Article 11.10. Cooperation Committee
1. For the purpose of this Agreement, the Parties hereby establish the Cooperation Committee comprising representatives of each Party.
2. The Cooperation Committee shall be coordinated and co-chaired by:
(a) in the case of Chile, the Ministry of Foreign Affairs through the General Directorate for International Economic Affairs, or its successor; and
(b) in the case of Thailand, the Ministry of Commerce through the Department of Trade Negotiations, or its successor.
3. In order to facilitate the communications and ensure the proper functioning of the Cooperation Committee, the Parties will designate a contact person no later than nine (9) months following the date of entry into force of this Agreement. Each Party will notify the other Party promptly of any change of contact point.
4. The Cooperation Committee shall meet at least once a year unless the Parties otherwise agree. During the first meeting, the Cooperation Committee shall agree its specific terms of reference.
5. The Cooperation Committee's functions shall include:
(a) to determine the fields of cooperation and the cooperative activities;
(b) to oversee the implementation of the strategic collaboration agreed by the Parties;
(c) to encourage the Parties to undertake cooperation activities under this Chapter; and
(d) to maintain updated information regarding any cooperation agreements, arrangements or instruments between the Parties.
6. The Cooperation Committee may agree to establish ad hoc working groups in accordance with the Cooperation Committee's terms of reference.
7. The Cooperation Committee may interact, were appropriate, with the relevant entities to address specific matters.
8. The Cooperation Committee shall report periodically to the Commission the results of its meetings. Consequently, the Commission may formulate recommendations regarding cooperation activities under this Chapter in accordance with the strategic priorities of the Parties.
Article 11.11. Non-application of Dispute Settlement
The dispute settlement procedure provided for in Chapter 14 (Dispute Settlement) shall not apply to this Chapter, with the exception of Article 11.9.
1. The implementation of cooperation under this Chapter shall be subject to the availability of funds and the applicable laws and regulations of each Party.
2. Costs of cooperation under this Chapter shall be borne by the Parties within the limits of their own capacities and through their own channels, in an equitable manner to be mutually agreed by the Parties.
Chapter 12. Transparency
Article 12.1. Definition
For the purposes of this Chapter, administrative ruling of general application means an administrative ruling or interpretation that applies to all persons and factual situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 12.2. Contact Points
1. The contact point referred in Annex 12.2 shall facilitate communications between the Parties on any matter covered by this Agreement.
2. On the request of the other Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communications with the requesting Party.
Article 12.3. Publication
1. Each Party shall ensure, wherever possible in electronic form, that its laws, regulations, procedures and administrative rulings of general application in respect of any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
(a) publish in advance any such laws, regulations, procedures and administrative rulings of general application referred to in paragraph 1 that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article 12.4. Notification and Provision of Information
1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect the other Party's interests under this Agreement.
2. On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure that the requesting Party considers might materially affect the operation of this Agreement or otherwise substantially affect its interests under this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
3. Any notification, request or information under this Article shall be provided to the other Party through the relevant contact points.
4. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article 12.5. Administrative Proceedings
With a view to administering, in a consistent, impartial and reasonable manner, its measures referred to in Article 12.3, each Party shall ensure that in its administrative proceedings in which these measures are applied to particular persons, goods or services of the other Party in specific cases that it:
(a) provides wherever possible, persons of the other Party that are directly affected by a proceeding reasonable notice, in accordance with its domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy;
(b) affords such persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and
(c) follows its procedures in accordance with domestic law.
Article 12.6. Review and Appeal
1. Each Party shall establish or maintain judicial, or administrative tribunals or procedures for the purpose of prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action that is the subject of the decision.
Annex 12.2. Contact Points
For purposes of Article 12.2.1, the Contact Points shall be:
(a) in the case of Chile, the Bilateral Economic Affairs Directorate of the General Directorate of International Economic Affairs, Ministry of Foreign Affairs, or its successor; and
(b) in the case of Thailand, the Department of Trade Negotiations, Ministry of Commerce, or its successor.
Chapter 13. Administration and Institutional Provisions
Article 13.1. Free Trade Commission
1. The Parties hereby establish a Free Trade Commission (hereinafter referred to as "the Commission").
2. The Commission shall be composed of relevant government officials of each Party and shall be co-chaired by:
(a) in the case of Chile, the Director-General of International Economic Affairs of the Ministry of Foreign Affairs for Chile or their respective designee; and
(b) in the case of Thailand, the Director-General of the Department of Trade Negotiations of the Ministry of Commerce for Thailand, or their respective designee.
3. The Commission shall:
(a) review the general functioning of this Agreement;
(b) review, consider and, as appropriate, decide on specific matters relating to the operation, application and implementation of this Agreement, including matters reported by committees or working groups established under this Agreement;
(c) supervise and coordinate the work of committees, working groups and contact points established under this Agreement;
(d) provide assistance in order to resolve disputes that may arise regarding the interpretation, implementation or application of this Agreement; and
(e) take such other action as the Parties may agree.
4. The Commission may:
(a) establish, refer matters and delegate responsibilities to any committee or working group;
(b) consider and adopt any modifications (30) of:
(i) the Schedules attached to Annex 3.4 (Reduction and/or Elimination of Customs Duties), by accelerating tariff elimination; and
(ii) the rules of origin established in Annex 4.2 (Product Specific Rules);
(iii) the Geographical Indications listed in Annex 11.9 (List of Geographical Indications);
(c) issue interpretations of this Agreement; and
(d) seek the opinion of non-governmental persons or groups on matters covered by this Agreement.
Article 13.2. Procedures of the Commission
1. The Commission shall convene at least once a year in regular session. The Commission shall meet alternately in the territory of each Party, unless the Parties otherwise agree.
2. The Commission shall also meet in special session within thirty (30) days of the request of a Party, with such sessions to be held in the territory of the other Party or at such location as may be agreed by the Parties.
3. All decisions of the Commission shall be taken by mutual agreement.
4. The Commission shall establish its rules and procedures at its first meeting.
Chapter 14. Dispute Settlement
Article 14.1. Scope
Except as otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the implementation, interpretation or application of this Agreement, which includes wherever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement; or
(b) the other Party has otherwise failed to carry out its obligations under this Agreement.
Article 14.2. Choice of Forum
1. Where a dispute regarding any matter arises under this Agreement and under another free trade agreement to which both Parties are parties or the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.
2. Once the complaining Party has requested a panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the others.
Article 14.3. Consultations
1. Either Party may request in writing consultations with the other Party concerning any matter on the implementation, interpretation or application of this Agreement, including a matter relating to a measure that the other Party proposes to adopt.
2. The requesting Party shall deliver the request to the other Party, setting out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint, and providing sufficient information to enable an examination of the matter.
3. The Parties shall make every effort to reach a mutually satisfactory resolution through consultations of any matter raised in accordance with this Article.
4. In consultations under this Article, a Party may request the other Party to make available personnel of its government agencies or other regulatory bodies who have expertise in the matter subject to consultations.
5. The consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 14.4. Good Offices, Conciliation and Mediation
1. The Parties may at any time agree to good offices, conciliation or mediation. They may begin and be terminated at any time.
2. Good offices, conciliation or mediation may continue while procedures of an arbitral panel established in accordance with this Chapter are in progress.
Article 14.5. Referral of Matters to the Commission
1. If the consultations fail to resolve the matter within forty (40) days of the delivery of a Party's request for consultations under Article 14.3.2, or twenty (20) days in cases of urgency including those which concern perishable goods, the complaining Party may refer the matter to the Commission by delivering written notification to the other Party. The Commission shall endeavour to resolve the matter.
2. The Commission may:
(a) call on such technical advisers or create such working groups or expert groups as it deems necessary;
(b) have recourse to good offices, conciliation, mediation or such other dispute resolution procedures; or
(c) make recommendations;
As may assist the Parties to reach a mutually satisfactory resolution of the dispute.
Article 14.6. Establishment of Arbitral Panels
1. The complaining Party that requested consultations under Article 14.3 may request in writing the establishment of an arbitral panel, if the Parties fail to resolve the matter within:
(a) forty-five (45) days after the date of receipt of the request for consultation if there is no referral to the Commission under Article 14.5;
(b) thirty (30) days of the Commission convening pursuant to Article 14.5, or fifteen (15) days in cases of urgency, including those which concern perishable goods; or
(c) sixty (60) days after a Party has delivered a request for consultation under Article 14.3, or thirty (30) days in cases of urgency, including those which concern perishable goods, if the Commission has not convened after a referral under Article 14.5.
2. The establishment of an arbitral panel shall not be requested on any matter relating to a proposed measure, as referred to in Article 14.3.1.
3. Any request to establish an arbitral panel pursuant to this Article shall identify:
(a) the specific measure at issue;
(b) the legal basis of the complaint including any provision of this Agreement alleged to have been breached and any other relevant provisions; and
(c) the factual basis for the complaint.
4. The arbitral panel shall be established and perform its functions in a manner consistent with the provisions of this Chapter.
5. The date of the establishment of an arbitral panel shall be the date on which the chair is appointed.
Article 14.7. Composition of Arbitral Panels
1. An arbitral panel shall comprise three panelists.
2. Each Party shall, within forty (40) days after the date of receipt of the request for the establishment of an arbitral panel, appoint one panelist who may be its national and propose up to three candidates to serve as the third panelist who shall be the chair of the arbitral panel. The third panelist shall not be a national of either Party, nor have his or her usual place of residence in either Party, nor be employed by either Party, nor have dealt with the dispute in any capacity.
3. The Parties shall agree on and appoint the third panelist within fifty (50) days after the date of receipt of the request for the establishment of an arbitral panel, taking into account the candidates proposed pursuant to paragraph 2.
4. If a Party has not appointed a panelist pursuant to paragraph 2 or if the Parties fail to agree on and appoint the third panelist pursuant to paragraph 3, the panelist or panelists not yet appointed shall be chosen within seven (7) days by lot from the candidates proposed pursuant to paragraph 2.
5. All panelists shall:
(a) have expertise or experience in law, international trade or other matters covered by this Agreement;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, and not be affiliated with or receive instructions from, the government of either Party; and
(d) comply with a code of conduct to be agreed by the Parties after the entry into force of this Agreement.
6. If a panelist appointed under this Article dies, becomes unable to act or resigns, a successor shall be appointed within twenty (20) days in accordance with the appointment procedure provided for in paragraphs 2, 3 and 4, which shall be applied respectively, mutatis mutandis. The successor shall have all the powers and duties of the original panelist. The work of the arbitral panel shall be suspended for a period beginning on the date the original panelist dies, becomes unable to act or resigns. The work of the arbitral panel shall resume on the date the successor is appointed.
Article 14.8. Functions of Arbitral Panels
1. An arbitral panel established under Article 14.7:
(a) shall make its report in accordance with this Agreement and applicable rule of international law;
(b) shall set out, in its report, its findings of facts and law, together with its reasons therefore; and
(c) may, in addition to its findings of facts and law, include in its report, recommendations for the Parties to consider in implementing the findings.
2. The report of the arbitral panel shall be final and binding on the Parties.
3. The arbitral panel shall attempt to make its decision, including its report, by consensus but may also make such decisions by majority vote.
Article 14.9. Terms of Reference of Arbitral Panels
Unless the Parties otherwise agree within twenty (20) days from the date of receipt of the request for the establishment of the arbitral panel, the terms of reference of the arbitral panel shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitral panel pursuant to Article 14.6, to make findings of facts and law, and determinations on whether the measure is not in conformity with the Agreement together with the reasons therefore, and to issue a written report for the resolution of the dispute. If the Parties agree, the arbitral panel may make recommendations for resolution of the dispute."
Article 14.10. Proceedings of Arbitral Panels
1. The arbitral panel shall meet in closed session. The Parties shall be present at the meetings only when invited by the arbitral panel to appear before it.
2. The deliberations of the arbitral panel and the documents submitted to it shall be kept confidential. Nothing in this Article shall preclude a Party from disclosing to the public statements of its own positions or its submissions, but a Party shall not disclose and treat as confidential, information or written submissions submitted by the other Party to the arbitral panel which the latter Party has designated as confidential. Where a Party has
Provided information or written submissions designed to be confidential, that Party shall provide a non-confidential summary of the information or written submissions which may be disclosed publicly.
3. The arbitral panel should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory settlement of the dispute.
4. The Parties shall transmit to the arbitral panel written submissions in which they present the facts of their cases and their arguments and shall do so within the following time limits:
(a) for the Party which requested the establishment of the arbitral panel, within thirty (30) days of the establishment of that panel; and
(b) for the other Party, within thirty (30) days of the transmission of the written submission of the Party which requested the establishment of the arbitral panel.
5. Each Party's written submissions, including any comments on the draft report made in accordance with Article 14.12.3, written versions of oral statements and responses to questions put by the arbitral panel shall be made available to the other Party.
6. At the request of a Party, or on its own initiative, the arbitral panel may seek information and technical advice from any person or body that it deems appropriate, and subject to such terms and conditions as the Parties may set. The arbitral panel shall provide the Parties with a copy of any advice or opinion obtained and an opportunity to provide comments.
7. The arbitral panel shall, in consultation with the Parties, regulate its own procedures governing the rights of Parties to be heard and its own deliberations where such procedures are not otherwise set out in this Chapter and in Annex 14.10.
8. Any time period or other rules and procedures for arbitral panels provided for in this Chapter, including Annex 14.10, may be modified by mutual consent of the Parties. The Parties may also agree at any time not to apply any provision of this Chapter.
Article 14.11. Suspension or Termination of Proceedings
1. Where the Parties agree, an arbitral panel may suspend its work at any time for a period not exceeding twelve (12) months. In the event of such a suspension, all relevant time-frames set out in this Chapter and in Annex 14.10 shall be extended by the amount of time that the work was suspended. If the work of the arbitral panel has been suspended for more than twelve (12) months, the arbitral panel's authority for considering the dispute shall lapse unless the Parties agree otherwise.
2. The Parties may agree at any time to terminate the proceedings of the arbitral panel established under this Chapter by jointly notifying the chair of that arbitral panel.