3. Prior to the appointment as an arbitrator under Section A (Resolution of Disputes between Parties) of Chapter 3 (Dispute Settlement), a candidate shall disclose any interests, relationships, or matters, that are likely to affect that candidate's independence or impartiality, or that might reasonably create an appearance of impropriety or bias in the proceedings. To that end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships or matters.
4. A candidate or arbitrator shall communicate, in writing, matters concerning actual or potential violations of this Code of Conduct to the Committee for consideration by the Parties.
5. Once appointed, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in Rule 3 of this Code of Conduct and shall disclose them by informing the Committee, in writing, for consideration by the Parties. The disclosure obligation is a continuing duty which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceedings.
Duties of Arbitrators
6. An arbitrator shall be available to perform, and shall perform, his duties thoroughly, expeditiously, and with fairness and diligence, throughout the course of the proceedings.
7. An arbitrator shall consider only those issues raised in the proceedings and necessary for a ruling and shall not delegate this duty to any other person.
8. An arbitrator shall take all appropriate steps to ensure that his assistant and staff are aware of, and comply with, Rules 2, 3, 4, 5, 16, 17 and 18 of this Code of Conduct.
9. An arbitrator shall not engage in ex parte contacts concerning the proceedings.
Independence and Impartiality of Arbitrators
10. An arbitrator shall avoid creating an appearance of bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamour and loyalty to a Party or fear of criticism.
11. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his duties.
12. An arbitrator shall not use his position on the arbitration panel to advance any personal or private interests and shall avoid actions that may create the impression that others are in a special position to influence him.
13. An arbitrator shall not allow financial, business, professional, personal or social relationships or responsibilities to influence his conduct or judgment.1
14. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his impartiality or that might reasonably create an appearance of impropriety or bias.
Obligations of Former Arbitrators
15. All former arbitrators shall avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decisions or rulings of the arbitration panel.
Confidentiality
16. No arbitrator or former arbitrator shall at any time disclose or use any non-public information concerning proceedings or acquired during proceedings except for the purposes of those proceedings and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
17. An arbitrator shall not disclose an arbitration panel ruling or parts thereof prior to its publication in accordance with Section A (Resolution of Disputes between Parties) of Chapter 3 (Dispute Settlement).
18. An arbitrator or a former arbitrator shall not disclose the deliberations of an arbitration panel, or any arbitrator's view at any time.
Expenses
19. Each arbitrator shall keep a record and render a final account of the time devoted to the procedure and of his expenses, as well as the time and expenses of his assistant and staff.
Mediators
20. This Code of Conduct applies to mediators, mutatis mutandis.
ANNEX 9. MEDIATION MECHANISM
1. Objective.
The objective of this Annex is to facilitate the finding of mutually agreed solutions through a comprehensive and expeditious procedure with the assistance of a mediator, referred to in Article 3.4 (Mediation Mechanism).
Section A. MEDIATION PROCEDURE
2. Request for Information
1. Before the initiation of the mediation procedure, a Party may request, at any time and in writing, information regarding a measure adversely affecting investment between the Parties. The Party to which such request is made shall provide, within 20 days, a written response containing its comments on the information contained in the request.
2. Where the responding Party considers that a response within 20 days is not practicable, it shall inform the requesting Party of the reasons for not meeting that deadline, together with an estimate of the shortest period within which it will be able to provide its response.
3. Initiation of the Mediation Procedure
1. A Party may at any time request that the Parties enter into a mediation procedure. Such request shall be addressed to the other Party in writing. The request shall be sufficiently detailed, clearly present the concerns of the requesting Party and shall:
(a) identify the specific measure at issue;
(b) provide a statement of the alleged adverse effects on investment between the Parties that the requesting Party considers the measure has or could have; and
(c) explain how the requesting Party considers that those effects are linked to the measure.
2. The mediation procedure may only be initiated by mutual agreement of the Parties. The Party to which a request pursuant to paragraph 1 is addressed shall give sympathetic consideration to the request and reply by accepting or rejecting it in writing within 10 days of the date of its receipt.
4. Selection of the Mediator
1. Upon launch of the mediation procedure, the Parties shall endeavour to agree on a mediator no later than 15 days after the date of receipt of the reply referred to in paragraph 2 of Article 3 Cinitiation of the Mediation Procedure) of this Annex.
2. In the event that the Parties are unable to agree on a mediator within the time limit laid down in paragraph 1, either Party may request the chairperson of the Committee, or the chairperson's delegate, to select the mediator by lot from the list established under Article 3.23 (List of Arbitrators). Representatives of the Parties shall be invited, with due notice, to be present when lots are drawn. In any event, the lot shall be carried out with the Party or Parties that are present.
3. The chairperson of the Committee, or the chairperson's delegate, shall select the mediator within five working days of the reply referred to in paragraph 2 by either Party.
4. Should the list provided for in Article 3.23 (List of Arbitrators) not be established at the time a request is made pursuant to Article 3 (Initiation of the Mediation Procedure) of this Annex, the mediator shall be drawn by lot from the individuals who have been formally proposed by one or both of the Parties.
5. A mediator shall not be a citizen of either Party, unless the Parties agree otherwise.
6. The mediator shall assist, in an impartial and transparent manner, the Parties in bringing clarity to the measure and its possible trade effects, and in reaching a mutually agreed solution. Annex 8(Code of Conduct for Arbitrators and Mediators) applies to mediators mutatis mutandis. Rules 3 to 7 (Notifications) and 44 to 48 (Translation and Interpretation) of Annex 7 (Rules of Procedure) apply mutatis mutandis.
5. Rules of the Mediation Procedure
1. Within 10 days of the date of appointment of the mediator, the Party having invoked the mediation procedure shall present, in writing, a detailed description of the problem to the mediator and to the other Party, in particular of the operation of the measure at issue and its trade effects. Within 20 days of the date of delivery of that description, the other Party may provide, in writing, its comments to the description of the problem. Either Party may include in its description or comments any information that it deems relevant.
2. The mediator may decide on the most appropriate way of bringing clarity to the measure concerned and its possible trade effects. 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. Before seeking the assistance of, or consulting with, relevant experts and stakeholders, the mediator shall consult with the Parties.
3. The mediator may offer advice and propose a solution for the consideration of the Parties which may accept or reject the proposed solution or may agree on a different solution. The mediator shall not advise or give comments on the consistency of the measure at issue.
4. 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.
5. 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, especially if the measure relates to perishable goods.
6. The solution may be adopted by means of a decision of the Committee. Either Party may make such solution subject to the completion of any necessary internal procedures. Mutually agreed solutions shall be made publicly available. The version disclosed to the public may not contain any information that a Party has designated as confidential.
7. Upon request of the Parties, the mediator shall issue to the Parties, in writing, a draft factual report, providing a brief summary of:
(a) the measure at issue in the mediation procedure;
(b) the procedures followed; and
(c) any mutually agreed solution reached as the final outcome of the mediation procedure, including possible interim solutions.
The mediator shall provide 15 days for the Parties to comment on the draft factual report. After considering the comments of the Parties submitted within that period, the mediator shall issue, in writing, a final factual report to the Parties within 15 days. The factual report shall not include any interpretation of this Agreement. The mediation procedure shall be terminated by:
(a) the adoption of a mutually agreed solution by the Parties, on the date of its adoption;
(b) mutual agreement of the Parties at any stage of the mediation procedure, on the date of that agreement;
(c) 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 that declaration; or
(d) 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.
Section B. IMPLEMENTATION
6. Implementation of a Mutually Agreed Solution
1. Where the Parties have agreed to a solution, each Party shall take the measures necessary to implement the mutually agreed solution within the agreed timeframe.
2. The implementing Party shall inform the other Party in writing of any steps or measures taken to implement the mutually agreed solution.
Section C. GENERAL PROVISIONS
7. Confidentiality and Relationship to Dispute Settlement
1. Unless the Parties agree otherwise, and without prejudice to paragraph 6 of Article 5 (Rules of the Mediation Procedure) of this Annex, all steps of the mediation procedure, including any advice or proposed solution, are confidential. However, either Party may disclose to the public the fact that mediation is taking place.
2. The mediation procedure is without prejudice to the Parties' rights and obligations under Chapter 3 (Dispute Settlement) or any other agreement.
3. Consultations under Chapter 3 (Dispute Settlement) are not required before initiating the mediation procedure. However, a Party should avail itself of the other relevant cooperation or consultation provisions in this Agreement before initiating the mediation procedure.
4. 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 gathered under paragraph 2 of Article 5 (Rules of the Mediation Procedure) of this Annex;
(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.
5. A mediator may not serve as an arbitrator or panellist in dispute settlement proceedings under this Agreement or under the WTO Agreement involving the same matter for which he has been a mediator.
8. Time Limits
Any time limit referred to in this Annex may be modified by mutual agreement between the Parties.
9. Costs
1. Each Party shall bear its own expenses derived from the participation in the mediation procedure.
2. The Parties shall share jointly and equally the expenses derived from organisational matters, including the remuneration and expenses of a mediator. The remuneration of a mediator shall be the same as that provided for the chairperson of an arbitration panel in accordance with Rule 12 of Annex 7 (Rules of Procedure).
ANNEX 10. MEDIATION MECHANISM FOR THE RESOLUTION OF DISPUTES BETWEEN INVESTORS AND PARTIES
1. 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 referred to in Article 3.31 (Mediation).
Section A. PROCEDURE UNDER THE MEDIATION MECHANISM
2. Initiation of the Procedure
1. Either disputing party may request, at any time, the commencement of a mediation procedure. Such request shall be addressed to the other party in writing.
2. Where the request concerns an alleged breach of this Agreement by the authorities of the Union or by the authorities of a Member State of the Union it shall be addressed to the respondent as determined pursuant to Article 3.32 (Notice of Intent to Submit a Claim). If no respondent has been determined, it shall be addressed to the Union. Where the request is accepted, it shall specify whether the Union or the Member State of the Union concerned is a party to the mediation (1).
3. The disputing party to which the request is addressed shall give sympathetic consideration to the request and accept or reject it in writing within 45 days or, where such request is submitted after a request for consultation has been submitted pursuant to Article 3.30 (Consultations), within 30 working days of its receipt.
4. The request shall contain:
(a) a summary of the differences or disputes, including, where appropriate, an identification of relevant legal instruments sufficient to identify the matter giving rise to the request;
(b) the names and contact details of the requesting party and its representatives; and
(c) either a reference to the agreement to mediate or an invitation to the other disputing party or parties to mediate under this mediation mechanism.
3. Selection of the Mediator
1. If both disputing parties agree to a mediation procedure, the disputing parties shall endeavour to agree on the choice of a mediator within 15 working days from the receipt of the reply to the request.
2. If the disputing parties cannot agree on the choice of the mediator within the established time frame, either disputing party may request the President of the Tribunal to draw by lot and appoint a mediator from among the Members of the Tribunal who are neither nationals of a Member State of the Union, nor of Viet Nam.
3. The President of the Tribunal shall appoint the mediator within five working days of the request referred to in paragraph 2.
4. The mediator shall assist, in an impartial and transparent manner, the disputing parties in reaching a mutually agreed solution.
4. Rules of the Mediation Procedure
1. As soon as practicable following the mediator's designation, the mediator shall discuss with the disputing parties, whether in person, by telephone or by any other means of communication:
(a) the conduct of the mediation, in particular any outstanding procedural issues such as the languages and location of the mediation sessions;
(b) a provisional timetable for the conduct of the mediation;
(c) any legal disclosure obligation that may be relevant to the conduct of the mediation;
(d) whether the disputing parties wish to agree in writing not to commence or not to continue any other dispute settlement proceedings relating to the differences or disputes that are subject of the mediation while mediation is pending;
(e) whether special arrangements for the approval of a settlement agreement need to be made; and
(f) the financial arrangements, such as the calculation and payment of the mediator's fees and expenses in accordance with Article 8 (Costs) of this Annex.
2. The mediator may decide on the most appropriate way of bringing clarity to the measure at issue. In particular, the mediator may organise meetings between the disputing parties, consult the disputing parties jointly or individually, seek the assistance of, or consult with, relevant experts and stakeholders and provide any additional support requested by the disputing parties. However, before seeking the assistance of or consulting with relevant experts and stakeholders, the mediator shall consult with the disputing parties.
3. The mediator may offer advice to, and propose a solution for the consideration of, the disputing parties which may accept or reject the proposed solution or may agree on a different solution. However, the mediator shall not advise or give comments on the consistency of the measure at issue with this Agreement.
4. The procedure shall take place in the territory of the Party concerned or, by mutual agreement, in any other location or by any other means.
5. Subject to subparagraph 1(b), the disputing parties shall endeavour to reach a mutually agreed solution within 60 days from the appointment of the mediator. Pending a final agreement, the disputing parties may consider possible interim solutions.
6. Either the Union, a Member State of the Union or Viet Nam, when acting as a party to a mediation procedure, may make publicly available mutually agreed solutions, subject to the redaction of any information designated as confidential or protected.
7. The procedure shall be terminated by:
(a) the adoption of a mutually agreed solution by the disputing parties, on the date of adoption;
(b) a written declaration of the mediator, after consultation with the disputing parties, that further efforts at mediation would be to no avail; or
(c) written notice of a disputing party.
Section B. IMPLEMENTATION
5. Implementation of a Mutually Agreed Solution
1. Where a solution has been agreed, each disputing party shall endeavour to take the measures necessary to implement the mutually agreed solution within the agreed timeframe.
2. The implementing disputing party shall inform the other disputing party in writing of any steps or measures taken to implement the mutually agreed solution.
3. On request of the disputing parties, the mediator shall issue to the disputing parties, in writing, a draft factual report, providing a brief summary of:
(a) the measure at issue in these procedures;
(b) the procedures followed; and
(c) any mutually agreed solution reached as the final outcome of these procedures, including possible interim solutions.
4. The mediator shall provide the disputing parties with 15 working days to comment on the draft factual report. After considering the comments of the disputing parties submitted within that period, the mediator shall submit, in writing, a final factual report to the disputing parties within 15 working days. The factual report shall not include any interpretation of this Agreement.
Section C. GENERAL PROVISIONS
6. Relationship to Dispute Settlement
1. The procedure under this mediation mechanism is not intended to serve as a basis for dispute settlement procedures under this Agreement or any other agreement. A disputing party shall not rely on or introduce as evidence in such dispute settlement procedures, nor shall any adjudicate body take into consideration:
(a) positions taken by a disputing party in the course of the mediation procedure;
(b) the fact that a disputing 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.
2. Subject to any agreement pursuant to subparagraph 1(d) of Article 4 (Rules of the Mediation Procedure) of this Annex, the mediation mechanism is without prejudice to the rights and obligations of the Parties and the disputing parties under Chapter 3 (Dispute Settlement).
3. Unless the disputing parties agree otherwise, and without prejudice to paragraph 6 of Article 4 (Rules of the Mediation Procedure) of this Annex, all steps of the procedure, including any advice or proposed solution, shall be confidential. However, any disputing party may disclose to the public that mediation is taking place.
7. Time Limits
Any time limit referred to in this Annex may be modified by mutual agreement between the disputing parties.
8. Costs
1. Each disputing party shall bear its own expenses derived from the participation in the mediation procedure.
2. The disputing parties shall share jointly and equally the expenses derived from organisational matters, including the remuneration and expenses of the mediator. Remuneration of the mediator shall be in accordance with that provided for the Members of the Tribunal under paragraph 16 of Article 3.38 (Tribunal).
ANNEX 11. CODE OF CONDUCT FOR MEMBERS OF THE TRIBUNAL, MEMBERS OF THE APPEAL TRIBUNAL AND MEDIATORS
1. Definitions
For the purposes of this Code of Conduct:
(a) "Member" means a Member of the Tribunal or a Member of the Appeal Tribunal established pursuant to Section B (Resolution of Disputes between Investors and Parties);
(b) "mediator" means a person who conducts the mediation procedure in accordance with Article 3.31 (Mediation) and Annex 10 (Mediation Mechanism for Disputes between Investors and Parties);
(c) "candidate" means an individual who is under consideration for selection as a Member of the Tribunal or a Member of the Appeal Tribunal;
(d) "assistant" means a person who, under the terms of appointment of a member, assists the member in his research or supports him in his duties;
(e) "staff", in respect of a member, means persons under the direction and control of the member, other than assistants.
2. Responsibilities to the Process
Every candidate and every Member shall avoid impropriety and the appearance of impropriety, shall be independent and impartial and shall avoid direct and indirect conflicts of interest.
3. Disclosure Obligations
1. Prior to their appointment, candidates shall disclose to the Parties any past and present interest, relationship or matter that is likely to affect their independence or impartiality or that might reasonably create an appearance of impropriety or bias. To that end, a candidate shall make all reasonable efforts to become aware of any such interest, relationship or matter.
2. Members shall communicate matters concerning actual or potential violations of this Code of Conduct in writing to the disputing parties.
3. Members shall at all times continue to make all efforts to become aware of any interest, relationship or matter referred to in paragraph 1. Members shall disclose such interests, relationships or matters to the disputing parties. (1)