Commentary:

Article ‘Scope’ delineates the scope of application of the investor-State dispute settlement section in a BIA. Accordingly, such mechanism may be triggered when there is a dispute between an investor of a Party and the other Party (host State) arising from an alleged breach of the investment protection standards in the agreement and which has allegedly caused loss or damage to the claimant or its locally established enterprise.

Article Transparency of Proceedings

1. The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, as adopted by the United Nations Commission on International Trade Law on 11 July 2013 shall apply to international arbitration proceedings initiated pursuant to this article / articles X XXX.

2. Nothing in this Agreement or the applicable arbitration rules shall prevent the exchange of information between the European Union and [Member State], or vice versa, which relates to international arbitration proceedings initiated pursuant to this article / articles X-XXX.

Commentary:

Transparency in arbitral proceedings is important as it enables the public scrutiny of the arbitral process and promotes the accountability of all actors involved.

Paragraph 1 stipulates that the arbitration proceedings in the agreement should be subject to the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (‘UNCITRAL Rules on Transparency’), as adopted by the United Nations Commission on International Trade Law on 11 July 2013. The UNCITRAL Rules on Transparency provide for the publication of information on treaty-based investor-State cases, the parties’ and non

disputing parties’ submissions, witness statements, expert reports, transcripts, and all decisions rendered by the tribunal, as well as for public hearings. They, moreover, account for exceptions to transparency. They recognise that ‘confidential or protected information’, deemed as such by the tribunal after consultation with the disputing parties, ‘shall not be made available to the public’. This is the case for confidential business information, information that, if disclosed, would impede law enforcement, or information that is protected against disclosure either by the relevant investment treaty, by the law of the respondent State, or by any law or rules deemed applicable by the tribunal. To that end, tribunals may arrange for the redaction of the information at issue, and/or hold non-public sessions of hearings, when said information is discussed. The UNCITRAL Rules on Transparency also preclude the publication of information that could jeopardise the integrity of the proceedings by, inter alia, hampering the collection or production of evidence, or leading to the intimidation of witnesses or party representatives. Nor do they permit the publication of information that the State considers contrary to its essential security interests.

Paragraph 2 ensures that the exchange of information between the European Union and its Member States in relation to arbitration proceedings brought against Member States parties to an investment agreement is not precluded. This is so the case, as Member States incur an obligation to inform the EU of disputes that have been filed against them or before activating any relevant mechanisms for dispute settlement against a third country (see Article 13 of Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries).

Article Multilateral Dispute Settlement Mechanism

1. The Parties shall pursue with each other and other interested trading partners the establishment of a permanent multilateral investment court which includes an appellate mechanism.

2. Upon the entry into force between Parties of an international agreement providing for such a multilateral investment court, the relevant parts of this Agreement shall cease to apply.

Commentary:

Paragraph 1 requires that the parties to the Agreement pursue with each other and other interested State partners the establishment of a permanent multilateral investment court which includes an appellate mechanism. This clause essentially refers to the on-going negotiations in Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) on investor-State dispute settlement reform where the European Union and its Member States are pursuing the establishment of a two-tier multilateral investment court.

Paragraph 2 stipulates that upon accession to such multilateral investment court, this mechanism will supersede the relevant provisions of the investor-State dispute settlement mechanism in the BIA.

Article Applicable Law and Rules of Interpretation

1. The tribunal shall apply this Agreement as interpreted in accordance with the Vienna Convention on the Law of Treaties, and other rules and principles of international law applicable between the Parties. For greater certainty, the domestic law of the Contracting Parties shall not constitute part of the applicable law. In case of [Member State], “domestic law” includes the law of the European Union.

2. The tribunal shall not have jurisdiction to determine the legality of a measure under the domestic law of a Party. For greater certainty, in determining the consistency of a measure with this Agreement, the tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact. In doing so, the tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party.

Commentary:

Applicable law denotes the substantive law which an arbitral tribunal applies when deciding on an alleged breach of the Agreement.

Paragraph 1 stipulates that the tribunal should apply the Agreement as interpreted in accordance with the Vienna Convention on the Law of Treaties, and other rules and principles of international law applicable between the Parties. It is further clarified that the domestic law of the Contracting Parties does not constitute part of the applicable law. The Court of Justice of the EU observed to that end in its Opinion 1/17 that, for EU-level investment agreements to be compatible with EU law, the power of investment tribunals, them standing outside of the EU judicial system, should be confined to the interpretation of the international Agreement and not the interpretation or application of EU law.

Paragraph 2 stipulates that a tribunal may not determine the legality of a measure under domestic law. However, it may often be the case that a tribunal needs to consider domestic law when determining the consistency of a measure with a given BIA. In that case, the tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact. In doing so, the tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party.

Article Ethics

1. Arbitrators shall be independent of, and not be affiliated with or take instructions from, a disputing party or the government of a Party with regard to trade and investment matters. Arbitrators shall not take instructions from any organisation, government or disputing party with regard to matters related to the dispute. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest. In so doing, they shall comply with Annex X (Code of Conduct). In addition, upon appointment, they shall refrain from acting as counsel in any pending or new investment protection dispute under this or any other agreement or domestic law.

2. If a disputing party considers that an arbitrator does not meet the requirements set out in paragraph 1 or in Annex X (Code of Conduct), it shall send a notice of challenge to [outside party], who shall transmit it to the arbitrator concerned. The notice of challenge shall be sent within 15 days after the constitution of the tribunal was communicated to the disputing party, or within 15 days after the date on which the relevant facts came to its knowledge, if they could not have reasonably been known at the time of constitution of the tribunal. The notice of challenge shall state the grounds for the challenge.

3. If, within 15 days after the date of the notice of challenge, the challenged arbitrator has elected not to resign from the tribunal, the [outside party] shall, after hearing the disputing parties and after providing the arbitrator an opportunity to submit any observations, issue a decision within 45 days after receipt of the notice of challenge and forthwith notify the disputing parties and other arbitrators of the tribunal.

Commentary:

Regulating the arbitrators’ conduct and ethics is important for preserving the legitimacy of the investor-State dispute settlement mechanism. Moreover, the breach of procedural fairness and perceived bias of a tribunal could be grounds for the setting aside or annulment of an arbitral award.

Paragraph 1 establishes the principle of independence of arbitrators, setting out types of conduct that arbitrators should abstain from and pointing to the Code of Conduct, which prescribes in more detail what types of conduct should be avoided.

Paragraph 2 sets out the procedure for filing a notice of challenge against an arbitrator that is considered by a disputing party not to meet the requirements set out in paragraph 1 or the Code of Conduct. The Parties to the Agreement should agree who the outside party should be for taking a final decision on the challenge. It is often a highly esteemed and well-respected personality that is reputable for its independence and impartiality (e.g. the President of the International Court of Justice).

Paragraph 3 sets out the procedure and timelines for the issuance of a decision, unless the challenged arbitrator has elected to resign from the tribunal in the meantime, in which case such decision is not required.

Article Multiple Proceedings

1. A tribunal shall dismiss a claim by a claimant who has submitted a claim to the tribunal or to any domestic or international court or tribunal concerning the same treatment as that alleged to breach the provisions of this Agreement, unless the claimant withdraws such pending claim.

[This paragraph does not apply if the claimant submits a claim to a domestic court or tribunal seeking interim injunctive or declaratory relief.]

2. Together with the submission of a claim the claimant shall provide:

(a) evidence that it has withdrawn any pending proceedings before any domestic or international court or tribunal under domestic or international law concerning the same treatment as that alleged to breach the provisions of this Agreement; and

(b) a declaration that it will not initiate any proceeding before any domestic or international court or tribunal under domestic or international law concerning the same treatment as that alleged to breach the provisions of this Agreement.

3. For the purposes of [paragraphs 1 and 2 above][this Article], the term "claimant" includes the investor and, if applicable, its [locally established enterprise]. In addition, for the purposes of paragraphs 1 and 2(a), the term "claimant" also includes all persons who, directly or indirectly, have an ownership interest in or are controlled by the investor or its [locally established enterprise], as applicable, and claim to have suffered the same loss or damage as the investor or the [locally established enterprise], as applicable.

Commentary:

Multiple or parallel proceedings can result in double recovery, and thus raise issues of procedural justice.

Paragraph 1 requires that a tribunal dismisses a claim where a claimant, who has brought a dispute under the Agreement, has in parallel submitted a claim falling under the Agreement to any domestic or international court or tribunal concerning the same treatment.

Paragraph 2 sets out the type of evidence that a claimant must provide when submitting a claim in order to prove that there are no parallel proceedings pending.

To avoid that parallel disputes are brought for the same loss or damage by different claimants in the ownership chain of the investment, paragraph 3 stipulates that the term "claimant" also includes all persons who, directly or indirectly, have an ownership interest in or are controlled by the investor (or its locally established enterprise), as applicable, and claim to have suffered the same loss or damage as the investor/locally established enterprise.

Article Claims Manifestly without Legal Merit

The respondent may, no later than 30 days after the establishment of the tribunal, or 30 days after it became aware of the facts on which the objection is based, file an objection that a claim is manifestly without legal merit. The respondent shall specify as precisely as possible the basis for the objection. The tribunal, after giving the parties to the dispute an opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, issue a decision or award on the objection, stating the grounds therefor. In the event that the objection is received after the first session of the tribunal, the tribunal shall issue such decision as soon as possible, and no later than 120 days after the objection was filed. In doing so, the tribunal shall assume the alleged facts to be true, and may also consider any relevant facts not in dispute. The decision of the tribunal shall be without prejudice to the right of a party to object, pursuant to paragraph [X - next paragraph] or in the course of the proceeding, to the legal merits of a claim and without prejudice to the tribunal's authority to address other objections as a preliminary question.

Commentary:

Article ‘Claims Manifestly without Legal Merit’ allows claims that manifestly lack legal merit to be dismissed early in the process before they unnecessarily consume the parties’  resources. The respondent is expected to file such objection no later than 30 days after the constitution of the Tribunal, or 30 days after it became aware of the facts on which the objection is based. The Article also sets out the timeframe within which the tribunal should issue a decision or award on the objection, which depends on the timing of the filing of the objection.

Article Claims Unfounded as a Matter of Law

Without prejudice to the tribunal’s authority to address other objections as a preliminary question or to the right of a respondent to raise any such objections at any appropriate time, the tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, is not a claim for which an award in favour of the Investor may be made, even if the facts alleged were assumed to be true. The tribunal may also consider any relevant facts not in dispute. Such an objection shall be submitted to the tribunal as early as possible, and in any event not later than the expiration of the time limit fixed for the filing of the counter-memorial or statement of defence, unless the facts on which the objection is based are unknown to the party at that time. On receipt of an objection under this paragraph, and unless it considers the objection manifestly unfounded, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision on the objection, stating the grounds therefor.

Commentary:

Article ‘Claims Unfounded as a Matter of Law’ enables a tribunal to address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, is not a claim for which an award in favour of the Investor may be made, even if the facts alleged were assumed to be true. The Article empowers the tribunal to suspend any proceedings on the merits and decide expeditiously on the matter.

Such an objection shall be submitted to the tribunal as early as possible, and in any event not later than the expiration of the time limit fixed for the filing of the counter-memorial or statement of defence, unless the facts on which the objection is based are unknown to the party at that time. The tribunal may either reject the objection as manifestly unfounded, in which case it need not suspend the proceedings on the merits; or suspend any proceedings on the merits and decide on the objection.

Article Relation with other Agreements

1. Upon the entry into force of this Agreement, the agreement …………… [provide the title of the relevant BIT], including the rights and obligations derived therefrom, shall cease to have any legal effect, and shall be replaced and superseded by this Agreement.

2. Notwithstanding paragraph 1, a claim may be submitted pursuant to an agreement referred to in paragraph 1, in accordance with the rules and procedures established in that agreement, provided that:

(a) the claim arises from an alleged breach of that agreement that took place prior to the date of entry into force of this Agreement; and

(b) on the date of the submission of the claim, no more than three years have elapsed from the date of entry into force of this Agreement.

Commentary:

Article ‘Relation with other Agreements’ typically features in the final provisions of a BIA. It regulates the relationship between the new BIA and any BIA that had been negotiated previously between the Parties and has been in place ever since. Accordingly, the older agreement is replaced and superseded by the newer one.

Paragraph 2 explains under what cumulative conditions a claim may still be submitted under the earlier agreement. This is to ensure the continuity of protection of those covered investments for which claims arose near the time, but in any event, before the conclusion of the newer agreement.

Article Entry Into Force, Duration and Termination

1. This Agreement shall enter into force [x] days after the date of exchange of instruments of ratification. It shall remain in force unless terminated pursuant to paragraph 2 of this Article.

2. Either Party may notify in writing the other Party of its intention to terminate this Agreement. The termination shall take effect [….] months after the date of receipt by the other Party of the notification, unless the Parties otherwise agree.

3. In the event that the present Agreement is terminated pursuant to paragraph 2 of this Article, its provisions shall continue to be effective for a further period of [….] years from the date of termination, with respect to covered investments made before the date of termination.

[For agreements with third countries that have a status of ‘EU (potential) candidate country’:

4. This Agreement shall, in any event, be automatically terminated as a whole and cease its effects if and on the date [third country] becomes a Member State of the European Union.]

Commentary:

Article ‘Duration and Termination’ typically features in the final provisions of a BIA. Paragraph 1 sets out when the Agreement enters into force (i.e. […] days after the date of exchange of instruments of ratification between the Partis). It also stipulates that the Agreement remains in force unless terminated as per paragraph 2.

If the BIA is terminated per the terms of paragraph 2, i.e., unilaterally by request of one Party, all investments that qualified as covered investments on the date of termination (i.e. […] months after the date of receipt by the other Party of the notification) continue to be protected for a further period of […] years from that date, per the agreement of the Parties in the treaty.

Paragraph 4 should feature when an agreement is negotiated with a third country that has the status of ‘EU candidate country’. It stipulates that the Agreement will automatically be terminated and no longer produce any effects if and on the date when the third country became a Member State of the European Union.

Attachments

ANNEX. EXPROPRIATION

The Parties confirm their shared understanding that:

1. Expropriation may be either direct or indirect:

(a) direct expropriation occurs when an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.

(b) indirect expropriation occurs where a measure or series of measures by a Party has an effect equivalent to direct expropriation, in that it substantially deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure.

2. The determination of whether a measure or series of measures by a Party, in a specific situation, constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:

(a) the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred;

(b) the duration of the measure or series of measures by a Party;

(c) the character of the measure or series of measures, notably their object and context.

3. For greater certainty, except in the rare circumstance when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures by a Party that are designed and applied to protect legitimate policy objectives, such as the protection of public health, social services, public education, safety, environment including climate change, public morals, social or consumer protection, privacy and data protection, or the promotion and protection of cultural diversity do not constitute indirect expropriations.

Commentary:

The Annex on Expropriation complements Article ‘Expropriation’.

Paragraph 1 introduces the distinction between direct and indirect expropriation. Direct expropriation means a mandatory legal transfer of the title to the property or its outright physical seizure. Today, large-scale direct expropriations (nationalisations) are less common, giving way to indirect expropriations. Under the latter, the investor's legal title to its investment often remains unaffected but the investor is substantially deprived of the fundamental attributes of property in its investment, including the right to use, enjoy, and dispose of its investment.

Paragraph 2 provides additional guidance on how to ascertain whether indirect expropriation has occurred in a certain case. This should involve a case-by-case, fact-based inquiry that considers various factors. The list enumerates such actors that may inform such decision, namely the economic impact, duration and character of a measure, however the list is not exhaustive.

Paragraph 3 reflects the police powers doctrine which is a manifestation of the State’s right to regulate. It is a fundamental principle of international law that regulatory activity aimed at achieving legitimate public welfare objectives is not compensable. It is only when the measures are manifestly excessive in light of their objective that a finding of indirect expropriation can be made.

ANNEX. PUBLIC DEBT

1. No claim that a restructuring of debt of a Party breaches an obligation under this Agreement may be submitted to, or if already submitted, be pursued under Article(s) X (ISDS) if the restructuring is a negotiated restructuring at the time of submission, or becomes a negotiated restructuring after such submission.

2. Notwithstanding Article X (ISDS - Submission of a Claim), and subject to paragraph 1 of this Annex, an investor may not submit a claim that a restructuring of debt of a Party breaches an obligation under this Agreement (6), unless 270 days have elapsed from the date of submission by the claimant of the written request for consultations pursuant to Article X (ISDS - Consultations).

3. For the purposes of this Annex:

(a) “negotiated restructuring” means the restructuring or rescheduling of debt of a Party that has been effected through (i) a modification or amendment of debt instruments, as provided for under their terms, including their governing law, or (ii) a debt exchange or other similar process in which the holders of no less than 75% of the aggregate principal amount of the outstanding debt subject to restructuring, have consented to such debt exchange or other process.

(b) “governing law” of a debt instrument means a jurisdiction’s legal and regulatory framework applicable to that debt instrument.

Commentary:

A separate annex has been devised that introduces specific disciplines when a dispute involves sovereign debt restructurings. The rationale behind such dedicated disciplines is to enable the creation of a ‘safe space’ for consensual debt crisis resolution processes.

Paragraph 1 ensures that investors cannot sue host countries for debt restructurings which have been negotiated and agreed with a significant majority of the bondholders. In the opposite case, the very purpose of the negotiated debt restructuring would be negated if the State would still have to ‘compensate’ investors for the less favourable terms agreed under the restructuring.

Paragraph 2 institutes a cooling-off period of 270 days in case of claims against debt restructuring. Such cooling-off period is intended to give more time for the State to negotiate debt restructuring with bondholders. When the restructuring favours domestic or third-country investors, the footnote acknowledges that a different treatment for domestic or third country investors may be justified for economic reasons (e.g., some investors may be “too big to fail”), thus their situations may not be comparable.

Paragraph 3 defines what qualifies as ‘negotiated restructuring’. The threshold of 75% of the aggregate principal amount of the outstanding debt is a common threshold found in collective action clauses which essentially allows a supermajority of bondholders (i.e., those holding 75%) to agree to a debt restructuring that is legally binding on all holders of the bond, including those who voted against the restructuring.

ANNEX. CODE OF CONDUCT FOR MEMBERS OF TRIBUNALS AND MEDIATORS

Commentary:

This Annex provides for a binding Code of Conduct with rules applicable throughout the proceedings and regulating inter alia disclosure obligations, the practice of double-hatting, confidentiality and expenses, and provide for high standards of integrity and diligence, in order to secure independence and impartiality, diligence and efficiency in adjudicating cases.

An essential aspect of these rules that must feature in the Code of Conduct is the existence of an independent outside person in charge of deciding challenges in case of breach of the ethic rules. This outside person could be for example the President of the International Court of Justice. Any agreed outside party must be seen by the Contracting parties as neutral and independent. In case a disputing party considers that an arbitrator does not meet the requirements set out in the Code of Conduct, it can send a notice of challenge to this third

party, which will be in charge of addressing and processing the challenge. In order to provide for better safeguards of independence and impartiality, the assessment of challenges shall not be left to the appointed arbitrators but should rather be assessed by a neutral and independent party.

1. Definitions

For the purpose of this Code of Conduct, the following definitions apply:

− “member” means a person who has been appointed to serve as a member of a tribunal established pursuant to [reference to relevant article/section/chapter] of [name of the agreement] (the “Agreement”).

− “assistant” means a person who, under the terms of appointment of a member, assists the member, conducts research, or supports him or her in his or her duties;

− “candidate” means a person who is under consideration for appointment as member;

− “mediator” means a person who conducts a mediation in accordance with [article or section] of this Agreement.

2. Governing Principles

Any candidate or member shall avoid impropriety and the appearance of impropriety, and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement proceeding is preserved.

3. Disclosure Obligations

1. Prior to confirmation of their appointment as members under [Article x] of this Agreement, candidates shall disclose to the disputing parties any past or present interest, relationship or matter that is likely to affect their independence or impartiality, or that might reasonably be seen as creating a direct or indirect conflict of interest, or that creates or might reasonably be seen as creating an appearance of impropriety or bias. To this end, candidates shall make all reasonable efforts to become aware of any such interests, relationships or matters. The disclosure of past interests, relationships or matters shall cover at least the last [x] years prior to a candidate becoming aware that he or she is under consideration for appointment as member in a dispute under this Agreement.

2. Following their appointment, members shall at all times continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in Article 3(1) of this Code of Conduct. Members shall at all times disclose such interests, relationships or matters throughout the performance of their duties by informing the disputing parties and the Parties. They shall also communicate matters concerning actual or potential violations of this Code of Conduct to the disputing parties and the Parties.

4. Independence, Impartiality and other Obligations of Members

1. In addition to the obligations established pursuant to Articles 2 and 3 of this Code of Conduct, members shall:

a. get acquainted with this Code of Conduct;

b. be and appear to be, independent and impartial, and avoid any direct or indirect conflicts of interest;

c. not take instructions from any organisation or government with regard to matters before the tribunal for which they are appointed;

d. avoid creating an appearance of bias and not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party, disputing party or any other person involved or participating in the proceeding, fear of criticism or financial, business, professional, family or social relationships or responsibilities;

e. not, directly or indirectly, incur any obligation, or accept any benefit, enter into any relationship, or acquire any financial interest that would in any way interfere, or appear to interfere, with the proper performance of their duties, or that is likely to affect their impartiality;

f. not use their position as a member to advance any personal or private interests and avoid actions that may create the impression that others are in a special position to influence them;

g. perform their duties thoroughly and expeditiously throughout the course of the proceeding, and with fairness and diligence;

h. avoid engaging in ex parte contacts concerning the proceeding;

i. consider only those issues raised in the proceeding and which are necessary for a decision or award and not delegate this duty to any other person;

2. Members shall take all appropriate steps to ensure that their assistants are aware of, and comply with, Articles 2, 3, 4(1), 5 and 6 of this Code of Conduct mutatis mutandis.

5. Obligations of Former Members

1. Former members shall avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decisions or awards of the tribunal.

2. Former members shall undertake that for a period of [x] years after the end of their duties in relation to a dispute settlement proceeding under this Agreement they shall not:

a. become involved in any manner whatsoever in investment disputes directly and clearly connected with disputes, including concluded disputes, that they have dealt with as members of a tribunal established under this Agreement;

b. [option 1: act as party-appointed member, legal counsel or party-appointed witness or expert of any of the disputing parties, in relation to investment disputes under this or other bilateral or multilateral investment treaties.]

[option 2: as legal counsel or party-appointed witness or expert of any of the disputing parties, in relation to investment disputes under this or other bilateral or multilateral investment treaties.]

3. If the [independent outside person in charge of deciding on challenges] is informed or becomes otherwise aware that a former member is alleged to have acted inconsistently with the obligations established in Article 5(1) an (2), or any other part of this Code of Conduct while performing the duties of member of a tribunal in an investment dispute under this Agreement, it shall examine the matter, provide the opportunity to the former member to be heard, and after verification, inform:

a. the professional body or other such institution with which the former member is affiliated;

b. the Parties;

c. the disputing parties in the specific dispute;

d. any other relevant international court or tribunal.

4. The [independent outside person in charge of deciding on challenges] shall make public its decision to take the actions referred in paragraphs 3(a) to 3(d) above, together with the reasons thereof.

6. Confidentiality

1. No member or former member shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding, except for the purposes of that proceeding, and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.

2. Members shall not disclose an order, decision, or award or parts thereof prior to adoption or publication.

3. Members or former members shall not at any time disclose the deliberations of the tribunal, or any views of other members forming part of the tribunal, except in an order, decision or award.

7. Expenses

Each member shall keep a record and render a final account of the time devoted to the procedure and of the expenses incurred, as well as the time and expenses of their assistants.

8. Mediators

The rules set out in this Code of Conduct apply, mutatis mutandis, to mediators.