1. The Party complained against shall take any measure necessary to comply promptly with the findings and conclusions in the final report in order to bring itself in compliance with the covered provisions.
2. The Party complained against shall, no later than 30 days after receipt of the final report, deliver a notification to the complaining Party of the measures which it has taken or which it envisages to take to comply.
Article 4.15. Reasonable Period of Time
1. If immediate compliance is not possible, the Party complained against shall, no later than 30 days after receipt of the final report, deliver a notification to the complaining Party of the length of the reasonable period of time it will require for compliance. The Parties shall endeavour to agree on the length of the reasonable period of time to comply with the final report.
2. If the Parties have not agreed on the length of the reasonable period of time, the complaining Party may, at the earliest 20 days after the receipt of the notification in paragraph 1, request in writing, including electronically, the original panel to determine the length of the reasonable period of time. The panel shall deliver its decision to the Parties within 30 days of the date of receipt of the request.
3. The Party complained against shall deliver a written notification, including electronically, of its progress in complying with the final report to the complaining Party at least one month before the expiry of the reasonable period of time.
4. The Parties may agree to extend the reasonable period of time.
Article 4.16. Compliance Review
1. The Party complained against shall, no later than at the date of expiry of the reasonable period of time, deliver a notification to the complaining Party of any measure that it has taken to comply with the final report.
2. When the Parties disagree on the existence or the consistency with the covered provisions of any measure taken to comply, the complaining Party may deliver a request in writing, including electronically, to the original panel to decide on the matter. The request shall identify any measure at issue and explain how that measure constitutes a breach of the covered provisions in a manner sufficient to present the legal basis for the complaint clearly. The panel shall deliver its decision to the Parties within 46 days of the date of receipt of the request.
Article 4.17. Temporary Remedies
1. The Party complained against shall, upon request by and after consultations with the complaining Party, present an offer for temporary compensation if:
(a) the Party complained against delivers a notification to the complaining Party that it is not possible to comply with the final report;
(b) the Party complained against fails to deliver a notification of any measure taken to comply within the deadline referred to in Article 4.14 (Compliance Measures) or before the date of expiry of the reasonable period of time; or
(c) the panel finds that no measure taken to comply exists or that the measure taken to comply is inconsistent with the covered provisions.
2. In any of the situations referred to in points (a) to (c) of paragraph 1, the complaining Party may deliver a written notification, including electronically, to the Party complained against that it intends to suspend the application of obligations under the covered provisions if:
(a) the complaining Party decides not to make a request under paragraph 1; or
(b) the Parties do not agree on the temporary compensation within 30 days after the expiry of the reasonable period of time or the delivery of the panel decision under Article 4.16 (Compliance Review) when a request under paragraph 1 is made.
The notification shall specify the level of intended suspension of obligations.
3. The complaining Party may suspend the obligations 20 days at the earliest after the date of delivery of the notification referred to in paragraph 2, unless the Party complained against made a request under paragraph 5.
4. The suspension of obligations shall not exceed the level equivalent to the nullification or impairment caused by the violation.
5. If the Party complained against considers that the notified level of suspension of obligations exceeds the level equivalent to the nullification or impairment caused by the violation, it may deliver a written request, including electronically, to the original panel before the expiry of the 20 days period set out in paragraph 3 to decide on the matter. The panel shall deliver its decision on the level of the suspension of obligations to the period set out in paragraph 3 to decide on the matter. The panel shall deliver its decision on the level of the suspension of obligations to the Parties within 30 days of the date of the request. Obligations shall not be suspended until the panel has delivered its decision. The suspension of obligations shall be consistent with this decision.
6. The suspension of obligations or the compensation referred to in this Article shall be temporary and shall not be applied after:
(a) the Parties have reached a mutually agreed solution pursuant to Article 4.33 (Mutually Agreed Solution);
(b) the Parties have agreed that the measure taken to comply brings the Party complained against into conformity with the covered provisions; or
(c) any measure taken to comply which the panel has found to be inconsistent with the covered provisions has been withdrawn or amended so as to bring the Party complained against into conformity with those provisions.
Article 4.18. Review of Any Measure Taken to Comply after the Adoption of Temporary Remedies
1. The Party complained against shall deliver a notification to the complaining Party of any measure it has taken to comply following the suspension of obligations or following the application of temporary compensation, as the case may be. With the exception of cases under paragraph 2, the complaining Party shall terminate the suspension of obligations within 30 days from the receipt of the notification. In cases where compensation has been applied, and with the exception of cases under paragraph 2, the Party complained against may terminate the application of such compensation within 30 days from receipt of its notification that it has complied.
2. If the Parties do not reach an agreement on whether the notified measure brings the Party complained against into conformity with the covered provisions within 30 days of the date of receipt of the notification, the complaining Party shall deliver a written request, including electronically, to the original panel to decide on the matter. The panel shall deliver its decision to the Parties within 46 days of the date of the receipt of the request. If the panel finds that the measure taken to comply is in conformity with the covered provisions, the suspension of obligations or compensation, as the case may be, shall be terminated. When relevant, the complaining Party shall adjust the level of suspension of obligations or of compensation in light of the panel decision.
3. If the Party complained against considers that the level of suspension implemented by the complaining Party exceeds the level equivalent to the nullification or impairment caused by the violation, it may deliver a written request, including electronically, to the original panel to decide on the matter.
Article 4.19. Replacement of Panellists
If during dispute settlement procedures, a panellist is unable to participate, withdraws or needs to be replaced because he or she does not comply with the requirements of Annex 4-B (Code of Conduct for Panellists and Mediators), the procedure provided for in Article 4.6 (Establishment of a Panel) applies. The time period for the delivery of the report or decision shall be extended for the time necessary for the appointment of the new panellist.
Article 4.20. Rules of Procedure
Panel procedures shall be governed by this Chapter and Annex 4-A (Rules of Procedure). The hearings of the arbitration panel shall be closed for any discussion of confidential information. Otherwise, the hearing shall be open to the public, unless the Parties to the dispute agree otherwise.
Article 4.21. Suspension and Termination
At the request of both Parties or the complaining Party, the panel shall suspend its work at any time for a period agreed by the Parties and not exceeding 12 consecutive months. The panel shall resume its work before the end of the suspension period at the written request, including electronically, of both Parties or the complaining Party, or at the end of the suspension period at the written request, including electronically, of either Party. The requesting Party shall deliver a notification to the other Party accordingly. If a Party does not request the resumption of the panel?s work at the expiry of the suspension period, the authority of the panel shall lapse and the dispute settlement procedure shall be terminated. In the event of a suspension of the work of the panel, the relevant time periods under this Section shall be extended by the same period of time for which the work of the panel was suspended.
Article 4.22. Receipt of Information
1. At the request of a Party, or upon its own initiative, the panel may seek, from the Parties, relevant information it considers necessary and appropriate. The Parties shall respond promptly and fully to any request by the panel for such information.
2. Upon the request of a Party or its own initiative, the panel may seek any information it deems appropriate from any source. The panel also has the right to seek the opinion of experts, as it deems appropriate, and subject to any terms and conditions agreed by the Parties, where applicable.
3. The panel shall consider amicus curiae submissions from natural persons of a Party or legal persons established in a Party in accordance with Annex 4-A (Rules of Procedure).
4. Any information obtained by the panel under this Article shall be disclosed to the Parties and the Parties may provide comments on that information.
Article 4.23. Rules of Interpretation
The panel shall interpret the covered provisions in accordance with customary rules of interpretation of public international law, including those codified in the 1969 Vienna Convention on the Law of Treaties. The panel shall also take into account relevant interpretations in reports of WTO panels and the Appellate Body adopted by the Dispute Settlement Body of the WTO.
Article 4.24. Reports and Decisions of the Panel
1. The deliberations of the panel shall be kept confidential. The panel shall make every effort to draft reports and take decisions by consensus. If this is not possible, the panel shall decide the matter by majority vote. In no case shall separate opinions of arbitrators be disclosed.
2. The decisions and reports of the panel shall be accepted unconditionally by the Parties.
3. Reports and decisions of the panel cannot add to or diminish the rights and obligations of the Parties under this Agreement. They shall not create any rights or obligations with respect to natural or legal persons.
4. The panel and the Parties shall treat as confidential any information submitted by a Party to the panel in accordance with Annex 4-A (Rules of Procedure).
Article 4.24. Choice of Forum
1. When a dispute arises regarding a particular measure in alleged breach of an obligation under this Agreement and a substantially equivalent obligation under another international agreement to which both Parties are party, including the WTO Agreement, the Party seeking redress shall select the forum in which to settle the dispute.
2. Once a Party has selected the forum and initiated dispute settlement procedures under this Section or under another international agreement, the Party shall not initiate dispute settlement procedures under the other agreement with respect to the particular measure referred to in paragraph 1, unless the forum selected first fails to make findings for procedural or jurisdictional reasons.
3. For the purposes of this Article:
(a) dispute settlement procedures under this Section are deemed to be initiated by a Party?s request for the establishment of a panel under Article 4.5 (Initiation of Panel Procedures);
(b) dispute settlement procedures under the WTO Agreement are deemed to be initiated by a Party?s request for the establishment of a panel under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO;
(c) dispute settlement procedures under any other agreement are deemed to be initiated in accordance with the relevant provisions of that agreement.
4. Without prejudice to paragraph 2, nothing in this Agreement shall preclude a Party from suspending obligations authorised by the Dispute Settlement Body of the WTO or authorised under the dispute settlement procedures of another international agreement to which the disputing Parties are party. The WTO Agreement or the other international agreement between the Parties shall not be invoked to preclude a Party from suspending obligations under this Section.
Section D. MEDIATION MECHANISM
Article 4.26. Objective
The objective of the mediation mechanism is to facilitate the finding of a mutually agreed solution through a comprehensive and expeditious procedure with the assistance of a mediator.
Article 4.27. Request for Information
1. At any time before the initiation of the mediation procedure, a Party may deliver a written request, including electronically, for information regarding a measure adversely affecting investment between the Parties. The Party to which such request is made shall, within 21 days of receipt of the request, deliver a written response, including electronically, containing its comments on the requested information.
2. When the responding Party considers it will not be able to deliver a response within 20 days of receipt of the request, it shall promptly notify the requesting Party, stating the reasons for the delay and providing an estimate of the shortest period within which it will be able to deliver its response.
3. A Party is normally expected to avail itself of this provision before the initiation of the mediation procedure.
Article 4.28. Initiation of the Mediation Procedure
1. A Party may at any time request to enter into a mediation procedure with respect to any measure by a Party adversely affecting investment between the Parties.
2. The request shall be made by means of a written request, including electronically, delivered to the other Party. The request shall be sufficiently detailed to present the concerns of the requesting Party clearly and shall:
(a) identify the specific measure at issue;
(b) provide a statement of the adverse effects that the requesting Party considers the measure has, or will have, on investment between the Parties; and
(c) explain how the requesting Party considers that those effects are linked to the measure.
3. The mediation procedure may only be initiated by mutual agreement of the Parties in order to explore mutually agreed solutions and consider any advice and proposed solutions by the mediator. The Party to which the request is made shall give sympathetic consideration to the request and deliver its written acceptance or rejection, including electronically, to the requesting Party within ten days of its receipt. Otherwise, the request shall be regarded as rejected.
Article 4.29. Selection of the Mediator
1. The Parties shall endeavour to agree on a mediator within ten days of the initiation of the mediation procedure.
2. In the event that the Parties are unable to agree on the mediator within the time period laid down in paragraph 1, either Party may request the co-chair of the Committee from the complaining Party to select the mediator by lot, within five days from the request, from the sub-list of chairpersons established under Article 4.7 (List of Panellists). The co-chair of the Committee from the complaining Party may delegate such selection by lot of the mediator.
3. Should the sub-list of chairpersons referred to in Article 4.7 (List of Panellists) not be established at the time a request is made pursuant to Article 4.28 (Initiation of the Mediation Procedure), the mediator shall be drawn by lot from the individuals formally proposed by one or both of the Parties for that sub-list.
4. A mediator shall not be a national of either Party or employed by either Party, unless the Parties agree otherwise.
5. A mediators shall comply with Annex 4-B (Code of Conduct for Panellists and Mediators).
Article 4.30. Rules of the Mediation Procedure
1. Within ten days of the appointment of the mediator, the Party which invoked the mediation procedure shall deliver to the mediator and to the other Party a detailed written description of its concerns, in particular of the operation of the measure at issue and its possible adverse effects on investment. Within 20 days of the receipt of this description, the other Party may deliver written comments on this description. Either Party may include any information that it deems relevant in its description or comments.
2. The mediator shall assist the Parties in a transparent manner in bringing clarity to the measure concerned and its possible adverse effects on investment. In particular, the mediator may organise meetings between the Parties, consult the Parties jointly or individually, seek the assistance of, or consult with, relevant experts and stakeholders and provide any additional support requested by the Parties. The mediator shall consult with the Parties before seeking the assistance of, or consulting with, relevant experts and stakeholders.
3. The mediator may offer advice and propose a solution for the consideration of the Parties. The Parties may accept or reject the proposed solution, or agree on a different solution. The mediator shall not advise or comment on the consistency of the measure at issue with this Agreement.
4. The mediation procedure shall take place in the territory of the Party to which the request was addressed, or by mutual agreement in any other location or by any other means.
5. The Parties shall endeavour to reach a mutually agreed solution within 60 days of the appointment of the mediator. Pending a final agreement, the Parties may consider possible interim solutions, particularly if the measure relates to perishable goods or seasonal goods or services.
6. The mutually agreed solution may be adopted by means of a decision of the Committee Either Party may make the solution subject to the completion of any necessary internal procedures.
7. Upon request of either Party, the mediator shall deliver a draft factual report to the Parties, providing:
(a) a brief summary of the measure at issue;
(b) the procedures followed; and
(c) if applicable, any mutually agreed solution reached, including possible interim solutions.
8. The mediator shall allow the Parties 15 days to comment on the draft report. After considering the comments of the Parties received, the mediator shall, within 15 days, deliver a final factual report to the Parties. The factual report shall not include any interpretation of this Agreement.
9. The procedure shall be terminated:
(a) by the adoption of a mutually agreed solution by the Parties, on the date of the adoption thereof;
(b) by mutual agreement of the Parties at any stage of the procedure, on the date of that agreement;
(c) by a written declaration of the mediator, after consultation with the Parties, that further efforts at mediation would be to no avail, on the date of that declaration; or
(d) by a written declaration of a Party after exploring mutually agreed solutions under the mediation procedure and after having considered any advice and proposed solutions by the mediator, on the date of that declaration.
Article 4.31. Confidentiality
Unless the Parties agree otherwise, all steps of the mediation procedure, including any advice or proposed solution, are confidential. Any Party may disclose to the public the fact that mediation is taking place.
Article 4.32. Relationship to Dispute Settlement Procedures
1. The mediation procedure is without prejudice to the Parties' rights and obligations under Sections B (Consultations) and C (Panel Procedures) or under dispute settlement procedures under any other agreement.
2. A Party shall not rely on, or introduce as evidence, in other dispute settlement procedures under this Agreement or any other agreement, nor shall a panel take into consideration:
(a) positions taken by the other Party in the course of the mediation procedure or information exclusively gathered under paragraph 2 of Article 4.30 (Rules of the Mediation Procedure);
(b) the fact that the other Party has indicated its willingness to accept a solution to the measure subject to mediation; or
(c) advice given or proposals made by the mediator.
3. Unless the Parties agree otherwise, a mediator shall not serve as a member of a panel in dispute settlement procedures under this Agreement or under any other agreement involving the same matter for which he or she has been a mediator.
Section E. COMMON PROVISIONS
Article 4.33. Mutually Agreed Solution
1. The Parties may reach a mutually agreed solution at any time with respect to any dispute referred to in Article 4.2 (Scope).
2. If a mutually agreed solution is reached during the panel or mediation procedure, the Parties shall jointly notify that solution to the chairperson of the panel or the mediator, respectively. Upon such notification, the panel or the mediation 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, including electronically, of any measure that it has taken to implement the mutually agreed solution.
Article 4.34. Transparency
1. Each Party shall promptly make public:
(a) a request for consultations pursuant to Article 4.4(2) (Consultations);
(b) a panel request pursuant to Article 4.5(2) (Initiation of panel procedures);
(c) the date of establishment of a panel in accordance with Article 4.6(5) (Establishment of a panel), the time-limit for amicus curiae submissions determined by the panel pursuant to Rule 42 of Annex 4-A (Rules of Procedure) and the working language for the panel procedure determined in accordance with Rule 46 of Annex 4-A (Rules of Procedure);
(d) its submissions in the panel procedure, or a Party can also decide otherwise and make public a summary of its submissions within a short period of time after the issuance of the panel report;
(e) a mutually agreed solution reached pursuant to Article 3.30(6) (Rules of the Mediation Procedure) or Article 3.33 (Mutually agreed solution) unless the Parties agree otherwise and subject to the protection of confidential information; and
(f) the final reports and decisions of the panel.
2. Any hearing of the panel shall be closed to the public for the duration of any discussion of confidential information. Otherwise, the hearing shall be open to the public, unless the Parties to the dispute decide otherwise.
3. Natural persons of a Party or legal persons established in a Party may make amicus curiae submissions to the panel in accordance with Rule 42 of Annex 4-A (Rules of Procedure).
4. Paragraphs 1 and 2 shall be subject to the protection of confidential information as set out in Rules 35-38 of Annex X-A (Rules of Procedure).
Article 4.35. 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.
3. Under Section C (Panel Procedures), the panel may at any time propose to the Parties to modify any time period referred to in this Chapter, stating the reasons for the proposal.
Article 4.36. Costs
1. Each Party shall bear its own expenses and legal costs derived from the participation in the panel or mediation procedure.
2. Unless the Parties otherwise agree, the Parties shall be jointly liable for the remuneration and expenses of panellists and the mediators. The Parties shall share such remuneration and expenses equally. Unless the Parties otherwise agree, the remuneration and expenses of panellists and the mediators shall be determined in accordance with Rule 8 of Annex 4-A (Rules of Procedure).
3. Unless the Parties otherwise agree, other expenses associated with the conduct of the proceedings shall be borne in equal parts by the Parties to the dispute.
Article 4.37. Annexes
The Committee may modify the Annexes 4-A (Rules of Procedure) and 4-B (Code of Conduct for Panellists and Mediators).
ANNEX 4-A. RULES OF PROCEDURE
I. Notifications
1. Any request, notice, written submission or other document of:
(a) the panel shall be sent to both Parties at the same time;
(b) a Party which is addressed to the panel shall be copied to the other Party at the same time; and
(c) a Party which is addressed to the other Party shall be copied to the panel at the same time, as appropriate.
Unless proven otherwise, such request, notice, written submission or other document shall be deemed to be delivered on the date of its sending.
2. All notifications shall be addressed to the Directorate-General for Trade and Economic Security of the European Commission and to the Directorate-General of Legal Affairs and International Treaties, Ministry of Foreign Affairs of Indonesia, respectively.
3. Minor errors of a clerical nature in a request, notice, written submission or other document related to the panel proceedings may be corrected by delivery of a new document clearly indicating the changes.
4. If the last day for delivery of a document falls on a non-working day of the institutions of the European Union or of the Government of Indonesia, the time period for the delivery of the document shall end on the first following working day. For the purpose of determining the beginning and the end of a calendar day, the time zone of the Party complained against shall be applicable.
II. Appointment of Panellists
5. If pursuant to Article 4.6 (Establishment of a Panel), a panellist is selected by lot, the co-chair of the Committee of the complaining Party shall promptly inform the co-chair of the Committee of the Party complained against of the date, time and venue of the lot. The Party complained against may, if it so chooses, be present during the lot. In any event, the lot shall be carried out with the Party or Parties that are present.
6. The co-chair of the Committee of the complaining Party shall notify, in writing, including electronically, each individual who has been selected to serve as a panellist. Each individual shall confirm his or her availability to both Parties within five days of the date of delivery of the notification.
7. For the purposes of Article 4.6 (Establishment of a Panel), the co-chair of the Committee of the complaining Party shall select by lot the panellist or chairperson:
(a) if a sub-list referred to in Article 4.7(1)(a) or (b) is not established, amongst those individuals who have been formally proposed by a Party as panellists for its sub-list or, in the absence of those, from the individuals who have been formally proposed by the other Party for that Party?s sub-list; or
(b) if the sub-list referred to in Article 4.7(1)(c) is not established, from the individuals who have been formally proposed by one or both Parties for the sub-list of chairpersons.
III. Expenses
8. The Parties shall agree, at the latest by the time all the panellists have accepted their appointment in accordance with Article 4.6(5) (Establishment of a Panel), on the remuneration and expenses of the panellists and assistants, prepare any necessary appointment contracts, and ensure their signature promptly. The Committee may adopt a decision setting out the parameters or other details on the remuneration and expenses of panellists and of the mediator, including any related expenses that could be incurred in the dispute settlement proceedings. Unless otherwise provided in such a decision, the remuneration and expenses of the panellists shall be based on WTO standards. The remuneration of an assistant or assistants of each arbitrator shall not exceed 50% of the remuneration of that arbitrator. This Rule applies to mediators mutatis mutandis.
IV. Organisational Meeting
9. Unless agreed otherwise, the Parties shall meet the panel within seven days of its establishment in order to determine such matters that the Parties or the panel deem appropriate, including working procedures and the timetable of the proceedings.
Panellists and representatives of the Parties may take part in this meeting through any appropriate means including telephone, video conference or other electronic means of communication.