V. Written Submissions
10. The complaining Party shall deliver its written submission no later than 20 days after the date of establishment of the panel. The Party complained against shall deliver its written submission no later than 20 days after the date of delivery of the written submission of the complaining Party.
11. If the Party complained against raises novel issues or defences the complaining Party has not addressed, the complaining Party may choose to deliver a second written submission within 15 days after the date of delivery of the first written submission of the Party complained against. The complaining Party shall assess whether the benefit of a second written submission is sufficient when weighted against the additional delay. In such case, the Party complained against may submit its response within 15 days after the date of delivery of the second written submission of the complaining Party.
VI. Operation of the Panel
12. The chairperson of the panel shall preside at all its meetings. The panel may delegate to the chairperson the authority to make administrative and procedural decisions.
13. Unless otherwise provided in Chapter 4 (Dispute Settlement between the Parties) or in this Annex, the panel may conduct its activities by any appropriate means, including telephone, video-conference or other means of electronic communication.
14. Only panellists may take part in the deliberations of the panel, but the panel may permit their assistants to be present at its deliberations.
15. The drafting of any decision and report shall remain the exclusive responsibility of the panel and shall not be delegated.
16. Where a procedural question arises that is not covered by the Chapter 4 (Dispute Settlement between the Parties) and its Annexes, the panel, after consulting the Parties, may adopt an appropriate procedure that is compatible with those provisions.
17. When the panel considers that there is a need to modify any of the time periods for the proceedings other than the time periods set out in Chapter 4 (Dispute Settlement between the Parties) or to make any other procedural or administrative adjustment, it shall inform the Parties, in writing, including electronically, and after consultation of the Parties, of the reasons for the change or adjustment and of the time period or adjustment needed. Any Party may propose to the panel such procedural or administrative adjustments.
VII. Replacement
18. When a Party considers that a panellist does not comply with the requirements of Annex 4-B (Code of Conduct for Panellists and Mediators) and for this reason should be replaced, that Party shall notify the other Party within 15 days from the time at which it obtained sufficient evidence of the panellist?s alleged failure to comply with the requirements of Annex 4-B (Code of Conduct for Panellists and Mediators).
19. The Parties shall consult within 15 days from the date of notification referred to in Rule 18. They shall inform the panellist of its alleged failure and they may request the panellist to take steps to ameliorate the failure. They may also, if they so agree, remove the panellist and select a new panellist in accordance with Article 4.6 (Establishment of a Panel).
20. If the Parties fail to agree on the need to replace the panellist, other than the chairperson of the panel, either Party may request that this matter be referred to the chairperson of the panel, whose decision shall be final.
If the chairperson of the panel finds that the panellist does not comply with the requirements of Annex 4-B (Code of Conduct for Panellists and Mediators), the new panellist shall be selected in accordance with Article 4.6 (Establishment of a Panel).
21. If the Parties fail to agree on the need to replace the chairperson, either Party may request that this matter be referred to one of the remaining members of the pool of individuals from the sub-list of chairpersons established under Article 4.7 (List of Panellists). His or her name shall be selected by lot by the co-chair of the Committee from the requesting Party, or the chair?s delegate. The decision by the selected person on the need to replace the chairperson shall be final.
If this person finds that the chairperson does not comply with the requirements of Annex 4-B (Code of Conduct for Panellists and Mediators), the new chairperson shall be selected in accordance with Article 4.6 (Establishment of a Panel) of Chapter 4 (Dispute Settlement between the Parties).
VIII. Hearings
22. Based upon the timetable determined pursuant to Rule 9 of this Annex, after consulting with the Parties and the other panellists, the chairperson of the panel shall notify the Parties the date, time and venue of the hearing. This information shall be made publicly available by the Party in which the hearing takes place, unless the hearing is closed to the public.
23. Unless the Parties agree otherwise, the hearing shall be held in Brussels if the complaining Party is Indonesia and in Indonesia if the complaining Party is the European Union. The Party complained against shall bear the expenses derived from the logistical administration of the hearing.
24. Notwithstanding Rule 23, the panel may decide, on request of a Party, to hold a virtual or hybrid hearing and make appropriate arrangements, taking into account the rights of due process and the need to ensure transparency in accordance with Article 4.34 (Transparency).
25. The panel may convene additional hearings if the Parties so agree.
26. All panellists shall be present during the entirety of the hearing.
27. Unless the Parties agree otherwise, the following persons may attend the hearing, irrespective of whether the hearing is open to the public or not:
(a) representatives of a Party;
(b) advisers;
(c) assistants and administrative staff;
(d) interpreters, translators and court reporters of the panel; and
(e) experts, as decided by the panel pursuant to paragraph 2 of Article 4.22 (Receipt of Information).
28. No later than five days before the date of a hearing, each Party shall deliver to the panel and to the other Party a list of the names of persons who will make oral arguments or presentations at the hearing on behalf of that Party and of other representatives and advisers who will be attending the hearing.
29. The panel shall conduct the hearing in the following manner, ensuring that the complaining Party and the Party complained against are afforded equal time in both argument and rebuttal argument:
Argument
(a) argument of the complaining Party;
(b) argument of the Party complained against.
Rebuttal Argument
(a) reply of the complaining Party;
(b) counter-reply of the Party complained against.
30. The panel may direct questions to either Party at any time during the hearing.
31. The panel shall arrange for either a transcript or a video and audio recording of the hearing to be prepared and delivered to the Parties as soon as possible after the hearing. The Parties may comment on the transcript or on the video and audio recording and the panel may consider those comments and deliver any revised version of the transcript to the Parties as soon as possible. The cost of a full transcript or a video and audio recording shall be jointly shared between the Parties.
32. Each Party may deliver a supplementary written submission concerning any matter that arose during the hearing within ten days after the date of the hearing.
IX. Questions in Writing
33. The panel may at any time during the proceedings submit questions in writing to one or both Parties. Any questions submitted to one Party shall be copied to the other Party.
34. Each Party shall provide the other Party with a copy of its responses to the questions submitted by the panel. The other Party shall have an opportunity to provide comments in writing on the Party?s responses within six days after the delivery of such copy.
X. Confidentiality
35. Each Party and the panel shall treat as confidential information that qualifies as confidential pursuant to Rule 36. When a Party submits to the panel a written submission which contains confidential information, it shall also provide, within 15 days, a submission without the confidential information and which can be disclosed to the public.
36 Confidential information consists of:
(a) confidential business information;
(b) information that is protected against being made available to the public under this Agreement;
(c) information that is protected against being made available to the public, in the case of information of the complaining Party, under the law of the complaining Party, and in the case of information from the Party complained against, under the law of the Party complained against; or
(d) information the disclosure of which would impede law enforcement.
If the Parties disagree on whether information qualifies as confidential, the panel shall decide, on request of a Party, after consultation with the Parties.
37. Nothing in this Annex shall preclude a Party from disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other Party, it does not disclose any information designated by the other Party as confidential.
38. The panel shall meet in closed session when the submission and arguments of a Party contain confidential information. The Parties shall maintain the confidentiality of the panel hearings when the hearings are held in closed session.
XI. Ex Parte Contacts
39. The panel shall not meet or communicate with a Party in the absence of the other Party.
40. A panellist shall not discuss any aspect of the subject matter of the proceedings with one Party or both Parties in the absence of the other panellists.
41. A Party shall not have any contact with a panellist. Any contact between a Party and a person who is under consideration for selection as a panellist shall be limited to issues relating to the selection process and appointment.
XII. Amicus Curiae Submissions
42. The panel may receive unsolicited written submissions from natural persons of a Party or legal persons established in the territory of a Party who are independent from the governments of the Parties, provided that they:
(a) are received by the panel by a date determined by the panel and which shall not be later than the date set for the first written submission of the Party complained against;
(b) are concise and in no case longer than 15 pages, including any annexes, typed at double space;
(c) are directly relevant to a factual or a legal issue under consideration by the panel and the natural or legal persons concerned explain how the submission would assist the Panel in determining such factual or legal issue by bringing a perspective, particular knowledge, or insight that is different from that of the Parties.
(d) contain a description of the person making the submission, including for a natural person his or her nationality and for a legal person its place of establishment, the nature of its activities, its legal status, its general objectives and its source of financing;
(e) specify the nature of the interest that the person has in the panel proceedings; and
(f) are drafted in the languages chosen by the Parties in accordance with Rules 46 and 47 of this Annex. The Parties may agree to modify the conditions in points (a) to (f) within five days of the date of the establishment of the panel.
43. The submissions shall be delivered to the Parties for their comments. The Parties may submit comments to the panel within ten days of the delivery.
44. The panel shall list in its report all the submissions it has received pursuant to Rule 42 of this Annex. The panel shall not be obliged to address in its report the arguments made in such submissions, however, if it does, it shall also take into account any comments made by the Parties pursuant to Rule 43 of this Annex.
XIII. Urgent Cases
45. In cases of urgency referred to in Article 4.11 (Decision on Urgency), the panel, after consulting the Parties, shall adjust the time periods referred to in this Annex as appropriate. The panel shall notify the Parties of such adjustments.
XIV. Translation and interpretation
46. During the consultations referred to in Article 4.4 (Consultations), and no later than the meeting referred to in Rule 9 of this Annex, the Parties shall endeavour to agree on a working language for the proceedings before the panel. If the Parties are unable to agree on a working language, the language in which the Agreement was negotiated shall be the working language for the panel procedure.
47. If a Party submits a document in a language that is not the working language, it shall at the same time submit a translation in a working language at its own cost.
48. Panel reports and decisions shall be issued in the working language.
49. Any Party may provide comments on the accuracy of the translation of any document into the working language in accordance with Rule 47.
XV. Other Procedures
50. The time periods laid down in this Annex shall be adjusted in line with the special time periods provided for the adoption of a report or decision by the panel in the proceedings under Article 4.15 (Reasonable Period of Time), Article 4.16 (Compliance Review), Article 4.17 (Temporary Remedies), Article 4.18 (Review of Any Measure Taken to Comply after the Adoption of Temporary Remedies) and Article 4.19 (Replacement of Panellists).
ANNEX 4-B. CODE OF CONDUCT FOR PANELLISTS AND MEDIATORS
I. Governing Principles
1. In order to preserve the integrity and impartiality of the dispute settlement mechanism, each candidate and panellist shall:
(a) get acquainted with this Annex;
(b) be independent and impartial;
(c) avoid direct or indirect conflicts of interest;
(d) avoid impropriety and the appearance of impropriety or bias;
(e) observe high standards of conduct; and
(f) not be influenced by self-interest, outside pressure, political considerations, public opinion, and loyalty to a Party or fear of criticism.
2. A panellist 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 his or her duties.
3. A panellist shall not use his or her position on the panel to advance any personal or private interests. A panellist shall avoid actions that may create the impression that others are in a special position to influence him or her.
4. A panellist shall not allow past or existing financial, business, professional, personal, or social relationships or responsibilities to influence his or her conduct or judgement.
5. A panellist shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or bias.
II. Disclosure Obligations
6. Prior to the acceptance of his or her appointment as a panellist pursuant to Article 4.6 (Establishment of a Panel), a candidate requested to serve as a panellist shall disclose in writing to the Parties 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 proceedings. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters, including financial, professional, employment or family interests.
7. The disclosure obligation under paragraph 6 is a continuing duty which requires a panellist to disclose any such interests, relationships or matters that may arise during any stage of the proceedings.
8. A candidate or a panellist shall communicate in writing to the Committee for consideration by the Parties any matters concerning actual or potential violations of this Annex at the earliest time he or she becomes aware of them.
III. Duties of Panellists
9. Upon acceptance of his or her appointment, a panellist shall be available to perform and shall perform his or her duties thoroughly and expeditiously throughout the proceedings, and with fairness and diligence.
10. A panellist shall consider only the issues that are raised in the proceedings and that are necessary for a decision and shall not delegate this duty to any other person, except as provided in Rule 9 of Annex 4-A (Rules of Procedure).
11. A panellist shall take all appropriate steps to ensure that his or her assistants and administrative staff are aware of, and comply with, the obligations of panellists under Parts I, II, III, IV and V of this Annex.
IV. Obligations of Former Panellists
12. Each former panellist shall avoid actions that may create the appearance that he or she was biased in carrying out the duties or that he or she derived advantage from the decision of the panel.
13. Each former panellist shall comply with the obligations in Part V of this Annex.
V. Confidentiality
14. A panellist shall not, at any time, disclose any confidential or non-public information concerning the proceedings or acquired during the proceedings for which he or she has been appointed. A panellist shall not, in any case, disclose or use such information to gain personal advantage or advantage for others, or to adversely affect the interest of others.
15. A panellist shall not disclose a decision of the panel or parts thereof prior to its publication in accordance with Chapter 4 (Dispute Settlement between the Parties).
16. A panellist shall not, at any time, disclose the deliberations of the panel, or any panellist?s view, nor make any statements on the proceedings for which he or she has been appointed or on the issues in dispute in the proceedings except to the extent required by law.
VI. Expenses
17. Each panellist shall keep a record and render a final account of the time devoted to the proceedings and of his or her expenses, as well as the time and expenses of his or her assistants and administrative staff.
VII. Mediators
18. This Annex applies to mediators mutatis mutandis.
Chapter 5. EXCEPTIONS
Article 5.1. Denial of Benefits
1. A Party may deny the benefits of this Agreement to an investor of the other Party or to a covered investment if the denying Party adopts or maintains measures related to the maintenance of international peace and security, including measures to address serious human rights violations and abuses, which:
(a) prohibit transactions with that investor or covered investment; or
(b) would be violated or circumvented if the benefits of this Agreement were accorded to that investor or covered investment, including where the measures prohibit transactions with a natural or juridical person who owns or controls either of them.
2. Notwithstanding paragraph 1, Indonesia may under its applicable laws and regulations deny the benefits of the Agreement to an investor of the EU if a person of a third country owns or controls the covered investment and Indonesia does not maintain diplomatic relations with that third country.
Article 5.2. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on covered investment, nothing in Articles 2.3 (National treatment), 2.4 (Most-favoured-nation treatment) and 2.8 (Transfer) shall be construed to prevent the adoption or enforcement by either Party of measures:
(a) necessary to protect public security1 or public morals or to maintain public order2;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety.
2. For greater certainty, the Parties understand that:
(a) the measures referred to in point (b) of Article XX of GATT 1994 and in point (b) of paragraph 2 of this Article include
environmental
measures,
which
are
necessary
to
protect
human,
animal
or
plant
life
or
health;
(b)
point
(g)
of
Article
XX
of
GATT
1994
applies
to
measures