3. A Party shall not request the establishment of a Panel to review a proposed measure.
4. The request to establish a Panel referred to in this Article shall form the terms of reference of the Panel unless otherwise agreed by the Parties.
Article 15.9. Composition of the Panel
1. Unless the Parties agree otherwise, the Panel shall consist of three panelists.
2. Within 30 days of the notification of the request for the establishment of a panel, each Party shall notify the other Party of its appointment of a panelist and propose up to four candidates to serve as the chair of the Panel. If a Party fails to appoint a panelist within this time, the panelist shall be appointed by the other Party from the candidates proposed for the chair by the Party that failed to appoint a panelist, if such a list exists or, in the absence of such a list, from the other Party's proposed candidates.
3. The Parties, within 45 days of the date of receipt of the notification of the request referred to in Article 15.8, shall endeavour to decide, from among the candidates proposed, on a panelist who will serve as chair. If the Parties fail to decide on a chair within this time period, the chair shall be appointed within another seven days, after being selected by lottery from the candidates proposed, in the presence of representatives of both Parties.
4. If a panelist appointed by a Party withdraws, is removed or becomes unable to serve, a replacement shall be appointed by that Party within 30 days and, in cases of urgency, within 15 days, failing which the replacement shall be appointed by the other Party from the candidates proposed for chair in accordance with the second sentence of paragraph 2.
5. If the chair of the panel withdraws, is removed or becomes unable to serve, the Parties shall endeavour to decide on the appointment of a replacement within 30 days and, in cases of urgency, within 15 days, failing which the replacement shall be appointed in accordance with the second sentence of paragraph 3.
6. If an appointment in paragraph 4 or 5 would require selection from the list of candidates proposed for chair and no candidates remain, each Party shall propose up to three additional candidates within 30 days and, within another seven days, the chair shall be If an appointment in paragraph 4 or 5 would require selection from the list of candidates proposed for chair and no candidates remain, each Party shall propose up to three additional candidates within 30 days and, within another seven days, the chair shall be appointed after being selected by lottery from the candidates proposed, in the presence of representatives of both Parties.
7. Removal of a panelist shall take place only for the reasons and according to the procedures detailed in Rules 31 through 33 of the Rules of Procedure in Annex 15B.
8. Any time limit applicable to the proceeding shall be suspended as of the date a panelist or the chair withdraws, is removed or becomes unable to serve, and shall resume on the date the replacement is appointed.
Article 15.10. Qualifications of Panelists
1. All panelists shall:
(a) have demonstrated expertise or experience in law, international trade or other matters covered by this Agreement, or in the settlement of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, impartiality, reliability and sound judgment;
(c) be independent of and not be affiliated with or employed by, or take instructions from, either Party;
(d) serve in their individual capacities and not take instructions from any organization or government;
(e) be a national of states having diplomatic relations with both Parties; and
(f) comply with the Code of Conduct in Annex 15A;
2. Persons who provided good offices, conciliation or mediation to the Parties, pursuant to Article 15.7 in relation to the same matter, shall not be eligible to be appointed as panelists in that matter.
3. Panelists proposed to serve as chair shall not be nationals of either Party nor have their usual place of residence in either Party's territory.
4. Panelists appointed by each Party, unless otherwise agreed by the Parties on a case-by-case basis, may be nationals of the appointing Party or have their usual place of residence in its territory.
Article 15.11. Proceedings of the Panel
1. Unless the Parties otherwise agree, the panel shall follow the rules of procedure established in Annex 15B, which shall ensure:
(a) a right to at least one hearing before the panel;
(b) that, the deliberations, hearings, sessions and meetings of the Panel, shall be held in closed sessions.
(c) an opportunity for each Party to provide initial and rebuttal submissions; and
(d) the protection of information designated by either Party for confidential treatment.
2. A panel, after consultation with the Parties, may establish supplementary rules of procedure that do not conflict with the provisions of this Chapter, including Annex 15B, and ensure equal treatment between the Parties.
3. Unless the Parties agree otherwise, within 15 days of the date of receipt by the Responding Party of the notice referred to in Article 15.8, the terms of reference of the panel shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter set out in the notice referred to in Article 15.8 and to make findings, determinations and recommendations as provided in Article 15.13."
4. If the Parties agree on other terms of reference than those referred to in paragraph 3, they shall notify the agreed terms of reference to the panel no later than 5 days after their agreement.
5. If requested by the Parties, the terms of reference of a panel shall include determining the degree of adverse trade effects on a Party of a measure found to be inconsistent with an obligation in this Agreement.
6. The panel, on request of a Party, or on its own initiative, may seek information and technical advice, subject to the rules of procedure established in Annex 15B.
7. The panel may delegate the authority to make administrative and procedural decisions to the chair.
8. The panel, in light of unexpected developments and after consultation with the Parties, may modify a time period applicable in the panel proceedings and make other procedural or administrative adjustments required for the fairness or efficiency of the proceedings.
9. If a Party considers a matter to be a case of urgency, including a case involving a good that rapidly loses its trade value such as perishable goods, that Party may submit a reasoned request to the panel for an accelerated time period for the panel proceedings. Upon receipt of such a request, the panel shall provide the other Party with the opportunity to comment and shall issue its decision on whether an accelerated time period will apply within 10 days of the appointment of the last panelist.
10. The panel shall make its findings, determinations and recommendations under Article 15.13 by consensus or, in the event that the panel is unable to reach consensus, by a majority of its members.
11. Panelists may furnish separate opinions on matters not unanimously decided. A panel shall not disclose which panelists are associated with majority or minority opinions
12. Unless the Parties agree otherwise, the expenses of the panel and other expenses associated with the conduct of its proceedings, including the remuneration of the panelists, shall be borne in equal shares by the Parties, in accordance with the rules of procedure established in Annex 15B.
13. All proceedings, written submissions, oral arguments or presentations, the report of the panel and all written or oral communications between the Parties and with the panel, shall be conducted in English.
Article 15.12. Panel Suspension and Termination Procedures
1. The Parties may agree that the panel suspend its work at any time for a period not exceeding 12 months from the date of such agreement. Within this period, the suspended panel proceedings shall be resumed upon the request of either Party. If the work of the panel has been continuously suspended for more than 12 months, the authority for establishment of the panel shall lapse unless the Parties otherwise agree.
2. The suspension or termination of the panel's proceedings is without prejudice to the rights of either Party in other proceedings on the same matter under this Chapter.
3. Before the panel provides its final report, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably.
4. The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time to terminate the proceedings of a panel. In such event, the Parties shall jointly notify the chair of the panel and the Joint Committee of any such solution. Upon notification of the mutually agreed solution, any dispute settlement procedure under this Chapter shall be terminated.
Article 15.13. Panel Reports
1. Unless the Parties decide otherwise, the panel shall issue its report in accordance with the provisions of this Chapter, including the rules of procedure established in Annex 15B.
2. The panel shall base its report on the provisions of this Agreement as interpreted and applied in accordance with customary rules of interpretation of public international law, the submissions and arguments of the Parties, and information and technical advice before it under the provisions of this Chapter.
3. The panel shall issue an initial report to the Parties within 90 days, and in cases of urgency, within 60 days, of the appointment of the last panelist. This report shall contain:
(a) findings of fact and the basis upon which these findings were determined;
(b) a determination and reasoning as to whether the Responding Party has complied with its obligations under this Agreement and any other finding or determination requested in the terms of reference;
(c) if the Panel determines that a measure is inconsistent with a provision of this Agreement, a recommendation to bring the measure into conformity with that provision; and
(d) a recommendation for resolution of the dispute, if requested by a Party.
This recommendation shall not include payment of monetary compensation.
4. The initial report of the panel shall be confidential.
5. Each Party may submit written comments to the Panel on its initial report within 14 days of the presentation of the report. After considering any written comments by the Parties on the initial report, the Panel may modify its report and make any further examination it considers appropriate.
6. The panel shall present to the Parties a final report within 30 days, and in cases of urgency within 20 days, of the presentation of the initial report.
7. Unless the Parties decide otherwise, the final report of the panel may be published by either Party 15 days after it is presented to the Parties, subject to Rule 21(b) of the Rules of Procedure in Annex 15B.
Article 15.14. Implementation of the Final Report
1. The Party concerned shall promptly comply with the determination or recommendation contained in the final report of the Panel. If it is impracticable to do so, the Parties shall endeavor to agree on a reasonable period of time to comply. In the absence of such agreement, within 30 days of the date of the issuance of the final report, either Party may request the original Panel to determine the length of the reasonable period of time in light of the particular circumstances of the case. A guideline for the Panel shall be that the reasonable period of time to comply with the determination or recommendation should not exceed 15 months from the date the final report was issued. The ruling of the Panel shall be given within 30 days from that request.
2. In case of disagreement as to the existence of a measure complying with the determination or recommendation in the final report or the consistency of that measure with the determination or recommendation of the Panel, the Complaining Party may request, in writing, that the original Panel decide on the matter. Such request shall be notified simultaneously to the Responding Party and to the Joint Committee. Such dispute shall be decided by the same Panel before compensation can be sought or suspension of benefits can be applied in accordance with Article 15.15. In the event the original Panel, or any of its members, is not available, the procedures established in Article 15.9 shall apply.
3. The ruling of the Panel shall normally be rendered within 90 days.
Article 15.15. Compensation and Non-implementation - Suspension of Benefits
1. If the Responding Party fails to properly comply with the determination or recommendation in the final report within a reasonable period of time as provided for in paragraph 1 of Article 15.14, the Responding Party shall, if so requested by the Complaining Party, enter into consultations with a view to agreeing on a mutually acceptable compensation. If no such agreement has been reached within 20 days from the request, the Complaining Party shall be entitled to suspend the application of benefits granted under this Agreement but only equivalent to those affected by the measure that the Panel has found to be inconsistent with this Agreement.
2. In considering what benefits to suspend, the Complaining Party should first seek to suspend benefits in the same sector or sectors as that affected by the measure that the Panel has found to be inconsistent with this Agreement. The Complaining Party that considers it is not practicable or effective to suspend benefits in the same sector or sectors may suspend benefits in other sectors.
3. Compensation and suspension of benefits shall be temporary measures and shall only be applied by the Complaining Party until the measure found to be inconsistent with this Agreement has been withdrawn or amended so as to bring it into conformity with this Agreement, or until the Parties have settled the dispute otherwise.
4. Benefits shall not be suspended until the Panel has issued its ruling.
5. The Complaining Party shall notify the Responding Party of the benefits which it intends to suspend, the grounds for such suspension and when suspension will commence, no later than 30 days before the date on which the suspension is due to take effect. Within 15 days of that notification, the Responding Party may request the original panel to rule on whether the benefits which the Complaining Party intends to suspend are equivalent to those affected by the measure found to be inconsistent with this Agreement, and whether the proposed suspension is in accordance with paragraphs 1 and 2. In the event the original Panel, or any of its members, is not available, the procedures established in Article 15.9 shall apply.
6. In the written notice of the request referred to in paragraph 4, the Party shall identify the specific measure at issue and provide a brief summary of the legal basis of the complaint in a manner that is sufficient to present the problem clearly.
7. Subject to Article 15.11.8, the ruling of the Panel shall be given within 45 days of that request.
8. Procedures established in Article 8, the provisions of Articles 15.11 and 15.12 and of Annex 15B (Rules of Procedure), shall apply to a Panel reconvened under this Article.
Article 15.16. Compliance Review
1. Without prejudice to the procedures set out in Article 15.15.4, if the Responding Party considers that it has eliminated the non-conformity, it may refer the matter to the Panel by providing written notice to the Complaining Party. The Panel shall reconvene as soon as possible after delivery of the request and shall issue its report on the matter within 60 days after the Responding Party provides notice.
2. If the Panel decided that the Responding Party has eliminated the non-conformity, the Complaining Party shall promptly reinstate any benefits it has suspended under Article 15.15.
Article 15.17. Time Limits
Any time limit referred to in this Chapter may be reduced, waived, or extended, by mutual agreement of the Parties.
Article 15.18. Remuneration and Expenses
The remuneration and expenses of the Panel shall be borne in equal parts by the Parties in accordance with Annex 15B (Rules of Procedure). All other expenses not specified in Annex 15B (Rules of Procedure) shall be borne by the Party incurring those expenses.
Section B. Domestic Proceedings and Private Commercial Dispute Settlement
Article 15.19. Private Rights
A Party shall not provide a right of action under its law against the other Party on the ground that an act or omission of that other Party is inconsistent with this Agreement.
Article 15.20. Alternative Dispute Resolution
Each Party shall encourage the use of arbitration and other means of alternative dispute resolution, to the extent possible, in order to settle international commercial disputes between private parties.
ANNEX 15A. CODE OF CONDUCT FOR PANELISTS AND OTHERS ENGAGED IN DISPUTE SETTLEMENT PROCEEDINGS UNDER THE UAE - ISRAEL CEPA
General Rule
1. A candidate and a panelist shall:
(a) avoid impropriety and the appearance of impropriety;
(b) be independent and impartial;
(c) avoid direct and indirect conflicts of interests;
(d) observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved; and
(e) take appropriate measures to ensure that assistants and experts comply with this Code of Conduct.
2. A candidate shall not accept appointment as a panelist unless the candidate is fully satisfied of his or her ability to comply with the requirements of this Code of Conduct.
3. A panelist shall select an expert or assistant only if he or she is fully satisfied with the ability of the expert or assistant to comply with the requirements of this Code of Conduct. The selected expert or assistant shall accept the selection only if he or she is fully satisfied of his or her ability to comply with these requirements.
Disclosure Obligations
4. A candidate shall, prior to being appointed as a panelist under Article 15.9, disclose any interest, relationship or matter that might create an appearance of impropriety or bias in the proceeding or is likely to affect the candidate's independence or impartiality, by completing and providing to both Parties the Undertaking Form in the Appendix to this Annex. To this end, a candidate shall make reasonable efforts to become aware of any such interests, relationships and matters.
5. An expert or assistant shall, prior to accepting an invitation to participate in panel proceedings, disclose an interest, relationship or matter that might create an appearance of impropriety or bias in the proceeding or is likely to affect the assistant's or the expert's independence or impartiality, by completing and providing to both Parties the Undertaking Form in the Appendix to this Annex. To this end, an expert or an assistant shall make reasonable efforts to become aware of any such interests, relationships and matters.
6. Without limiting the generality of the obligation in paragraphs 4 or 5, a candidate, expert or assistant shall disclose the following interests, relationships and matters:
(a) for the candidate, expert or assistant, or the candidate's, expert's or assistant's employer, partner, business associate or family member:
(i) a direct or indirect financial, business, property, professional or personal interest:
(A) in the proceeding or in its outcome, and
(B) in an administrative proceeding, a domestic court proceeding, or another panel or committee proceeding that involves an issue that may be decided in the proceeding for which the candidate, expert or assistant is under consideration, and
(ii) a past or existing financial, business, professional, family or social relationship with a party that has an interest in the proceeding or their counsel; and
(b) for the candidate, expert or assistant: public advocacy, including public statements of personal opinion, or legal or other representation concerning an issue in dispute in the proceeding or involving the same type of good, service, or government procurement.
7. A candidate, expert or assistant is not required to identify interests, relationships, or matters that are unlikely to affect his or her independence or impartiality or that are unlikely to create an appearance of impropriety or bias in the proceeding. Disclosure obligations shall be interpreted and applied in light of the need to respect the personal privacy of candidates, experts and assistants.
8. Once selected, a panelist, expert or assistant shall continue to make all reasonable efforts to become aware of any interest, relationship or matter referred to in paragraphs 4, 5 or 6. A panelist, expert or assistant shall disclose any new relevant information in writing to the Parties as soon as they become aware of that information.
9. A candidate, panelist, expert or assistant shall not communicate matters concerning actual or potential violations of this Code of Conduct unless the communication is to both Parties or is necessary to ascertain from a third party whether that candidate, panelist, expert or assistant has violated or may violate this Code of Conduct.
10. Disclosures made pursuant to this Code of Conduct do not determine whether or under what circumstances the Parties will disqualify:
(a) a candidate or panelist from being appointed to or serving as a member of a panel; or
(b) an expert or assistant from participating in panel proceedings.
Performance of Duties
11. A panelist shall be available to perform, and shall perform, his or her duties thoroughly and expeditiously throughout the course of the proceeding.
12. A panelist shall carry out his or her duties fairly and diligently.
13. A panelist shall consider only those issues raised in the proceeding and necessary for a ruling, and shall not delegate the duty to another person, except as provided in the Rules of Procedure.
14. A panelist shall ensure that he or she can be contacted at all reasonable times to conduct business relating to the proceeding.
Independence and Impartiality of Panelists, Experts and Assistants
15. A panelist, expert or assistant must be independent and impartial and avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party or fear of criticism.
16. A panelist, expert or assistant shall not, directly or indirectly, incur an obligation or accept a benefit that would interfere, or reasonably appear to interfere, with the proper performance of the panelist's, expert's or assistant's duties.
17. A panelist, expert or assistant shall not use his or her involvement in panel proceedings to advance a personal or private interest and shall avoid conduct that may create the reasonable impression that others are in a special position to influence him or her.
18. A panelist or assistant shall not allow financial, business, professional, family or social relationships or responsibilities to influence his or her conduct or judgement.
19. An expert shall not allow financial, business, professional, family or social relationships or responsibilities to influence or impair his or her impartiality or independence in the performance of his or her duties concerning an issue in dispute in the proceedings.
20. A panelist, expert or assistant shall avoid entering into a relationship or acquiring a financial interest that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or bias.
21. A panelist shall not engage in ex parte contacts concerning the proceeding.
22. A panelist or assistant shall exercise his or her position without accepting or seeking instructions from any international, governmental or non-governmental organisation or any private source. The panelist, expert or assistant shall not have intervened in any previous stage prior to the proceedings unless otherwise agreed by the Parties.
23. A natural person acting as an expert in his or her own capacity shall exercise his or her duties without accepting or seeking instructions from any international, governmental or non-governmental organisation or any private source concerning an issue in dispute in the proceedings.
Obligations of Former Panelists, Experts and Assistants
24. A former panelist, expert or assistant shall avoid conduct that may create the appearance that the former panelist, expert or assistant was biased in carrying out his or her duties or derived advantage from the decision or ruling of the panel.
Confidentiality
25. A candidate, panelist, former panelist, expert or assistant shall not:
(a) disclose or use confidential information concerning the proceeding, or acquired during the proceeding, except for the purposes of the proceeding or except as required by law;
(b) disclose a panel ruling or part of a ruling prior to its publication in accordance with Article 15.13.7;
(c) make a public statement about the proceeding; or
(d) disclose the issues in dispute, the deliberations of the panel or a panelist's view.
26. In case the disclosure referred to in paragraph 25(a) is required by law, the candidate, panelist, former panelist, expert or assistant shall provide sufficient advance notice to the Parties and the disclosure shall not be broader than necessary to satisfy the legitimate purpose of the disclosure.
Good Offices, Conciliation, and Mediation
27. In the event of recourse to Article 15.7, the Parties shall determine which provisions of this Code of Conduct shall apply.
APPENDIX 15A-a. UNDERTAKING FORM FOR USE BY PANELISTS AS WELL AS ASSISTANTS AND EXPERTS PARTICIPATING IN PANEL PROCEEDINGS UAE-Israel CEPA
Undertaking In the Matter of Proceeding (title)
I have read the Code of Conduct for Dispute Settlement Procedures for the UAE-Israel Comprehansive Economic Partnership Agreement (52) and affirm that I comply with the standards set out in that Code of Conduct.
To the best of my knowledge there is no reason why I should not accept appointment as a panelist /assistant/ expert in this proceeding.
The following matters could potentially be considered to affect my independence or impartiality, or might create an appearance of impropriety or an apprehension of bias in the proceeding:
(Set out the details of any interests covered by paragraphs 4 and 5 and, in particular, all relevant information covered by paragraph 6.)
I recognise that, once appointed, I have a continuing duty to uphold all obligations specified in this Code of Conduct, including to make all reasonable efforts to become aware of any interest, relationship or matter referred to in this Code of Conduct that may arise during any stage of the proceeding. I will disclose in writing any applicable interest, relationship or matter to the Parties as soon as I become aware of it.
Signature
_______________________
Name
_______________________
Date
_______________________