(c) maximum use of diplomatic channels to promote dialogue and cooperation consistent with this Agreement.
2. In accordance with Article 15.1 (Joint Commission), in the area of economic cooperation the Joint Commission shall:
(a) receive and deliberate on the reports of the Committee;
(b) make decisions on issues referred to it by the Committee;
(c) encourage undertaking of cooperation activities under the framework as well as new initiatives as agreed by the Parties; and
(d) make recommendations on the cooperation activities under this Chapter for implementation through the Committee, in accordance with the strategic priorities of the Parties.
3. Each Party will designate a Contact Point to facilitate communication on cooperation activities undertaken by the Committee. The Contact Points will work with their respective Government agencies, private sector representatives and educational and research institutions in the operation of this Chapter.
4. The Committee shall meet within one year of entry into force of this Agreement and then each year, or as otherwise mutually determined by the Parties.
5. To the greatest extent possible, the work of the Committee shall be conducted using electronic means, including e-mail, teleconference and video- conference. Where a physical meeting is required, it shall, unless otherwise agreed by the Parties, take place contiguous to a meeting of the Joint Commission.
Article 13.6. Non-Application of Dispute Settlement
No Party shall have recourse to the dispute settlement procedures under Chapter 16 (Dispute Settlement) in respect of this Chapter.
Chapter FOURTEEN . TRANSPARENCY
Article 14.1. Definitions
For the purposes of this Chapter, administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations and that is relevant to the implementation of this Agreement but does not include:
(a) a determination or ruling made in administrative or quasi-judicial proceedings that applies to a particular person, good, or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 14.2. Publication
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application with respect to any matter covered by this Agreement are promptly published or otherwise made available (13) in such a manner as to enable interested persons of the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
(b) provide, where appropriate, interested persons and the other Party with a reasonable opportunity to comment on such proposed measures.
Article 14.3. Administrative Proceedings
With a view to administering in a consistent, impartial, and reasonable manner all measures affecting matters covered by this Agreement, each Party shall ensure in its administrative proceedings applying measures referred to in Article 14.2(1) (Publication) to particular persons, goods, or services of the other Party in specific cases that:
(a) wherever possible, persons of the other Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in question;
(b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding, and the public interest permit; and
(c) its procedures are in accordance with domestic law.
Article 14.4. Review and Appeal
1. Each Party shall, where warranted, establish or maintain judicial, quasi- judicial, or administrative tribunals, or procedures for the purpose of the prompt review and correction of final administrative actions regarding matters covered by this Agreement, other than those taken for prudential reasons. Such tribunals shall be independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceedings are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.
Article 14.5. Notification and Provision of Information
1. Where a Party considers that any proposed or actual measure might materially affect the operation of this Agreement or otherwise substantially affect the other Party’s interests under this Agreement, that Party shall, where possible, notify the other Party of the proposed or actual measure.
2. On request of the other Party, a Party shall, where possible, provide information and respond to questions pertaining to any actual or proposed measure, whether or not that other Party has been previously notified of that measure.
3. Any notification, request, or information under this Article shall be conveyed to the other Party through its Contact Point.
4. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Chapter FIFTEEN. INSTITUTIONAL PROVISIONS
Article 15.1. Joint Commission
1. The Parties hereby establish the Malaysia – New Zealand Free Trade Agreement Joint Commission (“Joint Commission”) which may meet at the level of Ministers or senior officials, as mutually determined by the Parties. The Joint Commission shall be co-chaired by senior Government officials of the Parties, unless the Parties agree to convene the meeting at ministerial level. Each Party shall be responsible for the composition of its delegation.
2. The functions of the Joint Commission shall be to:
(a) review the implementation and operation of this Agreement;
(b) consider any matters relating to the implementation of this Agreement;
(c) supervise and coordinate the work of all Committees established under this Agreement;
(d) adopt any decisions and recommendations of the Committees if necessary; and
(e) carry out any other functions as the Parties may agree.
3. The Joint Commission may:
(a) refer matters to a Committee for advice, and consider matters raised by any committee established under this Agreement,
(b) establish ad hoc Working Groups to address specific issues where these are not more appropriately dealt with by an existing Committee or Working Group;
(c) further the implementation of the Agreement’s objectives through Implementing Arrangements;
(d) explore measures for the further expansion of trade and investment among the Parties and identify appropriate areas of commercial, industrial and technical cooperation between relevant enterprises and organisations of the Parties;
(e) seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement including matters referred to it pursuant to Article 16.7 (Referral to the Joint Commission); and
(f) consult third parties on any matter falling within its responsibilities where this would help it make an informed decision.
4. The Joint Commission may establish its rules and procedures and financial arrangements, if necessary.
5. The Joint Commission shall convene its inaugural meeting within one year after the entry into force of this Agreement. Its subsequent meetings shall be held at such frequency as the Parties may agree. The Joint Commission shall convene alternately in Malaysia and New Zealand, unless the Parties agree otherwise. Special meetings of the Joint Commission may be convened, as mutually agreed by both Parties, within 30 days upon the request of either Party.
Article 15.2. Committees
1. The following Committees shall be established on the date of entry into force of this Agreement:
(a) Committee on Trade in Goods;
(b) Committee on Technical Barriers to Trade;
(c) Committee on Sanitary and Phytosanitary Measures;
(d) Committee on Investment;
(e) Committee on Trade in Services; and
(f) Committee on Economic Cooperation.
2. Committees may set up Working Groups to deal with specific issues referred to them by the Joint Commission. Other procedures and functions of the Committees are to be specified in the Chapters where they are established.
Article 15.3. Communications
1. Communications between the Parties on any matter relating to this Agreement shall be facilitated through the following Contact Points:
(a) in the case of Malaysia, the Ministry of International Trade and Industry of Malaysia; and
(b) in the case of New Zealand, the Ministry of Foreign Affairs and Trade of New Zealand.
2. On the request of one Party, the Contact Point of the other Party shall identify the office or official responsible for the matter at issue and assist, as necessary, in facilitating communications with the requesting Party.
Article 15.3. General Reviews
1. The Parties shall undertake a general review of the Agreement, with a view to furthering its objectives, at ministerial level, within five years of the entry into force of this Agreement and at least every three years thereafter.
2. The conduct of general reviews shall normally coincide with regular meetings of the Joint Commission.
Chapter SIXTEEN . DISPUTE SETTLEMENT
Article 16.1. Definitions
For the purposes of this Chapter:
(a) Complaining Party means any Party that requests consultations under Article 16.5 (Consultations);
(b) Disputing Party or Parties means the Party or Parties to the dispute; and
(c) Party complained against means any Party to which a request for consultations is made under Article 16.5 (Consultations).
Article 16.2. Objective
The objective of this Chapter is to provide an effective and efficient process for consultations and settlement of disputes arising under this Agreement.
Article 16.3. Scope and Coverage
1. Except as otherwise provided in this Agreement, this Chapter shall apply to the settlement of disputes between the Parties regarding the interpretation, implementation or application of this Agreement.
2. Subject to Article 16.4 (Choice of Forum), this Chapter is without prejudice to the rights of the Parties to have recourse to dispute settlement procedures available under other agreements to which they are parties.
3. For the avoidance of doubt, the Parties agree that the provisions of this Agreement shall be interpreted in accordance with the customary rules of treaty interpretation of public international law.
Article 16.4. Choice of Forum
1. Where a dispute regarding any matter arises under this Agreement and under another agreement to which the disputing Parties are party, the complaining Party may select the forum in which to address that matter.
2. The complaining Party shall notify the other Party in writing of its intention to select a particular forum before doing so.
3. Once the complaining Party has selected a particular forum for addressing a matter, that forum shall be used to the exclusion of other possible fora in respect of that matter.
4. For the purposes of this Article, a Party shall be deemed to have selected a forum when it has requested the establishment of, or referred a matter to, a dispute settlement panel or Arbitral Tribunal.
Article 16.5. Consultations
1. Each Party shall accord adequate opportunity for consultations with the other Party with respect to any matter affecting the interpretation, implementation, or application of this Agreement. Such matters shall as far as possible be settled through consultations between the Parties.
2. A request for consultations shall be in writing. The Party to which the request is made shall reply to the request in writing within ten days after the date of its receipt, and shall enter into consultations within a period of no more than:
(a) 15 days after the date of receipt of the request for matters concerning perishable goods; or
(b) 30 days after the date of receipt of the request for all other matters.
3. The Parties shall make every effort to reach a mutually satisfactory resolution of any matter through consultations. To this end, the Parties shall:
(a) provide sufficient information to enable a full examination of how the matter might affect the operation and application of this Agreement; and
(b) treat as confidential any information designated as such by the other Party providing the information.
4. The complaining Party may request the Party complained against to make available for the consultations personnel of its Government agencies or other regulatory bodies who have expertise in the matter under consultations.
5. Consultations shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 16.6. Good Offices, Conciliation and Mediation
1. The Parties may at any time agree to good offices, conciliation or mediation. They may begin at any time and be terminated at any time.
2. If the Parties agree, good offices, conciliation or mediation may continue while the dispute proceeds for resolution before an Arbitral Tribunal convened under Article 16.8 (Request for the Establishment of an Arbitral Tribunal).
3. Proceedings involving good offices, mediation and conciliation and positions taken by the Parties during these proceedings, shall be confidential and without prejudice to the rights of either Parties in any further proceedings.
Article 16.7. Referral to the Joint Commission
1. If a Party considers that any benefit that could have reasonably been expected to accrue to it under any provision of this Agreement is being nullified or impaired as a result of the application of any measure that is not inconsistent with this Agreement, that Party may, in accordance with paragraph 2, have recourse to the dispute settlement procedures under this Chapter.
2. If consultations undertaken pursuant to Article 16.5 (Consultations) fail to resolve such a nullification or impairment complaint under the timeframes and circumstances set out in Article 16.8(1)(a-c) (Request for the Establishment of an Arbitral Tribunal) the complaining Party shall, by delivery of written notification to the other Party, refer the dispute to the Joint Commission in accordance with Article 15.1(3)(e) (Joint Commission) for its consideration.
Article 16.8. Request for the Establishment of an Arbitral Tribunal
1. The complaining Party may request in writing for the establishment of an Arbitral Tribunal if:
(a) the Party complained against does not enter into consultations within 30 days after the date of its receipt of the request for consultations under Article 16.5 (Consultations);
(b) the Parties fail to resolve a dispute 30 days after the date of receipt of the request for consultations regarding a matter concerning perishable goods;
(c) the Parties fail to resolve a dispute 60 days after the date of receipt of the request for consultations regarding any other matter; or
(d) the Joint Commission fails to resolve the matter within 60 days after the delivery of the notification described in Article 16.7 (Referral to the Joint Commission) of the request for its consideration of the dispute.
2. The request to establish an Arbitral Tribunal shall identify:
(a) the specific measures at issue;
(b) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached or any other relevant provisions; and
(c) the factual basis for the complaint.
Article 16.9. Composition and Establishment of an Arbitral Tribunal
1. The Arbitral Tribunal shall consist of three members. The complaining Party and the Party complained against shall each appoint one arbitrator within 45 days of the receipt of the request to establish an Arbitral Tribunal.
2. If either Party fails to appoint an arbitrator within such period, then the arbitrator appointed by the other Party shall act as the sole arbitrator of the Tribunal.
3. Where two arbitrators are appointed in accordance with paragraph 1, the Parties shall designate by common agreement the third arbitrator who shall chair the Arbitral Tribunal. If the chair of the Arbitral Tribunal has not been designated by the Parties within 15 days of the appointment of the second arbitrator, the two arbitrators appointed in accordance with paragraph 1 shall designate by common agreement the third arbitrator who shall chair the tribunal. If the chair of the Arbitral Tribunal has not been designated by the arbitrators within 30 days of the appointment of the second arbitrator, either Party may request the Director- General of the WTO to appoint the third arbitrator to chair the Arbitral Tribunal. The appointment shall take place within 30 days of the request.
4. The date of establishment of the Arbitral Tribunal shall be the date on which the last arbitrator is appointed.
5. All arbitrators should be objective, reliable and of sound judgement. In particular, all arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be independent of, and not be affiliated with or take instructions from, any Party to the dispute; and
(c) comply with the code of conduct for panellists established under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.
6. The chair of the Arbitral Tribunal shall:
(a) not be a national of a Party;
(b) not have his or her usual place of residence in the territory of a Party; and
(c) not have dealt with the matter in any capacity.
7. If an arbitrator appointed under this Article resigns or becomes unable to
act, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator.
8. Where an Arbitral Tribunal is reconvened under Articles 16.14(1) and (2) (Implementation) and 16.16(2) (Review), the reconvened Arbitral Tribunal shall, where possible, have the same arbitrator as the original Arbitral Tribunal. Where it is not possible, the replacement arbitrator(s) shall be appointed in the same manner as prescribed for the appointment of the original arbitrator(s) and the successor(s) shall have all the powers and duties of the original arbitrator(s).
Article 16.10. Functions of an Arbitral Tribunal
1. The function of an Arbitral Tribunal is to make an objective assessment of the dispute before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement, and make such other findings and rulings necessary for the resolution of the dispute referred to as it thinks fit.
2. Where an Arbitral Tribunal finds that a measure is inconsistent with this Agreement, it shall include in its findings and rulings a requirement to bring the measure into conformity with this Agreement. Where an Arbitral Tribunal finds that a measure nullifies or impairs benefits, it shall include in its findings and rulings a requirement to address the nullification or impairment through a mutually satisfactory adjustment or other mutually agreed solution.
3. The findings and rulings of the Arbitral Tribunal shall be binding on the Parties.
4. The Arbitral Tribunal shall, apart from the matters set out in Article 16.11 (Rules of Procedure), regulate its own procedures in relation to the rights of Parties to be heard and its deliberations in consultation with the Parties.
5. An Arbitral Tribunal shall take its decisions by consensus, provided that where an Arbitral Tribunal is unable to reach consensus it may take its decisions by majority vote.
Article 16.11. Rules of Procedure
1. Within 14 days of its establishment, the Arbitral Tribunal shall establish rules of procedure, which shall, inter alia, ensure:
(a) a right to at least one, but no more than two, hearings before the Tribunal;
(b) an opportunity for the complaining and responding Parties to provide initial and rebuttal submissions;
(c) that each Party’s written submissions, written versions of its oral statements and written responses to requests or questions from the Tribunal may be made public by that Party, subject to paragraph 2; and
(d) that any other procedural elements referred to in this Chapter, or mutually agreed by the Parties to the dispute are provided for.
2. Information designated as confidential by a Party shall be treated as such by the other Party and by the Arbitral Tribunal.
3. The Arbitral Tribunal may at any time put questions to the Parties and ask them for explanations or further information, either in the course of a meeting or in writing. A Party shall respond promptly and fully to any request by an Arbitral Tribunal for such information as the Arbitral Tribunal considers necessary and appropriate. There shall be no ex parte communications with the Arbitral Tribunal concerning matters under consideration by it.
4. The Arbitral Tribunal shall have the right to seek information and technical advice from any individual or body which it deems appropriate. The Arbitral Tribunal shall provide the Parties with a copy of the information or technical advice received and an opportunity to provide comments. Where the Arbitral Tribunal takes the information or technical advice into account in the preparation of its report, it shall also take into account any comments by the Parties on the information or technical advice.
5. The reports of the Arbitral Tribunal shall be drafted without the presence of the Parties in the light of the information provided and the statements made to the Arbitral Tribunal.
6. In order to enable the Parties to have an opportunity for review and comment, the Arbitral Tribunal shall present the Parties its initial report within 90 days of the Tribunal’s establishment setting out its findings of fact and its determination as to whether a disputing Party has conformed with its obligations under this Agreement or caused nullification or impairment. In exceptional cases, if the Arbitral Tribunal considers it cannot release its initial report within 90 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report.