Minister of Production, Foreign Trade and Investment and Fisheries, his delegate or successor.
Article Annex 23.1.4. Implementation of the Decisions Approved by the Administrative Commission
The Parties shall implement the decisions of the Administrative Commission referred to in article 23. 1.4, according to the following procedure:
(a) Costa Rica, the decisions of the Administrative Commission shall be equivalent to the instrument referred to in Article 121.4, third paragraph, (protocol of lower rank), of the Political Constitution of the Republic; and.
(b) for Ecuador, depending on the type of decisions of the Commission, by Executive Decree, Ministerial Agreement, Resolution of the Foreign Trade Committee, or its successor, or any other administrative act provided by its national legislation.
Annex 23.3. Agreement Coordinators
The Coordinators of the Agreement will be:
(a) for Costa Rica, the Director General of Foreign Trade of the Ministry Foreign Trade, his or her designee or successor; and
(b) for Ecuador, the unit designated by the Vice Ministry of Foreign Trade of the Ministry of Production, Foreign Trade, Investment and Fisheries, or its successor.
Chapter 24. Dispute Settlement
Article 24.1. General Provisions
1. This Chapter seeks to provide an effective, efficient and transparent dispute resolution process between the Parties with respect to the rights and obligations provided for in this Agreement.
2. The Parties shall at all times endeavor to reach agreement on the interpretation and application of this Agreement and shall make every effort, through cooperation, consultation or other means, to reach a mutually satisfactory resolution of any matter that might affect its operation.
3. All solutions of matters arising under the provisions of this Chapter shall be consistent with this Agreement and shall not nullify or impair the benefits resulting therefrom, nor shall they impede the attainment of its objectives.
Article 24.2. Scope of Application
Except as otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply to the prevention or settlement of all disputes between the Parties relating to the application or interpretation of this Agreement, or where a Party considers that:
(a) an existing or proposed measure of the other Party is or may be inconsistent with the obligations of this Agreement;
(b) the other Party has failed in any way to comply with the obligations of this Agreement; or
(c) an existing or proposed measure of the other Party causes or may cause nullification or impairment within the meaning of Annex 24.2.
Article 24.3. Election of the Forum
1. Disputes arising in respect of the same subject matter that is covered by this Agreement, the WTO Agreement and any other trade agreement to which the Parties are parties may be resolved in any of those fora, at the option of the complaining Party.
2. It shall be understood that two proceedings deal with the same matter when they refer to the same measure or to the same allegation of non-conformity or annulment or impairment.
3. Once the complaining Party has requested the establishment of a panel under this Chapter or under one of the treaties referred to paragraph 1, or has requested the establishment of a panel under the Understanding on Rules and Procedures Governing the Settlement of Disputes, which is part of the WTO Agreement, the forum selected shall be exclusive of the others.
4. Where there is more than one dispute concerning the same matter under this Agreement, they shall, to the extent possible, be heard by the same panel, if the Parties so agree.
5. Nothing in this Agreement shall be construed to prevent a Party from taking a measure consistent with the WTO Agreement, including a suspension of concessions and other obligations authorized by the WTO Dispute Settlement Body, or a measure authorized under a dispute settlement procedure of another trade agreement to which both Parties are parties.
Article 24.4. Consultations
1. A Party may request in writing to the other Party consultations with respect to any matter referred to in Article 24.2.
2. Pursuant to Article 24.2, the requesting Party shall deliver the written request to the other , in which it shall state the reasons for request, including identification of measure and an indication of the legal basis of the complaint.
3. The Party to which the request for consultations was addressed shall respond in writing within 10 days from the date of receipt of the request, unless the Parties agree otherwise.
4. The Parties shall hold the consultations within a maximum period of 30 days from the date of receipt of the request, unless the Parties agree on another period.
5. In cases of urgency, including those involving perishable goods or goods or services that rapidly lose their commercial value, such as certain seasonal goods or services, consultations shall begin within 15 days from the date of receipt of the request by the other Party.
6. The consulting Party may request the other Party to make available the personnel of its governmental institutions or other regulatory agencies having technical knowledge of the subject matter of the consultations. The Parties shall make every effort to provide cach other with the information requested during the consultations.
7. The Parties shall make every effort to arrive at a mutually satisfactory solution of any matter through consultations, in accordance with the provisions of this Article. For these purposes, each Party:
(a) provide sufficient information to permit a full review of the measure that could affect the operation and implementation of this Agreement, in accordance with Article 24.2; and
(b) shall treat confidential or proprietary information received during consultations in the same manner as that accorded to it by the Party that provided it.
8. Consultations shall be confidential and without prejudice to the rights of the Parties in proceedings under this Chapter.
9. Consultations may be held in person or by any technological means, unless the Parties agree otherwise. When the Parties decide that the consultations shall be face-to-face, they shall be held in the capital of the consulted Party.
10. Unless otherwise agreed by the Parties, the consultation period shall at 60 days from the date of receipt of the request for consultations.
Article 24.5. Good Offices, Conciliation and Mediation
1. The Parties may agree at any time to use methods such as good offices, conciliation or mediation. Such procedures may be commenced at any time and may be suspended or terminated at any time by either Party.
2. The procedures established pursuant to this Article shall be conducted in accordance with the procedures agreed upon by the Parties.
3. Proceedings involving good offices, conciliation and mediation shall be confidential and without prejudice to the rights of the Parties in any other proceedings.
Article 24.6. Establishment of a Panel
1. Unless the Parties agree otherwise and without prejudice to paragraph 5, the Party that requested consultations under Article 24.4. may request the establishment of a panel:
(a) if the Party consulted does not respond to the request within the time limit established in paragraph 3 of Article 24.4;
(b) if the Parties fail to consult within the time limits set forth in paragraphs 4 and 5 of Article 24.4, respectively;
(c) if the Parties have not resolved the matter that is the subject of the consultations within the time limit set forth in paragraph 10 of Article 24.4; or
(d) in any other term agreed upon by the Parties.
2. The complaining Party shall deliver to the other Party a written request for the establishment of a panel, in which it shall state the reason for the request and indicate:
(a) the specific measures or other matter complained of, in accordance with Article 24.2;
(b) the legal basis of the complaint, including the provisions of this Agreement that are possibly being violated and any other relevant provisions; and
(c) the factual basis of the claim and with sufficient information to present the problem clearly.
3. With the submission of the application, the panel will be deemed to have been established.
4. Unless otherwise agreed by the Parties, the panel shall be composed and perform its functions in accordance with the provisions of this Chapter.
5. A panel may not be established to review a draft measure.
Article 24.7. Qualifications of Panelists
1. All panelists shall:
(a) have at least 10 years of specialized knowledge and demonstrable experience in law, international trade, and other matters related to this Agreement in the resolution of disputes arising from international trade agreements;
(b) be selected strictly on the basis of their objectivity, impartiality, reliability and sound judgment;
(c) be independent, not be related to, and not receive instructions from, any of the Parties; and
(d) comply with the Code of Conduct established by the Commission, in accordance with Article 23.1 (The Administrative Commission).
2. The chairman of the panel, in addition to meeting the requirements set forth in paragraph 1, shall be a jurist.
3. Persons who have been involved in any of the proceedings referred to in Article 24.5 may not serve as panel members in the same dispute.
4. Panel members, upon accepting their appointment, shall undertake in writing to act in accordance with the provisions of this Chapter, the Rules of Procedure, the Code of Conduct and this Agreement.
Article 24.8. Selection of the Panel
The Parties shall apply the following procedures in the selection of panel members:
(a) the panel will be composed of three members;
(b) each Party shall, within 15 days after the date of receipt of the request for the establishment of the panel, propose up to four candidates who are not nationals of the Parties for the position of chairperson of the panel and notify other Party in writing;
(c) the Parties shall make every effort to appoint by mutual agreement the chairperson of the panel, from among the candidates proposed by the Parties, within 20 days after the expiration of the period provided for in subparagraph (b). If within that time the Parties are unable to agree on the appointment of the chairman, the chairman shall be selected by lot from among the candidates that have been proposed. The drawing of lots shall be carried out in accordance with the provisions of the Rules of Procedure, and take place within seven days after the expiration of the 20-day period;
(d) within 15 days after the election of the chairperson, each Party shall select a panelist;
(e) if a Party fails to appoint a panelist within the stipulated time limit, the panelist shall be selected by the other Party within five days thereafter from among the candidates who have been proposed for the chairmanship;
(f) In the event of the death, disqualification, incapacity or resignation of a panellist appointed by a Party, that Party shall appoint a new panellist within 15 days; otherwise, the appointment of the new panellist shall be made in accordance with subparagraph (e). In the event of the death, disqualification, inability or resignation of the chairperson of the panel, the parties shall agree on the appointment of a replacement within 15 days, failing which the replacement shall be appointed in accordance with subparagraph (c). If there are no further candidates, each Party shall propose up to three additional candidates within a further 20 days and the panellist or chair shall be selected by lot drawn up in accordance with the Rules of Procedure within the following seven days from among the proposed candidates;
(g) in either case, any term shall be suspended from the date on which the panelist or chairperson is unable to serve, and the suspension shall terminate on the date of selection of the replacement. The successor shall assume the duties and responsibilities of the original panelist;
(h) any Party may challenge a panelist or a candidate in accordance with the provisions of the Rules of Procedure and the Code of Conduct,
(i) the members of the panel, upon accepting their appointment, shall undertake in writing to act in accordance with the Rules of Procedure, the Code of Conduct and the provisions of this Chapter, and
(j) the date of formation of the panel shall be the date on which the last panelist has accepted his or her appointment.
Article 24.9. Role of the Panel
1. The function of the panel is to make an objective evaluation of the dispute submitted to it, including a review of the facts of the case, the applicability and compliance with this Agreement. It shall also make findings, determinations and recommendations for the resolution of the dispute submitted to it.
2. The panel shall consult regularly with the Parties and give them adequate opportunity to reach a mutually satisfactory solution.
3. The panel shall make its findings, determinations and recommendations based on the provisions of this Agreement, its analysis of the facts of the case, the arguments and evidence presented by the Parties, the provisions of international law applicable to the matter, and in accordance with the rules of treaty interpretation as reflected Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969. With respect to any provision of the WTO Agreement that has been incorporated into this Agreement, the panel may also consider the relevant interpretations contained in the WTO panel and Appellate Body reports adopted by the WTO Dispute Settlement Body.
Article 24.10. Rules of Procedure
1. The Commission shall establish the Rules of Procedure, in accordance with Article 23.1 (The Administrative Commission).
2. Any panel established under this Chapter shall follow the Rules of Procedure. A panel may establish, in consultation with the Parties, supplementary rules of procedure that do not conflict with the provisions of this Agreement and the Rules of Procedure.
3. Unless otherwise agreed by the Parties, the Rules of Procedure shall ensure:
(a) that the procedures shall guarantee the right to at least one hearing before the panel, as well as the opportunity to present pleadings and rebuttals;
(b) that the hearings before the panel, the deliberations, as well as all written submissions and communications made in the proceeding, shall be confidential;
(c) that all submissions and comments made by a Party to the panel shall be made available to the other Party;
(d) that the panel shall consider requests from non-governmental entities from the territories of the disputing Parties to provide written opinions related to the dispute that may assist the panel in evaluating the submissions and arguments of the disputing Parties;
(e) the protection of information that cither Party designates as confidential information; and
(f) the possibility of using technological means to carry out the procedures, provided that the means used does not diminish the right of a Party to participate in the procedures and that its authenticity can be guaranteed.
4. Unless otherwise agreed by the Parties within 15 days of the establishment of the panel, the terms of reference of the panel shall be:
"To examine, in an objective manner and in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of the panel and to make findings, determinations and recommendations as provided in Article 24.11."
5. If the complaining Party alleges in the request for the establishment of the panel that a matter has caused nullification or impairment of benefits within the meaning of subparagraph (c) of Article 24.2, the terms of reference shall so state.
6. If a Party wishes the panel to make findings on the level of adverse trade effects on a Party as a result of any measure found to be inconsistent with the obligations of this Agreement, the terms of reference should so state.
7. At the request of a Party or on its own initiative, the panel may seck information and technical advice from such experts as it deems necessary, provided that the Parties so agree, and upon such terms and conditions as the Parties may agree, in accordance with the Rules of Procedure.
8. The panel shall delegate to the chairperson the authority to make administrative and procedural decisions.
9. The panel may, in consultation with the Parties, modify any time limit for its proceedings and make such other administrative or procedural adjustments as may be required for the transparency and efficiency of the proceeding.
10. The panel shall seek to adopt its report by consensus. If this is not possible, it may adopt them by majority vote, in accordance with the provisions of article 24.12.
11. Panelists may submit separate opinions on matters on which a unanimous decision was not reached. The panel may not disclose the identity of the panelists who have expressed a majority or minority opinion.
12. Unless otherwise agreed by the Parties, the expenses of the panel, including the remuneration of its members, shall be borne equally, in accordance with the Rules of Procedure.
Article 24.11. Preliminary Report
1. The panel shall base its preliminary report on the relevant provisions of this Agreement, the written submissions and arguments of the Parties, or any information received by the panel pursuant to Article 24.10.
2. Unless otherwise agreed by the Parties, the panel shall submit the preliminary report to the Parties within 90 days, or 60 days in urgent cases, of the acceptance of the last panelist.
3. Only in exceptional cases, if the panel considers that it cannot issue its preliminary report within the time limits referred to in paragraph 2, it shall inform the Parties in writing of the reasons justifying the delay, together with an estimate of the time within which it will issue its preliminary report. Any delay shall not exceed an additional 30 days, unless the Parties agree otherwise.
4. The preliminary report will contain:
(a) a summary of the Parties! briefs and oral arguments;
(b) conclusions, with factual and legal grounds;
(c) determinations as to whether or not a Party has complied with its obligations under this Agreement and any other determinations requested in the mandate; and
(d) its recommendations for the implementation of the decision, when requested by any of the Parties.
5. The panel shall not disclose confidential information in any of its preliminary reports, but may state conclusions derived from such information.
Article 24.12. Final Report
1. A Party to the dispute may submit written comments or requests for clarification in writing on the preliminary report to the panel within 15 days of the submission of the preliminary report, or within any other period of time established by the panel. After considering such comments and requests, the panel shall endeavor to respond to such comments and requests and, to the extent it deems appropriate, shall develop additional analysis. For this purpose, the panel may, on its own motion or at the request of a Party:
(a) request comments from any Party;
(b) conduct any due diligence it deems appropriate; or (c) reconsider the preliminary report.
2. The panel shall submit the final report to the Parties within 30 days of the submission of the preliminary report, unless the Parties agree on a different deadline.
3. The final report of the panel shall be final, unappealable and binding on the Parties upon receipt of the respective notification. It shall be adopted in accordance with paragraph 10 of Article 24.10, shall be reasoned, and shall be signed by the chair of the panel and by the other panelists.
Article 24.13. Emergency Cases
In cases of urgency, the time limits established in this Chapter shall be reduced by half, unless otherwise provided herein.
Article 24.14. Compliance with the Report
1. The final report shall be binding on the disputing Parties under the terms and within the time limits ordered by it, which shall not exceed six months from its notification, unless the Parties agree otherwise.
2. Where the final report of the panel finds that the measure is inconsistent with this Agreement, the Party complained against shall refrain from implementing the measure or shall repeal it.
3. Where the final report of the panel finds that the measure causes nullification or impairment within the meaning of Article 24.2, it shall determine the level nullification or impairment and may suggest, if the Parties so request, such adjustments as it considers mutually satisfactory to the Parties.
4. The Parties may agree on a mutually satisfactory Action Plan for compliance with the final report, which shall conform to the findings and recommendations of the panel, if any.
5. If the Parties have agreed on an Action Plan and this has not been complied with, the complaining Party may have recourse to Article 24.15 or Article 24.16, as the case may be.
Article 24.15. Non-compliance - Suspension of Benefits
1. The complaining Party may, upon notification to the Party complained against, suspend benefits of equivalent effect to such Party complained against in the following cases:
(a) when, in the absence of an action plan, six months have elapsed since the notification of the final report, in which the measure has been declared incompatible and the Party complained against has not yet refrained from implementing the measure or has not repealed it;
(b) where a plan of action for the settlement of the dispute has been agreed upon in accordance with Article 2414.4 and the Party complained against has not complied with it;
(c) when, after the time limit established in paragraph 1 of Article 24.14, the Party complained against has not complied with the adjustments recommended by the panel in the final report, if the panel determined that the measure is a cause of nullification or impairment.
2. In the notification, the complaining Party shall specify:
(a) the date on which the suspension will begin;
(b) the level of benefits or other obligations it proposes to suspend; and
(c) the limits within which the suspension shall apply, including which benefits and obligations provided for in this Agreement shall be suspended.
3. In considering the benefits to be suspended pursuant to paragraph 1:
(a) the complaining Party shall first seck to suspend benefits within the same sector or sectors that are affected by the measure or other matter that the panel has found to be inconsistent with the obligations under this Agreement or to have caused nullification or impairment within the meaning of paragraph (c) of article 24.2; and
(b) a complaining Party that considers it impracticable or ineffective to suspend benefits within the same sector or sectors may suspend benefits in other sectors.
4. The suspension of benefits shall be of a temporary nature and shall only be applied by the complaining Party until:
(a) the measure found to be inconsistent with the obligations of this Agreement is brought into conformity with this Agreement or the required adjustments are made the case of nullification or impairment of benefits within the meaning of paragraph (c) of Article 24.2;
(b) the time at which the Parties reach an agreement on the settlement of the dispute; or
(c) that the panel described in Article 24.8 concludes in its report that the Party complained against has complied.
5. The suspension of benefits will take effect no sooner than five days after such notification.
Article 24.16. Compliance Review and Suspension of Benefits
1. A Party may, by written notice to the other Party, request that the panel constituted under Article 24.8 be reconvened to make a determination:
(a) whether the level of suspension of benefits applied by the complaining Party in accordance with paragraph 1 of Article 24.15 is manifestly excessive;
(b) on any disagreement as to the existence of measures taken to comply with the report of the originally formed panel or as to the compatibility of such measures with this Agreement.
2. In the written communication, the Party shall indicate the specific measures or issues in dispute and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
3. If the original panel or any of its members cannot be reconvened, the provisions of Article 24.8 shall apply mutatis mutandis.
4. The provisions of Articles 24.9, 24.10, 24.11 and 24.12 apply mutatis mutandis to procedures adopted and reports issued by a panel that is reconstituted under the terms of this Article.
5. A panel reconvened under subparagraph 1(b) shall determine whether it is appropriate to terminate any suspension of benefits. If the panel is under subparagraph 1(a) and determines that the level of suspended benefits is manifestly excessive, it shall set the level of benefits it considers to be of equivalent effect.