Article 12.9. Qualifications of Panelists
1. Panelists shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or in the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, impartiality, reliability, and sound judgment;
(c) be independent of and not be affiliated with or take instructions from, any Party; and
(d) comply with the standards of conduct established by the Model Rules of Procedure.
2. If a disputing Party has justifiable doubts as to a panelists compliance with the standards of conduct established in the Model Rules of Procedure, it may propose to the other disputing Party the removal of that panelist. if the other disputing Party does not agree, or the panelist does not withdraw, the decision shall be made by the Director-General of the WTO.
Article 12.10. Role of the Panel
1. The panel shall make an objective assessment of the matter under its consideration, in light of the relevant provisions of this Agreement interpreted in accordance with rules of interpretation of public international law and in light of the submissions and arguments of the disputing Parties as well as other information received during the proceedings, and formulate the necessary findings for settling the dispute in accordance with the request for the establishment of the panel and its terms of reference.
2. Unless otherwise agreed by the disputing Parties, within 20 days following the date of the receipt of the request for the establishment of the panel, its terms of reference shall be:
To examine, in light of the relevant provisions of this Agreement, the matter referred to it in the panel request and to make findings, determinations and recommendations on the matters referred to in paragraph 3 of Article 12.13 (Report of the Panel).
3. The decisions of the panel, including the adoption of the report, shall normally be taken by consensus. if the panel is not able to reach consensus, it may adopt its decisions by majority. No panel may disclose which panelists are associated with majority or minority opinions.
4. The reports, as well as any other decision of the panel, shall be communicated to the Parties. The reports shall be made public, unless the disputing Parties agree otherwise.
Article 12.11. Model Rules of Procedure
1. The procedure before the panel shall be conducted in accordance with the Model Rules of Procedure, unless otherwise provided for in this Agreement. The disputing Parties may agree on different rules to be applied by the panel.
2. Within six months following the date of entry into force of this Agreement, the Joint Committee shall approve the Model Rules of Procedure, which shall ensure at least the fulfilment of the following:
(a) each disputing Party shall have the right to at least one hearing before the panel, as well as the opportunity to provide initial and rebuttal written submissions;
(b) the hearings before the panel will be open to the public unless otherwise agreed by the disputing Parties;
(c) the protection of information designated as confidential by any of the Parties;
(d) the hearings shall be held in Washington Dc, unless otherwise agreed by the disputing Parties;
(e) in presenting oral arguments the disputing Parties have the right to use either their own language or English. Written submissions must be submitted in Spanish with an English translation or in English with a Spanish translation;
(f) at the request of a disputing Party, or on its own initiative, the panel may seek information and technical advice from experts it deems appropriate;
(g) each disputing Partys individual costs, including costs for the translation of the written submissions, the disputing Party's administration costs and other costs related to the preparation and the carrying out of the proceedings, shall be borne by each disputing Party; and
(h) costs for the panelists and the administrative costs for the oral hearings, including interpretation, shall be borne by the disputing Parties in equal parts. However, the panel may decide that the costs be distributed differently, taking into account, inter alia, the particulars of the case and other circumstances that may be deemed relevant.
Article 12.12. Consolidation of Proceedings
Where more than one Party requests the establishment of a panel relating to the same matter or measure, and whenever feasible, a single panel should be established to examine complaints relating to the same matter.
Article 12.13. Report of the Panel
1. Unless the disputing Parties agree otherwise, the panel shall submit an initial report within 90 days, or 50 days in the event of urgent matters, following the date of its establishment.
2. A disputing Party may submit written comments to the panel on its initial report within 14 days following its presentation. The panel shall present to the disputing Parties a final report within 30 days following the presentation of the initial report.
3. The reports shall contain:
(a) the findings of fact and law together with the reasons therefor, including the determination as to whether a disputing Party has not conformed with its obligations under this Agreement or any other determination requested in the terms of reference;
(b) its recommendations for the resolution of the dispute and the implementation of the final report;
(c) if requested, the findings about the level of adverse trade effects caused to the complaining Party by the Party complained againsts failure to conform with the obligations of this Agreement; and
(d) if requested, a reasonable period to comply with the final report.
Article 12.14. Request for Clarification of the Report
1. Within ten days following the presentation of the final report, a disputing Party may submit a written request to the panel for clarification of any determination or recommendation in the report that the Party considers ambiguous. The panel shall respond to the request within ten days following the date of its receipt.
2. The submission of a request pursuant to paragraph 1 shall not affect the time periods referred to in Article 12.16 (Implementation of the Final Report and Compensation) and Article 12.17 (Non-Implementation and Suspension of Benefits), unless the panel decides otherwise.
Article 12.15. Suspension and Termination of Procedure
1. The disputing Parties may agree to suspend the work of the panel at any time for a period not exceeding 12 months following the date of such agreement. If the work of the panel has been suspended for more than 12 months, the authority of the panel to consider the dispute shall lapse, unless the disputing Parties agree otherwise.
2. if the authority of the panel lapses and the disputing Parties have not reached an agreement on the settlement of the dispute, nothing in this provision shall prevent a Party from introducing a new complaint regarding the same matter.
3. The disputing Parties may agree to terminate the proceedings before a panel at any time by jointly notifying the chairperson of the panel.
4. A complaining Party may withdraw its complaint at any time before the final report has been issued. Such withdrawal is without prejudice to its right to introduce a new complaint regarding the same issue at a later point in time.
5. A panel may, at any stage of the proceedings prior to release of the final report, propose that the disputing Parties seek to settle the dispute amicably.
Article 12.16. Implementation of the Final Report and Compensation
1. The rulings of the panel on the matters referred to in subparagraphs 3 (a) and (d) of Article 12.13 (Report of the Panel) shall be final and binding for the disputing Parties.
2. The Party complained against shall within 30 days following the issuance of the final report notify the other Party when and how it will comply with the ruling. The Party complained against shall comply with the ruling immediately or, if impracticable, within a reasonable period of time, unless the panel report sets a period of time for the implementation of the ruling pursuant to subparagraph 3 (d) of Article 12.13 (Report of the Panel) or the disputing Parties agree on a different period of time. The Party complained against shall take into account any recommendation of the panel for the resolution of the dispute and the implementation of the ruling.
3. The Party complained against may also notify the complaining Party within 30 days following the issuance of the final report that it considers it impracticable to comply with the ruling and offer compensation. if the complaining Party considers the proposed compensation to be unacceptable or not sufficiently detailed to asses properly, it may request consultation with the aim of reaching an agreement on compensation. if there is no agreement on compensation within 30 days following the date of the receipt of the request, the Party complained against must comply with the ruling of the original panel pursuant to paragraph 2.
Article 12.17. Non-Implementation and Suspension of Benefits
1. if the Party complained against fails to comply:
(a) with the ruling in the final report within the time period defined in accordance with paragraph 2 of Article 12.16 (Implementation of the Final Report and compensation); or
(b) with an agreement on compensation pursuant to paragraph 3 of Article 12.16 (implementation of the Final Report and compensation) within the time period agreed by the disputing Parties, the complaining Party may suspend benefits granted under this Agreement equivalent to those affected by the measure that the panel has found to violate this Agreement, taking into account findings about the level of adverse trade effects pursuant to subparagraph 3 (c) of Article 12.13 (Report of the Panel).
2. in considering which benefits to suspend pursuant to paragraph 1, the complaining Party should first seek to suspend the application of benefits in the same sector or sectors affected by the measure that the panel has found to be inconsistent with the obligations of this Agreement. If the complaining Party considers that it is not practicable or effective to suspend benefits in the same sector or sectors, it may suspend benefits in other sectors.
3. The suspension of benefits shall be temporary and shall only be applied by the complaining Party until the measure found to violate this Agreement has been brought into conformity with the rulings of the panel or until the disputing Parties have otherwise settled the dispute.
4. The complaining Party shall notify the Party complained against of the benefits which it intends to suspend, the grounds for such suspension and when suspension will commence no later than 30 days before the date on which the suspension is due to take effect. Within 15 days following the date of that notification, the Party complained against may request the original panel to rule on any disagreement regarding the notified suspension, including whether the suspension of benefits is justified and whether the benefits which the complaining party intends to suspend are excessive. The ruling of the panel shall be given within 45 days following the date of that request and shall be final and binding. Benefits shall not be suspended until the panel has issued its ruling.
5. In case of disagreement as to whether the Party complained against has complied with the report within the time periods set out in paragraph 2 of Article 12.16 (implementation of the Report and compensation), either disputing Party may refer the dispute to the original panel. The report of the panel shall normally be rendered within 45 days following the date of the request and shall be final and binding. Benefits shall not be suspended until the panel has issued its ruling.
6. At the request of a disputing Party, the original panel shall determine the conformity with the rulings of the panel in this chapter of any implementing measures adopted after the suspension of benefits by the complaining Party and whether the suspension of benefits should be terminated or modified. The ruling of the panel in this case shall be given within 30 days following the date of that request.
7. A panel under this Article shall, whenever possible, be composed by members of the original panel. If a panelist dies, withdraws, is removed or is otherwise unavailable, that panelist shall be replaced by a panelist appointed pursuant to paragraph 5 of Article 12.8 (Panel Selection).
Chapter 13. Final Provisions
Article 13.1. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement constitute an integral part of this Agreement.
Article 13.2. Entry Into Force
1. This Agreement is subject to ratification, acceptance or approval in accordance with the respective legal and constitutional requirements of the Parties. The instruments of ratification, acceptance or approval shall be deposited with the Depositary.
2. This Agreement shall enter into force on 1 June 2011, provided that Peru and at least one EFTA State have deposited their instruments of ratification, acceptance or approval with, or notified provisional application to the Depositary at least two months prior to that date.
3. In case the Agreement does not enter into force on 1 June 2011, it shall enter into force on the first day of the third month following the latter date on which Peru and at least one EFTA State have deposited their instruments of ratification, acceptance or approval with, or notified provisional application to the Depositary.
4. If an EFTA State deposits its instrument of ratification, acceptance or approval after this Agreement has entered into force, the Agreement shall enter into force on the first day of the third month following the deposit of its instrument.
5. Where Peru has ratified this Agreement, an EFTA State may, if its legal and constitutional requirements so permit, apply this Agreement provisionally pending ratification, acceptance or approval by that State. Provisional application of this Agreement shall be notified to the Depositary, and shall apply from the first day of the third month following the notification.
6. If the Agreement is not ratified, accepted or approved by a Party, and it had been provisionally applied by that Party, paragraph 1 of Article 13.5 (Withdrawal) shall apply mutatis mutandis. Provisional application shall continue for a period of six months following the date of the receipt of the Partys notification by the Depositary regarding the non-ratification, non-acceptance or non-approval of the Agreement.
Article 13.3. Amendments
1. Any Party may submit proposals for amendments to this Agreement to the Joint Committee for consideration and approval.
2. Without prejudice to subparagraph 3 (b) of Article 11.1 (Joint Committee), amendments to this Agreement shall, after approval by the Joint Committee, be submitted to the Parties for ratification, acceptance or approval in accordance with their respective legal and constitutional requirements.
3. Amendments shall enter into force on the first day of the third month following the deposit of the last instrument of ratification, acceptance or approval, unless the Parties agree otherwise.
4. The Parties may agree that an amendment shall enter into force for those Parties that have fulfilled their internal legal requirements, provided that Peru and at least one EFTA State are among those Parties. A Party may apply, subject to its internal legal requirements and upon notification to the Depositary, the amendment provisionally, pending its ratification, acceptance or approval.
5. The text of the amendments and the instruments or ratification, acceptance or approval shall be deposited with the Depositary.
Article 13.4. Accession
1. Any State becoming a member of European Free Trade Association (EFTA), may accede to this Agreement, provided that the Joint Committee decides to approve its accession, on such terms and conditions as may be agreed between that State and the Parties.
2. In relation to an acceding State, this Agreement shall enter into force on the first day of the third month following the last deposit of the instrument of approval of the Parties and of the instrument of accession of the acceding State.
Article 13.5. Withdrawal
1. Any Party may withdraw from this Agreement after it provides written notification to the other Parties. Such withdrawal shall be effective six months after the date on which the notification is received by the Depositary, except otherwise agreed by the Parties.
2. If Peru withdraws, this Agreement shall expire when the withdrawal becomes effective.
3. In case any EFTA State withdraws from the Convention establishing the European Free Trade Association, it shall withdraw at the same time from this Agreement in accordance with paragraph 1.
Article 13.6. Relation to the Complementary Agreements
1. This Agreement shall not enter into force or be applied provisionally between Peru and an EFTA State unless the complementary Agreement on Agriculture between Peru and that EFTA State referred to in Article 1.1 (Establishment of a Free Trade Area) enters into force or is applied provisionally simultaneously. it shall remain in force as long as the complimentary agreement remains in force between those Parties.
2. If Peru or an individual EFTA State withdraws from the complementary Agreement on Agriculture between Peru and that EFTA State, it is understood that it is also withdrawing from this Agreement. Both withdrawals shall become effective on the date the first withdrawal becomes effective pursuant to Article 13.5 (Withdrawal).
Article 13.7. Authentic Texts
1. Except as provided in paragraph 2, the English and Spanish texts of this Agreement are equally valid and authentic. In case of divergence, the English version shall prevail.
2. The following texts are only valid and authentic in English or Spanish respectively:
(a) in English:
(i) Table in Annex II (Excluded Products);
(ii) Appendix 1 to Annex III (Processed Agricultural Products); and
(iii) Tables 1 and 2 in Annex IV (Fish and Other Marine Products).
(b) in Spanish:
(i) Appendixes 2 and 3 to Annex III (Processed Agricultural Products);
(ii) Table 3 in Annex IV (Fish and Other Marine Products); and
(iii) Table in Annex VIII (Industrial Goods).
Article 13.8. Depositary
The Government of Norway shall act as Depositary.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments have signed this Agreement.
Signed by the EFTA States at Reykjavik, this 24 day of June 2010, and by Peru at Lima, this 14 July 2010, in one original text in the English and the Spanish languages, which shall be deposited with the Government of Norway (Depositary). The Depositary shall transmit certified copies to the Parties.
For Iceland
For the Republic of Peru
For the Principality of Liechtenstein
For the Kingdom of Norway
For the Swiss Confederation
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