a determination is not attributable to delays caused by the natural persons concerned.
Article 10.8. Relation to other Chapters
1, Except for this Chapter, Chapters 1 (Initial Provisions and Definitions), 13 (Transparency), 14 (Institutional Provisions), 15 (Dispute Settlement), 16 (General Provisions and Exceptions), and 17 (Final Provisions), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures within the scope of this Chapter.
2. Nothing in this Chapter shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.