7. The Arbitral Tribunal shall present the Parties its final report within 30 days of presentation of the initial report, unless the disputing Parties otherwise agree. The final report of the Arbitral Tribunal may be made available as a public document after the elapse of ten days from the date of its release.
Article 16.12. Expenses
Each Party shall bear the costs of its appointed arbitrator and its own expenses and legal costs. The costs of the chair of the Arbitral Tribunal and other expenses associated with the conduct of its proceedings shall be borne in equal parts by both Parties.
Article 16.13. Suspension or Termination of Proceedings
1. The Parties may agree that the Arbitral Tribunal suspend its work at any time for a period not exceeding 12 months from the date of such agreement. If the work of the Arbitral Tribunal has been suspended for more than 12 months, the authority for establishment of the Tribunal shall lapse unless the Parties agree otherwise.
2. The Parties may agree to terminate the proceedings of an Arbitral Tribunal in the event that a mutually satisfactory solution to the dispute has been found.
3. Before the Arbitral Tribunal presents its final report, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably.
Article 16.4. Implementation
1. The Party complained against shall promptly comply with the findings and rulings of the Arbitral Tribunal. Where it is not practicable to comply immediately, the Party complained against shall comply with the findings and rulings within a reasonable period of time. The reasonable period of time shall be mutually determined by the Parties, or where the Parties fail to agree on the reasonable period of time within 45 days of the release of the Arbitral Tribunal’s final report, either Party to the dispute may refer the matter to the Tribunal, which shall determine the reasonable period of time following consultation with the Parties.
2. Where there is disagreement as to the existence or consistency with this Agreement of measures taken within the reasonable period of time to comply with the findings and rulings of the Arbitral Tribunal, such dispute shall be decided through recourse to the dispute settlement procedures in this Chapter, including wherever possible by resort to the original Arbitral Tribunal. (14) The Arbitral Tribunal shall provide its initial report to the Parties within 60 days, and its final report 20 days thereafter. When the Arbitral Tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report.
Article 16.5. Compensation and Suspension of Benefits
1. If the Party complained against fails to bring the measure found to be inconsistent with the Agreement or to have caused nullification or impairment into compliance with the findings and rulings of the Arbitral Tribunal within the reasonable period of time, that Party shall, if so requested, enter into negotiations with the complaining Party with a view to reaching a mutually satisfactory agreement on any necessary compensatory adjustment.
2. The complaining Party may suspend the application of benefits of equivalent effect to the Party complained against 30 days after the end of the reasonable period of time established in accordance with Article 16.14 (Implementation). Benefits shall not be suspended while the complaining Party is pursuing negotiations under paragraph 1.
3. Any suspension of benefits shall be restricted to benefits accruing to the other Party under this Agreement.
4. In considering what benefits to suspend under paragraph 2, the complaining Party:
(a) shall first seek to suspend benefits in the same sector or sectors as that affected by the measure or other matter that the Arbitral Tribunal has found to be inconsistent with this Agreement or caused nullification or impairment; and
(b) may suspend benefits in other sectors if it considers that it is not practicable or effective to suspend benefits in the same sector.
5. The suspension of benefits shall be temporary and shall only be applied until such time as it has been determined, in accordance with these procedures, that the measure found to be inconsistent with this Agreement has been brought into conformity, or the Party that must implement the Arbitral Tribunal’s findings and rulings has done so, or a mutually satisfactory solution is reached.
Article 16.16. Review
1. Without prejudice to the procedures in Article 16.15 (Compensation and Suspension of Concessions), the Party complained against may request an Arbitral Tribunal to determine whether:
(a) it has eliminated the non-conformity or nullification or impairment in accordance with the findings and rulings of the original Arbitral Tribunal; and/or
(b) the level of benefits suspended by the complaining Party pursuant to Article 16.15(2) (Compensation and Suspension of Concessions) is excessive, taking into account any matters considered pursuant to Article 16.15(4) (Compensation and Suspension of Concessions).
2. Such matters shall be decided through recourse to the dispute settlement procedures in this Chapter, including wherever possible by resort to the original Arbitral Tribunal.15 The Arbitral Tribunal shall provide its initial report to the Parties within 60 days, and its final report 20 days thereafter. When the Arbitral Tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report.
3. If the Arbitral Tribunal decides that the Party complained against has eliminated the non-conformity or the nullification or impairment, the complaining Party shall promptly reinstate any benefits it has suspended under Article 16.15 (Compensation and Suspension of Benefits). If the Arbitral Tribunal decides that the level of benefits suspended by the complaining Party is excessive, the complaining Party shall modify the level of suspension of concessions accordingly.
Article 16.17. Language
1. All proceedings pursuant to this Chapter shall be conducted in the English language.
2. Any document submitted for use in any proceedings pursuant to this Agreement shall be in the English language. If any original document is not in the English language, the Party submitting it for use in the proceedings shall provide an English translation of that document.
Article 16.18. Computation of Time
Where a time period specified in this Chapter would expire on a Saturday or a Sunday, it shall be deemed to expire on the following Monday.
Article 16.19. Contact Points and Service of Documents
1. The Parties shall designate a Contact Point for this Chapter. Any request, acknowledgement, written submission or other document relating to the dispute settlement procedures in this Chapter shall be delivered to the relevant Party through its designated Contact Point.
2. Any request, written submission or other document shall be delivered by a Party or by the Arbitral Tribunal by delivery against an acknowledgement of receipt.
Chapter SEVENTEEN. GENERAL EXCEPTIONS
Article 17.1. General Exceptions
1. For the purposes of Chapters 2 through 10, (Trade in Goods, Rules of Origin, Customs Procedures and Cooperation, Trade Remedies, Sanitary and Phytosanitary Measures, Technical Barriers to Trade, Trade in Services, Movement of Natural Persons, and Investment) of this Agreement, Article XX of GATT 1994 and its interpretive notes and Article XIV of GATS (including its footnotes) are incorporated into and made part of this Agreement, mutatis mutandis.
2. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 and Article XIV(b) of GATS include measures necessary to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
3. For the purposes of Chapters 2 through 10, (Trade in Goods, Rules of Origin, Customs Procedures and Cooperation, Trade Remedies, Sanitary and Phytosanitary Measures, Technical Barriers to Trade, Trade in Services, Movement of Natural Persons, and Investment) of this Agreement, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in goods and services or investment, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures necessary to protect national works or specific sites of historical or archaeological value, or to support creative arts of national value. (16)
Article 17.2. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) to prevent a Party from taking any actions 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 purpose of supplying or provisioning a military establishment;
(ii) taken in time of war or other emergency in international relations;
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(c) to 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.
2. The Joint Commission shall be informed to the fullest extent possible of measures taken under paragraphs 1(b) and (c) and of their termination.
Article 17.3. Measures to Safeguard the Balance of Payments
1. Where a Party is in serious balance of payments and external financial difficulties or under threat thereof, it may:
(a) in the case of trade in goods, in accordance with GATT 1994 and the WTO Understanding on the Balance-of-Payments Provisions of the GATT 1994, adopt restrictive import measures;
(b) in the case of services, adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments;
(c) in the case of investments, adopt or maintain restrictions with regard to payments relating to the transfer of proceeds from investment.
2. Restrictions adopted or maintained under paragraph 1(b) or (c) shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves; and
(e) be applied on a national treatment basis and such that the other Party is treated no less favourably than any third party.
3. In determining the incidence of such restrictions, the Parties may give priority to economic sectors which are more essential to their economic development. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular sector.
4. Any restrictions adopted or maintained by a Party under paragraph 1, or any changes therein, shall be notified promptly to the other Party from the date such measures are taken.
5. The Party adopting or maintaining any restrictions under paragraph 1 shall promptly commence consultations with the other Party from the date of notification in order to review the measures adopted or maintained by it.
Article 17.4. Prudential Measures
Notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures affecting the supply of financial services for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the Party’s commitments or obligations under this Agreement.
Article 17.5. 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:
(a) where corresponding rights or obligations are also granted or imposed under the WTO Agreement; or
(b) under Article 10.8 (Expropriation).
3. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention relating to the avoidance of double taxation in force between the Parties.
4. If there is a dispute described in Article 10.19(1) (Scope) that may relate to a taxation measure, then the Parties, including representatives of their tax administrations, shall hold consultations. Any tribunal established under Article 10.21 (Submission of a Claim to Arbitration) shall accept a decision of the Parties as to whether the measure in question is a taxation measure.
5. In the event of any inconsistency relating to a taxation measure between this Agreement and the Agreement between the Government of New Zealand and the Government of Malaysia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, done at Kuala Lumpur on 19 March 1976, with Protocols, the latter shall prevail. Any consultations between the Parties about whether an inconsistency relates to a taxation measure shall include representatives of the tax administration of each Party. (17)
Article 17.6. Treaty of Waitangi
1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Party or as a disguised restriction on trade in goods and services, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement including in fulfilment of its obligations under the Treaty of Waitangi.
2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 16 (Dispute Settlement) shall otherwise apply to this Article. An Arbitral Tribunal established under Article 16.8 (Request for the Establishment of an Arbitral Tribunal) may be requested by Malaysia to determine only whether any measure referred to in paragraph 1 is inconsistent with their rights under this Agreement.
Chapter EIGHTEEN . Final Provisions
Article 18.1. Annexes, Appendices and Footnotes
The annexes, appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 18.2. Relation to other Agreements
Nothing in this Agreement shall derogate from the existing rights and obligations of a Party under the WTO Agreement or any other multilateral or bilateral agreement to which it is a party. In the event of any inconsistency between this Agreement and any other agreement to which the Parties are party, the Parties shall immediately consult with each other with a view to finding a mutually satisfactory solution in accordance with customary rules of public international law.
Article 18.3. Succession of Treaties or International Agreements
Any reference in this Agreement to any other treaty or international agreement shall be made in the same terms to its successor treaty or international agreement to which a Party is party.
Article 18.4. Application
Each Party is fully responsible for the observance of all provisions in this Agreement and shall take such reasonable measures as may be available to it to ensure their observance by local Government and authorities.
Article 18.5. Disclosure of Information
Nothing in this Agreement shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers:
(a) would be contrary to the public interest as determined by its legislation;
(b) is contrary to any of its legislation, including but not limited to those protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
(c) would impede law enforcement; or
(d) would prejudice legitimate commercial interests of particular enterprises, public or private.
Article 18.6. Confidentiality
Where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.
Article 18.7. Financial Provisions
Any cooperative activities envisaged or undertaken under this Agreement shall be subject to the availability of resources and to the laws, regulations and policies of the Parties. Costs of cooperative activities shall be borne in such manner as may be mutually determined from time to time between the Parties.
Article 18.8. Termination of 1997 Trade and Economic Cooperation Agreement
The Agreement on Trade and Economic Cooperation between the Government of Malaysia and the Government of New Zealand, done at Kuala Lumpur on 17 October 1997, shall terminate on the day of entry into force of this Agreement.
Article 18.9. Amendments
This Agreement may be amended by agreement in writing by the Parties and such amendments shall come into force on such date or dates as may be agreed between them.
Article 18.10. Entry Into Force, Duration and Termination
1. This Agreement shall be subject to ratification. Ratification shall be effected by an exchange of notes between the Parties. The Agreement shall enter into force on the date specified in such exchange of notes.
2. This Agreement shall remain in force until one Party gives written notice of its intention to terminate it, in which case this Agreement shall terminate 180 days after the date of the notice of termination.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE in duplicate at _______________________ this ________ day of ________________.
For the Government of New Zealand For the Government of Malaysia