Unless the Parties otherwise agree within twenty (20) days after the date of receipt of the request for the establishment of the arbitral tribunal, the terms of reference of the arbitral tribunal shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of an arbitral tribunal pursuant to Article 12.5, to make findings of law and fact and determinations on whether the measure is not in conformity with the Agreement together with the reasons therefore and to issue a written report for the resolution of the dispute. If the Parties agree, the arbitral tribunal may make recommendations for resolution of the dispute."
Article 12.7. Composition of Arbitral Tribunals
1. An arbitral tribunal shall comprise three (3) arbitrators.
2. Each Party shall, within thirty (30) days after the date of receipt of the request for the establishment of an arbitral tribunal, appoint one arbitrator, who may be its national and propose up to three (3) candidates to serve as the third arbitrator, who shall be the chair of the arbitral tribunal. The third arbitrator shall not be a national of either Party, nor have his or her usual place of residence in either Party, nor be employed by either Party, nor have dealt with the dispute in any capacity.
3. The Parties shall agree on and appoint the third arbitrator within forty five (45) days after the date of receipt of the request for the establishment of an arbitral tribunal, taking into account the candidates proposed pursuant to paragraph 2.
4. If any arbitrator has not been designated or appointed within forty five (45) days after the date of receipt of the request for establishment of an arbitral tribunal, upon the request of any Party, the necessary designations shall be made by the Director General of the WTO within a further fifteen (15) days.
5. If the Director General of the WTO has not made the necessary designations pursuant to paragraph 4, the arbitrator or arbitrators not yet appointed shall be chosen within seven (7) days by lot from the candidates proposed pursuant to paragraph 2.
6. All arbitrators shall:
(a) have expertise or experience in law, international trade or other matters covered by this Agreement;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, and not be affiliated with or receive instructions from, the government of either Party; and
(d) comply with a code of conduct, to be provided in the Rules of Procedure referred to in Article 12.14.
7. If an arbitrator appointed under this Article dies, becomes unable to act or resigns, a successor shall be appointed within fifteen (15) days in accordance with the appointment procedure provided for in paragraphs 2, 3 and 4, which shall be applied, respectively, mutatis mutandis. The successor shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended for a period beginning on the date the original arbitrator dies, becomes unable to act or resigns. The work of the arbitral tribunal shall resume on the date the successor is appointed.
Article 12.8. Proceedings of Arbitral Tribunals
1. The arbitral tribunal shall meet in closed session except when meeting with the Parties. The Parties to the dispute shall be present at the meetings only when invited by the arbitral tribunal to appear before it.
2. The Parties shall be given the opportunity to provide at least one (1) written submission and to attend any of the presentations, statements or rebuttals in the proceedings. All information or written submissions submitted by a Party to the arbitral tribunal, including any comments on the draft report and responses to questions raised by the arbitral tribunal, shall be made available to the other Party.
3. The arbitral tribunal should consult with the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory resolution.
4. The arbitral tribunal shall aim to make its decisions, including its report, by consensus but may also make its decisions, including its report, by majority vote.
5. After notifying the Parties, and subject to such terms and conditions as the Parties may agree if any within ten (10) days, the arbitral tribunal may seek information from any relevant source and may consult experts to obtain their opinion or advice on certain aspects of the matter. The arbitral tribunal shall provide the Parties with a copy of any advice or opinion obtained and an opportunity to provide comments.
6. The deliberations of the arbitral tribunal and the documents submitted to it shall be kept confidential.
7. Notwithstanding paragraph 6, either Party may make public statements as to its views regarding the dispute, but shall treat as confidential, information and written submissions submitted by the other Party to the arbitral tribunal which that other Party has designated as confidential. Where a Party has provided information or written submissions designated to be confidential, that Party shall, within thirty (30) days of a request of the other Party, provide a non-confidential summary of the information or written submissions which may be disclosed publicly.
8. Each Party shall bear the cost of its appointed arbitrator and its own expenses. The cost of the chair of an arbitral tribunal and other expenses associated with the conduct of the proceedings shall be borne by the Parties in equal shares.
Article 12.9. Suspension or Termination of Proceedings
1. The Parties may agree that the arbitral tribunal suspends its work at any time for a period not exceeding twelve (12) months from the date of such agreement. In the event of such a suspension, the time-frames set out in Article 12.11(2) (5) and (7) and Article 12.14(7) shall be extended by the amount of time that the work was suspended. If the work of the arbitral tribunal has been suspended for more than twelve (12) months, the authority for establishment of the arbitral tribunal shall lapse, unless the Parties agree otherwise.
2. The Parties may agree to terminate the proceedings of the arbitral tribunal by jointly notifying the chair of the arbitral tribunal at any time before the issuance of the report to the Parties.
Article 12.10. Report
1. The report of the arbitral tribunal shall be drafted without the presence of the Parties. The arbitral tribunal shall base its report on the relevant provisions of this Agreement and the submissions and arguments of the Parties, and may take into account any other relevant information provided to the arbitral tribunal.
2. The arbitral tribunal shall, within one hundred and eighty (180) days or within sixty (60) days in cases of urgency, including those which concern perishable goods, after the date of its establishment, submit to the Parties its draft report.
3. The draft report shall contain both the descriptive part summarizing the submissions and arguments of the Parties and the findings and determinations of the arbitral tribunal. If the Parties agree, the arbitral tribunal may make recommendations for resolution of the dispute in its report. The findings and determinations of the arbitral tribunal and, if applicable, any recommendations cannot add to or diminish the rights and obligations of the Parties provided in this Agreement. 4. When the arbitral tribunal considers that it cannot submit its draft report within the aforementioned one hundred and eighty (180) or sixty (60) day period referred to in paragraph 2, it shall inform the Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. Any delay shall not exceed a further period of thirty (30) days, unless the Parties otherwise agree. 5. A Party may provide written comments to the arbitral tribunal on its draft report within fifteen (15) days after the date of submission of the draft report. 6. After considering any written comments on the draft report, the arbitral tribunal may reconsider its draft report and make any further examination it considers appropriate. 7. The arbitral tribunal shall issue its report, within thirty (30) days after the date of submission of the draft report. The report shall include any separate opinions on matters not unanimously agreed and shall not disclose which arbitrators are associated with majority or minority opinions. 8. The report of the arbitral tribunal shall be available to the public within fifteen (15) days after the date of issuance, subject to the requirement to protect confidential information. 9. The report of the arbitral tribunal shall be final and binding on the Parties.
Article 12.11. Information and Technical Advice
1. Upon request of a Party or on its own initiative, unless the Parties disapprove, the arbitral tribunal may seek information and technical advice from any person or body that it deems appropriate. Any information and technical advice so obtained shall be made available to the Parties. 2. With respect to factual issues concerning other technical matter raised by a Party, the arbitral tribunal may request advisory reports in writing from an expert or experts. The arbitral tribunal, upon the request of a Party or on its own initiative, after a consultation with the Parties, may select scientific or technical experts who shall assist the arbitral tribunal throughout its proceedings but shall not have the right to vote in respect of any decision to be made by the arbitral tribunal.
Article 12.12. Implementation of the Report
1. Unless the Parties otherwise agree, the Party complained against shall immediately eliminate the non-conformity as determined in the report of the arbitral tribunal, or if this is not practicable, within a reasonable period of time. 2. The Parties shall continue to consult at all times on the possible development of a mutually satisfactory resolution. 3. The reasonable period of time referred to in paragraph 1 shall be mutually determined by the Parties. Where the Parties fail to agree on the reasonable period of time within forty five (45) days after the date of issuance of the report of the arbitral tribunal referred to in Article 12.10, either Party may refer the matter to an arbitral tribunal as provided for in Article 12.13(7), which shall determine the reasonable period of time. 4. Where there is disagreement between the Parties as to whether the Party complained against eliminated the non-conformity as determined in the report of the arbitral tribunal within the reasonable period of time as determined pursuant to paragraph 3, either Party may refer the matter to an arbitral tribunal as provided for in Article 12.13(7).
Article 12.13. Non-implementation -compensation and Suspension of Concessions or other Obligations
1. If the Party complained against notifies the complaining Party that it is impracticable, or the arbitral tribunal to which the matter is referred pursuant to Article 12.12(4) confirms that the Party complained against has failed to eliminate the nonconformity as determined in the report of the arbitral tribunal within the reasonable period of time as determined pursuant to Article 12.12(3), the Party complained against shall, if so requested, enter into negotiations with the complaining Party with a view to reaching a mutually satisfactory compensation.
2. If there is no agreement on a mutually satisfactory compensation within twenty (20) days after the date of receipt of the request mentioned in paragraph 1, the complaining Party may suspend the application to the Party complained against of concessions or other obligations under this Agreement, after giving notification of such suspension with thirty (30) days in advance. Such notification may only be given twenty (20) days after the date of receipt of the request mentioned in paragraph 1.
3. The compensation referred to in paragraph 1 and the suspension referred to in paragraph 2 shall be temporary measures. Neither compensation nor suspension is preferred to full elimination of the non-conformity as determined in the report of the arbitral tribunal. The suspension shall only be applied until such time as the nonconformity is fully eliminated, or a mutually satisfactory resolution is reached.
4. In considering what concessions or other obligations to suspend pursuant to paragraph 2:
(a) the complaining Party should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which the report of the arbitral tribunal referred to in Article 12.10(7) has found a failure to comply with the obligations under this Agreement; and
(b) if the complaining Party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may suspend concessions or other obligations with respect to other sectors. The notification of such suspension pursuant to paragraph 2 shall indicate the reasons on which it is based.
5. The level of suspension referred to in paragraph 2 shall be equivalent to the level of the nullification or impairment.
6. If the Party complained against considers that the requirements for the suspension of concessions or other obligations by the complaining Party set out in paragraphs 2, 3, 4 or 5 have not been met, it may refer the matter to an arbitral tribunal.
7. The arbitral tribunal that is established for the purposes of this Article or Article 12.12 shall have, wherever possible, as its arbitrators, the arbitrators of the original arbitral tribunal. If this is not possible, then the arbitrators to the arbitral tribunal that is established for the purposes of this Article or Article 12.12 shall be appointed pursuant to Article 12.7. The arbitral tribunal established under this Article or Article 12.12 shall issue its report within sixty (60) days after the date when the matter is referred to it. When the arbitral tribunal considers that it cannot issue its report within the aforementioned sixty (60) day period, it may extend that period for a maximum of thirty (30) days with the consent of the Parties. The report shall be available to the public within fifteen (15) days after the date of issuance, subject to the requirement to protect confidential information. The report shall be final and binding on the Parties.
Article 12.14. Rules of Procedures
The Commission shall adopt the Rules of Procedures which provide for the details of the rules and procedures of arbitral tribunals established under this Chapter, at its first meeting. Unless the Parties otherwise agree, the arbitral tribunal shall follow the rules of procedure adopted by the Commission and may, after consulting the Parties, adopt additional rules of procedure consistent with the rules adopted by the Commission.
Article 12.15. Modification of Rules and Procedures
1. Any time period or other rules and procedures for arbitral tribunals, provided for in this Chapter, including the Rules of Procedures referred to in Article 12.14, may be modified by mutual consent of the Parties.
2. The Parties may also agree, at any time, not to apply any provision of this Chapter.
Chapter 13. Exceptions
Article 13.1. General Exceptions
1. For the purposes of Chapters 3 to 7 (Trade in Goods, Rules of Origin, Customs Administration, Sanitary and Phytosanitary Measures, and Technical Regulations, Standards and Conformity Assessment Procedures), Article XX of GATT 1994 and its notes and supplementary provisions are incorporated into and made part of this Agreement, mutatis mutandis.
2. Nothing in this Agreement shall be construed to prevent a Party from taking action authorized by the WTO Dispute Settlement Body. A Party taking such action shall inform the Commission to the fullest extent possible of measures taken and of their termination.
Article 13.2. Security Exceptions
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials, or relating to the supply of services, as carried on directly or indirectly for the purpose of supplying or provisioning a military establishment; or
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security. 2. A Party taking action under paragraphs 1(b) and (c) shall inform the Commission to the fullest extent possible of measures taken and of their termination.
Article 13.3. Taxation
1. For the purposes of this Article, tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement in force between the Parties; and taxation measures do not include a "customs duty" as defined in Article 2.1.
2. Unless otherwise provided for in this Article, the provisions of this Agreement shall not apply to any taxation measures.
3. This Agreement shall only grant rights or impose obligations with respect to taxation measures where corresponding rights or obligations are also granted or imposed under Article III of GATT 1994.
4. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
5. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
Article 13.4. Balance-of-payments Measures on Trade In Goods
1. The Parties shall endeavour to avoid the imposition of restrictive measures for balance-of-payments purposes.
2. Any measure taken for balance-of-payments purposes shall be in accordance with that Party's rights and obligations under GATT 1994, including the Understanding on the Balance-of-Payments Provisions of GATT 1994. When adopting such measures, the Party shall immediately consult with the other Party.
3. Nothing in this Chapter shall be regarded as altering the rights enjoyed and obligations undertaken by a Party as a party to the Articles of the Agreement of the International Monetary Fund, as may be amended.
Article 13.5. Disclosure of Information
1. Each Party shall, in accordance with its domestic laws and regulations, maintain the confidentiality of information provided in confidence by the other Party pursuant to this Agreement.
2. Nothing in this Agreement shall be construed as requiring a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Chapter 14. Final Provisions
Article 14.1. Annexes and Footnotes
The Annexes and footnotes to this Agreement constitute an integral part of this Agreement.
Article 14.2. Amendments
1. The Parties may agree, in writing, on any modification of or addition to this Agreement.
2. When so agreed, and approved in accordance with the necessary domestic legal procedures of each Party, a modification or addition shall constitute an integral part of this Agreement. Such amendment shall enter into force sixty (60) days after the date on which the Parties exchange written notification that such procedures have been completed, or after such other period as the Parties may agree.
Article 14.3. Amendment of the Wto Agreement
If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult on whether to amend this Agreement.
Article 14.4. Entry Into Force and Termination
1. The entry into force of this Agreement is subject to the completion of necessary domestic legal procedures by each Party.
2. This Agreement shall enter into force on the first day of the second month following the month in which the Parties exchange written notification that such procedures have been completed, or after such other period as the Parties may agree.
3. Either Party may terminate this Agreement by written notification to the other Party. This Agreement shall expire one hundred and eighty (180) days after the date of such notification.
Article 14.5. Future Negotiations on Trade In Services, Financial Services and Investment
1. Unless otherwise agreed, no later than three (3) years after the entry into force of this Agreement, the Parties shall consider the possibility to commence negotiations with a view to including a Chapter on Trade in Services, a Chapter on Financial Services and a Chapter on Investment to this Agreement, on a mutually advantageous basis.
2. The provision of paragraph 1 will not apply if the Parties, during the time period mentioned in paragraph 1, conclude another international agreement on Trade in Services, Financial Services and Investment.
Article 14.6. Authentic Texts
The English, Spanish and Vietnamese texts of this Agreement are equally authentic. In the event of divergence, the English text shall prevail.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective governments, have signed this Agreement.
DONE at Honolulu, Hawaii, the United States of America, in duplicate, this 11th of November, 2011.
FOR THE GOVERNMENT OF THE REPUBLIC OF CHILE
Alfredo Moreno Charme
Minister of Foreign Affairs
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM
Vu Huy Hoang
Minister of Industry and Trade