Article 16.1. Definitions
For the purposes of this Chapter:
administrative decision of general application means an administrative act, resolutive or interpretative, that applies to all persons and facts that are generally within its scope or competence and that establishes a rule of conduct, but does not include:
(a) A decision or ruling made in an administrative proceeding that applies to particular persons, goods or services of the other Party, in a specific case, or
(b) A decision or ruling that decides with respect to a particular act or practice.
Article 16.2. Points of Contact
1. Each Party shall designate, no later than three (3) months from the date of entry into force of the Agreement, a Contact Point to facilitate communications between the Parties on any matter covered by this Agreement.
2. At the request of the other Party, the Contact Point shall indicate the unit or official responsible for the matter and provide such support as may be required to facilitate communication with the requesting Party.
Article 16.3. Publication
1. Each Party shall ensure that its laws, administrative decisions of general application, regulations and procedures that relate to any matter covered by this Agreement are promptly published or made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party:
(a) Publish in advance any measures it intends to adopt, and
(b) It shall provide interested persons and the other Party with a reasonable opportunity to comment on the proposed measures.
Article 16.4. Notification and Provision of Information
1. Each Party shall notify the other Party, to the extent practicable, of any existing or proposed measures that the Party believes could materially affect the operation of this Agreement, or otherwise materially affect the interests of the other Party under this Agreement.
2. A Party shall, upon request of the other Party, provide information and promptly respond to its questions concerning any measure in force or proposed, whether or not the other Party has been previously notified of such measure.
3. Any notification or provision of information referred to in this Article shall be made without prejudice to whether or not the measure is compatible with this Agreement.
Article 16.5. Administrative Procedures
Each Party shall ensure that, in the context of an administrative proceeding in which a measure referred to in Article 16.3 affecting particular persons, goods or services of the other Party is applied:
(a) Whenever possible, persons of the other Party who are directly affected by a proceeding shall, in accordance with domestic provisions, be given reasonable notice of the commencement of the proceeding, including a description of its nature, a statement of the legal basis under which the proceeding is initiated, and a general description of all issues in dispute;
(b) When time, the nature of the proceeding and the public interest permit, such persons are given a reasonable opportunity to present facts and arguments in support of their positions, prior to any final administrative action, and
(c) Its procedures are in accordance with the legal system of that Party.
Article 16.6. Review and Challenge
1. Each Party shall establish or maintain judicial or administrative tribunals or procedures for the purpose of prompt review and, where warranted, correction of final administrative actions relating to matters covered by this Agreement. Such tribunals shall be impartial and not connected with the agency or administrative enforcement authority, and shall have no substantial interest in the outcome of the matter.
2. Each Party shall ensure that, before such courts or in such proceedings, the parties have the right to:
(a) A reasonable opportunity to support or defend their respective positions, and
(b) A decision based on the evidence and submissions or, in cases where required by its legal system, on the record compiled by the administrative authority.
3. Each Party shall ensure, subject to challenge or further review as provided in its legal system, that such rulings are implemented by, and govern the practice of, the agency or authority with respect to the administrative action that is the subject of the decision.
Chapter 17. ADMINISTRATION OF THE AGREEMENT
Article 17.1. Bilateral Administrative Commission
1. The Parties establish the Bilateral Administrative Commission, which shall be composed of the high-level government officials of each Party referred to in Annex 17.1, or their designees, and shall be chaired successively by each Party.
2. The Bilateral Administrative Commission shall establish, at its first meeting, its rules of procedure, and shall adopt its decisions by consensus, which shall be of a binding nature.
3. The meetings of the Bilateral Administrative Commission shall be held once a year, unless the Parties agree otherwise. Any of the Parties may request its convocation. The meetings of the Bilateral Administrative Commission may be held in person or through any technological means.
4. The Bilateral Administrative Commission shall hold its first meeting within the first year of effectiveness of this Agreement.
Article 17.2. Functions of the Bilateral Administrative Commission
1. The Bilateral Administrative Commission shall:
(a) To ensure compliance with and the correct application of the provisions of this Agreement;
(b) Evaluate the results achieved in the implementation of this Agreement; (c) Oversee the work of all Committees established under this Agreement, as well as committees and working groups established pursuant to paragraph 2 (b); and
(d) To hear any other matter that may affect the operation of this Agreement, or that may be entrusted to it by the Parties.
2. The Bilateral Administrative Commission may:
(a) Adopt decisions to:
(i) approve the recommendations made under Article 5.9.2 (m) (Committee on Technical Barriers to Trade);
(ii) to implement other provisions of this Agreement, other than those mentioned above, which require a development specifically contemplated herein, and
(iii) amend Annex 7.1 (Government Procurement), Annex 8.11 (Future Nonconforming Measures), Annex 18.8 (Code of Conduct for Arbitral Dispute Settlement Proceedings) and Annex 18.11 (Rules of Procedure for Arbitral Tribunals).
(b) Each Party shall implement, in accordance with its legal system, any decision referred to in subparagraph (a), within the time period agreed by the Parties (1).
(c) Establish such committees and working groups as it deems appropriate within the framework of this Agreement;
(d) To interpret the provisions of this Agreement, which shall be binding;
(e) To request the advice of persons or entities it deems convenient; Intervene in matters submitted for dispute settlement, at the request of the Parties, pursuant to Article 18.19 (Good offices, conciliation and mediation);
(f) Recommend amendments to this Agreement to the Parties, and
(g) To adopt other actions and measures, within the scope of its functions, to ensure the achievement of the objectives of this Agreement.
Article 17.3. Points of Contact
1. Each Party shall designate a general point of contact to facilitate communications between the Parties on any matter covered by this Agreement, as well as other points of contact as required in this Agreement.
2. Except as otherwise provided in this Agreement, each Party shall notify the other Party in writing of its designated points of contact within sixty (60) days of the date of entry into force of this Agreement.
ANNEX 17.1. MEMBERS OF THE BILATERAL ADMINISTRATIVE COMMISSION
The Bilateral Administrative Commission shall be composed of:
(a) In the case of Chile, by the Director General of International Economic Relations or his designee, and
(b) In the case of Argentina, by the Secretary of International Economic Relations of the Ministry of Foreign Affairs and Worship or his designee.
Chapter 18. DISPUTE SETTLEMENT
Article 18.1. Objectives
1. The Parties shall endeavor to reach agreement on the interpretation and application of this Agreement and shall make every effort to reach a mutually satisfactory solution on any matter that may affect its operation.
2. This Chapter seeks to provide an effective, efficient and transparent dispute settlement process between the Parties with respect to their rights and obligations under this Agreement.
Article 18.2. Scope of Application
1. Except as otherwise provided in this Agreement, the provisions of this Chapter shall apply to the prevention or settlement of any dispute arising between the Parties concerning the interpretation or application of the provisions of this Agreement or where a Party considers that:
(a) An existing or proposed measure of the other Party is or may be inconsistent with the obligations under this Agreement,
(b) The other Party has otherwise failed to comply with its obligations under this Agreement.
2. For greater certainty, the draft measures referred to in subparagraph (a) of paragraph 1 may be invoked only to request the consultations referred to in Article 18.5.
Article 18.3. Applicable Law
The arbitral tribunal shall decide the dispute on the basis of the provisions of the 1980 Treaty of Montevideo, ECA No. 35, this Agreement and the protocols and instruments concluded thereunder, and the applicable principles of international law.
Article 18.4. Choice of Forum
1. Disputes on the same matter arising in connection with the provisions of this Agreement, the WTO Agreement or any other trade agreement to which the Parties are parties may be resolved in any of those forums, at the option of the complaining Party. Notwithstanding the foregoing, the Twenty-first Additional Protocol to ACE No. 35 shall not apply to disputes arising between the Parties on matters governed exclusively by this Agreement.
2. For this purpose, two proceedings shall be understood as dealing with the same matter when they involve the same Parties, relate to the same measure and deal with an allegation of breach or inconsistency with the same substantive obligation.
3. Once the complaining Party has requested the establishment of an arbitral tribunal under this Chapter or under one of the agreements referred to in paragraph 1, or has requested the establishment of a panel under the Understanding on Rules and Procedures Governing the Settlement of Disputes, which forms part of the WTO Agreement, the forum selected shall be exclusive of any other forum.
4. Nothing in this Agreement shall be construed to prevent a Party from taking a measure consistent with the WTO Agreement, including a suspension of concessions and other obligations authorized by the WTO Dispute Settlement Body, or a measure authorized under a dispute settlement procedure of another trade agreement to which both Parties are parties.
Article 18.5. Consultations
1. Either Party may request in writing to the other Party consultations with respect to any matter referred to in Article 18.2. The consulting Party shall deliver the request to the other Party, explaining the reasons for its request, including identification of the measure at issue and an indication of the legal basis for the complaint.
2. The consulted Party shall respond in writing to the request for consultations referred to in paragraph 1 within ten (10) days of receipt of such request, unless the Parties agree on a different time limit.
3. Consultations shall be entered into in good faith.
4. Consultations shall be held within thirty (30) days from the date of receipt of the request, unless the Parties agree on a different period.
5. The consulted Party shall ensure expeditious and timely attention to the consultations formulated, including the participation of its competent authorities or other regulatory entities that have technical knowledge of the subject matter of such consultations.
6. The Parties shall make every effort to reach a mutually satisfactory solution of the matter submitted for consultations in accordance with the provisions of this Article. For these purposes, each Party:
(a) Provide the necessary information to allow a complete examination of the measure or matter that is the subject of the consultations; and
(b) It shall treat confidential or reserved information received during consultations in the same manner as the Party that provided it.
7. Consultations shall be confidential and shall be held in person or by any technological means agreed by the Parties. In the event that the consultations are held in person, they shall be held in the territory of the Party consulted, unless otherwise agreed by the Parties.
Article 18.6. Establishment of an Arbitral Tribunal
1. If after the expiration of the period of time set forth in Article 18.5.4 a mutually satisfactory solution has not been reached, the complaining Party may request in writing to the Party complained against the establishment of an arbitral tribunal.
2. In the request for the establishment of an arbitral tribunal the complaining Party shall state the reasons for its request, including identification of the measure or other matter at issue and an indication of the legal basis of the claim.
3. A Party may not request the establishment of an arbitral tribunal to examine a proposed measure.
Article 18.7. Terms of Reference of the Arbitral Tribunal
1. Unless otherwise agreed by the Parties within fifteen (15) days after receipt of the request for the establishment of the arbitral tribunal, the terms of reference of the arbitral tribunal shall be:
"To examine, in an objective manner and in the light of the relevant provisions of the Agreement, the matter referred to in the request for the establishment of the arbitral tribunal and to make findings, rulings and recommendations in accordance with Articles 18.12 and 18.13."
2. When the complaining Party requests, in the request for the establishment of the arbitral tribunal, that the tribunal make findings on the extent of the adverse trade effects caused to it by the breach of the obligations under this Agreement, the terms of reference shall expressly so state.
Article 18.8. Qualifications of Arbitrators
1. Every referee shall:
(a) Have specialized knowledge or experience in law, international trade, matters related to the matters contained in this Agreement or in the settlement of disputes arising from international trade agreements;
(b) To be selected strictly on the basis of their objectivity, impartiality, reliability and good judgment;
(c) Be independent, not be related to any of the Parties and not receive instructions from them, and
(d) Comply with the Code of Conduct set forth in Exhibit 18.8.
2. The chairman of the arbitral tribunal, in addition to meeting the requirements set forth in paragraph 1, shall be a jurist.
3. Persons who have participated in any of the alternative means of dispute resolution referred to in Article 18.19 may not act as arbitrators in the same dispute.
Article 18.9. Selection of the Arbitral Tribunal
1. The arbitral tribunal shall be composed of three arbitrators.
2. Each Party shall, within twenty (20) days of receipt of the request for the establishment of the arbitral tribunal, appoint one arbitrator and one alternate arbitrator, and shall propose up to four candidates to act as chairman of the arbitral tribunal, from among whom one arbitrator and one alternate shall be appointed. The chairman of the arbitral tribunal and his alternate may not be nationals or have their permanent residence in the territory of any of the Parties. This information shall be notified in writing to the other Party.
3. Ifa Party fails to appoint an arbitrator within the time limit stipulated in paragraph 2, the arbitrator shall be selected by the other Party, in the following order of precedence:
(a) From the list of arbitrators of ACE No. 35, Twenty-first Additional Protocol, of the Party that did not designate;
(b) From the indicative list of experts eligible for WTO panel membership for the Party that did not nominate, or
(c) From the aforementioned lists of arbitrators or experts appointed by other countries, who are not nationals of the Parties to this Agreement.
4. The Parties shall, within twenty (20) days after the expiration of the time limit set forth in paragraph 2, designate by mutual agreement the chairman of the arbitral tribunal from among the candidates proposed by the Parties and his alternate. If upon expiration of this period the Parties fail to reach agreement, the chairman and his alternate shall be selected by lot by the Director General of the WTO at the request of any of the Parties within thirty (30) days thereafter from among the candidates proposed by them.
5. In the event of death, resignation, challenge or inability of an arbitrator to perform his or her duties, his or her alternate shall take over. If the alternate is unable to assume his or her function for the same reasons, a successor shall be selected in accordance with the provisions of this Article. The time limits of the proceedings shall be suspended from the date of death, resignation, challenge or inability of the arbitrator to assume his functions, until the date of selection of the successor. The successor shall assume the functions and duties of the appointed arbitrator.
6. Any Party may challenge an arbitrator or a candidate in accordance with the provisions of the rules of procedure of arbitral tribunals. The time limits of the arbitral proceedings shall be suspended pending requests for clarification and challenges.
Article 18.10. Role of the Arbitral Tribunal
1. The function of an arbitral tribunal is to make an objective assessment of the matter submitted to it, including an analysis of the facts of the case and the applicability of and compliance with this Agreement. It shall also make such findings, determinations and recommendations as are requested in the terms of reference, in accordance with Article 18.7, and as are necessary for the resolution of the dispute.
2. The arbitral tribunal shall interpret this Agreement in accordance with international law as set forth in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969. With respect to any provision of the WTO Agreement that has been incorporated into this Agreement, the arbitral tribunal shall also consider the relevant interpretations contained in the WTO panel and Appellate Body reports adopted by the WTO Dispute Settlement Body.
3. The findings, determinations and recommendations of the arbitral tribunal may not add to or diminish the rights and obligations of the Parties under this Agreement.
Article 18.11. Rules of Procedure of the Arbitral Tribunal
1. Unless the Parties agree otherwise, an arbitral tribunal established under this Chapter shall follow the rules of procedure contained in Annex 18.11. An arbitral tribunal may establish, in consultation with the Parties, supplementary rules of procedure that do not conflict with the provisions of this Agreement and the rules of procedure.
2. The rules of procedure of the arbitral tribunal shall ensure:
(a) The opportunity for each Party to submit at least initial and rebuttal written submissions;
(b) The right of each Party to at least one hearing before the arbitral tribunal;
(c) The right of each Party to present oral arguments;
(d) Hearings shall be closed to the public, unless otherwise agreed by the Parties;
(e) That the deliberations of the arbitral tribunal are confidential, as well as the documents and writings qualified as confidential or reserved by any of the Parties, and
(f) The protection of information that either Party designates as confidential or reserved information.
3. Notwithstanding paragraph 4, a Party may make public statements of its views on the dispute, but shall treat as confidential or privileged information, documents and written submissions submitted by the other Party to the arbitral tribunal and designated as confidential or privileged by the arbitral tribunal.
4. Where a Party has provided information, documents or writings classified as confidential or privileged, that Party shall, within thirty (30) days of the date of the notification, provide to the other Party the information, documents or writings that it considers to be confidential or privileged, (30) days following the request of the other Party, provide a non-confidential or non-reserved summary of such information, documents or submissions, which may be made public.
5. At the request of one of the Parties, or on its own initiative, provided that both Parties so agree, the arbitral tribunal may seek information and technical advice from any person or entity it deems relevant in accordance with the rules of procedure and as agreed by the Parties within ten (10) days of notification. In the absence of agreement between the Parties, the arbitral tribunal shall establish such terms. The arbitral tribunal shall provide the Parties with a copy of any opinion or advice obtained and an opportunity to comment.
6. The arbitral tribunal shall seek to reach its decisions unanimously, including its award. If this is not possible, the arbitral tribunal may adopt them by majority.
7. Each Party shall bear the cost of the arbitrator it appoints or should have appointed pursuant to Article 18.9.2 or 18.9.3, as well as its expenses. The cost of the chairman of the arbitral tribunal and other expenses associated with the conduct of the proceedings shall be borne by the Parties in equal proportions, in accordance with the rules of procedure.
Article 18.12. Draft Award of Arbitral Tribunal
1. The arbitral tribunal shall notify its draft award to the Parties within ninety (90) days from the date of the appointment of the last arbitrator, unless the Parties agree on a different time limit.
2. In exceptional cases, if the arbitral tribunal considers that it cannot issue the draft award within the ninety (90) day period or such other period as the Parties may have agreed, it shall inform the Parties in writing of the reasons justifying the delay together with an estimate of the period of time within which it will issue its draft award. Any delay shall not exceed a period of thirty (30) days, unless the Parties agree on a different period.
3. The arbitral tribunal shall base its draft award on the relevant provisions of this Agreement, the submissions and oral arguments of the Parties, as well as any information and technical advice it has received pursuant to this Agreement.
4. The draft award shall contain:
(a) A summary of the briefs and oral arguments presented;
(b) Conclusions with legal and factual grounds;
(c) Determinations as to whether or not a Party has complied with its obligations under this Agreement, or any other determination requested in the terms of reference; and
(d) Its recommendations, where applicable, for the Party complained against to bring its measures into conformity with this Agreement. It may also suggest the manner in which the Party complained against may implement the award.
5. Any Party may submit written observations on the draft award to the arbitral tribunal within fifteen (15) days after its notification or within any other period of time established by the arbitral tribunal.
6 After considering such comments, the arbitral tribunal may reconsider its draft award and conduct any further examination it deems appropriate.
Article 18.13. Award of the Arbitral Tribunal
1. The arbitral tribunal shall notify the Parties of the award within thirty (30) days after the notification of the draft award, unless the Parties agree on a different time period.
2. The award of the arbitral tribunal shall be final and binding on the Parties. It shall be made in accordance with Article 18.11.6, shall be reasoned, and shall be signed by the chairman of the arbitral tribunal and by the other arbitrators. The arbitrators may not cast dissenting votes, and must maintain the confidentiality of the vote.
3. Unless otherwise agreed by the Parties, either Party may publish the award of the arbitral tribunal after twenty-five (25) days after it has been notified, subject to the protection of confidential or proprietary information.
Article 18.14. Request for Clarification of the Award
1. Within ten (10) days after the notification of the award, any Party may request in writing from the arbitral tribunal clarification of any finding, determination or recommendation in the award.
2. The arbitral tribunal shall respond to such request within ten (10) days of its submission.
3. The filing of an application under paragraph 1 shall not affect the time limits referred to in Article 18.17.
Article 18.15. Suspension and Termination of Proceedings
1. The Parties may agree to suspend the work of the arbitral tribunal at any time during the proceedings for up to twelve (12) months following the date on which they reach such agreement. If the work of the arbitral tribunal remains suspended for more than twelve (12) months, the terms of reference of the arbitral tribunal shall lapse, unless the Parties agree otherwise. If the terms of reference of the arbitral tribunal have lapsed and the Parties have not reached a settlement of the dispute, nothing in this Article shall prevent a Party from initiating a new proceeding concerning the same matter.
2. The Parties may terminate the arbitral tribunal proceedings at any time prior to the rendering of the award by means of a joint communication addressed to the chairman of the arbitral tribunal.