Article 22.09. Qualifications of Panelists
1. All the arbitrators shall meet the following qualifications:
(a) have specialized knowledge or experience in law, international trade, other matters related to this Agreement, or in the settlement of disputes arising from international trade agreements;
(b) be elected strictly according to their objectivity, integrity, reliability and good judgement;
(c) be independent, not associated with, and not accepting instructions from any Party; and
(d) observe the Code of Conduct that the Commission establishes.
2. Persons that have participated in a dispute under Article 22.06.3 cannot serve as arbitrators for the same dispute.
Article 22.10. Arbitral Group Selection
1. The Parties shall apply the following procedures in selecting an arbitral group:
(a) the arbitral group shall comprise three members;
(b) the Parties shall endeavor to agree on the chair of the arbitral group within 15 days of the receipt of the request for the establishment of the arbitral group. If the Parties are unable to agree on the chair within this period, the chair shall be selected by lot within three days from among the roster members who are not nationals of a Party;
(c) within 15 days of selection of the chair, the complaining Party shall select one panelist and the Party complained against shall select one panelist;
(d) if either Party fail to select a panelist within this period, the panelist shall be selected by lot within three days from among the roster members who are nationals of such Party, as the case may be; and
(e) each Party shall endeavor to select panelists who have expertise or experience relevant to the subject matter of the dispute, as appropriate.
2. Panelists shall normally be selected from the roster. Any Party may exercise a peremptory challenge against any individual not on the roster who is proposed as a panelist by a Party within 15 days after the individual has been proposed.
3. If a Party believes that a panelist is in violation of the Code of Conduct, the 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 22.11. Model Rules of Procedure
1. The Commission shall establish by the date of entry into force of this Agreement Model Rules of Procedure, which shall ensure:
(a) a right to at least one hearing before the arbitral group, which, subject to subparagraph (e), shall be open to the public;
(b) an opportunity for each Party to provide initial and rebuttal written submissions;
(c) that each participating Party's written submissions, written versions of its oral statement, and written responses to a request or questions from the arbitral group shall be public, subject to subparagraph (e);
(d) that the arbitral group will consider requests from non-governmental entities in the Parties' territories to provide written views regarding the dispute that may assist the arbitral group in evaluating the submissions and arguments of the Parties; and
(e) the protection of confidential information.
2. Unless the Parties otherwise agree, the arbitral group shall conduct its proceedings in accordance with the Model Rules of Procedure.
3. The Commission may modify the Model Rules of Procedure.
4. Unless the Parties otherwise agree within 20 days from the date of the receipt of the request for the establishment of the arbitral group, the terms of reference shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referenced in the arbitral group request and to make findings, determinations, and recommendations as provided in Articles 22.11.6 and 22.13.3 and to deliver the written reports referred to in Articles 22.13 and 22.14."
5. If the complaining Party in its arbitral group request has identified that a measure has nullified or impaired benefits, in the sense of Annex 22.02, the terms of reference shall so indicate.
6. If a Party wishes the arbitral group to make findings as to the degree of adverse trade effects on any Party of a Party's inconsistency to conform with the obligations of this Agreement or of a Party's measure found to have caused nullification or impairment in the sense of Annex 22.02, the terms of reference shall so indicate.
Article 22.12. Role of Experts
On request of a Party, or on its own initiative, the arbitral group may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as such Parties may agree.
Article 22.13. Preliminary Report
1. Unless the Parties otherwise agree, the arbitral group shall base its report on the relevant provisions of this Agreement, the submissions and arguments of the Parties, and on any information before it pursuant to Article 22.12.
2. If the Parties request, the arbitral group may make recommendations for resolution of the dispute.
3. Unless the Parties otherwise agree, the arbitral group shall, within 120 days after the last panelist is selected or such other period as the Model Rules of Procedure established pursuant to Article 22.11 may provide, present to the Parties an preliminary report containing:
(a) findings of fact, including any findings pursuant to a request under Article 22.11.6;
(b) its determination as to whether a Party's measure is or might be inconsistent with the obligations under this Agreement or that a Party's measure is causing nullification or impairment in the sense of Annex 22.02, or any other determination requested in the terms of reference; and
(c) its recommendations, if the Parties have requested them, for resolution of the dispute.
4. When the arbitral group considers that it cannot provide its report within 120 days, it shall inform the Parties in writing of the reasons for the delay together with an estimate time to provide its report. In no case should the period to provide the report exceed 180 days. The arbitral group shall inform the Parties of any determination under this paragraph no later than seven days after the initial written submission of the complaining Party and shall adjust the remainder of the schedule accordingly.
5. Panelists may furnish separate opinions on matters not unanimously agreed.
6. A Party may submit written comments to the arbitral group on its preliminary report within 14 days of presentation of the report or within such other period as the Parties may agree.
7. After considering any written comments on the preliminary report, the arbitral group may reconsider its report and make any further examination it considers appropriate.
Article 22.14. Final Report
1. The arbitral group shall present a final report to the Parties, including any separate opinions on matters not unanimously agreed, within 30 days of presentation of the preliminary report, unless the Parties otherwise agree. The Parties shall release the final report to the public within15 days thereafter, subject to the protection of confidential information.
2. No arbitral group may, either in its preliminary report or its final report, disclose which panelists are associated with majority or minority opinions.
Article 22.15. Implementation of Final Report
1. The final report shall make mandatory for the Parties the requirements and periods that it orders. The timeframe for implementing the final report shall not exceed six months from the date on which the final report was notified to the Parties, unless the Parties agree on a different timeframe.
2. If the final report of the arbitral group states that the measure is inconsistent with this Agreement, the Party complained against shall refrain from executing the measure or shall repeal it.
3. If the final report states that the measure is a cause of nullification or impairment as set out in Annex 22.02, it shall specify the degree of nullification or impairment and may suggest the adjustments that it considers mutually satisfactory for the Parties.
4. Within five days after the expiration of the timeframe determined by the arbitral group, the Party complained against shall inform the arbitral group and the other Party of actions adopted to comply with the final report. Within 30 days after expiration of the timeframe as referred to in paragraphs 1, the arbitral group shall determine whether the Party complained against has complied with the final report. In case the arbitral group determines that the Party complained against has not complied with the final report, the complaining Party may suspend benefits in accordance with Article 22.16.
Article 22.16. Suspension of Benefits
1. The complaining Party may suspend the benefits to the defendant Party arising from this Agreement that have an effect equivalent to the benefits not received, if the arbitral group decides that:
(a) a measure is inconsistent with the obligations of this Agreement and that the defendant Party has not complied with the final report within the timeframe determined by the arbitral group in the final report; or
(b) a measure is a cause of nullification or impairment as set out in Annex 22.02 and the Parties have not reached a mutually satisfactory agreement on the dispute within the timeframe determined by the arbitral group.
2. The suspension of benefits shall last until the Party complained against complies with the final report or until the Parties reach a mutually satisfactory agreement on the dispute, as the case may be. When the Party complained against, after suspension of benefits, considers that it has adopted measures necessary to implement the final report and the complaining Party does not restore benefits previously suspended, it may ask for the establishment of an arbitral group in accordance with paragraph 4 to determine if it has complied with the final report.
3. In considering the benefits to be suspended in accordance with this Article:
(a) the complaining Party shall endeavor first to suspend benefits within the same sector or sectors affected by the measure or by other matter considered by the arbitral group as inconsistent with the obligations arising from this Agreement or that has been a cause of nullification or impairment as set out in Annex 22.02; and
(b) if the complaining Party considers that it is not feasible nor effective to suspend benefits in the same sector or sectors, it may suspend benefits in other sectors.
4. Once the benefits have been suspended pursuant to this Article, the Parties, by request in writing from a Party, shall establish an arbitral group if necessary to determine if the final report has been complied with or if the level of benefits suspended to the Party complained against by the complaining Party under this Article is obviously excessive; the Request shall be deliver to the other Party and to the designated office. To the extent practicable, the arbitral group shall be composed of the same arbitrators who have knowledge over the dispute.
5. The proceedings before the arbitral group established for purposes of paragraph 4 shall be carried forward pursuant to the Model Rules of Procedure set out in Article 22.11 and the final report shall be issued within 60 days of the nomination of the last arbitrator, or any other timeframe agreed upon by the Parties. If this arbitral group was composed of the same arbitrators who have knowledge over the dispute, it shall present its final report within 30 days of the presentation of the request referred to in paragraph 4.
Article 22.17. Compliance Review
1. Without prejudice to the procedures set out in Article 22.16.4, if the Party complained against considers that it has eliminated the inconsistence or the nullification or impairment that the arbitral group has found, it may refer the matter to the arbitral group by providing written notice to the complaining Party. The arbitral group shall issue its report on the matter within 90 days after the Party complained against provides notice.
2. If the arbitral group decides that the Party complained against has eliminated the inconsistence or the nullification or impairment, the complaining Party shall promptly reinstate any benefits that Party has suspended under Article 22.16.
Section B. Domestic Proceedings and Private Commercial Dispute Settlement
Article 22.18. Referral of Matters from 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 to the other Party and the designated office. The Commission 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 Commission to the court or administrative body in accordance with the rules of that forum.
3. If the Commission is unable to agree, a Party may submit its own views to the court or administrative body in accordance with the rules of that forum.
Article 22.19. Private Rights
No Party may provide for a right of action under its domestic law against the other Party on the grounds that a measure of that Party is inconsistent with this Agreement.
Article 22.20. 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 observance of international agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes, for which the Parties will fulfill the dispositions of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the 1975 Inter-American Convention on International Commercial Arbitration.
3. The Commission may establish an Advisory Committee on Private Commercial Disputes comprising persons with expertise or experience in the resolution of private international commercial disputes.
4. This committee shall:
(a) report and provide recommendations to the Commission on general issues referred to it by the Commission respecting the availability, use, and effectiveness of arbitration and other procedures for the resolution of such disputes in the free trade area; and
(b) when the committee considers appropriate, promote technical cooperation between the Parties, in furtherance of the objectives identified in paragraph 1.
Annex 22.02. Nullification or Impairment
1. If any Party considers that any benefit it could reasonably have expected to accrue to it under any provision of:
(a) Chapters 3 through 5 (National Treatment and Market Access for Goods, Rules of Origin and Related Customs Procedures, and Trade Facilitation);
(b) Chapters 8 (Sanitary and Phyto-Sanitary Measures);
(c) Chapter 9 (Technical Barriers to Trade);
(d) Chapter 11 (Cross Border Trade in Services); or
(e) Chapter 17 (Intellectual Property Rights);
is being nullified or impaired as a result of the application of any measure that is not inconsistent with this Agreement, the party may have recourse to dispute settlement under this Chapter.
2. A Party may not invoke paragraph (d) or (e) with respect to any measure subject to an exception under Article 23.01 (General Exceptions).
3. To determine the elements of nullification and impairment, the Parties may take into account the principles set out in the jurisprudence of paragraph 1(b) of Article XXIIl of GATT 1994.
Annex 22.11.(a)(c). Model Rules of Procedure, Public Access to Documents and Public Hearings
Public Access to Documents
1. Subject to paragraph 2 of this Annex, all documents (2) submitted to, or issued by, an arbitral group and all notifications made pursuant to this chapter are public. The designated office of each Party shall make such documents and notifications available to the public as soon as is reasonably possible after they are received.
2. The following documents are confidential and may not be made available to the public:
(a) A preliminary report presented to the Parties pursuant to Article 13 (Preliminary Report) and any comments to it; and
(b) any document submitted to a arbitral group by a Party that contains information designated by the Party as confidential, in the terms established on Annex 22.11.1.(e) of this chapter.
3. Where a Party designates information contained in a document it submits to the arbitral group as confidential, it shall also, upon request of the other Party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public, no later than fifteen (15) days after the date of the request (3).
Public Hearings
4. All hearings of the arbitral group shall be open for the public to observe, unless the Parties otherwise agree. (4) Nevertheless, the arbitral group shall meet in closed sessions when the submission and arguments of the Parties contains confidential information. The Parties shall maintain the confidentiality of the arbitral groupâs hearings, to the extent that the arbitral group holds the hearing in closed session. Each Party shall treat as confidential the information submitted by the other Party to the arbitral group which that Party has designated as confidential. Nothing in this Annex shall preclude a Party from disclosing statements of its own positions to the public.
5. A Party that wishes to submit confidential information during a hearing of the arbitral group shall inform the arbitral group prior to so doing. The arbitral group shall close the hearing to observation by the public for the duration of the submission and any discussion of such confidential information.
6. The deliberations of the arbitral group shall be conducted in private and kept confidential. Nevertheless, the arbitral group may permit their assistants and experts to be present during such deliberations.
Annex 22.11.1(d). Model Rules of Procedure, Non-governmental Entity Participation
1. Unless the Parties otherwise agree, within three (3) days following the date of establishment of the arbitral group, the arbitral group may grant leave to any non- governmental entity to file a written submission directly relevant to any legal or factual issue under consideration by the arbitral group.
2. A non-governmental entity wishing to make a written submission to the arbitral group must apply to the arbitral group for leave to file the submission within ten (10) days of the establishment of the arbitral group.
3 The application for leave to file a non-governmental entity written submission shall:
(a) contain a description of the non-governmental entity, including nationality, the nature of the non-governmental entity's activities, membership, legal status, and sources of financing;
(b) contain a statement disclosing whether the non-governmental entity has any relationship, direct or indirect, with any Parties to the Agreement, as well as whether it has received, or will receive, any assistance, financial or otherwise, from the Parties to the Agreement in the preparation of the application for leave or the written submission;
(c) contain a statement disclosing whether the non-governmental entity has a associative, subsidiary or other kind of relationship, direct or indirect, with a non-governmental entity from another country, as well as whether it has received, or will receive, any assistance, financial or otherwise, from a nongovernmental entity from another country;
(d) identify the specific issues of law or fact under consideration by the arbitral group that the non-governmental entity intends to address in the submission;
(e) indicate the substantial interest of the non-governmental entity in the proceeding and why the submission would assist the arbitral group in the determination of a legal or factual issue under consideration by the arbitral group by bringing a perspective, particular knowledge or insight that is different from that of the Parties;
(f) be delivered to the arbitral group, along with three hard copies and one digital copy;
(g) be dated and signed by the non-governmental entity or the non- governmental entity's legal representative, and include the address and other contact details of the non-governmental entity;
(h) be no longer than three typed pages; (i) be made in each language being used in the proceeding; and
(i) conform with any additional requirements established in the Model Rules of Procedure.
4. A non-governmental entity shall notify the application for leave to file a non- governmental entity written submission to the designated offices of all the Parties.
5. The arbitral group shall not grant leave to file a written non-governmental entity submission if the application does not conform to the requirements established in the paragraph 3.
6. Each Party has ten (10) days from the date of notification of an application for leave to file a non-governmental entity written submission to make written comments to the arbitral group on the application.
7. In deciding whether to grant leave, the arbitral group shall take into account all relevant considerations, including:
(a) the submission would assist the arbitral group in the determination of any legal or factual issue under consideration by the arbitral group by bringing a perspective, particular knowledge or insight that is different from that of the Parties;
(b) the non- governmental entity has a substantial interest in the proceeding (5); and
(c) there is a public interest in the proceeding.
8. To minimize the complexity, cost or length of the proceeding, the arbitral group may direct two or more non-governmental entities that have filed separate applications for leave to file a single joint non-governmental entity written submission.
9. The arbitral group shall render its decision on an application to file a non- governmental entity written submission within thirty (80) days from the date of delivery of the application to the arbitral group. The arbitral group shall communicate forthwith to all designated offices of each Party and the non-governmental entity that made the application of the decision of the arbitral group.
10. A non-governmental entity granted leave to file a written submission shall deliver the submission to the arbitral group within ten (10) days from the date the arbitral group notified its decision pursuant to paragraph 9. The non-governmental entity submission shall:
(a) be dated and signed by the non-governmental entity or the non- governmental entity's representative;
(b) be concise and in no case longer than five (5) typed pages, including any appendices;
(c) contain a summary of the non-governmental entity's position on those legal or factual issues under consideration by the arbitral group that are addressed in the submission;
(d) be delivered to the arbitral group, along with three hard copies and one digital copy;
(e) be made in each language being used in the proceeding; and
(f) conform with any additional requirements established in the Model Rules of Procedure.
11. A non-governmental entity shall notify the written submission pursuant paragraph 10 to the designated offices of the Parties.
12. The arbitral group shall not consider any non-governmental entity written submission that does not conform to requirements set forth in paragraphs 10 and 11.
13. Each Party has ten (10) days from the date of notification of a non- governmental entity written submission to make written comments to the arbitral group on the submission.
14. The arbitral group is not required to address in its report legal or factual arguments made in non-governmental entity submissions.
15. This Annex does not grant non-governmental entity any right or privilege other than those expressly provided in the present Annex (6).
Annex 22.11.1(e). Model Rules of Procedure, Confidential Information Confidential Information
1. A Party may designate information that it submits to the arbitral group as confidential information. The Information so designated shall be treated in accordance with the procedures established in this Annex.
2. The Free Trade Commission may amend the procedures governing the treatment of confidential information established in this Annex.
Definitions
3. In this Annex,
approved person means: a person who is (i) an authorized representative of a Party; (ii) an authorized employee of the arbitral group, designated in accordance with paragraphs 13 and 14 of this Annex; or (iii) a member of the arbitral group.
authorized employee of the arbitral group means a person employed or appointed by the arbitral group who has been authorized by the arbitral group to work on the dispute, and includes assistants, experts, translators and interpreters and transcribers present at the arbitral group hearings.
authorized representative means:
(a) an employee of a Party; or
(b) a legal counsel or other advisor or consultant of a Party who has been authorized by the Party to act on its behalf in the course of the dispute and whose authorization has been notified to the arbitral group and to the Parties, but excludes in all circumstances a person or an employee, officer or agent of any entity that could reasonably be expected to benefit from the receipt of the confidential information.
confidential information means any reserved or sensitive information that is not available in the public domain and is designated as confidential
document includes any written matter, whether in printed or binary-encoded form.
information means information however recorded or stored, including in printed documents and binary-encoded files, and spoken information.