19. Unless the Parties otherwise agree, the hearings shall be held in the territory of the Party complained against.
20. The panel may convene additional hearings if the Parties so agree.
21. All panelists shall be present during the entirety of any hearing.
22. The following persons may attend the hearing, irrespective of whether the hearing is closed to the public or not:
(a) representatives of the Parties;
(b) advisers to the Parties;
(c) administrative staff, interpreters and translators; and
(d) panelists’ assistants
Only the representatives and advisers of the Parties may address to the panel.
23. The panel may direct questions to either Party at any time during a hearing.
24. The panel shall arrange for a transcript of each hearing to be prepared and delivered as soon as possible to the Parties.
Supplementary Written Submissions
25. Each Party may deliver a supplementary written submission concerning any matter that arises during the hearing within 20 days after the date of the hearing.
Confidentiality
26. The panel’s hearings and the documents submitted to it shall be kept confidential. The information submitted by the other Party to the panel which that Party has designated as confidential shall be treated as confidential. Nothing in this paragraph shall preclude a Party to a dispute from disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other Party, it does not disclose any information designated by the other Party as confidential.
Ex Parte Contacts
27. The panel shall not meet or contact a Party in the absence of the other Party. No Party may contact any panelist in relation to the dispute in the absence of the other Party or the other panelists.
28. No panelist may discuss any aspect of the subject matter of the proceedings with a Party or the Parties in the absence of the other panelists.
Computation of Time
29. Where anything under this Agreement or this Annex is to be done, or the panel requires anything to be done, within a number of days after or before a specified date or event, the specified date or the date on which the specified event occurs shall not be included in calculating that number of days.
30. Where, by reason of the application of paragraph 10 of this Annex, a Party receives a document on a date other than the date on which this document is received by the other Party, any period of time that is calculated on the basis of the date of receipt of that document shall be calculated from the last date of receipt of that document.
Working Languages
31. Unless the Parties otherwise agree, the working language for the dispute settlement proceedings shall be English
Annex 20-B. CODE OF CONDUCT FOR PANELISTS AND MEDIATORS
Definitions
1. For the purposes of this Annex:
assistant means a person who, under the terms of appointment of a member of the panel,
conducts research or provides support for the member;
mediator means a person who conducts a mediation procedure in accordance with Article 20.5 (Good Offices, Conciliation or Mediation);
panelist means a member of a panel established under Article 20.6 (Establishment of Panel);
proceeding, unless otherwise specified, means a panel proceeding under this Chapter; and
staff, in respect of member, means persons under the direction and control of the panelist, other than assistants.
Responsibilities to the Process
2. Every panelist shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved.
Disclosure Obligations
3. A panelist shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding by informing the Joint Commission, in writing, for consideration by the Parties.
4. A panelist shall only communicate matters concerning actual or potential violations of this Annex to the Joint Commission for consideration by the Parties.
Duties of Panelists
5. Upon selection, a panelist shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
6. A panelist shall consider only those issues raised in the proceeding and necessary for a ruling and shall not delegate this duty to any other person.
7. A panelist shall take all appropriate steps to ensure that his or her assistant and staff are aware of, and comply with this Annex.
8. A panelist shall not engage in ex parte contacts concerning the proceeding.
Independence and Impartiality of Panelists
9. A panelist must be independent and impartial and avoid creating an appearance of impropriety or bias.
10. A panelist shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his or her duties.
11. A panelist shall not use his or her position on the panel to advance any personal or private interests. A panelist shall avoid actions that may create the impression that others are in a special position to influence him or her.
Confidentiality
12. A panelist shall not at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
13. A panelist shall not disclose a panel ruling or parts thereof prior to its publication in accordance with this Agreement.
14. A panelist shall not at any time disclose the deliberations of a panel or any panelist’s view.
Mediators
15. The provisions described in the Annex 20-B shall apply, mutatis mutandis, to mediators.
Chapter 21. Exceptions
Article 211. General Exceptions
1. For the purposes of Chapters 2 (National Treatment and Market Access for Goods) through 7 (Trade Remedies), Article XX of GATT 1994 and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis.
2. For the purposes of Chapters 8 (Trade in Services), 9 (Financial Services), 10 (Telecommunications), and 13 (Electronic Commerce) (66), Article XIV of GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis.
Article 21.2. Essential Security
For the purposes of this Agreement, Article XXI of GATT 1994 and Article XIV bis of GATS are incorporated into and made part of this Agreement, mutatis mutandis.
Article 21.3. Taxation
1. For purposes of this Article:
(a) tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement to which both Parties are party; and
(b) taxation measures do not include:
(i) a customs duty defined in Article 1.6 (Definitions); or
(ii) the measures listed in subparagraphs (b) through (e) of the definition of customs duty set out in Article 1.6 (Definitions).
2. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.
3. (a) Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention to which both Parties are party. In the event of any inconsistency relating to a taxation measure between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
(b) In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
4. Notwithstanding paragraph 3, this Agreement shall only grant rights or impose obligations with respect to taxation measures where corresponding rights or obligations are also granted or imposed under Article III of GATT 1994.
5. (a) Article 12.12 (Settlement of Investment Disputes between a Party and an Investor of the Other Party) shall apply to a taxation measure alleged to be an expropriation.
(b) Articles 12.9 (Expropriation and Compensation) shall apply to taxation measures. However, no investor may invoke Article 12.9 (Expropriation and Compensation) as the basis of a claim where it has been determined in accordance with this paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 12.9 (Expropriation and Compensation) with respect to a taxation measure must first refer to the competent authorities, at the time of the submission of written request for consultation to the disputing Party under paragraph 2 of Article 12.12 (Settlement of Investment Disputes between a Party and an Investor of the Other Party), the issue of whether that taxation measure involves an expropriation. If the competent authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months from the date on which the written request for consultation is submitted to the disputing Party under paragraph 2 of Article 12.12 (Settlement of Investment Disputes between a Party and an Investor of the Other Party), the investor may submit its claim to arbitration under Article 12.12.3 (Settlement of Investment Disputes between a Party and an Investor of the Other Party).
6. For the purposes of this Article, competent authorities means:
(a) for China, the Ministry of Finance and State Administration of Taxation; and
(b) for Korea, the Deputy Minister for Tax and Customs, Ministry of Strategy and Finance.
Article 21.4. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 21.5. Measures to Safeguard the Balance of Payments
Where the Party is in serious balance of payments and external financial difficulties or threat thereof, it may, in accordance with the WTO Agreement and consistent with the Articles of Agreement of the International Monetary Fund, adopt measures deemed necessary.
Chapter 22. Final Provisions
Article 22.1. Annexes, Appendices and Footnotes
The Annexes, appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 22.2. Amendments
1. The Parties shall amend Chapters relating to Trade in Services and Investment and their corresponding annexes through the subsequent negotiations commencing from the date of entry into force of this Agreement (hereinafter referred to as "subsequent negotiations") in accordance with the general principles and negotiation guidelines specified in the Annex 22-A.
2. The results of the subsequent negotiations shall be incorporated into and made an integral part of this Agreement and substitute the corresponding Chapters of this Agreement. The entry into force of the newly amended chapters shall be subject to the procedures contained in the Article 22.4.
3. Further to the aforementioned amendment, the Parties may agree to amend this Agreement. When so agreed and entered into force according to Article 22.4, such amendments shall constitute an integral part of this Agreement.
Article 22.3. Amendment of the Wto Agreement
If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult on whether to amend this Agreement accordingly.
Article 224. Entry Into Force and Termination
1. The entry into force of this Agreement is subject to the completion of necessary domestic legal procedures by each Party.
2. This Agreement shall enter into force 60 days after the date the Parties exchange written notifications through diplomatic channels that such procedures have been completed or after such other period as the Parties may agree and confirm by written notifications.
3. Either Party may terminate this Agreement by written notification to the other Party through diplomatic channels. This Agreement shall expire 180 days after the date on which such notification is sent.
Article 22.5. Accession
Any country or customs territory may accede to this Agreement subject to such terms and conditions as may be agreed between the country or customs territory and the Parties and following approval in accordance with the applicable legal requirements and procedures of each Party and acceding country or customs territory.
Article 22.6. Authentic Text
This Agreement shall be done in Chinese, Korean, and English. The three texts are equally valid and authentic. In case of any divergence, the English text shall prevail.
Annex 22-A. GUIDELINES FOR SUBSEQUENT NEGOTIATION
A. General Principles
1. The Parties aim at achieving high-level liberalization for trade in services and investment in the subsequent negotiation.
2. The subsequent negotiations will cover, among others, Chapters 8 (Trade in Services), 9 (Financial Services) and 12 (Investment) including their respective Annexes, and the related provisions concerning rules in other Chapters.
3. The subsequent negotiations will be conducted based on a negative list approach covering pre-establishment phase of investment and trade in services in mode 3.
4. The Parties agreed to generate combined reservation lists associated with the Chapter 8 (Cross-Border Trade in Services), Chapter 9 (Financial Services), and Chapter 12 (Investment) based on a negative list approach. The newly-generated combined reservation lists such as Annex I (List of Existing Non-Conforming Measures), Annex II (List of the Specific Sectors, Subsectors, or Activities for Which a Party May Maintain Existing, or Adopt New or More Restrictive Measures that Do not Conform with Obligations under the Relevant Chapters), and Annex III (Financial Services), shall be attached to this Agreement and constitute an integral part of this Agreement.
5. The Parties shall ensure that the level of liberalization commitments of a specific sector attained in this Agreement will not be decreased at the subsequent negotiations.
6. In the subsequent negotiations, the Parties may revisit any Articles in the relevant Chapters. (67)
7. Nothing in this Agreement shall be construed as preventing a Party from making new textual proposals in the subsequent negotiations.
B. Timeframes
8. The Parties shall commence the subsequent negotiations as soon as possible, but not later than two years following the date of entry into force of this Agreement.
9. The Parties shall endeavor to conclude the subsequent negotiations within two years from the date of the starting of the negotiations.
C. Guidelines for Negotiations for Trade in Services
10. The Chapter on Cross-Border Trade in Services which will be established through subsequent negotiations applies to trade in services in mode 1 and 2.
11. The Parties shall include, among others, the provision concerning Future MFN (Most-Favored Nation Treatment) in the result of the subsequent negotiations for the Chapter on Cross-Border Trade in Services.
12. The Parties shall include, among others, the provisions concerning Future MFN (Most-Favored Nation Treatment), Transfer of Information and New Financial Services in the result of the subsequent negotiations for the Chapter on Financial Services.
13. The list of existing non-conforming measures and the list of the specific sectors, subsectors, or activities for which a Party may maintain existing, or adopt new or more restrictive measures that do not conform with the obligations under the Chapter on Financial Services shall be attached to as Annex III to this Agreement.
D. Guidelines for Negotiations for Investment
14. The Parties shall revisit all the Articles in Chapter 12 (Investment) with a view to including pre-establishment phase of the investment covering all kinds of investment including supply of services through commercial presence.
15. The negotiation shall include the Articles addressing Definition, Scope and Coverage, National Treatment, Most-Favored- Nation Treatment, Minimum Standard of Treatment, Expropriation, Transfer, Performance Requirements, Senior Management and Boards of Directors, Non-Confirming Measures, Investor-State Dispute Settlement, and other provisions.
16. The Parties shall include, in the result of the subsequent negotiations, an Article on Performance Requirement with a view to incorporating high level commitment for both pre-establishment and post-establishment phase of the investment.
17. The Parties shall negotiate on issues such as relevant consideration for, and exceptions to the indirect expropriation in the subsequent negotiation.
E. Guidelines for Negotiations for related provisions concerning rules
18. The Parties shall negotiate on the related provisions concerning rules in other Chapters at the subsequent negotiations.
F. Termination and Modification of the Annex and Relevant Article
19. This Annex and the paragraphs 1 and 2 of Article 22.2 (Amendments) shall be terminated at the time when the result of the subsequent negotiations enters into force.
20. The paragraph 3 of Article 22.2 (Amendments) shall, at the time when the result of the subsequent negotiations enters into force, be modified as follows
“The Parties may agree to amend this Agreement. When so agreed and entered into force according to Article 22.4 (Entry into Force and Termination), such amendment shall constitute an integral part of this Agreement.”
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Seoul, this First day of June, 2015, in duplicate, each Party shall keep one copy in the Chinese, Korean and English languages.
FOR THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA
FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA