(b) the legal and factual basis of the complaint including the provisions of this Agreement alleged to have been breached.
Article 14.8. Terms of Reference
Unless the Parties otherwise agree within twenty days from the date of receipt of the request for the establishment of the arbitral tribunal, the terms of reference of the arbitral tribunal 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 14.7 (Request for Establishment of Arbitral Tribunal), to make findings of law and fact and determinations on whether the measure is not in conformity with the Agreement and to issue a written report for the resolution of the dispute. If the Parties agree, the arbitral tribunal may make recommendations for resolution of the dispute."
Article 14.9. Establishment and Composition of Arbitral Tribunals
1. Unless the Parties otherwise agree, an arbitral tribunal shall consist of three arbitrators. The complaining Party and the Party complained against shall each appoint one arbitrator within thirty days of the receipt of the request to establish an arbitral tribunal.
2. The parties to the dispute shall endeavour to agree on the third arbitrator within thirty days after the date of appointment of the second arbitrator. The third arbitrator shall serve as the chair. If the parties to the dispute are unable to agree on the chair within the aforesaid thirty days, the chair shall be jointly appointed, by the arbitrators who have been appointed under paragraph 1, within a further period of thirty days. If the third arbitrator has not been appointed within thirty days by the arbitrators appointed under paragraph 1, the parties to the dispute shall consult each other in order to jointly appoint the chair within a further period of thirty days.
3. The date of establishment of the arbitral tribunal shall be the date on which the chair of the Arbitral Tribunal is appointed.
4. 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 judgment; and
(c) be independent of, and not be affiliated with or take instructions from, any Party to the dispute.
5. The chair of the Arbitral Tribunal shall:
(a) not be a national of a Party;
(b) not have his or her usual place of residence in the territory of a Party;
(c) not be employed by either Party; and
(d) not have dealt with the matter in any capacity.
6. If an arbitrator appointed under this Article resigns or becomes unable to act, a successor arbitrator shall be appointed in accordance with the appointment procedure provided for in this Article, which shall be applied, respectively, mutatis mutandis. The successor shall have all the powers and duties of the original arbitrator. The work of the arbitral panel shall be suspended until the successor arbitrator is appointed.
Article 14.10. Proceedings of Arbitral Tribunal
1. The Arbitral Tribunal shall meet in closed sessions. The Parties shall be present at the meetings only when invited by the arbitral tribunal to appear before it.
2. The venue for the proceedings of the arbitral tribunal shall be decided by mutual agreement between the Parties. If there is no agreement, the venue shall alternate between the capitals of the two countries with the venue of the first sitting to be decided by a draw of lot in the presence of the Parties.
3. The Parties shall be given the opportunity to provide at least one written submission and to attend any of the presentations, statements or rebuttals in the proceedings. All information or written submissions submitted by a Party to the arbitral tribunal, including any comments on the draft report and responses to questions put by the arbitral tribunal, shall be made available to the other Party.
4. The arbitral tribunal should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution.
5. The arbitral tribunal shall aim to make its decisions, including its report, by consensus, provided that where an arbitral tribunal is unable to reach consensus it may take its decision by majority vote.
6. At the request of a Party to the arbitral proceeding or on its own initiative , and subject to such terms and conditions as the Parties may agree, the arbitral tribunal may seek information and technical advice from any expert to obtain their opinion or advice on certain aspects of the matter. 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.
7. The deliberations of the arbitral tribunal and the documents submitted to it shall be kept confidential.
8. Before the first substantive meeting of the arbitral tribunal with the Parties, the Parties shall transmit to the arbitral tribunal written submissions in which they present the facts of their case and their arguments.
9. At its first substantive meeting with the Parties, the arbitral tribunal shall ask the Party which has brought the complaint to present its submission, followed by the Party against which the complaint has been brought.
10. Formal rebuttals shall be made at the second substantive meeting of the arbitral tribunal. The Party complained against shall have the right to present its submission first, and shall be followed by the complaining Party. The Parties shall submit, prior to the meeting, written rebuttals to the arbitral tribunal.
11. The arbitral tribunal may at any time put questions to the Parties and ask them for explanations either in the course of a meeting with the Parties or in writing.
12. The Parties shall make available to the arbitral tribunal a written version of their oral statements.
13. In the interests of full transparency, the presentations, submissions, rebuttals and statements referred to in this Article shall be made in the presence of the Parties. Each Party's written submissions, including any comments on the report, written versions of oral statements and responses to questions put by the arbitral tribunal, shall be made available to the other Party. There shall be no ex parte communications with the arbitral tribunal concerning matters under consideration by it.
Article 14.11. Functions of Arbitral Tribunals
1. The function of an arbitral tribunal established pursuant to Article 14.9 (Establishment and Composition of Arbitral Tribunals) is to make an objective assessment of the dispute before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement. Where the arbitral tribunal concludes that a measure is inconsistent with a provision of this Agreement, it shall recommend that the Party in default bring the measure into conformity with that provision.
2. The award of the arbitral tribunal shall be set out in a report released to the Parties, including the reasons for the award. An arbitral tribunal may make its award upon the default of a Party.
3. Apart from the matters set out in Article 14.10 (Proceedings of Arbitral Tribunal), the arbitral tribunal shall regulate its own procedures in relation to the rights of the Parties to be heard and its deliberations, unless the Parties agree otherwise in writing.
Article 14.12. 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 twelve months from the date of such agreement. If the work of the arbitral tribunal has been suspended for more than twelve months, the authority for establishment of the arbitral 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.
3. Before the arbitral tribunal presents its final report, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably.
Article 14.13. Time Frame
All time frames stipulated in this Chapter may be reduced, waived or extended by mutual agreement of the Parties, or by application by either Party to the arbitral tribunal which is seized of the matter.
Article 14.14. Initial Report
1. The reports of the arbitral tribunal shall be drafted without the presence of the Parties and shall be based on the submissions and statements made. The arbitral tribunal shall accord adequate opportunity to the Parties to review the entirety of its draft report prior to its finalisation and shall include a discussion of any comments by the Parties in its final report.
2. Unless the disputing Parties otherwise agree, the arbitral tribunal shall, within ninety days after the last arbitrator is selected, issue to the disputing Parties an initial report.
3. The initial report shall contain:
(a) findings of fact; and
(b) the determination as to whether a disputing Party has not conformed with its obligations under this Agreement.
4. In exceptional cases, if the arbitral tribunal considers it cannot issue its initial report within ninety days, it shall inform the disputing 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 thirty days unless the disputing Parties otherwise agree.
5. A disputing Party may submit written comments to the arbitral tribunal on its initial report within fifteen days of issuance of the report or within such other period as the disputing Parties may agree.
Article 14.15. Final Report
1. The arbitral tribunal shall issue its final report, within sixty days after the date of issuance of the initial report. When the arbitral tribunal considers that it cannot issue its final report within sixty 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 final report.
2. The final report of the arbitral tribunal shall be available to the public within fifteen days after the date of issuance, subject to the requirement to protect confidential information.
3. The final report of the arbitral tribunal shall be final and binding on the Parties.
Article 14.16. Implementation
1. The Party complained against shall promptly comply with the award of the arbitral tribunal. Where it is not practicable to comply immediately, the Party complained against shall comply with the award within a reasonable period of time. 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 forty five days of the release of the arbitral tribunal's final report, either Party to the dispute may refer the matter to the arbitral tribunal, which shall determine the reasonable period of time following consultation with the Parties.
2. 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 award of the arbitral tribunal, such dispute shall be decided through recourse to the dispute settlement procedures in this Chapter, including wherever possible resorting to the original arbitral tribunal. (1) The arbitral tribunal shall provide its report to the Parties within sixty 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.
Article 14.17. Non-Implementation: Compensation and Suspension of Benefits
1. If the Party complained against fails to bring the measure found to be inconsistent with the Agreement into compliance with the award of the arbitral tribunal within the reasonable period of time that Party shall, if so requested, enter into negotiations with the complaining Party with a view to reaching a mutually satisfactory compensation.
2. If there is no satisfactory agreement on compensation within twenty days after the date of receipt of the request mentioned in paragraph 1, the complaining Party may give thirty days advance notice of its intention to suspend the benefits or other obligations under this Agreement. Such notification may only be given twenty days after the date of receipt of the request mentioned in paragraph 1.
3. The suspension of benefits shall only be applied until such time as the non- conformity is fully eliminated or a mutually satisfactory solution is reached.
4. In considering what benefits to suspend under paragraph 2:
(a) the complaining Party should first seek to suspend benefits or other obligations in the same sector or sectors as that affected by the measure or other matter that the arbitral tribunal has found to be inconsistent with this Agreement; and
(b) the complaining Party may suspend benefits or other obligations in other sectors if it considers that it is not practicable or effective to suspend in the same sector.
5. Any suspension of benefits shall be restricted to benefits accruing to the other Party under this Agreement.
6. Upon request of the Party complained against, Parties shall enter into consultation to discuss matters relating to:
(a) elimination of the non-conformity in accordance with the findings of the arbitral tribunal; or
(b) the level of concessions or other obligations suspended by the complaining Party pursuant to this Article.
Article 14.18. Expenses
Each Party shall bear the costs of its appointed arbitrator and its own expenses and legal costs. Unless the Parties otherwise agree, the costs of the chair of the arbitral tribunal and other expenses associated with the conduct of its proceedings shall be borne in equal parts by both Parties.
Chapter 15. INSTITUTIONAL PROVISIONS
Article 15.1. Joint Committee
1. A Joint Committee shall be established under this Agreement which may meet at the level of Ministers or senior officials, as mutually determined by the Parties. The Joint Committee shall be co-chaired by senior government officials of the Parties, unless the Parties agree to convene the meeting at ministerial level. Each Party shall be responsible for the composition of its delegation.
2. The functions of the Joint Committee shall be to:
(a) review the implementation and operation of this Agreement;
(b) consider any matters relating to the implementation of this Agreement;
(c) supervise and coordinate the work of all Sub-Committees established under this Agreement;
(d) adopt any decisions and recommendations of the Sub-Committees if necessary; and
(e) carry out any other functions as the Parties may agree.
3. The Joint Committee may:
(a) refer matters to a Sub-Committee for advice, and consider matters raised by any Sub-Committee established under this Agreement;
(b) establish ad hoc Working Groups to address specific issues where these are not more appropriately dealt with by an existing Sub- Committee;
(c) further the implementation of the Agreementâs objectives through implementing arrangements;
(d) explore measures for the further expansion of trade and investment among the Parties and identify appropriate areas of commercial, industrial and technical cooperation between relevant enterprises and organisations of the Parties;
(e) seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement including matters referred to it pursuant to Chapter 14 (Dispute Settlement Mechanism); and
(f) consult third parties on any matter falling within the responsibilities of the Joint Committee where this would help the Joint Committee make an informed decision.
4. The Joint Committee may establish its rules and procedures and financial arrangements, if necessary.
5. The Joint Committee shall convene its inaugural meeting within one year after this Agreement enters into force. Its subsequent meetings shall be held at such frequency as the Parties may agree upon. Upon request by a Party, special meetings of the Joint Committee may be convened at a mutually convenient date. The Joint Committee shall convene alternately in Malaysia and India, unless the Parties agree otherwise.
Article 15.2. Sub-Committees
1. The following Sub-Committees shall be established on the date of entry into force of this Agreement:
(a) Sub-Committee on Trade in Goods;
(b) Sub-Committee on Customs Cooperation;
(c) Sub-Committee on Sanitary and Phytosanitary Measures;
(d) Sub-Committee on Technical Barriers to Trade;
(e) Sub-Committee on Trade in Services;
(f) Sub-Committee on Investment; and
(g) Sub-Committee on Economic Cooperation.
2. The Sub-Committee on Trade in Goods shall undertake the following functions:
(a) review the implementation and operation of the Chapters 2 (Trade in Goods) and 3 (Rules of Origin);
(b) submit a report to the Parties on the implementation and operation of the Chapters 2 (Trade in Goods) and 3 (Rules of Origin);
(c) consider and recommend to the Parties any amendments to the Chapters 2 (Trade in Goods) and 3 (Rules of Origin);
(d) supervise and coordinate the work of all Sub-Committees established under the Chapters 2 (Trade in Goods) and 3 (Rules of Origin); and
(e) carry out other functions as may be agreed to by the Parties.
3. The Sub-Committee on Customs Cooperation shall:
(a) comprise representatives of customs and other competent authorities from each Party and shall draw up its own rules of procedure at its first meeting. The Sub-Committee may, by mutual consent of the Parties, invite representatives of relevant entities other than the Parties with the necessary expertise relevant to the issues to be discussed;
(b) undertake the following functions:
(i) the uniform interpretation, application and administration of Chapter 4 (Customs Cooperation);
(ii) reviewing the implementation and operation of Chapter 4 (Customs Cooperation);
(iii) identifying areas, relating to Chapter 4 (Customs Cooperation), to be improved for facilitating trade between the Parties;
(iv) reporting the findings of the customs authorities of both the Parties to the Joint Committee formed for coordination purposes in this Agreement; and
(v) considering any other customs matter referred to it by the customs authorities of both the Parties or by the Joint Committee formed for coordination purposes in this Agreement.
(c) hold its first meeting within a period of one year from the date of entry of the Agreement and shall meet thereafter once a year or as often as required, alternating between the Parties.
4. The Sub-Committee on Sanitary and Phytosanitary Measures shall undertake the following functions:
(a) review and monitor the implementation of Chapter 6 (Sanitary and Phytosanitary Measures) and consider any matter incidental thereto;
(b) design, implement and review technical and institutional cooperation programs to further the objectives of Chapter 6 (Sanitary and Phytosanitary Measures);
(c) enhance mutual understanding of each Party's SPS measures and the regulatory processes that relate to those measures;
(d) address bilateral SPS matters with a view to facilitate trade between the Parties;
(e) establish definitions for those terms that are not available in the SPS Agreement;
(f) develop conditions and provisions for approval of establishments; and
(g) carry out other functions as may be agreed to by the Parties.
5. The Sub-Committee on Technical Barriers to Trade shall undertake the following functions:
(a) exchange information on and discuss issues related to Chapter 7 (Technical Barriers to Trade);
(b) review and monitor the implementation and operation of Chapter 7 (Technical Barriers to Trade);
(c) establish definitions for those terms that are not available in the TBT Agreement;
(d) strengthen cooperation at relevant international and regional fora on standards, technical regulations and conformity assessment procedures;
(e) encourage, promote and otherwise facilitate cooperation between the public and private organizations on standards, technical regulations and conformity assessment procedures;
(f) report the findings and the outcome of discussions to the Joint Committee; and
(g) carry out other functions as may be agreed to by the Parties.
6. The Sub-Committee on Trade in Services shall undertake the following functions:
(a) review the implementation and operation of the Chapters 8 (Trade in Services) and 9 (Movement of Natural Persons);
(b) submit a report to the Joint Committee on the implementation and operation of Chapters 8 (Trade in Services) and 9 (Movement of Natural Persons);
(c) consider and recommend to the Joint Committee any amendments to the Chapters 8 (Trade in Services) and 9 (Movement of Natural Persons) and modification or review of the Schedules of Specific Commitments;
(d) exchanging information on domestic laws and regulations; and
(e) carry out other functions as may be agreed to by the Parties.
7. The Sub-Committee on Investment shall undertake the following functions:
(a) exchange information on and discuss issues related to Chapter 10 (Investment);
(b) review and monitor the implementation and operation of Chapter 10 (Investment);
(c) oversee the negotiations referred to in Article 10.17 (Work Programme);
(d) report the findings and the outcome of discussions to the Joint Committee; and
(e) carry out other functions as may be agreed to by the Parties.
8. The Sub-Committee on Economic Cooperation shall undertake the following functions:
(a) establish an agreed work programme of cooperative activities; (b) â exchange information in the field of cooperation;
(c) identify new areas of cooperation and new ways to further cooperation between the Parties;
(d) serve as a channel for dialogue on matters of mutual interest;
(e) oversee the implementation and coordination of the economic cooperation framework and activities as agreed by the Parties; and
(f) report the findings and the outcome of discussions to the Joint Committee; and
(g) carry out other functions as may be agreed to by the Parties.
9. The Sub-Committees shall be co-chaired by officials of the Governments of the Parties and shall have the necessary and relevant expertise related to the issues, and decisions shall be taken by consensus between the Parties. The Sub- Committees shall meet at such venues and times as may be agreed by the Parties.
10. To the extent possible, the work of the Sub-Committees shall be conducted using electronic means, including e-mail, teleconference and video-conference. Where a physical meeting is required, it shall, unless otherwise agreed by the Parties, take place contiguous to a meeting of the Joint Committee.