(c) provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly; and
(d) deliver the request to the responding Party.
3. An arbitral tribunal is established upon receipt of a request.
Article 15.7. COMPOSITION OF AN ARBITRAL TRIBUNAL
1. An arbitral tribunal shall comprise three arbitrators.
2. Within 15 days after the establishment of an arbitral tribunal, each Party shall appoint one arbitrator of the arbitral tribunal respectively.
3. The Parties shall appoint by common agreement the third arbitrator within 30 days after the establishment of an arbitral tribunal. The arbitrator thus appointed shall chair the arbitral tribunal.
4. If any arbitrator of the arbitral tribunal has not been appointed within 30 days after the establishment of an arbitral tribunal, either Party may request that the Director-General of the WTO designate an arbitrator within 30 days of that request. If one or more arbitrators are designated under this paragraph, the Director-General of the WTO shall be authorized to designate the chair of the arbitral tribunal.
5. The chair of the arbitral tribunal shall:
(a) not be a national of either Party;
(b) not have his or her usual place of residence in the territory of either Party;
(c) not be employed by either Party; and (d) not have dealt with the matter in any capacity.
6. All arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from, either Party; and
(d) comply with a code of conduct in conformity with the rules established in the document WT/DSB/RC/1 of the WTO.
7. If an arbitrator appointed under this Article resigns or becomes unable to act, a successor shall be appointed in the same manner and timeframe as prescribed for the appointment of the original arbitrator, and the successor shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended during the replacement of the successor.
Article 15.8. FUNCTIONS OF ARBITRAL TRIBUNAL
1. The function of an arbitral tribunal is to make an objective assessment of the matter before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement.
2. Unless the Parties otherwise agree within 20 days from the date of the establishment of the arbitral tribunal, the terms of reference 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 tribunal pursuant to Article 15.6 (Establishment of an Arbitral Tribunal) and to make findings of law and fact together with the reasons as well as recommendations, if any, for the resolution of the dispute."
3. Where an arbitral tribunal concludes that a measure is inconsistent with this Agreement, it shall recommend that the responding Party bring the measure into conformity with this Agreement.
4. The arbitral tribunal shall consider this Agreement in accordance with customary rules of interpretation of public international law. The arbitral tribunal, in their findings and recommendations, cannot add to or diminish the rights and obligations provided for in this Agreement.
Article 15.9. RULES OF PROCEDURE OF ARBITRAL TRIBUNAL
Unless the Parties agree otherwise, the arbitral tribunal shall follow the rules of procedure set out in Chapter 15-Annex (Rules of Procedure of Arbitral Tribunal) and may, after consulting with the Parties, adopt additional rules of procedure not inconsistent with Chapter 15-Annex (Rules of Procedure of Arbitral Tribunal).
Article 15.10. SUSPENSION OR TERMINATION OF PROCEEDINGS
1. The Parties may agree that the arbitral tribunal suspends its work at any time for a period not exceeding 12 months from the date of such an agreement. In the event of such suspension, all relevant timeframes set out in this Chapter shall be extended by the amount of time that the work was suspended. If the work of the arbitral tribunal has been suspended for more than 12 months, the authority for establishment of the arbitral tribunal shall lapse unless the Parties agree otherwise.
2. The Parties may agree to terminate the proceedings of an arbitral tribunal. In such an event, the Parties to the dispute shall jointly notify the arbitral tribunal.
Article 15.11. REPORT OF THE ARBITRAL TRIBUNAL
1. The arbitral tribunal shall base its report on the relevant provisions of this Agreement, the submissions and arguments of the Parties and any information or technical advice, if any, it has obtained pursuant to paragraph 13 of Chapter 15- Annex (Rules of Procedure of Arbitral Tribunal).
2. Unless the Parties to the dispute otherwise agree, the arbitral tribunal shall issue the initial report to the Parties within 120 days after the date of its composition or in case of urgent matters concerning perishable goods, within 90 days after the date of its composition.
3. In exceptional cases, if the arbitral tribunal considers that it cannot issue its initial report within the time specified in paragraph 2, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Any delay shall not exceed a further period of 30 days unless the Parties otherwise agree.
4. Each Party may submit written comments to the arbitral tribunal within 15 days of the issuance of the initial report. After considering these written comments by the Parties and making any further examination it considers appropriate, the arbitral tribunal shall present to the Parties its final report within 30 days of issuance of the initial report, unless the Parties otherwise agree.
5. The arbitral tribunal shall make every effort to make its decisions by consensus. If the arbitral tribunal is unable to reach consensus, it may make its decision by majority vote. Arbitrators may furnish separate opinions on matters not unanimously agreed upon. All opinions expressed in the arbitral tribunalâs report by individual arbitrators shall be anonymous.
6. The final report of the arbitral tribunal is final and has no binding force except between the Parties and in respect of the matter to which the report refers.
7. Unless either Party disagrees, the final report shall be made available to the public no later than 15 days after its issuance to the Parties, subject to the protection of confidential information.
Article 15.12. IMPLEMENTATION OF ARBITRAL TRIBUNAL'S FINAL REPORT
1. Where the arbitral tribunal concludes that a Party has not conformed with its obligations under this Agreement, the resolution, whenever possible, shall be to eliminate the non-conformity.
2. Unless the Parties reach agreement on compensation or other mutually satisfactory solution, the responding Party shall implement the recommendations and rulings in the final report of the arbitral tribunal. If it is not practicable to comply immediately, the responding Party shall implement the recommendations and rulings within a reasonable period of time.
Article 15.13. REASONABLE PERIOD OF TIME
1. The reasonable period of time referred to in Article 15.12 (Implementation of Arbitral Tribunalâs Final Report) shall be mutually determined by the Parties. Where the Parties fail to agree on the reasonable period of time within 30 days after the issuance of the arbitral tribunalâs final report, either Party may, to the extent possible, refer the matter to the original arbitral tribunal, which shall determine the reasonable period of time. If the arbitral tribunal cannot be established with its original members, it shall be composed in accordance with the procedures set out in Article 15.7 (Composition of an Arbitral Tribunal).
2. The arbitral tribunal shall provide its determination to the Parties within 60 days after the date of the referral of the matter to it. When the arbitral tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will provide its determination. Any delay shall not exceed a further period of 30 days unless the Parties otherwise agree.
3. The reasonable period of time normally should not exceed 15 months from the date of issuance of the arbitral tribunalâs final report.
Article 15.14. COMPLIANCE REVIEW
1. Where there is disagreement as to the existence or consistency with this Agreement of measures taken to comply with the recommendations and rulings of the arbitral tribunal, such dispute shall be resolved by recourse to the dispute settlement procedures under this Chapter, including wherever possible by resorting to the original arbitral tribunal.
2. The arbitral tribunal shall provide its report to the Parties within 60 days after the date of the referral of the matter to it. Where the arbitral tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will provide its report. Any delay shall not exceed a further period of 30 days, unless the Parties otherwise agree.
3. The provisions in this Chapter concerning the procedure of an arbitral tribunal shall apply mutatis mutandis to the procedure under this Article.
Article 15. COMPENSATION AND SUSPENSION OF CONCESSIONS OR OTHER OBLIGATIONS
1. If the arbitral tribunal under Article 15.14 (Compliance Review) finds that the responding Party fails to bring the measure found to be inconsistent with this Agreement into compliance with the recommendations and rulings of the arbitral tribunal within the reasonable period of time established, or the responding Party expresses in writing that it will not implement the recommendations and rulings, such Party shall, if so requested by the complaining Party, enter into negotiation with the complaining Party, with a view to agreeing on a mutually acceptable compensation. If the Parties fail to reach an agreement on compensation within 15 days after entering into negotiation for compensation, or if no such a request has been made, the complaining Party may suspend the application of concessions or other obligations to the Party complained against. The complaining Party shall notify the responding Party 30 days before suspending concessions or other obligations. The notification shall indicate the level and scope of the suspension of concessions or other obligations.
2. The level of the suspension of concessions or other obligations shall be equivalent to the level of the nullification or impairment.
3. In considering what concessions or other obligations to suspend:
(a) the complaining Party should first seek to suspend concessions or other obligations in the same sector(s) as that affected by the measure that the arbitral tribunal has found to be inconsistent with the obligations under this Agreement; and
(b) the complaining Party may suspend concessions or other obligations in other sectors if it considers that it is not practicable or effective to suspend concessions or other obligations in the same sector(s). The communication in which it notifies such a decision shall indicate the reasons on which it is based.
4. Upon written request of the responding Party, the original arbitral tribunal shall determine whether the level of concessions or other obligations to be suspended by the complaining Party is excessive pursuant to paragraph 2 and/or whether paragraph 3 has not been complied with. If the arbitral tribunal cannot be established with its original members, it shall be composed in accordance with the procedures set out in Article 15.7 (Composition of an Arbitral Tribunal).
5. The arbitral tribunal shall present its determination within 60 days from the request made pursuant to paragraph 4, or if the arbitral tribunal cannot be established with its original members, from the date on which the last arbitrator is appointed.
6. The complaining Party may not suspend the application of concessions or other obligations before the issuance of the arbitral tribunalâs determination pursuant to this Article.
Article 15.16. POST SUSPENSION
1. Without prejudice to the procedures in Article 15.15 (Compensation and Suspension of Concessions or other Obligations), if the responding Party considers that it has eliminated the non-conformity that the arbitral tribunal has found, it may provide written notice to the complaining Party with a description of how the non- conformity has been removed. If the complaining Party disagrees, it may refer the matter to the original arbitral tribunal within 60 days after receipt of such a written notice. Otherwise, the complaining Party shall promptly stop the suspension of concessions or other obligations.
2. If the arbitral tribunal under paragraph 1 cannot be established with its original members, it shall be composed in accordance with the procedures set out in Article 15.7 (Composition of an Arbitral Tribunal). The arbitral tribunal shall issue its report within 60 days after the referral of the matter by the complaining Party pursuant to paragraph 1. If the arbitral tribunal concludes that the responding Party has eliminated the non-conformity, the complaining Party shall promptly stop the suspension of concessions or other obligations.
Article 15.17. PRIVATE RIGHTS
Neither Party shall provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.
Article 15.18. REMUNERATION AND EXPENSES
Unless the Parties otherwise agree, the remuneration of the arbitrators and other expenses of the arbitral tribunal shall be borne by the Parties in equal shares.
Annex. RULES OF PROCEDURE OF ARBITRAL TRIBUNAL
First Written Submissions
1. The complaining Party shall deliver its first written submission no later than 20 days after the appointment of the last arbitrator. The responding Party shall deliver its first written submission no later than 30 days after the date of delivery of the complaining Party's first written submission, unless the arbitral tribunal otherwise decides.
2. A Party shall provide a copy of its first written submission to each of the arbitrators and to the other Party. A copy of the documents shall also be provided in electronic format.
Hearings
3. The chair of the arbitral tribunal shall fix the date and time of the hearing after consultation with the Parties and other members of the arbitral tribunal. The venue of the hearings shall be agreed by the Parties. If there is no agreement, the venue shall alternate between the territories of the Parties with the first hearing to be held in the territory of the Party complained against. The chair of the arbitral tribunal shall notify in writing to the Parties of the date, time and venue of the hearing. Unless either Party disagrees, the arbitral tribunal may decide not to convene a hearing.
4. The arbitral tribunal may convene additional hearings.
5. All arbitrators shall be present at hearings.
6. The hearings of the arbitral tribunal shall be held in closed session. Supplementary Written Submissions
7. Where the arbitral tribunal so agrees, each Party may, within 20 days after the date of the hearing, deliver a supplementary written submission responding to any matter that arose during the hearing. The supplementary written submission shall be delivered in accordance with paragraph 2 of this Annex.
Questions in Writing
8. The arbitral tribunal may at any time during the proceedings put questions in writing to the Parties. A Party shall deliver the written reply to the arbitral tribunal and the other Party in accordance with the timetable established by the arbitral tribunal. Each Party shall be given the opportunity to provide written comments on the reply of the other Party.
Confidentiality
9. The arbitral tribunal's hearings and the documents submitted to it shall be kept confidential. Nothing in these rules shall preclude a Party from disclosing statements of its own positions to the public. The information submitted by a Party to the arbitral tribunal which that Party has designated as confidential shall be treated as confidential.
Ex parte Contacts
10. The arbitral tribunal shall not meet or contact a Party in the absence of the other Party.
11. No Party may contact any arbitrator in relation to the dispute in the absence of the other Party and the other arbitrators.
12. No arbitrator may discuss any aspect of the subject matter of the proceeding with a Party or the Parties in the absence of the other arbitrators.
Role of Experts
13. Upon request of a Party or on its own initiative, the arbitral tribunal may seek information and technical advice from any individual or body that it deems appropriate. Any information so obtained shall be provided to the Parties for comments.
Working Language
14. Unless otherwise agreed by the Parties, English shall be the working language of the dispute settlement proceedings.
Chapter 16. EXCEPTIONS
Article 16.1. GENERAL EXCEPTIONS
1. For the purposes of Chapter 2 (Trade in Goods), 3 (Rules of Origin and Origin Implementation Procedures), 4 (Sanitary and Phytosanitary Measures), 5 (Technical Barriers to Trade) and 6 (Trade Remedies) and 11 (Electronic Commerce), Article XX of the GATT 1994, including its interpretative notes, is incorporated into and made part of this Agreement, mutatis mutandis.
2. For the purposes of Chapter 7 (Trade in Services) and 11 (Electronic Commerce), Article XIV of the GATS, including the footnotes, is incorporated into and made part of this Agreement, mutatis mutandis.
Article 16.2. ESSENTIAL SECURITY
1. Nothing in this Agreement shall be construed to:
(a) require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers in good faith necessary for the fulfillment of its obligations under the United Nations Charter with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 16.3. TAXATION
1. For the purposes of this Article:
(a) tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement to which both Parties are party.
(b) taxation measures do not include:
(i) a customs duty defined in Article 1.4 (General Definition); or
(ii) the measures listed in subparagraphs (b) and (c) of the definition of customs duty set out in Article 1.4 (General Definition).
2. Except as otherwise provided for in this Article, nothing in this Agreement shall apply to taxation measures.
3.
(a) Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention to which both Parties are party. In the event of any inconsistency relating to a taxation measure between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
(b) In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
4. Notwithstanding paragraph 3, this Agreement shall only grant rights or impose obligations with respect to taxation measures:
(a) where corresponding rights or obligations are also granted or imposed under the WTO Agreement; or
(b) under Article 8.20 (Taxation) of this Agreement.
5. For the purposes of this Article, competent authorities means:
(a) for China, the Ministry of Finance and the State Taxation Administration; and
(b) for Mauritius, the Ministry of Finance and Economic Development.
Article 16.4. DISCLOSURE OF INFORMATION
Nothing in this Agreement shall be construed to require 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 enterprises, public or private.
Article 16.5. MEASURES TO SAFEGUARD THE BALANCE OF PAYMENTS
Where a Party is in serious balance of payments and external financial difficulties or threat thereof, it may, in accordance with the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund, adopt measures deemed necessary.
Chapter 17. FINAL PROVISIONS
Article 17.1. ANNEXES
The Annexes to this Agreement constitute an integral part of this Agreement.
Article 17.2. ENTRY INTO FORCE
This Agreement shall enter into force 30 days after the date on which the Parties exchange through diplomatic channels written notifications certifying that they have completed their respective necessary internal requirements or on such other date as the Parties may agree and confirm by written notifications.
Article 17.3. AMENDMENTS
1. The Parties may agree in writing to amend this Agreement. Any amendment shall enter into force in accordance with the procedures required for entry into force of this Agreement.
2. If any provision of the WTO Agreement or any other agreement to which both Parties are party that has been incorporated into this Agreement is amended, the Parties shall consult on whether to amend this Agreement, unless this Agreement provides otherwise.
Article 17.4. TERMINATION
1. This Agreement shall remain in force unless either Party notifies the other Party in writing to terminate this Agreement through diplomatic channels. Such termination shall take effect 180 days following the date of receipt of the notification.
2. Within 30 days of a notification under paragraph 1, either Party may request consultations regarding whether the termination of any provision of this Agreement should take effect on a later date than provided under paragraph 1. Such consultations shall commence within 30 days of a Party's delivery of such a request.
Article 17.5. AUTHENTIC TEXTS
This Agreement shall be done in Chinese and English. Both texts are equally valid and authentic.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Beijing, on October 17, 2019, in duplicate, each Party shall keep one copy in the Chinese and English languages.
For the Government of The People's Republic of China
For the Government of The Republic of Mauritius