EU - Kazakhstan EPCA (2015)
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5. Paragraphs 3 and 4 shall not apply to subsidies relating to fisheries and trade in goods covered by Annex 1 to the WTO Agreement on Agriculture.

Article 160. Dispute Settlement

The provisions of Chapter 14 (Dispute Settlement) of this Title shall not apply with respect to Articles 156 to 158 and Article 159(3) and (4).

(1) A subsidy is proportionate if its amount is limited to what is necessary to achieve the objective.

Article 161. Relationship with the WTO

The provisions of this Chapter are without prejudice to the rights and obligations of a Party under the WTO Agreement, in particular the SCM Agreement and the Understanding on Rules and Procedures Governing the Settlement of Disputes.

Article 162. Confidentiality

When exchanging information under this Chapter, the Parties shall take into account the limitations imposed by the requirements of professional and business secrecy.

Chapter 12. State-owned Enterprises, State-controlled Enterprises and Enterprises Granted Special or Exclusive Rights or Privileges

Article 163. Definitions

For the purposes of this Chapter:

(a) ‘state-owned enterprise' means any enterprise involved in a commercial activity over which a Party at central or subcentral level owns more than 50 % of the enterprise's subscribed capital or the votes attached to the shares issued by the enterprise;

(b) ‘state-controlled enterprise' means any enterprise involved in a commercial activity over which a Party at central or sub-central level exercises or has the possibility of exercising decisive influence, directly or indirectly, by virtue of its financial participation therein or by the rules or practices on its functioning, or by any other means relevant to establish such decisive influence. Decisive influence on the part of a Party shall be presumed when a Party, directly or indirectly, can appoint more than half of the members of the enterprise's administrative, managerial or supervisory body;

(c) ‘enterprise granted special or exclusive rights or privileges' means any enterprise, public or private, involved in a commercial activity, that has been granted by a Party, at central or sub-central level, in law or in fact, special or exclusive rights or privileges. Such rights or privileges may include the right to act as a distributor, a network provider or another intermediary for the purchase or sale of a good or for the provision or receipt of a service. ‘Enterprises granted special or exclusive rights or privileges' covers monopolies involved in a commercial activity;

(d) a ‘monopoly' means an entity involved in a commercial activity, including a consortium, that in a relevant market in the territory of a Party is designated at central or sub-central level as the sole supplier or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;

(e) ‘special rights' means rights granted by a Party at central or sub-central level to a limited number of enterprises within a given geographical area or a product or service market the effect of which is to substantially limit the ability of any other enterprise to carry out its activity in the same geographical area under substantially equivalent conditions. The granting of a licence or a permit to a limited number of enterprises in allocating a scarce resource through objective, proportional and non-discriminatory criteria is not in and of itself a special right;

(f) ‘non-discriminatory treatment' means national treatment or most-favoured-nation treatment as set out in this Agreement, whichever is better;

(g) ‘in accordance with commercial considerations' means consistent with customary business practices of a privately held enterprise operating according to market economy principles in international trade;

(h) ‘designate' means to establish or authorise a monopoly, or to expand the scope of a monopoly, whether in law or in fact.

Article 164. Scope

1. The Parties confirm their rights and obligations under paragraphs 1 to 3 of Article XVII of the GATT 1994, the Understanding on the Interpretation of Article XVII of the GATT 1994, as well as under paragraphs 1, 2 and 5 of Article VIII of the GATS and the Chapter on State-owned and State-controlled Enterprises and Enterprises with Special and Exclusive Privileges of the Protocol on the Accession of the Republic of Kazakhstan to the WTO, which are hereby incorporated into and made part of this Agreement and shall apply.

2. This Chapter does not apply to covered procurement by a Party or its procuring entities within the meaning of Article 120.

3. This Chapter shall apply to all economic activities covered by this Agreement. Services which are not listed in a Party's GATS schedule of specific commitments shall not be subject to the provisions of Articles 166 and 167.

Article 165.

1. Without prejudice to the Parties' rights and obligations under this Chapter, nothing in this Chapter prevents the Parties from establishing or maintaining state-owned or state-controlled enterprises or designating or maintaining monopolies or from granting enterprises special or exclusive rights or privileges.

2. Where an enterprise falls within the scope of application of this Chapter, the Parties shall not require or encourage such an enterprise to act in a manner inconsistent with this Agreement.

Article 166. Non-discrimination

Unless otherwise provided for in Article 142 or in a Party's GATS schedule of specific commitments or in a Party's reservations to national treatment set out in Annex I, each Party shall ensure in its territory that any enterprise satisfying the conditions set out in points (c) and (d) of Article 163 in its purchase or sale of a good or a service accords non-dis-criminatory treatment to a good of the other Party and/or to a service or a service supplier of the other Party.

Article 167. Commercial Considerations

Except to fulfil the purpose, such as a public service obligation, for which special or exclusive rights or privileges have been granted, or in the case of a state-owned or state-controlled enterprise to fulfil its public mandate, and provided that the enterprise's conduct in fulfilling that purpose or mandate is consistent with the provisions of Article 166 and Chapter 11 (Competition) of this Title, each Party shall ensure that any enterprise referred to in points (a) to (d) of Article 163 acts in accordance with commercial considerations in the relevant territory in its purchases and sales of goods, including with regard to price, quality, availability, marketability, transportation and other terms and conditions of purchase or sale, as well as in its purchases or supply of services, including when those goods or services are supplied to or by an investment of an investor of the other Party.

Article 168. Pricing

Charging different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as supply and demand conditions, is not in itself inconsistent with Articles 166 and 167.

Article 169. Corporate Governance

1. The Parties shall ensure that enterprises referred to in points (a) to (d) of Article 163 observe high standards of transparency and corporate governance in accordance with the 2005 OECD Guidelines on Corporate Governance of State-Owned Enterprises. Further development of the policy of corporate governance in enterprises referred to in points (a) to (d) of Article 163 should be conducted in accordance with those Guidelines.

2. Each Party shall ensure that any regulatory body responsible for regulating enterprises referred to in points (a) to

(d) of Article 163 is legally distinct and functionally independent from, and not accountable to, any of the enterprises referred to in points (a) to (d) of Article 163.

3. Each Party shall ensure the enforcement of laws and regulations in a consistent and non-discriminatory manner at all levels of government, be it central or local, and including on enterprises referred to in points (a) to (d) of Article 163. Exemptions shall be limited and transparent.

Article 170. Exchange of Information

1. A Party which has a reason to believe that its interests under this Agreement are being adversely affected by the operations of an enterprise or enterprises referred to in points (a) to (d) of Article 163 of the other Party, may request that latter Party to supply information about the operations of its enterprise relating to the carrying out of the provisions of this Agreement. Such information may include organisational, corporate and financial information.

2. Each Party shall, at the request of the other Party, make available information concerning specific enterprises referred to in points (a) to (d) of Article 163 which do not qualify as small and medium-sized enterprises as defined in the law of the requested Party. Requests for such information shall indicate the enterprise, the products or services and markets concerned, and include indications that the enterprise is engaging in practices that hinder trade or investment between the Parties.

3. Each Party shall, at the request of the other Party, make available information concerning exemptions, nonconforming measures, immunities and any other measures, including more favourable treatment, applicable in the territory of the requested Party to any enterprise referred to in points (a) to (d) of Article 163. 4

4. Paragraphs 1 to 3 shall not require any Party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular enterprises.

Chapter 13. Transparency

Article 171.

1. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements which pertain to or affect this Title. Each Party shall establish one or more enquiry points to provide to interested persons of the other Party, upon request, specific information on all such matters (1). The Parties shall notify each other of the enquiry points within three months of the date of application of this Title. Enquiry points need not be depositories of laws and regulations.

2. All laws, regulations, decrees, decisions and administrative rulings of general application of the Parties pertaining to or affecting any matter governed by this Title shall be published promptly in a manner that fulfils the applicable requirements of the WTO Agreement, including those of Article X of the GATT 1994, Article III of the GATS, and Article 63 of the TRIPS Agreement. The Parties shall update published resources, including websites, containing such measures, on a regular basis and make them readily available to interested persons. Such measures shall be available while they are in effect and for a reasonable period after they are no longer in effect.

3. The Parties shall publish all laws, regulations, decrees, decisions and administrative rulings of general application pertaining to or affecting any matter governed by this Title, prior to their adoption. The Parties shall provide a reasonable period of time, normally not less than 30 calendar days, for interested persons to comment to the responsible authorities before the relevant measure is finalised or submitted to the authorities responsible for its adoption. Any comments received during the period for comments will be taken into account.

4. No law, regulation, decree, decision or administrative ruling of general application of the Parties pertaining to or affecting any matter governed by this Title shall become effective prior to publication.

5. Nothing in this Agreement shall require a Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, whether public or private.

6. Article 55 shall apply with respect to this Chapter.

(1) The enquiry point for the Republic of Kazakhstan is the enquiry point set up under the GATS Agreement.

Chapter 14. Dispute Settlement

Section 1. Objective and Scope

Article 172. Objective

The objective of this Chapter is to establish an effective and efficient mechanism for avoiding and settling any dispute between the Parties concerning the interpretation and application of this Agreement with a view to arriving, where possible, at a mutually agreed solution.

Article 173. Scope of Application

This Chapter shall apply with respect to any dispute concerning the interpretation and application of this Title, except as otherwise provided.

Section 2. Consultations and Mediation

Article 174. Consultations

1. The Parties shall endeavour to resolve any dispute referred to in Article 173 by entering into consultations in good faith with the aim of reaching a mutually agreed solution.

2. A Party shall seek consultations by means of a written request delivered to the other Party, copied to the Cooperation Committee, identifying the measure at issue and the provisions referred to in Article 173 that it considers applicable.

3. The Party to which the request is made shall respond to the request for consultations within 10 days of the date of its receipt, unless otherwise provided for in this Agreement or agreed between the Parties.

4. The consultations shall be held within 30 days of the date of receipt of the request and take place, unless the Parties agree otherwise, in the territory of the Party to which the request is made. The consultations shall be deemed concluded within 30 days of the date of receipt of the request, unless both Parties agree to continue consultations. Consultations, and in particular all information disclosed and positions taken by the Parties during the consultations, shall be confidential, and without prejudice to the rights of either Party in any further proceedings.

5. Consultations on matters of urgency shall be deemed concluded within 15 days of the date of receipt of the request by the requested Party unless both Parties agree to continue consultations.

6. If the Party to which the request is made does not respond to the request for consultations within 10 days of the date of its receipt, or if consultations are not held within the timeframes laid down in paragraph 3 or 4 of this Article, respectively, or if the Parties agree not to have consultations, or if consultations have been concluded and no mutually agreed solution has been reached, the Party that sought consultations may have recourse to Article 176.

7. During consultations each Party shall provide sufficient factual information, so as to allow a complete examination of the manner in which the measure at issue could affect the operation and application of this Agreement.

8. The consultations shall be deemed concluded within five working days of the date of receipt of the request for consultations, unless the Parties agree otherwise, when they concern emergency situations as defined in point (h) of Article 138.

Article 175. Mediation

Any Party may request the other Party to enter into a mediation procedure with respect to any measure adversely affecting trade or investment between the Parties pursuant to Annex VII.

Section 3. Dispute Settlement Procedures

Subsection 1. Arbitration Procedure

Article 176. Initiation of the Arbitration Procedure

1. Where the Parties have failed to resolve the dispute by recourse to consultations as provided for in Article 174, the Party that sought consultations may request the establishment of an arbitration panel in accordance with this Article.

2. The request for the establishment of an arbitration panel shall be made by means of a written request delivered to the other Party and the Cooperation Committee. The complaining Party shall identify in its request the measure at issue, and it shall explain how such measure constitutes a breach of the provisions referred to in Article 173 in a manner sufficient to present the legal basis for the complaint clearly.

Article 177. Establishment of the Arbitration Panel

1. An arbitration panel shall be composed of three arbitrators.

2. Within 10 days of the date of delivery, to the Party complained against, of the written request for the establishment of an arbitration panel, the Parties shall consult in order to reach an agreement on the composition of the arbitration panel.

3. In the event that the Parties are unable to agree on the composition of the arbitration panel within the time frame laid down in paragraph 2 of this Article, each Party may, within five days from the expiry of the timeframe established in paragraph 2 of this Article, appoint an arbitrator from the sub-list of that Party contained in the list established under Article 196. If either Party fails to appoint an arbitrator, the arbitrator shall, upon request of the other Party, be selected by lot by the chair of the Cooperation Committee, or the chair's delegate, from the sub-list of that Party contained in the list established under Article 196.

4. Unless the Parties reach an agreement concerning the chairperson of the arbitration panel within the timeframe established in paragraph 2 of this Article, the chair of the Cooperation Committee or the chair's delegate shall, upon request of either Party, select by lot the chairperson of the arbitration panel from the sub-list of chairpersons contained in the list established under Article 196.

5. The chair of the Cooperation Committee, or the chair's delegate, shall select the arbitrators within five days of the request by either Party referred to in paragraph 3 or 4.

6. The date of establishment of the arbitration panel shall be the last date on which all three selected arbitrators have accepted their appointment according to the Rules of Procedure set out in Annex V.

7. Should any of the lists provided for in Article 196 not be established or not contain sufficient names at the time a request is made pursuant to paragraph 3 or 4 of this Article, the arbitrators shall be drawn by lot from the individuals who have been formally proposed by one or both of the Parties. 8

8. Unless the Parties agree otherwise, in respect of a dispute concerning emergency situations as defined in point (h) of Article 138 between the Parties, the second sentence of paragraph 3 and paragraph 4 of this Article shall apply without recourse to paragraph 2 of this Article, and the period in paragraph 5 of this Article shall be two days.

Article 178. Preliminary Ruling on Urgency

If a Party so requests, the arbitration panel shall, within 10 days of its establishment, give a preliminary ruling on whether it deems the case to be urgent.

Article 179. Conciliation for Urgent Energy Disputes

1. In respect of a dispute concerning emergency situations as defined in point (h) of Article 138 either Party may request the chairperson of the arbitration panel to act as conciliator concerning any matter related to the dispute by making a request to the arbitration panel.

2. The conciliator shall seek an agreed resolution of the dispute or seek to agree a procedure to achieve such resolution. If within 15 days of the date of his appointment the conciliator has failed to secure such agreement, he shall recommend a resolution to the dispute or a procedure to achieve such resolution and shall decide on the terms and conditions to be observed from a date which he shall specify until the dispute is resolved.

3. The Parties and the entities under their control or jurisdiction shall respect recommendations made under paragraph 2 on the terms and conditions for three months following the conciliator's decision or until resolution of the dispute, whichever is earlier.

4. The conciliator shall respect the Code of Conduct for Members of Arbitration Panels and Mediators (‘Code of Conduct') set out in Annex VI.

Article 180. Reports of the Arbitration Panel

1. The arbitration panel shall deliver an interim report to the Parties setting out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes.

2. Any Party may deliver a written request to the arbitration panel to review precise aspects of the interim report within 14 days of its receipt.

3. After considering any written comments by the Parties on the interim report, the arbitration panel may modify its interim report and make any further examination it considers appropriate.

4. The final report of the arbitration panel shall set out the findings of fact, the applicability of the relevant provisions referred to in Article 173 and the basic rationale behind any findings and conclusions that it makes. The final report shall include a sufficient discussion of the arguments made at the interim review stage, and shall answer clearly to the questions and observations of the Parties.

Article 181. Interim Report of the Arbitration Panel

1. The arbitration panel shall deliver an interim report to the Parties no later than 90 days after the date of establishment of the arbitration panel. When the arbitration panel considers that this deadline cannot be met, the chairperson of the arbitration panel shall notify the Parties and the Cooperation Committee in writing, stating the reasons for the delay and the date on which the arbitration panel plans to deliver its interim report. Under no circumstances should the interim report be delivered later than 120 days after the date of establishment of the arbitration panel.

2. In cases of urgency the arbitration panel shall make every effort to deliver its interim report within 45 days and, in any case, no later than 60 days after the date of establishment of the arbitration panel. Any Party may deliver a written request to the arbitration panel to review precise aspects of the interim report pursuant to Article 180(2) within seven days of the delivery of the interim report.

3. In respect of a dispute concerning emergency situations as defined in point (h) of Article 138 between the Parties, the interim report shall be delivered within 20 days after the date of establishment of the arbitration panel, and any request pursuant to Article 180(2) shall be delivered within five days of the delivery of the interim report. The arbitration panel may also decide to dispense with the interim report.

Article 182. Final Report of the Arbitration Panel

1. The arbitration panel shall deliver its final report to the Parties and to the Cooperation Committee within 120 days of the date of establishment of the arbitration panel. When the arbitration panel considers that this deadline cannot be met, the chairperson of the arbitration panel shall notify the Parties and the Cooperation Committee in writing, stating the reasons for the delay and the date on which the panel plans to deliver its final report. Under no circumstances should the final report be delivered later than 150 days after the date of establishment of the arbitration panel.

2. In cases of urgency, the arbitration panel shall make every effort to deliver its report within 60 days after the date of establishment of the arbitration panel. Under no circumstances should the final report be delivered later than 75 days after the date of establishment of the arbitration panel.

3. In respect of a dispute concerning emergency situations as defined in point (h) of Article 138, the arbitration panel shall deliver its final report within 40 days of the date of establishment of the arbitration panel.

Subsection 2. Compliance

Article 183. Compliance with the Final Report of the Arbitration Panel

The Party complained against shall take the necessary measures to comply promptly and in good faith with the final report of the arbitration panel.

Article 184. Reasonable Period of Time for Compliance

1. If immediate compliance is not possible, the Parties shall endeavour to agree on the period of time to comply with the final report. In such a case, the Party complained against shall, no later than 30 days after receipt of the final report of the arbitration panel, deliver a notification to the complaining Party and the Cooperation Committee of the time it will require for compliance (‘the reasonable period of time').

2. If there is disagreement between the Parties on the duration of the reasonable period of time, the complaining Party may, within 20 days of receipt of the notification referred to in paragraph 1 of this Article, request in writing that the arbitration panel established initially pursuant to Article 177 (‘the original arbitration panel') determine the length of the reasonable period of time. Such request shall be delivered simultaneously to the other Party and to the Cooperation Committee. The arbitration panel shall deliver its report to the Parties and to the Cooperation Committee within 20 days of the date of receipt of the request. 3

3. The Party complained against shall notify the complaining Party in writing of its progress in complying with the final report of the arbitration panel. This notification shall be provided in writing and delivered at least one month before the expiry of the reasonable period of time.

4. The reasonable period of time may be extended by mutual agreement of the Parties.

Article 185. Review of Any Measure Taken to Comply with the Final Report of the Arbitration Panel

1. The Party complained against shall notify the complaining Party and the Cooperation Committee of any measure that it has taken to comply with the final report of the arbitration panel. This notification shall be delivered before the end of the reasonable period of time.

2. In the event that there is disagreement between the Parties concerning the existence or the consistency of any measure notified under paragraph 1 of this Article with the provisions referred to in Article 173, the complaining Party may deliver a written request to the original arbitration panel to rule on the matter. Such request shall identify the specific measure at issue and explain how such measure is inconsistent with the provisions referred to in Article 173, in a manner sufficient to present the legal basis for the complaint clearly. The arbitration panel shall deliver its report to the Parties and to the Cooperation Committee within 45 days of the date of receipt of the request.

Article 186. Temporary Remedies In Case of Non-compliance

1. If the Party complained against fails to notify any measure taken to comply with the final report of the arbitration panel before the expiry of the reasonable period of time, or if the arbitration panel rules that no measure taken to comply exists or that the measure notified under Article 185(1) is inconsistent with that Party's obligations under the provisions referred to in Article 173, the Party complained against shall, if so requested by the complaining Party and after consultations with that Party, present an offer for compensation.

2. If the complaining Party decides not to request an offer for compensation under paragraph 1 of this Article or, in case such request is made, if no agreement on compensation is reached within 30 days of the date of expiry of the reasonable period of time or of the delivery of the arbitration panel report under Article 18 5(2), the complaining Party shall be entitled, upon notification to the other Party and to the Cooperation Committee, to take appropriate measures at a level equivalent to the nullification or impairment (') caused by the violation. The notification shall specify such measures. The complaining Party may implement the measures at any moment after the expiry of a ten-day period from the date of receipt of the notification by the Party complained against, unless the Party complained against has requested arbitration under paragraph 3 of this Article.

3. If the Party complained against considers that the appropriate measures are not at a level equivalent to the nullification or impairment caused by the violation of that Party's obligations under the provisions referred to in Article 173, the Party complained against may deliver a written request to the original arbitration panel to rule on the matter. Such request shall be notified to the complaining Party and to the Cooperation Committee before the expiry of the ten-day period referred to in paragraph 2 of this Article. The original arbitration panel shall deliver its report on the measures notified by the complaining Party to the Parties and to the Cooperation Committee within 30 days of the date of delivery of the request. The complaining Party shall not make the notified measures effective until the original arbitration panel has delivered its report. Such measure made effective after the delivery of the report shall be consistent with the arbitration panel report.

4. The measures made effective by the complaining Party and the compensation foreseen in this Article shall be temporary and shall not be applied after:

(a) the Parties have reached a mutually agreed solution pursuant to Article 191;

(b) the Parties have agreed that the measure notified under Article 18 5(1) brings the Party complained against in conformity with the provisions referred to in Article 173; or

(c) any measure that the arbitration panel under Article 185(2) has found to be inconsistent with the provisions referred to in Article 173 has been withdrawn or amended so as to bring it in conformity with those provisions.

F 1) ‘Nullification and impairment' is interpreted as ‘nullification and impairment' pursuant to the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

Article 187. Review of Any Measure Taken to Comply after the Adoption of Temporary Remedies for Non-compliance

1. The Party complained against shall notify the complaining Party and the Cooperation Committee of the measure it has taken to comply with the final report of the arbitration panel following the application of compensation or the taking of an appropriate measure by the complaining Party pursuant to Article 186, as the case may be. With the exception of cases under paragraph 2 of this Article, the complaining party shall terminate the measure within 30 days from receipt of the notification. In cases where compensation has been applied, and with the exception of cases under paragraph 2 of this Article, the Party complained against may terminate the application of such compensation within 30 days from receipt of the notification that it has complied with the final report of the arbitration panel.

2. If the Parties do not reach an agreement on whether the Party complained against has complied with the final report of the arbitration panel within 30 days from receipt of the notification under paragraph 1 of this Article, the complaining Party shall deliver a written request to the original arbitration panel to rule on the matter. Such a request shall be delivered simultaneously to the other Party and to the Cooperation Committee. The arbitration panel report shall be delivered to the Parties and to the Cooperation Committee within 45 days of the date of the submission of the request. If the arbitration panel rules that the Party complained against has complied with the final report of the arbitration panel, the complaining Party shall terminate the appropriate measure taken under Article 186 or the Party complained against shall terminate the compensation, as the case may be. If the arbitration panel rules that the Party complained against has not fully complied with the final report of the arbitration panel, the compensation or the appropriate measure taken pursuant to Article 186 shall be adapted in light of the arbitration panel report.

Article 188. Remedies for Urgent Energy Disputes

1. In respect of a dispute concerning emergency situations as defined in point (h) of Article 138 between the Parties, this Article shall apply.

2. By way of derogation from Articles 184, 185 and 186, the complaining Party may take appropriate measures to a level equivalent to the nullification or impairment caused by a Party failing to bring itself into compliance with the final report of the arbitration panel within 15 days of its release. Those measures may take effect immediately. Such measures may be maintained as long as the Party complained against has not complied with the final report of the arbitration panel.

3. Should the Party complained against dispute the existence of a failure to comply or the proportionality of the measure made effective by the complaining Party or its failure to comply, it may initiate proceedings under Article 186(3) and Article 187 which shall be examined expeditiously. The complaining Party shall be required to remove or adjust the measures only once the arbitration panel has ruled on the matter, and may maintain the measures pending the proceedings.

Subsection 3. Common Provisions

Article 189. Replacement of Arbitrators

If in an arbitration proceeding under this Chapter the original arbitration panel, or some of its members, are unable to participate, withdraw, or need to be replaced because they do not comply with the requirements of the Code of Conduct set out in Annex VI, the procedure set out in Article 177 shall apply. The time limit for the delivery of the report may be extended for the time necessary for the appointment of a new arbitrator but for no longer than 20 days.

Article 190. Suspension and Termination of Arbitration and Compliance Procedures

The arbitration panel shall, at the request of both Parties, suspend its work at any time for a period agreed by the Parties not exceeding 12 consecutive months. The arbitration panel shall resume its work before the end of that period at the written request of both Parties or at the end of that period at the written request of either Party. The requesting Party shall notify the chair of the Cooperation Committee and the other Party accordingly. If a Party does not request the resumption of the arbitration panel's work at the expiry of the agreed suspension period, the procedure shall be terminated. The suspension and termination of the arbitration panel's work are without prejudice to the rights of either Party in other proceedings subject to Article 197.

Article 191. Mutually Agreed Solution

The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time. They shall jointly notify the Cooperation Committee and the chairperson of the arbitration panel, where applicable, of any such solution. If the solution requires approval pursuant to the relevant domestic procedures of either Party, the notification shall refer to this requirement, and the dispute settlement procedure shall be suspended. If such approval is not required, or if the completion of any such domestic procedures is notified, the dispute settlement procedure shall be terminated.

Article 192. Rules of Procedure

1. Dispute settlement procedures under this Chapter shall be governed by the Rules of Procedure set out in Annex V and by the Code of Conduct set out in Annex VI.

2. Any hearing of the arbitration panel shall be open to the public unless otherwise provided for in the Rules of Procedure set out in Annex V.

Article 193. Information and Technical Advice

At the request of a Party, or on its own initiative, the arbitration panel may request any information it deems appropriate for the arbitration panel proceedings from any source, including the Parties involved in the dispute. The arbitration panel also has the right to seek the opinion of experts, as it deems appropriate. The arbitration panel shall consult the Parties before choosing such experts. Natural or legal persons established in the territory of a Party may submit amicus curiae briefs to the arbitration panel in accordance with the Rules of Procedure set out in Annex V. Any information obtained under this Article shall be disclosed to each Party and submitted for their comments.

Article 194. Rules of Interpretation

Any arbitration panel shall interpret the provisions referred to in Article 173 in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention of 1969 on the Law of Treaties. The arbitration panel shall also take into account relevant interpretations of WTO panels and of the Appellate Body adopted by the WTO Dispute Settlement Body (hereinafter referred to as the ‘DSB'). The reports of the arbitration panel cannot add to or diminish the rights and obligations of the Parties under this Agreement.

Article 195. Decisions and Reports of the Arbitration Panel

1. The deliberations of the arbitration panel shall be confidential. The arbitration panel shall make every effort to take any decision by consensus. Nevertheless, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by majority vote. In no case shall dissenting opinions of arbitrators be disclosed.

2. The reports of the arbitration panel shall be drafted without the presence of the Parties. The reports shall set out the findings of fact, the applicability of the relevant provisions referred to in Article 173, and the basic rationale behind any findings and conclusions that it makes.

3. The reports of the arbitration panel shall be unconditionally accepted by the Parties. They shall not create any rights or obligations for natural or legal persons.

4. The Parties shall make the arbitration panel report publicly available, subject to the protection of confidential information as provided for in the Rules of Procedure set out in Annex V.

Section 4. General Provisions

  • Title   I General Principles and Aims of this Agreement 1
  • Article   1 General Principles 1
  • Article   2 Aims of this Agreement 1
  • Article   3 Cooperation In Regional and International Organisations 1
  • Title   II POLITICAL DIALOGUE; COOPERATION IN THE FIELD OF FOREIGN AND SECURITY POLICY 1
  • Article   4 Political Dialogue 1
  • Article   5 Democracy and the Rule of Law 1
  • Article   6 Foreign and Security Policy 1
  • Article   7 Space Security 1
  • Article   8 Serious Crimes of International Concern 1
  • Article   9 Conflict Prevention and Crisis Management 1
  • Article   10 Regional Stability 1
  • Article   11 Countering the Proliferation of Weapons of Mass Destruction 1
  • Article   12 Small Arms and Light Weapons 1
  • Article   13 Counter-terrorism 1
  • Title   III Trade and Business 1
  • Chapter   1 Trade In Goods 1
  • Article   14 Most-favoured-nation Treatment 1
  • Article   15 National Treatment 1
  • Article   16 Import and Export Customs Duties 1
  • Article   17 Import and Export Restrictions 1
  • Article   18 Temporary Admission of Goods 1
  • Article   19 Transit 1
  • Article   20 Safeguard Measures 1
  • Article   21 Special Agriculture Safeguard 1
  • Article   22 Anti-dumping and Countervailing Measures 1
  • Article   23 Pricing 1
  • Article   24 Exceptions 1
  • Chapter   2 Customs 1
  • Article   25 Customs Cooperation 1
  • Article   26 Mutual Administrative Assistance 2
  • Article   27 Customs Valuation 2
  • Chapter   3 Technical Barriers to Trade 2
  • Article   28 Wto Agreement on Technical Barriers to Trade 2
  • Article   29 Technical Regulation, Standardisation, Metrology, Accreditation, Market Surveillance and Conformity Assessment 2
  • Article   30 Transparency 2
  • Chapter   4 Sanitary and Phytosanitary Matters 2
  • Article   31 Objective 2
  • Article   32 Principles 2
  • Article   33 Import Requirements 2
  • Article   34 Equivalence 2
  • Article   35 Measures Linked to Animal and Plant Health 2
  • Article   36 Trade Facilitation 2
  • Article   37 Inspections and Audits 2
  • Article   38 Exchange of Information and Cooperation 2
  • Chapter   5 Trade In Services and Establishment 2
  • Section   1 General Provisions 2
  • Article   39 Objective, Scope and Coverage 2
  • Article   40 Definitions 2
  • Section   2 Establishment and Cross-border Supply of Services 2
  • Subsection   1 All Economic Activities 2
  • Article   41 Scope and Coverage 2
  • Article   42 Progressive Improvement of Conditions for Establishment 2
  • Article   43 Progressive Improvement of Conditions for Cross-border Supply of Services 2
  • Subsection   2 Economic Activities other Than Services 2
  • Article   44 Scope and Coverage 2
  • Article   45 Most-favoured-nation Treatment 2
  • Article   46 National Treatment 2
  • Section   3 Temporary Presence of Natural Persons for Business Purposes 2
  • Article   47 Coverage and Definitions 2
  • Article   48 Intra-corporate Transferees and Business Visitors for Establishment Purposes 2
  • Article   49 Contractual Service Suppliers 2
  • Article   50 Most-favoured-nation Treatment 3
  • Article   51 Progressive Improvement of Conditions for Temporary Presence of Natural Persons for Business Purposes 3
  • Section   4 Domestic Regulation 3
  • Article   52 Scope and Coverage 3
  • Article   53 Licensing and Qualification 3
  • Section   5 Sector Specific Provisions 3
  • Article   54 International Maritime Transport 3
  • Article   54bis Road, Rail, Inland Waterways and Air Transport 3
  • Section   6 Exceptions 3
  • Article   55 General Exceptions 3
  • Section   7 Investment 3
  • Article   56 Review and Consultations 3
  • Chapter   6 Capital Movements and Payments 3
  • Article   57 Current Account 3
  • Article   58 Movement of Capital 3
  • Article   59 Exceptions 3
  • Article   60 Temporary Safeguard Measures with Regard to Capital Movements, Payments or Transfers 3
  • Chapter   7 Intellectual Property 3
  • Article   61 Objectives 3
  • Section   1 Principles 3
  • Article   62 Nature and Scope of Obligations 3
  • Article   63 Transfer of Technology 3
  • Article   64 Exhaustion 3
  • Section   2 Standards Concerning Intellectual Property Rights 3
  • COPYRIGHT AND RELATED RIGHTS 3
  • Article   65 Protection Granted 3
  • Article   66 Authors 3
  • Article   67 Performers 3
  • Article   68 Producers of Phonograms 4
  • Article   69 Broadcasting Organisations 4
  • Article   70 Broadcasting and Communication to the Public 4
  • Article   71 Term of Protection 4
  • Article   72 Protection of Technological Measures 4
  • Article   73 Protection of Rights-management Information 4
  • Article   74 Exceptions and Limitations 4
  • Article   75 Resale Right 4
  • Article   76 Cooperation on Collective Management of Rights 4
  • TRADEMARKS 4
  • Article   77 International Agreements 4
  • Article   78 Registration Procedure 4
  • Article   79 Well-known Trademarks 4
  • Article   80 Exceptions to the Rights Conferred by a Trademark 4
  • GEOGRAPHICAL INDICATIONS 4
  • Article   81 Definition 4
  • Article   82 Principles of the Protection of Geographical Indications 4
  • Article   83 Negotiations 4
  • DESIGNS 4
  • Article   84 International Agreements 4
  • Article   85 Requirements for Protection of Registered Designs 4
  • Article   86 Rights Conferred by Registration 4
  • Article   87 Protection Conferred to Unregistered Designs 4
  • Article   88 Term of Protection 4
  • Article   89 Exceptions 4
  • Article   90 Relationship to Copyright 4
  • PATENTS 4
  • Article   91 International Agreements 4
  • Article   92 Patents and Public Health 4
  • Article   93 Supplementary Protection Certificates 4
  • Article   94 Protection of Data Submitted to Obtain an Authorisation to Put a Pharmaceutical Product on the Market  (1) 4
  • Article   95 Data Protection on Plant Protection Products and Rules on Avoidance of Duplicative Testing 4
  • Article   96 Plant Varieties 4
  • Section   3 Enforcement of Intellectual Property Rights 4
  • Article   97 General Obligations 4
  • Article   98 Entitled Applicants 4
  • Article   99 Evidence 4
  • Article   100 Measures for Preserving Evidence 5
  • Article   101 Right of Information 5
  • Article   102 Provisional and Precautionary Measures 5
  • Article   103 Corrective Measures 5
  • Article   104 Injunctions 5
  • Article   105 Alternative Measures 5
  • Article   106 Damages 5
  • Article   107 Legal Costs 5
  • Article   108 Publication of Judicial Decisions 5
  • Article   109 Presumption of Authorship or Ownership 5
  • Article   110 Administrative Procedures 5
  • Article   111 Border Measures 5
  • Section   4 Liability of Intermediary Service Providers 5
  • Article   112 Use of Intermediaries' Services 5
  • Article   113 Liability of Intermediary Service Providers: ‘mere Conduit' 5
  • Article   114 Liability of Intermediary Service Providers: ‘caching' 5
  • Article   115 Liability of Intermediary Service Providers: ‘hosting' 5
  • Article   116 No General Obligation to Monitor 5
  • Article   117 Date of Application of Articles 112 to 116 5
  • Article   118 Cooperation 5
  • Chapter   8 Government Procurement 5
  • Article   119 Definitions 5
  • Article   120 Scope and Coverage 5
  • Article   121 General Exceptions 6
  • Article   122 General Principles 6
  • Article   123 Information on the Procurement System 6
  • Article   124 Notices 6
  • Article   125 Conditions for Participation 6
  • Article   126 Qualification of Suppliers 6
  • Article   127 Technical Specifications and Tender Documentation 6
  • Article   128 Time Periods 7
  • Article   129 Negotiation 7
  • Article   130 Limited Tendering 7
  • Article   131 Electronic Auctions 7
  • Article   132 Treatment of Tenders and Awarding of Contracts 7
  • Article   133 Transparency of Procurement Information 7
  • Article   134 Disclosure of Information 7
  • Article   135 Domestic Review Procedures 7
  • Article   136 Modifications and Rectifications to Coverage 7
  • Article   137 Transitional Period 8
  • Chapter   9 Raw Materials and Energy 8
  • Article   138 Definitions 8
  • Article   139 Price Regulation 8
  • Article   140 Trading and Export Monopolies 8
  • Article   141 Access and Rights to Prospect, Explore and Produce Hydrocarbons (crude Oil and Natural Gas) 8
  • Article   142 Conditions for Investment In Raw Materials and Energy Goods 8
  • Article   143 Transit 8
  • Article   144 Interruption 8
  • Article   145 Access to High-voltage Electric Energy Transmission Grids and Lines 8
  • Article   146 Regulatory Authorities for Electricity and Gas 8
  • Article   147 Renewable Energy Sector 8
  • Article   148 Cooperation In Raw Materials and Energy Goods 8
  • Article   149 Early Warning Mechanism 8
  • Article   150 Exceptions 8
  • Chapter   10 Trade and Sustainable Development 8
  • Article   151 Context and Objectives 8
  • Article   152 Multilateral Environmental and Labour Standards and Agreements 8
  • Article   153 Right to Regulate and Levels of Protection 8
  • Article   154 Trade and Investment Promoting Sustainable Development 8
  • Article   155 Dispute Settlement 8
  • Chapter   11 Competition 8
  • Article   156 Principles 8
  • Article   157 Antitrust and Mergers Legislation and Its Implementation 8
  • Article   158 State Monopolies, State Enterprises and Enterprises Entrusted with Special or Exclusive Rights or Privileges 8
  • Article   159 Subsidies 8
  • Article   160 Dispute Settlement 9
  • Article   161 Relationship with the WTO 9
  • Article   162 Confidentiality 9
  • Chapter   12 State-owned Enterprises, State-controlled Enterprises and Enterprises Granted Special or Exclusive Rights or Privileges 9
  • Article   163 Definitions 9
  • Article   164 Scope 9
  • Article   165 9
  • Article   166 Non-discrimination 9
  • Article   167 Commercial Considerations 9
  • Article   168 Pricing 9
  • Article   169 Corporate Governance 9
  • Article   170 Exchange of Information 9
  • Chapter   13 Transparency 9
  • Article   171 9
  • Chapter   14 Dispute Settlement 9
  • Section   1 Objective and Scope 9
  • Article   172 Objective 9
  • Article   173 Scope of Application 9
  • Section   2 Consultations and Mediation 9
  • Article   174 Consultations 9
  • Article   175 Mediation 9
  • Section   3 Dispute Settlement Procedures 9
  • Subsection   1 Arbitration Procedure 9
  • Article   176 Initiation of the Arbitration Procedure 9
  • Article   177 Establishment of the Arbitration Panel 9
  • Article   178 Preliminary Ruling on Urgency 9
  • Article   179 Conciliation for Urgent Energy Disputes 9
  • Article   180 Reports of the Arbitration Panel 9
  • Article   181 Interim Report of the Arbitration Panel 9
  • Article   182 Final Report of the Arbitration Panel 9
  • Subsection   2 Compliance 9
  • Article   183 Compliance with the Final Report of the Arbitration Panel 9
  • Article   184 Reasonable Period of Time for Compliance 9
  • Article   185 Review of Any Measure Taken to Comply with the Final Report of the Arbitration Panel 9
  • Article   186 Temporary Remedies In Case of Non-compliance 9
  • Article   187 Review of Any Measure Taken to Comply after the Adoption of Temporary Remedies for Non-compliance 9
  • Article   188 Remedies for Urgent Energy Disputes 9
  • Subsection   3 Common Provisions 9
  • Article   189 Replacement of Arbitrators 9
  • Article   190 Suspension and Termination of Arbitration and Compliance Procedures 9
  • Article   191 Mutually Agreed Solution 9
  • Article   192 Rules of Procedure 9
  • Article   193 Information and Technical Advice 9
  • Article   194 Rules of Interpretation 9
  • Article   195 Decisions and Reports of the Arbitration Panel 9
  • Section   4 General Provisions 10
  • Article   196 Lists of Arbitrators 10
  • Article   197 Relation with Wto Obligations 10
  • Article   198 Time Limits 10
  • Title   IV Cooperation In the Area of Economic and Sustainable Development 10
  • Chapter   1 Economic Dialogue 10
  • Article   199 10
  • Article   200 10
  • Chapter   2 Cooperation In Public Finance Management, Including Public Audit and Internal Control 10
  • Article   201 10
  • Chapter   3 Cooperation In the Area of Taxation 10
  • Article   202 10
  • Chapter   4 Cooperation In the Area of Statistics 10
  • Article   203 10
  • Chapter   5 Cooperation In the Area of Energy 10
  • Article   204 10
  • Article   205 10
  • Article   206 Hydrocarbon Energy 10
  • Article   207 Renewable Energy Sources 10
  • Article   208 Energy Efficiency and Energy Savings 10
  • Chapter   6 Cooperation In the Area of Transport 10
  • Article   209 10
  • Article   210 10
  • Article   211 10
  • Chapter   7 Cooperation In the Area of Environment 10
  • Article   212 10
  • Article   213 10
  • Article   214 10
  • Chapter   8 Cooperation In the Area of Climate Change 10
  • Article   215 10
  • Article   216 10
  • Article   217 10
  • Chapter   9 Cooperation In the Area of Industry 10
  • Article   218 10
  • Chapter   10 Cooperation In the Area of Small and Medium-sized Enterprises 10
  • Article   219 10
  • Chapter   11 Cooperation In the Area of Company Law 10
  • Article   220 10
  • Chapter   12 Cooperation In the Area of Banking, Insurance and other Financial Services 11
  • Article   221 11
  • Chapter   13 Cooperation In the Area of Information Society 11
  • Article   222 11
  • Article   223 11
  • Article   224 11
  • Chapter   14 Cooperation In the Area of Tourism 11
  • Article   225 11
  • Article   226 11
  • Article   227 11
  • Chapter   15 Cooperation In the Area of Agriculture and Rural Development 11
  • Article   228 11
  • Article   229 11
  • Chapter   16 Cooperation on Employment, Labour Relations, Social Policy and Equal Opportunities 11
  • Article   230 11
  • Article   231 11
  • Article   232 11
  • Chapter   17 Cooperation In the Area of Health 11
  • Article   233 11
  • Article   234 11
  • Title   V Cooperation In the Area of Freedom, Security and Justice 11
  • Article   235 Rule of Law and Respect for Human Rights and Fundamental Freedoms 11
  • Article   236 Legal Cooperation 11
  • Article   237 Protection of Personal Data 11
  • Article   238 Cooperation on Migration, Asylum and Border Management 11
  • Article   239 Consular Protection 11
  • Article   240 Combating Money Laundering and Financing of Terrorism 11
  • Article   241 Illicit Drugs 11
  • Article   242 Fight Against Organised and Transnational Crime and Corruption 11
  • Article   243 Fight Against Cybercrime 11
  • Title   VI Other Cooperation Policies 11
  • Chapter   1 Cooperation on Education and Training 11
  • Article   244 11
  • Chapter   2 Cooperation In the Field of Culture 11
  • Article   245 11
  • Chapter   3 Cooperation In Research and Innovation 11
  • Article   246 11
  • Article   247 11
  • Article   248 11
  • Chapter   4 Cooperation In the Media and Audiovisual Fields 11
  • Article   249 11
  • Article   250 11
  • Chapter   5 Civil Society Cooperation 11
  • Article   251 The Parties Shall Continue and Strengthen Their Dialogue, In the Form of Meetings and Consultations, and Shall Cooperate 11
  • Chapter   6 Cooperation In the Field of Sport and Physical Activity 12
  • Article   252 12
  • Chapter   7 Cooperation In the Area of Civil Protection 12
  • Article   253 12
  • Chapter   8 Cooperation In Space Activities 12
  • Article   254 12
  • Article   255 12
  • Chapter   9 Cooperation In the Area of Consumer Protection 12
  • Article   256 12
  • Chapter   10 Regional Cooperation 12
  • Article   257 12
  • Article   258 12
  • Article   259 12
  • Chapter   11 Cooperation In the Field of Civil Service 12
  • Article   260 12
  • Title   VII Financial and Technical Cooperation 12
  • Article   261 12
  • Article   262 12
  • Article   263 12
  • Article   264 Prevention 12
  • Article   265 Communication 12
  • Article   266 On-the-spot Inspections 12
  • Article   267 Investigation and Prosecution 12
  • Title   VIII Institutional Framework 12
  • Article   268 Cooperation Council 12
  • Article   269 Cooperation Committee and Specialised Subcommittees 12
  • Article   270 Parliamentary Cooperation Committee 12
  • Title   IX General and Final Provisions 12
  • Article   271 Access to Courts and Administrative Organs 12
  • Article   272 Delegation of Authority 12
  • Article   273 Restrictions In Case of Balance-of-payments and External Financial Difficulties 12
  • Article   274 Measures Related to Essential Security Interests 12
  • Article   275 Non-discrimination 12
  • Article   276 Taxation 12
  • Article   277 Fulfilment of Obligations 12
  • Article   278 Dispute Settlement 12
  • Article   279 Appropriate Measures In Case of Non-fulfilment of Obligations 13
  • Article   280 Public Access to Official Documents 13
  • Article   281 Entry Into Force, Provisional Application, Duration and Termination 13
  • Article   282 13
  • Article   283 13
  • Article   284 Annexes and Protocols 13
  • Article   285 Definition of the Parties 13
  • Article   286 Territorial Application 13
  • Article   287 Authentic Texts 13
  • ANNEX I  RESERVATIONS IN ACCORDANCE WITH ARTICLE 46 13
  • ANNEX II  LIMITATIONS APPLIED BY THE REPUBLIC OF KAZAKHSTAN IN ACCORDANCE WITH ARTICLE 48(2) 13
  • ANNEX V  RULES OF PROCEDURE FOR ARBITRATION UNDER CHAPTER 14 (DISPUTE SETTLEMENT) OF TITLE III (TRADE AND BUSINESS) 13
  • ANNEX VI  CODE OF CONDUCT FOR MEMBERS OF ARBITRATION PANELS AND MEDIATORS UNDER CHAPTER 14 (DISPUTE SETTLEMENT) OF TITLE III (TRADE AND BUSINESS) 14
  • ANNEX VII  MEDIATION MECHANISM UNDER CHAPTER 14 (DISPUTE SETTLEMENT) OF TITLE III (TRADE AND BUSINESS) 14
  • 1 Objective 14
  • Section   A Procedure Under the Mediation Mechanism 14
  • 2 Request for Information 14
  • 3 Initiation of the Procedure 14
  • 4 Selection of the Mediator 14
  • 5 Rules of the Mediation Procedure 14
  • Section   B Implementation 14
  • 6 Implementation of a Mutually Agreed Solution 14
  • Section   C General Provisions 14
  • 7 Confidentiality and Relationship to Dispute Settlement 14
  • 8 Time Limits 14
  • 9 Costs 15