Article 18.6. Establishment of an Arbitral Tribunal
1.The complaining Party may request in writing to the Party complained about the establishment of an arbitral tribunal, when:
(a) The Commission has not met within 10 days after receipt of the request for intervention, or within another period agreed by the Parties, in accordance with Article 18.5.3;
(b) The matter has not been resolved within 30 days after the Commission meeting, in accordance with Article 18.5.3;
(c) Two or more procedures have been accumulated pursuant to Article 18.5.4 and the matter has not been resolved within 30 days to the meeting of the Commission in the most recent proceeding that has been accumulated, or
(d) The matter has not been resolved within any other period that the Parties have agreed.
2.In the request for the establishment of an arbitral tribunal, the complaining Party shall indicate the reasons for its request, including the identification of the measure or other matter in question and the indication of the legal bases for the claim.
3.A Party may not request the establishment of an arbitral tribunal to examine a proposed measure .
Article 18.7. Terms of Reference of the Arbitral Tribunal
1. Unless the Parties agree otherwise within 15 days of receipt of the request for the establishment of the arbitral tribunal, the terms of reference of the arbitral tribunal will be:
"Examine, objectively and in light of the pertinent provisions of the Agreement, the matter referred to in the request for the establishment of the arbitral tribunal and formulate conclusions, resolutions and recommendations in accordance with the provisions of Articles 18.12 and 18.13."
2. If the complaining Party alleges in the request for the establishment of the arbitral tribunal that a matter has been cause of nullification or impairment of benefits in accordance with Article 18.2 (c), the terms of reference must expressly indicate so.
3. When the complaining Party requires, in the request for the establishment of the arbitral tribunal, that it formulate conclusions on the degree of the adverse commercial effects that the breach of the obligations of this Agreement has generated, the terms of reference must expressly indicate this.
Article 18.8. Requirements of the Arbitrators
1. All arbitrators must:
(a) Have specialized knowledge or experience in law, international trade, matters related to the matters contained in this Agreement or in the resolution of controversies derived from international commercial agreements ;
(b) Be selected strictly on the basis of their objectivity, impartiality, reliability, and good judgment;
(c) Be independent, have no relationship with any of the Parties and do not receive instructions from them , and
(d) Comply with the Code of Conduct adopted by the Commission.
2. The persons who have participated in any of the alternative means of dispute settlement referred to in Articles 18.5.3 (b) or 18.20 may not act as arbitrators in the same dispute .
Article 18.9. Selection of the Arbitral Tribunal
1. The arbitral tribunal shall be composed of three arbitrators.
2. Each Party, within 20 days of receiving the request for the establishment of the arbitral tribunal, shall designate an arbitrator, who may be its national, and propose up to four candidates to act as president of the arbitral tribunal. The president of the arbitral tribunal may not be a national or have his permanent residence in the territory of any of the Parties. This information will be notified in writing to the other Party.
3. If a Party does not appoint an arbitrator within the time period stipulated in paragraph 2, the arbitrator will be selected by the other Party from the indicative list of experts who may be members of WTO panels in respect of the Party that it did not designate. In the event that the candidates on that list are not available, the arbitrator will be selected from among the candidates on the indicative list of experts who may be members of WTO panels for any of the Members other than the Parties.
4. The Parties, within 20 days after the expiration of the term established in paragraph 2, shall designate by common agreement the president of the arbitral tribunal from among the candidates proposed by them. If after this period the Parties do not reach an agreement, the president will be selected from among the proposed candidates through a lottery carried out by the Director General of the WTO at the request of any of the Parties within the following 30 days .
5. If an arbitrator resigns or is otherwise unable to fulfill his function, a successor will be selected in accordance with the provisions of this Article. Any term of the procedure will be suspended, from the date on which the arbitrator resigns or is otherwise unable to fulfill his function, until the date of selection of the successor. The successor will assume the role and obligations of the original arbitrator .
6. Any Party may challenge an arbitrator or candidate in accordance with the provisions of the rules of procedure of the arbitral tribunals.
Article 18.10. Role of the Arbitral Tribunal
1. The function of an arbitral tribunal is to make an objective assessment of the matter has been submitted to it, including an analysis of the facts of the case and the applicability and conformity with the present Agreement, and issue the findings, determinations and recommendations that are requested in its terms of reference and that are necessary for the resolution of the dispute.
2.The arbitral tribunal shall interpret this Agreement in accordance with international law, as established in Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 1969. With respect to any provision of the WTO Agreement that has been made incorporated into this Agreement, the arbitral tribunal will also consider the relevant interpretations contained in the WTO panel and Appellate Body reports, adopted by the WTO Dispute Settlement Body. The conclusions, determinations and recommendations of the arbitral tribunal may not increase or reduce the rights and obligations of the Parties under this Agreement.
Article 18.11. Rules of Procedure of the Arbitral Tribunal
1. Within the six months following the date of entry into force of this Agreement, the Commission shall adopt the rules of procedure of the arbitral tribunal.
2. Unless the Parties agree otherwise, an arbitral tribunal established in accordance with this Chapter shall follow the rules of procedure. An arbitral tribunal may establish, in consultation with the Parties, supplementary rules of procedure that do not conflict with the provisions of this Agreement and with the rules of procedure.
3. The rules of procedure of the arbitral tribunal shall guarantee:
(a) The opportunity for each Party to present at least initial and reply arguments in writing;
(b) The right of each Party to at least one hearing before the arbitral tribunal;
(c) The right of each Party to present oral arguments ;
(d) That the hearings be closed to the public, unless the Parties agree otherwise .
(e) That the deliberations of the arbitral tribunal be confidential, as well as the documents and writings classified as confidential or reserved by any of the Parties, and
(f) The protection of the information that either of the Parties designates as confidential or reserved information.
4. No However the provisions of paragraph 3, any Party may make public statements about their views on the difference, but treated as confidential or proprietary information, documents and papers delivered by the other party to the arbitral tribunal and that it has classified as confidential or reserved.
5. When a Party has provided information, documents or writings classified as confidential or reserved, that Party shall, within 30 days following the request of the other Party, deliver a non-confidential or non-confidential summary of such information, documents or written, which may be made public.
6. After notifying the Parties, the arbitral tribunal may, at the request of one of the Parties, or on its own initiative, collect information and request technical advice from any person or entity it deems pertinent in accordance with the rules of procedure and whatever the Parties agree within 10 days of notification. In the absence of an agreement between the Parties, the arbitral tribunal shall establish said terms. The arbitral tribunal shall provide the Parties with a copy of any opinion or advice obtained and an opportunity to comment.
7. The arbitral tribunal will seek to adopt its decisions unanimously, including its award. If this is not possible, the arbitral tribunal may adopt them by majority.
8.Each Party shall bear the cost of the arbitrators appointed by it, as well as their expenses. The cost of the president of the arbitral tribunal and other expenses associated with the development of the procedure will be assumed by the Parties in equal proportions, in accordance with the rules of procedure.
Article 18.12. Draft Award of the Arbitral Tribunal
1. The arbitral tribunal shall notify the Parties of its draft award within 90 days from the date of appointment of the last arbitrator, unless the Parties agree on a different term.
2. In urgent cases, the arbitral tribunal shall notify the Parties of its draft award within 60 days from the date of appointment of the last arbitrator, unless the Parties agree on a different term.
3. In exceptional cases, if the arbitral tribunal considers that it cannot issue the draft award within a period of 90 or 60 days or another that the Parties have agreed, as appropriate, it must inform the Parties in writing of the reasons that justify the delay together with an estimate of the term in which you will issue your draft award. Any delay shall not exceed a period of 30 days, unless the Parties agree on a different period.
4. The arbitral tribunal shall base its draft award on the relevant provisions of this Agreement, in accordance with international law, on the written and oral arguments of the Parties, as well as on any information and technical advice that it has received pursuant to this Agreement.
5. The draft award will contain:
(a) A summary of the briefs and oral arguments presented;
(b) Conclusions based on fact and law;
(c) Determinations as to whether or not a Party has complied with its obligations under this Agreement, or whether the measure in question is cause for nullification or impairment within the meaning of Article 18.2 (c), or any other determination requested in the terms of reference;
(d) Its recommendations, when applicable, for the Party complained to bring its measures into conformity with this Agreement. Likewise, it may suggest the way in which the Party complained against may implement the award.
6. The conclusions and determinations of the arbitral tribunal and, when applicable, any recommendations, may not increase or decrease the rights and obligations of the Parties established in this Agreement.
7. Either Party may submit written observations to the draft award to the arbitral tribunal, within the 15 days following its notification, or within any other period established by the arbitral tribunal.
8. After considering these observations, the arbitral tribunal may reconsider its draft award and carry out any subsequent examination it deems pertinent.
Article 18.13. Award of the Arbitral Tribunal
1. The arbitral tribunal shall notify the Parties of the award and, if applicable, the divergent opinions on matters in which there has not been a unanimous decision, within 30 days following the notification of the draft award, unless the Parties agree on a different term .
2. The award of the arbitral tribunal shall be final and binding on the Parties. 3. Unless the Parties agree otherwise, any of them may publish the award of the arbitral tribunal after 15 days of being notified, subject to the protection of confidential or reserved information.
4. The arbitral tribunal may not reveal the identity of the arbitrators who voted with the majority or the minority.
Article 18.14. Request for Clarification of the Award
1. Within 10 days of notification of the award, any Party may request in writing to the arbitral tribunal the clarification of any conclusion, determination or recommendation of the award.
2. The arbitral tribunal will respond to said request within 10 days ofits presentation.
3. The presentation of an application under paragraph 1 will not affect the time limits referred to in Article 18.17.
Article 18.15. Suspension and Termination of the Procedure
1. The Parties may agree to suspend the work of the arbitral tribunal at any time during the procedure, up to a period of 12 months following the date on which said agreement has been reached. If the work of the arbitral tribunal remains suspended for more than 12 months, the terms of reference of the arbitral tribunal will be void, unless the Parties agree otherwise. If the terms of reference of the arbitral tribunal have been rendered ineffective and the Parties have not reached a solution in the dispute, nothing in this Article shall prevent a Party from initiating a new proceeding regarding the same matter.
2. The Parties may terminate the proceedings before the arbitral tribunal at any time, prior to the presentation of the award, by means of a joint communication addressed to the president of the arbitral tribunal.
Article 18.16. Compliance with the Award of the Arbitral Tribunal
1. Once the award of the arbitral tribunal has been notified, the Parties shall reach an agreement on its compliance, in the terms of the determinations, conclusions and recommendations made by the arbitral tribunal.
2. When, in the award, the arbitral tribunal determines that the measure of the claimed Party is inconsistent with the provisions of this Agreement or that it is cause for nullification or impairment in the sense of Article 18.2 (c), that Party shall, provided that where possible, eliminate the non-compliance, nullification or impairment.
Article 18.17. Compensation or Suspension of Benefits
1. If the Parties do not reach an agreement on compliance with the award or a mutually satisfactory solution to the dispute within 45 days of notification of the award, the Party complained against, at the request of the complaining Party, shall initiate negotiations with you aim to establish a mutually acceptable compensation. Such compensation will be temporary and will be granted until the difference is resolved.
2. If no compensation has been requested or if the Parties:
(a) Have not reached an agreement on compliance with the award or a mutually satisfactory resolution of the dispute, within 45 days of notification of the award;
(b) Failure to agree to compensation pursuant to paragraph 1, within 30 days of the complaining Party's request for compensation, or
(c) Have reached an agreement on compliance with the award or on a mutually satisfactory solution of the dispute or on compensation in accordance with this Article and the complaining Party considers that the Party complained against has not complied with the terms of the agreement reached,
The complaining Party may, at any time, after notifying the Party complained of, initiate the suspension of benefits and other equivalent obligations provided for in this Agreement to said Party complained against in order to obtain compliance with the award. The level of suspension shall be equivalent to the level of nullification or impairment.
3. In the notification to initiate the suspension, the complaining Party shall specify the date on which said suspension will take effect, the level of concessions or other equivalent obligations that it proposes to suspend, and the limits within which the suspension of benefits or other obligations will apply. The suspension of benefits or other obligations will not take effect before 30 days following said notification.
4. When considering the benefits or other obligations to be suspended in accordance with this Article:
(a) The complaining Party shall seek, in the first place, to suspend benefits or other obligations in the same sector or sectors that are affected by the measure that the arbitral tribunal has concluded is inconsistent with this Agreement or that causes nullification or impairment in the meaning of Article 18.2 (c), and
(b) If the complaining Party considers that it is not feasible or effective to suspend benefits or other obligations within the same sector or sectors, it may suspend benefits or other obligations in another sector or sectors. The complaining Party shall indicate the reasons on which such decision is based on the notification to initiate the suspension.
5.The suspension of benefits or other obligations will be temporary and the complaining Party will only apply it until :
(a) The measure deemed inconsistent is brought into conformity with this Agreement or the nullification or impairment is removed within the meaning of Article 18.2 (c);
(b)The arbitral tribunal provided for in Article 18.19 concludes in its award that the Party complained against has complied, or
(c) Until the Parties reach an agreement regarding the solution of the dispute.
Article 18.18. Emergency Cases
1. In urgent cases, (1) the terms established in this Chapter shall be reduced by half, unless something different is established in it.
2. Notwithstanding the provisions of Article 18.12.2, the arbitral tribunal shall apply the term established in Article 18.12.1, when the complaining Party so indicates in the request for the establishment of the arbitral tribunal.
Article 18.19. Examination of Compliance and Suspension of Benefits
1.Either Party may, by written communication to the other Party, request that the original arbitral tribunal established in accordance with Article 18.6 be reconstituted to determine indistinctly or jointly:
(a) If the level of suspension of benefits or other obligations applied by the complaining Party in accordance with Article 18.17 is excessive, or
(b) Regarding any disagreement between the Parties regarding the existence of measures adopted to comply with the award of the arbitral tribunal, or regarding the compatibility of any measure adopted to comply.
2. In the request, the requesting Party shall indicate the specific measures or issues in dispute and provide a brief summary of the legal basis for the claim that is sufficient to present the problem clearly.
3. The arbitral tribunal will be reconstituted after receipt of the request and will present its draft award to the Parties within :
(a) Within 45 days of reconstitution to examine the application pursuant to paragraph 1 (a) or 1 (b), or
(b) The 60 days following its reconstitution to examine the application, in accordance with paragraph 1 (a) and 1 (b).
4. The arbitral tribunal shall present its award to the Parties within :
(a) Within 15 days of the presentation of the draft award, in cases where the request is examined pursuant to paragraph 1 (a) or 1 (b), or
(b) The 20 days following the presentation of the draft award, in the cases that the request is examined in accordance with paragraph 1 (a) and 1 (b).
5. If any of the original arbitrators cannot be part of the arbitral tribunal, the provisions of Article 18.6 will apply.
6. If the tribunal arbitral who knows of one case in accordance with the paragraph 1 (a) decides that the level of benefits or other suspended obligations is excessive, will set the level that it considers of equivalent effect. In this case, the complaining Party will adjust the suspension that is being applied to that level.
7. If the tribunal arbitral who knows of one case in accordance with the paragraph 1 (b) decides that the Party complained against has complied, the complaining Party will immediately terminate the suspension of benefits or other obligations.
Article 18.20. Good Offices, Conciliation and Mediation
1. The Parties may at any time agree to the use of alternative means of dispute settlement, such as good offices, conciliation or mediation.
2. Such alternative means of dispute settlement shall be conducted in accordance with the procedures agreed by the Parties.
3. Either Party may initiate, suspend or terminate the procedures established by virtue of this Article at any time.
4. The procedures of good offices, conciliation and mediation are confidential and without prejudice to the rights of the Parties in any other procedure.
Article 18.21. Administration of Dispute Settlement Procedures
1. Each Party shall:
(a) Designate a permanent office to provide administrative support to the arbitration tribunals contemplated in this Chapter and perform other functions under the instruction of the Commission, and
(b) Notify the Commission of the address of its designated office and the official in charge of its administration.
2. Each Party shall be responsible for the operation of its designated office.
Annex 18.2. Nullification or Impairment
A Party may resort to the dispute settlement mechanism of this Chapter when, by virtue of the application of a measure that does not contravene this Agreement, it considers that the benefits that it could reasonably have expected to receive from the application of the following are nullified or impaired Chapters:
1. Trade in Goods.
2. Sanitary and Phytosanitary Measures.
3. Technical Barriers to Trade.
4. Cross-Border Trade in Services.
Chapter 19. GENERAL EXCEPTIONS AND PROVISIONS
Section A. Exceptions
Article 19.1. General Exceptions
1.For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Trade Facilitation), Chapter 5 (Sanitary and Phytosanitary Measures) and Chapter 6 (Technical Barriers to Trade), Article XX of the GATT 1994 and its notes Interpretative statements are incorporated into and are part of this Agreement, mutatis mutandis.
2. For the purposes of this Agreement, the Parties understand that the measures referred to in Article XX (b) of the GATT 1994 include measures in environmental matters necessary to protect human, animal or plant life or health, and that Article XX (g) of the GATT 1994 applies to measures related to the conservation of exhaustible natural resources.
3. For the purposes of Chapter 7 (Cross-Border Trade in Services) and Chapter 8 (Electronic Commerce) (1), paragraphs (a), (b) and (c) of Article XIV of the GATS are incorporated into this Agreement and form part of the same, mutatis mutandis . The Parties understand that the measures referred to in Article XIV (b) of the GATS include measures in environmental matters necessary to protect human, animal or plant life or health.
4. Nothing in this Agreement shall be construed as preventing a Party from adopting a measure, including maintaining or increasing a customs duty, that is authorized by the Dispute Settlement Body of the WTO or that is taken as The result of a decision by a dispute settlement panel under a free trade agreement to which the Party adopting the measure and the Party against which the measure is taken are parties.
Article 19.2. Security Exceptions
1. For the purposes of this Agreement, Articles XXI of the GATT 1994 and XIV bis of the GATS are incorporated into and form part of it , mutatis mutandis.
2. Nothing in this Agreement shall be construed in the sense of:
(a) Require a Party to provide or allow access to any information the disclosure of which it considers contrary to its essential security interests, or
(b) Prevent a Party from applying measures it deems necessary to fulfill its obligations with respect to the maintenance or restoration of international peace or security, or for the protection of its own essential security interests .
Article 19.3. Temporary Safeguard Measures
1. Nothing in this Agreement shall be construed as preventing a Party from adopting or maintaining measures that restrict payments or transfers for current account transactions in the event of experiencing serious difficulties in its balance of payments and external finances, or threats to them.
2. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures that restrict payments or transfers related to capital movements :
(a) In the event of serious difficulties in its balance of payments and its external finances, or threats to them, or
(b) When, in exceptional circumstances, payments or capital transfers cause or threaten to cause serious difficulties for macroeconomic management.
3. Any measure adopted or maintained pursuant to paragraphs 1 or 2 shall:
(a) Be applied in a non-discriminatory manner so that no Party receives less favorable treatment than any other non- Party;
(b) Be compatible with the Articles of Agreement of the International Monetary Fund ;
(c) Avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(d) Not go beyond what is necessary to overcome the circumstances set forth in paragraphs 1 or 2;
(e) Be temporary and be phased out as soon as the situations specified in paragraphs 1 or 2 improve.
4. With respect to trade in goods, no provision of this Agreement shall be construed as preventing a Party from adopting restrictive measures on imports in order to safeguard its external financial position or balance of payments. These restrictive measures on imports must be consistent with the GATT 1994 and the Understanding on the Provisions of the GATT 1994 on Balance of Payments.
5. With respect to trade in services, nothing in this Agreement shall be construed as preventing a Party from adopting trade restrictive measures in order to safeguard its external financial position or balance of payments. These restrictive measures must be consistent with the GATS.
6. A Party that adopts or maintains measures pursuant to paragraphs 1, 2, 4 or 5 shall:
(a) Promptly notify the other Party of the measures adopted, including any modification in them;
(b) Promptly initiate consultations with the other Party to examine the measures adopted or maintained by it.