Article 12.1. Establishment of the Joint Committee
The Parties hereby establish a Joint Committee, which shall be composed of government representatives of the Parties at the level of senior officials or, when agreed by the Parties, at the level of Ministers.
Article 12.2. Meeting of the Joint Committee
1. The Joint Committee shall meet within 1 year of entry into force of this Agreement. Thereafter, it shall meet every 2 years unless the Parties agree otherwise, to consider any matter relating to this Agreement.
2. Meetings conducted pursuant to paragraph 1 shall be held alternately in the territories of the Parties, unless the Parties agree otherwise. The Party hosting a session of the Joint Committee shall provide any necessary administrative support for such session.
3. Upon request by a Party, the Joint Committee and any subcommittee, subsidiary body or working group established under this Agreement may hold special sessions at a mutually convenient date without undue delay.
4. Each Party shall be responsible for the composition of its delegation.
Article 12.3. Decision-making
1. All decisions of the Joint Committee shall be made by mutual agreement of the Parties.
2. All decisions of the subcommittees, subsidiary bodies or working groups established under this Agreement shall be made by mutual agreement of the Parties.
Article 12.4. Functions of the Joint Committee
1. The Joint Committee shall:
(a) assess, review and monitor the implementation and operation of this Agreement;
(b) consider any matter relating to the implementation or operation of this Agreement;
(c) consider ways to further trade and investment between the Parties, including improving market access;
(d) consider and recommend to the Parties any proposal to amend this Agreement;
(e) supervise and coordinate the work of all subcommittees, subsidiary bodies and working groups established under this Agreement;
(f) during its first meeting, adopt the Rules of Procedure and Code of Conduct referred to in Article 13.11 (Rules of Procedure and Code of Conduct - Dispute Settlement); and
(g) consider any other matter that may affect the operation of this Agreement.
2. The Joint Committee may:
(a) adopt decisions or make recommendations as envisaged by this Agreement;
(b) seek to resolve differences or disputes that may arise regarding the implementation, interpretation or application of this Agreement without prejudice to the rights of the Parties under Chapter 13 (Dispute Settlement);
(c) as appropriate, issue interpretations of this Agreement; (1)
(d) establish, refer matters to, or assign tasks to, or delegate functions to, or consider matters raised by any subcommittee, subsidiary body, or working group;
(e) restructure, reorganise or dissolve any subcommittee, subsidiary body or working group established under this Agreement, in order to improve the functioning of this Agreement;
(f) unless otherwise provided in this Agreement, determine the functions of the subcommittees, subsidiary bodies, or working groups established under this Agreement;
(g) as it considers appropriate, amend the Rules of Procedure and Code of Conduct referred to in Article 13.11 (Rules of Procedure and Code of Conduct - Dispute Settlement); and
(h) carry out any other such functions as may be agreed by the Parties.
Article 12.5. Rules of Working Procedures
1. The Joint Committee shall establish its own rules of working procedures at its first meeting. The Joint Committee, if necessary, may also establish its own financial arrangements.
2. Any subcommittee, subsidiary body or working group established under this Agreement may establish its own rules of working procedures for its work.
3. Unless otherwise provided in this Agreement, the Joint Committee and any subcommittee, subsidiary body or working group established under this Agreement shall carry out its work through whatever means as appropriate, which may include through electronic means.
4. The Joint Committee and any subcommittee, subsidiary body or working group established under this Agreement, shall be co-chaired by representatives from both the Parties.
Article 12.6. Communications
1. Each Party shall designate a contact point to receive and facilitate official communications between the Parties on any matter relating to this Agreement, except for matters for which this Agreement establishes a specific contact point.
2. All official communications in relation to this Agreement shall be in the English language.
3. Each Party shall promptly notify the other Party, in writing, of any changes to its overall contact point or any other contact point.
Chapter 13. DISPUTE SETTLEMENT
Article 13.1. Definitions
For the purposes of this Chapter:
(a) Code of Conduct means the code of conduct referred to in Article 13.11 (Rules of Procedure and Code of Conduct) and annexed to the Rules of Procedure;
(b) complaining Party means the Party requesting consultations under Article 13.5 (Consultations);
(c) compliance review panel means a panel reconvened under Article 13.15 (Compliance Review);
(d) confidential information means information which is treated and designated as confidential by a Party;
(e) DSU means the Understanding on Rules and Procedures Governing the Settlement of Disputes set out in Annex 2 of the WTO Agreement;
(f) panel means a panel established under Article 13.7 (Request for Establishment of a Panel), unless the context provides otherwise;
(g) reconvened panel means a panel reconvened under Article 13.16 (Compensation and Suspension of Concessions or Other Obligations) or Article 13.17 (Review after the Suspension of Concessions or Other Obligations);
(h) responding Party means the Party to which a request for consultations is made under Article 13.5 (Consultations); and
(i) Rules of Procedure means the rules of procedure referred to in Article 13.11 (Rules of Procedure and Code of Conduct) and established in accordance with paragraph 1(f) of Article 12.4 (Functions of the Joint Committee â Administrative and Institutional Provisions).
Article 13.2. Cooperation
The Parties shall endeavour to agree on the interpretation and application of this Agreement in accordance with customary rules of interpretation of public international law. The Parties shall make every attempt through cooperation and consultations to arrive at a mutually agreed solution to any matter that might affect its operation.
Article 13.3. Scope
1. Unless otherwise provided in this Agreement, this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the implementation, interpretation or application of this Agreement or whenever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement; or
(b) the other Party has otherwise failed to carry out its obligations under this Agreement.
2. Unless the Parties agree otherwise, the timeframes and procedural rules set out in this Chapter shall apply to all disputes governed by this Chapter.
3. No finding, determination or recommendation of a panel, a compliance review panel, or a reconvened panel can add to or diminish the rights, and obligations of the Parties under this Agreement.
4. The Parties agree that a panel appointed under this Chapter shall interpret and apply this Agreement in accordance with customary rules of interpretation of public international law. Where an obligation under this Agreement is identical or substantially identical to an obligation under the WTO Agreement, the panel shall take into account any relevant interpretation established in rulings of the WTO Dispute Settlement Body.
Article 13.4. Choice of Forum
1. If a dispute arises regarding a right or obligation under this Agreement and a substantially equivalent right or obligation under another international agreement to which the Parties are party, including the WTO Agreement, the complaining Party may select the forum in which to settle the dispute. The forum selected shall be used to the exclusion of other fora. (1)
2. For the purposes of this Article, the complaining Party shall be deemed to have selected the forum in which to settle the dispute when it has requested the establishment of a panel pursuant to paragraph 1 of Article 13.7 (Request for Establishment of a Panel) or requested the establishment of, or referred a matter to, a dispute settlement panel under another international agreement. Where panel procedures are not provided for under another international agreement, the complaining Party shall be deemed to have selected the forum when it commences a dispute under the dispute settlement procedures in the relevant international agreement.
Article 13.5. Consultations
1. Either Party may request consultations with the other Party with respect to any matter described in Article 13.3 (Scope) by providing written notification to the other Party. The complaining Party shall set out the reasons for the request, including identification of the measure at issue and an indication of the legal basis for the complaint, and any other issue of concern. Each Party shall accord adequate opportunity for consultations regarding the request for consultation made by the other Party.
2. If a request for consultations is made, the Party to which the request is made shall reply to the request within 10 days of receipt of the request and shall enter into consultations within a period no later than 30 days after the receipt of the request or, within 15 days of receipt of the request in the case of perishable goods, with a view to reaching a mutually agreed solution.
3. The Parties shall make every effort to reach a mutually agreed solution to any matter through consultations. To this end:
(a) the Parties shall provide sufficient information as may be available at the stage of consultations to enable a full examination of the matter subject to consultations, including how the measure at issue might affect the implementation, application or operation of this Agreement;
(b) the Parties shall treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information; and
(c) the consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 13.6. Good Offices, Conciliation or Mediation
1. The Parties may at any time agree to good offices, conciliation or mediation. Such procedures may begin at any time and be terminated by either Party at any time.
2. Proceedings involving good offices, conciliation or mediation and the particular positions taken by the Parties in these proceedings shall be confidential and without prejudice to the rights of either Party in any further proceedings under the provisions of this Chapter or any other proceedings before a forum selected by the Parties.
3. If the Parties agree, procedures for good offices, conciliation or mediation may continue while the dispute proceeds for resolution before a panel established under Article 13.7 (Request for Establishment of a Panel).
Article 13.7. Request for Establishment of a Panel
1. The complaining Party may request the establishment of a panel to examine the matter, by way of written notification if:
(a) the responding Party does not enter into consultations within 30 days of receipt of the request for consultations under Article 13.5 (Consultations) or within 15 days of such a request in the case of perishable goods; or
(b) the Parties fail to resolve the matter within 60 days of receipt of the request for consultations or within 30 days of such a request in the case of perishable goods, or within such other period as the Parties mutually agree.
2. The request to establish a panel shall identify:
(a) the specific measures at issue;
(b) whether consultations have been held; and
(c) a brief summary of the factual and legal basis of the complaint sufficient to present the problem clearly including the relevant provisions of this Agreement at issue.
3. Once a request for the establishment of a panel is made in conformity with paragraph 2, a panel shall be established in accordance with Article 13.8 (Composition of Panels).
Article 13.8. Composition of Panels
1. Where a Party makes a request for the establishment of a panel pursuant to paragraph 1 of Article 13.7 (Request for Establishment of a Panel), a panel shall be established in accordance with this Article.
2. Unless the Parties agree otherwise, a panel shall consist of three members. Within 30 days of the receipt of the written notification requesting the establishment of a panel, each Party shall appoint one panellist, who may be its national, and provide to the other Party a list of up to four nominees for appointment as the chair. The chair shall not be a national of either 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.
3. Within 45 days of receipt of the request for the establishment of a panel, any panellist not yet appointed shall be appointed by the Parties, on request of either Party, by draw of lot from the list of the candidates proposed in accordance with paragraph 2. Where more than one panellist, including a chair is to be selected by draw of lot, the chair shall be selected first.
4. Where a Party fails to submit its list of up to four nominees within the period specified in paragraph 2, the chair shall be appointed by random draw of lot from the list of nominees already submitted by the other Party.
5. If a panellist appointed under this Article resigns or becomes unable to act, a successor panellist shall be appointed in the same manner as prescribed for the appointment of the original panellist and shall have all the powers and duties of the original panellist. In such a case, the work of the panel and any time period applicable to the panel proceedings shall be suspended for the period beginning the date the original member becomes unable to act and ending on the date the new member is appointed.
6. Where a panel is reconvened under paragraph 1 of Article 13.15 (Compliance Review), paragraph 6 of Article 13.16 (Compensation and Suspension of Concessions or Other Obligations), or paragraph 4 of Article 13.17 (Review after the Suspension of Concessions or Other Obligations) the reconvened panel shall, where possible, have the same panellists as in the original panel. If the panel cannot be reconvened with all of its original panellists, the procedures for selection of the panellists set out in paragraphs 2 through 5 shall apply for the appointment of any replacement panellist.
Article 13.9. Qualification of Panellists
1. Any person appointed as a panellist pursuant to Article 13.8 (Composition of Panels) 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 impartiality, objectivity, reliability, sound judgement and independence;
(c) not be employed by, affiliated with or take instructions from either Party;
(d) not have dealt with the matter in any capacity;
(e) disclose to the Parties information which may give rise to justifiable doubts as to their independence or impartiality; and
(f) comply with the Code of Conduct.
2. An individual shall not serve as a panellist for a dispute in which that person has participated under Article 13.6 (Good Offices, Conciliation or Mediation).
3. If a Party believes that a panellist is in violation of any of these requirements, the Parties shall consult and, if they agree, the panellist shall be replaced by a new panellist in accordance with the manner prescribed for the appointment of the original panellist. The new panellist shall have all the powers and duties of the original panellist.
Article 13.10. Functions and Proceedings of Panels
1. Unless the Parties agree otherwise, the panel shall perform its functions and conduct its proceedings in a manner consistent with this Agreement, the Rules of Procedure, and the Code of Conduct.
Panel Assessment
2. A panel shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the facts of the case;
(b) the applicability of the relevant provisions of this Agreement cited by the Parties;
(c) whether:
(i) the measure at issue is inconsistent with the obligations of this Agreement; or
(ii) a Party has otherwise failed to carry out its obligations under this Agreement; and
(d) any other issue of concern that the Parties have jointly requested that the panel address.
Terms of Reference
3. Unless the Parties agree otherwise within 30 days of the request for the establishment of the panel, or within 15 days of such request in the case of perishable goods, the panel's terms of reference shall be:
"To examine, in light of the relevant provisions of this Agreement cited by the Parties, the matter referenced in the request for the establishment of the panel under paragraph 1 of Article 13.7 (Request for Establishment of a Panel), and to make and present in a written report, its findings of law and fact and determinations and, if jointly requested by the Parties, its recommendations."
Article 13.11. Rules of Procedure and Code of Conduct
1. The panel, after consulting with the Parties, or on the joint request of the Parties, shall adopt additional Rules of Procedure not inconsistent with this Chapter or the Rules of Procedure.
2. The Rules of Procedure, established in accordance with paragraph 1(f) of Article 12.4 (Functions of the Joint Committee - Administrative and Institutional Provisions), shall ensure that:
(a) there is at least one hearing before the panel at which each Party may present views orally;
(b) the first hearing shall be held in the capital of the responding Party, and any additional hearings shall alternate between the capitals of the Parties, unless the Parties agree otherwise;
(c) hearings shall be closed to the public, unless the Parties agree otherwise;
(d) each Party has an opportunity to provide an initial written submission;
(e) the panel may at any time during the proceeding address questions in writing to a Party or the Parties;
(f) subject to subparagraph (h), the Parties may release to the public, the request for consultations, the request for establishment of a panel, the final report, and the timetable for hearings. A Party may release to the public its own
(i) written submissions;
(ii) written versions of oral statements; or
(iii) any responses to requests or questions from the panel;
(g) subject to consultations with the Parties, the panel may seek information or technical advice from an expert that it deems appropriate; and
(h) confidential information is protected.
Article 13.12. Reports of the Panel
1. The reports of the panel shall be drafted without the presence of the Parties. The panellists shall assume full responsibility for the drafting of the reports. Opinions expressed in the reports of the panel by individual panellists shall be anonymous. The reports shall include any separate or dissenting opinions on matters not unanimously agreed by the panel.
Initial Report
2. Unless the Parties agree otherwise, the panel shall base its report on the relevant provisions of this Agreement, on the submissions and arguments of the Parties, and on any information or technical advice it has obtained in accordance with the Rules of Procedure.
3. Unless the Parties agree otherwise, the panel shall, within 180 days of the date the panel is established, or in the case of perishable goods, endeavour to, within 120 days of the date the panel is established, present to the Parties an initial report containing:
(a) a descriptive section summarising the submissions and arguments of the Parties;
(b) its findings of fact;
(c) its determination as to:
(i) whether the measure at issue conforms to the Party's obligations under this Agreement; or
(ii) whether a Party has otherwise failed to carry out its obligations under this Agreement;
(d) any other issue of concern that the Parties have jointly requested that the panel address;
(e) the reasons for the panel's findings and determinations; and
(f) if jointly requested by the Parties, its recommendations, if any, on the means to resolve the dispute.
4. Each Party may submit written comments to the panel on its initial report within 20 days of presentation of the report unless otherwise specified by the panel or agreed between the Parties.
5. If the panel receives written comments from the Parties pursuant to paragraph 4, the panel may reconsider and modify its report, including on the basis of any further examination it considers appropriate after taking into account those comments. The panel shall specify the reasons for any modifications to its report in its final report including a discussion of written comments.
6. If the panel considers that it cannot present its report within the time period pursuant to paragraph 3, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will present its report. Any delay shall not exceed a further period of 30 days unless the Parties agree otherwise and in the case of perishable goods, the panel shall make every effort to not exceed 15 days.
7. Paragraphs 3, 4 and 5 shall not apply to a panel reconvened under paragraph 1 of Article 13.15 (Compliance Review), paragraph 6 of Article 13.16 (Compensation and Suspension of Concessions or Other Obligations), or paragraph 4 of Article 13.17 (Review after the Suspension of Concessions or Other Obligations).
Final Report
8. The panel shall present a final report to the Parties within 45 days of presentation of the initial report, unless the Parties agree otherwise.
9. Either Party may make the final report available to the public once it has been presented to the Parties, subject to the protection of confidential information.
Article 13.13. Implementation of Final Report
1. The final report of a panel shall be binding on the Parties and shall not be subject to appeal.
2. Where the final report of a panel contains a determination that the measure at issue is inconsistent with the obligations of this Agreement, or that the responding Party has otherwise failed to carry out its obligations under this Agreement, the responding Party has an obligation to bring the measure into conformity with this Agreement.