(x) strengthening institutions and systems; and
(y) other fields to be mutually determined by the Governments of the Parties.
2. The Parties shall initiate discussions, after entry into force of this Agreement, to explore potential cooperation activities in the fields referred to in paragraph 1 and to ensure timely, efficient and effective implementation of cooperation activities under this Chapter.
Article 20.2. Forms of Cooperation
The forms of cooperation under this Chapter may be set forth in guidelines developed by the Parties, taking into consideration the relevant provisions of this Chapter and the needs identified by the Sub-Committee on Cooperation established pursuant to Article 20.4.
Article 20.3. Costs of Cooperation
1. The Parties shall endeavor to make necessary funds and other resources available for the implementation of cooperation under this Chapter in accordance with their respective laws and regulations.
2. Costs for cooperation under this Chapter shall be borne in an equitable manner to be mutually determined by the Parties through efficient and effective utilization of funds and resources.
Article 20.4. Sub-Committee on Cooperation
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Cooperation (hereinafter referred to in this Article as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the effective implementation and operation of this Chapter;
(b) exchanging information on cooperation in each of the fields referred to in Article 20.1;
(c) identifying ways for further cooperation between the Parties;
(d) discussing any issues related to this Chapter;
(e) making recommendations to the Joint Committee, if appropriate, on cooperation activities under this Chapter;
(f) reporting to the Joint Committee the findings and outcome of discussions of the Sub-Committee regarding the implementation of this Chapter, including the measures to be taken by the Parties; and
(g) carrying out other functions as may be delegated by the Joint Committee.
3. The Sub-Committee shall, if appropriate, recognize and share information with the Parties’ existing consultation mechanisms for cooperation schemes to ensure timely, efficient and effective implementation of cooperation activities under this Agreement.
4. The Sub-Committee shall be composed of representatives of the Governments of the Parties. The Sub-Committee may invite representatives of relevant entities other than the Governments of the Parties with the necessary expertise relevant to the issues to be discussed.
5. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
Article 20.5. Non-Application of Chapter 21
Chapter 21 shall not apply to this Chapter.
Chapter 21. Dispute Settlement
Article 21.1. Definitions
For the purposes of this Chapter:
(a) the term “Complaining Party” means a Party that requests consultations pursuant to paragraph 1 of Article 21.6;
(b) the term “Responding Party” means a Party to which the request for consultations is made pursuant to paragraph 1 of Article 21.6; and
(c) the term “Rules of Procedure” means the Rules of Procedure for Arbitration Proceedings adopted by the Joint Committee.
Article 21.2. Objective
The objective of this Chapter is to provide effective, efficient and transparent rules and procedures for settlement of disputes arising under this Agreement.
Article 21.3. Scope
1. Unless otherwise provided for in this Agreement, this Chapter shall apply:
(a) to the settlement of disputes between the Parties regarding the interpretation and application of this Agreement; and
(b) if a Party considers that a measure of the other Party is not in conformity with the obligations under this Agreement or that the other Party has otherwise failed to carry out its obligations under this Agreement.
2. This Chapter shall not apply to non-violation complaints.
3. Subject to Article 21.5, this Chapter shall be without prejudice to the rights of a Party to have recourse to dispute settlement procedures available under other agreements to which both Parties are parties.
Article 21.4. General Provisions
1. This Agreement shall be interpreted in accordance with the customary rules of interpretation of public international law.
2. With respect to any provision of the WTO Agreement that has been incorporated into this Agreement, an arbitral tribunal established pursuant to paragraph 1 of Article 21.8 should also consider relevant interpretations in reports of WTO panels and the WTO Appellate Body, adopted by the WTO Dispute Settlement Body. The findings and determinations of the arbitral tribunal cannot add to or diminish the rights and obligations under this Agreement.
Note: The Parties confirm that the first sentence of this paragraph does not prevent the arbitral tribunal from considering relevant interpretations in reports of WTO panels and the WTO Appellate Body, adopted by the WTO Dispute Settlement Body, with respect to a provision of the WTO Agreement which is not incorporated into this Agreement.
3. All notifications, requests and replies made pursuant to this Chapter shall be in writing.
4. The Parties are encouraged at every stage of a dispute to make every effort through cooperation and consultations to reach a mutually satisfactory solution to the dispute.
5. Any period of time provided for in this Chapter may be modified for a particular dispute by mutual consent of the Parties.
6. The prompt settlement of disputes in which a Party considers that any benefits accruing to it directly or indirectly under this Agreement is being impaired by measures taken by the other Party is essential to the effective functioning of this Agreement and the maintenance of a proper balance between the rights and obligations of the Parties.
Article 21.5. Choice of Forum
1. If a dispute concerns substantially equivalent rights and obligations under this Agreement and another international trade or investment agreement to which both Parties are parties, the Complaining Party may select the forum in which to settle the dispute and that forum shall be used to the exclusion of other fora.
2. For the purposes of this Article, the Complaining Party shall be deemed to have selected the forum in which to settle the dispute when it has requested the establishment of an arbitral tribunal pursuant to paragraph 1 of Article 21.8 or requested the establishment of, or referred a matter to, a dispute settlement panel or tribunal under another international trade or investment agreement.
3. This Article shall not apply if the Parties consent in writing that this Article shall not apply to a particular dispute.
Article 21.6. Consultations
1. Either Party may request consultations with the other Party with respect to any matter described in paragraph 1 of Article 21.3. The Responding Party shall accord due consideration to a request for consultations made by the Complaining Party and shall accord adequate opportunity for such consultations.
2. A request for consultations made pursuant to paragraph 1 shall give the reasons for the request, including identification of the measures at issue and an indication of the factual and legal basis for the complaint.
3. The Responding Party shall immediately acknowledge its receipt of the request for consultations made pursuant to paragraph 1, by way of notification to the Complaining Party, indicating the date on which the request was received, otherwise the date on which the request was made shall be deemed to be the date of the Responding Party’s receipt of the request.
4. The Responding Party shall reply to the request for consultations made pursuant to paragraph 1 no later than seven days after the date of its receipt of the request.
5. The Responding Party shall enter into consultations no later than:
(a) 15 days after the date of its receipt of the request for consultations made pursuant to paragraph 1 in cases of urgency including those which concern perishable goods; or
(b) 30 days after the date of its receipt of the request for consultations made pursuant to paragraph 1 regarding any other matter.
6. The Parties shall engage in consultations in good faith and make every effort to reach a mutually satisfactory solution through consultations. To this end, the Parties shall:
(a) provide sufficient information in the course of consultations to enable a full examination of the matter, including how the measures at issue might affect the implementation or application of this Agreement;
(b) treat any confidential or proprietary information exchanged in the course of consultations on the same basis as the Party providing the information; and
(c) endeavor to make available for the consultations personnel of their government agencies or other regulatory bodies who have responsibility for or expertise in the matter.
7. The consultations under this Article shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
8. The consultations under this Article may be held in person or by any technological means by mutual consent of the Parties. If the Parties decide to hold consultations in person, the consultations shall be held in a venue decided upon by the Parties, or if there is no consent on the venue, in the capital of the Responding Party.
Article 21.7. Good Offices, Conciliation or Mediation
1. The Parties may at any time decide to voluntarily undertake an alternative method of dispute resolution, including good offices, conciliation or mediation. Procedures for such alternative methods of dispute resolution may begin at any time, and may be terminated by either Party at any time.
2. If the Parties decide, such procedures referred to in paragraph 1 may continue while the matter is being examined by an arbitral tribunal under this Chapter.
3. Proceedings involving such procedures referred to in paragraph 1 and positions taken by either Party during these proceedings shall be confidential and without prejudice to the rights of either Party in any further or other proceedings.
Article 21.8. Establishment and Reconvening of Arbitral Tribunal
1. The Complaining Party may request in writing the establishment of an arbitral tribunal to the Responding Party, if:
(a) the Responding Party does not:
(i) reply to the request for consultations in accordance with paragraph 4 of Article 21.6; or
(ii) enter into consultations in accordance with paragraph 5 of Article 21.6; or
(b) the consultations fail to resolve a dispute within:
(i) 20 days after the date of the Responding Party’s receipt of the request for consultations made pursuant to paragraph 1 of Article 21.6 in cases of urgency including those which concern perishable goods; or
(ii) 60 days after the date of the Responding Party’s receipt of the request for consultations made pursuant to paragraph 1 of Article 21.6 regarding any other matter.
2. A request for the establishment of an arbitral tribunal made pursuant to paragraph 1 shall identify the specific measures at issue and provide details of the factual and legal basis for the complaint, including the relevant provisions of this Agreement, to be addressed by the arbitral tribunal, sufficient to present the problem clearly.
3. The Responding Party shall immediately acknowledge its receipt of the request for the establishment of an arbitral tribunal made pursuant to paragraph 1, by way of notification to the Complaining Party, indicating the date on which the request was received, otherwise the date on which the request was made shall be deemed to be the date of the Responding Party’s receipt of the request.
4. Each Party shall, within 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 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.
5. The Parties shall endeavor to agree on and appoint the third arbitrator within 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 4.
6. If a Party has not appointed the one arbitrator pursuant to paragraph 4, the arbitrator shall be appointed, on request of either Party, by lot from the lists of the candidates proposed pursuant to paragraph 4. The appointment by lot shall be undertaken within seven days after the date of receipt of the request for appointment by lot, unless otherwise mutually determined by the Parties.
7. If the Parties fail to agree on the third arbitrator pursuant to paragraph 5, either Party, within a further period of 10 days, may request the Secretary-General of the Permanent Court of Arbitration to appoint the third arbitrator promptly. The lists of candidates proposed pursuant to paragraph 4 shall also be provided to the Secretary-General of the Permanent Court of Arbitration and may be used in making the required appointments under paragraph 8.
Note: For greater certainty, the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules shall not be used to appoint the third arbitrator under this paragraph.
8. In appointing the third arbitrator under paragraph 7, and in accordance with the requirements referred to in paragraphs 10 and 11, the following procedure shall be used, unless otherwise mutually determined by the Parties:
(a) the Secretary-General of the Permanent Court of Arbitration shall notify the Parties of an identical list containing at least four nominees for arbitrators;
(b) within 15 days after the date of receipt of the list referred to in subparagraph (a), each Party may return the list to the Secretary-General of the Permanent Court of Arbitration after having deleted one of the nominees which it objects to and having numbered the remaining nominees on the list in the order of its preference;
(c) after the expiry of the period of time referred to in subparagraph (b), the Secretary-General of the Permanent Court of Arbitration shall appoint the third arbitrator from the remaining nominees on any list returned to him or her and in accordance with the order of preference indicated by the Parties;
(d) if for any reason the third arbitrator cannot be appointed in accordance with the procedure set out in this paragraph, the Secretary-General of the Permanent Court of Arbitration may appoint, in his or her discretion, the third arbitrator in accordance with this Chapter; and
(e) if the Secretary-General of the Permanent Court of Arbitration notifies the Parties that he or she is unavailable or does not appoint the third arbitrator within 60 days after the date of the request made pursuant to paragraph 7, the third arbitrator shall be appointed, on request of either Party and within seven days after the date of that request, by lot from the lists of the candidates proposed pursuant to paragraph 4.
9. The date of the establishment of the arbitral tribunal shall be the date on which the third arbitrator is appointed.
10. All arbitrators shall:
(a) have expertise or experience in law, international trade or other matters covered by this Agreement, or the resolution of disputes arising under international agreements;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent and impartial;
(d) not be affiliated with or take instructions from either Party;
(e) not have dealt with the matter in any capacity;
(f) disclose, to the Parties, information which may give rise to justifiable doubts as to his or her independence or impartiality; and
(g) comply with the Code of Conduct adopted by the Joint Committee.
11. In addition to the requirements of paragraph 10, the chair of the arbitral tribunal appointed under paragraph 7, wherever possible, shall:
(a) have served on a WTO panel or the WTO Appellate Body; and
(b) have expertise or experience relevant to the subject matter of the dispute.
12. Each arbitrator shall serve in his or her individual capacity and not as a government representative, nor as a representative of any organization. Neither Party shall give instructions to any arbitrator or seek to influence any arbitrator as an individual with regard to matters before the arbitral tribunal.
13. If an arbitrator appointed under this Article resigns, dies or otherwise becomes unable to act, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator. The successor arbitrator shall have all the powers and duties of the original arbitrator. The work of the arbitral tribunal shall be suspended from the date on which the original arbitrator resigns, dies or otherwise becomes unable to act until the date on which the successor arbitrator is appointed.
14. If an arbitral tribunal is reconvened pursuant to Article 21.13 or 21.14, the reconvened arbitral tribunal shall, where feasible, have the same arbitrators as the original arbitral tribunal. If this is not feasible, a replacement arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator. The replacement arbitrator shall have all the powers and duties of the original arbitrator.
Article 21.9. Functions of Arbitral Tribunal
1. The arbitral tribunal shall make an objective assessment of the matter before it, including an objective assessment of:
(a) the facts of the case;
(b) the applicability of the provisions of this Agreement cited by the Parties; and
(c) whether:
(i) the measure at issue is not in conformity with the obligations under this Agreement; or
(ii) the Responding Party has otherwise failed to carry out its obligations under this Agreement.
2. The arbitral tribunal shall have the following terms of reference unless otherwise mutually determined by the Parties within 20 days after the date of the establishment of the arbitral tribunal:
“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 made pursuant to paragraph 1 of Article 21.8, and to make findings and determinations as provided for in this Agreement.”
3. The arbitral tribunal shall set out in its award:
(a) a descriptive section summarizing the arguments of the Parties;
(b) its findings on the facts of the case and on the applicability of the provisions of this Agreement;
(c) its determinations as to whether:
(i) the measure at issue is not in conformity with the obligations under this Agreement; or
(ii) the Responding Party has otherwise failed to carry out its obligations under this Agreement; and
(d) the reasons for its findings and determinations referred to in subparagraphs (b) and (c).
4. In addition to paragraph 3, the arbitral tribunal shall include in its award any other findings and determinations pertaining to the dispute which have been jointly requested by the Parties or provided for in its terms of reference. The arbitral tribunal may suggest ways in which the Responding Party could implement the findings and determinations.
5. Unless otherwise mutually determined by the Parties, the arbitral tribunal shall base its award on the relevant provisions of this Agreement, the submissions and arguments of the Parties, and any information or technical advice it has received in accordance with paragraphs 10 and 11.
6. The arbitral tribunal shall only make the findings, determinations and suggestions provided for in this Agreement.
7. The findings and determinations of the arbitral tribunal cannot add to or diminish the rights and obligations under this Agreement.
8. The arbitral tribunal shall consult regularly with the Parties and provide adequate opportunities for the Parties to develop a mutually satisfactory solution.
9. Paragraphs 1 through 4 shall not apply to the arbitral tribunal reconvened pursuant to Article 21.13 or 21.14.
10. The arbitral tribunal may seek, from the Parties, such relevant information as it considers necessary and appropriate. The Parties shall respond promptly and fully to any request by the arbitral tribunal for such information as the arbitral tribunal considers necessary and appropriate.
11. On request of either Party or on its own initiative, the arbitral tribunal may seek additional information and technical advice from any individual or body which it deems appropriate. Before doing so, the arbitral tribunal shall seek the views of the Parties. If the Parties decide that the arbitral tribunal should not seek the additional information or technical advice, the arbitral tribunal shall not do so. The arbitral tribunal shall provide the Parties with any additional information or technical advice it receives and an opportunity to provide comments. If the arbitral tribunal takes into account the additional information or technical advice in preparation of its award, it shall also take into account any comments by either Party on the additional information or technical advice.
Article 21.10. Proceedings of Arbitral Tribunal
1. The arbitral tribunal shall adhere to this Chapter and, unless otherwise mutually determined by the Parties, shall follow the Rules of Procedure.
2. On request of either Party or on its own initiative, the arbitral tribunal established pursuant to Article 21.8 may, after consulting the Parties, adopt additional rules of procedure which do not conflict with this Chapter and with the Rules of Procedure. The arbitral tribunal reconvened pursuant to Article 21.13 or 21.14 may, after consulting the Parties, establish its own rules of procedure which do not conflict with this Chapter and with the Rules of Procedure, drawing as it deems appropriate from this Chapter or the Rules of Procedure.
3. Proceedings of the arbitral tribunal should provide sufficient flexibility so as to ensure a high-quality award, while not unduly delaying the arbitral tribunal process.
4. After consulting the Parties, the arbitral tribunal established pursuant to Article 21.8 shall, as soon as practicable and whenever possible within 15 days after the date of its establishment, fix the timetable for the arbitral tribunal process. The period of time from the date of establishment of the arbitral tribunal until the date of issuance of the award to the Parties shall, as a general rule, not exceed seven months.
5. The arbitral tribunal reconvened pursuant to Article 21.13 or paragraph 13 of Article 21.14 shall, as soon as practicable and whenever possible within 15 days after the date of its reconvening, fix the timetable for the compliance review process taking into account the periods of time specified in Article 21.13.
6. The arbitral tribunal shall meet in closed session. The Parties shall be present at the meetings only when invited by the arbitral tribunal to appear before it.
7. The venue for the proceedings of the arbitral tribunal shall be decided by mutual consent of the Parties, failing which it shall alternate between the Parties with the first meeting of the arbitral tribunal proceedings to be held in the capital of the Responding Party.
8. The deliberations of the arbitral tribunal and the submissions to it shall be kept confidential.
9. Written submissions submitted by a Party to the arbitral tribunal shall be treated as confidential but shall be made available to the other Party. The Parties and the arbitral tribunal shall treat as confidential, information submitted by either Party to the arbitral tribunal which that Party has designated as confidential. For greater certainty, nothing in this paragraph shall preclude either Party from disclosing statements of its own positions to the public, provided that there is no disclosure of statements or information submitted by either Party to the arbitral tribunal which that Party has designated as confidential. A Party shall, on request of the other Party, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.
10. The Parties shall be given the opportunity to attend any of the presentations, statements or rebuttals in the proceeding. Any information or written submissions submitted by a Party to the arbitral tribunal, including any comments on the descriptive part of the draft award and responses to questions put by the arbitral tribunal, shall be made available to the other Party.
11. The award of the arbitral tribunal shall be drafted without the presence of the Parties in light of the information provided and the statements made.
12. The arbitral tribunal established pursuant to Article 21.8 shall submit its draft award to the Parties within 150 days after the date of its establishment. In cases of urgency including those which concern perishable goods, the arbitral tribunal shall endeavor to submit its draft award within 90 days after the date of its establishment.
13. In exceptional cases, if the arbitral tribunal established pursuant to Article 21.8 considers that it cannot submit its draft award within the period of time referred to in paragraph 12, it shall notify the Parties of the reasons for the delay together with an estimate of the period of time within which it will submit its draft award to the Parties. Any delay shall not exceed a further period of 30 days.
14. Either Party may submit written comments to the arbitral tribunal on its draft award within 15 days after the date of receipt of the draft award. After considering any written comments by the Parties on the draft award, the arbitral tribunal may make any further examination it considers appropriate and modify its draft award.
15. The arbitral tribunal shall issue its award to the Parties within 30 days after the date of submission of the draft award.
16. The arbitral tribunal shall make its findings and determinations by consensus, provided that where the arbitral tribunal is unable to reach consensus, it may make its findings and determinations by majority vote. An arbitrator may furnish dissenting or separate opinions on matters not unanimously decided. Opinions expressed by an individual arbitrator in the award shall be anonymous.
17. The award of the arbitral tribunal shall be final and binding on the Parties.
18. There shall be no ex parte communications with the arbitral tribunal concerning matters under consideration by it.
19. Each Party shall have the opportunity to set out in writing the facts of its case, its arguments and counter arguments. Further to paragraphs 4 and 5, the timetable fixed by the arbitral tribunal shall include precise deadlines for submissions by the Parties.
20. Further to paragraphs 4 and 5, the timetable fixed by the arbitral tribunal shall provide for at least one hearing for the Parties to present their case to the arbitral tribunal. As a general rule, the timetable shall not provide more than two hearings unless special circumstances exist.
21. Either Party may make the award of the arbitral tribunal publicly available subject to the protection of any confidential information contained in the award.