10. Any solution or decision reached by the Parties concerned shall be made publicly available.
Article 13.34. Panel of Experts
1. If the Parties concerned fail to reach a mutually satisfactory resolution of a matter arising under this Chapter through consultations under Article 13.33 (Consultations), a Party concerned may 90 days after the receipt of a request for consultations under Article 13.33 (Consultations) request that a panel of experts be convened to examine the matter by delivering a written request to the contact point of the other Party concerned. Articles 16.6 (Establishment of a Panel), 16.7 (Composition of a Panel), 16.11 (Panel Proceedings) (87), 16.21 (Mutually Agreed Solution), 16.23 (Time Period) and 16.24 (Expenses) of Chapter 16 (Dispute Settlement) shall apply mutatis mutandis, except as otherwise provided for in this Article.
2. Subject to the provisions of this Chapter, the Parties shall apply the Rules of Procedure and Code of Conduct set out in Article 16.25 (Rules of Procedure and Code of Conduct) of Chapter 16 (Dispute Settlement), unless the Parties decide otherwise.
3. The panellists shall have relevant expertise, including in international trade law and international labour law or international environmental law. They shall be independent, serve in their individual capacities and shall not take instructions from any organisation or government with regard to issues related to the disagreement, or be affiliated with the government of a Party. They must comply with the Rules of Procedures and Code of Conduct referred to in paragraph 2.
4. Unless the Parties concerned decide otherwise, within ten days of the date of the selection of the panellists, the terms of reference of the panel of experts are: to examine, in the light of the relevant provisions of this Chapter, the matter or matters referred to in the request for the establishment of the panel of experts, to make findings on the conformity of the measure with the relevant provisions, together with the reasons, as well as recommendations, if any, for the resolution of the matter and to issue a report, in accordance with this Article.
5. The panel of experts should seek information or advice from relevant international organisations or bodies including any pertinent applicable interpretative guidance, findings or decisions adopted by those international organisations or bodies. Any information obtained shall be submitted to the Parties concerned for their comments.
6. The panel of experts may request written submissions or any other information from persons with specialised knowledge of the matter. Any information obtained shall be submitted to the Parties concerned for their comments.
7. The panel of experts shall submit an interim report containing its findings and recommendations to the Parties concerned within 90 days from the date of establishment of the panel of experts. A Party concerned may submit written comments to the panel of experts on its interim report within 45 days from the date of the issuance of the interim report. After considering any such written comments, the panel of experts may modify the interim report and make any further examination it considers appropriate. The panel of experts shall present to the Parties concerned a final report within 60 days after the date of issuance of the interim report. The Parties concerned shall make the final report publicly available within 30 days of its delivery.
8. If the final report of the panel of experts determines that a Party has not conformed with its obligations under this Chapter, the Parties concerned shall discuss appropriate measures or, if appropriate, to decide upon a mutually satisfactory action plan to implement the final report of the panel of experts. Such measures shall be communicated to the other Parties within three months from the date of issuance of the final report and shall be monitored by the Sub-Committee on Trade and Sustainable Development.
9. The responding Party shall inform in a timely manner the requesting Party of its decision on any actions or measure to be implemented. Furthermore the requesting party shall inform the responding Party in a timely manner of any other action or measure it may decide to take, as a follow-up to the final report, to encourage the resolution of the matter in a manner consistent with this Agreement.
10. Each Party concerned shall in a timely manner inform the stakeholders it deems relevant of its decisions on any actions or measures to be implemented. This shall be done in accordance with existing mechanisms or through other mechanisms deemed appropriate by each Party.
11. Where a procedural question arises, the panel of experts may, after consultation with the Parties concerned, adopt an appropriate procedure.
Chapter 14. EXCEPTIONS
Article 14.1. General Exceptions
1. For the purposes of Section 2.1 (General Provisions on Trade in Goods), Annex I (Rules of Origin), Section 2.2 (Technical Barriers to Trade), Section 2.3 (Sanitary and Phytosanitary Measure), Section 2.4 (Customs and Trade Facilitation), and Section 3.2 (Investment Liberalisation), Article XX of the GATT 1994 shall apply and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
2. For the purposes of Chapter 3 (Services and Investment), Chapter 4 (Digital Trade), Chapter 5 (Capital Movements, Payments and Transfers) and Chapter 12 (Recognition of Professional Qualifications), paragraphs (a), (b) and (c) of Article XIV of GATS shall apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
3. For greater certainty, the Parties understand that, to the extent that such measures are otherwise inconsistent with the provisions referred to under paragraphs 1 and 2 of this Article:
(a) the measures referred to in point (b) of Article XX of GATT 1994 and in point (b) of Article XIV of GATS include environmental measures, which are necessary to protect human, animal or plant life and health;
(b) environmental measures include climate change mitigation measures;
(c) point (g) of Article XX of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources (88); and
(d) measures taken to implement multilateral environmental agreements can fall under points (b) or (g) of Article XX of GATT 1994 or under point (b) of Article XIV of GATS.
Article 14.2. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) as requiring a Party to provide any information the disclosure of which it considers contrary to its essential security interests;
(b) as preventing a Party from taking any action, which it considers necessary for the protection of its essential security interests, including action:
(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) relating to the production of or trade in arms, ammunition and implements of war as well as to the production of or trade in other goods and materials as carried out directly or indirectly for the purpose of supplying military and other security establishments;
(iii) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning military and other security establishments; or
(iv) taken in time of war or other emergency in international relations; or
(c) as preventing a Party from taking any action in pursuance of its obligations under the United Nations Charter for the purpose of maintaining international peace and security.
Article 14.3. Taxation
1. For the purposes of this Article:
(a) “direct taxes” means all taxes on income or capital, including taxes on gains from the alienation of property, on estates, inheritances and gifts, on wages or salaries paid by enterprises, and on capital appreciation;
(b) “tax convention” means a convention for the avoidance of double taxation or any other international agreement or arrangement relating wholly or mainly to taxation; and
(c) “taxes” and “taxation measures” include excise duties, (89) but do not include:
(i) a “customs duty” as defined in paragraph (b) of Article 2.3 (Definitions) of Section 2.1 (General Provisions on Trade in Goods); or
(ii) the measures listed in subparagraphs (ii) or (iii) of that definition.
2. Except as provided in this Article, nothing in this Agreement applies to taxation measures. (90)
3. Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention. In the event of any inconsistency between this Agreement and any such tax convention, the tax convention shall prevail to the extent of the inconsistency.
4. If an issue arises as to whether any inconsistency exists between this Agreement and a tax convention between two or more Parties, the issue shall be referred by those Parties to the competent authorities under, or in respect of, that tax convention. Those competent authorities shall have 12 months beginning with the date of that referral to make a determination as to the existence and extent of any inconsistency. If those competent authorities agree, that period may be extended by no more than a further 6 months. Only upon expiry of the 12 months, or other agreed time period (or where the competent authorities determine that no such inconsistency exists), can a panel be established under this Agreement to consider a dispute related to the measure. A panel established under this Agreement shall accept as binding a determination made by those competent authorities under this paragraph.
5. Notwithstanding paragraph 3:
(a) Article 2.4 (National Treatment on Internal Taxation and Regulation) of Section 2.1 (General Provisions on Trade in Goods), and such other measures as are necessary to give effect to that Article, apply to taxation measures to the same extent as does Article III of GATT 1994 including its interpretative notes; and
(b) Article 2.7 (Export Duties, Taxes or other Charges) and Article 2.8 (Fees and Charges) of Section 2.1 (General Provisions on Trade in Goods) applies to taxation measures.
6. Subject to paragraph 3, the following provisions apply to taxation measures:
(a) Article 3.7 (National Treatment) of Section 3.2 (Investment Liberalisation);
(b) Article 3.8 (Most-Favoured-Nation Treatment) of Section 3.2 (Investment Liberalisation);
(c) Article 3.16 (National Treatment) of Section 3.3 (Cross-Border Trade in Services);
(d) Article 3.17 (Most-Favoured-Nation Treatment) of Section 3.3 (Cross-Border Trade in Services); and
(e) without prejudice to the rights and obligations of the Parties under paragraph 5, Article 3.10 (Performance Requirements) of Section 3.2 (Investment Liberalisation).
7. But nothing in the Articles referred to in paragraph 6 applies to:
(a) any most-favoured-nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;
(b) the adoption, maintenance or enforcement of any taxation measure aimed at ensuring the equitable or effective (91) imposition or collection of direct taxes, subject to the requirement that the taxation measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade and investment; or
(c) the adoption, maintenance or enforcement of any taxation measure that differentiates between persons based on their place of residence for tax purposes, provided that the taxation measure does not arbitrarily discriminate between persons, goods or services of the Parties.
Chapter 15. INSTITUTIONAL PROVISIONS
Article 15.1. Joint Committee
1. The Parties hereby establish a Joint Committee (Joint Committee) comprising senior representatives of each Party.
2. The Joint Committee shall:
(a) supervise and review the implementation and operation of this Agreement;
(b) keep under review the possibility of further removal of barriers to trade and other restrictive measures concerning trade between the Parties;
(c) oversee and monitor the implementation of objectives relating to advancing women’s economic empowerment in accordance with this Agreement;
(d) oversee any further development of this Agreement;
(e) supervise the work of all sub-committees and working groups established under this Agreement. Except where otherwise provided for in this Agreement, sub-committees and working groups shall work under a mandate agreed by the Joint Committee;
(f) endeavour to solve problems and resolve disputes that may arise regarding the interpretation or application of this Agreement; and
(g) consider any other matter that may affect the operation of this Agreement.
3. The Joint Committee may:
(a) consider amending this Agreement in the event of developments in the relations between the EEA EFTA States and the United Kingdom as well as between each of them and third parties relevant to this Agreement, in order where appropriate to align it with the relevant developments;
(b) decide to set up sub-committees and working groups to assist it in carrying out its tasks, and merge or dissolve any such sub-committees or working groups;
(c) recommend to the Parties any amendments to this Agreement or adopt decisions to amend this Agreement, as provided for in this Agreement; and
(d) adopt interpretations of the provisions of this Agreement, which shall be binding on the Parties and all subsidiary bodies established by the Joint Committee, including panels established under Chapter 16: (Dispute Settlement).
4. The Joint Committee may take decisions as provided for in this Agreement. On other matters the Joint Committee may make recommendations. The decisions taken shall be binding on the Parties. Each Party shall take the measures necessary to implement the decisions taken.
5. The Joint Committee shall take decisions and make recommendations by consensus and may adopt these either by meeting in person or in writing. The Joint Committee may adopt decisions and make recommendations regarding issues related to only one or several EEA EFTA States and the United Kingdom. In this case, consensus shall only involve, and the decision or recommendation shall only apply to, those Parties.
6. The Joint Committee shall meet within one year of the entry into force of this Agreement. Thereafter, it shall meet whenever necessary but normally once a year. Its meetings shall be chaired jointly by one of the EEA EFTA States and the United Kingdom. The Joint Committee may meet in person or by other means, as agreed by the Parties.
7. Each Party may request at any time, through a notice in writing to the other Parties, that a special meeting of the Joint Committee be held. Such a meeting shall take place within 30 days from the receipt of the request, unless the Parties agree otherwise.
8. If a representative of a Party in the Joint Committee has accepted a decision subject to the fulfilment of domestic legal requirements, the decision shall enter into force on the date that the last Party notifies that its internal requirements have been fulfilled, unless otherwise agreed. The Joint Committee may decide that the decision enters into force for those Parties that have fulfilled their internal requirements, provided that the United Kingdom is one of those Parties.
9. The Joint Committee shall adopt its own rules of procedure.
10. The following sub-committees are established under this Agreement:
(a) Sub-Committee on Trade in Goods;
(b) Sub-Committee on Technical Barriers to Trade ;
(c) Sub-Committee on Sanitary and Phytosanitary Measures;
(d) Sub-Committee on Services and Investment; and
(e) Sub-Committee on Trade and Sustainable Development. They shall act by consensus.
Chapter 16. DISPUTE SETTLEMENT
Article 16.1. Objective
The objective of this Chapter is to establish an effective and efficient mechanism for settling disputes between the Parties (92) concerning the interpretation and application of the provisions of this Agreement with a view to reaching a mutually agreed solution.
Article 16.2. Scope
Unless otherwise provided for in this Agreement, this Chapter applies with respect to the settlement of any dispute between the Parties concerning the interpretation and application of the provisions of this Agreement.
Article 16.3. Request for Information
Before a request for consultations, good offices, conciliation or mediation is made pursuant to Articles 16.4 (Consultations) or 16.5 (Good Offices, Conciliation and Mediation) respectively, a Party may request in writing any relevant information with respect to a measure at issue. The Party to which that request is made shall make all efforts to provide the requested information in a written response to be submitted no later than 20 days after the date of receipt of the request.
Article 16.4. Consultations
1. The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement and shall make every attempt through cooperation and consultations to reach a mutually satisfactory solution of any matter raised in accordance with this Article.
2. A Party may request in writing consultations with another Party if it considers that a measure is inconsistent with this Agreement. The Party requesting consultations shall at the same time notify the other Parties in writing of the request. The Party to which the request is made shall reply within ten days from the receipt of the request. Consultations shall take place in the Joint Committee, unless the Parties making and receiving the request for consultations agree otherwise.
3. The parties to the dispute shall provide sufficient information to enable a full examination of whether the measure is inconsistent with this Agreement or not and treat any confidential information exchanged in the course of consultations in the same manner as the Party providing the information.
4. The parties to the dispute shall enter into consultations no later than 30 days, and 15 days for urgent matters, after the date of receipt of the request. Consultations shall be deemed to be concluded no later than 45 days after the date of receipt of the request unless the parties to the dispute agree otherwise. Where both parties to the dispute consider that the case concerns matters of urgency, consultations shall be deemed to be concluded no later than 25 days after the date of receipt of the request unless the parties to the dispute agree otherwise.
5. Consultations may be held in person or by any other means of communication agreed by the parties to the dispute.
6. Consultations shall be confidential and without prejudice to the rights of the parties to the dispute in any other proceedings.
7. The parties to the dispute shall inform the other Parties of any mutually agreed resolution of the matter.
Article 16.5. Good Offices, Conciliation and Mediation
1. Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree. They may begin and be terminated at any time. They may continue while proceedings of a panel established in accordance with this Chapter are in progress.
2. Proceedings involving good offices, conciliation and mediation shall be confidential and without prejudice to the rights of the parties to the dispute in any other proceedings.
Article 16.6. Establishment of a Panel
1. The Party that sought consultations pursuant to Article 16.4 (Consultations) may request the establishment of a panel if:
(a) the other Party does not respond to the request for consultations within 10 days after the date of its receipt, or does not enter into consultations within 30 days after the date of receipt of the request;
(b) the parties to the dispute agree not to enter into consultations; or
(c) the parties to the dispute fail to resolve the dispute through consultations within 45 days, or within 25 days in cases of urgency, after the date of receipt of the request for consultations, unless the parties to the dispute agree otherwise.
2. The request for the establishment of a panel pursuant to paragraph 1 shall be made in writing to the Party complained against. In its complaint, the complaining Party shall explicitly identify the specific measure at issue and provide a brief summary of the legal and factual basis of the complaint.
3. A copy of any request to establish a panel made under paragraph 1 shall be communicated to the other Parties.
4. Where more than one Party requests the establishment of a panel relating to the same matter or where the request involves more than one Party complained against, and whenever feasible, a single panel should be established to examine complaints relating to the same matter.
Article 16.7. Composition of a Panel
1. The panel shall be composed of three arbitrators. One of the arbitrators shall chair the panel. The chair of the panel shall not be a national or permanent resident of either party to the dispute.
2. On receipt of the request for the establishment of a panel by the Party complained against, the parties to the dispute shall consult with a view to agreeing on the composition of the panel.
3. If the parties to the dispute do not reach agreement on the arbitrators other than the chair of the panel within 10 days of receipt of the request to establish a panel, or any extension agreed in writing, each party to the dispute shall appoint an arbitrator to the panel. The arbitrators shall be appointed within 10 days of the expiry of the first time period mentioned in this paragraph (as extended, if so agreed).
4. If the complaining Party fails to appoint its arbitrator in accordance with paragraph 3, the dispute settlement proceedings shall lapse.
5. If the Party complained against fails to appoint its arbitrator in accordance with paragraph 3, the complaining Party shall be entitled, within 10 days of the expiry of the second time period mentioned in that paragraph, to request that the appointing authority appoint an arbitrator within 15 days of receiving the request. If the complaining Party fails to make such a request, the dispute settlement proceedings shall lapse.
6. If the parties to the dispute do not reach agreement on the chair of the panel within 50 days of receipt of the request to establish a panel, or any extension agreed in writing, the two arbitrators appointed in accordance with paragraphs 2 to 5 shall, within 10 days of the appointment of the second of them, appoint the third arbitrator who shall chair the panel.
7. If the chair has not been appointed within the second time period specified in paragraph 6, either party to the dispute shall be entitled, within 10 days, to request that the appointing authority appoint the arbitrator that shall chair the panel within 15 days of receiving the request. If no such request is made, the dispute settlement proceedings shall lapse.
8. A person being approached in connection with a possible appointment as an arbitrator, shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of appointment and throughout the arbitral proceedings, shall without delay disclose such circumstances to the parties to the dispute and the other arbitrators unless they have already been informed.
9. Any arbitrator may be challenged if a party considers that there are circumstances that give rise to justifiable doubts as to the member’s independence or impartiality or the member has otherwise not complied with any Code of Conduct. If a party to the dispute does not agree with the challenge or the challenged member of the panel does not withdraw, the party making the challenge may request the appointing authority to decide on the challenge. In the event of a successful challenge, the member in question shall be replaced.
10. If any arbitrator is unavailable, withdraws, or needs to be replaced, the replacement shall be selected in accordance with the procedure set out in this Article.
11. The date of establishment of the panel shall be the date on which the last arbitrator is appointed.
12. The Secretary-General of the Permanent Court of Arbitration shall act as the appointing authority.
Article 16.8. Qualifications of Arbitrators
All arbitrators shall:
(a) have expertise in international law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be independent of, and not be affiliated with or take instructions from, any Party, nor have dealt with the case in any capacity;
(c) serve in their individual capacities and not take instructions from any organisation or government with regard to matters related to the dispute; and
(d) comply with any Code of Conduct.
Article 16.9. Terms of Reference
1. Unless the parties to the dispute agree otherwise, no later than 10 days after the date of the establishment of the panel, the terms of reference of the panel shall be to:
(a) examine, in the light of the relevant provisions of this Agreement, the matter or matters referred to in the request for the establishment of the panel;
(b) make findings of law and fact and determinations on the conformity of the measure or measures at issue with the relevant provisions of this Agreement, together with the reasons therefor. The panel may suggest ways in which the Party complained against could implement the determinations; and
(c) issue a written report in accordance with Article 16.14 (Panel Reports).
2. If the parties to the dispute agree on other terms of reference than those referred to in paragraph 1, they shall notify the agreed terms of reference to the panel no later than three days after their agreement.
Article 16.10. Urgent Cases
In cases of urgency, including those related to perishable goods, the panel and the parties to the dispute shall make every effort to accelerate the proceedings to the greatest extent possible. If a party to the dispute so requests, the panel shall decide, no later than 10 days after the date of its establishment, whether the dispute contains matters of urgency.
Article 16.11. Panel Proceedings
1. The panel should consult regularly with the parties to the dispute and provide adequate opportunities for achieving a mutually agreed solution. In doing so, the panel shall always ensure that it shares information or makes requests of all parties to the dispute simultaneously.
2. Any hearing of the panel shall be open to the public unless the parties to the dispute agree otherwise or the arbitration panel decides to close the hearing for the duration of any discussion of confidential information. Hearings held in closed session shall be confidential.
3. The parties to the dispute shall mutually determine the location of the hearing. If the parties to the dispute are unable to so agree the hearings shall be held in Geneva, Switzerland.
4. The panel and the parties to the dispute shall treat as confidential any information submitted by a Party to the panel which that Party has designated as confidential. Where that Party submits a confidential version of its written submissions to the panel, it shall also, on request of any other Party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public with an explanation as to why the non-disclosed information is confidential.
5. The deliberations of the panel shall be kept confidential.
6. The parties to the dispute shall be given the opportunity to attend any of the presentations, statements, arguments or rebuttals in the proceedings. All documents or information submitted by a Party to the panel, shall, at the same time, be transmitted by that Party to the other party to the dispute. A written submission, request, notice or other document shall be considered received when it has been delivered to the addressee through diplomatic channels.
7. The interim report and the final report shall be drafted without the presence of the Parties, and in light of the information provided and the statements made. The arbitrators shall assume full responsibility for the drafting of the reports and shall not delegate this responsibility to any other person.
8. The panel shall attempt to make its decisions, including its final report, by consensus. It may also make its decisions, including its final report, by majority vote where a decision cannot be arrived at by consensus. Dissenting opinions of arbitrators shall not be published.