12. Unless otherwise provided for in Chapter 14 (Dispute Settlement) of Title III (Trade and Business of this Agreement, the arbitration panel may conduct its activities by any means, including telephone, facsimile transmissions or computer links.
13. Only arbitrators may take part in the deliberations of the arbitration panel, but the arbitration panel may permit its assistants to be present at its deliberations.
14. The drafting of any report shall remain the exclusive responsibility of the arbitration panel and must not be delegated.
15. Where a procedural question arises that is not covered by the provisions of Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement and Annexes V to VII to this Agreement, the arbitration panel, after consulting the Parties, may adopt an appropriate procedure that is compatible with those provisions.
16. When the arbitration panel considers that there is a need to modify any of the time limits for its proceedings other than the time limits set out in Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement or to make any other procedural or administrative adjustment, it shall inform the Parties to the dispute in writing of the reasons for the change or adjustment and of the period of time or adjustment needed.
Replacement
17. If an arbitrator is unable to participate in an arbitration proceeding under Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement, withdraws from it, or must be replaced because of non-compliance with the requirements of the Code of Conduct set out in Annex VI to this Agreement, a replacement shall be selected in accordance with Article 177 of this Agreement and rule 8 of these Rules of Procedure.
18. Where a Party to the dispute considers that an arbitrator does not comply with the requirements of the Code of Conduct and for this reason should be replaced, this Party shall deliver notification to the other Party to the dispute within 15 days of the date on which it obtained evidence of the circumstances underlying the arbitrator's material violation of the Code of Conduct.
19. Where a Party to the dispute considers that an arbitrator other than the chairperson does not comply with the requirements of the Code of Conduct, the Parties to the dispute shall consult and, if they agree on the need to replace the arbitrator, select a new arbitrator in accordance with Article 177 of this Agreement and rule 8 of these Rules of Procedure.
If the Parties to the dispute fail to agree on the need to replace an arbitrator, any Party to the dispute may request that such matter be referred to the chairperson of the arbitration panel, whose decision shall be final.
If, pursuant to such a request, the chairperson finds that an arbitrator does not comply with the requirements of the Code of Conduct, the new arbitrator shall be selected in accordance with Article 177 of this Agreement and rule 8 of these Rules of Procedure.
20. Where a Party considers that the chairperson of the arbitration panel does not comply with the requirements of the Code of Conduct, the Parties shall consult and, if they agree on the need to replace the chairperson, select a new chairperson in accordance with Article 177 of this Agreement and rule 8 of these Rules of Procedure.
If the Parties fail to agree on the need to replace the chairperson, either Party may request that such matter be referred to one of the remaining members of the pool of individuals from the sub-list of chairpersons referred to in Article 196(1) of this Agreement. His name shall be drawn by lot by the chair of the Cooperation Committee, or the chair's delegate. The decision by the so selectedperson on the need to replace the chairperson shall be final.
If the so selected person decides that the original chairperson does not comply with the requirements of the Code of Conduct, he shall select a new chairperson by lot among the remaining pool of individuals from the sub-list of chairpersons referred to under Article 196(1) of this Agreement. The selection of the new chairperson shall be carried out within five days of the date of the decision referred to in this paragraph.
21. The arbitration panel proceedings shall be suspended for the period taken to carry out the procedures provided for in rules 18, 19 and 20 of these Rules of Procedure.
Hearings
22. The chairperson of the arbitration panel shall fix the date and time of the hearing in consultation with the Parties to the dispute and the other members of the arbitration panel, and shall confirm this in writing to the Parties to the dispute. This information shall also be made publicly available by the Party in charge of the logistical administration of the proceedings, unless the hearing is closed to the public. Unless a Party disagrees, the arbitration panel may decide not to convene a hearing.
23. Unless the Parties agree otherwise, the hearing shall be held in Brussels if the complaining Party is the Republic of Kazakhstan and in Astana if the complaining Party is the European Union.
24. The arbitration panel may convene additional hearings if the Parties so agree.
25. All arbitrators shall be present during the entirety of any hearings.
26. The following persons may attend the hearing, irrespective of whether the proceedings are open to the public or not:
(a) representatives of the Parties to the dispute;
(b) advisers to the Parties to the dispute;
(c) administrative staff, interpreters, translators and court reporters; and
(d) arbitrators' assistants.
Only the representatives and advisers of the Parties to the dispute may address the arbitration panel.
27. No later than five days before the date of a hearing, each Party to the dispute shall deliver to the arbitration panel a list of names of the persons who will make oral arguments or presentations at the hearing on behalf of that Party and of other representatives or advisers attending the hearing.
28. The arbitration panel shall conduct the hearing in the following manner, ensuring that the complaining Party and the Party complained against are afforded equal time:
Argument
(a) argument of the complaining Party
(b) argument of the Party complained against
Rebuttal Argument
(a) argument of the complaining Party
(b) counter-reply of the Party complained against
29. The arbitration panel may direct questions to either Party to the dispute at any time during the hearing.
30. The arbitration panel shall arrange for a transcript of each hearing to be prepared and delivered as soon as possible to the Parties to the dispute. The Parties to the dispute may comment on the transcript and the arbitration panel may consider those comments.
31. Each Party to the dispute may deliver a supplementary written submission concerning any matter that arose during the hearing within 10 days of the date of the hearing.
Questions in writing
32. The arbitration panel may, at any time during the proceedings, address questions in writing to one Party or both Parties to the dispute. Each Party to the dispute shall receive a copy of any questions put by the arbitration panel.
33. A Party to the dispute shall deliver a copy of its written response to the arbitration panel's questions to the other Party to the dispute. Each Party to the dispute shall have the opportunity to provide written comments on the other Party's reply, to be delivered within five days of the date of receipt of such reply.
Confidentiality
34. Each Party to the dispute and its advisers shall treat as confidential any information submitted to the arbitration panel by the other Party to the dispute which that Party has designated as confidential. Where a Party to the dispute submits a confidential version of its written submissions to the arbitration panel, the Party shall also, upon request of the other Party, and no later than 15 days after the date of either the request or the submission, whichever is later, deliver a non-confidential summary of the information contained in its submissions that could be disclosed to the public, and an explanation as to why the non-disclosed information is confidential. Nothing in these Rules of Procedure shall preclude a Party to the dispute from disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other Party, it does not disclose any information designated by the other Party as confidential.
The arbitration panel shall meet in closed session when the submission and arguments of a Party contain confidential information. The Parties to the dispute and their advisers shall maintain the confidentiality of the arbitration panel hearings where the hearings are held in closed session.
Non-confidential version of the arbitration panel report
35. If the arbitration panel report contains information designated as confidential by a Party, the arbitration panel shall prepare a non-confidential version of the report. The Parties shall be given the opportunity to comment on the non-confidential version and the arbitration panel shall take their comments into account when producing the final non-confidential version of the report.
Ex parte contacts
36. The arbitration panel shall not meet or communicate with a Party in the absence of the other Party.
37. No member of the arbitration panel may discuss any aspect of the subject matter of the proceedings with one Party or both Parties to the dispute in the absence of the other arbitrators.
Amicus curiae submissions
38. Unless the Parties agree otherwise within three days of the date of the establishment of the arbitration panel, the arbitration panel may receive unsolicited written submissions from natural or legal persons established in the territory of a Party to the dispute who are independent from the governments of the Parties to the dispute, provided that they are delivered within 10 days of the date of the establishment of the arbitration panel, that they are concise and in no case longer than 15 pages typed at double space and that they are directly relevant to a factual or a legal issue under consideration by the arbitration panel.
39. The submission shall contain a description of the person making the submission, whether natural or legal, including its nationality or place of establishment, the nature of its activities, its legal status, general objectives and the source of its financing, and shall specify the nature of the interest that the person has in the arbitration panel proceeding. It shall be drafted in the languages chosen by the Parties to the dispute in accordance with rules 42 and 43 of these Rules of Procedure.
40. The arbitration panel shall list in its report all the submissions it has received that conform to rules 38 and 39 of these Rules of Procedure. The arbitration panel shall not be obliged to address in its report the arguments made in such submissions. Any such submission shall be delivered to the Parties to the dispute for their comments. The comments of the Parties to the dispute shall be delivered within 10 days of receipt of the submission, and any such comments shall be taken into consideration by the arbitration panel.
Urgent cases
41. In the cases of urgency referred to in Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement, the arbitration panel, after consulting the Parties, shall adjust the time limits referred to in these Rules of Procedure as appropriate and shall notify the Parties of such adjustments.
Translation and interpretation
42. During the consultations referred to in Article 174 of this Agreement, and no later than the meeting referred to in rule 8(e) of these Rules of Procedure, the Parties to the dispute shall endeavour to agree on a common working language for the proceedings before the arbitration panel.
43. If the Parties to the dispute are unable to agree on a common working language, each Party shall make its written submissions in its chosen language. In such a case, that Party shall provide at the same time a translation in the language chosen by the other Party, unless its submissions are written in one of the working languages of the WTO. The Party complained against shall arrange for the interpretation of oral submissions into the languages chosen by the Parties.
44. Arbitration panel reports shall be issued in the language or languages chosen by the Parties to the dispute.
45. Any Party to the dispute may provide comments on the accuracy of the translation of any translated version of a document drawn up in accordance with these Rules of Procedure.
46. Each Party shall bear the costs of the translation of its written submissions. Any costs incurred in the translation of an arbitration panel report shall be borne equally by the Parties to the dispute.
Other procedures
47. These Rules of Procedure are also applicable to procedures established under Articles 174, 184(2), 185(2), 186(3) and 187(2) of this Agreement. However, the time limits laid down in these Rules of Procedure shall be adjusted by the arbitration panel in line with the special time limits provided for the adoption of a report by the arbitration panel in those other procedures.
ANNEX VI. CODE OF CONDUCT FOR MEMBERS OF ARBITRATION PANELS AND MEDIATORS UNDER CHAPTER 14 (DISPUTE SETTLEMENT) OF TITLE III (TRADE AND BUSINESS)
Definitions
1. In this Code of Conduct:
(a) ‘arbitrator' means a member of an arbitration panel effectively established under Article 177 of this Agreement;
(b) ‘candidate' means an individual whose name is on the list of arbitrators referred to in Article 196 of this Agreement and who is under consideration for selection as a member of an arbitration panel under Article 177 of this Agreement;
(c) ‘assistant' means a person who, under the terms of appointment of an arbitrator, conducts research or provides assistance to the arbitrator;
(d) ‘proceeding', unless otherwise specified, means an arbitration panel proceeding under Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement;
(e) ‘staff', in respect of an arbitrator, means persons under the direction and control of the arbitrator, other than assistants;
(f) ‘mediator' means a person who conducts a mediation procedure in accordance with Annex VII to this Agreement.
Responsibilities to the process
2. Every candidate and arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interest and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved. Former arbitrators must comply with the obligations established in rules 15, 16, 17 and 18 of this Code of Conduct.
Disclosure obligations
3. Prior to confirmation of his selection as an arbitrator under Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement, a candidate shall disclose any interest, relationship or matter that is likely to affect his independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceedings. To that end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
4. A candidate or arbitrator shall communicate, in writing, matters concerning actual or potential violations of this Code of Conduct only to the Cooperation Committee for consideration by the Parties.
5. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in rule 3 of this Code of Conduct and shall disclose them. The disclosure obligation is a continuing duty which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceedings. The arbitrator shall disclose such interests, relationships or matters by informing the Cooperation Committee, in writing, for consideration by the Parties.
Duties of arbitrators
6. Upon confirmation of his selection, an arbitrator shall be available to perform and shall perform his duties thoroughly and expeditiously throughout the course of the proceedings, with fairness and diligence.
7. An arbitrator shall consider only those issues raised in the proceeding and necessary for an arbitration panel report, and shall not delegate this duty to any other person.
8. An arbitrator shall take all appropriate steps to ensure that his assistant and staff are aware of, and comply with, rules 2, 3, 4, 5, 16, 17 and 18 of this Code of Conduct.
9. An arbitrator shall not engage in ex parte contacts concerning the proceedings.
Independence and impartiality of arbitrators
10. An arbitrator shall be independent and impartial, avoid creating an appearance of impropriety or bias, and shall not be influenced by self-interest, outside pressure, political considerations, public clamour and loyalty to a Party or fear of criticism.
11. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his duties.
12. An arbitrator shall not use his position on the arbitration panel to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that he is in a position to be influenced by others.
13. An arbitrator shall not allow financial, business, professional, personal, or social relationships or responsibilities to influence his conduct or judgement.
14. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his impartiality or that might reasonably create an appearance of impropriety or bias.
Obligations of former arbitrators
15. All former arbitrators must avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decision or report of the arbitration panel.
Confidentiality
16. No arbitrator or former arbitrator shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interests of others.
17. An arbitrator shall not disclose an arbitration panel report or parts thereof prior to its publication in accordance with Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement.
18. An arbitrator or a former arbitrator shall not disclose the deliberations of an arbitration panel, or any arbitrator's view at any time.
Expenses
19. Each arbitrator shall keep a record and render a final account of the time devoted to the procedure and of his expenses, as well as the time and expenses of his assistant and staff.
Mediators
20. The disciplines described in this Code of Conduct as applying to arbitrators or former arbitrators shall apply, mutatis mutandis, to mediators.
ANNEX VII. MEDIATION MECHANISM UNDER CHAPTER 14 (DISPUTE SETTLEMENT) OF TITLE III (TRADE AND BUSINESS)
1. Objective
The objective of this Annex is to facilitate the finding of a mutually agreed solution through a comprehensive and expeditious procedure with the assistance of a mediator.
Section A. Procedure Under the Mediation Mechanism
2. Request for Information
1. At any time before the initiation of the mediation procedure, a Party may deliver a written request for information regarding a measure adversely affecting trade or investment between the Parties. The Party to which such request is made shall, within 20 days of receipt of the request, deliver a written response containing its comments on the information contained in the request.
2. When the responding Party considers it will not be able to deliver a response within 20 days of receipt of the request, it shall promptly notify the requesting Party, stating the reasons for the delay and providing an estimate of the shortest period within which it will be able to deliver its response.
3. Initiation of the Procedure
1. A Party may request that the Parties enter into a mediation procedure at any time, by means of a written request delivered to the other Party. The request shall be sufficiently detailed to present the concerns of the requesting Party clearly and shall:
(a) identify the specific measure at issue;
(b) provide a statement of the alleged adverse effects that the requesting Party believes the measure has, or will have, on trade or investment between the Parties; and
(c) explain how the requesting Party considers that those effects are linked to the measure.
2. The mediation procedure may only be initiated by mutual agreement of the Parties. When a request is made pursuant to paragraph 1, the Party to which the request is made shall accord sympathetic consideration to the request and deliver its written acceptance or rejection to the requesting Party within 10 days of its receipt.
4. Selection of the Mediator
1. The Parties shall endeavour to agree on a mediator within 15 days of the delivery of the acceptance referred to in Article 3(2) of this Annex.
2. In the event that the Parties are unable to agree on the mediator within the time frame laid down in paragraph 1 of this Article, either Party may request the chair of the Cooperation Committee, or the chair's delegate, to select the mediator by lot from the list established under Article 196(1) of this Agreement. Representatives of both Parties shall be invited, with sufficient advance notice, to be present when the lots are drawn. In any event, the drawing of lots shall be carried out with the Party/Parties that is/are present.
3. The chair of the Cooperation Committee, or the chair's delegate, shall select the mediator within five days of the request made pursuant to paragraph 2.
4. Should the list referred to in Article 196(1) of this Agreement not be established at the time a request is made pursuant to Article 3 of this Annex, the mediator shall be drawn by lot from the individuals who have been formally proposed by one or both of the Parties.
5. A mediator shall not be a citizen of either Party, unless the Parties agree otherwise.
6. The mediator shall, in an impartial and transparent manner, assist the Parties in bringing clarity to the measure and its possible effects on trade, and in reaching a mutually agreed solution.
7. The Code of Conduct for Members of Arbitration Panels and Mediators set out in Annex VI to this Agreement shall apply to mediators, mutatis mutandis.
8. Rules 3 to 7 (Notifications) and 42 to 46 (Translation and interpretation) of the Rules of Procedure for Arbitration set out in Annex V to this Agreement shall apply, mutatis mutandis.
5. Rules of the Mediation Procedure
1. Within 10 days of the appointment of the mediator, the Party which invoked the mediation procedure shall deliver a detailed, written description of its concerns to the mediator and to the other Party, in particular of the operation of the measure at issue and its effects on trade. Within 20 days of the receipt of this description, the other Party may deliver written comments on the description. Either Party may include any information that it deems relevant in its description or comments.
2. The mediator may decide on the most appropriate way of bringing clarity to the measure concerned and its possible effects on trade. In particular, the mediator may organise meetings between the Parties, consult the Parties jointly or individually, seek the assistance of, or consult with, relevant experts and stakeholders and provide any additional support requested by the Parties. The mediator shall consult with the Parties before seeking the assistance of, or consulting with, relevant experts and stakeholders.
3. The mediator shall not advise or comment on the consistency of the measure at issue with this Agreement. The mediator may offer advice and propose a solution for the consideration of the Parties. The Parties may accept or reject the proposed solution, or agree on a different solution.
4. The mediation procedure shall take place in the territory of the Party to which the request was addressed, or by mutual agreement in any other location or by any other means.
5. The Parties shall endeavour to reach a mutually agreed solution within 60 days of the appointment of the mediator. Pending a final agreement, the Parties may consider possible interim solutions.
6. The mutually agreed solution or the interim solution may be adopted by means of a decision of the Cooperation Committee. Mutually agreed solutions shall be made publicly available. The version disclosed to the public shall not contain any information a Party has designated as confidential.
7. On request of the Parties, the mediator shall deliver a draft factual report to the Parties, providing a brief summary of: (i) the measure at issue; (ii) the procedures followed; and (iii) any mutually agreed solution reached, including possible interim solutions. The mediator shall allow the Parties 15 days to comment on the draft report. After considering the comments of the Parties received within that period, the mediator shall, within 15 days, deliver a final factual report to the Parties. The factual report shall not include any interpretation of this Agreement.
8. The procedure shall be terminated by:
(a) the adoption of a mutually agreed solution by the Parties, on the date of the adoption thereof;
(b) mutual agreement of the Parties at any stage of the procedure, on the date of that agreement;
(c) a written declaration of the mediator, after consultation with the Parties, that further efforts at mediation would be to no avail, on the date of that declaration; or
(d) a written declaration of a Party after exploring mutually agreed solutions under the mediation procedure and after having considered any advice and proposed solutions by the mediator, on the date of that declaration.
Section B. Implementation
6. Implementation of a Mutually Agreed Solution
1. Where the Parties reach agreement on a solution, each Party shall take the measures necessary to implement the mutually agreed solution within the agreed timeframe.
2. The implementing Party shall notify the other Party, in writing, of any steps or measures taken to implement the mutually agreed solution.
Section C. General Provisions
7. Confidentiality and Relationship to Dispute Settlement
1. Unless the Parties agree otherwise, and without prejudice to Article 5(6) of this Annex, all steps of the procedure, including any advice or proposed solution, are confidential. However, any Party may disclose to the public the fact that mediation is taking place.
2. The mediation procedure is without prejudice to the Parties' rights and obligations under Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement, or any other agreement.
3. Consultations under Chapter 14 (Dispute Settlement) of Title III (Trade and Business) of this Agreement are not required before initiating the mediation procedure. However, a Party should normally avail itself of the other relevant cooperation or consultation provisions provided for in this Agreement before initiating the mediation procedure.
4. A Party shall not rely on, or introduce as evidence, in other dispute settlement procedures under this Agreement or any other agreement, nor shall a panel take into consideration:
(a) positions taken by the other Party in the course of the mediation procedure or information gathered under Article 5(2) of this Annex;
(b) the fact that the other Party has indicated its willingness to accept a solution to the measure subject to mediation; or
(c) advice given or proposals made by the mediator.
5. A mediator may not serve as a member of a panel in a dispute settlement proceeding under this Agreement or under the WTO Agreement involving the same matter for which he has been a mediator.
8. Time Limits
Any time limit referred to in this Annex may be modified by mutual agreement between the Parties.