19. Once the appointment of an arbitrator has been made in accordance with Article 18.9, the responsible Unit shall communicate it to the arbitrator by the most expeditious means possible. Together with the communication, a copy of the Code of Conduct and an affidavit of confidentiality and compliance with the Code of Conduct shall be sent to each appointed arbitrator, whether a regular or alternate arbitrator. Each arbitrator shall have three (3) days to communicate his or her acceptance, in which case he or she shall return the duly signed affidavit to the responsible Unit. If the arbitrator does not communicate his or her acceptance in writing to the responsible Unit within the indicated period, it shall be understood that he or she does not accept the position.
20. The responsible Unit shall inform the parties to the dispute, by the most expeditious means possible, of the response of each appointed arbitrator or of the fact that no tesponse has been received. Once the arbitrators appointed as arbitrators have communicated their acceptance, the responsible Unit shall so communicate, by the most expeditious means possible, to the parties to the dispute.
21. Pursuant to Article 18.9.6, any party to the dispute may request clarification or challenge an arbitrator or a prospective arbitrator if it considers that he or she does not meet the requirements set forth in Article 18.8.
21.1. Request for clarification on the incumbent or alternate referee
Each Party may request clarification from the other party to the dispute, through the responsible Unit, regarding the arbitrator and/or alternate arbitrator appointed by it pursuant to Article 18.9. The requested clarifications must be responded to within fifteen (15) days from the date on which the other Party was notified of the appointment.
21.2. Request for challenge of arbitrator or alternate arbitrator appointed by a
(a) Any Party that becomes aware of an alleged violation by the arbitrator or alternate arbitrator appointed by the other Party of the requirements to be appointed as arbitrator or of the obligations set forth in the Code of Conduct and in Article 18.8 may request his or her challenge. The request for challenge shall be reasoned and notified in writing to the other Party, to the challenged arbitrator and to the arbitral tribunal within fifteen (15) days from the date of his or her appointment or from the time the fact giving rise to the request for challenge becomes known.
(b) The Parties shall attempt to reach an agreement on the challenge within fifteen (15) days following the notification of the request. The arbitrator may, after the challenge has been raised, resign from his function, without this implying acceptance of the validity of the reasons for the challenge.
(c) If the Parties are unable to reach an agreement or if the challenged arbitrator does not resign, the request for challenge shall be decided by the chairman of the arbitral tribunal within fifteen (15) days after the expiration of the time limit set forth in b). In the event that the chairman of the arbitral tribunal has not been appointed by the date of expiration of the time limit set forth in b) above, the challenge shall be submitted once the chairman of the arbitral tribunal has been appointed.
(d) If, pursuant to b) or c), the request for disqualification of the original arbitrator is declared admissible or the original arbitrator resigns, the substitute arbitrator appointed pursuant to Article 18.9 shall act as the original arbitrator. If the statement of the challenge concerns an incumbent arbitrator who was an alternate arbitrator, the statement of the merits of the challenge shall entitle the appointing Party to appoint a new incumbent arbitrator in accordance with Article 18.9.
21.3. Challenge of the chairman of the arbitral tribunal
(a) Any Party that becomes aware of an alleged violation by the chairman of the arbitral tribunal appointed by mutual agreement or selected by lot of the requirements to be appointed chairman of the arbitral tribunal or of the obligations set forth in the Code of Conduct and in Article 18.8, may request the recusal of the chairman of the arbitral tribunal. The request for disqualification shall be reasoned and notified in writing to the other Party, to the chairman of the arbitral tribunal and to the arbitral tribunal within fifteen (15) days of the appointment, drawing of lots or from the time the fact giving rise to the request for disqualification becomes known.
(b) The Parties shall attempt to reach an agreement on the challenge of the chairman of the arbitral tribunal within fifteen (15) days of the notification of the challenge. The chairman of the arbitral tribunal may, after the challenge has been raised, resign from his office, without this implying acceptance of the validity of the reasons for the challenge.
(c) If it is not possible to reach an agreement or if the challenged arbitrator does not resign, the request for challenge shall prevail and the alternate arbitrator shall take over. Each party may request the challenge of the chairman of the arbitral tribunal only once. However, a request for a challenge of the presiding arbitrator in which the presiding arbitrator has resigned pursuant to b) above shall not be counted as a request for a challenge for the purposes of this section.
22. The time limits provided for in this Chapter and in these Rules, which are counted from the appointment of the last arbitrator, shall begin to run from the date on which the arbitrator accepted his appointment.
23. The chairman of the arbitral tribunal shall preside at all its meetings. The arbitral tribunal may delegate to its chairman the power to make administrative and procedural decisions.
24. The arbitral tribunal shall perform its functions in person or by any technological means.
25. Only the arbitrators may participate in the deliberations of the arbitral tribunal, unless, after prior notice to the parties to the dispute, the tribunal allows the presence during such deliberations of its assistants and, where appropriate, interpreters.
26. With respect to procedural matters not provided for in these Rules, the arbitral tribunal, in consultation with the parties to the dispute, may establish supplementary rules of procedure for the arbitration, provided that they do not conflict with the provisions of the Agreement and these Rules. When such procedure is adopted, the chairman of the arbitral tribunal shall immediately notify the parties to the dispute.
Hearings
27. The presiding arbitrator shall fix the place, date and time of the hearing, in consultation with the parties to the dispute, subject to Rule 10. To the extent possible, the date of the hearing shall be fixed after both parties to the dispute have filed their initial and reply briefs, respectively. The Responsible Unit shall notify the parties to the dispute, by the most expeditious means possible, of the place, date and time of the hearing.
28. Unless the parties to the dispute agree otherwise, the hearing shall be held in the capital of the party complained against.
29. When it considers it necessary, the arbitral tribunal may, with the agreement of the parties to the dispute, convene additional hearings.
30. All arbitrators must be present at the hearings, otherwise they cannot be held. Hearings shall be held in person in accordance with the provisions of Rule 28. However, the arbitral tribunal, with the consent of the parties to the dispute, may agree that the hearing be held by any other means.
31. All hearings shall be closed to the public. Notwithstanding the foregoing, when a party to the dispute for justifiable reasons so requests, and with the agreement of the other party, such hearings may be open, (1) except when information designated as confidential by one of the parties to the dispute is being discussed.
32. A party to the dispute wishing to present confidential information at the hearing shall so advise the responsible Unit at least ten (10) days prior to the hearing. The responsible Unit shall take the necessary steps to ensure that the hearing is conducted in accordance with Rule 31.
33. Unless the parties to the dispute agree that the hearing shall be open, only those present may be present at the hearings:
(a) Representatives of the parties to the dispute, officials and advisors designated by them, and
(b) Referee assistants and interpreters if required,
but excludes in all circumstances any person from whom a benefit could reasonably be expected from access to confidential information.
34. The parties to the dispute may object to the presence of any of the persons referred to in Rule 33 no later than two (2) days before the hearing, stating the reasons for such objection. The objection shall be decided by the arbitral tribunal prior to the commencement of the hearing.
35. No later than five (5) days prior to the date of the hearing, each party to the dispute shall submit to the responsible Unit a list of the persons who will attend the hearing as representatives and other members of its delegation.
36. The hearing shall be conducted by the presiding arbitrator, who shall ensure that the parties to the dispute are given equal time to present their oral arguments.
37. The hearing will be conducted in the following order:
(a) Pleadings
(i) the complaining party's allegation, and
(ii) Respondent's allegation.
(b) Reply and rejoinders
(i) reply of the complaining party, and
(ii) rejoinder of the respondent.
38. The arbitral tribunal may put questions to any party to the dispute at any time during the hearing.
39. The responsible Unit shall adopt the necessary measures to keep a record system of the oral proceedings. Such record shall be made by any means, including transcription, that ensures the preservation and reproduction of its contents. At the request of any party to the dispute or of the arbitral tribunal, the responsible Unit shall provide a copy of the record. In the case of a hearing closed to the public, such record may only be requested by the parties to the dispute or by the arbitral tribunal.
Complementary documents
40. The arbitral tribunal may, at any time during the proceedings, put questions in writing to any party to the dispute and shall determine the time limit within which it shall deliver its answers.
41. Each party to the dispute shall be given an opportunity to comment in writing on the answers referred to in Rule 40 within such period of time as the arbitral tribunal may prescribe.
42. Notwithstanding the provisions of Rule 10, within ten (10) days after the date of the conclusion of the hearing, the parties to the dispute may file a written statement of their views on the dispute, supplemental briefs in connection with any matter that may have arisen during the hearing.
Burden of proof with respect to incompatible measures and exceptions
43. A complaining party that considers that an existing measure of the responding party is inconsistent with the obligations under the Agreement; or that the responding party has otherwise failed to comply with the obligations under the Agreement, shall have the burden of proving such inconsistency or non-compliance, as the case may be.
44. Where a respondent party considers that a measure is justified by an exception under the Agreement, it shall have the burden of proving it.
45. The parties to the dispute shall offer or submit evidence with the initial and rebuttal briefs in support of the arguments made in those briefs. The parties to the dispute may also submit additional evidence in their rebuttal and rejoinder submissions.
Ex parte contacts
46. The arbitral tribunal shall not meet or contact a party to the dispute in the absence of the other party to the dispute.
47. No arbitrator may discuss any matter relating to the arbitration proceedings with a party to the dispute in the absence of the other arbitrators and the other party to the dispute.
48. In the absence of the parties to the dispute, an arbitral tribunal may not meet or have discussions concerning the subject matter of the arbitral proceedings with a person or entity that provides information or technical advice.
Information and technical advice
49. No arbitral tribunal may request information or technical advice pursuant to Article 18.11.5, whether at the request of a party to the dispute or on its own initiative, later than ten (10) days after the date of the hearing.
50. Within five (5) days of the date on which the arbitral tribunal decides to request information or technical advice, and after consultation with the parties to the dispute, it shall select the person or entity to provide the information or technical advice.
51. The arbitral tribunal shall select experts or advisors strictly on the basis of their expertise, objectivity, impartiality, independence, reliability and sound judgment.
52. The arbitral tribunal may not select as an expert or advisor a person who has, or whose employers, partners, associates or family members have, a financial, personal, or other interest, that may affect their independence and impartiality in the proceedings.
53. The arbitral tribunal shall deliver a copy ofits request for information or technical advice to the responsible Unit, which in turn shall deliver it by the most expeditious means possible to the parties to the dispute and to the persons or entities that are to provide the information or technical advice.
54. The persons or entities shall deliver the information or technical advice to the responsible Unit within the period of time established by the arbitral tribunal, which in no case shall exceed ten (10) days from the date on which they received the request from the arbitral tribunal. The responsible Unit shall deliver to the parties to the dispute and to the arbitral tribunal, by the most expeditious means possible, the information provided by the experts or technical advisors.
55. Any party to the dispute may comment on the information provided by the experts or technical advisors within five (5) days from the date of delivery. Such comments shall be submitted to the responsible Unit, which, in turn, no later than the following day, shall deliver them to the other party to the dispute and to the arbitral tribunal.
56. Where a request for information or technical advice is made, the parties to the dispute may agree to stay the arbitral proceedings for a period of time to be determined by the arbitral tribunal in consultation with the parties to the dispute.
Computation of deadlines
57. All time limits set forth in this Chapter, in these Rules or by the arbitral tribunal shall be calculated from the day following the day on which the notice, request or document relating to the arbitration proceedings was received.
58. In the event that any action is required to be taken, before or after a date or event, the day of that date or event shall not be included in the computation of the term.
59. When the period begins or expires on a non-business day, the provisions of Rule 13 shall apply.
60. All time limits set forth in this Chapter and in these Rules may be modified by mutual agreement of the parties to the dispute.
Responsible unit
61. The responsible Unit will have the following functions:
(a) Provide administrative assistance to the arbitral tribunal, the arbitrators and their assistants, interpreters, translators, persons or entities selected by the arbitral tribunal to provide information or technical advice and other persons involved in the arbitral proceedings;
(b) Make available to the arbitrators, upon acceptance of their appointment, documents relevant to the arbitration proceedings;
(c) Keep a copy of the complete file of each arbitration proceeding;
(d) Inform the parties to the dispute of the amount of the costs and other expenses associated with the arbitration proceeding that each party must bear, and
(e) Organize logistical issues related to the hearings. Costs and other associated expenses
62. Each party to the dispute 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 the cost of its assistants, if any, their travel, accommodation and other expenses associated with the conduct of the proceeding.
63. The cost of the chairman of the arbitral tribunal, his assistants, if any, their travel, lodging and other expenses associated with the proceedings shall be borne by the parties in equal proportions.
64. Each arbitrator shall keep a complete record of the expenses incurred and submit a settlement, together with supporting documents, for the purpose of determining their relevance and subsequent payment. The same shall apply to assistants and experts.
65. The amount of the fees of the arbitrators, their assistants and experts, as well as the expenses that may be authorized, shall be established by the Bilateral Administrative Commission.
66. When the chairman of the arbitral tribunal requires one or more assistants for the conduct of its work, he shall so agree with both Parties for the purposes of Rule 63.
67. When the incumbent arbitrator, appointed by each Party pursuant to Article 18.9.2, requires one or more assistants for the performance of his or her work, he or she shall so agree with the Party that appointed him or her for the purposes of Rule 62.
Compliance review and suspension of benefits arbitration court
68. Without prejudice to the foregoing rules, in the case of a proceeding conducted pursuant to Article 18.18 the following shall apply:
(a) The party to the dispute requesting the establishment of the arbitral tribunal shall deliver its initial written statement within five (5) days after the constitution of the arbitral tribunal pursuant to Article 18.18;
(b) The other party to the dispute shall deliver its statement of defense within fifteen (15) days from the date of receipt of the initial statement, and
(c) Subject to the time limits set forth in the Agreement and these Rules, the arbitral tribunal shall establish the time limit for the delivery of any supplementary documents, ensuring that each party to the dispute has an equal opportunity to submit documents.
Chapter 19. EXCEPTIONS
Article 19.1. General Exceptions
1. For the purposes of Chapter 2 (Trade Facilitation), Chapter 4 (Sanitary and Phytosanitary Measures) and Chapter 5 (Technical Barriers to Trade), Article XX of GATT 1994 and its interpretative notes are incorporated into and form 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 exhaustible natural resources, whether living or non-living.
2. For the purposes of Chapter 9 (Trade in Services) and Chapter 11 (Electronic Commerce) (1), paragraphs (a), (b) and (c) of Article XIV of the GATS are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XIV(b) of the GATS include environmental measures necessary to protect human, animal or plant life or health.
3. Nothing in this Agreement shall be construed to prevent a Party from adopting a measure, including maintaining or increasing a customs duty, that is authorized by the WTO Dispute Settlement Body or that is taken as a result of a ruling by a dispute settlement panel under a free trade agreement to which the Party adopting the measure and the Party against which the measure is taken are parties.
Article 19.2. Security Exceptions
Nothing in this Agreement shall be construed to mean:
(a) Require a Party to provide or permit access to any information the disclosure of which it considers contrary to its essential security interests, or
(b) Prevent a Party from applying measures it considers necessary for the fulfillment ofits obligations with respect to the maintenance or restoration of international peace or security, or for the protection of its own essential security interests.
Article 19.3. Restrictions to Protect the Balance of Payments
1. Nothing in this Agreement shall be construed to prevent any Party from adopting or maintaining restrictive measures with respect to payments or transfers for current account transactions in the event of serious balance of payments and external financial difficulties, or the threat thereof.
2. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with respect to payments or transfers relating to capital movements:
(a) In the event of serious balance of payments and external financial difficulties, or the threat thereof, or
(b) If, in exceptional circumstances, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for the conduct of macroeconomic, in particular monetary and exchange rate policies.
3. Any action taken or maintained pursuant to paragraph 1 or 2 shall:
(a) Be applied in a non-discriminatory manner so that no Party receives less favorable treatment than any non-Party;
(b) Be compatible with the Articles of Agreement of the International Monetary Fund;
(c) Avoid unnecessarily harming the commercial, economic and financial interests of the other Party;
(d) Not to exceed what is necessary to meet the circumstances described in paragraph 1 or 2, and
(e) Be temporary and be progressively eliminated as the situations specified in paragraph 1 or 2 improve.
4. A Party shall endeavor to ensure that any measures adopted or maintained under paragraph 1 or 2 are price-based, and if such measures are not price-based, the Party shall explain the reasons for the use of quantitative restrictions when notifying the other Party of the measure, in terms of the Understanding on the Balance of Payments Provisions of the GATT 1994, in the case of measures restricting imports for balance-of-payments purposes.
5. A Party adopting or maintaining measures under paragraph 1 or 2 shall:
(a) Promptly notify, in writing, the other Party of the measures, including any modification thereof, together with the reasons for their imposition;
(b) Promptly publish the measures, and
(c) Promptly enter into consultations with the other Party to review the measures adopted or maintained by it:
(i) in the case of capital movements, respond promptly to the other Party requesting consultations regarding measures taken by it, provided that such consultations were not otherwise being conducted outside this Agreement.
(ii) in the case of current account restrictions, if consultations regarding the measures adopted by it are not conducted within the framework of the WTO Agreement, a Party shall, if requested, promptly enter into consultations with the other Party.
Article 19.4. Taxation Measures
1. For the purposes of this Article:
designated authorities means:
(a) For Chile, the Undersecretary of Finance, or any successor to this designated authority as notified in writing to the other Party,
(b) For Argentina, the authority that communicates within ninety (90) days from the date of the (90) days from the execution of this Agreement;
tax convention means a convention for the avoidance of double taxation or other international agreement or arrangement in tax matters; and
Taxes and tax measures include excise taxes, but do not include:
(a) Any tariff or charge of any kind applied to, or in connection with, the importation or exportation of a good, and any form of surcharge or surcharge applied in connection with such application, or
(b) Any duties or other charges related to importation or exportation, proportionate to the cost of services rendered, or
(c) Any anti-dumping duty or countervailing measure.
2. Except as provided in this Article, nothing in this Agreement shall apply to taxes and taxation measures.
3. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax treaty. In the event of any inconsistency between this Agreement and any such tax treaty, that treaty shall prevail to the extent of the inconsistency.
4. In the case of a tax treaty between the Parties, if any dispute arises as to the existence of any inconsistency between this Agreement and the tax treaty, the dispute shall be referred to the designated authorities of the Parties. The designated authorities of the Parties shall have six (6) months from the date of referral of the dispute to make a determination as to the existence and extent of any inconsistency. If those designated authorities so agree, the period may be extended for up to twelve (12) months from the date of referral of the dispute. No proceeding relating to the measure giving rise to the dispute may be initiated under Chapter 18 (Dispute Settlement) until the expiration of the six (6) month period, or such other period as may be agreed upon by the designated authorities. An arbitral tribunal established to hear a dispute relating to a taxation measure shall accept as binding the determination made by the designated authorities of the Parties under this paragraph.
5. Subject to paragraph 3:
(a) Article 9.3 (National Treatment) shall apply to taxes and taxation measures on income, capital gains, on the taxable capital of corporations, or on the value of an investment or property (2) (but not on the transfer of such investment or property), that relate to the purchase or consumption of specified services, provided that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage related to the purchase or consumption of specified services on the requirements to supply the service in its territory, and
(b) Article 8.5 (National Treatment), Article 8.6 (Most-Favored-Nation Treatment) and Article 9.3 (National Treatment) shall apply to all tax measures, other than those on income, capital gains, on taxable corporate capital, on the value of an investment or property (3) (but not on the transfer of that investment or property), or estate, inheritance, gift, and generation-skipping transfer taxes,
but nothing in the Articles referred to in subparagraphs (a) and (b) shall apply to:
(c) Any most-favored-nation obligation with respect to an advantage granted by a Party pursuant to a tax treaty;
(d) A non-conforming provision of any existing tax measure;
(e) The continuation or prompt renewal of a non-conforming provision of any existing tax measure;
(f) A modification of a non-conforming provision of any existing tax measure, insofar as such modification does not reduce its degree of conformity, at the time of the amendment, with any of those Articles;
(g) The adoption or application of any new tax measure aimed at ensuring the equitable or effective application or collection of taxes, including any tax measure that differentiates between persons based on their place of residence for tax purposes, provided that the tax measure does not arbitrarily discriminate between persons, goods or services of the Parties (4);
(h) A provision that conditions the receipt or continued receipt of a benefit relating to contributions to, or income from, a pension plan, retirement fund or other system for providing pension, retirement or similar benefits on a requirement that the Party maintain continuing jurisdiction, regulation or supervision over that plan, fund or other system; or
(i) Any tax on insurance premiums to the extent that such taxes, if imposed by the other Party, are covered by subparagraphs (d), (e) or (f).
6. Article 8.8 (Expropriation and Compensation) shall apply to taxes and taxation measures adopted or maintained by central or federal governments or authorities in terms of Article 8.2 (Scope of Application). However, no investor may invoke Article 8.8 (Expropriation and Compensation) as a basis for a claim if it has been determined pursuant to this paragraph that the measure does not constitute an expropriation. An investor seeking to invoke Article 8.8 (Expropriation and Compensation) with respect to a taxation measure must first refer to the designated authorities of the Party of the investor and of the respondent Party, at the time of notification of the notice of intent under Article 8.24 (Submission of a Claim to Arbitration), the question of whether the measure does not constitute an expropriation. If the designated authorities do not agree to consider the issue or, having agreed to consider the issue, fail to agree that the measure does not constitute an expropriation within six (6) months of the referral, the investor may submit its claim to arbitration under Article 8.24 (Submission of a Claim to Arbitration).
Article 19.5. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information the disclosure of which would be contrary to its legal system or would impede law enforcement, or which would otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Chapter 20. FINAL PROVISIONS
Article 20.1. Annexes, Appendices and Footnotes
The annexes, appendices and footnotes to this Agreement constitute an integral part of this Agreement.
Article 20.2. Entry Into Force and Termination
1. The entry into force of this Agreement shall be subject to the fulfillment of the procedures provided for in the legal system of each Party.