5. The presiding arbitrator shall take into consideration that the reasonable period of time shall not exceed six (6) months from the date of the notification of the award pursuant to Article 17.13. However, that period may be shorter or longer, depending on the particular circumstances of the dispute.
6. The chairman of the arbitral tribunal shall determine the period of the reasonable period of time not later than sixty (60) days after the date of receipt of the request pursuant to paragraph 4.
Article 17.17. Compensation and Suspension of Benefits
1. If, after the expiration of the reasonable period of time established pursuant to Article 17.16.3, there is disagreement as to whether the Party complained against has eliminated the nonconformity, or whether the Party complained against has notified the complaining Party that it does not intend to eliminate the nonconformity, the Party complained against shall, at the request of the complaining Party, enter into negotiations with a view to establishing mutually acceptable compensation.
2. Such compensation shall be of a temporary nature and shall be granted until the dispute is settled.
3. If the Parties:
(a) do not agree to compensation in accordance with paragraph 1, within thirty (30) days of the filing of the request for compensation by the complaining Party, or
(b) have reached an agreement on compensation pursuant to this Article and the complaining Party considers that the Party complained against has failed to comply with the terms of the agreement reached, the complaining Party may notify the Party complained against, in writing, of its decision to suspend temporarily the benefits and other equivalent obligations under this Agreement in order to secure compliance with the award.
4. The communication shall specify:
(a) the date on which the suspension is to commence, in accordance with paragraph 6;
(b) the level of benefits or other equivalent obligations it proposes to suspend, and
(c) the limits within which the suspension will apply including which benefits or obligations under this Agreement will be suspended.
5. Suspension of benefits and other obligations shall be temporary, and may be applied only until such time as the nonconformity has been eliminated.
6. The complaining Party may initiate the suspension of benefits thirty (30) days after the later of the date on which:
(a) make the communication in accordance with paragraph 3, or
(b) the arbitral tribunal notifies the award in accordance with Article 17.18.
7. In considering which benefits to suspend pursuant to this Article, the complaining Party shall apply the following principles:
(a) shall first seek to suspend the benefits or other obligations of this Agreement in the same sector or sectors affected by the measure found by the arbitral tribunal to be inconsistent with this Agreement, and
(b) if it considers that it is impracticable or ineffective to suspend benefits or other obligations in the same sector(s), it may suspend benefits or other obligations in other sectors of this Agreement. The communication announcing such a decision shall state the reasons on which the decision is based.
Article 17.18. Review of Compliance and Suspension of Benefits
1. If the Party complained against:
(a) considers that it has eliminated the disagreement found by the arbitral tribunal, or
(b) considers that the level of benefits or other obligations that the complaining Party proposes to suspend is excessive, or the complaining Party has failed to observe the principles of Article 17.17.7,
may, within thirty (30) days from the date of the communication made by the complaining Party pursuant to Article 17.17.4, request that the arbitral tribunal established pursuant to Article 17.5 be reconvened to determine either (a) or (b).
2. The requesting Party shall indicate the specific measures or issues in dispute and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
3. The arbitral tribunal shall be reconstituted within thirty (30) days of receipt of the request and shall notify the Parties of its preliminary report within thirty (30) days thereafter:
(a) within thirty (30) days of its reconstitution to consider the application under paragraph 1(a) or 1(b), or
(b) forty-five (45) days after its reconstitution to consider the application under paragraphs 1(a) and 1(b).
4. The Parties may submit observations on the preliminary report pursuant to Article 17.12.5. The arbitral tribunal may reconsider the preliminary report in accordance with Article 17.12.6.
5. The arbitral tribunal shall notify its award to the Parties within:
(a) within fifteen (15) days after the filing of the preliminary report, in cases where it considers the request under paragraph 1(a) or 1(b), or
(b) within twenty (20) days of the submission of the preliminary report, in cases where it considers the request under paragraphs 1(a) and 1(b).
6. If any of the original arbitrators is unable to be a member of the arbitral tribunal, the provisions of Article 17.8 shall apply.
7. If the arbitral tribunal determines that the level of benefits or other obligations proposed to be suspended is excessive, or that the complaining Party has failed to observe the principles of Article 17.17.7, it shall establish the manner in which the complaining Party may suspend benefits or other obligations. The Party complained against may only suspend benefits or other obligations in a manner consistent with the arbitral tribunal's determination.
8. If the arbitral tribunal determines that the Party complained against has eliminated the non-conformity, the complaining Party may not suspend benefits or other obligations.
Article 17.19. Good Offices, Conciliation and Mediation
1. The Parties may at any time agree to use alternative means of dispute resolution, such as good offices, conciliation or mediation.
2. Either Party may at any time initiate, suspend or terminate the procedures established under this Article.
3. Good offices, conciliation and mediation proceedings are confidential and without prejudice to the rights of the Parties in any other proceedings.
4. The initiation of any of the alternative means of dispute settlement provided for in this Article shall automatically suspend all ongoing proceedings in the dispute, unless the Parties agree otherwise.
Article 17.20. Emergency Cases
1. In cases of urgency, the time limits set out in this Chapter shall be reduced by half, unless otherwise provided for in this Chapter.
2. Without prejudice to the sixty (60) day period provided for in Article 17.12.2, the arbitral tribunal shall apply the ninety (90) day period provided for in that Article where the complaining Party so indicates in the request for the establishment of the arbitral tribunal.
3. For the purposes of this Chapter, cases of urgency shall be understood as disputes relating to perishable goods, which include those goods that decompose rapidly due to their natural characteristics, especially in the absence of adequate storage conditions.
Annex 17.1. RULES OF PROCEDURE OF ARBITRAL TRIBUNALS
Application
1. These Rules of Procedure for Arbitral Tribunals (hereinafter referred to as "Rules") are established pursuant to Article 17.11. Unless the Parties agree otherwise, these Rules shall apply to arbitral proceedings under this Chapter.
2. Any reference in these Rules to an Article, Annex or Chapter shall be a reference to an Article, Annex or Chapter of this Agreement. Definitions
3. For the purposes of these Rules:
non-business day means any Saturday, Sunday, public holiday or any other day established by a Party as a non-business day and notified as such under Rule 14;
document means any submission or writing, in paper or electronic form, filed or delivered in the course of arbitral proceedings;
date of delivery means the date on which a document is received by the addressee on the basis of a reliable record of receipt;
Respondent means the party against which a dispute is brought and against which the establishment of an arbitral tribunal is requested under Article 17.5;
claimant: a party making a claim and making a request for the establishment of an arbitral tribunal under Article 17.5;
representative of a Party means the person appointed by that Party to act on its behalf in the arbitration proceeding;
arbitral tribunal means the arbitral tribunal established in accordance with Article 17.5;
permanent unit means the office that each Party designates pursuant to Rule 62 to provide administrative support to an arbitral tribunal, and
responsible unit means the unit of the respondent responsible for carrying out the functions referred to in Rule 61.
Terms of Reference
4. Within fifteen (15) days from the date of delivery of the request for the establishment of the arbitral tribunal, the Parties may agree on terms of reference other than those set out in Article 17.6, which shall be communicated to the responsible unit within that period.
5. The responsible unit shall inform the arbitral tribunal and the Parties of the agreed terms of reference within two (2) days from the date of acceptance of the last arbitrator appointed.
Presentation and Delivery of Documents
6. The Parties, through their permanent units, or the arbitral tribunal, shall deliver any documents to the responsible unit, which shall forward them to the arbitral tribunal and to the permanent units of the Parties.
7. No document shall be deemed to be delivered to the arbitral tribunal or to the Parties unless it is delivered in accordance with the foregoing Rule.
8. Any document shall be delivered to the responsible unit by any physical or electronic means of transmission that provides a record of the sending or receipt of the document. In the case of delivery of a physical document, an original and copies for each arbitrator and for the other Party shall be submitted to the responsible unit. The responsible unit shall acknowledge receipt and deliver such document by the most expeditious means possible to the arbitral tribunal and to the permanent unit of the other Party.
9. Minor errors of form contained in any document may only be corrected by the Parties by delivery of a document clearly indicating such errors and the corresponding rectification, within seven (7) days from the date of delivery of the document containing such errors. Such corrections shall not affect the time limits set forth in the timetable for the arbitration proceedings referred to in Rule 10.
10. No later than ten (10) days after the date of acceptance of the last arbitrator appointed, the arbitral tribunal, in consultation with the parties to the dispute, shall establish a working timetable containing the maximum time limits and dates by which submissions must be made and hearings conducted in the arbitral proceedings. The timetable shall allow sufficient time for the Parties to complete all stages of the proceedings. The arbitral tribunal may modify the timetable, after consultation with the Parties, and shall notify the Parties, by the most expeditious means possible, of any modification to the timetable.
11. The Complainant shall serve its Initial Brief not less than two (2) days after the establishment of the work schedule referred to in Rule 10. The Respondent shall serve its Response not less than twenty-eight (28) days after the date of service of the Initial Brief.
12. Any delivery to a permanent unit under these Rules will be made during its normal business hours.
13. If the last day for delivery of a document to a permanent unit or the responsible unit falls on a non-business day in that Party, or on any other day on which such units are closed, the document may be delivered on the next business day.
14. Each Party shall provide the responsible unit with a list of the non-business days in that Party, as well as the normal business hours of its permanent units, no later than ten (10) days after the date of acceptance of the last arbitrator appointed.
Treatment of Confidential Information
15. Where a Party wishes to designate specific information as confidential, it shall mark such information in double square brackets, include a cover page that clearly states that the document contains confidential information, and identify the corresponding pages with the legend "CONFIDENTIAL".
16. Pursuant to Article 17.11.4, where a Party submits to the arbitral tribunal a document containing information designated as confidential, it shall, at the request of the other party to the dispute, provide a non-confidential summary thereof within thirty (30) days of the request.
17. During and even after the arbitral proceedings, the Parties, their representatives, the arbitrators or any other person who has participated in the arbitral proceedings shall keep confidential the information qualified as such, as well as the deliberations of the arbitral tribunal, the preliminary report and the observations thereon.
18. The responsible unit shall take such reasonable measures as may be necessary to ensure that experts, stenographers and other persons involved in arbitral proceedings safeguard the confidentiality of information qualified as such.
Functioning of the Arbitral Tribunals
19. Once the appointment of an arbitrator has been made in accordance with Article 17.8, the responsible unit shall communicate this to the arbitrator by the most expeditious means possible. A copy of the Code of Conduct and an affidavit of confidentiality and compliance with the Code of Conduct shall be sent to each appointed arbitrator, whether an incumbent or an alternate, with the communication. Each arbitrator shall have three (3) days to communicate his or her acceptance, in which case he or she shall return the duly signed affidavit to the responsible unit. If the appointed arbitrator does not communicate his acceptance in writing to the responsible unit within the specified time limit, it shall be understood that he does not accept the position.
20. The responsible unit shall inform the parties, by the most expeditious means possible, of the response of each appointed arbitrator or of the fact that no response has been received. Once the three arbitrators appointed as the incumbent arbitrators have communicated their acceptance, the responsible unit shall communicate this, by the most expeditious means possible, to the parties to the dispute.
Challenge of Arbitrators
21. Pursuant to Article 17.8.6, a Party may challenge, with cause, an arbitrator or a prospective arbitrator if it considers that the arbitrator or prospective arbitrator does not meet the qualifications set out in Article 17.7.
21.1. Request for challenge of an arbitrator or alternate arbitrator appointed by a Party:
(a) Any Party that becomes aware of an alleged violation or breach by the arbitrator or alternate arbitrator appointed by the other Party of the requirements for appointment as arbitrator or of the obligations set forth in the Code of Conduct and in Article 17.7.1 may request his or her challenge. The challenge request shall be reasoned and notified in writing to the other Party, to the challenged arbitrator and to the arbitral tribunal within fifteen (15) days after the appointment of the arbitrator or after the fact giving rise to the challenge request has come to the knowledge of the other Party.
(b) The Parties shall attempt to reach an agreement on the challenge within fifteen (15) days following the notification of the request. The arbitrator may, after the challenge has been raised, resign from his or her function, without this implying acceptance of the validity of the reasons for the challenge.
(c) If the Parties are unable to reach an agreement or if the challenged arbitrator does not withdraw, the request for a challenge shall be decided by the chairman of the arbitral tribunal within fifteen (15) days after the expiration of the time limit set forth in (b). In the event that the chairman of the arbitral tribunal has not accepted his designation by the date of expiration of the time limit set forth in (b), the challenge shall be submitted once the chairman of the arbitral tribunal has accepted his designation.
(d) If, pursuant to paragraph (b) or (c), the request for disqualification of the original arbitrator is granted or the original arbitrator withdraws, the substitute arbitrator appointed pursuant to Article 17.8 shall act as the original arbitrator. If the challenge concerns an incumbent arbitrator who was an alternate arbitrator, a successful challenge shall entitle the Party that appointed the incumbent arbitrator to appoint a new incumbent arbitrator in accordance with Article 17.8.
21.2. Disqualification of the chairman of the arbitral tribunal:
(a) Any Party that becomes aware of an alleged violation or breach by the chairman of the arbitral tribunal of the requirements for appointment as chairman of the arbitral tribunal or of the obligations set forth in the Code of Conduct and Article 17.7.1 may request the removal of the chairman of the arbitral tribunal. The request for disqualification shall be reasoned and notified in writing to the other Party, the chairman of the arbitral tribunal and the arbitral tribunal within fifteen (15) days after the appointment, drawing of lots or knowledge of the fact giving rise to the request for disqualification.
(b) The Parties shall attempt to reach an agreement on the request for a challenge of the chairman of the arbitral tribunal within fifteen (15) days after the notification of the challenge. The chairman of the arbitral tribunal may, after the challenge has been raised, resign from his or her position, without this implying acceptance of the validity of the reasons for the challenge.
(c) If it is not possible to reach agreement or if the challenged arbitrator does not withdraw, the request for challenge shall prevail and the alternate arbitrator shall take the place of the challenged arbitrator. Each Party may make a single request for a challenge of the chairman of the arbitral tribunal. However, a request for a challenge of the presiding arbitrator in which the presiding arbitrator has resigned pursuant to subparagraph (b) shall not be counted as a request for a challenge for purposes of this subsection.
22. The time limits provided for in this Chapter and in these Rules, which are counted from the appointment of the last arbitrator, shall start to run from the date on which the last arbitrator accepted his appointment.
23. The chairman of the arbitral tribunal shall preside at all its meetings. The arbitral tribunal may delegate to its chairman the power to take administrative and procedural decisions.
24. The arbitral tribunal shall conduct its proceedings in person or by any technological means.
25. Only the arbitrators may participate in the deliberations of the arbitral tribunal, unless, after prior notice to the Parties, the arbitral tribunal requires the presence of their assistants and, if necessary, interpreters during such deliberations.
26. For procedural matters not covered by these Rules, the arbitral tribunal, in consultation with the Parties, may establish supplementary rules of procedure, provided that they do not conflict with the provisions of this Agreement and these Rules. When such procedure is adopted, the presiding arbitrator shall immediately notify the Parties.
Hearings
27. The presiding arbitrator shall fix the place, date and time of the hearings, in consultation with the Parties, subject to Rule 10. The dates of the hearings shall be fixed after the Parties have filed their initial and counter-submissions, respectively, or the time limits for such submissions have expired. The responsible unit shall notify the Parties, by the most expeditious means possible, of the place, dates and time of the hearings.
28. Unless otherwise agreed by the Parties, hearings shall be held in the capital of the tespondent.
29. When it considers it necessary, the arbitral tribunal may, with the agreement of the Parties, convene additional hearings.
30. All arbitrators must be present at the hearings, otherwise they cannot be held. The hearings shall be held in person in accordance with Rule 28. However, the arbitral tribunal may, with the consent of the Parties, agree that the hearings may be held by any other means.
31. All hearings shall be closed to the public. Notwithstanding the foregoing, when one of the Parties for justified reasons so requests, and with the agreement of the other Party, such hearings may be open, except when information designated as confidential by one of the Parties is being discussed. Unless otherwise agreed by the Parties, the presence of the public at the hearings of the arbitral tribunal shall be by means of simultaneous transmission by closed-circuit television or any other technological means.
32. A Party wishing to present confidential information during a hearing shall so advise the responsible unit at least ten (10) days prior to the hearing. The responsible unit shall take the necessary measures to ensure that the hearing is conducted in accordance with Rule 31.
33. Unless the Parties agree that the hearings shall be open, the hearings may only be attended by, and shall in all circumstances exclude, any person who could reasonably be expected to benefit from access to confidential information:
(a) representatives of the parties to the dispute, officials and advisers designated by them, and
(b) referee's assistants and interpreters, if required.
34. The Parties may object to the presence of any of the persons referred to in Rule 33 no later than two (2) days prior to the hearing, stating the reasons for such objection. The objection shall be decided by the arbitral tribunal prior to the commencement of the hearing.
35. No later than five (5) days before the date of the hearing, each Party shall submit to the responsible unit a list of the persons who will attend the hearing as representatives and other members of its delegation.
36. The hearings shall be conducted by the presiding arbitrator, who shall ensure that the Parties are given equal time to present their oral arguments.
37. The hearing will be conducted in the following order:
(a) Pleadings
(i) the applicant's pleading, and
(ii) Defendant's pleading.
(b) Replicas and rejoinders
(i) the applicant's reply, and
(ii) rejoinder of the defendant.
38. The arbitral tribunal may put questions to any Party at any time during the hearings.
39. The responsible unit shall take the necessary measures to keep a system for recording oral proceedings. Such record shall be made by any means, including transcription, that ensures the preservation and reproduction of its contents. At the request of either party or the arbitral tribunal, the responsible unit shall provide a copy of the record. In the case of a hearing closed to the public, such record may be requested only by the Parties or the arbitral tribunal.
Complementary Documents
40. The arbitral tribunal may, at any time during the proceedings, put questions in writing to any Party and shall determine the period of time within which it shall deliver its answers.
41. Each Party shall be given an opportunity to comment in writing on the answers referred to in Rule 40 within such period of time as the arbitral tribunal may prescribe.
42. Notwithstanding the provisions of Rule 10, within ten (10) days after the date of the conclusion of the hearing, the Parties may submit supplemental written submissions regarding any matter that arose during the hearing.
Burden of Proof with Respect to Incompatible Measures and Exceptions
43. A complaining party that considers that a measure of the responding party is inconsistent with the obligations under the Agreement, or that the responding party has otherwise failed to comply with the obligations under the Agreement, shall have the burden of proving such inconsistency or failure, as the case may be.
44. Where the defending party considers that a measure is justified by an exception under the Agreement, it shall have the burden of proving it.
45. The Parties shall offer or submit evidence with the initial and rebuttal submissions in support of the arguments made in those submissions. The Parties may also submit additional evidence in connection with their rebuttal and rejoinder submissions.
Ex Parte Contacts
46. The arbitral tribunal shall not meet or contact a Party in the absence of the other Party.
47. No arbitrator may discuss any matter relating to the arbitration proceedings with a Party in the absence of the other arbitrators and the other Party.
48. In the absence of the Parties, an arbitral tribunal may not meet or have discussions concerning the subject matter of the arbitral proceedings with a person or entity that provides information or technical advice.
Information and Technical Advice
49. The arbitral tribunal may not request information or technical advice pursuant to Article 22.11.5, whether at the request of a Party or on its own initiative, after ten (10) days from the date of the hearing, unless the Parties agree otherwise.
50. Within five (5) days after the date on which the arbitral tribunal decides to request information or technical advice, and after consulting with the Parties, it shall select the person or entity that will provide the information or technical advice.
51. The arbitral tribunal shall select experts or advisors strictly on the basis of their expertise, objectivity, impartiality, independence, reliability and sound judgment.
52. The arbitral tribunal may not select as an expert or advisor a person who has, or whose employers, partners, associates or relatives have, a financial, personal or other interest which may affect his or her independence and impartiality in the proceedings.
53. The arbitral tribunal shall deliver a copy of its request for information or technical advice to the responsible unit, which in turn shall deliver it by the most expeditious means possible to the Parties and to the persons or entities that are to provide the information or technical advice.
54. The persons or entities shall deliver the information or technical advice to the responsible unit within the time period established by the arbitral tribunal, which in no event shall exceed ten (10) days from the date of receipt of the arbitral tribunal's request. The responsible unit shall deliver to the Parties and to the arbitral tribunal, by the most expeditious means possible, the information provided by the experts or technical advisors.
55. Any Party may submit comments on the information provided by the experts or technical advisors within five (5) days from the date of delivery. Such comments shall be submitted to the responsible unit, which shall, no later than the following day, deliver them to the Party and to the arbitral tribunal.
56. Where a request for information or technical advice is made, the parties may agree to suspend the arbitral proceedings for a period of time to be determined by the arbitral tribunal in consultation with the parties to the dispute.
Computation of Deadlines
57. All time limits set forth in this Chapter, in these Rules or by the arbitral tribunal shall be calculated from the day after the notice, request or document relating to the arbitral proceedings has been received.
58. In the event that any action is required to be taken, before or after a date or event, the day of that date or event shall not be included in the computation of the time limit.
59. Where the period begins or expires on a non-business day, the provisions of Rule 13 shall apply.
60. All time limits set forth in this Chapter and these Rules may be modified by mutual agreement of the Parties.
Responsible Unit
61. The responsible unit shall have the following functions:
(a) provide administrative assistance to the arbitral tribunal, the arbitrators and their assistants, interpreters, translators, persons or entities selected by the arbitral tribunal to provide information or technical advice and other persons involved in the arbitral proceedings;
(b) make available to the arbitrators, upon acceptance of their appointment, documents relevant to the arbitral proceedings;
(c) keep a copy of the complete file of each arbitration proceeding;
(d) inform the Parties of the amount of costs and other expenses associated with the arbitral proceedings that each Party will bear; and
(e) Theorganizing the logistical issues relating to the hearings