For the purposes of this Article:
“taxes” and “taxation measures” do not include:
a customs duty;
a fee or other charge in connection with importation commensurate with the cost of services rendered;
an anti-dumping or countervailing duty; or
a safeguard duty;
“direct taxes” comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total
amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation;3
“indirect taxes” comprise all taxation measures other than direct taxes; and
“tax convention” means the UK-India DTAA, or any other international taxation agreement or arrangement including any other convention for the avoidance of double taxation.
Nothing in this Agreement shall apply to direct taxes.
Nothing in this Agreement shall apply to indirect taxes, except for:
Article Article 2.4 (National Treatment – Trade In Goods), Including Article III of GATT 1994 as Incorporated Into this Agreement; and
Article Article 2.9 (Temporary Admission – Trade In Goods).
Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any tax convention, the tax convention shall prevail over this Agreement.
In the case of a tax convention between the Parties, the relevant competent authorities under that tax convention shall jointly determine whether an inconsistency exists between this Agreement and the tax convention.
With respect to direct taxes neither Party shall have recourse to dispute settlement under Chapter 29 (Dispute Settlement).
Nothing in this Agreement shall oblige a Party to apply any most-favoured- nation obligation in this Agreement with respect to an advantage accorded by a Party pursuant to a tax convention.
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information, the disclosure of which would be contrary to its law or would impede law enforcement, or otherwise be contrary to the public interest, or which
3 For greater certainty, “direct taxes” includes the taxes which are the subject of the Convention between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains done at New Delhi on 25 January 1993 (“the UK-India DTAA”) under Article 2 of that Convention.
would prejudice the legitimate commercial interests of particular enterprises, public or private.
Each Party shall, in accordance with its laws and regulations, maintain the confidentiality of information provided in confidence by the other Party pursuant to this Agreement.
Information provided in confidence pursuant to this Agreement shall be used only for the purposes specified by the Party providing the information.
Notwithstanding paragraph 1, the confidential information provided pursuant to this Agreement may be transmitted to a non-Party subject to prior consent of the Party providing the information.
Nothing in this Article shall prevent a Party from disclosing information where it is required to do so under its law, or to the extent it may be necessary in the context of judicial or quasi-judicial proceedings. In such situations, the Party that has received the information shall notify the other Party of the release or disclosure.
The National Health Service
The Parties recall the exclusions and exceptions in this Agreement that are applicable to the National Health Service of the United Kingdom4, including as set out in the relevant provisions of this Chapter, and Chapter 8 (Trade in Services), the Schedule of the United Kingdom in Annex 8B (Schedules of Specific Commitments), Chapter 13 (Intellectual Property Rights), and Chapter 15 (Government Procurement).
4 For greater certainty, the National Health Service of the United Kingdom includes the National Health Service in England, Scotland, Wales, and Health and Social Care in Northern Ireland.
For the purposes of this Chapter:
“cases of urgency” means those cases which concern goods that rapidly lose their quality, current condition, or commercial value, in a short period of time, including perishable goods;
“Code of Conduct” means the code of conduct referred to in Article 29.21 (Rules of Procedure and Code of Conduct) and set out in Annex 29B (Code of Conduct);
“complaining Party” means the Party that requests consultations under Article 29.7 (Consultations);
“panel” means a panel established under Article 29.8 (Request for Establishment of a Panel) or reconvened under Articles 29.14 (Compliance Review), 29.15 (Compensation and Suspension of Concessions or other Obligations), or 29.16 (Compliance Review after Suspension of Concessions or other Obligations);
“responding Party” means the Party to which a request for consultations is made under Article 29.7 (Consultations); and
“Rules of Procedure” means the rules of procedure referred to in Article 29.21 (Rules of Procedure and Code of Conduct) and set out in Annex 29A (Rules of Procedure).
The objective of this Chapter is to provide an effective, efficient, and transparent process for the avoidance or settlement of disputes between the Parties concerning the interpretation and application of this Agreement.
The Parties shall endeavour to agree on the interpretation and application of this Agreement and shall make every effort through cooperation and consultations to arrive at a mutually agreed solution with respect to any matter that might affect its operation or application.
Unless otherwise provided in this Agreement, this Chapter shall apply with respect to the avoidance or settlement of disputes between the Parties concerning the interpretation or application of this Agreement, wherever a Party considers that:
a measure of the other Party is inconsistent with its obligations under this Agreement; or
the other Party has otherwise failed to carry out its obligations under this Agreement.
This Chapter shall apply subject to such special and additional provisions on dispute settlement contained in other Chapters of this Agreement.
If a dispute arises regarding a right or obligation under this Agreement and a substantially equivalent right or obligation under another international agreement to which both Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.
The complaining Party shall be deemed to have selected the forum in which to settle the dispute when it has requested the establishment of, or referred the matter to, a panel or tribunal, pursuant to Article 29.8 (Request for Establishment of a Panel) or under the relevant provisions of the other international agreement.
Once the complaining Party has selected the forum in which to settle the dispute, that forum shall be used to the exclusion of all other fora1, unless the forum selected first fails to make findings on the issue in dispute for jurisdictional or procedural reasons.
Good Offices, Conciliation, or Mediation
The Parties may at any time agree to undertake an alternative method of dispute resolution, such as good offices, conciliation, or mediation.
If the Parties agree, procedures undertaken pursuant to paragraph 1 may continue while proceedings of the panel provided for in this Chapter are in progress.
1 For greater certainty, the exclusion of other fora includes the exclusion of consultations in those fora.
Procedures undertaken pursuant to paragraph 1 and, in particular, positions taken by the Parties during these procedures shall be confidential and without prejudice to the rights of a Party in any further or other proceedings.
A Party may suspend or terminate the procedures undertaken pursuant to paragraph 1 at any time.
The Parties shall endeavour to resolve any dispute referred to in paragraph 1 of Article 29.4 (Scope) through consultations in good faith, with a view to reaching a mutually agreed solution.
A Party may request consultations in writing pursuant to paragraph 1, setting out the reasons for the request, including identification of the measure at issue or other matter under Article 29.4 (Scope) and an indication including a brief description of the factual and legal basis for the complaint.
The responding Party shall reply in writing to the request no later than 10 days after the date of receipt of the request. Unless the Parties agree otherwise, consultations shall be held no later than 30 days, or 15 days in cases of urgency, after the date of receipt of the request.
Unless the Parties agree otherwise, consultations shall be deemed concluded 60 days, or 30 days in cases of urgency, after the date of receipt of the request.
In the consultations, each Party shall:
provide sufficient information to enable a full examination of how the measure at issue or other matter which is the subject of consultations might affect the operation or application of this Agreement;
treat any confidential information exchanged in the course of consultations in the same manner as treated by the Party providing the information; and
endeavour to ensure the participation of personnel of their competent governmental authorities or other regulatory bodies who have responsibility for or expertise in the matter subject to the consultations.
Consultations may be held in person or by any technological means available to the Parties. If the consultations are held in person, they shall be held in the capital of the responding Party, unless the Parties agree otherwise.
Consultations, and in particular, positions taken by the Parties during consultations, shall be confidential and without prejudice to the rights of a Party in any further or other proceedings.
Request for Establishment of a Panel
The complaining Party may request in writing the establishment of a panel to examine the matter arising under this Agreement if:
the responding Party does not reply to a request for, or enter into, consultations within the time period specified in paragraph 3 of Article
29.7 (Consultations); or
the Parties fail to resolve the dispute through consultations within the time period specified in paragraph 4 of Article 29.7 (Consultations).
The request for establishment of a panel shall set out the reasons for the request, including identification of:
the specific measure at issue or other matter;
whether consultations have been held; and
the factual and legal basis of the complaint sufficient to present the problem clearly, including the provisions of this Agreement alleged to have been breached.
When a complaining Party makes a written request for the establishment of a panel pursuant to paragraph 1, a panel shall be established in accordance with Article 29.9 (Composition of the Panel).
Appointment of Panellists
All nominations and appointments of panellists under this Article shall fully conform to the requirements in Article 29.10 (Qualifications of Panellists).
A panel shall be composed of three panellists, unless the Parties agree otherwise.
Each Party shall appoint one panellist, who may be a national of that Party.
The Parties shall jointly appoint the third panellist, who shall serve as the chair of the panel. To this end, each Party shall provide to the other Party a list of up to five nominees for the appointment of the chair. The chair of the panel shall not:
be a national of a Party;
have his or her usual place of residence in the territory of a Party;
be employed by a Party; or
have dealt with the dispute in any capacity.
Notwithstanding paragraph 4, the Parties may mutually agree to appoint the chair of the panel that does not meet the requirements of subparagraphs 4(a) through 4(d).
The Parties shall exchange the lists of nominees for the appointment of the chair no later than 20 days after the date of receipt of the written notification requesting the establishment of a panel.
Failure to Appoint a Panellist
If any of the three panellists have not been appointed 40 days after the delivery of the request for the establishment of a panel, on request of the complaining Party, the panellist shall be appointed by draw of lot in accordance with paragraphs 8 through 10.
Unless the Parties decide otherwise, the draw of lot shall take place no earlier than seven days and no later than 15 days after the date of delivery of the request for draw of lot. The complaining Party shall give reasonable opportunity for representatives of the responding Party to be present when the lot is drawn.
Where more than one panellist, including the chair, is to be selected by draw of lot, the chair shall be appointed first.
If a Party fails to submit the list of nominees in accordance with paragraph 6, the appointment shall be by draw of lot from the list of nominees submitted by the other Party.
Replacement of a Panellist
If a panellist appointed under this Article resigns or becomes unable to act, the panellist shall notify the Parties and a successor panellist shall be appointed in accordance with this Article and the Rules of Procedure. The panellist shall have all the powers and duties of the original panellist. The work of the panel, including any applicable time periods, shall be suspended beginning from the date when the original panellist becomes unable to act and ending on the date when the successor panellist is appointed.
Establishment of the Panel
The date of establishment of the panel shall be the date on which the last of the three selected panellists has notified to the Parties the acceptance of their appointment.
Reconvened Panels
If a panel is reconvened under Article 29.14 (Compliance Review), Article
29.15 (Compensation and Suspension of Concessions or other Obligations), or Article 29.16 (Compliance Review after Suspension of Concessions or other
Obligations), the reconvened panel shall, to the extent possible, have the same panellists as the original panel. If this is not possible, any successor panellist shall be appointed in accordance with this Article and shall have all the powers and duties of the original panellist.
All panellists appointed pursuant to Article 29.9 (Composition of the Panel) shall:
have demonstrated expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
be chosen on the basis of objectivity, reliability, and sound judgement;
be independent of, and not be affiliated with or take instructions from, a Party;
serve in their individual capacities and not take instructions from any organisation or government regarding matters related to the dispute; and
comply with the Code of Conduct.
The chair shall also have experience in dispute settlement procedures.
An individual shall not serve as a panellist for a dispute in which that person has participated under Article 29.6 (Good Offices, Conciliation, or Mediation).
If a Party believes that a panellist is in violation of any of these requirements, then in accordance with the Rules of Procedure, the Parties shall consult and, where agreed, shall replace the panellist with a new panellist in accordance with Article 29.9 (Composition of the Panel). The new panellist shall have all the powers and duties of the original panellist.
Unless the Parties agree otherwise, the panel shall perform its functions and conduct its proceedings in a manner consistent with this Agreement, the Rules of Procedure, and the Code of Conduct.
Panel Assessment
The panel shall make an objective assessment of the matter before it, including an examination of the facts of the dispute and the applicability of and
conformity with this Agreement, and to make the findings and determinations as required in its terms of reference.
A panel shall make its findings by consensus. If a panel is unable to reach consensus, it may make its findings by majority vote. A panel shall not disclose which panellists are associated with majority or minority opinions.
No finding, determination or recommendation of a panel can add to or diminish the rights and obligations of the Parties provided under this Agreement.
The panel, on joint request by the Parties, in its report and decisions, may suggest ways in which the responding Party could implement the panel’s findings.
Terms of Reference
Unless the Parties agree otherwise, within 20 days of the date of establishment of a panel, the terms of reference of the panel shall be to:
examine, in light of the relevant provisions of this Agreement cited by the Parties, the matter referred to in the request for the establishment of the panel; and
make findings of law and fact, and determinations, as provided for in this Agreement, together with the reasons therefor in a written report or decision as provided for in this Chapter.
The Parties shall notify the panel of other agreed terms of reference within the time period specified in paragraph 6.
Rules of Interpretation
The panel shall interpret this Agreement in accordance with the customary rules of interpretation of public international law. The panel shall also consider relevant interpretations in panel and Appellate Body reports adopted by the Dispute Settlement Body of the WTO.
The reports of a panel shall be drafted without the presence of the Parties. The panellists shall assume full responsibility for the drafting of the reports and shall not delegate this responsibility. Opinions expressed in the reports of the panel shall be anonymous. The reports shall include any separate or dissenting opinions on matters not unanimously agreed by the Panel.
2 For greater certainty paragraphs 3 through 9 shall not apply to a panel reconvened under Articles 29.14 (Compliance Review) through 29.15 (Compliance Review after Suspension of Concessions or other Obligations).
The panel shall base its reports on the relevant provisions of this Agreement, the submissions and arguments of the Parties, and on any information or advice it has obtained in accordance with the Rules of Procedure.
Interim Report
The panel shall issue its interim report to the Parties no later than 150 days, or no later than 120 days in cases of urgency, after the date of establishment of the panel.
The panel shall set out in its interim report:
a descriptive section summarising the submissions and arguments of the Parties;
its findings on the facts and the applicability of the provisions of this Agreement;
its findings on whether:
the measure at issue of the responding Party is inconsistent with its obligations under this Agreement;
the responding Party has otherwise failed to carry out its obligations under this Agreement;
any other findings jointly requested by the Parties; and
its reasons for the findings in subparagraphs (b) through (d).
In exceptional cases, if the panel considers that it cannot issue its interim report within the time period specified in paragraph 3, the panel shall promptly inform the Parties in writing of the reasons for the delay together with an estimate of when it will issue its interim report. The panel shall not exceed an additional period of 60 days, or 30 days in cases of urgency.
A Party may submit to the panel written comments no later than 20 days after the date of issuance of the interim report. After considering any written comments by the Parties on the interim report, the panel may modify its report and make any further examination it considers appropriate.
The interim report, and the contents of any comments made on an interim report, shall not be made public.
Final Report
The panel shall issue its final report to the Parties within 30 days of the issuance of its interim report.
The final report of the panel shall be binding on the Parties.
A Party may release a copy of the final report to the public. The release shall be subject to the protection of confidential information in accordance with the Rules of Procedure.
If the panel finds that the measure at issue of the responding Party is inconsistent with its obligations under this Agreement, or that it has failed to carry out its obligations under this Agreement, the responding Party shall take, promptly, any measure necessary to eliminate the non-conformity.
If immediate compliance is not possible, the responding Party shall, no later than 30 days after the date of issuance of the final report, notify the complaining Party that a reasonable period of time is necessary for compliance with the final report. The Parties shall endeavour to agree on the length of the reasonable period of time required to comply with the final report.
If the Parties are unable to agree on the reasonable period of time within 45 days after the date of issuance of the final report, the complaining Party may request in writing the chair of the panel to determine the length of the reasonable period of time. This request shall be made no later than 120 days after the date of issuance of the final report. The chair shall present the Parties with a decision in writing, together with reasons, no later than 45 days after the date of the request.
As a guideline, the reasonable period of time, where determined by the chair of the panel, shall not exceed 15 months in all cases, from the date of issuance of the final report to the Parties. The length of the reasonable period of time may be extended at any time by mutual agreement of the Parties.
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 it has taken to comply with the final report.
If the Parties disagree on the existence of any steps taken to comply with the final report or their consistency with this Agreement, the complaining Party may request, in writing, that the panel reconvene (hereinafter referred as the “compliance panel”) to decide the matter.
A request made pursuant to paragraph 1 may only be made after the earlier of either:
the expiry of the reasonable period of time established in accordance with Article 29.13 (Compliance with the Final Report); or
a notification by the responding Party, pursuant to paragraph 5 of Article 29.13 (Compliance with the Final Report), that it has complied with the final report.