5. In the event that any member of the original arbitration panel is no longer available, the procedures laid down in Article 14.5 shall apply. The period for issuing the ruling shall be 45 days from the date of the submission of the request referred to in paragraph 4.
6. The suspension of obligations shall be temporary and apply only until any measure found to be inconsistent with the provisions referred to in Article 14.2 has been withdrawn or amended so as to bring it into conformity with those provisions, as established under Article 14.12, or until the Parties have agreed to settle the dispute.
Article 14.12. Review of Any Measure Taken to Comply after the Suspension of Obligations
1. The Party complained against shall notify the complaining Party and the Trade Committee of any measure it has taken to comply with the ruling of the arbitration panel and of its request for the termination of the suspension of obligations applied bythe complaining Party.
2. If the Parties do not reach an agreement on the compatibility of the notified measure with the provisions referred to in Article 14.2 within 30 days of the date of the notification, the complaining Party shall request in writing the original arbitration panel to rule on the matter. Such request shall be notified to the Party complained against and to the Trade Committee. The arbitration panel ruling shall be issued to the Parties and to the Trade Committee within 45 days of the date of the submission of the request. If the arbitration panel rules that any measure taken to comply is in conformity with the provisions referred to in Article 14.2, the suspension of obligations shall be terminated.
3. In the event that any member of the original arbitration panel is no longer available, the procedures laid down in Article 14.5 shall apply. The period for issuing the ruling shall be 60 days from the date of the submission of the request referred to in paragraph 2.
Subsection C. COMMON PROVISIONS
Article 14.13. Mutually Agreed Solution
The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time. They shall notify the Trade Committee of any such solution. Upon notification of the mutually agreed solution, the procedure shall be terminated.
Article 14.14. Rules of Procedure
1. Dispute settlement procedures under this Chapter shall be governed by Annex 14-B.
2. Any hearing of the arbitration panel shall be open to the public in accordance with Annex 14-B.
Article 14.15. Information and Technical Advice
At the request of a Party, or upon its own initiative, the arbitration panel may obtain information from any source, including the Parties involved in the dispute, as it deems appropriate for the arbitration panel proceeding. The arbitration panel also has the right to seek the relevant opinion of experts as it deems appropriate. Any information obtained in this manner must be disclosed to both Parties which may submit comments. Interested natural or legal persons of the Parties are authorised to submit amicus curiae briefs to the arbitration panel in accordance with Annex 14-B.
Article 14.16. Rules of Interpretation
Any arbitration panel shall interpret the provisions referred to in Article 14.2 in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties. Where an obligation under this Agreement is identical to an obligation under the WTO Agreement, the arbitration panel shall adopt an interpretation which is consistent with any relevant interpretation established in rulings of the WTO Dispute Settlement Body (hereinafter referred to as the "DSB"). The rulings of the arbitration panel cannot add to or diminish the rights and obligations provided for in the provisions referred to in Article 14.2.
Article 14.17. Arbitration Panel Decisions and Rulings
1. The arbitration panel shall make every effort to take any decision by consensus. Where, nevertheless, a decision cannot be arrived at by consensus, the matter at issue shall be decided by majority vote. In no case shall dissenting opinions of arbitrators be published.
2. Any ruling of the arbitration panel shall be binding on the Parties and shall not create any rights or obligations for natural or legal persons. The ruling shall set out the findings of fact, the applicability of the relevant provisions of this Agreement and the basic rationale behind any findings and conclusions that it makes. The Trade Committee shall make the arbitration panel rulings publicly available in its entirety unless it decides not to do so.
Section D. GENERAL PROVISIONS
Article 14.18. List of Arbitrators
1. The Trade Committee shall, no later than six months after the entry into force of this Agreement, establish a list of 15 individuals who are willing and able to serve as arbitrators. Each Party shall propose five individuals to serve as arbitrators. The Parties shall also select five individuals who are not nationals of either Party and shall act as chairperson to the arbitration panel. The Trade Committee will ensure that the list is always maintained at this level.
2. Arbitrators shall have specialised knowledge or experience of law and international trade. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government with regard to matters related to the dispute, or be affiliated with the government of any Party, and shall comply with Annex 14-C.
Article 14.19. Relation with WTO Obligations
1. Recourse to the dispute settlement provisions of this Chapter shall be without prejudice to any action in the WTO framework, including dispute settlement action.
2. However, where a Party has, with regard to a particular measure, initiated a dispute settlement proceeding, either under this Chapter or under the WTO Agreement, it may not institute a dispute settlement proceeding regarding the same measure in the other forum until the first proceeding has been concluded. In addition, a Party shall not seek redress of an obligation which is identical under this Agreement and under the WTO Agreement in the two forums. In such case, once a dispute settlement proceeding has been initiated, the Party shall not bring a claim seeking redress of the identical obligation under the other Agreement to the other forum, unless the forum selected fails for procedural or jurisdictional reasons to make findings on the claim seeking redress of that obligation.
3. For the purposes of paragraph 2:
(a) dispute settlement proceedings under the WTO Agreement are deemed to be initiated by a Party's request for the establishment of a panel under Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes contained in Annex 2 of the WTO Agreement (hereinafter referred to as the "DSU") and are deemed to be concluded when the DSB adopts the Panel's report, and the Appellate Body's report as the case may be, under Articles 16 and 17.14 of the DSU; and
(b) dispute settlement proceedings under this Chapter are deemed to be initiated by a Party's request for the establishment of an arbitration panel under Article 14.4.1 and are deemed to be concluded when the arbitration panel issues its ruling to the Parties and to the Trade Committee under Article 14.7.
4. Nothing in this Agreement shall preclude a Party from implementing the suspension of obligations authorised by the DSB. The WTO Agreement shall not be invoked to preclude a Party from suspending obligations under this Chapter.
Article 14.20. Time Limits
1. All time limits laid down in this Chapter, including the limits for the arbitration panels to issue their rulings, shall be counted in calendar days, the first day being the day following the act or fact to which they refer.
2. Any time limit referred to in this Chapter may be extended by mutual agreement of the Parties.
Annex 14-A. MEDIATION MECHANISM FOR NON-TARIFF MEASURES
Article 1. Objective
The objective of this Annex is to facilitate the finding of a mutually agreed solution to non-tariff measures adversely affecting trade between the Parties through a comprehensive and expeditious procedure with the assistance of a mediator.
Article 2. Scope
The mediation mechanism shall apply to any measure, other than customs duties, which a Party believes adversely affects trade between the Parties and which is related to any matter falling under market access in goods (1) including under Chapter Two (National Treatment and Market Access for Goods) and the Annexes pertaining thereto.
Section A. PROCEDURE UNDER THE MEDIATION MECHANISM
Article 3. Initiation of the Mediation Procedure
1. A Party may request, at any time, that the other Party enter into a mediation procedure. Such request shall be addressed to the other Party in writing. The request shall be sufficiently detailed to present clearly the concerns of the requesting Party and shall:
(a) identify the specific measure at issue;
(b) provide a statement of the alleged adverse effects that the requesting Party believes the measure has on trade between the Parties; and
(c) explain how the requesting Party considers that those trade effects are linked to the measure.
2. The Party to which such request is addressed shall favourably consider the request and provide a written reply to the request within 15 days of its receipt.
Article 4. Selection of Mediator
1. Upon launch of the mediation procedure, the Parties are encouraged to agree ona mediator no later than 15 days after the receipt of the reply to the request. If the Parties cannot agree on the mediator within the established time frame, either Party may request appointment of the mediator by lot. Within five days of the submission of the request, each Party shall establish a list of at least three persons who are not nationals of that Party, fulfil the conditions of paragraph 2 and may act as mediator. Within five days of submission of the list, each Party shall select at least one name from the other Party's list. The chair of the Trade Committee or the chair's delegate shall then select the mediator by lot among the selected names. The selection by lot shall be made in the presence of representatives of the Parties and within 15 days of the submission of the request for appointment by lot.
2. The mediator shall be an expert on the subject matter to which the measure in question relates. (2) The mediator shall assist, in an impartial and transparent manner, the Parties in bringing clarity to the measure and its possible trade effects, and in reaching a mutually agreed solution.
Article 5. Rules of the Mediation Procedure
1. In the initial stage of the procedure, within 10 days of the appointment of the mediator, the Party having launched the mediation procedure shall present, in writing, a detailed description of the problem to the mediator and to the other Party, in particular of the operation of the measure at issue and its trade effects. Within 20 days of the date of delivery of this submission, the other Party may provide, in writing, its comments to the description of the problem. Either Party may include in its description or comments any information that it deems relevant.
2. The mediator may decide on the most appropriate way of conducting the initial stage, in particular whether to consult the Parties jointly or individually, seek the assistance of or consult with relevant experts and stakeholders.
3. Following the initial stage, the mediator may provide an advisory opinion and propose a solution for the Parties' consideration. In any such opinion, the mediator shall not consider whether the measure at issue is consistent or not with this Agreement; nor shall the mediator question the legitimacy of the policy objectives of the measure. The mediator may meet individually or jointly with the Parties in order to facilitate a mutually agreed solution. This stage of the procedure shall normally be completed within 60 days of the date of the appointment of the mediator.
4. The procedure shall be confidential and shall take place in the territory of the Party to which the request was addressed, or by a mutual agreement in any other location or by any other means.
5. The procedure shall be terminated:
(a) by the signature of a settlement agreement by the Parties, on the date of that signature;
(b) by a mutual agreement of the Parties at any stage of the procedure, on the date of that agreement;
(c) by a written declaration of the mediator, after consultation with the Parties, that further efforts at mediation are no longer justified; or
(d) by a written declaration of a Party after exploring mutually agreed solutions under the mediation procedure and after having considered any advisory opinions and proposals by the mediator.
Section B. IMPLEMENTATION
Article 6. Implementation of a Mutually Agreed Solution
1. Where the Parties have agreed to a solution, each Party shall take any measure necessary to implement the mutually agreed solution without undue delay.
2. The implementing Party shall inform the other Party in writing of any steps or measures taken to implement the mutually agreed solution.
Section C. GENERAL PROVISIONS
Article 7. Relationship to Dispute Settlement
1. The procedure under this mediation mechanism is not intended to serve as a basis for dispute settlement procedures under this Agreement or another agreement. A Party shall not rely on or introduce as evidence in such dispute settlement procedures:
(a) positions taken by the other Party in the course of the mediation procedure;
(b) the fact that the other Party has indicated its willingness to accept a solution to the non-tariff measure subject to mediation; or
(c) proposals made by the mediator.
2. The mediation mechanism is without prejudice to the Parties' rights and obligations under Chapter Fourteen (Dispute Settlement).
Article 8. Time Limits
Any time limit referred to in this Annex may be extended by mutual agreement of the Parties.
Article 9. Costs
1. Each Party shall bear its own expenses derived from the participation in the mediation procedure.
2. The Parties shall share the expenses derived from organisational matters, including the expenses of the mediator.
Article 10. Review
1. The Parties agree that any matter not falling within the scope defined in Article 14.2 shall become subject to the mediation mechanism if WTO Members agree on the establishment of a corresponding mechanism (3) that covers such matter. The extension of the scope of application shall be as from the date of application of the latter agreement. This shall also apply to any further extensions of the scope of application of the WTO corresponding mechanism.
2. Five years after the entry into force of this Agreement, the Parties shall consult each other on the need to modify the mediation mechanism in light of the experience gained and the development of a corresponding mechanism in the WTO.
Annex 14-B. RULES OF PROCEDURE FOR ARBITRATION
Article 1. General Provisions
1. For the purposes of Chapter Fourteen and this Annex:
adviser means a person retained by a Party to advise or assist that Party in connection with the arbitration panel proceeding;
arbitrator means a member of an arbitration panel established under Article 14.5;
assistant means a person who, under the terms of appointment of an arbitrator, conducts researches or provides assistance;
representative of a Party means an employee of, or any person appointed by, a government or a government department of a Party according to its law;
complaining Party means any Party that requests the establishment of an arbitration panel under Article 14.4;
Party complained against means the Party that is alleged to be in violation of the provisions referred to in Article 14.2;
arbitration panel means a panel established under Article 14.5; and
day means a calendar day.
2. The Party complained against shall be in charge of the logistical administration of dispute settlement proceedings, in particular the organisation of hearings, unless otherwise agreed. The Parties shall share the expenses derived from organisational matters, including the expenses of the arbitrators.
Article 2. Notifications
1. The Parties and the arbitration panel shall transmit any request, notice, written submission or other document by delivery against receipt, registered post, courier, facsimile transmission, telex, telegram or any other means of telecommunication that provides a record of the sending thereof.
2. A Party shall provide a copy of each of its written submissions to the other Party and to each of the arbitrators. A copy of the document shall also be provided in electronic format.
3. All notifications shall be addressed to the Ministry of Trade, Industry and Energy of Korea, or its successor and to the Department for International Trade of the United Kingdom, or its successor, respectively.
4. Minor errors of a clerical nature in any request, notice, written submission or other document related to the arbitration panel proceeding may be corrected by delivery of a new document clearly indicating the changes.
5. If the last day for delivery of a document falls on a legal holiday of Korea or the United Kingdom, the document may be delivered on the next business day.
Article 3. Commencing the Arbitration
1. (a) If pursuant to Article 14.5, the members of the arbitration panel are selected by lot, the chair of the Trade Committee, or the chair's delegate, shall select the arbitrators within five days of the request referred to in Article 14.5.3. The selection shall be done in the presence of a representative of each Party unless a Party fails to appoint its representative.
(b) Unless the Parties agree otherwise, they shall meet the arbitration panel within seven days of its establishment in order to determine such matters as the Parties or the arbitration panel deems appropriate, including the remuneration and expenses to be paid to the arbitrators, which will be in accordance with WTO standards.
2. (a) Unless the Parties agree otherwise, within five days from the date of establishment of the arbitration panel, the terms of reference of the arbitration panel shall be:
"to examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for establishment of the arbitration panel, to rule on the compatibility of the measure in question with the provisions referred to in Article 14.2 and to make a ruling in accordance with Article 14.7.".
(b) The Parties must notify the agreed terms of reference to the arbitration panel within two days of their agreement.
Article 4. Initial Submissions
The complaining Party shall deliver its initial written submission no later than 20 days after the date of establishment of the arbitration panel. The Party complained against shall deliver its written counter-submission no later than 20 days after the date of delivery of the initial written submission.
Article 5. Working of Arbitration Panels
1. The chairperson of the arbitration panel shall preside at all its meetings. An arbitration panel may delegate to the chairperson authority to make administrative and procedural decisions.
2. Unless otherwise provided for in this Agreement, the arbitration panel may conduct its activities by any means, including telephone, facsimile transmissions or computer links.
3. Only arbitrators may take part in the deliberations of the arbitration panel, but the arbitration panel may permit its assistants to be present at its deliberations.
4. The drafting of any ruling shall remain the exclusive responsibility of the arbitration panel and must not be delegated.
5. Where a procedural question arises that is not covered by the provisions of this Agreement, an arbitration panel may adopt an appropriate procedure that is compatible with those provisions.
6. When the arbitration panel considers that there is a need to modify any time limit applicable in the proceedings or to make any other procedural or administrative adjustment, it shall inform the Parties in writing of the reasons for the change or adjustment and of the period or adjustment needed. The time limits of Article 14.7.2 shall not be modified.
Article 6. Replacement
1. If an arbitrator is unable to participate in the proceeding, withdraws, or must be replaced, a replacement shall be selected in accordance with Article 14.5.3.
2. Where a Party considers that an arbitrator does not comply with the requirements of Annex 14-C and for this reason should be replaced, the Party should notify the other Party within 15 days from the time at which it came to know of the circumstances underlying the arbitrator's material violation of Annex 14-C.
3. Where a Party considers that an arbitrator other than the chairperson does not comply with the requirements of Annex 14-C, the Parties shall consult and, if they so agree, replace the arbitrator and select a replacement following the procedure set out in Article 14.5.3.
If the Parties fail to agree on the need to replace an arbitrator, any Party may request that such matter be referred to the chairperson of the arbitration panel, whose decision shall be final.
If the chairperson finds that an arbitrator does not comply with the requirements of Annex 14 C, he or she shall select a new arbitrator by lot among the pool of individuals referred to under Article 14.18.1 of which the original arbitrator was a member. If the original arbitrator was chosen by the Parties pursuant to Article 14.5.2, the replacement shall be selected by lot among the pool of individuals that have been proposed by the complaining Party and by the Party complained against under Article 14.18.1.
4. Where a Party considers that the chairperson of the arbitration panel does not comply with the requirements of Annex 14-C, the Parties shall consult and, if they so agree, replace the chairperson and select a replacement following the procedure set out in Article 14.5.3.
If the Parties fail to agree on the need to replace the chairperson, any Party may request that such matter be referred to one of the remaining members of the pool of individuals selected to act as chairpersons under Article 14.18.1. His or her name shall be drawn by lot by the chair of the Trade Committee, or the chair's delegate. The decision by this person on the need to replace the chairperson shall be final.
If this person decides that the original chairperson does not comply with the requirements of Annex 14-C, he or she shall select a new chairperson by lot among the remaining pool of individuals referred to under Article 14.18.1 who may act as chairperson.
5. Any selection by lot provided for in paragraphs 1, 3 and 4 shall be done in the presence of a representative of each Party unless a Party fails to appoint its representative, and within five days of the date of the submission of the request.
6. The arbitration panel proceedings shall be suspended for the period taken to carry out the procedures provided for in paragraphs 1 through 4.
Article 7. Hearings
1. The chairperson shall fix the date and time of the hearing in consultation with the Parties and the other members of the arbitration panel, and confirm this in writing to the Parties. This information shall also be made publicly available by the Party in charge of the logistical administration of the proceedings unless the hearing is closed to the public. Unless the Parties disagree, the arbitration panel may decide not to convene a hearing.
2. Unless the Parties agree otherwise, the hearing shall be held in London if the complaining Party is Korea and in Seoul if the complaining Party is the United Kingdom.
3. The arbitration panel may convene additional hearings if the Parties so agree.
4. All arbitrators shall be present during the entirety of any hearing.
5. The following persons may attend the hearing, irrespective of whether the hearing is closed to the public or not:
(a) representatives of the Parties;
(b) advisers to the Parties;
(c) administrative staff, interpreters, translators and court reporters; and
(d) arbitrators assistants. Only the representatives and advisers of the Parties may address the arbitration panel.
6. No later than five days before the date of a hearing, each Party shall deliver to the arbitration panel a list of the names of persons who will make oral arguments or presentations at the hearing on behalf of that Party and of other representatives or advisers who will be attending the hearing.
7. The hearings of the arbitration panels shall be open to the public, unless the Parties decide that the hearings shall be partially or completely closed to the public. The arbitration panel shall meet in closed session when the submission and arguments of a Party contain confidential commercial information.
8. The arbitration panel shall conduct the hearing in the following manner, ensuring that the complaining Party and the Party complained against are afforded equal time:
argument
(a) argument of the complaining Party; and
(b) argument of the Party complained against, rebuttal argument
(a) argument of the complaining Party; and
(b) counter-reply of the Party complained against.
9. The arbitration panel may direct questions to either Party at any time during the hearing.
10.The arbitration panel shall arrange for a transcript of each hearing to be prepared and delivered as soon as possible to the Parties.
11. Each Party may deliver a supplementary written submission concerning any matter that arises during the hearing within 10 days of the date of the hearing.
Article 8. Questions In Writing
1. The arbitration panel may at any time during the proceedings address questions in writing to a Party or both Parties. Each Party shall receive a copy of any questions put by the arbitration panel.
2. A Party shall also provide a copy of its written response to the arbitration panel's questions to the other Party. Each Party shall be given the opportunity to provide written comments on the other Party's reply within five days of the date of delivery.
Article 9. Confidentiality
The Parties and their advisers shall maintain the confidentiality of the arbitration panel hearings where the hearings are held in closed session, in accordance with Article 7.7 of this Annex. Each Party and its advisers shall treat as confidential any information submitted by the other Party to the arbitration panel which that Party has designated as confidential. Where a Party submits a confidential version ofits written submissions to the arbitration panel, it shall also, upon request of the other Party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public no later than 15 days after the date of either the request or the submission, whichever is later. Nothing in this Article shall preclude a Party from disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other Party, it does not disclose any information designated by the other Party as confidential.