Article 18.16. Enforcement of the Arbitral Tribunal's Award
1. Upon notification of the arbitral tribunal's award, the Parties shall reach an agreement on its enforcement, in accordance with the findings, conclusions and recommendations made by the arbitral tribunal.
2. Where in the award the arbitral tribunal determines that the measure of the Party complained of is inconsistent with the provisions of this Agreement, that Party shall, whenever possible, eliminate the non-compliance.
Article 18.17. Compensation or Suspension of Benefits
1. If the Parties fail to reach an agreement on the enforcement of the award or a mutually satisfactory resolution of the dispute within sixty (60) days following the notification of the award, the Party complained against shall, at the request of the complaining Party, enter into negotiations with a view to establishing mutually acceptable compensation. Such compensation shall be of a temporary nature and shall be granted until the dispute is settled.
2. If compensation has not been requested or if the Parties:
(a) Have not reached an agreement on the enforcement of the award or a mutually satisfactory resolution of the dispute within sixty (60) days following the notification of the award;
(b) Fail to agree on compensation in accordance with paragraph 1, within thirty (30) days after the filing of the request for compensation by the complaining Party, or
(c) have reached an agreement on the enforcement of the award or on a mutually satisfactory settlement of the dispute or on compensation in accordance with this Article and the complaining Party considers that the Party complained against has not complied with the terms of the agreement teached,
the complaining Party may, at any time, upon notice to the Party complained against, initiate the suspension of benefits and other equivalent obligations under this Agreement to such Party complained against in order to obtain compliance with the award. The level of suspension shall be equivalent to the level of nullification or impairment.
3. In the notification to initiate the suspension, the complaining Party shall specify the date on which the suspension will take effect, the level of concessions or other equivalent obligations it proposes to suspend, and the limits within which it will apply the suspension of benefits or other obligations. The suspension of benefits or other obligations shall not take effect before thirty (30) days following such notification.
4. In considering the benefits or other obligations to be suspended pursuant to this Article
(a) The complaining Party shall first seek to suspend benefits or other obligations in the same sector or sectors that are affected by the measure that the arbitral tribunal has found to be inconsistent with this Agreement; and
(b) If the complaining Party considers that it is not practicable or effective to suspend benefits or other obligations within the same sector(s), it may suspend benefits or other obligations in another sector(s). The complaining Party shall indicate the reasons on which such decision is based in the notification to initiate the suspension.
5. The suspension of benefits or other obligations shall be temporary and shall only be applied by the complaining Party until such time:
(a) The measure deemed incompatible is brought into conformity with this Agreement;
(b) The arbitral tribunal under Article 18.18 concludes in its award that the Party complained against has complied, or
(c) Until the Parties reach an agreement regarding the settlement of the dispute.
Article 18.18. Review of Compliance and Suspension of Benefits
1. Either Party may, by written notice to the other Party, request that the original arbitral tribunal established pursuant to Article 18.6 be reconstituted to determine either jointly or severally:
(a) If the level of suspension of benefits or other obligations applied by the complaining Party pursuant to Article 18.17 is excessive, or
(b) On any disagreement between the Parties as to the existence of measures taken to comply with the arbitral tribunal's award, or as to the compatibility of any measures taken to comply.
2. In the request, the requesting Party shall indicate the specific measures or matters in dispute and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
3. The arbitral tribunal shall be reconstituted within thirty (30) days after receipt of the request and shall submit its draft award to the Parties within sixty (60) days after its reconstitution to consider the request pursuant to paragraph 1(a) and 1(b). The Parties may submit comments on the draft award in accordance with Article 18.12.5. The arbitral tribunal may reconsider its draft award in accordance with Article 18.12.6.
4. The arbitral tribunal shall submit its award to the Parties within thirty (30) days after the submission of the draft award, in cases where it considers the request under paragraph 1 (a) and 1 (b).
5. If any of the original arbitrators is unable to serve on the arbitral tribunal, the provisions of Article 18.6 shall apply.
6. If the arbitral tribunal seized of a matter pursuant to paragraph 1 (a) decides that the level of benefits or other obligations suspended is excessive, it shall fix the level it considers to be of equivalent effect. In this case, the complaining Party shall adjust the suspension it is applying to that level.
7. If the arbitral tribunal seized of a matter pursuant to paragraph 1 (b) decides that the Party complained against has complied, the complaining Party shall immediately terminate the suspension of benefits or other obligations.
Article 18.19. Good Offices, Conciliation and Mediation
1. The Parties may at any time agree to the use of alternative means of dispute resolution, such as good offices, conciliation or mediation, including through the intervention of the Bilateral Administrative Commission.
2. Such alternative means of dispute resolution shall be conducted in accordance with the procedures agreed upon by the Parties.
3. Either Party may at any time initiate, suspend or terminate the procedures established under this Article.
4. Good offices, conciliation and mediation proceedings are confidential and without prejudice to the rights of the Parties in any other proceedings.
5. The initiation of any of the alternative means of dispute settlement contemplated in this Article shall automatically suspend all ongoing proceedings in the dispute, unless the Parties agree otherwise.
Article 18.20. Administration of Dispute Settlement Proceedings
1. Each Party shall:
(a) To designate a permanent Unit to provide administrative support to the arbitration tribunals contemplated in this Chapter and to perform other functions at the direction of the Bilateral Administrative Commission; and
(b) Communicate to the Bilateral Administrative Commission the domicile of the permanent Unit in charge of its administration, within a term not to exceed sixty (60) days from the date of entry into force of this Agreement.
2. Each Party shall be responsible for the operation of the designated Unit.
CODE OF CONDUCT FOR ARBITRATION DISPUTE SETTLEMENT PROCEEDINGS
Preamble
Considering that the Parties attach paramount importance to the integrity and fairness of the proceedings conducted in accordance with this Chapter, the Parties establish this Code of Conduct pursuant to Article 18.8.
1. Definitions
For the purposes of this Code of Conduct:
(a) arbitrator means the person selected under Article 18.9 to serve on an arbitral tribunal;
(b) assistant means a person who provides support to the referee;
(c) Affidavit means the Affidavit of Confidentiality and Compliance with the Code of Conduct (Appendix 18.8.1);
(d) expert means a person who provides information or technical advice in accordance with Rules 49 to 56 of Annex 18.11;
(e) family means the arbitrator's spouse, relatives by blood and affinity, reconstituted families and the spouses of such persons;
(f) procedure means, unless otherwise specified, the procedure of an arbitral tribunal under this Chapter;
(g) Rules means the Rules of Procedure for Arbitral Tribunals contained in Annex 18.11, and
(h) arbitral tribunal means the arbitral tribunal established under Article 18.6.
2. Current Principles
(a) Each arbitrator shall be independent and impartial and shall avoid direct or indirect conflicts of interest. He/she shall not receive instructions from any government or governmental or non- governmental organization.
(b) Each arbitrator and former arbitrator shall respect the confidentiality of the proceedings of the arbitral tribunal.
(c) Each arbitrator must disclose the existence of any interest, relationship or matter that might bear on his or her independence or impartiality and that might reasonably create an appearance of impropriety or a fear of bias. An appearance of impropriety or fear of bias exists when a reasonable person, with knowledge of all relevant circumstances that a reasonable inquiry might disclose, would conclude that an arbitrator's ability to perform his or her duties with integrity, impartiality and competence is impaired.
(d) This Code of Conduct does not establish under what circumstances the Parties shall disqualify an arbitrator on the basis of a disclosure.
3. Responsibilities towards the Procedure
Each arbitrator and former arbitrator shall avoid being or appearing improper and shall maintain a high standard of conduct to preserve the integrity and fairness of the dispute resolution process.
4. Disclosure Obligations
(a) Throughout the proceedings, arbitrators have a continuing obligation to disclose interests, relationships and matters that may be linked to the integrity or fairness of the arbitration dispute resolution proceedings.
(b) As expeditiously as possible, after it becomes known that a person is being considered as an arbitrator appointed to participate in the arbitral tribunal, the responsible Unit shall provide the appointed arbitrator with a copy of this Code of Conduct and the Affidavit.
(c) The appointed arbitrator shall have three (3) days to accept his or her appointment, in which case he or she shall return the duly signed Affidavit to the responsible Unit. The appointed arbitrator shall disclose any interest, relationship or matter that might influence his or her independence or impartiality or that might reasonably create the appearance of impropriety or a fear of bias in the proceeding. To that end, the appointed arbitrator shall make all reasonable efforts to become aware of such interests, relationships and matters. Accordingly, the appointed arbitrator shall disclose, at a minimum, the following interests, relationships and matters:
(i) any financial or personal interest of the appointed arbitrator in:
(A) the procedure or its outcome, and
(B) an administrative proceeding, a domestic judicial proceeding or other international dispute settlement proceeding involving issues that may be decided in the proceeding for which the appointed arbitrator is being considered;
(ii) any financial interest of the employer, partner, associate or relative of the arbitrator appointed in:
(A) the procedure or its outcome, and
(B) an administrative proceeding, a domestic judicial proceeding or other international dispute resolution proceeding involving issues that may be decided in the proceeding for which the appointed arbitrator is being considered;
(iii) any current or previous relationship of an economic, business, professional, family or social nature with any of the parties to the proceeding or their counsel or any such relationship involving the appointed arbitrator's employer, partner, associate or family member, and
(iv) public advocacy or legal or other representation on any matter in controversy in the proceeding or involving the same goods or services.
(d) Once appointed, the arbitrator shall continue to make every reasonable effort to become aware of any interest, relationship or matter referred to in subparagraph (c) and shall disclose them. The duty of disclosure is an ongoing duty requiring an arbitrator to disclose any interest, personal relationship and matter that may arise at any stage of the proceeding.
(e) If there is any doubt as to whether an interest, personal relationship or matter should be disclosed under subparagraph (c) or (d), an arbitrator must choose in favor of disclosure. Disclosure of an interest, personal relationship or matter is without prejudice to whether the interest, personal relationship or matter is covered by subparagraphs (c) or (d), or whether it merits cure under 6(g) or disqualification.
(f) The disclosure obligations set forth in subparagraphs (a) through (e) should not be interpreted in such a way that the burden of detailed disclosure would make it impractical to serve as arbitrators to persons in the legal or business community, thereby depriving the Parties to the dispute of the services of those who might be best qualified to serve as arbitrators.
5. Performance of duties by appointed arbitrators and arbitrators
(a) Bearing in mind that the prompt settlement of disputes is essential for the effective functioning of the Agreement, the arbitrator shall perform his or her duties in a thorough and expeditious manner throughout the course of the proceedings.
(b) Each arbitrator shall ensure that the responsible Unit can, at all reasonable times, contact the arbitrator to perform the duties of the arbitral tribunal.
(c) (c) Every arbitrator shall perform his or her duties fairly and diligently.
(d) Every arbitrator shall comply with the provisions of this Chapter.
(e) An arbitrator shall not deny the other arbitrators of the tribunal the opportunity to participate in all aspects of the proceedings.
(f) An arbitrator shall not establish ex parte contacts in connection with the proceeding pursuant to Rule 46 of Annex 18.11.
(g) An arbitrator shall consider only such matters presented in the proceedings as are necessary to make a decision and shall not delegate his or her decision making duties to any other person.
(h) Each referee shall take the necessary steps to ensure that his or her assistants comply with paragraphs 3, 4, 5(d), 5(f) and 8 of this Code of Conduct.
(i) No arbitrator shall disclose matters relating to actual or potential violations of this Code of Conduct unless the disclosure is with both standing Units and addresses the need to determine whether an appointed arbitrator or arbitrator has violated or may violate the Code.
6. Independence and impartiality of arbitrators
(a) An arbitrator shall be independent and impartial. An arbitrator shall act fairly and shall not create the appearance of impropriety or a fear of bias.
(b) An arbitrator shall not be influenced by self-interest, external pressure, political considerations, public pressure, loyalty to a Party or fear of criticism.
(c) An arbitrator may not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his or her duties.
(d) An arbitrator shall not use his or her position on the arbitral tribunal to promote personal or private interests. An arbitrator shall avoid actions that may create the impression that other persons are in a special position to influence him or her. An arbitrator shall make every effort to prevent or discourage others from claiming to have such influence.
(e) An arbitrator shall not allow his or her past or present financial, business, professional, family or social relationships or responsibilities to influence his or her conduct or judgment.
(f) Every arbitrator shall avoid establishing any relationship or acquiring any financial interest that is likely to influence his or her impartiality or that might reasonably create the appearance of impropriety or a fear of bias.
(g) If an interest, personal relationship or matter of an arbitrator is incompatible with subparagraphs (a) through (f), the arbitrator may accept appointment to an arbitral tribunal or may continue to serve on an arbitral tribunal, as appropriate, if the Parties waive the violation or if, after the arbitrator has taken steps to alleviate the violation, the Parties determine that the incompatibility no longer exists.
7. Obligations of former arbitrators
A former arbitrator shall avoid any appearance that his or her actions may create the appearance that he or she was biased in the performance of his or her duties or that he or she might have benefited from the decisions of the arbitral tribunal.
8. Confidentiality
(a) An arbitrator or former arbitrator shall not at any time disclose or use non- public information relating to a proceeding or acquired during a proceeding, except for the purposes of the proceeding itself, nor shall he or she disclose or use such information for personal gain or for the benefit of others or to adversely affect the interests of others.
(b) An arbitrator shall not disclose an award of the arbitral tribunal rendered under this Chapter before the Parties publish the final award. Arbitrators or former arbitrators shall not at any time disclose the identity of the arbitrators in the majority or minority in a proceeding under this Chapter.
(c) An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitral tribunal or the opinion of an arbitrator, except as required by law.
(d) An arbitrator shall not make public statements about the merits of a pending proceeding.
9. Responsibilities of assistants, consultants and experts
Paragraphs 3, 4, 5(d), 5(f), 7 and 8 of this Code of Conduct also apply to assistants, advisors and experts.
Appendix 18.8.1. AFFIDAVIT OF CONFIDENTIALITY AND COMPLIANCE WITH THE CODE OF CONDUCT
1. l acknowledge having received a copy of the Code of Conduct for Arbitral Dispute Settlement Procedures under Chapter 18 of the Trade Agreement between the Republic of Chile and the Republic of Argentina.
2. I acknowledge that I have read and understood the Code of Conduct.
3. I understand that I have a continuing obligation to disclose interests, personal relationships and matters that may be related to the integrity or fairness of the arbitration dispute resolution proceeding. As part of that obligation, I make the following affidavit:
(a) My pecuniary interest in the proceeding or its outcome is as follows:
(b) My pecuniary interest in any administrative proceedings, domestic judicial proceedings and other international dispute settlement proceedings relating to matters that may be decided in the proceeding for which I am under consideration is as follows:
(c) The economic interests that any employer, partner, associate or family member may have in the proceeding or its outcome are as follows:
(d) The economic interests that any employer, partner, associate or family member may have in any administrative proceeding, domestic judicial proceeding and other international dispute settlement proceeding involving matters that may be decided in the proceeding for which I am under consideration are as follows:
(e) My past or present economic, business, professional, family or social relationships with any party interested in the proceeding or their attorneys are as follows:
(f) My former or present economic, business, professional, family or social relationships with any party interested in the proceeding or their attorneys, involving any employer, partner, associate or relative, are as follows:
(g) My public defense or legal or other representation relating to any matter in controversy in the proceeding or involving the same goods or services is as follows:
(h) My other interests, relationships and matters that may affect the integrity or fairness of the dispute resolution proceeding and that have not been disclosed in subparagraphs (a) through (g) in this initial statement are as follows:
Subscribed on the of the month of the year___. By:
Name
Annex 18.11. RULES OF PROCEDURE OF ARBITRAL TRIBUNALS
Application
1. These Rules of Procedure for Arbitral Tribunals (hereinafter referred to as "Rules") are established pursuant to Article 18.11 of the Agreement.
2. Unless the parties to the dispute agree otherwise, these Rules shall apply to the arbitral proceedings contemplated in this Chapter.
Definitions
3. For the purposes of these Rules:
non-business day means all Saturdays, Sundays, holidays or any other day established by a Party as a non-business day, and which has been notified as such in accordance with Rule 14;
document means any submission or writing, in paper or electronic format, filed or delivered during an arbitration proceeding;
Permanent unit means the office that each Party designates pursuant to Article 18.20 to provide administrative support to an arbitral tribunal;
Responsible Unit means the permanent Unit of the respondent responsible for performing the functions referred to in Rule 61;
party to the dispute means the complaining party and the party complained against;
respondent means the party against which a claim is made and against which the establishment of an arbitral tribunal is requested under Article 18.6;
claimant means a party making a claim and filing a request for the establishment of an arbitral tribunal under Article 18.6;
representative of a party to the dispute means the person appointed by that party to act on its behalf in the arbitral proceedings;
arbitral tribunal means an arbitral tribunal established in accordance with Article 18.6; Terms of Reference
4. Within fifteen (15) days after the date of delivery of the request for the establishment of the arbitral tribunal, the parties to the dispute may agree on terms of reference points other than those set forth in Article 18.7, which shall be communicated to the responsible Unit within that period.
5. The responsible Unit shall inform the arbitral tribunal and the parties to the dispute of the agreed terms of reference within two (2) days from the date of acceptance of the last arbitrator appointed.
Submission and delivery of documents
6. The parties to the dispute, through their permanent Units, or the arbitral tribunal, shall deliver any documents to the responsible Unit, which shall forward them to the arbitral tribunal and to the permanent Units of the Parties.
7. No document shall be deemed to be delivered to the arbitral tribunal or to the parties to the dispute unless made in accordance with the foregoing Rule.
8. Any document shall be delivered to the responsible Unit by any physical or electronic means of transmission that provides a record of the sending or receipt thereof. In the case of delivery of a physical document, an original and copies for each arbitrator and for the other Party shall be submitted to the responsible Unit. The responsible Unit shall acknowledge receipt and deliver such document, by the most expeditious means possible, to the arbitral tribunal and to the permanent Unit of the other Party.
9. Minor errors of form contained in any document may only be corrected by the parties to the dispute by delivery of a document clearly stating such errors and the corresponding rectification, within seven (7) days following the date of delivery of the document containing them. Such corrections shall not affect the time limits established in the timetable of the arbitration proceedings referred to in Rule 10.
10. No later than ten (10) days after the date of acceptance of the last arbitrator appointed, the arbitral tribunal, in consultation with the parties to the dispute, shall establish a working timetable containing the maximum time limits and dates within which submissions are to be made and hearings are to be held in the arbitral proceedings. The timetable shall allow sufficient time for the parties to the dispute to complete all stages of the proceedings. The arbitral tribunal may modify the timetable after consultation with the parties to the dispute and shall notify them, by the most expeditious means possible, of any modification to the timetable.
11. For the purposes of drawing up the timetable, the arbitral tribunal shall take into account the following minimum time periods:
(a) Two (2) days after the establishment of the work schedule referred to in Rule 10, for the complaining party to deliver its initial brief;
(b) Twenty-eight (28) days following the date of delivery of the initial brief for the party complained against to deliver its reply brief.
12. Any delivery to a permanent Unit under these Rules shall be made during its normal business hours.
13. If the last day for delivery of a document to a permanent Unit or to the responsible Unit falls on a non-business day in that Party, or on any other day on which such Units are closed, the document may be delivered on the following business day.
14. Each party to the dispute shall deliver to the responsible Unit a list of the non- business days in that Party, as well as the normal business hours of its permanent Units, no later than ten (10) days after the date of acceptance of the last arbitrator appointed.
Treatment of confidential information
15. Where a party to the dispute wishes to designate specific information as confidential, it shall enclose such information in double square brackets, include a cover page that clearly states that the document contains confidential information and identify the corresponding pages with the legend "CONFIDENTIAL".
16. Pursuant to Article 18.11.4, where a party to the dispute submits to the arbitral tribunal a document containing information designated as confidential, it shall, at the request of the other party to the dispute, provide a non-confidential summary thereof within thirty (30) days of the request.
17. During the arbitration proceedings and even after the arbitration proceedings have been completed, the parties to the dispute, their representatives, the arbitrators or any other person who has participated in the arbitration proceedings shall keep confidential the information qualified as such, as well as the deliberations of the arbitral tribunal, the draft award and the comments thereon.
18. The responsible Unit shall take such reasonable measures as may be necessary to ensure that experts, stenographers and other persons involved in the arbitration proceedings safeguard the confidentiality of information qualified as such.
Functioning of arbitration tribunals