6. The arbitration panel that is established for purposes of this Article shall, wherever possible, have, as its arbitrators, the arbitrators of the original arbitration panel. If this is not possible, then the arbitrators of the arbitration panel that is established for purposes of this Article shall be appointed pursuant to Article 10.9. The arbitration panel established under this Article shall issue its report to the Parties within 45 days after the date when the matter is referred to it. When the arbitration panel considers that it cannot issue its report within the aforementioned periods, the relevant period may be extended by the arbitration panel for a maximum of 30 days with the consent of the Parties. The report shall be binding on the Parties.
Article 10.16. Rules of Procedure
1. Dispute settlement proceedings under this Chapter shall be governed by the Rules of Procedure for Arbitration set out in Annex 10-A. The Parties in consultation with the arbitration panel may agree to adopt additional rules of procedures not inconsistent with the provisions of the Annex.
2. Any period of time or other rule of procedure for arbitration panel provided for in this Chapter and Annex 10-A may be modified by mutual consent of the Parties. The Parties may also agree at any time not to apply any provision of this Chapter.
Article 10.17. Expenses
1. Unless the Parties otherwise agree, each Party shall bear the costs of its appointed arbitrator and its own expenses and legal costs.
2. Unless the Parties otherwise agree, the costs of the chair of the arbitral panel and other expenses associated with the conduct of its proceedings shall be borne in equal shares by the Parties.
Article 10.18. Annexes
Annexes 10-A and 10-B shall form an integral part of this Chapter.
ANNEX 10-A . Rules of Procedures for Arbitration
Definitions
1. For purposes of this Chapter:
adviser means a person retained by a Party to advise or assist that Party in connection with the arbitration panel proceeding;
assistant means a person who, under the terms of appointment of an arbitrator, conducts research or provides assistance to that arbitrator; and
representative of a Party means any person appointed by a Party according to its domestic laws and regulations.
Logistical Administration
2. In case the arbitration panel proceedings are held in the territory of a Party, that Party shall be in charge of the logistical administration of arbitration proceedings, in particular the organization of hearings, unless otherwise agreed.
Notifications
3. Any request, notice, written submissions or other documents delivered by either Party or the arbitration panel shall be transmitted by delivery against receipt, registered post, courier, facsimile transmission, telex, telegram or any other means of telecommunication that provides a record of the sending thereof.
4. A Party shall provide a copy of each of its written submissions to the other Party and to each of the arbitrators. A copy of the document shall also be provided in electronic format.
5. All notifications shall be made and delivered to the Ministry of Trade, Industry, and Energy of Korea and, to the Ministry of Trade of Indonesia, respectively.
6. Minor errors of a clerical nature in any request, notice, written submission or other document related to the arbitration panel proceedings may be corrected by delivery of a new document clearly indicating the changes.
7. If the last day for delivery (1) of a document falls on a legal holiday of either Party, the document may be delivered on the next business day.
First Submissions
8. The complaining Party shall deliver its first written submission within 30 days after the date of the establishment of the arbitration panel. The Party complained against shall deliver its written counter-submission within 30 days after the date of receipt of the complaining Party’s first written submission.
Operation of Arbitration Panels
9. The chair of the arbitration panel shall preside at all of its meetings. The arbitration panel may delegate to the chair authority to make administrative and procedural decisions.
10. Except as otherwise provided for in this Chapter, the arbitration panel may conduct its activities by any means, including telephone, facsimile transmissions or computer links.
11. Only arbitrators may take part in the deliberations of the arbitration panel, but the arbitration panel may permit assistants of the arbitrators to be present during such deliberations.
12. The drafting of any decision and ruling shall remain the exclusive responsibility of the arbitration panel and shall not be delegated.
13. Where a procedural question arises that is not covered by this Chapter, the arbitration panel, after consulting with the Parties, may adopt an appropriate procedure that is not inconsistent with this Chapter.
14. When the arbitration panel considers that there is a need to modify any time periods set out in this Chapter applicable in the proceedings, or to make any other procedural or administrative adjustment in the proceedings, it shall inform the Parties in writing of the reasons for the modification or adjustment with the indication of the period or adjustment needed.
15. Unless otherwise agreed, the remuneration and expenses to be paid to the arbitrators will normally conform to WTO standards.
Hearings
16. Unless otherwise agreed, at least one hearing shall be held. The chair shall fix the date and time of the hearing in consultation with the Parties and the other members of the arbitration panel. The chair of the arbitration panel shall notify the Parties of the date, time and location of the hearing in writing. That information shall also be made publicly available by the Party in charge of the logistical administration of the proceeding, when the Parties decide to make the hearings open to the public in accordance with paragraph 21 of this Annex.
17. The arbitration panel may convene additional hearings if the Parties so agree.
18. All arbitrators shall be present during the entirety of any hearing.
19. Representatives of a Party, advisers to a Party, experts, administration staff, interpreters, translators, court reporters, and assistants of the arbitrators may attend the hearing(s), irrespective of whether the hearings are open to the public or not. Unless otherwise decided by the arbitration panel, only the representatives and advisers of a Party may address the arbitration panel.
20. No later than five days before the date of a hearing, each Party shall deliver to the arbitration panel 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 representatives, advisers, interpreters and translators of that Party who will be attending the hearing.
21. The hearings of the arbitration panels shall be closed to the public. The Parties may decide to open the hearings partially or completely to the public.
22. The arbitration panel shall conduct the hearing in the following manner, ensuring that the complaining Party and the Party complained against are afforded equal time:
argument
(a) argument of the complaining Party; and
(b) argument of the Party complained against.
rebuttal argument
(a) reply of the complaining Party; and
(b) counter-reply of the Party complained against.
23. The arbitration panel may direct questions to either Party or experts at any time during a hearing.
24. The arbitration panel shall arrange for a transcript of each hearing to be prepared and shall, as soon as possible after it is prepared, deliver a copy of the transcript to the Parties. The Parties may comment on the transcript, and the arbitration panel will decide whether to reflect those comments.
25. Within 10 days of the date of the hearing, each Party may deliver a supplementary written submission responding to any matter that arises during the hearing.
Questions in Writing
26. The arbitration panel may at any time during the proceedings address questions in writing to a Party or both Parties. The arbitration panel shall deliver the written questions to the Party whom the questions are addressed and shall send a copy of the questions to the other Party.
27. A Party to whom the arbitration panel addresses written questions shall deliver a copy of any written reply to the other Party and to the arbitration panel. Each Party shall be given the opportunity to provide written comments on the reply within seven days of the date of receipt.
Ex Parte Communications
28. There shall be no ex parte communications with the arbitration panel concerning matters under consideration by the arbitration panel.
29. No arbitrator may discuss any aspect of the subject matter of the proceedings with a Party or both Parties in the absence of the other arbitrators.
Suspension of Time Periods on Request of Technical Advice
30. The arbitration panel, consulting with the Parties and experts, may determine the time period that the experts are to submit their opinions or advice. If the experts cannot submit their opinions or advice within the period established pursuant to the first sentence of this paragraph, the arbitration panel, consulting with the Parties, may give additional time to experts. In no case this additional period exceeds the half of the period established pursuant to first sentence of this paragraph.
31. When a request is made for a written report of an expert, any time period applicable to the arbitration panel proceedings shall be suspended for a period beginning on the date of delivery of the request and ending on the date the report is delivered to the arbitration panel.
Amicus Curiae Submissions
32. Unless otherwise agreed, within three days of the date of the establishment of the arbitration panel, the arbitration panel may receive unsolicited written submissions from interested natural or juridical persons of the Parties, provided that they are made within 10 days of the date of the establishment of the arbitration panel, that they are concise and in no case longer than 15 typed pages, including any annexes, and that they are directly relevant to factual and legal issues under consideration by the arbitration panel.
33. The submissions referred to in paragraph 32 shall contain a description of the person, whether natural or juridical, making the submission, including the nature of its activities and the source of its financing, and specify its nationality or place of establishment and the nature of the interest that person has in the arbitration proceedings. It shall be made in the common working language in accordance with paragraph 35.
34. The arbitration panel shall list in its ruling all the submissions that it has received and that conform to paragraphs 32 and 33. The arbitration panel shall not be obliged to address, in its ruling, the arguments made in such submissions. Any submission obtained by the arbitration panel under paragraphs 32 through 34 shall be submitted to the Parties for their comments.
Interpretation and Translation
35. Unless otherwise agreed during the consultations referred to in Article 10.5, and no later than the meeting referred to in paragraph 9 of this Annex, the common working language for the proceedings of the arbitration panel shall be English. If a Party decides to use interpretation during the proceedings, the arrangement and the cost shall be borne by that Party.
36. Any document submitted for use in any proceeding pursuant to this Chapter shall be in the English language. If any original document is not in the English language, a Party submitting it for use in the proceedings shall provide an English language translation of that document.
Computation of Time
37. All periods of time laid down in this Chapter shall be counted in calendar days, the first day being the day following the act or fact to which they refer.
38. Where, by reason of the operation of paragraph 7, a Party receives a document on a date other than the date on which the same document is received by the other Party, any period of time the calculation of which is dependent on such receipt shall be calculated from the last date of receipt of such document.
Other Proceedings
39. In accordance with paragraphs 3 and 4 of Article 10.14 and paragraphs 5 and 6 of Article 10.15, the referring Party shall deliver its first written submission within 15 days of the date the referral is made, and the Party complained against shall deliver its written counter-submission within 15 days of the date of receipt of the first written submission.
40. If appropriate, the arbitration panel shall fix the time periods for delivering any further written submissions, including rebuttal written submissions, so as to provide each Party with the opportunity to make an equal number of written submissions subject to the time periods for arbitration panel proceedings set out in Articles10.14 and 10.15 and this Annex.
41. Unless otherwise provided, this Annex is also applicable to procedures established under Articles 10.14 and 10.15.
ANNEX 10-B . Code of Conduct for Arbitrators
Definitions
1. For purposes of this Chapter:
staff, in respect of an arbitrator, means persons under the direction and control of the arbitrator, other than assistants.
Responsibilities to the Process
2. 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, shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement proceeding are preserved, and shall get acquainted with this Code of Conduct. Former arbitrators must comply with the obligations established in paragraphs 15 through 18.
Disclosure Obligations
3. Prior to confirmation of his or her appointment as an arbitrator under Article 10.9, 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.
4. Once appointed, 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 obligation to disclose is a continuing duty which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceeding. The arbitrator shall disclose such interests, relationships or matters by communicating them in writing to the Joint Committee for consideration by the Parties.
Duties
5. Upon appointment, an arbitrator shall perform an arbitrator’s duties thoroughly and expeditiously throughout the course of the proceedings.
An arbitrator shall carry out all duties fairly and diligently.
7. An arbitrator shall consider only those issues raised in the proceeding and necessary for 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 assistants and staff are aware of and comply with paragraphs 2, 3, 4, 16, 17 and 18.
9. An arbitrator shall not engage in ex parte communications concerning the proceeding in accordance with paragraphs 28 and 29 of Annex 10-A.
Independence and Impartiality of Members of Arbitration Panels
10. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner, shall avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamor, loyalty to a Party or fear of criticism.
11. 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.
12. An arbitrator shall not use his or her position on the arbitration panel 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.
13. An arbitrator shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the arbitrator’s conduct or judgement.
14. 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.
Obligations of Former Arbitrators
15. All former arbitrators must 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.
Confidentiality
16. An arbitrator or former arbitrator shall not at any time disclose or use any non-public information concerning the proceedings, or acquired during the proceedings, except for the purposes of those proceedings 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.
17. An arbitrator shall not disclose an arbitration panel ruling or parts thereof prior to its publication.
18. An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitration panel, or any arbitrator’s view.
Chapter 11. EXCEPTIONS
Article 11.1. General Exceptions
1. For purposes of Chapter Two (National Treatment and Market Access for Goods), Chapter Three (Rules of Origin and Origin Procedures), Chapter Four (Customs Procedures and Trade Facilitation), and Chapter Five (Trade Remedies), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.
2. For purposes of Chapters Six (Trade in Services) and Seven (Investment), Article XIV of GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis.
Article 11.2. Security Exceptions
Nothing in this Agreement shall be construed to:
(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials or relating to the supply of services as carried on, directly or indirectly, for the purposes of supplying or provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken so as to protect critical public infrastructure, including communications, power and water infrastructures, from deliberate attempts intended to disable or degrade such infrastructure; or
(iv) taken in time of domestic emergency, or war or other emergency in international relations; or
(c) prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 11.3. Taxation Measures
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. This Agreement shall only grant rights or impose obligations with respect to taxation measures where:
(a) corresponding rights and obligations are also granted or imposed under Article II of GATT 1994;
(b) they are granted or imposed under Article 7.11 (Transfers); or
(c) they are granted or imposed under Article 7.12 (Expropriation and Compensation).
3. Where paragraph 2(b) or (c) apply, Article 7.19 (Investor-State Dispute Settlement) shall also apply in respect of taxation measures.
(a) Where an investor claims that the disputing Party has breached Article 7.11 (Transfers) or Article 7.12 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the competent authorities of the disputing Party shall request consultations with the competent authorities of the non-disputing Party at the time that the disputing Party receives the investorâs notice of intent under Article 7.19 (Investor-State Dispute Settlement). The competent authorities of the Parties shall hold consultations with a view to determining whether Article 7.11 (Transfers) has been breached or whether the taxation measure in question has an effect equivalent to expropriation. Any tribunal that may be established in accordance with Article 7.19 (nvestor-State Dispute Settlement) shall accept as binding the decision of the competent authorities under this paragraph.
(b) If the competent authorities of the Parties fail to determine whether Article 7.11 (Transfers) has been breached or whether the taxation measure has an effect equivalent to expropriation within 180 days of the date of receipt of the request for consultations by the non-disputing Party, the investor may submit its claim to arbitration under Article 7.19 (Investor-State Dispute Settlement).
(c) For purposes of this paragraph, competent authorities means:
(i) with respect to Korea, the Deputy Minister for Tax and Customs, Ministry of Economy and Finance; and
(ii) with respect to Indonesia, the Minister of Finance or his or her authorised representative;
or their respective successors.
5. In assessing whether a measure related to taxation constitutes expropriation, the following considerations shall be taken into account:
(a) the imposition of taxes does not generally constitute an expropriation. The mere introduction of a new taxation measure or the imposition of taxes in more than one jurisdiction in respect of an investment generally does not in and of itself constitute an expropriation;
(b) enforcement activities of the tax laws including seizure of property for the purpose of tax collection generally do not constitute expropriation;
(c) a taxation measure that is consistent with internationally recognized tax policies, principles, and practices does not constitute an expropriation. In particular, a taxation measure aimed at preventing the avoidance or evasion of taxes generally does not constitute an expropriation;
(d) a taxation measure that is applied on a non-discriminatory basis, as opposed to being targeted at investors of a particular nationality or specific individual taxpayers (1), is not likely to constitute an expropriation; and
(e) a taxation measure generally does not constitute an expropriation if it was already in force when the investment was made and information about the measure was made public or otherwise made publicly available.
6. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency relating to a taxation measure between this Agreement and any such tax convention, that convention shall prevail to the extent of the inconsistency. The competent authorities under that convention shall have sole responsibility for jointly determining whether any inconsistency exists between this Agreement and that convention.
7. Nothing in this Agreement shall oblige a Party to extend to the other Party the benefit of any treatment, preference or privilege arising from any tax convention by which the Party is bound.
8. For purposes of this Article:
(a) tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and.
(b) taxes and taxation measures do not include customs duty as defined in Article 1.1 (General Definitions) and measures listed as exceptions in subparagraphs (b), (c), (d), and (e) of that definition.
Article 11.4. Confidentiality of Information
1. Nothing in this Agreement shall require a Party to furnish or allow access to information that would be contrary to its law or impede law enforcement, or otherwise be contrary to the public interest or that would be prejudice the legitimate commercial interests of any particular enterprises, public or private.
2. Unless otherwise provided in this Agreement, where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the Party receiving the information shall maintain the confidentiality of the information. The information shall be used only for the purposes specified by the Party providing the information. It shall not be disclosed without the specific written permission of the Party providing the information, except where the disclosure of information is necessary to comply with the legal requirements of a Party.
Chapter 12. INSTITUTIONAL PROVISIONS
Article 12.1. Establishment of Joint Committee
1. The Parties hereby establish the Joint Committee.
2. The Joint Committee shall be composed of relevant government officials of cach Party and co-chaired by ministerial level officials of the Ministry of Trade, Industry and Energy of Korea and the Ministry of Trade of Indonesia, or their respective designees. The Joint Committee shall agree on its meeting schedule and set its agenda.
Article 12.2. Functions of Joint Committee
1. The Joint Committee shall:
(a) consider any matter related to the implementation and operation of this Agreement;
(b) review the implementation and operation of this Agreement;