4. Duties of Members
1. Members shall perform their duties thoroughly and expeditiously throughout the course of the proceedings and shall do so with fairness and diligence.
2. Members shall consider only those issues raised in the proceedings which are necessary for a ruling and shall not delegate this duty to any other person.
3. Members shall take all appropriate steps to ensure that their assistants and staff are aware of, and comply with, Articles 2, 3, 5 and 7 of this Code of Conduct.
4. Members shall not discuss any aspect of the subject matter of the proceedings with a disputing party or the disputing parties in the absence of the other members of the division of the Tribunal or the Appeal Tribunal.
5. Independence and Impartiality of Members
1. Members shall be independent and impartial and avoid creating an appearance of bias or impropriety and shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party or disputing party or fear of criticism.
2. Members 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 their duties.
3. Members shall not use their position as a member 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 them.
4. Members shall not allow financial, business, professional, family or social relationships or responsibilities to influence their conduct or judgment.
5. Members shall avoid entering into any relationship or acquiring any financial interest that is likely to affect their impartiality or that might reasonably create an appearance of impropriety or bias (1).
6. Obligations of Former Members
1. All former members shall avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decisions or awards of the Tribunal or the Appeal Tribunal.
2. Without prejudice to paragraph 5 of Article 3.38 (Tribunal) and paragraph 9 of Article 3.39 (Appeal Tribunal), members shall undertake that after the end of their term, they shall not become involved in:
(a) investment disputes which were pending before the Tribunal or the Appeal Tribunal before the end of their term;
(b) investment disputes with which they dealt with as members of the Tribunal or the Appeal Tribunal and other disputes that have matters of fact in common with such disputes or arise out of the same events and circumstances as such disputes.
3. Members shall undertake that for a period of three years after the end of their term, they shall not act as representatives of one of the disputing parties in investment disputes before the Tribunal or the Appeal Tribunal.
4. If the President of the Tribunal or of the Appeal Tribunal is informed or otherwise becomes aware that a former Member of the Tribunal or of the Appeal Tribunal, respectively, is alleged to have acted inconsistently with the obligations set up in paragraphs 1 to 3, the President shall examine the matter, provide the opportunity to the former member to be heard, and, after verification, inform thereof:
(a) the professional body or other such institution with which that former Member is affiliated;
(b) the Parties; and
(c) the President of any other relevant investment tribunal or appeal tribunal in view of the initiation of appropriate measures.
The President of the Tribunal or of the Appeal Tribunal shall make public its decision to take any actions referred to in subparagraphs (a) to (c), together with the reasons therefore.
7. Confidentiality
1. Members and former Members shall not disclose or use at any time any non-public information concerning proceedings or acquired during proceedings, except for the purposes of the proceedings, and shall not, in any event, disclose or use such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
2. Members shall not disclose a decision or award or parts thereof prior to its publication in accordance with the transparency provisions of Article 3.36 (Transparency of Proceedings).
3. Members and former Members shall not disclose at any time the deliberations of the Tribunal or the Appeal Tribunal, or any member's views, whatever they may be.
8. Expenses
Each Member shall keep a record and render a final account of the time devoted to the procedure and of the expenses incurred.
9. Mediators
The rules set out in this Code of Conduct as applying to Members or former Members apply, mutatis mutandis, to mediators.
10. Consultative Panel
1. The President of the Tribunal and the President of the Appeal Tribunal shall be assisted by a Consultative Panel for ensuring the proper application of this Code of Conduct, of Article3.40 (Ethics) and for the execution of any other task, where so provided.
2. The Consultative Panel shall be composed of the respective Vice-Presidents and of the two most senior Members of the Tribunal or of the Appeal Tribunal.
ANNEX 12. CONCURRING PROCEEDINGS
1. Notwithstanding paragraph 1 of Article 3.34 (Other Claims), an investor of the EU Party shall not submit to the Tribunal under Section B (Resolution of Disputes between Investors and Parties) of Chapter 3 (Dispute Settlement) a claim that Viet Nam has breached a provision referred to in Article 2.1 (Scope) if the investor has submitted a claim alleging a breach of that same provision referred to in Article 2.1 (Scope) in proceedings before a court or administrative tribunal of Viet Nam or any international arbitration. (1)
2. Notwithstanding paragraphs 2 and 3 of Article 3.34 (Other Claims), in the event that Viet Nam is the respondent, an investor of the EU Party shall not submit a claim to the Tribunal under Section B (Resolution of Disputes between Investors and Parties) of Chapter 3 (Dispute Settlement) that a measure is inconsistent with the provisions of Chapter 2 if any person who directly or indirectly controls or is directly or indirectly controlled by the investor (hereinafter referred to as "related person") has submitted a claim to the Tribunal or any other domestic or international court or tribunal alleging a breach of the same provisions, with respect to the same investment and:
(a) the claim of that related person was addressed by an award, judgment, decision or other settlement; or
(b) the claim of that related person is pending and that person has not withdrawn such pending claim.
3. Claims that do not fall into the scope of paragraph 1 or 2 of this Annex shall be subject to Article 3.34 (Other Claims).
ANNEX 13. WORKING PROCEDURES FOR THE APPEAL TRIBUNAL
The working procedures of the Appeal Tribunal established in accordance with paragraph 10 of Article 3.29 (Appeal Tribunal) shall include and address, inter alia:
(a) practical arrangements relating to the deliberations of the divisions of the Appeal Tribunal and to the communication between the members of the Appeal Tribunal;
(b) arrangements for the service of documents and of supporting documentation, including rules on the correction of clerical errors in such documents;
(c) procedural aspects relating to the temporary suspension of proceedings in the event of death, resignation, incapacity or removal of a member of the Appeal Tribunal from a division or from the Appeal Tribunal;
(d) arrangements for the rectification of clerical errors in decisions of the divisions of the Appeal Tribunal;
(e) arrangements for the joinder of two or more appeals relating to the same provisional award; and
(f) arrangements for the language of the appeal procedure which shall, in principle, be conducted in the same language as the proceedings before the Tribunal which has rendered the provisional award subject to appeal.
2. The working procedures may also include guiding principles with regard to the following aspects which may subsequently be addressed through procedural orders of the divisions of the Appeal Tribunal:
(a) indicative timelines and the sequencing of submissions to and hearings of the divisions of the Appeal Tribunal;
(b) logistical aspects relating to the conduct of the proceedings, such as the places of deliberations and hearings of the divisions of the Appeal Tribunal and the modalities of representation of the disputing parties; and
(c) preliminary procedural consultations and possible pre-hearing conferences between a division and the disputing parties.