Article 31.9. Functions of the PanelThe Panel:
(a)
(b)
(c)
shall make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the covered provisions;
shall set out, in its decisions and reports, the findings of facts, the applicability of the covered provisions and the basic rationale behind any findings and conclusions that it makes; and
should consult regularly with the Parties and provide adequate opportunities for the development of a mutually agreed solution.
Article 31.10. Terms of Reference
Unless the Parties agree otherwise within five days after the date of establishment of the panel, the terms of reference of the panel shall be: âto examine, in the light of the relevant provisions of this Agreement cited by the Parties, the matter referred to in the request for the establishment of the panel, to make findings on the conformity of the measure at issue with the provisions of this Agreement referred to in Article 31.2 (Scope) and to deliver a report in accordance with Articles 31.12 (Interim Report and Final Report) and XX.12] (Panel Report).â
If the Parties agree on other terms of reference, they shall notify the agreed terms of reference to the panel within the time period set out in paragraph 1.
Article 31.11. Decision on Urgency
If a Party so requests, the panel shall decide, within 10 days of its establishment, whether the case concerns matters of urgency.
In cases of urgency, the applicable time periods set out in Section 3 (Dispute Settlement Procedures) in this Chapter shall be half the time prescribed therein, except for the time periods referred to in Article 31.5 (Establishment of a Panel) and Article 31.10 (Terms of Reference).
Article 31.12. Interim and Final Report
The panel shall deliver an interim report to the Parties within 90 days after the date of establishment of the panel. When the panel considers that this deadline cannot be met, the chairperson of the panel shall notify the Parties in writing, stating the reasons for the delay and the date on which the panel plans to deliver its interim report. The panel shall, under no circumstances, deliver its interim report later than 120 days after the date of establishment of the panel.
Each Party may deliver to the panel a written request to review precise aspects of the interim report within 10 days of its delivery. A Party may comment on the other's Party's request within six days of the delivery of the request.
If no written request to review precise aspects of the interim report is delivered within the time period referred to in paragraph 2, the interim report shall become the final report.
The panel shall deliver its final report to the Parties within 120 days of the date of establishment of the panel. When the panel considers that this deadline cannot be met, the chairperson of the panel shall notify the Parties in writing, stating the reasons for the delay and the date on which the panel plans to deliver its final report. The panel shall, under no circumstances, deliver its final report later than 150 days after the date of establishment of the panel.
The final report shall include a discussion of any written request by the Parties on the interim report and clearly address the comments of the Parties. The panel shall set out in the interim and final reports:
(a) a descriptive section summarising the arguments of the Parties and on the comments referred to in paragraph 2;
(b) its findings on the facts of the case and on the applicability of the relevant covered provisions;
(c) its findings on whether the measure is or is not in conformity with the relevant covered provisions; and
(d) its reasons for its findings and conclusions.
The final report shall be final and binding on the Parties.
Article 31.13. Compliance Measures
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.
The Party complained against shall, no later than 30 days after delivery of the final report, notify to the complaining Party of the measures which it has taken or which it envisages to take to comply.
Article 31.14. Reasonable Period of Time
If immediate compliance is not possible, the Party complained against shall, no later than 30 days after delivery of the final report, notify 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.
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 delivery of the notification in paragraph 1, request in writing the original panel to determine the length of the reasonable period of time. The panel shall deliver its decision to the Parties within 20 days of the date of delivery of the request.
The Party complained against shall deliver a written notification 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.
The Parties may agree to extend the reasonable period of time.
Article 31.15. Compliance Review
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.
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, 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 delivery of the request.
Article 31.16. Temporary Remedies
Upon request by and after consultations with the complaining Party, the Party complained against shall 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; or
(b) the Party complained against fails to deliver a notification of any measure taken to comply or which it envisages to take to comply, within the deadline referred to in Article 31.13 (Compliance Measures) or of any measure taken to comply 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, in accordance with Article 31.15 (Compliance Review).
In any of the conditions referred to in subparagraphs 1(a) to (c), the complaining Party may deliver a written notification to the Party complained against that it intends to suspend the 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 20 days after the expiry of the reasonable period of time or the delivery of the panel decision under Article 31.15 (Compliance Review) when a request under paragraph 1 is made.
The notification shall specify the level of intended suspension of obligations.
The complaining Party may suspend the obligations 10 days after the date of delivery of the notification referred to in paragraph 2, unless the Party complained against made a request under paragraph 5.
The suspension of obligations shall not exceed the level equivalent to the nullification or impairment caused by the violation.
In considering what obligations to suspend, the complaining Party should first seek to suspend the obligations in the same sector or sectors as that affected by the measure that the panel has found to be inconsistent with this Agreement or cause nullification or impairment. The suspension of obligations may be applied to other sectors covered by this Agreement than the one or ones in which the panel has found nullification or impairment, in particular if the complaining Party is of the view that such suspension in the other sector is practicable or effective in inducing compliance.
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 to the original panel before the expiry of the 10 day 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.
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 31.31 (Mutually Agreed Solutions)
(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 31.17. Review of Measures Taken to Comply after 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 delivery of that 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 delivery 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 delivery of the notification, the complaining Party shall deliver a written request 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 delivery 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 to the original panel to decide on the matter.
Article 31.18. 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 XX (Code of Conduct for Panellists and Mediators), the procedure provided for in Article 31.5
(Establishment of Panels) 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 31.19. Rules of Procedure
1. Panel procedures shall be governed by this Chapter and Annex X (Rules of Procedure).
2. Any hearing of the panel shall be open to the public unless otherwise provided in Annex X (Rules of Procedure).
Article 31.20. Suspension and Termination
At the request of both Parties, 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 of both Parties, or at the end of the suspension period at the written request 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 31.21. 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, including information and technical advice 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 X (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 31.22. 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. Reports and decisions of the panel cannot add to or diminish the rights and obligations of the Parties under this part of the Agreement.
Article 31.23. 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. Each Party shall make the reports and decisions of the panel and its submissions publicly available, subject to the protection of confidential information.
3. The decisions and reports of the panel shall be accepted unconditionally by the Parties. They shall not create any rights or obligations 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 X (Rules of Procedure).
Section 4. MEDIATION MECHANISM
Article 31.24. 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. 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.
Article 31.25. Initiation of the Mediation Procedure
A Party may at any time request to enter into a mediation procedure with respect to any measure by a Party adversely affecting trade or investment between the Parties.
The request referred to in paragraph 1 shall be in writing and 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 trade or investment between the Parties; and
c) explain how the requesting Party considers that those effects are linked to the measure.
The Party to which the request is made shall give sympathetic consideration to the request and deliver its written acceptance or rejection to the requesting Party within 10 days of its delivery. Otherwise the request shall be regarded as rejected.
Article 31.26. Selection of the Mediator
The Parties shall endeavour to agree on a mediator within 14 days of the initiation of the mediation procedure.
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 Trade Committee from the requesting Party to select the mediator by lot, within five days from the request, from the sub-list of chairpersons established under Article 31.6 (Lists of Panellists). The co-chair of the Trade Committee from the requesting Party may delegate such selection by lot of the mediator.
Should the sub-list of chairpersons referred to in Article 31.6 (Lists of Panellists) not be established at the time a request is made pursuant to Article 31.25 (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.
A mediator shall not be a national of either Party or employed by either Party, unless the Parties agree otherwise.
A mediator shall comply with Annex XX (Code of Conduct for Panellists and Mediators).
Article 31.27. Rules of the Mediation Procedure
Within 10 days of the appointment of the mediator, the requesting Party 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 trade or 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.
The mediator shall assist the Parties in a transparent manner in bringing clarity to the measure concerned and its possible adverse effects on trade or 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.
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 part of the Agreement.
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.
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.
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.
7. 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 part of the Agreement.
The procedure shall be terminated:
(a)
(b)
(c)
(d)
by the adoption of a mutually agreed solution by the Parties, on the date of the notification thereof to the mediator;
by mutual agreement of the Parties at any stage of the procedure, on the date of the notification of that agreement to the mediator;
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 the notification of that declaration to the Parties; or
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 31.28. ConfidentialityUnless 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 31.29. Relationship to Dispute Settlement Procedures1. the Mediation Procedure Is without Prejudice to the Partiesâ Rights and Obligations Under Sections 2 and 3 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 31.27 (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 5. COMMON PROVISIONS
Article 31.30. Request for Information
Before a request for consultations or mediation is made pursuant to Article 31.3 or 31.27 respectively, a Party may deliver a written request for information regarding a measure adversely affecting trade or investment between the Parties. The Party to which such request is made shall, within 20 days of delivery of the request, deliver a written response containing its comments on the requested information.
When the responding Party considers it will not be able to deliver a response within 20 days of delivery 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.
A Party is normally expected to avail itself of this provision before the initiation of the mediation procedure or the delivery of the request for consultations.
Article 31.31. Mutually Agreed Solution
The Parties may reach a mutually agreed solution at any time with respect to any dispute referred to in Article 31.2 (Scope).
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.
Each Party shall take measures necessary to implement the mutually agreed solution immediately or within the agreed time period, as applicable.
No later than at the expiry of the agreed time period the implementing Party shall inform the other Party, in writing, of any measure that it has taken to implement the mutually agreed solution.
Article 31.32. Time Periods
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 3, 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 31.33. Costs
1. Each Party shall bear its own expenses derived from the participation in the panel or mediation procedure.
2. The Parties shall share jointly and equally the expenses derived from organisational matters, including the remuneration and expenses of the panellists and of the mediator. The remuneration of the panellists and of the mediator shall be in accordance with that foreseen for a chairperson of an arbitration Panel in accordance with Annex X (Rules of Procedure).
Article 31.34. Annexes
The Trade Council may modify the Annexes X (Rules of Procedure) and XX (Code of Conduct for Panellists and Mediators).
Chapter 32. EXCEPTIONS
Article 32.1. General Exceptions
1. For the purposes of Chapter 2 [Trade in Goods], Chapter 4 [Customs and Trade Facilitations], Chapter 8 [Energy and Raw Materials], Chapter 22 [State Owned Enterprises], Chapter 10 [Investment Liberalisation]', Chapter 19 [Digital Trade], Article XX of the GATT 1994, including its Notes and Supplementary Provisions, is incorporated into and made part
of this Agreement, mutatis mutandis.
2. 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 investment liberalization or trade in services, nothing in Chapter 10 [Investment Liberalisation], Chapter 11 [Trade in Services], Chapter 20 [Capital Movement], Chapter 19 [Digital Trade] , Chapter 8 [Energy and Raw Materials] and Chapter 22 [State-Owned Enterprises] shall be construed to prevent the adoption or
enforcement by either Party of measures:
(a) necessary to protect public security or public morals or to maintain public orderâ; (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;
' This provision shall not apply to Article 10.7 (Public Procurement) of Chapter 10 [Investment Liberalisation]. ? This provision shall not apply to Article 10.7 (Public Procurement) of Chapter 10 [Investment Liberalisation]. 3 For greater certainty, nothing in this Article shall be construed as a means of limiting the rights set out in Annex XX (Transfers) of the Investment Chapter.
4 The public security and public order exceptions may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.