5. All panellists shall:
(a) have expertise or experience in law, international trade or other matters covered by this Agreement;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, and not be affiliated with or receive instructions from, the government of either Party; and
(d) comply with a code of conduct, to be provided in the Rules of Procedure referred to in Article 12.17.
6 Panellists shall serve in their individual capacities and not as government representatives, nor as representatives of any organisation. The Parties shall not give them instructions nor seek to influence them as individuals with regard to matters before an arbitral panel.
7. lf a panellist appointed under this Article is incapacitated, becomes unable to act or resigns, a successor shall be appointed within 15 days in accordance with the appointment procedure provided for in paragraphs 2, 3 and 4, which shall be applied, respectively, mutatis mutandis. The successor shall have all the powers and duties of the original panellist. The work of the arbitral panel shall be suspended for a period beginning on the date the original panellist is incapacitated, becomes unable to act or resigns. The work of the arbitral panel shall resume on the date the successor is appointed.
Article 12.10. Functions of Panels
1. The arbitral panels 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 and conformity with the provisions of this Agreement that are relevant to the matter before the panel;
(c) whether the measure of the Responding Party is inconsistent with its obligations under this Agreement; and
(d) whether the Responding Party has otherwise failed to carry out its obligations under this Agreement.
2. The arbitral panel shall make the findings, determinations, and, if applicable, recommendations as referred to in the Terms of Reference and necessary for the resolution of the dispute.
3. The arbitral panel shall make the findings, determinations, and, when applicable, recommendations, in accordance with this Agreement.
4. The arbitral panel shall make its findings, determinations, and, when applicable, recommendations, including its report, by consensus. If a panel is unable to reach consensus, it may make its findings, determinations, and, when applicable, recommendations, including its report, by majority vote.
Article 12.11. Proceedings of Arbitral Panels
1. The arbitral panels shall meet in closed session. The meetings of the arbitral panels with the Parties shall be closed to the public, unless the Parties agree otherwise. The arbitral panels shall hold their hearings in closed session, unless the Parties agree otherwise.
2. The arbitral panels established under this Chapter shall, after consulting the Parties, set out their respective timeframes, including precise deadlines for submissions by the Parties, in accordance with the Rules of Procedure referred to in Article 12.17.
3. The Parties shall have the opportunity to provide at least one written submission to set out the facts, arguments and counter-arguments, 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 panels, including any comments on the draft report and responses to questions put by the arbitral panels, shall be made available to the other Party.
4. The arbitral panels should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution.
5. After notifying the Parties, and subject to such terms and conditions as the Parties may agree, if any, within 10 days, the arbitral panels may seek information from any relevant source and may consult experts to obtain their opinion or advice on certain aspects of the matter. The arbitral panels shall provide the Parties with a copy of any advice or opinion obtained and an opportunity to provide comments.
6. The deliberations of the arbitral panels and the documents submitted to them shall be kept confidential. The Parties shall be present only when invited by the arbitral panels to appear before them. There shall be no ex parte communications with the arbitral panels concerning matters under consideration by them.
7. Notwithstanding paragraph 6, either Party may make public statements as to its views regarding the dispute, but shall treat as confidential, the information and written submissions submitted by the other Party to the arbitral panel which that other Party has designated as confidential. If a Party has provided information or written submissions designated to be confidential, that confidential summary of the information or written submissions which may be disclosed publicly.
8. Each Party shall bear the cost of its appointed panellist at its own expenses. The cost of the chair of an arbitral panel and other expenses associated with the conduct of the proceedings shall be borne by the Parties in equal shares.
9. Before the arbitral panel presents its final report, if the Parties agree, the arbitral panel may at any stage of the proceedings propose the Parties that the dispute be settled amicably.
Article 12.12. Suspension or Termination of Proceedings
1. The Parties may agree that the arbitral panel suspend its work at any time for a period not exceeding 12 consecutive months from the date of such agreement. In the event of such a suspension, the timeframes set out in paragraphs 2 and 6 of Article 12.13 and paragraph 7 of Article 12.16 shall be extended by the amount of time that the work was suspended. If the work of the arbitral panel has been suspended for more than 12 consecutive months, the authority for establishment of the arbitral panel shall lapse unless the Parties agree otherwise.
2. The Parties may agree to terminate the proceedings of the arbitral panel by jointly notifying the chair of the arbitral panel at any time before the issuance of the report to the Parties.
Article 12.13. Report
1. The draft and final reports of the arbitral panel shall be drafted without the presence of the Parties. The arbitral panel shall base its reports on the relevant provisions of this Agreement and the submissions and arguments of the Parties, and may take into account any other relevant information provided to it.
2. The arbitral panel! shall, within 180 days, or within 60 days in cases of urgency, including those which concern perishable goods, after the date of its establishment, submit to the Parties its draft report. The arbitral panel shall provide the draft report no later than 30 days before the deadline for completion of the final report. The arbitral panel shall accord adequate opportunity to the Parties to review the entirety of the draft report and shall include a discussion of any comments made by the Parties in the final report.
3. The panel shall set out in the draft and final reports:
(a) a descriptive section summarising the arguments of the Parties;
(b) its findings on the facts of the case and on the applicability of the provisions of this Agreement;
(c) any other finding that the arbitral panel considers relevant to the matter;
(d) its determination on whether the measure is not in conformity with this Agreement;
(e) if agreed by the Parties, its recommendations for the resolution of the dispute; and
(f) its reasons for its findings and determination in subparagraphs (b), (c), (d), and, if applicable, (e).
4. When the arbitral panel considers that it cannot submit the draft report within the timeframe provided for under paragraph 2, it may extend that timeframe with the consent of the Parties.
5. After considering any written comments on the draft report, the arbitral panel may reconsider the draft report and make any further assessment it considers appropriate.
6. The arbitral panel shall submit the final report to the Parties no later than 30 days after the date of submission of the draft report. Opinions expressed in the reports by the panellists shall be anonymous. Subject to the agreement between the Parties, the reports shall include any separate opinions on matters not unanimously agreed, not disclosing which panellists are associated with majority or minority opinions.
7. The findings, determinations and, if applicable, any recommendations of the arbitral panel cannot add to or diminish the rights and obligations of the Parties provided in this Agreement.
8. The final report shall be available to the public within 30 days of the date of issuance, subject to the requirement to protect confidential information.
9. The final report shall be final and binding on the Parties.
Article 12.14. Implementation of the Report
1. Unless the Parties agree otherwise, the Responding Party shall eliminate the non-conformity with this Agreement, as determined in the final report, immediately, or if this is not practicable, within a reasonable period of time.
2. If a reasonable period of time is required, it shall, whenever possible, be agreed between the Parties. If the Parties are unable to agree on the reasonable period of time within 45 days of the date of issuance of the final report to the Parties, either Party may request an arbitral panel as provided for in Article 12.16.7 to determine the reasonable period of time. Unless the Parties agree otherwise, such request shall be made no later than 120 days after the date of the issuance of the final report.
3. Any other detailed provision on this Article shall be provided for under the Rules of Procedure referred to in Article 12.17.
Article 12.15. Compliance Review
If there is disagreement between the Parties as to whether the Responding Party eliminated the non-conformity with this Agreement as determined in the final report, within the reasonable period of time pursuant to Article 12.14, either Party may refer the matter to an arbitral panel (8) as provided for in Article 12.16.7. Any detailed provisions related to the compliance review arbitral pane! shall be provided under the Rules of Procedure referred to in Article 12.17.
Article 12.16. Non-Implementation - Compensation and Suspension of Concessions or other Obligations
1. If the Responding Party notifies the Complaining Party that it is impracticable, or the arbitral panel to which the matter is referred pursuant to Article 12.15 confirms that the Responding Party failed to eliminate the non-conformity with this Agreement as determined in the final report within the reasonable period of time as determined pursuant to Article 12.14.2, the Responding Party shall, if so requested, enter into negotiations with the Complaining Party with a view to reach a mutually acceptable compensation.
2. If there is no agreement on acceptable compensation within 30 days of the date of receipt of the request mentioned in paragraph 1, the Complaining Party may suspend the application of concessions or other obligations under this Agreement to the Responding Party, after giving notification of such suspension 30 days in advance. Such notification may only be given 20 days after the date of receipt of the request mentioned in paragraph 1.
3. The compensation referred to in paragraph 1 and the suspension referred to in paragraph 2 shall be temporary measures. Neither compensation nor suspension is preferred to full elimination of the non-conformity with this Agreement as determined in the final report. The suspension 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 concessions or other obligations to suspend pursuant to paragraph 2:
(a) the Complaining Party should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which the final report referred to in Article 12.13 has found a failure to comply with the obligations under this Agreement; and
(b) if the Complaining Party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may suspend concessions or other obligations with respect to other sectors. The notification of such suspension pursuant to paragraph 2 shall indicate the reasons on which it is based.
5. The level of suspension referred to in paragraph 2 shall be equivalent to the level of the nullification or impairment.
6. If the Responding Party considers that the requirements for the suspension of concessions or other obligations by the Complaining Party set out in paragraphs 2, 3, 4 or 5 have not been met, it may refer the matter to an arbitral panel.
7. The arbitral panel that is established for the purposes of this Article or Article 12.14 shall have, wherever possible, as its panellists, the panellists of the original arbitral panel. If this is not possible, then the panellists to the arbitral panel that is established for the purposes of this Article or Article 12.14 shall be appointed pursuant to Article 12.9. The arbitral panel established under this Article or Article 12.14 shall issue its report within 60 days of the date when the matter is referred to it. When the arbitral panel considers that it cannot issue its report within the aforementioned 60 days period, it may extend that period for a maximum of 30 days with the consent of the Parties. The report shall be available to the public within 15 days of the date of issuance, subject to the requirement to protect confidential information. The report shall be final and binding on the Parties.
Article 12.17. Rules of Procedure
The Commission shall adopt the Rules of Procedure which provide for the details of the rules and procedures of the arbitral panels established under this Chapter, upon the entry into force of this Agreement. Unless the Parties agree otherwise, the arbitral panel shall follow the Rules of Procedure adopted by the Commission and may, after consulting the Parties, adopt additional rules of procedure not inconsistent with the Rules of Procedure adopted by the Commission.
Article 12.18. Application and Modification of Rules and Procedures
Any timeframe or other rules and procedures for the arbitral panels in accordance with this Chapter, including the Rules of Procedure referred to in Article 12.17, may be modified by mutual consent of the Parties. The Parties may also agree at any time not to apply any provision of this Chapter.
Chapter 13. EXCEPTIONS
Article 13.1. General Exceptions
1. For the purposes of Chapter 3 (Trade in Goods), Chapter 4 (Rules of Origin), Chapter 5 (Customs Procedures and Cooperation), Chapter 6 (Sanitary and Phytosanitary Measures) and Chapter 7 (Technical Barriers to Trade), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
2. Nothing in this Agreement shall be construed to prevent a Party from taking action authorised by the WTO Dispute Settlement Body. A Party taking such action shall inform the Commission to the fullest extent possible of measures taken and of their termination.
Article 13.2. Security Exceptions
1. Nothing In this Agreement shall be construed:
(a) to require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment; or
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. A Party taking action under paragraphs 1 (b) and (c) shall inform the Commission to the fullest extent possible of measures taken and of their termination.
Article 13.3. Taxation Measures
1. For the purposes of this Article:
designated authorities means:
(a) in the case of Indonesia, the Minister of Finance or his or her authorised representative;
(b) in the case of Chile, the Minister of Finance (Ministro de Hacienda) or an authorised representative of the Minister;
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement to which the Parties are party; and
taxes and taxation measures include excise duties, but do not include:
(a) a customs duty as defined in Article 2.1 (Definitions of General Application), or
(b) the measures listed in exceptions (b) and (c) of that definition.
2. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
3. The provisions of this Agreement shall apply to taxation measures only to the same extent as does Article II! of the GATT 1994.
4. Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention. In the event of any Inconsistency between this Agreement and any such tax convention that convention shall prevail to the extent of the inconsistency.
5. In the case of a tax convention between the Parties, if an issue arises as to whether any inconsistency exists between this Agreement and the tax convention, the issue shall be referred to the designated authorities of this Article. Those designated authorities shall determine the existence and the extent of such inconsistency. A determination made under this paragraph by the designated authorities shall be binding.
Article 13.4. Balance-of-Payments Measures on Trade In Goods
1. The Parties shall endeavour to avoid the imposition of restrictive measures for balance-of-payments purposes.
2. Any measure taken for balance-of-payments purposes shall be in accordance with that Party's rights and obligations under GATT 1994, including the Understanding on the Balance-of-Payments Provisions of GATT 1994. A Party shall publish or notify to the other Party of any restrictive measures adopted or maintained, or any changes therein, to the extent that it does not duplicate the process under the WTO and the International Monetary Fund.
3. Nothing in this Chapter shall be regarded as altering the rights enjoyed and obligations undertaken by a Party as a party to the Articles of the Agreement of the International Monetary Fund, as may be amended.
Article 13.5. Disclosure of Information
1. Each Party shall, in accordance with its laws and regulations, maintain the confidentiality of information provided in confidence by the other Party pursuant to this Agreement.
2. Nothing in this Agreement shall be construed as requiring 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.
Chapter 14. FINAL PROVISIONS
Article 14.1. Annexes and Footnotes
The Annexes and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 14.2. Amendments
1. The Parties may agree, in writing, to amend this Agreement.
2. Such amendment shall constitute an integral part of this Agreement and shall enter into force 60 days after the date of the last written notification of the completion of domestic legal procedures or such other period as the Parties may agree.
Article 14.3. Amendment of the WTO Agreement
Unless otherwise provided in this Agreement, if any provision of the WTO Agreement that the Parties have referred to or incorporated into this Agreement is amended, the Parties shall consult on whether to amend this Agreement.
Article 14.4. Entry Into Force and Termination
1. This Agreement shall enter into force 60 days after the date of exchange of instruments of ratification by the Parties, subject to the completion of the necessary domestic legal procedures of each Party. It shall remain in force unless terminated as provided for in paragraph 2 of this Article.
2: Either Party may terminate this Agreement by written notification to the other. Party. This Agreement shall expire 180 days after the date of such notification.
Article 14.5. General Review of the Agreement
The Parties shall undertake a general review of this Agreement in the third year following the date of entry into force of this Agreement and every three years thereafter, unless agreed otherwise by the Parties.
Article 14.6. Future Work Program
1. Unless agreed otherwise by the Parties, they shall negotiate trade in services and investment after the entry into force of this Agreement.
2. The result of the negotiations referred to in paragraph 1 shall form an integral part of this Agreement.
Article 14.7. Authentic Texts
This Agreement is done in duplicate in the Indonesian, Spanish and English languages. All texts of this Agreement shall be equally authentic. In the event of any divergence between those texts, the English text shall prevail.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective governments, have signed this Agreement.
DONE at Santiago, Chile, in duplicate, this fourteenth day of December in the year two thousand and seventeen.
FOR THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
ENGGARTIASTO LUKITA
Minister of Trade
FOR THE GOVERNMENT OF THE REPUBLIC OF CHILE
HERALDO MUÑOZ
Minister of Foreign Affairs