3. The Sub-Committee shall meet at such venues and times and by such means as may be agreed by the Parties.
4. The Sub-Committee:
(a) shall be composed of and co-chaired by representatives of the Governments of the Parties; and
(b) shall take all its actions by mutual consent of the Parties.
5. The Sub-Committee may invite, by consensus, representatives of relevant entities other than the Governments of the Parties, including from the business sector, with the necessary expertise relevant to the issues to be discussed, to attend meetings of the Sub- Committee.
6. The Sub-Committee shall cooperate with other relevant Sub-Committees with a view to avoiding unnecessary overlap with their work. The Joint Committee shall, if necessary, give instructions to this end.
Article 18.3. Functions of the Contact Point
1. The functions of the contact point of each Party designated in accordance with Article 1.14 (General Provisions — Communications), in regard to the implementation of this Chapter, shall be:
(a) receiving concerns or enquiries expressed by the other Party's enterprises relating to business activities between the Parties;
(b) responding to the concerns or enquiries referred to in subparagraph (a), where appropriate, in collaboration with other relevant authorities of the Party; and
(c) reporting, as appropriate, relevant issues to the Sub-Committee.
2. A Party may designate an authority to help facilitate communications under paragraph 1 between its business sector and the contact point of the other Party.
3. Paragraphs 1 and 2 shall not prevent or restrict any contact by a Party's business sector directly with relevant authorities of the other Party.
Article 18.4. Non-application of Chapter 19 (dispute Settlement)
The dispute settlement procedures provided for in Chapter 19 (Dispute Settlement) shall not apply to this Chapter.
Chapter 19. Dispute Settlement
Article 19.1. Scope
Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of disputes between the Parties concerning the implementation, interpretation or application of this Agreement.
Article 19.2. Definitions
For the purposes of this Chapter, the term "DSU" means the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 to the WTO Agreement.
Article 19.3. Choice of Dispute Settlement Procedure
1. Nothing in this Chapter shall prejudice any rights of the Parties to have recourse to dispute settlement procedures available under any other international agreement to which both Parties are party, including the WTO Agreement.
2. Notwithstanding paragraph 1, once a dispute settlement procedure has been initiated by a Party under this Chapter or under any other international agreement to which both Parties are party with respect to a particular dispute, that Party shall not initiate another dispute settlement procedure with respect to that particular dispute, unless:
(a) substantially separate and distinct rights or obligations under different international agreements are in dispute;
(b) the dispute settlement procedure which has been initiated fails to make findings on the issues in dispute for jurisdictional or procedural reasons; or
(c) the complaining Party terminates the dispute settlement procedure which has been initiated, prior to the issuance of any award or report by the dispute settlement body, whether draft, interim or final, and initiates a new dispute settlement procedure in another forum with respect to that particular dispute, provided that the dispute settlement procedure to be terminated is the first dispute settlement procedure which has been initiated by the complaining Party for that particular dispute and that the complaining Party provides an interval of at least 30 days between the date of the termination of the first dispute settlement procedure and the date on which it initiates a new dispute settlement procedure.
3. For the purposes of paragraph 2:
(a) a dispute settlement procedure under this Chapter shall be deemed to be initiated by a Party when it requests the establishment of an arbitral tribunal in accordance with paragraph 1 of Article 19.6, and deemed to be terminated by the complaining Party when it notifies the Party complained against and the chair of the arbitral tribunal of its intention to terminate the proceedings of the arbitral tribunal in accordance with paragraph 3 of Article 19.11; and
(b) a dispute settlement procedure under the WTO Agreement shall be deemed to be initiated by a Party when it requests the establishment of a panel in accordance with Article 6 of the DSU, and deemed to be terminated by the complaining Party when it requests the panel to suspend its work in accordance with paragraph 12 of Article 12 of the DSU.
Note: For the purposes of subparagraph 3(b), it is understood that where the complaining Party requests a Panel under the DSU to suspend its work, that Party shall not request the Panel to resume its work.
Article 19.4. Consultations
1. Either Party may request consultations with the other Party if it considers:
(a) any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired as a result of:
(i) the application by the other Party of a measure which is inconsistent with this Agreement; or
(ii) the failure of the other Party to carry out its obligations under this Agreement; or
(b) any benefit accruing to it directly or indirectly under Chapter 2 (Trade in Goods), 3 (Rules of Origin), 4 (Customs Procedures), 9 (Trade in Services) or 16 (Intellectual Property) is being nullified or impaired as a result of the application by the other Party of a measure that is not inconsistent with the provisions of those Chapters, provided that the complaining Party presents a detailed justification in support of any complaint relating to that measure.
2. Any request by a Party for consultations shall be submitted to the other Party in writing and give the reasons for the request, including identification of the measures at issue and an indication of the factual and legal basis for the complaint.
3. With a view to reaching a prompt and satisfactory resolution of the matter, when a Party requests consultations in accordance with paragraph 1, the other Party shall reply promptly to the request and enter into consultations in good faith within 30 days, or within 15 days in cases of urgency which concern perishable goods, after the date of receipt of the request.
Article 19.5. Good Offices, Conciliation or Mediation
1. Good offices, conciliation or mediation may be requested at any time by either Party. They may begin at any time if the Parties agree and, on request of cither Party, be terminated at any time.
2. Ifthe Parties agree, good offices, conciliation or mediation may continue while procedures of the arbitral tribunal provided for in this Chapter are in progress.
Article 19.6. Establishment and Composition of Arbitral Tribunals
1. The complaining Party that requested consultations in accordance with Article 19.4 may request, in writing, to the Party complained against, the establishment of an arbitral tribunal if:
(a) the Party complained against does not enter into such consultations within 30 days, or within 15 days in cases of urgency which concern perishable goods, after the date of receipt of the request for such consultations; or
(b) the Parties fail to resolve the dispute through such consultations within 60 days, or within 30 days in cases of urgency which concern perishable goods, after the date of receipt of the request for such consultations.
2. Any request for the establishment of an arbitral tribunal pursuant to this Article shall:
(a) identify the specific measures at issue;
(b) provide a brief summary of the legal basis for the complaint sufficient to present the problem clearly, including the provisions alleged to have been breached and any other relevant provisions of this Agreement; and
(c) provide a brief summary of the factual basis for the complaint.
3. When a request is made by the complaining Party in accordance with paragraphs 1 and 2, an arbitral tribunal shall be established in accordance with this Article.
4. The arbitral tribunal shall consist of three arbitrators, including a chair.
5. Unless the Parties otherwise agree, each Party shall, within 30 days after the date of receipt of the request for the establishment of an arbitral tribunal, appoint one arbitrator who may be its national and propose up to three candidates to serve as the chair. The chair shall not be a national of cither Party, nor have his or her usual place of residence in either Party, nor be employed by either Party, nor have dealt with the dispute in any capacity.
6. The Parties shall agree on and appoint the chair within 45 days after the date of receipt of the request for the establishment of an arbitral tribunal, taking into account the candidates proposed in accordance with paragraph 5. If appropriate, the Parties may jointly consult the arbitrators appointed in accordance with paragraph 5.
7. Ifany of the three appointments have not been made within 45 days after the date of receipt of the request for the establishment of an arbitral tribunal, any arbitrators not yet appointed shall be appointed, on request of cither Party, by lot from the list of the candidates proposed in accordance with paragraph 5. The appointment by lot shall be undertaken within seven days after the date of receipt of the request for appointment by lot, unless the Parties otherwise agree. Where more than one arbitrator including a chair is to be selected by lot, the chair shall be selected first.
8. The date of the establishment of an arbitral tribunal shall be the date on which the third arbitrator is appointed.
9. All arbitrators shall: (a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgement; and
(c) be independent of, and not be affiliated with or take instructions from, either Party.
10. Ifthe Parties agree that an arbitrator has failed to comply with the Code of Conduct referred to in Article 19.16, they may remove the arbitrator, waive the violation or request the arbitrator to take steps within a specified period of time to ameliorate the violation. If the Parties agree to waive the violation or determine that, after amelioration, the violation has ceased, the arbitrator may continue to serve.
11. Ifan arbitrator appointed in accordance with this Article dies, resigns or becomes unable to act, including as a result of his or her removal in accordance with paragraph 10, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and shall have all the powers and duties of the original arbitrator.
12. Where an arbitral tribunal is reconvened in accordance with Article 19.14 or 19.15, the reconvened arbitral tribunal shall, where possible, have the same arbitrators as the original arbitral tribunal. Where this is not possible, a replacement arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and shall have all the powers and duties of the original arbitrator.
Article 19.7. Terms of Reference of Arbitral Tribunals
Unless the Parties otherwise agree within 20 days after the date of receipt of the request for the establishment of an arbitral tribunal, the terms of reference of the arbitral tribunal shall be:
"To examine, in the light of the relevant provisions of this Agreement cited by the Parties, the matter referred to in the request for the establishment of an arbitral tribunal pursuant to Article 19.6, to make findings of law and fact together with the reasons therefor and to issue an award for the resolution of the dispute."
Article 19.8. Functions of Arbitral Tribunals
The arbitral tribunal established in accordance with Article 19.6:
(a) should consult the Parties, as appropriate, and provide adequate opportunities for the development of a mutually satisfactory solution;
(b) shall make an objective assessment of the matter before it, including an objective assessment of the facts of the case, the applicability of the provisions of this Agreement cited by the Parties, and:
(i) the consistency with this Agreement of the measure at issue applied by the Party complained against;
(ii) whether the Party complained against has failed to carry out its obligations under this Agreement; or
(iii) whether the measure at issue applied by the Party complained against is causing the nullification or impairment of any benefit described in subparagraph 1(b) of Article 19.4; and
(c) may make such other findings as necessary for the resolution of the dispute.
Article 19.9. Proceedings of Arbitral Tribunals
1. The arbitral tribunal shall meet in closed session. If the Parties agree, meetings with the Parties may be open to the public.
2. The deliberations of the arbitral tribunal and the documents submitted to it shall be kept confidential.
3. Notwithstanding paragraph 2, cither Party may make public statements as to its views regarding the dispute, but shall treat as confidential, information and written submissions provided by the other Party to the arbitral tribunal which that other Party has designated as confidential. Where a Party has provided information or written submissions designated as confidential, that Party shall, on request of the other Party, provide a non-confidential summary of the information or written submissions which may be disclosed publicly.
4. Each Party shall be given the opportunity to attend any of the presentations, statements or rebuttals in the proceedings and to set out in writing the facts of its case, its arguments and counter-arguments. Any information or written submissions provided by a Party to the arbitral tribunal, including any comments on the descriptive part of the draft award and responses to questions put by the arbitral tribunal, shall be made available to the other Party.
5. The arbitral tribunal shall attempt to make its decisions, including its award, by consensus, but may also make such decisions, including its award, by majority vote.
6. The period for the arbitral tribunal proceedings, from the date of its establishment until the date on which it issues its award to the Parties, shall not exceed six months, unless the Parties otherwise agree.
7. After consulting the Parties, the arbitral tribunal shall, as soon as practicable and whenever possible within 10 days after the date of its establishment, fix the timetable for its proceedings, taking into account any applicable time-frames specified in this Chapter and the Indicative Timetable referred to in Article 19.16. On request of the Parties, modifications to such timetable may be made by the arbitral tribunal.
8. Any time period applicable to the proceedings of the arbitral tribunal shall be suspended for a period that begins on the date on which any arbitrator becomes unable to act and ends on the date on which the successor is appointed.
Article 19.10. Information In Proceedings
1. The arbitral tribunal may seek from the Parties such relevant information as it considers necessary and appropriate. The Parties shall respond promptly and fully to any request by the arbitral tribunal for such information.
2. Onits own initiative unless the Parties disapprove, or on request of a Party, the arbitral tribunal may obtain information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. However, before doing so the arbitral tribunal shall seek the views of the Parties.
3. Subject to paragraph 2, where the dispute raises factual issues concerning a scientific or other technical matter, the arbitral tribunal may, on its own initiative unless the Parties disapprove, or on request of a Party, select, in consultation with the Parties, no fewer than two scientific or technical experts who shall assist the arbitral tribunal throughout its proceedings, but who shall not have the right to vote in respect of any decision to be made by the arbitral tribunal, including its award. Where two suitable scientific or technical experts are not available, the arbitral tribunal may, after consulting the Parties, select only one expert.
4. Where the arbitral tribunal obtains information or technical advice from any individual or body other than the Parties, it shall provide the Parties with a copy of any information or technical advice it receives and an opportunity to provide comments on the information or technical advice. Where the arbitral tribunal takes the information or technical advice into account in the preparation of its award, it shall also take into account any comments by the Parties.
Article 19.11. Suspension and Termination of Proceedings
1. The arbitral tribunal may suspend its work on request of the complaining Party,and with the consent of the Party complained against, at any time for a period not to exceed 12 months. In the event of such a suspension, the time-frames set out in paragraph 7 of Article 19.9 shall be extended by the amount of time that the work was suspended. The proceedings of the arbitral tribunal shall be resumed at any time on request of either Party. If the work of the arbitral tribunal has been suspended for more than 12 consecutive months, the authority for establishment of the arbitral tribunal shall lapse unless the Parties otherwise agree.
2. The Parties may agree to terminate the proceedings of the arbitral tribunal at any time before the issuance of the award to the Parties by jointly notifying the chair of the arbitral tribunal.
3. Notwithstanding paragraph 2, for the purpose of initiating a new dispute settlement procedure in another forum in accordance with subparagraph 2(c) of Article 19.3, the complaining Party may terminate the proceedings of the arbitral tribunal by notifying the Party complained against and the chair of the arbitral tribunal of such intention.
Article 19.12. Award
1. The arbitral tribunal shall make its award based on the relevant provisions of this Agreement, applicable rules of interpretation under international law, the submissions and arguments of the Parties, and any information it has obtained in accordance with Article 19.10.
2. The award of the arbitral tribunal shall include:
(a) a descriptive part covering the factual background to the dispute;
(b) its findings on the facts of the case, the applicability of the provisions of this Agreement cited by the Parties, and:
(i) the consistency with this Agreement of the measure at issue applied by the Party complained against;
ii) whether the Party complained against has failed to carry out its obligations under this Agreement; or
(iii) whether the measure at issue applied by the Party complained against is causing the nullification or impairment of any benefit described in subparagraph 1(b) of Article 19.4; and
(c) the reasons for such findings.
3. The arbitral tribunal may also include in its award:
(a) any other findings necessary for the resolution of the dispute, in accordance with subparagraph (c) of Article 19.8; and
(b) suggested implementation options for the Parties to consider, if requested by either Party.
4. The findings and suggestions of the arbitral tribunal in its award shall not add to or diminish the rights and obligations of the Parties under this Agreement or any other international agreement.
5. The award of the arbitral tribunal shall be drafted without the presence of the Parties. Any opinions expressed in the award by individual arbitrators shall be anonymous.
6. The arbitral tribunal shall submit to the Parties its draft award meeting the requirements specified in paragraph 2, at least 30 days prior to the date set by the arbitral tribunal in accordance with paragraph 7 of Article 19.9 for issuance of its award, for the purpose of enabling the Parties to review it. Either Party may submit comments in writing to the arbitral tribunal on the draft award within 15 days after the date of submission of the draft award. The arbitral tribunal shall include in its award its analysis of any comments made by the Parties on the draft award.
7. Unless the Parties otherwise agree, cither Party may make the award of the arbitral tribunal publicly available seven days after the date of its issuance to the Parties, subject to paragraphs 2 and 3 of Article 19.9.
8. The award of the arbitral tribunal shall be final and binding on the Parties.
Article 19.13. Implementation of Award
1. The Party complained against shall:
(a) where the award of the arbitral tribunal contains a finding of inconsistency of the measure at issue applied by the Party complained against with this Agreement, bring such measure into conformity with this Agreement;
(b) where the award of the arbitral tribunal contains a finding that the Party complained against has failed to carry out its obligations under this Agreement, carry out such obligations; or
(c) where the award of the arbitral tribunal contains a finding that the measure at issue applied by the Party complained against is causing the nullification or impairment of any benefit described in subparagraph 1(b) of Article 19.4, address such nullification or impairment or reach a mutually satisfactory solution.
2. Ifitis impracticable to comply promptly with paragraph 1, the Party complained against shall have a reasonable period of time in which to do so. The Party complained against shall, within 20 days after the date of issuance of the award, notify the complaining Party of the reasonable period of time that it considers necessary for compliance.
3. If itis required, any reasonable period of time necessary to comply with paragraph 1 shall, whenever possible, be mutually determined by the Parties. Where the Parties fail to agree on the reasonable period of time within 45 days after the date of issuance of the award, either Party may request the chair of the arbitral tribunal appointed in accordance with Article 19.6 to determine the reasonable period of time.
4. Where a request is made in accordance with paragraph 3, the chair of the arbitral tribunal shall present the Parties with a determination of the reasonable period of time and the reasons for such determination within 45 days after the date of receipt of the request. Prior to making this determination, the chair of the arbitral tribunal may, on its own initiative, or shall, on request of either Party, seek written submissions from the Parties, and if requested by either Party, shall hold a meeting with the Parties where each Party will be given an opportunity to present its submission. As a guideline, the reasonable period of time determined by the chair of the arbitral tribunal should not exceed 12 months from the date of issuance of the award. However, such reasonable period of time may be shorter or longer, depending upon the particular circumstances.
Article 19.14. Disagreement Concerning Implementation
1. Where there is disagreement as to whether the Party complained against has complied with paragraph 1 of Article 19.13, such dispute shall be decided through recourse to an arbitral tribunal reconvened for this purpose.
2. The complaining Party may request in writing to the Party complained against the reconvening of the arbitral tribunal referred to in paragraph 1 after the earlier of:
(a) the expiry of the reasonable period of time determined in accordance with Article 19.13; or
(b) a notification by the Party complained against that it has complied with paragraph 1 of Article 19.13.
3. Any request for the reconvening of the arbitral tribunal pursuant to this Article shall provide a brief summary of the factual basis for the complaint, including the reason why the complaining Party considers that the Party complained against has not complied with paragraph 1 of Article 19.13.
4. When a request is made by the complaining Party in accordance with paragraphs 1 through 3, the arbitral tribunal shall be reconvened within 15 days after the date of receipt of the request. The period for the reconvened arbitral tribunal proceedings, from the date of its reconvening until the date on which it issues its award to the Parties, shall not exceed four months, unless the Parties otherwise agree.
5. The reconvened arbitral tribunal shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the factual aspects of any action taken by the Party complained against to comply with paragraph 1 of Article 19.13; and
(b) whether the Party complained against has complied with paragraph 1 of Article 19.13.
6. The award of the reconvened arbitral tribunal shall include:
(a) a descriptive part covering the factual background to the dispute arising under this Article;
(b) its findings on the facts of the dispute arising under this Article, particularly on whether the Party complained against has complied with paragraph 1 of Article 19.13; and
(c) the reasons for such findings.
7. The reconvened arbitral tribunal may also include in its award:
(a) any other findings necessary for the resolution of the dispute arising under this Article; and
(b) suggested implementation options for the Parties to consider, if requested by either Party.
8. The reconvened arbitral tribunal shall submit to the Parties its draft award meeting the requirements specified in paragraph 6, at least 30 days prior to the date set by the reconvened arbitral tribunal in accordance with paragraph 7 of Article 19.9 for issuance of its award, for the purpose of enabling the Parties to review it. Either Party may submit comments in writing to the reconvened arbitral tribunal on the draft award within 15 days after the date of submission of the draft award. The reconvened arbitral tribunal shall include in its award its analysis of any comments made by the Parties on the draft award.
9. With respect to the terms of reference, functions and proceedings of the arbitral tribunal reconvened in accordance with this Article, Article 19.7, Article 19.8 other than subparagraph (b), Article 19.9 other than paragraph 6, Article 19.10, Article 19.11 other than paragraph 3, and Article 19.12 other than paragraphs 2, 3 and 6, shall apply mutatis mutandis.
Article 19.15. Compensation and Suspension of Concessions
1. The Party complained against shall, on request of the complaining Party, enter into consultations with the complaining Party with a view to developing mutually acceptable compensation, where:
(a) the Party complained against has notified the complaining Party that it considers it impracticable to comply with paragraph 1 of Article 19.13 within the reasonable period of time determined in accordance with Article 19.13;
(b) the Party complained against has notified the complaining Party of its failure to comply with paragraph 1 of Article 19.13 within the reasonable period of time determined in accordance with Article 19.13; or
(c) the failure of the Party complained against to comply with paragraph 1 of Article 19.13 has been established by the reconvened arbitral tribunal in accordance with Article 19.14.
2. If mutually acceptable compensation has not been agreed within 20 days after the date of receipt of the request made in accordance with paragraph 1, the complaining Party may notify the Party complained against in writing that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement, and shall have the right to begin the suspension 30 days after the date of the notification. The level of such suspension shall be:
(a) equivalent to the level of nullification or impairment of any benefit that is attributable to the failure of the Party complained against to comply with paragraph 1 of Article 19.13; and
(b) restricted to the same sector or sectors to which the nullification or impairment of benefit relates, unless it is not practicable or effective to suspend the application of concessions or other obligations in such sector or sectors.
3. Notwithstanding paragraph 2, the complaining Party shall not exercise the right to suspend concessions or other obligations under paragraph 2 where:
(a) a review of the proposed level of suspension of concessions or other obligations is being undertaken in accordance with paragraph 4 or 5;
(b) the Party complained against has notified the complaining Party that it complied with paragraph 1 of Article 19.13 after any of the circumstances referred to in paragraph 1, and the complaining Party has expressed its agreement that the Party complained against has complied with paragraph 1 of Article 19.13; or
(c) a mutually agreed solution has been reached.
4. The complaining Party shall specify, in the notification made in accordance with paragraph 2, the level of suspension of concessions or other obligations that it proposes. If the Party complained against objects to the level of suspension proposed, it may request consultations with the complaining Party within 30 days after the date of receipt of the notification. The complaining Party shall enter into consultations within 10 days after the date of receipt of the request. If the Parties fail to resolve the matter within 30 days after the date of receipt of the request for consultations pursuant to this paragraph, the Party complained against may request in writing to the complaining Party the reconvening of the arbitral tribunal to examine the matter.
5. When a request for the reconvening of the arbitral tribunal is made by the Party complained against in accordance with paragraph 4, the arbitral tribunal shall be reconvened within 15 days after the date of receipt of the request and shall issue, within 45 days after the date on which it is reconvened, its award containing a determination on the appropriate level of suspension to be applied by the complaining Party.
6. The suspension of concessions or other obligations under paragraph 2 shall be temporary and shall only be applied until it is agreed between the Parties in the manner specified in subparagraph 3(b) or established by the reconvened arbitral tribunal in accordance with paragraph 9, that the Party complained against has complied with paragraph 1 of Article 19.13, or a mutually agreed solution is reached.
7. In a situation where the right to suspend concessions or other obligations has been exercised by the complaining Party in accordance with this Article: