Chapter 6. Administration of the Agreement
Article 6.1. Administrative Commission
1. The Parties hereby establish an Administrative Commission (hereinafter referred to as the Commission) composed of the Minister of Foreign Trade and Tourism of Peru and the Minister of Foreign Affairs of Brazil, or their respective successors or designees.
2. The Commission shall:
(A) establish its rules and procedures;
(B) supervise the implementation and application of this Agreement, as well as evaluate its results;
(C) to ensure compliance with the work and, if necessary, to recommend the actions of the committees established in accordance with the chapters of this Agreement, respecting their specific responsibilities;
(D) adopt the Model Rules of Procedure referred to in Article 7.8.1 (Rules of Procedure);
(E) develop and approve the code of conduct for panelists;
(F) establish the amount of remuneration and expenses that will be paid to the panelists; and
(G) consider any other matter relating to the operation of this Agreement, or to be entrusted to it by the Parties.
3. The Commission may:
(A) consider and adopt any amendment or amendment to this Agreement, in accordance with the applicable legal procedures of each Party;
(B) issue interpretations of the provisions of this Agreement;
(C) amend or modify, where necessary, the Model Rules of Procedure referred to in Article 7.8.1 (Rules of Procedure);
(D) to establish working groups to deal with aspects not foreseen in the terms of reference of the Committees, to supervise them and, if necessary, to recommend corresponding actions; or
(E) take any other action in the exercise of its functions, subject to the agreement of the Parties.
Four.
All decisions of the Commission shall be taken by consensus.
5. The Commission shall meet at least once a year in regular session and, subject to the agreement of the Parties, in extraordinary sessions. Sessions shall take place alternately in the territory of each Party, or through any technological means available to the Parties.
Article 6.2. Agreement Coordinators
1. To facilitate communications between the Parties, each Party shall designate a Coordinator of the Agreement and shall communicate such designation to the other Party within 90 days of the date of entry into force of this Agreement.
2. Any information, request or notification shall be communicated to the other Party through the coordinator, unless otherwise agreed by the Parties. For greater certainty, the provisions of this article are without prejudice to the attributions of the Focal Point provided for in the chapter on Investments and Committees.
3. The Coordinators of the Agreement:
(A) work jointly on the preparation of agendas and other preparations for the meetings of the Commission and follow up on the decisions of the Commission;
(B) provide administrative support to panels established pursuant to Chapter 7 (Dispute Settlement).
4. Each Party shall be responsible for the operation and costs of its designated Coordinator.
Chapter 7. Settlement of Disputes
Article 7.1. Scope of Application
1. Except as otherwise provided in this Agreement, this Chapter applies to the prevention or settlement of all disputes between the Parties relating to the interpretation or application of this Agreement or where 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 in any way failed to comply with its obligations under this Agreement.
2. This Chapter does not apply to Chapter 2 (Investment).
Article 7.2. Cooperation
The Parties shall at all times endeavor to reach agreement on the interpretation and application of this Agreement and shall make every effort through cooperation and consultation to reach a mutually satisfactory solution to any matter that may affect its operation.
Article 7.3. Choice of Forum
1. In the event of a dispute arising under this Agreement and pursuant to another trade agreement of which both Parties are a party, the complaining Party may choose the forum to settle the dispute.
2. Unless the Parties agree otherwise, once the complaining Party has requested the establishment of a panel under one of the agreements referred to in paragraph 1, the selected forum shall be exclusive of the others in respect of that subject.
Article 7.4. Consultation
1. A Party may request in writing from the other Party consultations regarding any measure referred to in Article 7.2 (Scope)
2. The requesting Party shall deliver the request to the other Party and shall state in its request the reasons therefor, including the identification of the measure or other matter in question and an indication of the legal and factual grounds of the claim.
3. The Party receiving the request will respond in writing within 10 days from the date of receipt of the request.
4. The Parties shall consult within:
(A) 30 days after the date of receipt of the request for consultations; or
(B) such other period as the Parties may agree.
5. The Parties shall make every effort to reach a mutually satisfactory resolution of any matter through consultations under this Article or other provisions relating to consultations of this Agreement.
6. The Parties shall make every effort to provide each other with the information requested during the consultations and, at the request of the other party, to participate in the personal consultations of their governmental agencies or other regulatory entities with competence in the subject matter of the consultation. To reach a mutually satisfactory solution to the subject matter of the dispute.
7. Consultations may be conducted in person or by any technological means available to the Parties. Unless otherwise agreed by the Parties, consultations shall be held in the capital of the Party consulted.
8. In a consultation, each Party:
(A) provide sufficient information to allow a full examination of how the measure or other matter might affect the operation or application of this Agreement; and
(B) give the confidential information received during the consultation, the same treatment as the Party providing it.
9. The consultation period shall not exceed 60 days from the date of receipt of the request for consultations, unless otherwise agreed by the Parties.
10. Consultations shall be confidential and shall not prejudge the rights of the Parties in any other proceedings.
Article 7.5. Establishment of a Panel
1. If the consulting Parties have not resolved an issue within:
(A) 60 days after a Party has submitted a request for consultations pursuant to Article 7.4 (Consultations); or
(B) such other period as the consulting Parties may agree,
Any requesting Party may request in writing the establishment of a panel to consider the matter. The requesting Party shall deliver the request to the other Party and shall state the reasons for the request, including the identification of the measure or other matter in question and an indication of the legal basis of the claim.
2. The panel will be considered established upon delivery of the request.
3. Unless the Parties agree otherwise, the panel shall be selected and shall perform its functions in accordance with the provisions of this Chapter and the Model Rules of Procedure.
4. The Panel shall decide on the dispute on the basis of an objective and impartial assessment of the facts submitted to it and its conformity with the provisions of the Agreement invoked by the Parties, taking into account the arguments and evidence presented by both Parties.
Article 7.6. Qualification of Panelists
1. The panelists:
(A) have specialized knowledge or experience in law, international trade, other matters covered by this Agreement or in the settlement of disputes arising out of international trade agreements;
(B) will be selected strictly in function of their objectivity impartiality, reliability, and good judgment;
(C) shall be independent, shall not be bound by or receive instructions from any of the Parties; and
(D) comply with the code of conduct established by the Commission.
2. Individuals who have participated in consultations pursuant to Article 7.4 (Consultations) or have a conflict of direct or indirect interest in the dispute can not be panellists in a dispute.
Article 7.7. Panel Selection
1. The Parties shall apply the following procedures in the selection of the panel:
(A) the panel shall be composed of three members.
(B) within 15 days from the date of receipt of the panel request, each Party shall designate a panelist. If a Party fails to designate the panelist within the time limit, the other Party shall designate the panelist within the names indicated in the panelist list referred to in paragraph 3 of the Party that did not designate the panelist. In the absence of such a list, the other Party shall designate the panelist.
(C) Parties shall endeavor to designate the third panelist, who shall serve as chair of the panel, within 15 days from the date of selection of the second panelist. If the Parties fail to agree on the panel chairmanship within the period specified, the Parties shall exchange their respective lists of four candidates, who are not nationals of either Party, within the next 10 days. The President shall be drawn from the list of candidates by lot in the presence of the Parties, in person or by any technological means available to the Parties, within 10 days of the date of exchange of the lists. If a Party fails to submit its list of four candidates, the President shall be appointed by drawing lots from the list submitted by the other Party.
(D) the panel chairman shall not be a national of any of the Parties, nor have his current place of residence in the territory of any of the Parties, or be or have been employed by any of the Parties, or have treated at any level The matter arising in the dispute, unless the parties agree otherwise.
(E) Parties shall endeavor to select panelists having relevant knowledge or experience on the subject matter of the dispute.
2. If a Party considers that a panelist has violated or is violating the code of conduct, the Parties shall consult and, if they agree, the panelist shall be replaced by a new panelist in accordance with this Article.
3. For the purposes of the provisions of this Article, within 180 days of the date of entry into force of the Agreement, each Party shall notify, through its respective Coordinator, its indicative list of panelists composed of up to 12 candidates.
Article 7.8. Rules of Procedure
1. Unless the Parties agree otherwise, the panel shall conduct its proceedings in accordance with the Model Rules of Procedure, to be established by the Commission, which shall ensure that each Party has a full opportunity to be heard and that the proceedings are Carried out expeditiously and shall ensure, in particular:
(A) the right to at least one hearing before the Panel;
(B) an opportunity for each party to submit initial written and rebuttal submissions; and
(C) hearings before the Panel, the deliberations, as well as all written submissions and communications delivered during the hearings, shall be confidential.
2. The Panel shall, after consultation with the Parties, and unless otherwise agreed, within 10 days of its establishment, the Panel shall set the timetable for its work, taking into account the provisions of paragraph 2 of Article 7.9.
3. Unless the Parties agree otherwise, the Panel shall adopt the following term of reference:
"To examine, in the light of the applicable provisions of this Agreement, the matter referred to in the Panel's request and issue the report with its findings."
4. Panellists' fees and other costs related to the proceeding shall be borne by the disputing Parties in equal parts.
5. Unless the Parties otherwise agree, if the procedure provides for more than one hearing, the location of the hearings shall alternate between the territories of the Parties. The first hearing shall be held in the territory of the Party complained against.
6. Written submissions, oral arguments or presentations at the oral hearing, the panel report, as well as other written or oral communications between the Parties and the panel relating to panel proceedings shall be conducted in Spanish and / or Portuguese.
7. The Panel procedure should also have sufficient flexibility to ensure the quality of the reports without unduly delaying the work of the Panel.
8. The Panel will give the parties an appropriate opportunity to reach a mutually satisfactory solution.
Article 7.9. Report of the Panel
1. The panel shall base its report on the relevant provisions of this Agreement, the submissions and allegations of the Parties, and any information provided by Parties in accordance with the Model Rules of Procedure. At the request of the Panel and if the Parties so agree The Panel may use additional elements in the preparation of its report.
2. Unless the Parties agree otherwise, the panel shall present the report within 120 days of the appointment of the third panelist. Where the Panel finds that it can not issue its report within that time limit, it shall inform the Parties in writing of the reasons for the delay and shall at the same time provide an estimate of the time limit within which it shall issue its report. In no case shall the period between the establishment of the panel and the distribution of the report exceed 150 days.
The report shall contain:
(A) The conclusions with their foundations of fact and law;
(B) The determination as to whether a Party has failed to comply with its obligations under this Agreement or any other matter requested by the Parties that the panel addresses in the terms of reference;
(C) the recommendations for the resolution of the dispute, including a reasonable time to implement them, if any Party has requested it.
4. The panel report will be adopted by the majority of its panelists. Panelists may formulate separate opinions on matters that have not been agreed upon.
5. The panel can not disclose that Panelists have majority or minority views.
Article 7.10. Suspension and Termination of the Procedure
1. The Parties may agree to suspend the work of the panel at any time for a period not longer than 12 months following the date of such agreement. If panel work has been suspended for more than 12 months, panel authority will lapse unless the parties agree otherwise. If the authority of the panel expires and the Parties have not reached an agreement in the settlement of the dispute, nothing in this Chapter shall prevent a Party from requesting a new proceeding on the same matter.
2. At any time, the Parties may agree to terminate the panel proceedings, by joint notification to the panel chair on this matter.
Article 7.11. Compliance with the Report
1. The panel report shall be final and binding on the Parties, unless the Parties agree otherwise.
2. If the Report determines that the measure is inconsistent with the obligations under this Agreement, the Party complained against shall eliminate non-compliance.
3. Either party may request, within 15 (fifteen) days following the date of circulation of the Report, a clarification of the same. The Panel will rule on the request within 15 (fifteen) days after its filing. The period of time until the Panel's pronouncement will not be counted within the period of compliance with the Report.
4. Within 30 days after receipt of the Panel Report, the Party complained shall indicate the means by which it will comply with the Report and the period for its execution, which shall be adjusted as far as possible to the recommendations of the Panel.
5. If the other Party disagrees with the proposed deadlines, the two Parties shall consult in order to agree on a reasonable period to execute the Report. If the parties do not reach an agreement, the complaining Party may appeal to the Panel under the terms of paragraph 3 to request that it set the deadline for compliance with the Report. The decision of the Panel shall be binding on the parties.
6. Without prejudice to Article 7.12 (Compliance Review) and Article 7.13 (Non-Compliance - Compensation), the Party complained against may, at any time, propose compensation to the complaining Party for the purpose of promoting a settlement of the dispute Mutually satisfactory.
Article 7.12. Compliance Review
1. Without prejudice to the procedures set forth in Article 7.13 (Failure - Compensation), once the reasonable period agreed by the Parties or set out in the panel report has expired, and the Parties do not agree on the existence or Compatibility of the measures taken to comply with the determinations and recommendations of the panel, either Party may request the Coordinators of the Agreement referred to in Article 6.2 (Coordinators of the Agreement) to bring together the original panel in order for the dispute to be referred to.
2. The panel shall meet no later than 15 days after the date of receipt of the request, and shall issue its report on the matter within 30 days after the first meeting.
3. If possible, the Panel will consist of the same panelists of the original panel. If this is not possible, the procedure established in Article 7.7 (Panel Selection) shall be followed, in which case the periods established therein shall be reduced by half.
Article 7.13. Non-compliance - Compensation
1. If the Panel decides, based on the procedures set forth in the preceding Article, that the Party complained against failed to comply with the Report, or if the Party complained against has not taken any action to comply, within a reasonable period of time agreed by the Parties or Established in the panel report, the Parties shall enter into negotiations with a view to establishing mutually acceptable compensation. The Parties shall begin negotiations within 10 days of the date of receipt of the written request for negotiations.
2. The compensation referred to in paragraph 1 shall be effective from the time the Parties so agree and until the Party complained against complies with the panel report.
Article 7.14. Suspension of Benefits
1. If the Parties:
(A) do not reach an agreement to establish compensation within 30 days after the start of the negotiations referred to in Article 7.13 (Non-compliance - Compensation), or
(B) have agreed compensation and the complaining Party considers that the Party complained against has failed to comply with the terms of the agreement within 20 days of such agreement,
The complaining Party may, at any time after the expiration of the time limits set out in subparagraphs (a) or (b), notify the complained Party in writing of its intention to suspend the application of benefits. The communication shall specify the level of benefits that the complaining Party proposes to suspend.
2. The complaining Party may initiate the suspension of benefits within 30 days after the last date between the date of the communication pursuant to paragraph 1 and the date on which the Panel issued its report pursuant to Article 7.13 (Non-compliance - Compensation).
3. The level of benefits to be suspended shall have an effect equivalent to the adverse trade effects caused by the Party complained against.
4. In considering what benefits to suspend under paragraph 1:
(A) the complaining Party shall first seek to suspend benefits in the same sector or sectors affected by the measure; and
(B) if the complaining Party considers that it is impracticable or ineffective to suspend benefits in the same sector (s), it may suspend benefits in other sectors.
5. Any suspension of benefits shall be restricted to benefits granted to the Party claimed under this Agreement.
6. The suspension of benefits shall be temporary and may be applied only until such time as the measure that was inconsistent with the Agreement has been terminated or a mutually satisfactory solution reached.
7. If the Party affected by the suspension considers that the level of the proposed suspension is excessive or that the nonconformity found by the Panel has been eliminated, it may refer the matter to the Panel established in accordance with Article 7.12 (Review of Compliance).
8. If the panel established pursuant to the preceding paragraph decides that the level of the suspensions is excessive or the Party complained of has eliminated the nonconformity, the complaining Party shall promptly promptly adjust or terminate the suspension of benefits.
9. Neither compensation nor the suspension of benefits or other obligations are preferable to full implementation of the Report.
Chapter 8. Exceptions
Article 8.1. General Exceptions
For the purposes of Chapter 3 (Services), Article XIV of the GATS, including its footnotes, is incorporated and forms part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV (b) of the GATS include environmental measures necessary to protect human, animal or plant life and health.
Article 8.2. Security Exceptions
Nothing in this Agreement shall be construed as:
(A) require a Party to provide or permit access to any information the disclosure of which it deems contrary to its essential security interests; or
(B) prevent a Party from taking any measures it deems necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, in accordance with the provisions of the Charter of the United Nations, or for the protection Of their own essential security interests.
Article 8.3. Temporary Safeguard Measures
1. Nothing in this Agreement shall be interpreted as to prevent a Party from adopting or maintaining temporary restrictive measures with respect to payments or transfers for current account transactions in the event of serious external balance of payments difficulties and financial difficulties or Threats from them.
2. Nothing in this Agreement shall be interpreted as to prevent a Party from adopting or maintaining temporary restrictive measures with respect to payments or transfers relating to capital movements:
(A) in the event of serious difficulties in the balance of payments and external financial difficulties or threats thereof; or
(B) when, in exceptional circumstances, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for macroeconomic management.
3. The adoption of temporary restrictive measures on transfers in the event of serious balance of payments difficulties, in the cases described in paragraphs 1 and 2, shall be non-discriminatory and in accordance with the Agreement Establishing the Monetary Fund International.
Article 8.4. Tax Measures
1. Nothing in this Agreement shall apply to taxation measures. For greater certainty, nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention. In the event of any inconsistency between the provisions of this Agreement and any tax agreement, the provisions of that agreement shall apply to the extent of the inconsistency.
2. Nothing in this Agreement shall be construed so as to prevent the adoption or enforcement of any measure designed to ensure the fair or effective taxation or collection of taxes in accordance with the laws of the Parties.
Chapter 9. Final Provisions
Article 9.1. Attachments, Appendices and Footnotes
The Annexes, Appendices and Footnotes to this Agreement form an integral part of this Agreement.