21.
The hearings of the arbitration panels shall be closed to the public. However, the Parties may decide to open the hearings partially or completely to the public.
22.
Each hearing shall be conducted by the arbitration panel in a manner that ensures that the complaining Party and the Party complained against are afforded equal time for arguments, replies and counter-replies.
23.
The arbitration panel may direct questions to either Party or experts at any time during a hearing.
24.
The arbitration panel shall arrange for a transcript of each hearing to be prepared and shall, as soon as possible after it is prepared, deliver a copy of the transcript to the Parties. The Parties may comment on the transcript, and the arbitration panel shall decide whether to reflect those comments.
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25.
Within 10 days from the date of the hearing, each Party may deliver a supplementary written submission responding to any matter that arises during the hearing.
Questions in Writing
26.
The arbitration panel may, at any time during the proceedings, address questions in writing to a Party or both Parties. The arbitration panel shall deliver the written questions to the Party to whom the questions are addressed and shall send a copy of the questions to the other Party.
27.
The Party to whom the arbitration panel addresses written questions shall deliver a copy of any written reply to the other Party and to the arbitration panel. Each Party shall be given the opportunity to provide written comments on the reply within seven days from the date of receipt of the reply.
Ex Parte Communications
28.
There shall be no ex parte
communications with the arbitration panel concerning matters under consideration by the arbitration panel.
29.
No arbitrator may discuss any aspect of the subject matter of the proceedings with a Party or both Parties in the absence of the other arbitrators.
Suspension of Time Periods on Request of Technical Advice
30.
The arbitration panel, after consulting with the Parties and experts, may determine the time period in which the experts are to submit their opinion or advice. If the experts cannot submit their opinion or advice within the period established pursuant to the first sentence of this paragraph, the arbitration panel, after consulting with the Parties, may give additional time to experts. In no case shall this additional period exceed half of the period established pursuant to the first sentence of this paragraph.
31.
When a request is made for a written report of an expert, any time period applicable to the arbitration panel proceedings shall be suspended for a period beginning on the date of delivery of the request and ending on the date the report is delivered to the arbitration panel.
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Language
32.
Unless the Parties otherwise agree, the common working language for the proceedings of the arbitration panel shall be English. If a Party decides to use interpretation during the proceedings, the arrangement and the cost of such interpretation shall be borne by that Party.
33.
Any document submitted for use in any proceeding pursuant to this Chapter shall be in the English language. If any original document is not in the English language, the Party submitting it for use in the proceedings shall provide an English language translation of the document.
Computation of Time
34.
All periods of time laid down in this Chapter shall be counted in calendar days, the first day being the day following the act or fact to which they refer.
35.
Where, by reason of the operation of paragraph 7, a Party receives a document on a date other than the date on which the same document is received by the other Party, any period of time the calculation of which is dependent on such receipt shall be calculated from
the last date of receipt of such document.
Other Proceedings
36.
In accordance with Articles 9.14.3, 9.14.4, 9.15.5 and 9.15.6, the referring Party shall deliver its first written submission within 15 days from the date the referral is made, and the Party complained against shall deliver its written counter-submission within 15 days from the date of receipt of the first written submission.
37.
If appropriate, the arbitration panel shall fix the time periods for delivering any further written submissions, including rebuttal written submissions, so as to provide each Party with the opportunity to make an equal number of written submissions subject
to the time periods for arbitration panel proceedings set out in Articles 9.14 and 9.15 and this Annex.
38.
Unless otherwise provided, this Annex is also applicable to procedures established under Articles 9.14 and 9.15.
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ANNEX
9-B
CODE
OF
CONDUCT
FOR
ARBITRATORS
Definitions
1.
For purposes of this Annex:
assistant
means any person who, under the terms of appointment of an arbitrator, conducts research or provides assistance to the arbitrator; and
staff
means persons under the direction and control of an arbitrator, other than assistants.
Responsibilities to the Process
2.
Every candidate and arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflict of interest, and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement proceedings are preserved. Former arbitrators must comply with the obligations established in paragraphs 15 through 18.
Disclosure Obligations
3.
Prior to the confirmation of his or her appointment as an arbitrator under Article 9.9, a candidate shall disclose any interest, relationship, or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceedings. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships, and matters.
4.
Once appointed, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships, or matters referred to in paragraph 3 and shall disclose them. The obligation to disclose is a continuing duty which requires an arbitrator to disclose any such interests, relationships, or matters that may arise at any stage of the proceedings. The arbitrator shall disclose such interests, relationships, or matters by communicating them in writing to the Joint Committee for consideration by the Parties.
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Duties of Arbitrators
5.
Upon appointment, an arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceedings.
6.
An arbitrator shall carry out all duties fairly and diligently.
7.
An arbitrator shall consider only those issues raised in the proceedings and necessary for a decision and shall not delegate the duty to decide to any other person.
8.
An arbitrator shall take all appropriate steps to ensure that his or her assistants and staff are aware of and comply with paragraphs
2, 3, 4, 16, 17 and 18.
9.
An arbitrator shall not engage in ex parte
communications concerning the proceedings, in accordance with paragraphs 28 and 29 of Annex 9-A.
Independence and Impartiality of Members of Arbitration Panels
10.
An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner, shall avoid creating an appearance of impropriety or bias, and shall not be influenced by self-interest, outside pressure, political considerations, public clamor, loyalty to a Party, or fear of criticism.
11.
An arbitrator shall 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 the arbitrator?s duties.
12.
An arbitrator shall not use his or her position on the arbitration panel to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator.
13.
An arbitrator shall not allow past or existing financial, business, professional, family, or social relationships or responsibilities to influence the arbitrator?s conduct or judgement.
14.
An arbitrator shall avoid entering into any relationship, or
acquiring any financial interest, that is likely to affect the arbitrator?s impartiality or that might reasonably create an appearance of impropriety or bias.
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Obligations of Former Arbitrators
15.
All former arbitrators must avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from a decision or ruling of the arbitration panel.
Confidentiality
16.
An arbitrator or former arbitrator shall not at any time disclose or use any non-public information concerning the proceedings, or acquired during the proceedings, except for the purposes of those proceedings and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others, or to adversely
affect the interest of others.
17.
An arbitrator shall not disclose an arbitration panel ruling or parts thereof prior to its publication.
18.
An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitration panel,
or any arbitrator?s view.
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Chapter TEN. EXCEPTIONS
Article 10.1: General Exceptions
For purposes of Chapter Two (Trade in Goods), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.
Article 10.2: Security Exceptions
1. Nothing in this Agreement shall be construed to:
(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the traffic in arms, ammunition, and implements of war and to such traffic in other goods and materials as carried on, directly or indirectly, for the purposes of supplying a military establishment;
(ii) relating to fissionable materials or the materials from which they are derived;
(iii) taken so as to protect critical public infrastructure from deliberate attempts intended to disable or degrade such infrastructure; or
(iv) taken in time of national emergency, war, or other emergency in international relations; or
(c) prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Joint Committee shall be informed to the fullest extent possible of measures taken under subparagraphs 1(b) and (c) and of their termination.
Article 10.3: Taxation
1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such tax
convention, the latter shall prevail to the extent of the inconsistency. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for jointly determining whether any inconsistency exists between this Agreement and that convention.
3. This Agreement shall only grant rights or impose obligations with respect to taxation measures where they are granted or imposed under Article 2.14 (National Treatment on Internal Taxation and Regulation) of Chapter Two (Trade in Goods), to the extent provided under Article III of GATT 1994.
4. For purposes of this Article:
(a) tax convention means a convention for the elimination of double taxation with respect to taxes on income and capital gains and the prevention of tax evasion and avoidance or any other international taxation agreement or arrangement to which both Parties are party;
(b) taxes and taxation measures do not include customs duties as defined in Article 1.5 (General Definitions) and the measures listed in the exceptions in subparagraphs (b), (c), (d), and (e) of that definition; and
(c) competent authorities means:
(i) for the Philippines, the Commissioner of the Bureau of Internal Revenue, Department of Finance, or his or her successor; and
(ii) for Korea, the Deputy Minister for Tax and Customs, Ministry of Economy and Finance, or his or her successor.
Article 10.4: Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 10.5: Confidentiality
Unless otherwise provided in this Agreement, where a Party provides information to the other Party in accordance with this Agreement and designates such information as confidential, the other Party shall, subject to its laws and regulations, maintain the confidentiality of the information.
Chapter ELEVEN. INSTITUTIONAL ARRANGEMENTS
Article 11.1: Joint Committee
1. The Parties hereby establish a Joint Committee composed of relevant government officials of each Party. It shall be co-chaired by ministerial level officials of the Department of Trade and Industry of the Philippines, and the Ministry of Trade, Industry and Energy of Korea, or their respective designees.
2. The Joint Committee shall:
(a) supervise the implementation of this Agreement;
(b) supervise and coordinate the work of all committees, working groups, and other bodies established under this Agreement;
(c) review the implementation and operation of this Agreement;