why any measures taken by the respondent Party fail to comply with the final report or are otherwise inconsistent with the covered provisions.
The panel shall deliver its decision to the Parties and the Joint Committee within 60 days of the date of submission of the request.
Article Article 15.23: Temporary Remedies In Case of Non-Compliance
If the respondent Party:
fails to notify any measure taken to comply with the final report before the expiry of the reasonable period of time;
notifies the complaining Party in writing that it is not possible to comply with the final report within the reasonable period of time; or
the original panel finds that no measure taken to comply exists or that the measure taken to comply with the final report as notified by the respondent Party is inconsistent with the covered provisions;
The respondent Party shall, on request of the complaining Party, enter into consultations with a view to agreeing on mutually satisfactory compensation or any alternative arrangement.
If the Parties fail to reach a mutually satisfactory agreement within 20 days of the date of receipt of the request made in accordance with paragraph 1, the complaining Party may deliver a written notification to the respondent Party that it intends to suspend the application of concessions or other obligations under this Agreement.
The complaining Party may begin the suspension of concessions or other obligations referred to in the preceding paragraph 20 days after the date when it served notice on the respondent Party, unless the respondent Party made a request under paragraph 7.
The suspension of concessions or other obligations:
shall be at a level equivalent to the nullification or impairment that is caused by the failure of the respondent Party to comply with the final report; and
shall be restricted to benefits accruing to the respondent Party under this Agreement.
In considering what concessions or other obligations to suspend in accordance with paragraph 2, the complaining Party shall apply the following principles:
the complaining Party should first seek to suspend the concessions or other obligations in the same sector or sectors as that affected by the measure that the panel has found to be inconsistent with this Agreement; and
the complaining Party may suspend concessions or other obligations in other sectors, if it considers that it is not practicable or effective to suspend concessions or other obligations in the same sector(s). The communication in which it notifies such a decision shall indicate the reasons on which it is based.
The suspension of concessions or other obligations or the mutually satisfactory agreement foreseen in paragraph 1 shall be temporary and shall only apply until the inconsistency of the measure with the relevant covered provisions has been removed, or until the Parties have reached a mutually agreed solution pursuant to Article 15.28.
If the respondent Party considers that the suspension of concessions or other obligations does not comply with paragraphs 4 and 5, that Party may request in writing the original panel to examine the matter no later than 15 days after the date of receipt of the notification referred to in paragraph 2. That request shall be notified simultaneously to the complaining Party and to the Joint Committee. The original panel shall notify to the Parties and the Joint Committee its decision on the matter no later than 45 days after the receipt of the request from the respondent Party, or if the original panel cannot be established with its original members, from the date on which the last panelist of the newly established panel is appointed. Concessions or other obligations shall not be suspended until the panel has delivered its decision pursuant to this paragraph. The suspension of concessions or other obligations shall be consistent with this decision.
Article Article 15.24: Review of Any Measure Taken to Comply after the Adoption of Temporary Remedies
Upon the notification by the respondent Party to the complaining Party and the Joint Committee of the measure taken to comply with the final report:
in a situation where the right to suspend concessions or other obligations has been exercised by the complaining Party in accordance with Article 15.23, the complaining Party shall terminate the suspension of concessions or other obligations no later than 30 days after the date of receipt of the notification, with the exception of the cases referred to in paragraph 2; or
in a situation where necessary compensation has been agreed, the respondent Party may terminate the application of such compensation no later than 30 days after the date of receipt of the notification, with the exception of the cases referred to in paragraph 2.
If the Parties do not reach an agreement on whether the measure notified in accordance with paragraph 1 is consistent with the relevant covered provisions within 30 days of the date of receipt of the notification, the complaining Party shall request in writing the original panel to examine the matter. That request shall be notified simultaneously to the respondent Party and the Joint Committee. The decision of the panel shall be notified to the Parties and the Joint Committee no later than 30 days after the date of submission of the request. If the panel decides that the measure notified in accordance with paragraph 1 is consistent with the covered provisions, the suspension of concessions or other obligations, or the application of the compensation, as the case may be, shall be terminated no later than 15 days after the date of the decision. If the panel determines that the notified measure achieves only partial compliance with the covered provisions, the level of suspension of benefits or other obligations, or of the compensation, shall be adapted in light of the decision of the panel.
Article Article 15.25: Suspension and Termination of Proceedings
If both Parties so request in writing, the panel shall suspend its work for a period agreed by the Parties and not exceeding 12 consecutive months from such request. In the event of a suspension of the work of the panel, the relevant time periods under this Chapter shall be extended by the same period of time for which the work of the panel was suspended. The panel shall resume its work before the end of the suspension period at the written request of both Parties. If the work of the panel has been suspended for more than 12 consecutive months, the authority of the panel shall lapse and the dispute settlement procedure shall be terminated.
Article Article 15.26: Choice of Forum
Unless otherwise provided in this Article, this Chapter is without prejudice to the rights of the Parties to have recourse to dispute settlement procedures available under other international trade agreements to which they are both Parties.
If a dispute with regard to a particular measure arises under this Agreement and under another international trade agreement to which both Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute.
Once a Party has selected the forum and initiated dispute settlement proceedings under this Chapter or under the other international agreement with respect to the particular measure referred to in paragraph 2, the selected forum shall be used to the exclusion of other fora.
For purposes of paragraph 3:
dispute settlement proceedings under this Chapter are deemed to be initiated when a Party requests the establishment of a panel in accordance with Article 15.8;
dispute settlement proceedings under the WTO Agreement are deemed to be initiated when a Party requests the establishment of a panel in accordance with Article 6 of the DSU; and
dispute settlement proceedings under any other agreement are deemed to be initiated in accordance with the relevant provisions of that agreement.
Article Article 15.27: Costs
Unless the Parties otherwise agree, the costs of the panel and other expenses associated with the conduct of its proceedings shall be borne in equal parts by the Parties.
Each Party shall bear its own expenses and other legal costs incurred in relation to the panel proceedings.
Article Article 15.28: Mutually Agreed Solution
The Parties may reach a mutually agreed solution at any time with respect to any dispute referred to in Article 15.3.
If a mutually agreed solution is reached during the panel procedure, the Parties shall jointly notify that solution to the chairperson of the panel. Upon such notification, the panel shall be terminated.
Each Party shall take measures necessary to implement the mutually agreed solution within the agreed time period.
No later than at the expiry of the agreed time period, the implementing Party shall inform the other Party, in writing, of any measure that it has taken to implement the mutually agreed solution.
Article Article 15.29: Time Periods
All time periods laid down in this Chapter shall be counted in calendar days from the day following the act or fact to which they refer, unless otherwise specified in this Chapter.
Any time period referred to in this Chapter may be modified by mutual agreement of the Parties.
All time periods laid down in this Chapter for cases of urgency shall be cut by half except as otherwise provided in this Chapter.
Article Article 15.30: Annexes
The Joint Committee may modify the Annexes 15-A and 15-B.
Annex 15-A
Rules of Procedure for the Panel
Timetable
After consulting the Parties, the panel shall, whenever possible within seven days of the appointment of the final panelist, fix the timetable for the panel process.
The panel process shall, as a general rule, not exceed 135 days from the date of establishment of the panel until the date of the final report, unless the Parties otherwise agree.
Should the panel consider there is a need to modify the timetable, it shall inform the Parties in writing of the proposed modification and the reason for it. In cases of urgency in accordance with Article 15.10 the panel, after consulting the Parties, shall adjust the timetable as appropriate and shall notify the Parties of such adjustment.
Written Submissions and other Documents
Unless the panel otherwise decides, the complaining Party shall deliver its first written submission to the panel no later than 20 days after the date of composition of the panel. The respondent Party shall deliver its first written submission to the panel and to the complaining Party no later than 20 days after the date of delivery of the complaining Party’s first written submission unless the arbitral panel decides otherwise.
A Party shall provide a copy of its written submission to each of the panelists and to the other Party.
Within 20 days of the conclusion of the hearing, each Party may deliver to the panel and the other Party a supplementary written submission responding to any matter that arose during the hearing.
The Parties shall transmit all information or written submissions, written versions of oral statements and responses to questions put by the panel to the other Party to the dispute at the same time as it is submitted to the panel.
The Parties and the panellist shall transmit any request, notice, written submissions or other document by delivery against receipt, registered post, courier,
facsimile, telex, telegram or any other means of telecommunication that provides a record of the sending thereof.
Minor errors of a clerical nature in any request, notice, written submission or other document related to the panel proceeding may be corrected by delivery of a new document clearly indicating the changes.
Operation of the Panel
The chairperson of the panel shall preside at all of its meetings, and shall fix the date and time of the hearing in consultation with the Parties and other members of the panel. The panel may delegate to the chairperson the authority to make administrative and procedural decisions.
Panel deliberations shall be confidential. Only panelists may take part in the deliberations of the panel, but the panel may permit assistants of the panel to be present during such deliberations. The reports of panels shall be drafted without the presence of the Parties in the light of the information provided and the statements made.
Opinions expressed in the panel report by individual panelists shall be anonymous.
Hearings
The Parties shall be given the opportunity to attend hearings and meetings of the panel.
The panel shall provide for at least one hearing for the Parties to present their cases to the panel.
Unless a Party disagrees, the Panel may decide to convene additional hearings or not to convene a hearing at all.
All panelists shall be present at hearings. Panel hearings shall be held in closed session with only the panelists and the Parties in attendance. However, in consultation with the Parties, assistants, translators, advisers of the disputing Parties, administration personnel, interpreters, or designated note takers may also be present at hearings to assist the panel in its work. Any such arrangements established by the panel may be modified with the agreement of the Parties.
The hearing shall be conducted by the panel in a manner ensuring that the complaining Party and the respondent Party are afforded equal time to present
their case. The panel shall, as a general rule, conduct the hearing in the following manner: argument of the complaining Party; argument of the respondent Party; the reply of the complaining Party; the counter-reply of the respondent Party; closing statement of the complaining Party; and closing statement of the respondent Party. The chairperson may set time limits for oral arguments to ensure that each Party is afforded equal time.
Written Questions
The panel may direct written questions to either Party at any time during the proceedings. A Party to whom the panel addresses a written question shall deliver a written reply to the panel and the other Party in accordance with the timetable established by the panel.
Each Party shall be given the opportunity to provide written comments on the response of the other Party within the timetable established by the panel.
Confidentiality
The panel’s hearings and the documents submitted to it shall be confidential. Each Party shall treat as confidential information submitted to the panel by the other Party which that Party has designated as confidential.
Where a Party designates as confidential its written submissions to the panel, it shall, on request of the other Party, provide the panel and the other Party with a non-confidential summary of the information contained in its written submissions that could be disclosed to the public no later than 10 days after the date of request. Nothing in these Rules shall prevent a Party from disclosing statements of its own positions to the public.
Working language
The working language of the panel proceedings, including for written submissions, oral arguments or presentations, the report of the panel, and all written and oral communications between the Parties and with the panel, shall be English.
Venue
The venue for the hearings of the panel shall be decided by agreement between the Parties. If there is no agreement, the first hearing shall be held in the territory of the respondent Party, and any additional hearings shall alternate between the territories of the Parties.
Expenses
The panel shall keep a record and render a final account of all general expenses incurred in connection with the proceedings, including those paid to its assistants, designated note takers or other individuals that it retains.
Ex Parte Contacts
The panel shall not meet or communicate with a Party in the absence of the other Party.
Neither Party shall meet or communicate with any panelist in relation to the dispute in the absence of the other Party or other panelists.
No panelist shall discuss any aspect of the subject-matter of the proceedings with a Party in the absence of the other Party and other panelists.
Annex 15-B
Code of Conduct for Panelists and Others Engaged in Dispute Settlement Proceedings Under This Agreement1
Definitions
For purposes of this Annex:
assistant means a person who, under the terms of appointment of a panelist, conducts research or provides support for the panelist works under the direction and control of a panelist to assist with case-specific tasks;
candidate means a person who is under consideration for selection as a panelist;
panelist means a member of a panel established under Article 15.8;
proceeding, unless otherwise specified, means the proceeding of a panel under this Chapter; and
staff, in respect of a panelist, means persons under the direction and control of the panelist, other than assistants.
Responsibilities to the Process
Every panelist shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement process are preserved. Former panelists shall comply with the obligations established in paragraphs 18 through 22.
Disclosure Obligations
Prior to confirmation of his or her selection as a panelist under this Agreement, a candidate shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably
1 This Code of Conduct shall apply mutatis mutandis to persons appointed to provide good offices, conciliation, or mediation under Article 15.7, unless otherwise agreed by the Parties.
create an appearance of impropriety or bias in the proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships, and matters.
Once selected, a panelist shall continue to make all reasonable efforts to become aware of any interests, relationships and matters referred to in paragraph
3 and shall disclose them by communicating them in writing to the Joint Committee for consideration by the Parties. The obligation to disclose is a continuing duty, which requires a panelist to disclose any such interests, relationships and matters that may arise during any stage of the proceeding.
Performance of Duties by Panelists
A panelist shall comply with the provisions of this Chapter and its Annexes.
On selection, a panelist shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
A panelist shall not deny other panelists the opportunity to participate in all aspects of the proceeding.
A panelist shall consider only those issues raised in the proceeding and necessary to rendering a decision and shall not delegate the duty to decide to any other person.
A panelist shall take all appropriate steps to ensure that the panelist’s assistant and staff are aware of, and comply with, paragraphs 2 through 4 and 19 through 21.
A panelist shall not engage in ex parte contacts concerning the proceeding.
A panelist shall not communicate matters concerning actual or potential violations of this Annex by another panelist unless the communication is to both Parties or is necessary to ascertain whether that panelist has violated or may violate this Annex. Each panelist shall keep a record and render a final account of the time devoted to the panel proceedings and of his or her expenses, as well as the time and expenses of his or her staff and assistants.
Independence and Impartiality of Panelists
A panelist shall be independent and impartial. A panelist shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
A panelist shall not be influenced by self-interest, outside pressure, political considerations, public clamor, loyalty to a Party or fear of criticism.
A panelist 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 the panelist’s duties.
A panelist shall not use his or her position on the panel to advance any personal or private interests. A panelist shall avoid actions that may create the impression that others are in a special position to influence the panelist. A panelist shall make every effort to prevent or discourage others from representing themselves as being in such a position.
A panelist shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the panelist’s conduct or judgment.
A panelist shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect the panelist’s impartiality or that might reasonably create an appearance of impropriety or bias.
Duties in Certain Situations
A panelist or former panelist shall avoid actions that may create the appearance that the panelist was biased in carrying out the panelist’s duties or would benefit from the decision or report of the panel.
Maintenance of Confidentiality
A panelist or former panelist shall not at any time disclose or use any non-public information concerning the proceeding or acquired during the proceeding except for the purposes of the proceeding and shall not, in any case, disclose or use any such information to gain personal advantage, or advantage for others, or to affect adversely the interest of others.
A panelist shall not disclose a panel report, or parts thereof, prior to its publication.
A panelist or former panelist shall not at any time disclose the deliberations of a panel, or any panelist’s view, except as required by legal or constitutional requirements.
A panelist shall not make a public statement regarding the panel proceeding.
Chapter CHAPTER SIXTEEN EXCEPTIONS
Article Article 16.1: General Exceptions
For purposes of Chapter Two (Trade in Goods), Chapter Three (Rules of Origin), Chapter Four (Customs Procedures and Trade Facilitation), Chapter Five (Sanitary and Phytosanitary Measures), and Chapter Six (Technical Barriers to Trade), Article XX of GATT 1994 and its interpretative note are incorporated into and form part of this Agreement, mutatis mutandis.
For purposes of Chapter Eight (Trade in Services) and Chapter Nine (Digital Trade)1, Article XIV of GATS, including its footnotes, is incorporated into and forms part of this Agreement, mutatis mutandis.
Article Article 16.2: Security Exceptions
Nothing in this Agreement shall be construed:
to require any Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
relating to fissionable and fusionable materials or the materials from which they are derived;
relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
1 This paragraph is without prejudice to whether a Party considers a digital product to be a good or service.
relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;
taken in time of war or other emergency in international relations; or
to prevent any Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article Article 16.3: Taxation
Nothing in this Agreement shall apply to any taxation measure.2
Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention. In the event of any inconsistency between this Agreement and any such tax convention, that tax convention shall prevail to the extent of the inconsistency.
In the case of a tax convention between the Parties, the competent authorities are those listed under that convention.
2 For the avoidance of doubt, provisions where corresponding rights and obligations are also granted or imposed under the WTO Agreement shall apply to taxation measures. Taxes and taxation measures do not include customs duties as defined in Article 1.1 (General Definitions) and measures listed in exceptions (b), (c), and (d) of that definition.