Article 16-01. Definitions
For the purposes of this Chapter, an administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative proceeding that applies to a particular person, good or service of the other Party ina specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 16-02. Contact Points
1. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Agreement.
2. On the request of the other Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Article 16.03. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable the other Party and interested persons to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such measure that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article 16-04. Notification and Provision of Information
1. To the extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might affect or substantially affects the other Party's interests under this Agreement.
2. On request of the other Party, a Party shall provide information and respond promptly to questions pertaining to any actual or proposed measure, whether or not the other Party has been previously notified of that measure.
3. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article 16-05. Administrative Proceedings
With a view to administering in a consistent, impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that in its administrative proceedings applying measures referred to in Article 16-03 to particular persons, goods or services of the other Party in specific cases that:
(a) wherever possible, persons of the other Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of any issues in controversy;
(b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) its procedures are in accordance with domestic law.
Article 16-06. Review and Appeal
1. Each Party shall establish or maintain judicial or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and (b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by the offices or authorities.
Chapter 17. ADMINISTRATION OF THE AGREEMENT
Article 17-01. Free Trade Commission
1. The Parties hereby establish the Free Trade Commission, comprising the officials mentioned in Annex 17-01(1} or their designees.
2. The Commission shall:
(a) supervise the adequate implementation of this Agreement;
(b) evaluate the results of the implementation of this Agreement;
(c) resolve disputes that may arise regarding its interpretation or application;
(d) supervise the work of all committees, sub-committees and working groups established under this Agreement, referred to in Annex 17- 01(2); and
(e) consider any other matter that may affect the operation of this Agreement and any other matter referred to it by the Parties.
3. The Commission may:
(a) establish, and delegate responsibilities to, ad hoc or standing committees or expert groups;
(b) seek the advice of non-governmental persons or groups;
(c) modify the following in accordance with Annex 17-01(3):
(i) the rules of origin set out in Annex 4-03 (Specific Rules of Origin)
(ii) the terms set out in Annex 3-04(3) (Tariff Reduction Programme) to accelerate tariff elimination,
(iii) the schedule of products of a Party set out in Annex 3-04(4) (Exceptions) to include one or more goods on that schedule in Annex 3-04(3) (Tariff Reduction Programme),
(iv) the Uniform Regulations; and
(d) take such other action in the exercise of its functions as the Parties may agree.
4. The Commission shall establish its rules and procedures. All decisions of the all be taken by mutual agreement.
5. The Commission shall convene at least once a year. The meetings shall be chaired alternately by each Party.
Article 17-02. The Secretariat
1. The Commission shall establish and oversee a Secretariat comprising national Sections.
2. Each Party shall:
(a) establish a permanent office of its Section;
(b) be responsible for:
(i) the operation and costs of its Section, and
(ii) the remuneration and payment of expenses of panellists, their assistants, experts and members of the scientific review boards established under this Agreement, as set out in Annex 17-02;
(c) designate an individual to serve as Secretary for its Section, who shall be responsible for its administration and management; and
(d) notify the Commission of the location of its Section's office.
3. The Secretariat shall:
(a) provide assistance to the Commission;
(b) provide administrative assistance to panels established under Chapter 18 (Dispute Settlement), in accordance with procedures established pursuant to Article 18-10 (Model Rules of Procedure);
(c) as the Commission may direct, support the work of other committees, sub-committees and groups of experts established under this Agreement; and
(d) carry out other functions referred by the Commission.
Chapter 18. DISPUTE SETTLEMENT
Section A. Dispute Settlement
Article 18-01. Cooperation
The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
Article 18-02. Scope and Coverage
Except as otherwise provided in this Agreement, the provisions of this Chapter shall apply:
(a) with respect to the avoidance or settlement of all disputes between the Parties regarding the application or interpretation of this Agreement; and
(b) wherever a Party considers that an actual or proposed measure of the other Party is or would be inconsistent with the obligations of this Agreement or cause nullification or impairment in the sense of Annex 18-02.
Article 18-03. WTO Dispute Settlement
1. Any matter arising under both this Agreement, the WTO Agreement and any agreement negotiated thereunder may be settled in either forum at the discretion of the complaining Party.
2. Once dispute settlement proceedings have been initiated under Article 18-05 or under the WTO Agreement, the forum selected shall be used to the exclusion of the other, unless a Party makes a request pursuant to paragraph 3.
3. In any dispute referred to in paragraph 1, where the responding Party claims that its action is subject to Article 1-06 (Relation to Environmental and Conservation Agreements) and requests in writing that the matter be considered under this Agreement, the complaining Party may, in respect of that matter, thereafter have recourse to dispute settlement procedures solely under this Agreement.
4. The responding Party shall deliver a copy of a request made pursuant to paragraph 3 to the other Party and its Section of the Secretariat. Where the complaining Party has initiated dispute settlement proceedings regarding any matter subject to paragraph 3, the responding Party shall deliver its request no later than 15 days thereafter. On receipt of such request, the complaining Party shall promptly withdraw from participation in those proceedings and may initiate dispute settlement procedures under Article 18-05.
5. For purposes of this Article, dispute settlement proceedings under the WTO Agreement are deemed to be initiated by a Party's request for a panel, such as under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, which is part of the WTO Agreement.
Consultations
Article 18-04. Consultations
1. A Party may request in writing consultations with the other Party regarding any actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
2. The requesting Party under paragraph 1 shall deliver the request to its Section of the Secretariat and the other Party.
3. Consultations on matters regarding perishable agricultural goods shall commence within 15 days of the date of delivery of the request.
4. The Parties shall: (a) provide information to enable an examination of how the actual or proposed measure or other matter might affect the operation of this Agreement; and
(b) treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information.
5. The Parties, by mutual agreement, may directly request that the Commission meet in accordance with Article 18-05, even where the consultations provided for in this Article have not been held.
Initiation of Procedures
Article 18-05. Commission - Good Offices, Conciliation and Mediation
1. If the Parties fail to resolve a matter pursuant to Article 18-04 within:
(a) 30 days of delivery of a request for consultations,
(b) 15 days of delivery of a request for consultations in matters regarding perishable agricultural goods, or
(c) such other period as they may agree, either Party may request in writing a meeting of the Commission.
2. A Party may also request in writing a meeting of the Commission where:
(a) it has initiated dispute settlement proceedings under the WTO Agreement regarding any matter subject to Article 18-03(3) and has received a request pursuant to Article 18-03(4) for recourse to dispute settlement procedures under this Chapter; or
(b) consultations have been held pursuant to Article 7-12(4) (Technical Consultations).
3. The requesting Party shall state in the request the measure or other matter complained of and indicate the provisions of this Agreement that it considers relevant, and shall deliver the request to its Section of the Secretariat and the other Party.
4. Unless it decides otherwise, the Commission shall convene within 10 days of delivery of the request and shall endeavour to resolve the dispute promptly. The Commission may:
(a) call on such technical advisers or create such expert groups as it deems necessary,
(b) have recourse to good offices, conciliation, mediation or such other dispute resolution procedures, or
as may assist the Parties to reach a mutually satisfactory resolution of the dispute.
5. Unless it decides otherwise, the Commission shall consolidate two or more proceedings before it pursuant to this Article regarding the same measure. The Commission may consolidate two or more proceedings regarding other matters before it pursuant to this Article that it determines are appropriate to be considered jointly.
Panel Proceedings
Article 18-06. Request for an Arbitral Panel
1. If the Commission has convened pursuant to Article 18-05(4) and the matter has not been resolved within:
(a) 30 days thereafter,
(b) 30 days after the Commission has convened in respect of the matter most recently referred to it, where proceedings have been consolidated pursuant to Article 18-05(5), or
(c) such other period as the Parties may agree,
a Party may request in writing the establishment of an arbitral panel. The requesting Party shall deliver the request to its Section of the Secretariat and the other Party.
2. On delivery of the request, the Commission shall establish an arbitral panel.
3. Unless otherwise agreed by the Parties, the panel shall be established and perform its functions in a manner consistent with the provisions of this Chapter.
Article 18-07. Roster
1. By agreement, the Parties shall establish by 1 October 1998 at the latest a roster of up to 20 individuals, four whom must not be citizens of either of the Parties, who are willing and able to serve as panellists. The roster may be modified every three years.
2. Roster members shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgement;
(c) be independent of, and not be affiliated with or take instructions from, any Party; and
(d) comply with a code of conduct to be established by the Commission.
Article 18-08. Qualifications of Panellists
1. All panellists shall meet the qualifications set out in Article 18-07(2).
2. Individuals may not serve as panellists for a dispute in which they have participated pursuant to Article 18-05(4).
Article 18-09. Panel Selection
1. The Panel shall comprise five members.
2. The Parties shall endeavour to agree on the chair of the panel within 15 days of the delivery of the request for the establishment of the panel. If the Parties are unable to agree on the chair within this period, the Party chosen by lot shall select within five days as chair an individual who is not a citizen of the Party making the selection.
3. Within 15 days of selection of the chair, each Party shall select two panellists who are citizens of the other Party.
4. If a Party fails to select its panellists within the period established in paragraph 3, such panellists shall be selected by lot from among the roster members who are citizens of the other Party.
5. Panellists shall normally be selected from the roster. A Party may exercise a peremptory challenge against any individual not on the roster who is proposed as a panellist by the other Party within 15 days after the individual has been proposed. 6. If a Party believes that a panellist is in violation of the code of conduct, the Parties shall consult and if they agree, the panellist shall be removed and a new panellist shall be selected in accordance with this Article.
Article 18-10. Model Rules of Procedure
1. The Commission shall establish, by 1 October 1998 at the latest, Model Rules of Procedure, in accordance with the following principles:
(a) the procedures shall assure a right to at least one hearing before the panel as well as the opportunity to provide initial and rebuttal written submissions; and
(b) the panel's hearings, deliberations and initial report, and all written submissions to and communications with the panel shall be confidential.
2. Unless the Parties otherwise agree, the panel shall conduct its proceedings in accordance with the Model Rules of Procedure.
3. The Commission may amend from time to time the Model Rules of Procedure referred to in paragraph 1.
4. Unless the Parties otherwise agree within 20 days from the date of the delivery of the request for the establishment of the panel, the terms of reference shall be:
"To examine, in the light of the relevant provisions of the Agreement, the matter referred to the Commission, as set out in the request for a Commission meeting, and to issue the reports referred to in Articles 18-13 and 18-14."
5. If the complaining Party wishes to argue that a matter has nullified or impaired benefits, the terms of reference shall so indicate.
6. If a Party wishes the panel to make findings as to the degree of adverse trade effects on a Party of any measure found not to conform with the obligations of the Agreement or to have caused nullification or impairment in the sense of Annex 18- 02, the terms of reference shall so indicate.
Article 18-11. Role of Experts
On request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate.
Article 18-12. Scientific Review Boards
1. On request of a Party or, unless the Parties disapprove, on its own initiative, the panel may request a written report of a scientific review board on any factual issue concerning environmental, health, safety or other scientific matters raised by a Party in a proceeding, subject to such terms and conditions as the Parties may agree.
2. The board shall be selected by the panel from among highly qualified, independent experts in the scientific matters, after consultations with the Parties and in accordance with the Model Rules of Procedure.
3. The Parties shall be provided:
(a) advance notice of, and an opportunity to provide comments to the panel on, the factual issues to be referred to the board; and
(b) a copy of the board's report and an opportunity to provide comments on the report to the panel.
4. The panel shall take the board's report and any comments by the Parties on the report into account in the preparation of its report.
Article 18-13. Initial Report
1. Unless the Parties otherwise agree, the panel shall base its initial report on the submissions and arguments of the Parties and on any information before it pursuant to Articles 18-11 and 18-12.
2. Unless the Parties otherwise agree, the panel shall, within 90 days after the last panellist is selected, present to the Parties an initial report containing:
2. Unless the Parties otherwise agree, the panel shall, within 90 days after the last panellist is selected, present to the Parties an initial report containing:
(a) findings of fact, including any findings pursuant to a request under Article 18-10(6);
(a) findings of fact, including any findings pursuant to a request under Article 18-10(6);
(b) its determination as to whether the measure at issue is or would be inconsistent with the obligations of this Agreement or cause nullification or impairment in the sense of Annex 18-02, or any other determination requested in the terms of reference; and
(b) its determination as to whether the measure at issue is or would be inconsistent with the obligations of this Agreement or cause nullification or impairment in the sense of Annex 18-02, or any other determination requested in the terms of reference; and
(c) its recommendations, if any, for resolution of the dispute.