3. The Parties shall:
(a) provide such information as may permit consideration of how the adopted or proposed measure, or any other matter, could affect the operation of this Agreement; and
(b) treat confidential information exchanged in the course of consultations in the same manner as the Party that provided it.
Article 19-05. Intervention by the Commission, Good Offices, Conciliation and Mediation.
1. Any Party may request in writing that the Commission be convened if a matter is not resolved pursuant to Article 19-04 within 45 days after delivery of the request for consultations.
2. A Party may also request in writing that the Commission be convened when consultations have been held pursuant to paragraph 5 of Article 4-21 (Technical Consultations) and paragraph 4 of Article 13-19 (Technical Consultations).
3. The Party initiating the procedure shall mention in the request the measure or other matter that is the subject of the complaint, indicate the provisions of this Agreement that it considers applicable and deliver the request to its national section of the Secretariat and to the other Party.
4. The Commission shall meet within 10 days of delivery of the request and, with a view to reaching a mutually satisfactory resolution of the dispute, may:
(a) convene technical advisors or establish such working or expert groups as it deems necessary;
(b) resort to good offices, conciliation, mediation or other dispute settlement procedures; or
(c) make recommendations.
Article 19-06. Request for the Integration of the Arbitral Tribunal.
1. Where the Commission has met pursuant to paragraph 4 of Article 19-05 and the matter has not been resolved within 45 days after the meeting, any Party may request in writing the establishment of an arbitral tribunal. The requesting Party shall deliver the request to its national section of the Secretariat and to the other Party.
2. Upon delivery of the request, the Commission shall establish an arbitral tribunal.
3. Unless otherwise agreed by the Parties, the arbitral tribunal shall be constituted and perform its functions in accordance with the provisions of this Chapter.
Article 19-07. List of Arbitrators.
1. The Commission shall draw up a list of up to 20 arbitrators who are qualified and willing to serve as arbitrators.
2. The members of the list shall:
(a) have expertise or experience in law, international trade, other matters related to this Agreement, or in the settlement of disputes arising out of international trade agreements;
(b) be selected strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, not bound by, and not receive instructions from, the Parties; and
(d) comply with the code of conduct established by the Commission.
Article 19-08. Qualifications of Arbitrators.
1. All arbitrators shall meet the qualifications stipulated in paragraph 2 of Article 19-07.
2. Individuals who have been involved in a dispute, in terms of paragraph 4 of article 19-05, may not be arbitrators for the same dispute.
Article 19-09. Constitution of the Arbitral Tribunal.
1. The arbitral tribunal shall be composed of five members.
2. The Parties shall endeavor to appoint the chairman of the arbitral tribunal within 15 days of the delivery of the request for the constitution of the arbitral tribunal. If the Parties fail to reach agreement within this period, one of them, chosen by lot, shall designate the chairman within 5 days. The individual designated as chairman of the arbitral tribunal may not be of the nationality of the appointing Party.
3. Within 15 days of the election of the chairman, each Party shall select from the list two arbitrators who are nationals of the other Party.
4. If a Party fails to select an arbitrator within that period, the arbitrator shall be selected by lot from among the members of the roster who are nationals of the other Party.
5. Within 15 days after the proposal is made, any Party may file a challenge, without stating a reason, against any individual not on the list who is proposed by a Party as an arbitrator.
6. Where a Party considers that an arbitrator has committed a violation of the code of conduct, the Parties shall consult and, if agreed, remove that arbitrator and select a new arbitrator in accordance with the provisions of this Article.
Article 19-10. Model Rules of Procedure.
1. The Commission shall establish model rules of procedure, in accordance with the following principles:
(a) the procedures shall guarantee the right to a hearing before the arbitral tribunal, as well as the opportunity to present written pleadings and rebuttals; and
(b) the hearings before the arbitral tribunal, the deliberations and the preliminary decision, as well as all written submissions and communications with the arbitral tribunal, shall be confidential.
2. Unless otherwise agreed by the Parties, the proceedings before the arbitral tribunal shall be governed by the Model Rules of Procedure.
3. The mission of the arbitral tribunal, contained in the Terms of Reference, shall be:
"To examine, in the light of the applicable provisions of this Treaty, the matter submitted to the Commission under the terms of the request for the meeting of the Commission and to issue the decisions referred to in Article 19-12, paragraph 2, and Article 19-13."
4. If the complaining Party alleges that a matter has caused nullification or impairment of benefits, the mission report shall so state.
5. Where a Party requests that the arbitral tribunal make findings on the extent of the adverse trade effects on any Party of the measure found to be inconsistent with this Agreement or to have caused nullification or impairment within the meaning of the Annex to Article 19-02, the Terms of Reference shall so state.
Article 19-11. Role of Experts.
At the request of a Party or on its own motion, the arbitral tribunal may seek information and technical advice from such persons or groups as it deems appropriate.
Article 19-12. Preliminary Decision.
1. The arbitral tribunal shall base its preliminary decision on the arguments and submissions made by the Parties and on any information it has received pursuant to Article 19-11.
2. Unless otherwise agreed by the Parties, within 90 days after the appointment of the last arbitrator, the arbitral tribunal shall submit to the Parties a preliminary decision containing:
(a) findings of fact, including any arising from a request pursuant to paragraph 5 of Article 19-10;
(b) a determination as to whether the measure at issue is or may be inconsistent with the obligations under this Agreement, or is a cause for nullification or impairment within the meaning of the Annex to Article 19-02; and
(c) the draft decision.
3. The arbitrators may formulate individual opinions on matters on which there is no unanimous decision.
4. The Parties may submit written comments to the arbitral tribunal on the preliminary decision within 14 days of its submission.
5. In such a case and after considering the written observations, the arbitral tribunal may, on its own motion or at the request of any Party:
(a) take any steps it considers appropriate; and
(b) reconsider its preliminary decision.
Article 19-13. Final Decision.
1. The arbitral tribunal shall submit to the Commission a final decision and, where appropriate, individual opinions on the issues on which there has been no unanimous decision, within 30 days of the submission of the preliminary decision.
2. Neither the preliminary decision nor the final decision shall disclose the identity of the arbitrators who voted with the majority or with the minority.
3. The final decision of the arbitral tribunal shall be published 15 days after its communication to the Commission.
Article 19-14. Compliance with the Final Decision.
1. The final decision of the arbitral tribunal shall be binding on the Parties. The Parties shall comply with the final decision of the arbitral tribunal in the terms and within the time limits ordered by the arbitral tribunal.
2. Where the final decision of the arbitral tribunal declares that the measure is incompatible with this Agreement, the Party complained against shall, whenever possible, refrain from implementing the measure or repeal it.
3. Where the decision of the arbitral tribunal finds that the measure is a cause for nullification or impairment within the meaning of the Annex to Article 19-02, it shall determine the level of nullification or impairment and may suggest adjustments mutually satisfactory to the Parties.
Article 19-15. Non-compliance - Suspension of Benefits.
1. The complaining Party may suspend the application of benefits of equivalent effect to the Party complained against if the arbitral tribunal determines:
(a) that a measure is inconsistent with the obligations under this Agreement and the Party complained against fails to comply with the final decision within the period of time fixed by the arbitral tribunal; or
(b) that a measure is a ground for nullification or impairment within the meaning of the Annex to Article 19-02 and the Parties fail to reach a mutually satisfactory settlement of the dispute within the period of time fixed by the arbitral tribunal.
2. The suspension of benefits shall last until the Party complained against complies with the final decision of the arbitral tribunal or until the Parties reach a mutually satisfactory settlement of the dispute, as the case may be.
3. In considering the benefits to be suspended pursuant to paragraph 1, the Party shall actually:
(a) shall first seek to suspend benefits within the same sector or sectors that are affected by the measure, or by another matter that the arbitral tribunal has found to be inconsistent with the obligations under this Agreement, or to have been a cause of nullification or impairment within the meaning of the Annex to Article 19-02; and
(b) may suspend benefits in other sectors when it considers that it is not practicable or effective to suspend benefits in the same sector or sectors.
4. At the written request of any Party, notified to the other Party and its national section of the Secretariat, the Commission shall establish an arbitral tribunal to determine whether the level of benefits suspended by the complaining Party pursuant to paragraph 1 is manifestly excessive.
5. The proceedings before the arbitral tribunal constituted for the purposes of paragraph 4 shall be conducted in accordance with the model rules of procedure. The arbitral tribunal shall render its final decision within 60 days after the last arbitrator has been chosen, or within such other period of time as the Parties may agree.
Article 19-16. Interpretation of the Treaty Before Domestic Judicial and Administrative Bodies.
1. Where a question of interpretation or application of this Agreement arises in a domestic judicial or administrative proceeding of a Party and the other Party considers that it warrants its intervention, or where a judicial or administrative body of a Party requests the opinion of the other Party, the Party in whose territory that body is located shall notify the other Party and its national section of the Secretariat. The Commission shall endeavor, as soon as possible, to agree on an appropriate response.
2. The Party in whose territory the judicial or administrative body is located shall submit to them any interpretation agreed upon by the Commission, in accordance with the procedures of that body.
3. Where the Commission is unable to reach agreement, either Party may submit its own opinion to the judicial or administrative body, in accordance with the procedures of that body.
Article 19-17. Alternative Means of Dispute Settlement.
1. To the extent possible, each Party shall promote and facilitate recourse to arbitration and other alternative means for the settlement of international commercial disputes between private parties.
2. To this end, each Party shall have appropriate procedures to ensure the observance of arbitration agreements and the recognition and enforcement of arbitral awards rendered in such disputes.
3. The Commission may establish an Advisory Working Group on Private Commercial Disputes, composed of persons with expertise or experience in the settlement of private international commercial disputes. The Working Group shall submit reports and recommendations of a general nature to the Commission on the existence, use and effectiveness of arbitration and other procedures for the settlement of such disputes.
Annex to Article 19-02. Nullification and Impairment
1. A Party may have recourse to the dispute settlement mechanism of this Chapter where, by virtue of the application of a measure that does not contravene the Agreement, it considers that the benefits it could reasonably have expected to accrue from the application are nullified or impaired:
(a) of Part Two (Trade in Goods);
(b) Chapter IX (General Principles on Trade in Services);
(c) Chapter XIII (Standardization Measures);
(d) Chapter XIV (Government Procurement); or
(e) Chapter XVI (Intellectual Property).
2. With respect to measures subject to an exception under Article 20-01 (General Exceptions), a Party may not invoke:
(a) paragraph 1(a) to the extent that the benefit derives from any provision relating to cross-border trade in services of Part Two (Trade in Goods);
(b) paragraph 1(b);
(c) paragraph 1(c) to the extent that the benefit derives from any provision relating to cross-border trade in services in Chapter XIII (Standardization Measures);
(d) paragraph 1(d); or
(e) paragraph 1(e).
Chapter XX. Exceptions
Article 20-01. General Exceptions.
1. Article XX of the GATT and Its interpretative notes are hereby incorporated into and made an integral part of this Agreement for purposes of:
(a) Part Two (Trade in Goods), except to the extent that any of its provisions apply to services or investment; and.
(b) Part Four (Technical Barriers to Trade), except to the extent that any provision thereof applies to services.
2. Nothing in Part Two (Trade in Goods), Part Four (Technical Barriers to Trade), and Chapters IX (General Principles on Trade in Services) and X (Telecommunications) shall be construed to prevent any Party from adopting or enforcing measures necessary to:
(a) protect public morals or maintain public order;
(b) to protect human, animal or plant life or health, or to preserve plant life or health; or
(c) to secure compliance with laws and regulations not inconsistent with the provisions of this Treaty, including those relating to:
(i) the prevention of deceptive and fraudulent practices or the means of dealing with the effects of non- performance of service contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of the confidentiality of individual records and accounts; and
(iii) security;
provided that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on trade between the Parties.
Article 20-02. National Security.
1. In addition to the provisions of Article 14-18 (Exceptions), nothing in this Agreement shall be construed to:
(a) compel a Party to provide or give access to information the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any measure that it considers necessary to protect its essential security interests:
(i) relating to trade in armaments, munitions and war materiel and to trade and transactions in goods, materials, services and technology carried out for the direct or indirect purpose of providing supplies to a military institution or other defense establishment;
(ii) adopted in time of war or other emergencies in international relations;
(iii) relating to the implementation of national policies or international agreements relating to the non- proliferation of nuclear weapons or other nuclear explosive devices; or
c) to prevent any Party from taking measures in accordance with its obligations under the United Nations Charter for the Maintenance of International Peace and Security.
Article 20-03. Exceptions to Disclosure of Information.
Nothing in this Treaty shall be construed to require a Party to furnish or give access to information the disclosure of which would impede compliance with or be contrary to its Constitution or laws regarding, inter alia, the protection of privacy of individuals, financial affairs and bank accounts of individual customers of financial institutions.
Chapter XXI. Final Provisions
Article 21-01. Annexes.
The annexes to this Agreement constitute an integral part of the same.
Article 21-02. Amendments.
1. The Parties may agree on any modification or addition to this Agreement.
2. The agreed modifications and additions shall enter into force once they are approved according to the corresponding legal procedures of each Party and shall constitute an integral part of this Agreement.
Article 21-03. Convergence.
The Parties shall promote the convergence of this Treaty with other integration agreements of Latin American countries, in accordance with the mechanisms established in the Treaty of Montevideo 1980.
Article 21-04. Entry Into Force.
This Treaty shall enter into force on January 1, 1995, once the communications certifying that the necessary legal formalities have been completed have been exchanged.
Article 21-05. Reservations.
This Treaty may not be the subject of reservations or interpretative declarations at the time of its ratification.
Article 21-06. Accession.
1. Any country or group of countries may accede to this Treaty subject to such terms and conditions as may be agreed between that country or group of countries and the Commission, and once its accession has been approved in accordance with the applicable legal procedures of each country.
2. This Agreement shall not be in force between a Party and any acceding country or group of countries if at the time of accession any one of them does not consent.
3. Accession shall enter into force upon the exchange of communications certifying that the legal formalities have been completed.
Article 21-07. Denunciation.
1. Any Party may denounce this Agreement. The denunciation shall take effect 180 days after communicating it to the other Party, without prejudice that the Parties may agree on a different term.
2. In the case of the accession of a country or group of countries as established in Article 21-06, notwithstanding that a Party has denounced the Treaty, the Treaty shall remain in force for the other Parties.
Article 21-08. Evaluation of the Treaty.
The Parties shall periodically evaluate the development of this Treaty in order to seek its improvement and consolidate the integration process in the region, promoting an active participation of the productive sectors.