3. In determining the timetable for the Panel process, the Panel shall provide sufficient time for the Parties to the dispute to prepare their respective submissions and for at least one hearing for the Parties to present their case to the Panel. The Panel shall set precise deadlines for written submissions by the Parties to the dispute and the Parties shall respect those deadlines.
4. Any time period applicable to the Panel proceeding shall be suspended for a period that begins on the date on which any panellist resigns or becomes unable to act and ends on the date on which the successor panellist is appointed.
4bis. In fixing the timetable, positive consideration shall be given to requests by any developing country Parties to the dispute for an extension of the time frames to enable them to adequately prepare their submissions.
5. A Panel may, in consultation with the Parties to the dispute, modify any time period applicable in the Panel proceeding and make such other procedural or administrative adjustments as may be required in the proceeding, unless agreed otherwise by the Parties.
Operation of Panels
6. The chair of the Panel shall preside at all of its meetings. A Panel may delegate to the chair authority to make administrative and procedural decisions.
7. Except as otherwise provided in these Rules, the Panel may conduct its business by any means, including by telephone, facsimile, email and any other means of electronic communication.
8. Only panellists may take part in the deliberations of the Panel. The Panel may, in consultation with the Parties to the dispute, retain such number of assistants or designated note takers as may be required for the proceeding and permit them to be present during its deliberations. Any such arrangements established by the Panel may be modified by the agreement of the Parties to the dispute.
9. The Panel's deliberations shall be confidential. The panellists and the persons retained by the Panel shall maintain the confidentiality of Panel proceedings and deliberations. There shall be no ex parte communications with the Panel concerning matters under consideration by it.
10. If a procedural question arises that is not addressed by these Rules, a Panel may, after consulting the Parties, adopt an appropriate procedure that is consistent with this Agreement.
11. The interests of Third Parties and other Parties shall be fully taken into account during the Panel proceedings. Any information or written submissions provided to the Panel by a Party to the dispute or a Third Party shall be made available to the other Parties to the dispute.
Written Submissions and Other Documents
12. Each Party to the dispute shall deliver to the Panel a first submission in writing setting out the facts of its case and its arguments. Unless the Parties to the dispute otherwise agree, a complaining Party shall deliver its first submission to the Panel and to the Party complained against within 14 days of the date of the establishment of the Panel. The Party complained against shall deliver its first submission to the Panel and to the complaining Party within 21 days of the date of receipt of the first submission of the complaining Party. Any subsequent written submissions shall be submitted simultaneously.
13. Any Third Party shall have an opportunity to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.
14. A Party to the dispute shall deliver no less than four copies of its written submissions to the Panel and one copy to the other Parties to the dispute. Third Parties shall receive the submissions of the Parties to the dispute prior to the first substantive hearing.
15. In respect of any request, notice or other document related to the Panel proceeding that is not covered by Rules 12 and 14, each Party to the dispute may deliver a copy of the document to the other Party to the dispute by facsimile, email or other means of electronic transmission.
16. A Party to the dispute may at any time correct minor errors of a clerical nature in any request, notice, written submission or other document related to the Panel proceeding by delivering a new document clearly indicating the changes.
Hearings
17. At the first substantive hearing of the Panel, each Party to the dispute shall present the facts of its case and its arguments. The complaining Party shall present its position first. The Parties to the dispute shall be given an opportunity for final statements, with the complaining Party presenting its statement first.
18. All Third Parties shall be invited to present their views during a separate session of the first substantive hearing of the Panel set aside for that purpose. All Third Parties may be present during the entirety of this session.
19. The Parties to the dispute and Third Parties shall make available to the Panel written versions of their oral statements and responses to questions made in hearings with the Panel.
20. A Panel shall hold its hearings in open session, unless the Parties to the dispute agree otherwise.
Availability of Information
21. Subject to Rules 22 and 23, each Party's written submissions, written versions of its oral statements, and written responses to questions from the Panel may be made available to the public by the Parties to the dispute.
22. A Party may designate, for confidential treatment, specific information it includes in its submissions, to the extent it considers strictly necessary to protect privacy or legitimate commercial interests of particular enterprises, public or private, or to address essential confidentiality concerns.
23. The Parties to the dispute shall treat as confidential information submitted by another Party which that Party has designated as confidential. If a Party designates information as confidential, that Party shall, on request of another Party, provide the Panel and other Parties to the dispute with a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.
24. The report presented to the Parties to the dispute in accordance with Article 12.2 and any comments on it shall be confidential.
25. Each Party shall take such reasonable steps as are necessary to ensure that its individuals involved in Panel proceedings, including its experts, interpreters, translators, and court reporters (designated note takers) maintain the confidentiality of the Panel proceedings.
Information Gathering
26. The Parties to the dispute and Third Parties shall respond promptly and fully to any request by the Panel for any information the Panel considers necessary and appropriate.
27. On the request of a Party to the dispute, or on its own initiative, the Panel may seek information and technical advice from any individual or body which it deems appropriate. However, before doing so the Panel shall seek the views of the Parties to the dispute. If the Parties to the dispute agree that the Panel should not seek the additional information or technical advice, the Panel shall not proceed to seek such information or technical advice. The Panel shall provide the Parties to the dispute with any information or technical advice it receives and an opportunity to provide comments.
Reports
28. Unless the Parties to the dispute agree otherwise, a Panel shall base its report solely on the relevant provisions of this Agreement, the submissions and arguments of the Parties to the dispute, and other information provided to it in accordance with Rule 24. A Panel shall only make the findings and recommendations provided for in this Agreement.
29. A Panel established in accordance with Article 11 shall set out in its report: a descriptive section summarising the arguments of the Parties to the dispute and Third Parties; and its findings, and reasons for its findings, under each relevant subparagraph of Article 12.2. The Panel may suggest ways in which the Party complained against could implement the findings. Unless the Parties to the dispute agree otherwise, the Panel shall present to the Parties to the dispute an interim report containing its initial assessment within 90 days of its establishment, or within 45 days in cases of urgency, and a final report to the Parties to the dispute within 30 days of presentation of the interim report. If the Panel finds that the Party complained against is not in compliance with its obligations under this Agreement, the Panel shall make a determination as to what constitutes a reasonable period of time for the Party complained against to implement its obligations under this Agreement.
30. The interim report and final report of the Panel shall be drafted without the presence of the Parties to the dispute. Opinions expressed in the reports of the Panel by its individual members shall be anonymous.
31. The Parties to the dispute shall release the final report to the public within 15 days of its presentation, subject to the protection of confidential information.
32. A Panel reconvened in accordance with Article 16 shall set out in its report: a descriptive section summarising the arguments of the Parties to the dispute and Third Parties; and its findings, and reasons for its findings, under each subparagraph of Article 16.3. Unless the Parties to the dispute agree otherwise, the Panel shall present to the Parties to the dispute an interim report containing its initial assessment within 60 days of the date it reconvened and a final report to the Parties to the dispute within 30 days of presentation of the interim report.
33. A Panel reconvened in accordance with Article 17.9(a) shall provide its assessment to the Parties to the dispute within 30 days of the date it reconvened, unless the Parties to the dispute agree otherwise. Where a Panel reconvenes pursuant to Article 17.9(b), Article 16.2 and 16.3 shall apply.
Venue
34. The venue for the Panel hearings shall be decided by mutual agreement between the Parties to the dispute. If there is no agreement, the venue shall alternate between the capitals of the Parties to the dispute with the first hearing to be held in the capital of the Party complained against.
Remuneration and Payment of Expenses
35. The Panel shall keep a record and render a final account of all general expenses incurred in connection with the proceedings, including those paid to its assistants, designated note takers or other individuals that it retains pursuant to Rule 8.
Chapter 15. Final Provisions
Article 1. Annexes, Appendices and Footnotes
The annexes, appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 2. Application
Each Party is fully responsible for the observance of all provisions in this Agreement and shall take such reasonable measures as may be available to it to ensure their observance by its regional and local governments and authorities and non-governmental bodies (in the exercise of governmental powers delegated to them) within its territory.
Article 3. Relation to other Agreements
1. In respect of matters within the scope of this Agreement, each Party reaffirms its rights and obligations under other agreements to which one or more other Parties are party, including under the WTO Agreement in the case of a WTO Member.
2. Nothing in this Agreement shall be construed to derogate from any right or obligation a Party has under existing agreements to which one or more other Parties are party, including under the WTO Agreement in the case of a WTO Member.
3. In the event of any inconsistency between this Agreement and any other agreement to which two or more Parties are party, such Parties shall consult with a view to finding a mutually satisfactory solution, taking into account applicable principles of international law. Notwithstanding the preceding sentence, the provisions of this Agreement, upon entry into force, shall, as between the Parties hereto, prevail to the extent of any inconsistency over the provisions of the South Pacific Regional Trade and Economic Cooperation Agreement (SPARTECA). (1)
4. Nothing in this Agreement shall prevent any Party from entering into any agreement with one or more other Parties relating to trade in goods, trade in services, investment or other areas of economic cooperation.
Article 4. Amended or Successor International Agreements
If any international agreement, or a provision therein, referred to in this Agreement (or incorporated into this Agreement) is amended, the Parties shall consult on whether it is necessary to amend this Agreement, unless this Agreement provides otherwise.
Article 5. Disclosure of Information
Unless otherwise provided in this Agreement, nothing in this Agreement shall be construed to require any Party to provide or allow access to information, the disclosure of which it considers would be contrary to the public interest as determined by its domestic law, be contrary to any of its legislation, impede law enforcement, or prejudice legitimate commercial interests of particular enterprises, public or private.
Article 6. Confidentiality
Unless otherwise provided in this Agreement, where a Party provides information to another Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information, except to the extent that the Party receiving the information is required to provide the information under its domestic law.
Article 7. Amendments
This Agreement may be amended by agreement in writing by the Parties and such amendments shall come into force on such date or dates as may be agreed among them.
Article 8. Entry Into Force
1. This Agreement shall enter into force 60 days after the date on which no fewer than eight negotiating Parties have notified the Depositary in writing of the completion of their internal requirements. (2)
2. After the date of entry into force of this Agreement in accordance with paragraph 1, this Agreement shall enter into force for any other signatory 60 days after the date on which such signatory has notified the Depositary in writing of the completion of its internal requirements.
Article 9. Accession
1. This Agreement shall be open to accession or association by a State, separate customs territory or self-governing entity as the Parties may agree.
2. An applicant for accession shall accept all of the provisions of this Agreement and its Annexes.
3. The applicant for accession shall enter into negotiations with the Parties on Schedules of Commitments on Tariffs (Chapter 2), Trade in Services (Chapter 7), Movement of Natural Persons (Chapter 8) and Investment (Chapter 9) on terms to be agreed between the Parties.
4. The Agreement shall enter into force for an accession applicant 60 days after it has deposited an instrument of accession with the Depositary indicating that it accepts the terms and conditions for the accession, and the Parties have notified the Depositary in writing of the completion of their internal requirements with respect to the accession.
5. Notwithstanding paragraphs 2 and 3, Forum Island Countries which had participated in the PACER Plus negotiations but were unable to sign by the time that the Agreement entered into force, can accede to it on an expedited basis following agreement with the Parties on its Schedules of Commitments on Tariffs (Chapter 2), Trade in Services (Chapter 7), Movement of Natural Persons (Chapter 8) and Investment (Chapter 9).
Article 10. Depositary
1. Tonga shall be the Depositary for this Agreement.
2. The Depositary shall:
(a) Register this Agreement pursuant to Article 102 of the Charter of the United Nations Charter;
(b) Transmit certified copies of this Agreement to all of the Parties; and
(c) Notify all of the Parties of signatures, acceptances, ratifications, accessions to, and withdrawals from, this Agreement.
Article 11. Withdrawal and Termination
1. Any Party may withdraw from this Agreement by giving six months advance notice in writing to the other Parties.
2. This Agreement shall terminate if, pursuant to paragraph 1, more than half of the Parties have notified their withdrawal from it.
Conclusion
In witness whereof the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Nuku'alofa the fourteenth day of June, two thousand and seventeen, in one copy in the English language.
Australia
The Cook Islands
The Federated States of Micronesia
Independent and Sovereign Republic of Kiribati
The Republic of Nauru
New Zealand
Niue
The Republic of Palau
The Republic of the Marshall Islands
The Independent State of Samoa
Solomon Islands
The Kingdom of Tonga
Tuvalu
The Republic of Vanuatu