candidate means a person who is under consideration for selection as an arbitrator pursuant to Articles 17.26 (Arbitrators) or 17.44 (Method of Appointing the Sole Arbitrator);
expert means a person appointed pursuant to Article 17.34 (Expert Reports) or applicable arbitration rules;
family member means the spouse or partner of an arbitrator or candidate; the parent, child, grandparent, grandchild, sister, brother, aunt, uncle, niece, or nephew of the arbitrator or candidate or spouse or partner of the arbitrator or candidate (including whole and half-blood relatives and step relatives), or the spouse or partner of such a person; or a resident of the arbitrator's or candidate's household whom the arbitrator or candidate treats as a member of his or her family;
Rules means applicable rules pursuant to Article 17.23 (Submission of a Claim to Arbitration); and
staff, in respect of an arbitrator, means individuals under the direction and control of the arbitrator other than assistants.
2. Responsibilities to the Dispute Settlement Process
Each candidate, arbitrator, and former arbitrator shall avoid impropriety and the appearance of impropriety, and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement process is preserved.
3. Governing Principles
1. Each arbitrator shall be independent and impartial, and shall avoid direct or indirect conflicts of interest.
2. Each arbitrator and former arbitrator shall respect the confidentiality of tribunal proceedings.
3. Each candidate or arbitrator shall disclose the existence of any interest, relationship, or matter that is likely to affect the candidate's or arbitrator's independence or impartiality, or that might reasonably create an appearance of impropriety or an apprehension of bias. An appearance of impropriety or an apprehension of bias is created when a reasonable person, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, would conclude that a candidate's or arbitrator's ability to carry out the duties with integrity, impartiality, and competence is impaired.
4. Upon appointment, an arbitrator shall refrain, for the duration of the proceeding, from acting as counsel or party-appointed expert or witness in any pending or new investment dispute under this Agreement or any other international investment treaty.
5. This Code of Conduct shall be interpreted in a manner consistent with other internationally recognized standards or guidelines regarding direct or indirect conflicts of interest, such as the International Bar Association Guidelines on Conflicts of Interest in International Arbitration.
6. In the event of an alleged breach of this Code of Conduct, the Rules governing the arbitration shall apply to any challenge, disqualification, or replacement of an arbitrator.
4. Disclosure Obligations
1. Throughout the tribunal proceeding, each candidate or arbitrator has a continuing obligation to disclose any interest, relationship, or matter that may bear on the integrity or impartiality of the dispute settlement process.
2. The disputing parties or the Secretary-General of ICSID, as the appointing authority for a Tribunal referred to in Article 17.26 (Arbitrators), shall provide a candidate a copy of this Code of Conduct and the Initial Disclosure Statement set out in the Appendix to this Code of Conduct.
3. A candidate shall submit the Initial Disclosure Statement set out in the Appendix to this Code of Conduct to the disputing parties or the Secretary-General of ICSID, as the appointing authority, as soon as possible and no later than seven days from receipt of that Initial Disclosure Statement.
4. A candidate shall disclose any interest, relationship, or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias in the tribunal proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interest, relationship, or matter. Therefore, a candidate shall disclose, at a minimum, the following interests, relationships, and matters:
(a) any financial or personal interest of the candidate in:
(i) the tribunal proceeding or its outcome; and
(ii) an administrative proceeding, a domestic judicial proceeding, or any other international dispute settlement proceeding that involves issues that may be decided in the tribunal proceeding for which the candidate is under consideration;
(b) any financial interest of the candidate's employer, business partner, business associate, or family member in:
(i) the tribunal proceeding or its outcome; and
(ii) an administrative proceeding, a domestic judicial proceeding, or any other international dispute settlement proceeding that involves issues that may be decided in the tribunal proceeding for which the candidate is under consideration;
(c) any past or current financial, business, professional, family, or social relationship with any interested parties (11) in the tribunal proceeding or their counsel, or any such relationship involving a candidate's employer, business partner, business associate, or family member; and
(d) any public advocacy or legal or other representation concerning an issue in dispute in the tribunal proceeding or involving the same investment.
5. Once appointed, an arbitrator shall continue to make all reasonable efforts to become aware of any interest, relationship, or matter referred to in subparagraph 4, and shall disclose them. The obligation to disclose is a continuing duty that requires an arbitrator to disclose any such interest, relationship, or matter that may arise during any stage of the tribunal proceeding.
6. In the event of any uncertainty regarding whether an interest, relationship, or matter must be disclosed under subparagraph 4 or 5, a candidate or arbitrator should err in favour of disclosure. Disclosure of an interest, relationship, or matter is without prejudice as to whether the interest, relationship, or matter is covered by subparagraph 4 or 5, or whether it warrants recusal, amelioration, or disqualification.
7. The disclosure obligations set out in subparagraphs 1 through 6 should not be interpreted so that the burden of detailed disclosure makes it impractical for individuals in the legal or business community to serve as arbitrators, thereby depriving the disputing parties of the services of those who might be best qualified to serve as arbitrators. Accordingly, a candidate or arbitrator should not be called upon to disclose an interest, relationship, or matter whose bearing on the candidate's or arbitrator's role in the tribunal proceeding would be trivial.
5. Performance of Duties by Candidates and Arbitrators
1. A candidate who accepts an appointment as an arbitrator shall be available to perform, and shall perform, once the arbitrator is appointed pursuant to Article 17.26 (Arbitrators), an arbitrator's duties thoroughly, fairly, diligently, and expeditiously throughout the course of the tribunal proceeding.
2. An arbitrator shall ensure that he or she is contactable, at all reasonable times, by the Secretary-General of ICSID, disputing parties, arbitration institution in charge of the proceeding, and other arbitrators of the Tribunal in order to conduct tribunal work.
3. An arbitrator shall comply with the provisions of Sections D (Investor-State Dispute Settlement) and E (Expedited Arbitration), as applicable, and the Rules.
4. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the tribunal proceeding.
5. An arbitrator shall consider only those issues raised in the tribunal proceeding and necessary to make a decision, order, or award.
6. An arbitrator shall not delegate the duty to make a decision, order, or award to any other person.
7. An arbitrator shall take all reasonable steps to ensure that his or her assistants and staff comply with paragraph 2 (Responsibilities to the Dispute Settlement Process), subparagraphs 1, 4 through 7 of paragraph 4 (Disclosure Obligations), subparagraphs 3, 8 and 9 of this paragraph, and paragraph 8 (Maintenance of Confidentiality) of this Code of Conduct.
8. An arbitrator shall not engage in any ex parte contact concerning the tribunal proceeding.
9. A candidate or arbitrator shall only communicate matters concerning actual or potential violations of this Code of Conduct, or if necessary to ascertain whether that candidate or arbitrator has violated or may violate this Code of Conduct, to the Secretary‑General of ICSID, the disputing parties, and arbitration institution in charge of the proceedings.
10. Each arbitrator shall keep a record and render a final account of the time devoted to the tribunal proceeding and of his or her expenses, as well as the time and expenses of his or her staff and assistants.
6. Independence and Impartiality of Arbitrators
1. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner and shall not create an appearance of impropriety or an apprehension of bias.
2. An arbitrator shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a disputing party or a non-disputing Party, or fear of criticism.
3. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his or her duties.
4. An arbitrator shall not use his or her position on the Tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator. An arbitrator shall make every effort to prevent or discourage others from representing themselves as being in such a position.
5. An arbitrator shall not allow past or ongoing financial, business, professional, family, or social relationships or responsibilities to influence his or her conduct or judgment.
6. An arbitrator shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias.
7. If an interest, relationship, or matter of a candidate or arbitrator is inconsistent with subparagraphs 1 through 6, the candidate may accept appointment to a tribunal, and an arbitrator may continue to serve on a tribunal, if the disputing parties waive the violation or if, after the candidate or arbitrator has taken steps to ameliorate the violation, the disputing parties determine that the inconsistency has ceased.
7. Duties of Former Arbitrators
A former arbitrator shall avoid actions that may create the appearance that the arbitrator was biased in carrying out his or her duties or would benefit from the decision, order, or award of the tribunal.
8. Maintenance of Confidentiality
1. An arbitrator or former arbitrator shall not at any time disclose or use any non‑public information concerning the tribunal proceeding or acquired during the tribunal proceeding, except for the purposes of the tribunal proceeding, and shall not, in any case, disclose or use any such information to gain a personal advantage, or an advantage for another person, or to adversely affect the interest of another person.
2. An arbitrator shall not disclose a decision, order, or award, or a part thereof, prior to its publication in accordance with Section D (Investor-State Dispute Settlement).
3. An arbitrator or former arbitrator shall not at any time disclose the deliberations of the Tribunal, or any arbitrator's view. (12)
4. An arbitrator shall not make a public statement regarding the merits of a pending tribunal proceeding.
9. Responsibilities of Experts, Assistants and Staff
Paragraph 2 (Responsibilities to the Dispute Settlement Process), subparagraphs 1, 4, 5, 6 and 7 of paragraph 4 (Disclosure Obligations), subparagraphs 3, 8 and 9 of paragraph 5 (Performance of Duties by Candidates and Arbitrators), paragraph 7 (Duties of Former Arbitrators), and paragraph 8 (Maintenance of Confidentiality) of this Code of Conduct shall also apply to experts, assistants, and staff.
10. Review
A Party may request to review and amend this Code of Conduct to take into account, as appropriate, relevant developments concerning investor-State dispute settlement.
Appendix to the Arbitrator Code of Conduct for Investor-State Dispute Settlement: Initial Disclosure Statement Form
1. I acknowledge having received a copy of the Arbitrator Code of Conduct for Investor-State Dispute Settlement (the "Code of Conduct").
2. I acknowledge having read and understood the Code of Conduct.
3. I understand that I have a continuing obligation, while participating in the tribunal proceeding, to disclose any interest, relationship, or matter that may bear on the integrity or impartiality of the dispute settlement process. As a part of this continuing obligation, I am making the following initial disclosures:
(a) My financial interest in the tribunal proceeding for which I am under consideration or in its outcome is as follows:
(b) My financial interest in any administrative proceeding, domestic judicial proceeding, or other international dispute settlement proceeding that involves issues that may be decided in the tribunal proceeding is as follows:
(c) The financial interests that any employer, business partner, business associate, or family member of mine may have in the tribunal proceeding or in its outcome are as follows:
(d) The financial interests that any employer, business partner, business associate, or family member of mine may have in any administrative proceeding, domestic judicial proceeding or other international dispute settlement proceeding that involves issues that may be decided in the tribunal proceeding are as follows:
(e) My past or current financial, business, professional, family, and social relationships with any interested party in the tribunal proceeding, or their counsel, are as follows:
(f) The past or current financial, business, professional, family, and social relationships with any interested party in the tribunal proceeding, or their counsel, involving any employer, business partner, business associate, or family member of mine are as follows:
(g) My public advocacy or legal or other representation concerning an issue in dispute in the tribunal proceeding or involving the same investment is as follows:
(h) My other interests, relationships, and matters that may bear on the integrity or impartiality of the dispute settlement process and that are not disclosed in subparagraphs (a) through (g) above are as follows:
SIGNED on this day of 20__.
By:
SIGNATURE _________________________________________
NAME _______________________________________________
Chapter 18. Cross-Border Trade In Services
Article 18.1. Definitions
For the purposes of this Chapter:
computer reservation system services means services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
cross-border trade in services or cross-border supply of services means the supply of a service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party,
but does not include the supply of a service in the territory of a Party by a covered investment;
enterprise means an enterprise as defined in Article 1.5 (Definitions of General Application), or a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the domestic laws of a Party, or a branch of an enterprise located in the territory of a Party and carrying out business activities in that territory;
professional service means a service, the provision of which requires specialized post‑secondary education, or equivalent training or experience, and for which the right to practise is granted or restricted by a Party, but does not include a service provided by a tradesperson, or a vessel or aircraft crew member;
service supplied in the exercise of governmental authority means, for a Party, any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers;
selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services, including all aspects of marketing such as market research, advertising, and distribution. These activities do not include the pricing of air transport services or the applicable conditions;
service supplier of a Party means a person of a Party that seeks to supply or supplies a service; and
speciality air services means a specialized commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire‑fighting, flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.
Article 18.2. Scope
1. This Chapter applies to measures adopted or maintained by a Party relating to cross-border trade in services by a service supplier of the other Party, including a measure relating to:
(a) the production, distribution, marketing, sale, or delivery of a service, including by electronic means;
(b) the purchase or use of, or payment for, a service, including by electronic means;
(c) the access to or use of distribution, transport, or telecommunications networks or services in connection with the supply of a service; or
(d) the presence in the Party's territory of a service supplier of the other Party for the supply of a service.
2. In addition to paragraph 1 and in accordance with Article 17.3 (Relation to Other Chapters), Article 18.5 applies to measures adopted or maintained by a Party relating to the supply of a service in its territory by a covered investment.
3. This Chapter does not apply to:
(a) financial services as defined in Article 20.1 (Definitions);
(b) government procurement;
(c) services supplied in the exercise of governmental authority;
(d) subsidies or grants provided by a Party or a state enterprise, including government-supported loans, guarantees, and insurance.
4. This Chapter does not apply to air services, including domestic and international air transportation services, whether scheduled or non-scheduled, or to related service in support of air services, other than the following:
(a) aircraft repair or maintenance services during which an aircraft is withdrawn from service, excluding so-called line maintenance;
(b) the selling and marketing of air transport services;
(c) computer reservation system (CRS) services; and
(d) specialty air services.
5. In the event of any inconsistency between this Agreement and a bilateral, plurilateral, or multilateral air services agreement to which both Parties are party, the air services agreement prevails in determining the rights and obligations of the Parties.
6. If the Parties have the same obligations under this Agreement and a bilateral, plurilateral, or multilateral air services agreement, they may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.
7. If the Annex on Air Transport Services of GATS is amended, the Parties shall jointly review any new definitions with a view to aligning the definitions in this Agreement with those definitions, as appropriate.
8. This Chapter does not impose an obligation on a Party with respect to a national of the other Party who seeks access to its employment market or who is employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.
Article 18.3. National Treatment
1. A Party shall accord to a service or service supplier of the other Party treatment no less favourable than that it accords, in like circumstances, to its own services and service suppliers.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government to services or service suppliers of the Party of which it forms a part.
3. Whether treatment referred to in paragraph 1 is accorded in "like circumstances" depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or services suppliers based on legitimate policy objectives.
Article 18.4. Most-Favoured-Nation Treatment
1. A Party shall accord to a service or service supplier of the other Party treatment no less favourable than that it accords, in like circumstances, to services and service suppliers of a non-Party.
2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government in its territory to services or service suppliers of a non-Party.
3. Whether treatment referred to in paragraph 1 is accorded in "like circumstances" depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or services suppliers based on legitimate policy objectives.
Article 18.5. Market Access
1. A Party shall not adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, a measure that:
(a) imposes a limitation on:
(i) the number of service suppliers, whether in the form of a numerical quota, monopoly, exclusive service suppliers, or the requirement of an economic needs test;
(ii) the total value of service transactions or assets in the form of a numerical quota or the requirement of an economic needs test;
(iii) the total number of service operations or the total quantity of service output expressed in terms of a designated numerical unit in the form of a quota or the requirement of an economic needs test (1); or
(iv) the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of a numerical quota or the requirement of an economic needs test; or
(b) restricts or requires a specific type of legal entity or joint venture through which a service supplier may supply a service.
Article 18.6. Formal Requirements
1. Article 18.3 does not prevent a Party from adopting or maintaining a measure that prescribes formal requirements in connection with the supply of a service, provided that these requirements are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination. These measures include requirements:
(a) to obtain a licence, registration, certification, or authorization to supply a service or as a membership requirement of a particular profession, such as requiring membership in a professional organisation or participation in collective compensation funds for members of professional organisations;
(b) for a service supplier to have a local agent for service or maintain a local address;
(c) to speak a national language or hold a driver's licence; or
(d) that a service supplier:
(i) post a bond or other form of financial security;
(ii) establish or contribute to a trust account;
(iii) maintain a particular type and amount of insurance;
(iv) provide other similar guarantees; or
(v) provide access to records.
Article 18.7. Reservations
1. Articles 18.3, 18.4 and 18.5 do not apply to:
(a) an existing non-conforming measure that is maintained by a Party at:
(i) the central level of government, as set out by that Party in its Schedule to Annex I;
(ii) a regional level of government, as set out by that Party in its Schedule to Annex I; or
(iii) at level of government other than at the central and regional level;
(b) the continuation or prompt renewal of a non-conforming measure referred to in subparagraph (a); or