(b) the Additional Facility Rules of ICSID, provided that one of the Parties, but not both, is a party to the ICSID Convention; or
(c) an ad hoc arbitral tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), where none of the Parties is a signatory of the ICSID Convention.
3. Once the investor has submitted the dispute either to a competent Tribunal of the disputing Party or to an arbitral procedure, the selection of one or the other shall be final.
4. The arbitral award shall be based on:
(a) the provisions of this Chapter and any other binding agreements between the Parties;
(b) the national laws of the Party where the investment was made, including the rules dealing with conflicts of laws; and
(c) the rules and generally recognized principles of International Law.
5. The arbitral awards shall be final and binding on both parties to the dispute. Each Party assumes the commitment to implement the awards in accordance with its national laws.
6. The Parties shall abstain from addressing through diplomatic channels any matter submitted either to the domestic tribunals or to arbitration tribunals according to the terms of this Article, until such proceedings are concluded. Once the judicial proceedings or the international arbitration is concluded, a Party shall not make any diplomatic demand relating to the dispute, except where the disputing Party has not complied with the judicial or arbitral decision.
Chapter XI. Temporary Entry
Article XI.01. Temporary Entry
1. The Parties recognise that there is a growing importance of investment and services related to trade in goods. In accordance with their applicable laws and regulations, they shall facilitate the temporary entry of:
(a) nationals who are intra-company transferees (managers, executives, specialists) and business visitors;
(b) nationals who are providing after-sales services directly related to the exportation of goods by an exporter of that same Party into the territory of the other Party;
(c) spouses and children of nationals described in (a) above; and
(d) legal residents in the territory of one of the Parties who are intracompany transferees (managers, executives, specialists) and have been continuously employed by the company at least one (1) year immediately preceding the date of application for entry, provided they comply with the immigration requirements of the other Party.
2. With a view to developing and deepening their relations under this Chapter, the Parties agree that within two (2) years of the date of entry into force of this Agreement, they will review developments related to temporary entry and consider the need for further disciplines in this area.
3. No later than six (6) months after the date of entry into force of this Agreement, Parties shall make available explanatory material regarding the requirements for temporary entry under this Article in such a manner as to enable citizens of the other Party to become acquainted with them.
4. For the purposes of this Chapter:
After-sales services include those provided by persons installing, repairing and servicing, supervising installers, and setting up and testing commercial or industrial (including computer software) equipment, provided the services are being performed as part of an original or extended sales or lease agreement, warranty, or service contract. "Setting up" does not include hands-on installation generally performed by construction or building trades. After-sales services also include persons providing familiarisation or training sessions to potential users;
Business visitors are short-term visitors who do not intend to enter the labour market of the Parties, but seek entry to engage in activities such as investigating business opportunities, buying, selling or marketing of goods or services, negotiating contracts, conferring with colleagues, attending conferences, trade fairs or trade missions;
National means a natural person who is a citizen of a Party; and
Temporary entry means the right to enter and remain for the period authorised by the Parties in accordance with their laws and regulations.
Part FOUR. Administrative and Institutional Provisions
Chapter XII. Publication, Notification, Information and Administration of Laws
Article XII.01. Contact Points
1. Each Party shall designate, within sixty (60) days of the entry into force of this Agreement, a contact point to facilitate communications between the Parties on any matter covered by this Agreement.
2. On the request of a Party, the contact point shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Article XII.02. Publication and Notification
1. Each of the Parties shall publish and notify the other Party, within a period of forty (40) days from the coming into force of this Agreement, of measures such as laws, regulations, judicial decisions, procedures and administrative regulations of general application which are related to the provisions of this Agreement.
2. As far as practicable, each of the Parties shall publish and notify the other Party of any measure indicated in paragraph 1 that it proposes to adopt, and shall provide the interested Party with a reasonable opportunity for making observations on the proposed measures.
3. The provisions of this Article do not obligate any of the Parties to reveal information of a confidential nature, the dissemination of which may constitute an impediment to the compliance with any laws, or is contrary to the public interest, or infringes the rules or regulations of public or private organisations.
4. Each of the Parties, at the request of the other Party, shall provide it with information and shall promptly respond to any question pursuant to the proposed or actual measures, notwithstanding that the interested Party had or had not been previously informed of the measure in question.
Article XII.03. Notification and Supplying Information
1. To the maximum extent possible, each Party shall notify the other Party of any proposed or actual measure that the Party considers might affect the operation of this Agreement or otherwise substantially affect that other Party's interests under this Agreement.
2. On the request of the other Party, a Party shall promptly provide the information and respond to questions pertaining to any actual or proposed measure, whether or not that other Party has been previously notified of that measure.
3. Any notification or information provided under this Article shall be without prejudice as to whether the measure is consistent with this Agreement.
Article XII.04. Review and Appeal
1. The Parties reaffirm their guarantees of the right to a hearing in accordance with the fundamental principles of justice and due process of law enshrined in their respective legislation.
2. Each Party shall establish or maintain judicial, quasi-judicial or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, revision of final administrative actions regarding matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
3. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority.
4. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the offices or authorities entrusted with administrative enforcement.
Chapter XIII. Dispute Settlement
Article XIII.01. Cooperation
The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.
Article XIII.02. Scope of Coverage
Except as otherwise provided for in this Agreement, the provisions of this Chapter shall apply:
(a) to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement; or
(b) wherever a Party considers that an actual or proposed measure of the other Party is or would be inconsistent with the obligations of this Agreement or cause nullification or impairment in the sense of Annex XIII.01.
Article XIII.03. WTO Dispute Settlement
1. Disputes regarding any matter arising under both this Agreement, and the WTO Agreement or any agreement negotiated according to it, or any successor agreement, may be settled in either forum at the discretion of the complaining Party.
2. Once dispute settlement procedures have been initiated under Article XIII.07 or dispute settlement proceedings have been initiated under the WTO Agreement, the forum selected shall be used to the exclusion of the other.
3. For the purposes of this Article, dispute settlement proceedings under the WTO Agreement are deemed to be initiated when a Party requests the establishment of a panel, such as under Article 6 (Establishment of Panels) of the Dispute Settlement Understanding (DSU).
Article XIII.04. Perishable Goods
1. In the disputes related to perishable goods, the Parties and the panel referred to in Article XIII.07 shall do everything to accelerate the procedure to the maximum extent possible. For this purpose, the Parties shall try to reduce by mutual agreement the time frames established in this Chapter.
2. In cases of urgency, including those which concern perishable goods, consultations shall commence as soon as possible and no later than fifteen (15) days from the date of delivery of the request.
Article XIII.05. Consultations
1. A Party may request in writing, consultations with the other Party regarding any actual or proposed measure, or any other matter that it considers might affect the operation of this Agreement in terms of Article XIII.02.
3. The Parties shall employ their best endeavours to arrive at a mutually satisfactory resolution in any matter through consultations under this Article. To this end, the Parties shall:
(a) provide sufficient information to enable a full examination of how the actual or proposed measure, or other matter, might affect the operation of this Agreement; and
(b) treat any confidential or proprietary information exchanged in the course of consultations on the same basis as the Party providing the information.
Article XIII.06. Alternative Methods of Dispute Resolution
At any time, the Parties may agree to have recourse to alternative methods of dispute resolution, including good offices, conciliation or mediation.
Article XIII.07. Establishment of a Panel
1. Unless the Parties agree to have recourse to alternative methods of dispute resolution, the Parties agree to establish a panel to examine any matter they fail to resolve through consultations pursuant to Article XIII.05.
2. The complaining Party may request in writing the establishment of a panel if the Parties fail to resolve a matter pursuant to Article XIII.05 within:
(a) thirty (30) days after the delivery date of the request for consultations; or
(b) fifteen (15) days after the delivery date of the request for consultations for matters referred to in paragraph 2 of Article XIII.04.
3. The complaining Party shall state in the request, the measure or other matter complained of, and shall indicate the provisions of this Agreement that it considers relevant; and shall deliver the request to the other Party.
4. The Parties may consolidate two (2) or more proceedings regarding other matters that they determine are appropriate to be considered jointly.
5. The arbitration proceedings shall be considered invoked upon the delivery of the request for the establishment of the panel to the Party complained against and the Parties shall take all necessary action in accordance with Article XIII.10 for the establishment of the panel.
6. Unless otherwise agreed by the disputing Parties, the panel shall be established and perform its functions in a manner consistent with the provisions of this Chapter.
Article XIII.08. Roster
1. No later than three (3) months after the entry into force of this Agreement, the Parties shall establish and maintain a roster of up to twenty (20) individuals, at least ten (10) of whom must not be citizens of either of the Parties, who are willing and able to serve as panelists. The roster members shall be appointed by consensus by the Parties for terms of three (3) years. Unless either of the Parties disagrees, a roster member shall be considered re-appointed for a further period of three (3) years.
2. Roster members 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 judgment;
(c) be independent of, and not be affiliated with or take instructions from, any Party; and
(d) comply with the code of conduct to be established by the Joint Council.
Article XIII.09. Qualifications of Panelists
1. All panelists shall meet the qualifications set forth in paragraph 2 of Article XIII.08.
2. Individuals may not serve as panelists for a dispute in which they have participated pursuant to Article XIII.06
Article XIII.10. Panel Selection
1. The panel shall be comprised of three (3) members.
2. The disputing Parties shall endeavour to agree on the chair of the panel and on the other two (2) panelists within fifteen (15) days of the delivery of the request for the establishment of the panel. If the disputing Parties are unable to agree on the chair within this period, within five (5) days the Party chosen by lot shall select the chair, if not the other Party shall designate one. The designated chair shall not be a citizen of the Parties.
3. Within fifteen (15) days of selection of the chair, each Party shall select a panelist who must not be a citizen of that Party.
4. If a Party fails to select its panelist within such period, the Parties shall choose by lot the panelist from among the roster members who are not citizens of that other Party.
5. All efforts shall be made to select panelists from the roster. The Parties may, by consent, select individuals not listed on the roster.
6. If a disputing Party believes that a panelist is in violation of the code of conduct, the disputing Parties shall consult and, if they agree, the panelist shall be removed and a new panelist shall be selected in accordance with this Article.
Article XIII.11. Rules of Procedure
1. The Joint Council shall establish by the date of entry into force of this Agreement, Model Rules of Procedure, in accordance with the following principles:
(a) the procedures shall ensure a right to at least one hearing before the panel, as well as the opportunity to provide initial and rebuttal written submissions; and
(b) the panel's hearings, deliberations and initial report, and all written submissions to and communications with the panel, shall be confidential.
2. Unless otherwise agreed by the Parties, the panel shall conduct its proceedings in accordance with the Model Rules of Procedure.
3. Unless the Parties otherwise agree, within twenty (20) days from the date of the delivery of the request for the establishment of the panel, the terms of reference of the panel, shall be:
"To examine, in the light of the relevant provisions of the Agreement, the matter referred to its consideration by the complaining Party (in terms of the request for establishment of the panel) and to make findings, determinations and recommendations as provided in paragraph 2 of Article XIII. 13 and Article XIII.14".
4. If the complaining Party argues that a matter has nullified or impaired benefits as stated in the Annex XIII.01, the terms of reference statement shall so indicate.
5. If a Party requires the panel to make findings as to the degree of adverse trade effects on any Party of any measure found not to conform with the obligations of this Agreement or to have caused nullification or impairment in the sense of the Annex XIII.01, the terms of reference shall so indicate.
Article XIII.12. Role of Experts
On the request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it considers appropriate.
Article XIII.13. Initial Report
1. Unless the Parties otherwise agree, the panel shall issue its initial report on the basis of the submissions and arguments presented by the Parties and on any information before it pursuant to Article XIII.
2. Unless the disputing Parties otherwise agree, the panel shall, within ninety (90) days after the last panelist is selected, present to the disputing Parties an initial report containing:
(a) findings of fact, including any findings pursuant to a request under paragraph 5 of Article XIII.11;
(b) its determination as to whether the measure at issue is or would be inconsistent with the obligations of this Agreement, or is cause for nullification or impairment in the sense of the Annex XIII.01 or any other decision requested in the terms of reference statement; and
(c) the preliminary decision, including any recommendations.
3. Panelists may furnish separate opinions on matters not unanimously agreed.
4. A Party may submit written comments to the panel on its initial report within fourteen (14) days of presentation of the report. In such an event, and after considering such written comments, the panel, on its own initiative or on the request of any disputing Party, may:
(a) make any further examination that it considers appropriate; and
(b) reconsider its initial report.
Article XIII.14. Final Report
1. Unless the Parties otherwise agree, the panel shall present to the Parties a final report, agreed to by the majority, including any separate opinions on matters not unanimously agreed, within thirty (30) days of the presentation of the initial report.
2. No panel may, either in its initial report or its final report, disclose which panelists are associated with the majority or minority opinions.
3. Unless the Parties agree otherwise, the final report of the panel shall be published fifteen (15) days after it is transmitted to the Parties.
Article XIII.15. Implementation of Final Report
1. The final report of the panel shall be binding on the Parties in the terms and within the time limits ordered by the panel. The period of time to implement the final report shall not exceed six (6) months from the date of notification of the final report to the Parties, unless another period of time for implementation is agreed upon by the Parties.
2. When the final report of the panel declares that the measure is incompatible with this Agreement, the Party complained against shall abstain from implementing the measure or shall eliminate it.
3. When the final report of the panel states that the measure causes nullification or impairment in the sense of Annex XIII.01, it shall determine the level of nullification or impairment and may suggest mutually satisfactory adjustments for the Parties.
Article XIII.16. Suspension of Benefits
1. Where the Party complained against fails to implement the recommendation or rulings of a panel, or where there is a disagreement between the Parties as to the existence or consistency with this Agreement of the measures taken to comply with the recommendations or rulings of a panel, the Parties shall have recourse to the Joint Council for the settlement of the dispute.
2. In such a case, the Joint Council shall meet, on the request of a Party, within fifteen (15) days from the expiration of the time frame to implement the final report. In special circumstances the time frame may be adjusted by mutual agreement between the Parties.
3. The Joint Council may engage the assistance of expert advisors with regard to Article XIII.12 in the settlement of disputes between the Parties regarding the implementation of a panel ruling or report.
4. If the Joint Council is unable to resolve the dispute regarding implementation according to paragraph 2, within the next ten (10) days, the panel shall be reconvened to determine whether the Party complained against has effectively implemented the final report.
5. The suspension of benefits or other obligations are temporary measures available in the event that the recommendation and rulings in the final report are not implemented within the stipulated period of time of Article XIII.15.1.
6. The complaining Party may suspend the application of benefits of equivalent effect to the Party complained against if the panel determines:
(a) that a measure is incompatible with the obligations of this Agreement and the Party complained against does not comply with the final report within the time frame established by the panel;
(b) that a measure causes nullification or impairment in the sense of Annex XIII.01 and the Parties do not arrive at a mutually satisfactory agreement of the dispute in the time frame that the panel has established.
7. The suspension of benefits shall last until the Party complained against complies with the panels final report or until the Parties reach a mutually satisfactory agreement on the dispute, as the case may be.
8. In considering the suspension of the benefits consistent with paragraph 6:
(a) the complaining Party shall first seek to suspend benefits in the same sector or sectors affected by the measure, or by any other measure that the panel has found to be inconsistent with the obligations of this Agreement, or to have caused nullification or impairment in the sense of Annex XIII.01; and
(b) where the complaining Party considers it is not feasible or effective to suspend benefits in the same sector or sectors, it may suspend benefits in other sectors.
9. At any time after the suspension of benefits, upon the written request of any disputing Party, delivered to the other Party, the Parties shall establish a panel to determine whether the final report has been implemented or not, or whether the level of benefits suspended by a Party pursuant to paragraph 6 is manifestly excessive. To the extent possible, the panel will be constituted by the same panelists that presided over the initial dispute.
10. The panel proceedings for the purposes of paragraph 9 shall be conducted in accordance with the Model Rules of Procedure. The panel shall present its final decision within the sixty (60) days after the last panelist is selected, or such other period as the Parties may agree.
Article XIII.17. Judicial or Administrative Proceedings
1. If an issue of interpretation or application of this Agreement arises in any domestic judicial or administrative proceeding of a Party that any Party considers would merit its intervention, or if a court or administrative body solicits the views of a Party, that Party shall notify the other Party. The Joint Council shall endeavor to agree on an appropriate response as expeditiously as possible.
2. The Party in whose territory the court or administrative body is located shall submit any agreed interpretation of the Joint Council to the court or administrative body in accordance with the rules of that forum.
3. If the Joint Council is unable to agree, any Party may submit its own views to the court or administrative body in accordance with the rules of that forum.
Article XIII.18. Private Rights
Neither Party shall provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.
Article XIII.19. Alternative Dispute Resolution
1. Each Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area.
2. To this end, each Party shall provide appropriate procedures to ensure the observance of agreements to arbitrate and for the recognition and enforcement of arbitration awards in such disputes.
3. A Party shall be deemed to be in compliance with paragraph 2 if it is a party to and is in compliance with the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
4. The Joint Council shall facilitate the establishment of an Advisory Committee on Private Commercial Disputes comprising persons with expertise or experience in the settlement of private international commercial disputes. The Committee shall report and provide recommendations to the Joint Council on general issues referred to it by the Joint Council regarding the availability, use and efficiency of arbitration and other procedures for the settlement of such disputes in the free trade area.
Part FIVE. Other Provisions
Chapter XIV. Competition Policy
Article XIV.01. Cooperation
1. The Parties shall seek to make progress towards the adoption of common provisions to prevent the benefits under this Agreement from being undermined by anticompetitive activities.