Article 14.12. Report
1. The report of the arbitral panel shall be drafted without the presence of the Parties. The arbitral panel shall base its report on the relevant provisions of this Agreement and the submissions and arguments of the Parties, and may take into account any other relevant information provided to the arbitral panel.
2. The arbitral panel shall, within one hundred and twenty (120) days, or within sixty (60) days in cases of urgency, including those which concern perishable goods, after the date of its establishment, submit to the Parties its draft report.
3. The draft report shall contain both the descriptive part summarising the submissions and arguments of the Parties, and the findings and determinations of the arbitral panel. If the Parties agree, the arbitral panel may make recommendations for resolution of the dispute in its report. The findings and determinations of the arbitral panel and, if applicable, any recommendations cannot add to or diminish the rights and obligations of the Parties provided in this Agreement.
4. When the arbitral panel considers that it cannot submit its draft report within the aforementioned one hundred and twenty (120) or sixty (60) day period, it may extend that period with the consent of the Parties.
5. A Party may provide written comments to the arbitral panel on its draft report within fifteen (15) days after the date of submission of the draft report.
6. After considering any written comments on the draft report, the arbitral panel may reconsider its draft report and make any further examination it considers appropriate.
7. The arbitral panel shall issue its final report, within thirty (30) days after the date of submission of the draft report. The report shall include any separate opinions on matters not unanimously agreed, not disclosing which panelists are associated with majority or minority opinions.
8. The final report of the arbitral panel shall be available to the public within fifteen (15) days after the date of issuance, subject to the requirement to protect confidential information.
Article 14.13. Implementation of the Report
1. Unless the Parties agree otherwise, the Party complained against shall eliminate the non-conformity as determined in the report of the arbitral panel immediately, or if this is not practicable, within a reasonable period of time.
2. The Parties shall continue to consult at all times on the possible development of a mutually satisfactory resolution.
3. The reasonable period of time referred to in paragraph 1 shall be mutually determined by the Parties. Where the Parties fail to agree on the reasonable period of time within forty five (45) days after the date of issuance of the report of the arbitral panel referred to in Article 14.12, either Party may refer the matter to an arbitral panel as provided for in Article 14.14.7, which shall determine the reasonable period of time.
4. Where there is disagreement between the Parties as to whether the Party
Complained against eliminated the non-conformity, as determined in the report of the arbitral panel, within the reasonable period of time as determined pursuant to paragraph 3, either Party may refer the matter to an arbitral panel as provided for in Article 14.14.7.
Article 14.14. Non-Implementation - Compensation and Suspension of Concessions or other Obligations
1. If the Party complained against notifies the complaining Party that it is impracticable, or the arbitral panel to which the matter is referred pursuant to Article 14.13.4 confirms that the Party complained against has failed to eliminate the nonconformity as determined in the report of the arbitral panel within the reasonable period of time as determined pursuant to Article 14.13.3, the Party complained against shall, if so requested, enter into negotiations with the complaining Party with a view to reaching mutually satisfactory compensation.
2. If there is no agreement on satisfactory compensation within twenty (20) days after the date of receipt of the request mentioned in paragraph 1, the complaining Party may suspend the application to the Party complained against of concessions or other obligations under this Agreement, after giving notification of such suspension thirty (30) days in advance. Such notification may only be given twenty (20) days after the date of receipt of the request mentioned in paragraph 1.
3. The compensation referred to in paragraph 1 and the suspension referred to in paragraph 2 shall be temporary measures. Neither compensation nor suspension is preferred to full elimination of the non-conformity as determined in the report of the arbitral panel. The suspension shall only be applied until such time as the non-conformity is fully eliminated or a mutually satisfactory solution is reached.
4. In considering what concessions or other obligations to suspend pursuant to paragraph 2:
(a) the complaining Party should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which the report of the arbitral panel referred to in Article 14.12 has found a failure to comply with the obligations under this Agreement; and
(b) if the complaining Party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may suspend concessions or other obligations with respect to other sectors. The notification of such suspension pursuant to paragraph 2 shall indicate the reasons on which it is based.
5. The level of suspension referred to in paragraph 2 shall be equivalent to the level of the nullification or impairment.
6. If the Party complained against considers that the requirements for the suspension of concessions or other obligations by the complaining Party set out in paragraph 2, 3, 4 or 5 have not been met, it may refer the matter to an arbitral panel.
7. The arbitral panel that is established for the purposes of this Article or Article 14.13 shall have, wherever possible, as its panelists, the panelists of the original arbitral panel. If this is not possible, then the panelists to the arbitral panel that is established for the purposes of this Article or Article 14.13 shall be appointed pursuant to Article 14.7. The arbitral panel established under this Article or Article 14.13 shall issue its report within sixty (60) days after the date when the matter is referred to it. When the arbitral panel considers that it cannot issue its report within the aforementioned sixty (60) day period, it may extend that period for a maximum of thirty (30) days with the consent of the Parties. The report shall be available to the public within fifteen (15) days after the date of issuance, subject to the requirement to protect confidential information. The report shall be final and binding on the Parties.
Annex 14.10. Rules of Procedure for Arbitral Panels
General Provisions
1. For the purposes of this Chapter:
Arbitral panel means an arbitral panel established pursuant to Article 14.6;
Complaining Party means Party that requests the establishment of an arbitral panel under Article 14.6;
Disputing Party means the Party to the dispute; and
Responding Party means a Party that has been complained against pursuant to Article 14.6.
Notifications
2. Any request, notice, written submissions or other documents shall be delivered by a Party or the arbitral panel by delivery against receipt, registered post, courier, facsimile transmission, telex, telegram or any other means of telecommunication that provide a record of the sending thereof.
3. A disputing Party shall provide a copy of each of its written submissions to the other disputing Party and to each of the arbitrators. The disputing Parties shall also make available to the arbitral panel a written version of their oral statements. A copy of the document shall also be provided in electronic format.
4. All notifications shall be made and delivered to the disputing Parties.
5. Minor errors of a clerical nature in any request, notice, written submission or other documents related to the arbitral panel proceeding may be corrected by delivery of a new document clearly indicating the changes.
6. If the last day for delivery of a document falls on a public holiday of a disputing Party, the document may be delivered on the next business day.
Commencing the Arbitration
7. Unless the disputing Parties otherwise agree, they shall consult with the arbitral panel within ten (10) days following the composition of the arbitral panel in order to determine such matters that the disputing Parties or the arbitral panel deem appropriate, including the remuneration and expenses that shall be paid to the chair of the arbitral panel, which normally shall conform to the WTO standards.
Initial Submissions
8. Unless the Parties otherwise agree, the complaining Party shall deliver its initial written submission no later than thirty (30) days after the composition of the arbitral panel.
The responding Party shall deliver its written counter-submission no later than thirty (30) days after the date of receipt of the initial written submission.
Operation of Arbitral Panels
9. The chair of the arbitral panel shall preside at all of its meetings.
10. Except as otherwise provided in this Annex, the arbitral panel may conduct its activities by any means, including telephone, facsimile transmissions or computer links.
11. Only arbitrators may take part in the deliberations of the arbitral panel.
12. The drafting of any decision and ruling shall remain the exclusive responsibility of the arbitral panel.
13. Where a procedural question arises that is not covered by this Annex, an arbitral panel may adopt an appropriate procedure that is not inconsistent with this Agreement.
14. When the arbitral panel considers that there is a need to modify any time period applicable in the proceeding, or to make any other procedural or administrative adjustment in the proceeding, it shall consult and inform the disputing Parties in writing of the reasons for the modification or adjustment with the indication of the period or adjustment needed.
Hearings
15. The chair shall fix the date and time of the hearing in consultation with the disputing Parties and the other members of the arbitral panel. The chair shall notify in writing to the disputing Parties the date, time and location of the hearing. The arbitral panel may decide not to convene a hearing, unless either of the disputing Parties disagrees.
16. Unless the disputing Parties otherwise agree, the hearing shall be held in the responding Party's territory. The responding Party shall be in charge of the logistical administration of dispute settlement proceedings, in particular the organization of hearings, unless otherwise agreed. If additional hearings are necessary, the disputing Parties shall agree on its venue and logistical administration.
17. The arbitral panel may convene additional hearings if the Parties so agree.
18. All arbitrators shall be present at all hearings. Nonetheless, the arbitral panel may agree to delegate to the Chair the authority to make administrative and procedural decisions.
19. No later than five (5) days before the date of a hearing, each disputing Party shall deliver a list of names of representatives or advisers who will be attending the hearing.
20. The hearings of the arbitral panel shall be held in closed session, unless the Disputing Parties decide otherwise. If the disputing Parties decide that the hearing is open to the public, part of the hearing may, however, be held in closed session, should the arbitral panel, upon request by the disputing Parties, so decides for reasons of confidentiality. In particular, the arbitral panel shall meet in closed sessions when the submissions and arguments of a disputing Party contain confidential business information. If the hearing is open to the public, the date, time and location of the hearing shall also be made publicly available by the disputing Party in charge of the logistical administration of the proceeding.
21. The arbitral panel shall conduct the hearing in the following manner: arguments of the complaining Party; arguments of the responding Party; rebuttal arguments of the disputing Parties; the reply of the complaining Party; and the counter-reply of the responding Party. The chair may set time limits for oral arguments to ensure that each disputing Party are afforded equal time.
22. The arbitral panel may direct questions to any disputing Party at any time during a hearing.
23. Within fifteen (15) days after the date of the hearing, each disputing Party may deliver a supplementary written submission responding to any matter that arose during the hearing unless the arbitral panel, by agreement of the Parties, set the deadline otherwise.
Questions in Writing
24. The arbitral panel may at any time during the proceedings address questions in writing to any disputing Party. The arbitral panel shall deliver the written questions to the disputing Party to whom the questions are addressed.
25. A disputing Party to whom the arbitral panel addresses written questions shall deliver a copy of any written reply to the other disputing Party and to the arbitral panel. Each disputing Party shall be given the opportunity to provide written comments on the reply within ten (10) days after the date of receipt, unless the arbitral panel, by agreement of the Parties, set the deadline otherwise.
Confidentiality
26. The disputing Parties shall maintain the confidentiality of the arbitral panel's hearings, to the extent that the arbitral panel holds the hearing in closed session under rule 20.
27. Each disputing Party shall treat as confidential any information submitted by the other disputing Party to the arbitral panel which that Party has designated as confidential. Where a Party to a dispute submits a confidential version of its written submissions to the arbitral panel, it shall also, upon request of the other disputing Party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public, no later than fifteen (15) days after the hearing, whichever is later. Nothing in these rules shall preclude a disputing Party from disclosing statements of its own positions to the public.
Ex parte Contacts
28. The arbitral panel shall not meet or contact a disputing Party in the absence of the other disputing Party.
29. No disputing Party may contact any panelist in relation to the dispute in the absence of the other disputing Party or the other panelists.
30. No arbitrator may discuss an aspect of the subject matter of the proceeding with a disputing Party in the absence of the other panelists.
Role of Experts
31. Upon request of a disputing Party or on its own initiative, the arbitral panel may obtain information and technical advice from any person or body that it deems appropriate. Any information so obtained shall be submitted to the Parties for comments.
32. When a request is made for a written report of an expert, any time period applicable to the arbitral panel proceeding shall be suspended for a period beginning on the date of delivery of the request and ending on the date the report is delivered to the arbitral panel.
Amicus curiae Submissions
33. The arbitral panel shall have the authority to accept and consider amicus curiae submissions from any persons and entities in the territories of the disputing Parties.
34. Any such submissions shall fulfill the following requirements: be made within ten (10) days following the composition of the arbitral panel; are concise and in no case longer than fifteen (15) typed pages, including any annexes; and are directly relevant to the factual and legal issues under consideration by the arbitral panel.
35. The submission shall contain a description of the person, whether natural or juridical, making the submission, including the nature of its activities and the source of its financing, and specify the nature of the interest that that person has in the arbitration proceeding.
36. The arbitral panel shall list in its ruling all the submissions that it has received and that conform to the provisions of the above rules.
Cases of Urgency
37. In cases of urgency referred to in Article 14.3, the arbitral panel shall appropriately adjust the time periods mentioned in this Annex.
Translation and Interpretation
38. The working language of the dispute settlement proceedings shall be English.
39. Written submissions, documents, oral arguments or presentations at the hearings, initial and final reports of the arbitral panel, as well as all other written or oral communications between the disputing Parties and the arbitral panel, shall be conducted in the working language.
40. The costs incurred to prepare a translation of an arbitral panel ruling shall be borne equally by the Parties.
41. Any Party may provide comments on a translated version of a document that is prepared in accordance with this Annex.
Computation of Time
42. Where anything under this Agreement or this Annex is to be done, or the arbitral panel requires anything to be done, within a number of days after, before or of a specified date or event, the specified date or the date on which the specified event occurs shall not be included in calculating that number of days.
43. Where, by reason of the operation of rule 6, a Party receives a document on a date other than the date on which the same document is received by the other Party, any period of time the calculation of which is dependent on such receipt shall be calculated from the date of receipt of the last such document.
Expenses
44. Each Party shall bear the costs of its appointed panelist and its own expenses. The costs of the chair of an arbitral panel and other expenses associated with the conduct of its proceedings shall be borne in equal parts by the Parties.
Chapter 15. Exceptions
Article 15.1. General Exceptions
1. For the purposes of Chapters 3 to 7 (Trade in Goods, Rules of Origin, Customs Administration, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX (b) of GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX (g) of GATT 1994 applies to measures relating to the conservation of living and nonliving exhaustible natural resources.
2. For the purposes of Chapters 9 (Trade in Services), Article XIV of GATS, including its footnotes, is incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV (b) of GATS include environmental measures necessary to protect human, animal, or plant life or health.
3. Nothing in this Agreement shall be construed to prevent a Party from taking action authorised by the WTO Dispute Settlement Body. This is referring to a suspension of concession. A Party taking such action shall inform the Commission to the fullest extent possible of measures taken and of their termination.
Article 15.2. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment; or
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. A Party taking action under paragraphs 1(b) and (c) shall inform the Commission to the fullest extent possible of measures taken and of their termination.
Article 15.3. Taxation
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention or other arrangement on taxation in force between the Parties. In the event of any inconsistency relating to a taxation measure between this Agreement and any such convention or other arrangement on taxation, the latter shall prevail to the extent of the inconsistency.
3. Any consultations between the Parties about whether an inconsistency relates to a taxation measure shall be referred to the designated authorities of the Parties. The designated authorities shall consider the issue and decide whether the tax convention or arrangement prevails. If within twelve (12) months of the referral of the issue to the designated authorities, they decide with respect to the measure that gives rise to the issue that the tax convention or arrangement prevails, no procedures concerning that measure may be initiated under Chapter 14 (Dispute Settlement). Neither may such procedures be initiated during the period the issue is under consideration by the designated authorities.
4. Article 3.3 (National Treatment) and other provisions of such Chapter as are necessary to give effect to that Article shall apply to taxation measures to the same extent as covered by GATT 1994.
5. Articles 9.4 (National Treatment) and 10.4 (National Treatment) shall apply to taxation measures to the same extent as covered by GATS.
6. For the purposes of this Article, taxation measure means any measure relating to direct or indirect taxes, but does not include:
(a) a customs duty; or
(b) the measures listed in paragraphs (b) and (c) of the definition of customs duties in Article 2.1.
7. For the purposes of paragraph 2, designated authority means:
(a) in the case of Chile, the Director del Servicio de Impuestos Internos, Ministerio de Hacienda, or an authorised representative of the Ministro de Hacienda; and
(b) in the case of Thailand, the Fiscal Policy Office, Ministry of Finance, or authorised representatives of the Ministry of Finance.
Article 15.4. Temporary Measures
1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining temporary restrictive measures with regard to trade in goods and services and with regard to payments and capital movements:
(a) in the event of serious balance of payments or external financial difficulties or threat thereof; or
(b) where, in exceptional circumstances, payments and capital movements cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary policy or exchange rate policy in either Party.
2. Measures referred to in paragraph 1 shall:
(a) be in accordance with the rights and obligations established in the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund (IMF), as applicable;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances set out in paragraph 1;
(d) be temporary and be phased out or eliminated as soon as situation specified in paragraph 1 improves; and
(e) be non-discriminatory.
3. Nothing in this Agreement shall be regarded to affect the rights enjoyed and obligations undertaken by a Party as a party to the Articles of Agreement of the IMF.
4. A Party shall publish or notify to the other Party of any restrictions adopted or maintained under paragraph 1, or any changes therein, to the extent that it does not duplicate the process under the WTO and the IMF.
Article 15.5. Confidentiality and Disclosure of Information
1. Unless otherwise provided in this Agreement, each Party shall, in accordance with its laws and regulations, maintain the confidentiality of information designated as confidential by the other Party pursuant to this Agreement.
2. Nothing in this Agreement shall be construed as requiring a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular juridical persons, whether public or private.
Chapter 16. Final Provisions
Article 16.1. Annexes and Footnotes
The Annexes and footnotes to this Agreement constitute an integral part of this Agreement.
Article 16.2. Amendments
1. The Parties may agree, in writing, on any modification of or addition to this Agreement.
2. When so agreed, and approved in accordance with the necessary domestic legal procedures of each Party, a modification or addition shall constitute an integral part of this Agreement. Such amendment shall enter into force sixty (60) days after the date of the last written communication in which the Parties notify that such procedures have been completed or after such other period as the Parties may agree.
Article 16.3. Amendment of the WTO Agreement
Unless otherwise provided in this Agreement, if any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult on whether to amend this Agreement.
Article 16.4. Future Work Programme
Unless otherwise agreed by the Parties, no later than two (2) years after the entry into force of this Agreement, the Parties shall initiate negotiations on investment and review relevant Articles of this Agreement as necessary.
Article 16.5. Entry Into Force and Termination
1. The entry into force of this Agreement is subject to the completion of necessary domestic legal procedures by each Party.
2. This Agreement shall enter into force sixty (60) days after the date of the last written communication in which the Parties notify that such procedures have been completed, or after such other period as the Parties may agree.
3. Either Party may terminate this Agreement by written notification to the other Party. This Agreement shall expire one hundred and eighty (180) days after the date of such notification.
Article 16.6. Authentic Texts
The English, Spanish and Thai texts of this Agreement are equally authentic. In the case of diversion, the English text shall prevail.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective governments, have signed this Agreement.
DONE at XXXXXXX, in triplicate, this XXXXXXXX.