(c)
its procedures are in accordance with its
laws and regulations.
Article 8.5: Review and Appeal
1.
In accordance with its
laws and regulations, each Party shall establish or maintain judicial, quasi-judicial,
or administrative tribunals or procedures for the purposes of the prompt review and, where warranted, correction of administrative actions
relating to
any matter covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.
2.
Each Party shall ensure that, in such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a)
a reasonable opportunity to support or defend their respective positions; and
(b)
a decision based on the evidence and submissions of record or, where required by its laws and regulations,
the record compiled by the administrative authority.
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3.
Each Party shall ensure, subject to appeal or further review as provided
for
in its laws and regulations, that any decision
referred to in subparagraph 2(b)
shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action at issue.
Article 8.6: Relation to other Chapters
In case of any inconsistency between the provisions of this Chapter and provisions relating to transparency in other Chapters, the latter shall prevail to the extent of the inconsistency.
Chapter NINE. DISPUTE SETTLEMENT
Article 9.1: Definitions
For purposes of this Chapter:
arbitration panel means a panel established under Article 9.7;
arbitrator means a member of an arbitration panel established under Article 9.7;
candidate means an individual who is under consideration for appointment as the third arbitrator under Article 9.9;
complaining Party
means a Party that requests the establishment of
an arbitration panel under Article 9.7; and
Party complained against means the Party that is alleged to be in violation of this Agreement, as referred to in Article 9.3.
Article 9.2: Objective
1.
The objective of this Chapter is to provide an effective, efficient and transparent process for the avoidance and settlement of disputes arising under this Agreement.
2.
The Parties shall, at all times, endeavor to agree on the interpretation and application of this Agreement and shall make every attempt
through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter raised in accordance with this Chapter.
Article 9.3: Scope
1.
Except as otherwise provided for in this Agreement, this Chapter shall apply with respect to the avoidance or settlement of disputes between the Parties regarding the interpretation or application of this Agreement wherever a Party considers that:
(a)
a measure of the other Party is inconsistent with its obligations under this Agreement; or
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(b)
the other Party has otherwise failed to carry out its obligations under this Agreement.
2.
This Chapter shall not apply to the settlement of disputes arising from the following: Article 2.16 (Sanitary and Phytosanitary Measures), Chapter Six (Competition), and Chapter Seven (Economic and Technical Cooperation).
Article 9.4: Choice of Forum
1.
Where a dispute regarding any matter arises under this Agreement and under the WTO Agreement or any other agreement to which both Parties are party, the complaining Party may select the forum in which to settle the dispute.
2.
Once the complaining Party has requested the establishment of, or referred a matter to, a dispute settlement panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of other fora.
Article 9.5: Consultations
1.
Each Party may request consultations with the other Party with respect to any matter relating to the interpretation and application of this Agreement, pursuant to Article 9.3.1.
2.
The Party requesting consultations shall make the request in writing and shall give the reasons for the request, including the identification of the specific measure at issue and an indication of the factual and legal basis for the complaint.
3.
The Party complained against shall reply within 10 days from the date of the receipt of the request for consultations.
4.
The Parties shall enter into consultations in good faith within 30 days, or within 15 days in cases of urgency, including those concerning perishable goods, from the date of receipt of the request for consultations, with a view to reaching a mutually satisfactory solution. Unless the Parties otherwise agree, consultations shall take place in the territory of the Party complained against.
5.
During consultations, the Parties shall provide sufficient information to
enable a full examination of how the measure at issue might affect the implementation and application of this Agreement. The Parties shall treat any confidential information exchanged in the course of consultations on the same basis as the Party providing the information.
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6.
Consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 9.6: Good Offices, Conciliation, or Mediation
1.
Good offices, conciliation, and mediation are procedures that may be undertaken voluntarily if the Parties to the dispute so agree.
2.
Good offices, conciliation, or mediation may be requested at any time by either Party. They may begin at any time by agreement of the Parties and be terminated at any time upon the request of either Party.
3.
If the Parties agree, good offices, conciliation, or mediation may continue while the proceedings of the arbitration panel provided for in this Chapter are in progress.
4.
Proceedings involving good offices, conciliation,
or mediation and, in particular, positions taken by the Parties during these proceedings, shall be confidential and without prejudice to the rights of either Party in any further proceedings.
Article 9.7: Establishment of the Arbitration Panel
1.
The complaining Party that made a request for consultations under Article 9.5 may request the establishment of an arbitration panel if:
(a)
the Party complained against does not reply within 10 days from the date of receipt of the request for consultations;
(b)
the Party complained against does not enter into consultations within 30 days, or within 15 days in cases of urgency, including those concerning perishable goods, from the date of receipt of the request for such consultations; or
(c)
the Parties fail to resolve the dispute through consultations within 60 days, or within 30 days in cases of urgency, including those concerning perishable goods, from the date of receipt of the request for such consultations.
2.
The request for the establishment of an arbitration panel shall be made in writing to the Party complained against. The complaining Party shall identify in its request the specific measure at issue, and the factual and legal basis for
the complaint sufficient to present the problem clearly.
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Article 9.8: Terms of Reference of the Arbitration Panel
Unless the Parties otherwise agree within 20 days from the date of receipt of the request for the establishment of an arbitration panel, the terms of reference of the arbitration panel shall be:
?To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitration panel pursuant to Article 9.7, to make findings, determinations, and, if applicable, recommendations and to present written reports as provided in Articles 9.12 and 9.13.?
Article 9.9: Composition of the Arbitration Panel
1.
Unless otherwise agreed by the Parties, an arbitration panel shall consist of three arbitrators.
2.
The complaining Party and the Party complained against shall, within 30 days from the date of receipt of the request for the establishment of the arbitration panel, each appoint one arbitrator who may be its national and propose up to three candidates to serve as the third arbitrator who shall be the chair of the arbitration panel. The candidates for the third arbitrator shall not be nationals of either Party, nor have their usual place of residence in the territory of either Party, nor be employed by either Party, nor have dealt with the dispute in any capacity.
3.
The Parties shall endeavor to agree on and appoint the third arbitrator within 45 days from the date of receipt of the request for the establishment of the arbitration panel, taking into account the candidates proposed. If the Parties fail to agree upon and appoint the third arbitrator within 45 days, the Parties shall meet within seven days from the expiry of the 45 days and select the chair by lot from the list of candidates proposed by both
Parties.
4.
The date of the establishment of an arbitration panel shall be the date on which the third arbitrator is appointed.
5.
All arbitrators shall have expertise or experience in law, international trade, or other matters relating to this Agreement, or in the resolution of disputes arising under international trade agreements. Each arbitrator shall be independent, serve in his or her individual capacity, and not be affiliated with, nor take instructions from, either Party or organization related to the dispute, and shall comply with Annex 9-B.
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6.
Where a Party considers that an arbitrator does not comply with the requirements of Annex 9-B, the Parties shall consult and replace, if so agreed, that arbitrator in accordance with paragraph 7.
7.
If an arbitrator appointed under this Article resigns or becomes unable to participate in the proceedings, or is to be replaced according to paragraph 6, a successor shall be selected within 15 days in accordance with the appointment method provided for in paragraphs 2 and 3, mutatis mutandis. The successor shall have all the powers and duties of the original arbitrator. The work of the arbitration panel shall be suspended for a period beginning on the date the arbitrator resigns or becomes unable to participate in the proceedings, or is to be replaced according to paragraph 6. The work of the arbitration panel shall resume on the date the successor is appointed.
Article 9.10: Proceedings of the Arbitration Panel
1.
The arbitration panel shall meet in closed sessions. The Parties shall be present at the meetings only when invited by the arbitration panel to appear before it.
2.
The Parties shall be given the opportunity to provide at least one written submission and to attend any of the presentations, statements, or rebuttals in the proceedings. All information provided or written submissions made by a Party to the arbitration panel, including any comments on the interim report and responses to questions put by the arbitration panel, shall be made available to the other Party.
3.
A Party asserting that a measure of the other Party is inconsistent with this Agreement shall have the burden of establishing such inconsistency. A Party asserting that a measure is subject to an exception under this Agreement shall have the burden of establishing that the exception applies.
4.
The arbitration panel should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution.
5.
The arbitration panel shall interpret this Agreement in accordance with the customary rules of interpretation of public international law, including the Vienna Convention on the Law of Treaties.
6.
The arbitration panel shall make its decisions, including its reports, by consensus, provided that where an arbitration panel is unable to reach
consensus, the decisions may be made by majority vote.
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7.
Upon the request of a Party, or on its own initiative, the arbitration panel may seek information from any relevant source and may consult experts to obtain their opinion or technical advice on certain aspects of the matter. Before doing so, the panel shall seek the views of the Parties to the dispute, without prejudice to its right to seek information. The arbitration panel shall provide the Parties with a copy of any advice or opinion obtained and an opportunity to provide comments.
8.
The deliberations
of the arbitration panel and the documents submitted to it shall be kept confidential.
9.
Notwithstanding paragraph 8, either Party may make public statements as to its views regarding the dispute, but shall treat as confidential, information and written submissions delivered by the other Party to the arbitration panel which the other Party has designated as confidential. Where a Party has provided information or written submissions designated as confidential, that Party shall, within 20 days from the request of the other Party, provide a non-confidential summary of the information or written submissions which may be disclosed publicly.
10.
The reports of the arbitration panel shall be drafted without the presence of the Parties. The arbitration 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 the arbitration panel.
11.
The reports of the arbitration panel shall contain both the descriptive parts summarizing the submissions and arguments of the Parties, and the findings and determinations of the arbitration panel. If the Parties agree, the arbitration panel may make recommendations for the resolution of the dispute in its reports. The findings and determinations and, if applicable, any recommendations of the arbitration panel cannot add to or diminish the rights and obligations of the Parties provided for in this Agreement.
12.
The venue for the arbitration panel proceedings shall be decided by mutual agreement between the Parties. If there is no agreement, the venue shall alternate between the capitals of the Parties with the first meeting of the arbitration panel proceedings to
be held in the capital of the Party complained against.