2. The panel shall specify the reasons for any modifications to its interim report in the final report, including a discussion of written comments. The panel may, in its final report, suggest ways in which the final report could be implemented.
3. A Party may, 15 days after the date of issue of the final report, or any time thereafter, make the report publicly available, subject to the protection of any confidential information.
4. The final report of the panel shall be binding on the Parties.
Article 25.19. Compliance with the Final Report
1. If the panel finds pursuant to paragraph 2(c) of Article 25.12 (Functions of a Panel) that a measure of the responding Party is inconsistent with is obligations under the Agreement, or that the responding Party has failed to carry out its obligations under the Agreement, the responding Party shall comply promptly with the final panel report issued pursuant to Article 25.18 (Final Report).
2. If the Responding Party makes a notification under paragraph 3(c) that it is impracticable to comply immediately with the final report, it shall have a reasonable period of time to do so.
3. No later than 30 days in all cases, including cases of urgency, after the issuance of the final report pursuant to Article 25.18 (Final Report), the responding Party shall notify the complaining Party;
(a) of its intentions with respect to implementation, including an indication of possible steps it may take to comply with the final report;
(b) whether implementation can take place immediately; and
(c) if it is impracticable for implementation to take place immediately, the reasonable period of time the responding Party considers it would need to comply.
Article 25.20. Reasonable Period of Time for Compliance
1. If the responding Party makes a notification that a reasonable period of time is required pursuant to paragraph 3(c) of Article 25.19 (Compliance with the Final Report), it shall, if possible, be mutually agreed by the Parties. If the Parties are unable to agree on the length of the reasonable period of time, either Party may, no later than 20 days after the date of receipt of the notification made by the responding Party in accordance with paragraph 3 of Article 25.19 (Compliance with the Final Report) request the panel, in writing, to determine the length of the reasonable period of time. Such request shall be notified simultaneously to the other Party. The 20-day period referred to in this paragraph may be extended by mutual agreement of the Parties.
2. The panel shall deliver its decision, including its reasons for the decision, to the Parties within 45 days from the relevant request.
3. The length of the reasonable period of time for compliance with the final report may be extended by mutual agreement of the Parties. As a guideline, the reasonable period of time, if determined by the panel, should not exceed 15 months from the date of the issuance of the panel’s final report to the Parties. However, such reasonable period of time may be shorter or longer, depending upon the particular circumstances.
4. If the responding Party considers that it has complied with the final report, it shall, no later than the date of the expiry of the reasonable period of time, provide the complaining Party with a description of the steps that it has taken to comply with the final panel report.
Article 25.21. Compliance Review
1. The responding Party shall deliver a written notification of its progress in complying with the final report to the complaining Party at least 30 days before the expiry of the reasonable period of time for compliance with the final report, unless the Parties otherwise agree.
2. If the Parties disagree on the existence of measures to comply with the final report, or their consistency with this Agreement, a Party may request, in writing, for the panel to decide the matter.
3. A request made pursuant to paragraph 2 may only be made after the earlier of either:
(a) the expiry of the reasonable period of time established in accordance with Article 25.20 (Reasonable Period of Time for Compliance); or
(b) a notification by the responding Party, pursuant to paragraph 4 of Article
25.20 (Reasonable Period of Time for Compliance), that it has complied with the final report.
4. The request referred to in paragraph 2 shall provide the factual and legal basis for the complaint, sufficient to present the problem clearly, including the specific provisions of this Agreement at issue.
5. If a request is made in accordance with paragraphs 1 to 3, the panel shall meet within 30 days.
6. The panel shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the factual aspects of any implementation action taken by the Responding Party; and
(b) whether the Responding Party has complied with paragraph 1 of Article
25.19 (Compliance with the Final Report).
7. The panel shall set out in its compliance report:
(a) a descriptive section summarising the arguments of the Parties;
(b) its findings on the factual aspects of the case;
(c) its findings on whether the responding Party has complied with the obligation in paragraph 1 of Article 25.19 (Compliance with the Final Report); and
(d) the reasons for its findings.
8. The panel reconvened pursuant to paragraph 5 shall, if possible, provide its interim report to the Parties within 60 days of the date it reconvenes, and its final report 15 days thereafter. If the panel considers it cannot provide either report within these time periods, it shall promptly inform the Parties in writing of the reasons for the delay together with an estimate of when it will issue its report. The panel shall not exceed an additional period of 30 days and, in cases of urgency, shall make every effort to not exceed 15 days.
9. The panel shall accord adequate opportunity to the Parties to submit written comments on the interim compliance report. After considering any written comments by the Parties on the interim compliance report, the panel may modify its compliance report and make any further examination it considers appropriate. The panel shall include a discussion in its final compliance report of any comments made by the Parties on the interim compliance report.
Article 25.22. Temporary Remedies In the Event of Non-Compliance
1. Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the responding Party does not comply with the findings of the panel, and shall only be applied until the inconsistency of the measure with the relevant provisions has been removed or a mutually agreed solution pursuant to Article 25.27 (Mutually Agreed Solution) is reached. However, neither compensation nor the suspension of concessions or other obligations is preferred to full compliance with the findings of the panel. Compensation is voluntary and, if granted, shall be consistent with this Agreement.
2. The responding Party shall, if requested by the complaining Party, enter into negotiations with a view to agreeing mutually acceptable compensation if:
(a) the responding Party has notified the complaining Party that it will not comply with the final report; or
(b) the panel finds, pursuant to Article 25.21 (Compliance Review), that the responding Party has failed to comply with the final panel report.
3. If the Parties fail to reach a mutually acceptable agreement on compensation within 30 days after the date of receipt of the request made in accordance with paragraph 2, or the Parties have agreed on compensation but the complaining Party considers that the responding Party has failed to observe the terms of the mutually acceptable agreement on compensation, the complaining Party may deliver a written notification to the responding Party that it intends to suspend the application of concessions or other obligations under this Agreement.
4. A notification made under paragraph 3 shall specify:
(a) the level of concessions or other obligations that the complaining Party proposes to suspend; and
(b) the relevant sectors to which the concessions or other obligations relate.
5. The complaining Party shall have the right to implement the suspension of concessions or other obligations referred to in paragraph 3 20 days after the date of receipt of the notification by the responding Party, unless the responding Party made a request under paragraph 9
6. The suspension of concessions or other obligations shall not exceed a level equivalent to the nullification or impairment, and shall be restricted to benefits accruing to the respondent Party under this Agreement.
7. In considering what concessions or other obligations to suspend in accordance with paragraph 3, the complaining Party shall apply the following principles:
(a) the complaining Party should first seek to suspend the concessions or other obligations in the same sector or sectors as that affected by the measure that the panel has found to be inconsistent with 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 sectors.
8. The right to suspend concessions or other obligations arising under paragraph 3 shall not be exercised if:
(a) a review is being undertaken pursuant to paragraphs 9 and 10; or
(b) the Parties have decided, pursuant to a mutually agreed solution reached in accordance with Article 25.27 (Mutually Agreed Solution), that the complaining Party shall not exercise its right to suspend concessions or other obligations pursuant to paragraph 3.
9. No later than 30 days after receipt of the notification referred to in paragraph 3, the responding Party may request in writing that the panel reconvene to make findings on the matter if the responding Party:
(a) objects to the proposed level of suspension of concessions or other obligations on the basis that it exceeds a level equivalent to the level of nullification or impairment;
(b) considers that it has complied with the terms and conditions of any compensation agreed pursuant to paragraph 2; or
(c) claims that the complaining Party has failed to follow the principles set out in paragraph 5.
10. If a panel is requested to reconvene pursuant to paragraph 9, it shall reconvene within 15 days of receipt of the request. The panel shall present its findings to the Parties no later than 90 days after the receipt of the request. If the panel considers that it cannot present its findings within this time period, it shall inform the Parties in writing of the reasons for the delay, together with an estimate of when it will present its findings. The panel shall not exceed an additional period of 30 days and, in cases of urgency, shall make every effort to not exceed 15 days.
11. Concessions or other obligations shall not be suspended until the panel has presented its findings. Any suspension of concessions or other obligations shall be consistent with the panel’s findings.
Article 25.23. Review of Measures Taken to Comply after the Adoption of Temporary Remedies
1. The responding Party shall notify the complaining Party, in writing, of the measures it has taken to comply with the final report. Upon such notification:
(a) in a situation where the right to suspend concessions or other obligations has been exercised by the complaining Party in accordance with Article
25.22 (Temporary Remedies in the Event of Non-Compliance), the complaining Party shall terminate the suspension of concessions or other obligations no later than 30 days after the date of receipt of the notification, with the exception of the cases referred to in paragraph 2; or
(b) in a situation where necessary compensation has been agreed, the respondent Party shall terminate the application of such compensation no later than 30 days after the date of receipt of the notification, with the exception of the cases referred to in paragraph 2.
2. If the Parties do not agree on whether the measure notified in accordance with paragraph 1 is consistent with the relevant provisions, no later than 30 days after the date of receipt of the notification by the complaining Party, either Party may
request, in writing, that the panel meet to examine the matter.1 That request shall be notified simultaneously to the other Party.
3. If the panel finds that the measures notified in accordance with paragraph 1 are consistent with the relevant provisions, the complaining Party shall, no later than 15 days after the date of the decision, terminate the suspension of concessions or other obligations, or the application of the compensation, as the case may be.
4. If the panel finds that the measures notified in accordance with paragraph 1 only achieve partial compliance with the relevant provisions, the complaining Party shall adapt the level of suspension of concessions or other obligations, or of the compensation, in light of the findings of the panel.
5. Paragraphs 6 to 9 of Article 25.21 (Compliance Review) apply if the panel reconvenes pursuant to paragraph 2.
Article 25.24. Suspension and Termination of Proceedings
1. On request of the Parties in writing, the panel shall suspend its work for a period agreed by the Parties not exceeding 12 consecutive months from such request.
2. In the event of a suspension of the work of the panel, the relevant time periods under this Chapter shall be extended by the same period of time for which the work of the panel was suspended.
3. The panel shall resume its work before the end of the suspension period at the written request of either Party.
4. If the work of the panel has been suspended for more than 12 consecutive months, the authority of the panel shall lapse and the dispute settlement procedure shall be terminated unless the Parties otherwise agree.
Article 25.25. Choice of Forum
1. Unless otherwise provided in this Article, this Chapter is without prejudice to the rights of the Parties to have recourse to dispute settlement procedures available under other international trade agreements to which the Parties are party.
2. If a dispute with regard to any matter arises under this Agreement and under another international trade agreement to which the Parties are party, including
1 For greater certainty, where a panel meets pursuant to this paragraph, it may also, on request of a Party, assess whether the level of any existing suspension of concessions or other obligations by the complaining Party is still appropriate and, if not, assess an appropriate level. the WTO Agreement, the complaining Party may select the forum in which to address that matter.
3. Once the complaining Party has selected the forum and initiated dispute settlement proceedings under this Chapter or under the other international trade agreement with respect to the particular matter referred to in paragraph 2, the selected forum shall be used to the exclusion of other for a unless the forum selected first fails to make findings on the issues in dispute for jurisdictional or procedural reasons.
4. For the purpose of paragraph 3:
(a) dispute settlement proceedings under this Chapter are deemed to be initiated when a Party requests the establishment of a panel in accordance with Article 25.8 (Request for Establishment of a Panel);
(b) dispute settlement proceedings under the WTO Agreement are deemed to be initiated when a Party requests the establishment of a panel in accordance with Article 6 of the DSU; and
(c) dispute settlement proceedings under any other international trade agreement are deemed to be initiated in accordance with the relevant provisions of that agreement.
Article 25.26. Expenses
1. Unless the Parties otherwise agree, each Party shall bear the costs of its appointed panellist, and its own expenses and legal costs.
2. Unless the Parties otherwise agree, the costs of the chair of the panel and other expenses associated with the conduct of its proceedings shall be borne in equal parts by both Parties.
Article 25.27. Mutually Agreed Solution
1. The Parties may reach a mutually agreed solution at any time with respect to any dispute referred to in Article 25.4 (Scope of Application).
2. If a mutually agreed solution is reached during the panel proceedings, the Parties shall jointly notify the mutually agreed solution to the panel. Upon such notification, the proceedings of the panel shall be terminated.
3. Each Party shall take measures necessary to implement the mutually agreed solution within the agreed time period.
Article 25.28. Time Periods
1. All time periods referred to in this Chapter shall be counted in calendar days from the day following the act or fact to which they refer, unless otherwise specified in this Chapter.
2. Any time period referred to in this Chapter may be modified by mutual agreement of the Parties.
Annex 25A. RULES OF PROCEDURE FOR THE PANEL
Application
These Rules of Procedure (Rules) shall apply to proceedings of a panel established under Chapter 25 (Dispute Settlement), unless the Parties otherwise agree.
Definitions
For the purposes of this Annex:
assistant means a person who, under the terms of appointment of a panellist, conducts research or provides support for the panellist;
panellist means a member of a panel established under Article 25.8 (Request for Establishment of a Panel);
proceeding, unless otherwise specified, means the proceeding of a panel under this Chapter; and
staff, in respect of a panelist, means persons under the direction and control of the panelist, other than assistants.
Timetable
1. After consulting the Parties, the panel shall, as soon as practicable and if possible within 7 days after the establishment of the panel, fix the timetable for the panel process.
2. The panel process shall not exceed 180 days from the date of establishment of the panel until the date of the final report, unless the Parties otherwise agree.
3. If the panel considers there is a need to modify the timetable, it shall inform the Parties in writing of the proposed modification and the reason for it. In cases of urgency in accordance with Article 25.10 (Decision on Urgency) the panel, after consulting the Parties, shall adjust the timetable as appropriate and shall notify the Parties of such adjustment.
Notifications
4. Any written submission, request, notice or other document in a panel proceeding transmitted by:
(a) the panel, shall be sent to both Parties at the same time;
(b) a Party to the panel, shall be copied to the other Party at the same time; and
(c) a Party to the other Party, shall be copied to the panel at the same time where appropriate.
5. Any written submission, request, notice or other document in a panel proceeding shall be made by email, or if the Parties agree, by any other means of telecommunication that provides a record of the sending thereof. Unless proven otherwise, such notification shall be deemed to be received on the same date of its sending. The date of sending shall be determined according to the time zone in the capital city of the sending Party.
6. Minor errors of a clerical nature in any written submission, request, notice or other document in a panel proceeding may be corrected by delivery of a new document clearly indicating the changes. Any such correction shall not affect the timetable for the panel proceeding.
Written Submissions
7. The complaining Party shall deliver its first written submission to the panel no later than 20 days after the date of establishment of the panel. The responding Party shall deliver its first written submission no later than 40 days after the date of delivery of the complaining Party’s first written submission.
8. Within 10 days of the conclusion of a hearing, each Party may deliver to the panel and the other Party a supplementary written submission responding to any matter that arose during the hearing.
Operation of the Panel
9. The chair of the panel shall preside at all of its meetings, and shall fix the date and time of the hearing in consultation with the Parties and other members of the panel. The panel may delegate to the chair the authority to make administrative and procedural decisions.
10. Except as otherwise provided in these Rules, the panel may conduct its activities by any means, including telephone, email, video-conference, or any other means of electronic communication.
11. Panel deliberations shall be confidential. Only panellists may take part in the deliberations of the panel, but the panel may permit assistants or designated note takers to be present during such deliberations. The drafting of any report shall remain the exclusive responsibility of the panel. The panel shall draft its reports without the presence of the Parties in light of the information provided and the statements made.
12. Opinions expressed in the panel report by individual panellists shall be anonymous.
Appointment of Chair
13. If the chair is to be selected by draw of lot pursuant to Article 25.9 (Composition of a Panel), the complaining Party shall promptly notify in writing the responding Party of the date, time and venue of the selection by lot, unless the Parties agree otherwise. The selection by lot shall take place within 10 days of the date of delivery of the notification. The responding Party shall have a reasonable opportunity to be present when the lot is drawn.
Replacement of Panellists
14. If a panellist resigns or becomes unable to act, the panellist shall notify the Parties, and a successor panellist shall be appointed in accordance with Article 25.9 (Composition of a Panel).
15. If any Party considers that a panellist has violated the Code of Conduct, it shall notify the other Party as soon as practicable after the date on which it obtained sufficient evidence of the panellist’s alleged failure to comply with the requirements of the Code of Conduct. The Parties shall seek to reach agreement as to whether or not there has been a violation no later than 10 days after the notification.
16. If the Parties agree that a panellist has violated the Code of Conduct, they may remove the panellist, waive the violation or request the panellist to take steps within a specified time period to ameliorate the violation. If the Parties agree to waive the violation or determine that, after amelioration, the violation has ceased, the panellist may continue to serve on the panel.
17. If the Parties fail to agree on the need to replace a panellist other than the chair of the panel, a Party may refer this matter to the chair of the panel, whose decision shall be final. If the chair finds that the panellist does not comply or has not complied with the requirements of the Code of Conduct, a new panellist shall be selected in accordance with Article 25.9 (Composition of a Panel).
18. If the Parties fail to agree on the need to replace the chair of the panel, a Party may refer the matter to the Secretary-General of the Permanent Court of Arbitration, whose decision shall be final. If the Secretary General of the Permanent Court of Arbitration finds that the chair does not comply or has not complied with the requirements of the Code of Conduct, a new chair shall be selected in accordance with Article 25.9 (Composition of a Panel).
19. The work of the panel, including any applicable time periods, shall be suspended for the period of time taken to carry out the procedures in paragraphs 14 through 19.
Hearings
20. The Parties shall be given the opportunity to attend hearings and meetings of the panel.
21. The panel shall provide for at least one hearing for the Parties to present their cases to the panel.
22. The panel may convene additional hearings and may decide not to convene a hearing at all if the Parties so agree.
23. All panellists shall be present during the entirety of each hearing. Panel hearings shall be held in closed session with only the panellists and the Parties in attendance. However, in consultation with the Parties, assistants, translators or designated note takers may also be present at hearings to assist the panel in its work. Any such arrangements established by the panel may be modified with the agreement of the Parties.
24. The hearing shall be conducted by the panel in a manner ensuring that the complaining Party and the responding Party are afforded equal time to present their case. The panel shall conduct the hearing in the following manner:
Argument
(a) argument of the complaining Party;
(b) argument of the responding Party;
Rebuttal Argument
(c) the reply of the complaining Party;
(d) the counter-reply of the responding Party;
Closing Statement
(e) closing statement of the complaining Party;
(f) closing statement of the responding Party.
25. The chair may set time limits for oral arguments to ensure that each Party is afforded equal time.
Written Questions
26. The panel may direct written questions to either Party at any time during the proceedings. A Party to whom the panel addresses a written question shall deliver a written reply to the panel and the other Party in accordance with the timetable established by the panel.
27. Each Party shall be given the opportunity to provide written comments on the response of the other Party within the timetable established by the panel.
Confidentiality
28. The panel’s hearings and the documents submitted to it shall be confidential. Each Party shall treat as confidential, information submitted to the panel by the other Party which that Party has designated as confidential.