(a) 30 days after the date of receipt of the request for consultations regarding a matter concerning perishable goods; or
(b) 60 days after the date of receipt of the request for consultations regarding any other matter; the Party that made the request for consultations may request in writing the establishment of an arbitral tribunal to consider the matter.
2. The request to establish an arbitral tribunal shall identify:
(a) the specific measures at issue; and
(b) the legal basis of the complaint including the provisions of this Agreement alleged to have been breached and any other relevant provisions, sufficient to present the problem clearly.
3. An arbitral tribunal shall be established upon receipt of a request.
Article 189. Composition of an Arbitral Tribunal
1. An arbitral tribunal shall comprise 3 members.
2. Within 15 days after the establishment of a tribunal, both Parties shall designate one member of that arbitral tribunal respectively.
3. The Parties shall designate by common agreement the appointment of the third arbitrator within 30 days after the establishment of a tribunal. The arbitrator thus appointed shall chair the arbitral tribunal.
4. If any member of the arbitral tribunal has not been designated or appointed within 30 days after the establishment of a tribunal, either Party may request that the Director-General of the WTO designate a member within 30 days of that request.
5. 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;
(c) be independent of, and not be affiliated with or take instructions from, either Party; and
(d) comply with the WTO Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. (12)
6. The chair of the arbitral tribunal shall:
(a) not be a national of either Party;
(b) not have his or her usual place of residence in the territory of either Party; and
(c) not have dealt with the matter in any capacity.
7. If an arbitrator appointed under this Article resigns or becomes unable to act, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended during the appointment of the successor arbitrator.
Article 190. Functions of Arbitral Tribunals
1. The function of an arbitral tribunal is to make an objective assessment of the dispute before it, including an objective assessment of the facts of the case and the applicability of and conformity with this Agreement, and make such factual findings necessary for the resolution of the dispute.
2. Where the tribunal makes a finding that a measure is inconsistent with this Agreement, that finding shall be binding on the Parties and the responding Party shall have the obligation to remove the non-conformity.
3. For the avoidance of doubt, the Parties agree that the provisions of this Agreement shall be clarified in accordance with the customary rules of treaty interpretation of public international law.
4. The arbitral tribunal, in its findings, cannot add to or diminish the rights and obligations provided in this Agreement.
Article 191. Rules of Procedure of an Arbitral Tribunal
1. Within 14 days of its composition, the arbitral tribunal shall establish rules of procedure, which shall, inter alia, ensure:
(a) a right to at least 1, but no more than 2, hearings before the tribunal;
(b) an opportunity for the complaining and responding Parties to provide initial and rebuttal submissions;
(c) that any other procedural elements referred to in this Chapter or mutually agreed by the Parties to the dispute are provided for;
(d) the protection of business confidential information, including in the final report.
2. Each Party has the right to make public its written submissions, written versions of its oral statements and written responses to a request or questions from the tribunal, subject to paragraph 3.
3. Each Party shall treat as confidential information submitted by the other Party to the arbitral tribunal which that Party has designated as confidential.
4. The arbitral tribunal may at any time put questions to the Parties and ask them for explanations or further information, either in the course of a meeting or in writing. A Party shall respond promptly and fully to any request by an arbitral tribunal for such information as the arbitral tribunal considers necessary and appropriate. There shall be no ex parte communications with the arbitral tribunal concerning matters under its consideration.
5. The arbitral tribunal shall have the right to seek information and technical advice from any individual or body which it deems appropriate. The arbitral tribunal shall provide the Parties with a copy of the information or technical advice received and an opportunity to provide comments. Where the arbitral tribunal takes the information or technical advice into account in the preparation of its report, it shall also take into account any comments by the Parties on the information or technical advice.
6. Unless the Parties otherwise agree within 20 days from the date of the establishment of the arbitral tribunal, the terms of reference shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitral tribunal pursuant to Article 188 and to make findings of law and fact together with the reasons therefor for the resolution of the dispute."
7. The arbitral tribunal shall take its decisions by consensus; provided that where an arbitral tribunal is unable to reach consensus, it may take its decisions by majority vote. Any opinions expressed in the tribunal report by individual arbitrators shall be anonymous.
8. The arbitral tribunal shall, apart from the matters set out in this Article, regulate its own procedures in relation to the rights of the Parties to be heard and its deliberations, in consultation with the Parties.
Article 192. Expenses
Unless the Parties determine otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the Parties in equal shares.
Article 193. Suspension or Termination of Proceedings
1. The Parties may agree that the arbitral tribunal suspend its work at any time for a period not exceeding 12 months from the date of such agreement. If the work of the arbitral tribunal has been suspended for more than 12 months, the authority for establishment of the tribunal shall lapse, unless the Parties agree otherwise.
2. The Parties may agree to terminate the proceedings of an arbitral tribunal in the event that a mutually satisfactory solution to the dispute has been found. In such event the Parties shall jointly notify the chair of the arbitral tribunal.
Article 194. Report of Arbitral Tribunal
1. The report of the arbitral tribunal shall be drafted without the presence of the Parties in the light of the information provided and the statements made to the arbitral tribunal.
2. In order to enable the Parties to have an opportunity for review and comment, the arbitral tribunal shall present the Parties its initial report within 90 days of the tribunal's formation setting out its findings of facts and its determination as to whether a disputing Party has conformed with its obligations under this Agreement. In exceptional cases, if the arbitral tribunal considers it cannot release its initial report within 90 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Any delay shall not exceed a further period of 30 days, unless the Parties otherwise agree.
3. A Party may submit written comments to the arbitral tribunal within 10 days of receiving the initial report. After considering these written comments by the Parties and making any further examination it considers appropriate, the arbitral tribunal shall present the Parties its final report within 30 days of presentation of the initial report, unless the Parties otherwise agree. The final report of the arbitral tribunal shall be made available as a public document after the lapse of 10 days from the date of its release.
4. The arbitral report is final.
Article 195. Implementation of Arbitral Report
1. The Party concerned shall comply with the findings of the tribunal. If it is not practicable to comply immediately, the Party concerned shall implement the findings contained in the report of the arbitral tribunal within a reasonable period of time.
2. Where the tribunal makes a finding that a measure is inconsistent with this Agreement, the Party concerned shall have the obligation to eliminate the non-conformity.
Article 196. Reasonable Period of Time
1. The reasonable period of time shall be mutually determined by the Parties, or where the Parties fail to agree on the reasonable period of time within 45 days of the release of the arbitral tribunal's report, either Party may refer the matter to the original arbitral tribunal (to the extent this is possible), which shall determine the reasonable period of time following consultation with the Parties.
2. The arbitral tribunal shall provide its report to the Parties within 60 days after the date of the referral of the matter to it. When the arbitral tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. Any delay shall not exceed a further period of 30 days, unless the Parties otherwise agree.
Article 197. Compliance Review
1. Where there is disagreement as to the existence or consistency with this Agreement of measures taken within the reasonable period of time to comply with the findings of the arbitral tribunal, such dispute shall be referred to an arbitral tribunal proceeding under this Chapter, including wherever possible by resort to the original arbitral tribunal.
2. The arbitral tribunal shall provide its report to the Parties within 60 days after the date of the referral of the matter to it. When the arbitral tribunal considers that it cannot provide its report within this timeframe, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. Any delay shall not exceed a further period of 30 days unless the Parties otherwise agree.
Article 198. Compensation and Suspension of Concessions and Obligations
1. If the Party concerned fails to bring the measure found to be inconsistent with this Agreement into compliance with the findings of the arbitral tribunal within the reasonable period of time or if the Party complained against expresses in writing that it will not implement the findings, that Party shall, if so requested, enter into negotiations with the complaining Party with a view to reaching a mutually satisfactory agreement on any necessary compensation.
2. If the Parties do not reach agreement on compensation as set forth by paragraph 1 within 30 days, the complaining Party may suspend the application of concessions and obligations of equivalent effect to the responding Party, with 30 days' notice in writing after the end of the reasonable period of time established in accordance with Article 196. Concessions and obligations may not be suspended while the complaining Party is pursuing negotiations under paragraph 1.
3. Any suspension of concessions and obligations shall be restricted to benefits accruing to the other Party under this Agreement.
4. In considering what concessions and obligations to suspend pursuant to paragraph 2:
(a) the complaining Party should first seek to suspend concessions and obligations in the same sector(s) as that affected by the measure that the arbitral tribunal has found to be inconsistent with the obligations of this Agreement; and
(b) if the complaining Party considers that it is not practicable or effective to suspend concessions and obligations in the same sector(s), it may suspend concessions and obligations in other sectors. The communication in which it announces such a decision shall indicate the reasons on which it is based.
5. The suspension of benefits shall be temporary and shall only be applied until such time as the measure found to be inconsistent with this Agreement has been removed, or the Party that must implement the arbitral tribunal's findings has done so, or a mutually satisfactory solution is reached.
6. Upon written request of the Party concerned, the original arbitral tribunal shall determine whether the level of concessions and obligations to be suspended by the complaining Party pursuant to paragraph 2 is excessive. If the arbitral tribunal cannot be established with its original members, the proceeding set out in Article 189 shall be applied.
7. The arbitral tribunal shall present its determination within 60 days from the request made pursuant to paragraph 6, or if an arbitral tribunal cannot be established with its original members, from the date on which the last arbitrator is selected. The decision of the arbitral tribunal shall be final and binding. It shall be delivered to the Parties and be made publicly available.
Article 199. Post Suspension
1. Without prejudice to the procedures in Article 198, if the responding Party considers that it has eliminated the non-conformity that the arbitral tribunal has found, it may provide written notice to the complaining Party with a description of how non-conformity has been removed. If the complaining Party disagrees, it may refer the matter to the original arbitral tribunal within 60 days after receipt of such written notice. Otherwise, the complaining Party shall promptly stop the suspension of concessions and obligations.
2. The arbitral tribunal shall release its report within 60 days after the referral of the matter. If the arbitral tribunal concludes that the responding Party has eliminated the non-conformity, the complaining Party shall promptly stop the suspension of concessions and obligations.
Chapter 17. Exceptions
Article 200. General Exceptions
1. For the purposes of this Agreement, Article XX of GATT 1994 and its interpretative notes and Article XIV of GATS (including its footnotes) are incorporated into and made part of this Agreement, mutatis mutandis.
2. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 and Article XIV(b) of GATS, as incorporated into this Agreement, can include environmental measures necessary to protect human, animal or plant life or health, and Article XX(g) of GATT 1994, as incorporated into this Agreement, applies to measures relating to the conservation of living and nonliving exhaustible natural resources, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in goods or services or investment.
3. For the purposes of this Agreement, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade in goods or services or investment, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures necessary to protect national works or specific sites of historical or archaeological value, or to support creative arts of national value. (13)
4. Nothing in this Agreement shall prevent the Parties from taking any necessary measures to restrict the illicit import of cultural property from the other Party under the framework of the United Nations Educational, Scientific and Cultural Organization ("UNESCO") Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, done at Paris on 14 November 1970.
Article 201. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests;
(b) to prevent a Party from taking any actions which it considers necessary for the protection of its essential security interests
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials or relating to the supply of services as carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment;
(ii) taken in time of war or other emergency in international relations;
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The FTA Joint Commission shall be informed to the extent possible of measures taken under subparagraphs 1(b) and 1(c) and of their termination.
Article 202. Measures to Safeguard the Balance of Payments
1. Where a Party is in serious balance of payments and external financial difficulties or under threat thereof, it may:
(a) in the case of trade in goods, in accordance with GATT 1994 and the WTO Understanding on Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994, adopt restrictive import measures;
(b) in the case of services, in accordance with GATS, adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments;
(c) in the case of investments, adopt or maintain restrictions with regard to the transfer of funds related to investment, including those on capital account.
2. Restrictions adopted or maintained under subparagraph 1(b) or 1(c) shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves; and
(e) be applied on an equitable, non-discriminatory and good faith basis and such that the other Party is treated no less favourably than any non-Party.
3. In determining the incidence of such restrictions, the Parties may give priority to economic sectors which are more essential to their economic development. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular sector.
4. Any restrictions adopted or maintained by a Party under paragraph 1, or any changes therein, shall be notified to the other Party within 30 days from the date such measures are taken.
5. The Party adopting or maintaining any restrictions under paragraph 1 shall commence consultations with the other Party within 45 days from the date of notification in order to review the measures adopted or maintained by it.
Article 203. Prudential Measures
Notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the Party's commitments or obligations under this Agreement.
Article 204. Taxation Measures
1. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
2. This Agreement shall only grant rights or impose obligations with respect to taxation measures:
(a) where corresponding rights or obligations are also granted or imposed under the WTO Agreement; or
(b) under Article 145.
3. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention relating to the avoidance of double taxation in force between the Parties.
4. If there is a dispute described in Article 152 that may relate to a taxation measure, then the Parties, including representatives of their tax administrations, shall hold consultations. Any tribunal established under Article 153 shall accept a decision of the Parties as to whether the measure in question is a taxation measure.
5. In the event of any inconsistency relating to a taxation measure between this Agreement and the Agreement between the Government of New Zealand and the Government of the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, done at Wellington on 16 September 1986, with Protocols, the latter shall prevail. Any consultations between the Parties about whether an inconsistency relates to a taxation measure shall include representatives of the tax administration of each Party. (14)
Article 205. Treaty of Waitangi
1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Party or as a disguised restriction on trade in goods and services, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement including in fulfilment of its obligations under the Treaty of Waitangi.
2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 16 (Dispute Settlement) shall otherwise apply to this Article. An arbitral tribunal established under Article 188 may be requested by China to determine only whether any measure referred to in paragraph 1 is inconsistent with their rights under this Agreement.
Article 206. Disclosure of Information
Nothing in this Agreement shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers:
(a) would be contrary to the public interest as determined by its legislation;
(b) is contrary to any of its legislation, including but not limited to that protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
(c) would impede law enforcement; or
(d) would prejudice legitimate commercial interests of particular enterprises, public or private.
Chapter 18. Final Provisions
Article 207. Annexes and Footnotes
The Annexes and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 208. Succession of Treaties or International Agreements
Any reference in this Agreement to any other treaty or international agreement shall be made in the same terms to any amendment or successor treaty or international agreement that binds both Parties.
Article 209. Application
1. This Agreement shall apply to the entire customs territory of China.
2. This Agreement shall apply to the territory of New Zealand, but shall not include Tokelau.
3. Each Party is fully responsible for the observance of all provisions in this Agreement and shall take such reasonable measures as may be available to it to ensure their observance by local government and authorities in its territory.
Article 210. Confidentiality
Where a Party provides information to the other Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information, except as required by domestic legal or constitutional requirements and only for the purpose of judicial proceedings.
Article 211. Financial Provisions
Any cooperative activities envisaged or undertaken under this Agreement shall be subject to the availability of resources and to the laws, regulations and policies of the Parties. Costs of cooperative activities shall be borne in such manner as may be mutually determined from time to time between the Parties.
Article 212. Amendments
This Agreement may be amended by agreement in writing by the Parties and such amendments shall come into force 60 days after the Parties exchange written notification that the necessary domestic legal procedures for entry into force have been completed, or after such other period as the Parties may agree in the written notification.
Article 213. Entry Into Force, Duration and Termination
1. Entry into force of this Agreement shall be subject to the completion of the necessary domestic legal procedures of both Parties.
2. This Agreement shall enter into force 60 days after the Parties exchange written notification that such procedures have been completed, or after such other period as the Parties may agree in the written notification.
3. This Agreement shall remain in force until one Party gives written notice of its intention to terminate it, in which case this Agreement shall terminate 180 days after the date of the notice of termination.
Article 214. Authentic Texts
This Agreement shall be done in English and Chinese. The two texts of this Agreement are equally authentic.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE in duplicate at ________________ this ______ day of _______________ two thousand and eight.
For the Government of New Zealand
For the Government of the People's Republic of China