156:. Qualifications of the Panellists
All panellists shall:
(a) Have expertise or experience in law and international trade or other matters related to this Treaty or in the settlement of disputes arising under international trade agreements;
(b) Strictly be chosen on the basis of its objectivity, impartiality, reliability and sound judgment;
(c) Be independent, have no connection with either of the Parties and not receive instructions from the same; and
(d) Comply with the code of conduct established by the Commission in accordance with article 17.1.2 (d) (the Free Trade Commission).
1. The panel shall be composed of three (3) members.
2. Each party within fifteen (15) days after the date of receipt of the request for the establishment of the panel shall appoint one (1), panellist shall propose up to four candidates who are not citizens of the Parties for the office of President of the Panel in writing and shall notify the other party of the designation of its panelist and its proposed candidates for the Chair of the Panel.
3. If a Party does not appoint one (1) panellist within the specified period, it shall be selected by the other party within five (5 days), among the candidates proposed for the Chair.
4. The parties, within thirty (30) days after the date of receipt of the request for the establishment of a panel shall endeavour to reach agreement and appoint the chair from among the candidates proposed. If the parties are unable to agree on the Chair shall be selected by lot by the Chairperson among the candidates proposed within seven (7) days of the expiration of the additional period of thirty (30) days.
5. If a panellist appointed by a party waives is withdrawn, or cannot fulfil its role, that Party shall designate a new panelist within fifteen (15) days of the appointment of the new panellist shall be made in accordance with paragraph 3. If the Chair of the Panel is revoked or waiver cannot fulfil its role, the Parties shall agree on the appointment of a replacement within fifteen (15) days, otherwise, the replacement shall be appointed in accordance with paragraph 4. If there is any other candidate, each Party shall propose up to three (3) additional candidates within a further period of twenty (20) days and the panellist or the Chair shall be selected by lot within seven (7) days from the candidates proposed. In both cases, any period shall be suspended from the date on which the panellist from the President or resigns or to fulfil its role, and the suspension shall terminate on the date of the selection of a replacement.
1. The Commission shall establish its rules of procedure, in accordance with article 17.1.2 (d) (the Free Trade Commission).
2. A panel established under this Chapter shall be subject to the rules of procedure. A panel may establish, in consultation with the parties, supplementary rules of procedure that do not conflict with the provisions of this chapter.
3. Unless the parties agree otherwise, the rules of procedure shall ensure:
(a) The procedures shall ensure the right to at least one hearing before the Panel as well as the opportunity to provide written rebuttal arguments; and
(b) The hearings before the panel discussions, as well as all submissions and communications presented in the proceeding shall be of a confidential nature;
(c) All submissions and comments made by a party to the Panel will be made available to the other party;
(d) The protection information that either party designated as confidential information; and
(e) The possibility of using technological means to carry out the procedures provided that the means used does not diminish the right of a Party to participate in the procedure and to ensure their authenticity.
4. Unless the parties agree otherwise within fifteen (15) days of the establishment of the Panel, the terms of reference shall be:
"examine objectively and in the light of the relevant provisions of this Treaty, the matter referred to in the request for the establishment of the Panel and to make findings and rulings and recommendations in accordance with article 15.9".
5. If a party wishes to make the panel findings about the level of adverse trade effects on a measure of any party found to be inconsistent with the obligations of this Treaty, the terms of reference shall so indicate.
6. At the request of a party or on its own initiative, the Panel may seek information and technical advice from experts as it deems necessary, provided that the parties so agree and subject to such terms and conditions as such Parties may agree, in accordance with the rules of procedure.
7. The Panel to the Chair may delegate authority to make decisions
Administrative and procedural.
8. The Panel may, in consultation with the parties, to modify any time-limit
For its proceedings and make other procedural or administrative adjustments as may be required for transparency and efficiency of the procedure.
9. The findings and determinations and recommendations of the Panel in accordance with article 15.9, shall be taken by a majority of its members.
10. Panellists may furnish separate opinions on matters not reached a unanimous decision.The Panel may not disclose the identity of the panellists who they suggested by majority or minority. 11. Unless the parties agree otherwise, the expenses of the Panel, including the remuneration of its members, shall be borne in equal parts, in accordance with the rules of procedure.
1. Unless the parties agree otherwise, the Panel shall base its report on the relevant provisions of this Treaty, on the submissions and arguments of the Parties and on any information received by the same in accordance with article 15.8.
2. Unless the parties agree otherwise, the panel shall submit its report to the Parties within one hundred and twenty (120 days) or ninety (90) days in cases of urgency, commencing from the appointment of the last panellist.
3. In exceptional cases only if the Panel considers that it cannot issue its report within one hundred and twenty (120 days) or ninety (90) days in cases of urgency, 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. Any delay shall not exceed a further period of thirty (30) days, unless the parties agree otherwise.
4. The report shall contain:
(a) The conclusions on grounds of fact and law;
(b) Determinations as to whether a Party has complied with its obligations under this Treaty and any other determination requested in the terms of reference; and
(c) Its recommendations for the implementation of the decision, if any of the Parties so requests.
5. The panel shall not disclose confidential information in its report, but shall include conclusions arising from such information.
6. Unless the parties agree on a different period, the Parties shall make available to the public the report within fifteen (15) days of its receipt, subject to the protection of confidential information.
1. Having received the report of the Panel, the Parties shall agree on the resolution of the dispute, which shall conform with the determinations and recommendations of the panel, if any, unless the parties agree otherwise.
2. If possible, the resolution shall be the removal of a measure that does not comply with the provisions of this Treaty.
3. If the parties do not agree on a solution within thirty (30) days following the submission of the report or within such other period as the parties may agree; the party claimed, at the request of the complaining party, shall enter into negotiations with a view to agreeing
Compensation. Such compensation shall be temporary and shall be granted until the dispute is resolved.
1. If the Parties:
(a) Have not reached an agreement on the settlement of the dispute and has not been sought compensation in accordance with article 15.10, within thirty (30) days following the submission of the report; or
(b) Not agree to compensation in accordance with article 15.10, within thirty (30) days following the submission of the request of the complaining party; or
(c) Have reached agreement on a resolution of the dispute or compensation in accordance with article 15.10 and the complaining party considers that the respondent party has failed to observe the terms of the Agreement,
The Party may notify the complaining party claimed to suspend benefits of equivalent effect to the party claimed. The notice, the complaining party shall specify the level of benefits proposed to be suspended.
2. In considering the benefits to suspend pursuant to paragraph 1:
(a) The complaining party should first seek to suspend benefits in the same as that sector or sectors affected by the measure or other matter that the Panel has found to be inconsistent with the obligations of this Treaty; and
(b) The complaining party considers that it impracticable or effective to suspend benefits in the same sector or sectors may suspend benefits in other sectors.
3. The suspension of benefits shall be temporary and the complaining party only
Apply to:
(a) The measure found to be inconsistent with the obligations of this treaty is made in accordance with the same; or
(b) If the parties reach an agreement on the settlement of the dispute; or
(c) The Panel described in article 15.12 conclude, in its report that the respondent Party has complied.
1512:. Review of Compliance and Suspension of Benefits
1. A Party may, by written notification to the other party request that a panel established under article 15.5 is reconstituted to determine:
(a) If the level of suspension of benefits applied by the complaining party in accordance with article 15.11.1 is manifestly excessive; or
(b) Any disagreement as to the existence of measures taken to comply with the original panel or report with respect to the measures are compatible with this Treaty.
2. In the written submission, the Party shall indicate the measures or specific issues in controversy and provide a brief summary of the legal basis of the claim that is sufficient to present the problem clearly.
3. If the original panel or any of its members are unable to reconvene, the provisions of Article 15.7 shall apply mutatis mutandis.
4. The provisions of articles 15.8 and 15.9 governed mutatis mutandis to procedures adopted and reports issued by a panel which is constituted under the terms of this article, except that, pursuant to article 15.8.8, the panel shall submit a report within sixty (60) days of the nomination of the last panellist, if the application refers to subparagraph 1 (a), within a period of ninety (90) days where the request referred to in subparagraph 1 (b).
5. A panel shall be reconstituted consistent with subparagraph 1 (b), to determine whether to complete any suspension of benefits. If the panel is to be appointed in accordance with subparagraph 1 (a) and determines that the level of benefits suspended is manifestly excessive, shall specify the level of benefits it considers equivalent effect.
1513:. Matters Relating to Judicial and Administrative Proceedings
1. If a dispute arises as to the interpretation or application of this Treaty in any domestic judicial or administrative proceeding of any Party considers that a Party that warrants intervention, or if a court or administrative body solicits the views of a party, that Party shall notify the other party. The Commission shall endeavour to agree on an appropriate response as expeditiously as possible.
2. The Party in whose territory the court or administrative body, has decided to present the interpretation of the Commission to the court or administrative body in accordance with the procedures of the body in question.
3. If the Commission fails to reach agreement, each Party may submit its own views to the court or administrative body in accordance with the procedures of the body in question.
1514:. Rights of Individuals
Neither party may grant a right of action under its domestic law against the other party asserting that a measure of the other party is inconsistent with this Treaty.
1515:. Alternative Means of Dispute Settlement
1. To the extent possible, each Party shall encourage and facilitate the use of arbitration and other means of alternative solution of international commercial disputes between private parties in the Free Trade Area.
2. For this purpose, each Party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes.
3. A Party shall be deemed to be in compliance with paragraph 2 if it is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958 and in accordance with its provisions.
1. The parties may agree to suspend the work of the Panel at any time for a period not exceeding twelve (12) months following the date of such agreement. If the work of the Panel remain suspended for more than twelve (12) months, the authority of the panel shall lapse unless the parties agree otherwise. If the authority of the Panel lapses and the parties have not reached an agreement on the settlement of the dispute, nothing in this article shall preclude a Party requesting a new proceeding regarding the same matter.
2. The parties may agree to terminate the proceedings before a panel jointly by notifying the Chairperson of the same, at any time prior to the notification of the report.
Chapter 18. Exceptions
1. For the purposes of Chapter 2 (market access for goods), chapter 3 (Rules of Origin and Origin Procedures), chapter 4 (customs procedures and trade facilitation), chapter 5 (Customs Cooperation and Mutual Assistance in Customs Matters), chapter 6 (sanitary and phytosanitary measures) and chapter 7 (Technical Barriers to Trade), article XX of GATT 1994 and its interpretative notes are incorporated into this Agreement and form an integral part of this Agreement mutatis mutandis. The parties understand that the measures referred to in article XX (b) of GATT 1994 include environmental measures necessary to protect human life or health, plant or animal and that article XX (g) of GATT 1994 applies to measures relating to the conservation of natural resources whether living or non-living exhaustible.
2. For the purposes of chapter 13 (cross-border trade in services) and chapter 14 (temporary entry of business persons), article XIV of GATS (including its footnotes) are incorporated into this Agreement and form an integral part of this Agreement mutatis mutandis. The parties understand that the measures referred to in article XIV (b) of the WTO GATS include environmental measures necessary to protect human life or health, animal or plant.
182:. Essential Security
Nothing in this Treaty shall be construed as:
(a) To require a party to furnish or allow access to information the disclosure of which it considers contrary to its essential security interests; or
(b) Prevent a party to apply measures it considers necessary to fulfil its obligations with respect to the maintenance or restoration of international peace or security or for the protection of its essential security interests.
1. Except as provided in this article nothing in this Agreement shall apply to Taxation Measures.
2. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention. In the event of incompatibility between
This treaty and any of these conventions, the Convention shall prevail to the extent of the inconsistency. In the case of a tax convention between the parties, the competent authorities under that Convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that Convention.
3. Notwithstanding paragraph 2:
(a) Article 2.2 (National Treatment) and such other provisions in this Treaty necessary to give effect to that article shall apply to taxation measures to the same extent as article III of the GATT 1994; and
(b) Article 2.11 (export taxes) shall apply to taxation measures.
4. Subject to paragraph 2:
(a) Article 13.3 (National Treatment) shall apply to income taxation measures on capital gains or taxable on the capital of corporations that relate to the purchase or consumption of particular services except that nothing in this subparagraph shall prevent a party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular services on the service requirements to provide in its territory; and
(b) (articles 12.2 and 12.3 National Treatment) (most-favoured-nation treatment) and 13.3 (National Treatment) and article 13.4 (most-favoured-nation treatment) apply to all taxation measures other than those on income or capital gains on the capital of taxable corporations, property taxes, inheritance, gifts and transfers to jump generations (generation-skipping transfers).
5. Paragraph 4 shall not:
(a) Most-favored-nation impose any obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(b) Apply to any dissenting provision of any existing taxation measure;
(c) Apply to the continuation or prompt renewal of a provision of any dissenting existing taxation measure;
(d) Apply to an amendment to A provision of any existing taxation measure dissenting, both in the amendment does not decrease, at the time of his grade in accordance with any of those articles referred to in paragraph 4;
(e) Apply to the adoption or enforcement of any taxation measure aimed at ensuring the imposition or collection of taxes in a fair and effective (as permitted by article XIV (d) of GATS WTO); or
(f) To apply a provision that conditions the receipt or continued receipt of an advantage relating to the contributions to income or trusts of pension or pension plans on a requirement that the Party maintain jurisdiction over the continuous trust pension or pension plan.
6. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3. paragraphs 3, 5, 6, 7, 8, 9 and 10 of performance requirements (Article 12.6) shall apply to taxation measures.
7.
(a) (Article 12.10 expropriation and compensation) and article 12.16 (submission of a claim to arbitration) shall apply to a taxation measure expropiatoria as alleged. However, no investor may invoke Article 12.10 (expropriation and compensation) as the basis of a claim where it has been determined pursuant to this paragraph that the measure is not an expropriation 1. An investor that seeks to invoke Article 12.10 (expropriation and compensation) with respect to a taxation measure must first refer the matter to the competent authorities of the claimant and respondent Party referred to in subparagraph (b) When, deliver a written notification of its intention to submit a claim to arbitration under article 12.16 (submission of a claim to arbitration), so that such authorities to determining whether the taxation measure is an expropriation. If the competent authorities do not agree to consider the issue or having agreed to consider it fail to agree on the ground that the measure is not
1 With reference to Article 12.10 (expropriation and compensation) in assessing whether a taxation measure constitutes an expropriation, the following considerations are relevant:
(a) The imposition of taxes does not generally constitute expropriation. The mere introduction of a new Taxation Measures or the imposition of taxes in more than one jurisdiction in respect of shall not constitute an investment in, or is in itself, expropriation;
(b) Taxation Measures, principles and policies consistent with internationally recognised tax practices do not constitute expropriation and in particular Taxation Measures aimed at preventing the avoidance or evasion of taxes should not generally be regarded as expropiatorias; and
(c) Taxation Measures applied on a non-discriminatory basis, as opposed to be targeted at investors of a particular nationality or at specific individual contributors are less likely to constitute expropriation. A taxation measure should not constitute expropriation if, when the investment is made it was already in force, and information about the measure was issued or otherwise made publicly available.
An expropriation within a period of six (6) months after they have been subjected the matter, the investor may submit its claim to arbitration under article 12.16 (submission of a claim to arbitration).
(b) For the purposes of this paragraph, the competent authorities means:
(i) In the case of Guatemala, the Ministry of Finance; and
(ii) In the case of Peru, the Ministry of Finance and Economy or their successors.
8. For the purposes of this article:
Tax convention means a convention for the avoidance of double taxation or other international agreement or arrangement and taxation;
Taxes and Taxation Measures do not include:
(a) A customs duty as defined in article 5 (definitions of general application); or
(b) The measures listed exceptions in (b) and (c) of the definition of customs duty in article 5 (definitions of general application).
184:. Dissemination of Information
Nothing in this Treaty shall be construed as requiring a party to furnish or allow access to confidential information the disclosure of which would impede the enforcement of its national legislation, or which would be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.
185:.
Measures to safeguard the balance of payments
In accordance with the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund, a Party may adopt or maintain temporary safeguard measures and non-discriminatory with regard to payments and capital movements which it considers necessary:
(a) In case of existence or threat of serious financial difficulties or external balance of payments; or
(b) In cases where, under exceptional circumstances payments and capital movements cause or threaten to cause serious difficulties for macroeconomic management in particular monetary policy and change.
1. In Guatemala, the provisions contained in the list are expressed in accordance with the terms of the Central American import tariff, which includes the Central American tariff system (SAC), and the interpretation of the provisions of this List, including those relating to products falling within tariff items of that list shall be governed by the Central American additional notes, the general notes to section notes chapter, notes and the Central American import tariff subheading. To the extent that provisions of this schedule are identical to the corresponding provisions of the Central American import tariff, the provisions of this schedule are to be interpreted in the same meaning as the corresponding provisions of the Central American import tariff.
2. For Peru, the provisions contained in the list are expressed in accordance with the terms of the customs tariff of Peru (hereinafter aaperu), and the interpretation of the provisions of this List, including those relating to products falling within subheadings nationals of that list shall be governed by the General Rules for the interpretation of the nomenclature of aaperu. To the extent that provisions of this schedule are identical to the corresponding provisions of the aaperu, the provisions of this Schedule shall have the same meaning as the corresponding provisions of the aaperu.
3. Unless otherwise specified in its list of part of this Annex, the following categories of relief applied to the elimination of customs duties by each party pursuant to article 2.3:
(a) The tariffs on goods originating in category included fractions of a Party in a schedule shall be eliminated entirely and such goods shall be free of duty on the date of Entry into Force of this Treaty;
(b) The tariffs on goods originating in fractions category B2 included in schedule A Party shall be removed in two equal annual stages beginning the tariff base established in the list of each Party, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year two (2);
(c) The tariffs on goods originating in fractions of grade B5 included in schedule A Party shall be removed in five equal annual stages beginning the tariff base established in the list of each Party, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year five (5);
(d) The tariffs on goods originating in fractions B7 category included in the list of Peru shall be removed in seven (7) equal annual stages beginning on tariff basis set out in the list of Peru, starting
On the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year seven (7);
(e) The tariffs on goods originating in included fractions of Category B 8 in the list of Peru shall be removed in eight equal annual stages beginning on tariff basis set out in the list of Peru, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year eight (8);
(f) The tariffs on goods originating in fractions B-10 category included in schedule A Party shall be removed in ten equal annual stages beginning the tariff base established in the list of each Party, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year ten (10);
(g) The tariffs on goods originating in fractions B-10 * category included in the list of Guatemala shall be removed in ten (10) annual stages, from the tariff base established in the list of Guatemala, beginning on the date of Entry into Force of this Treaty in accordance with Table 1 of this annex and such goods shall be free of duty from 1 January of the year ten (10);
(h) The tariffs on goods originating in fractions B12 category included in schedule A Party shall be removed in 12 equal annual stages beginning the tariff base established in the list of each Party, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year twelve (12);
(i) The tariffs on goods originating in fractions B13 category included in schedule A Party shall be removed in thirteen (13) equal annual stages beginning the tariff base established in the list of each Party, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year thirteen (13);
(j) The tariffs on goods originating in fractions B15 category included in schedule A Party shall be removed in 15 equal annual stages beginning the tariff base established in the list of each Party, beginning on the date of Entry into Force of this Treaty and such goods shall be free of duty from 1 January of the year fifteen (15);
(k) The tariffs on goods originating in category C included fractions in the list of Guatemala and Peru shall be removed in accordance with the tables 2 and 3 respectively;
(l) The tariffs on goods originating in category D included fractions in the schedule of a Party shall take a tariff preference of
Fifty percent (50 percent of the base rate on the date of Entry into Force of this Treaty.
(m) Goods entered into fractions of Category E in the schedule of a Party shall be excluded from the tariff relief, which shall continue to receive a most-favoured-nation treatment.
4. The Base the Tariff and Customs tariff relief to determine the level of tariff rate at each stage of relief are indicated for the tariff line in the schedule of each party.
5. For the purpose of the elimination of customs duties in accordance with article 2.3, resulting rate of each stage shall be rounded downward at least to the nearest tenth of a percentage point or, if the tariff rate is expressed in monetary units, at least to the nearest 12.01 through the official monetary unit of the importing Party.
6. For the purposes of this annex and a party, one year means the year of Entry into Force of the Treaty as provided for in Article 19.5 (Entry into Force).
7. For the purposes of this annex and a party, starting in year 2, each annual tariff reduction shall take effect on 1 January of the relevant year.
8. For the year 1, the tariff quotas shall be adjusted to reflect only the share of the agreement is in force.
9. Peru may maintain its price band system as established in the Supreme Decree No 1152001ef and its amendments, with respect to products subject to the application of the system indicated with an asterisk (*) in column 4 in the list of Peru established in this annex.
1. Each Party shall implement and administer the tariff-rate quotas for agricultural goods described in this annex in accordance with Article XIII of GATT 1994, including its interpretative notes and the Agreement on Import Licensing.
2. Each Party shall ensure that:
(a) Its procedures for administering quotas are publicly available, timeliness, transparent, non-discriminatory, responsive to market conditions and do not constitute an obstacle to trade;
(b) Subject to subparagraph (c), any person of a Party that meets the legal and administrative requirements of that Party must be eligible to apply and to be considered for award of a quantity within the quota under the quotas of the Party;
(c) Under its troops, shall: