7. All arbitrators shall:
(a) have expertise or experience in law, international trade, other matters covered by this Agreement, or the resolution of disputes arising under international trade agreements;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from, any Party; and
(d) comply with the code of conduct for panelists established under the Understanding on Rules and Procedures Governing the Settlement of Disputes, which is part of the WTO Agreement.
8. Individuals may not serve as arbitrators for a dispute in which they have participated pursuant to Article 15.5.
9. If an arbitrator appointed under this Article resigns or becomes unable to act, a successor arbitrator shall be appointed within 15 days in accordance with the selection procedure as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator.
10. The date of establishment of the arbitral tribunal shall be the date on which the Chair is appointed.
Article 15.8. Functions of Arbitral Tribunals
1. The function of an arbitral tribunal is to make an objective assessment of the dispute before it, including an examination of the facts of the case and the applicability of and conformity with this Agreement, and make such other findings and rulings necessary for the resolution of the dispute referred to it as it thinks fit.
2. The findings and rulings of the arbitral tribunal shall be binding on the disputing Parties.
3. The arbitral tribunal shall, apart from the matters set out in Article 15.9, regulate its own procedures in relation to the rights of Parties to be heard and its deliberations in consultation with the disputing Parties.
4. An arbitral tribunal shall take its decisions by consensus; provided that where an arbitral tribunal is unable to reach consensus it may take its decisions by majority vote.
Article 15.9. Rules of Procedure for Arbitral Tribunals
1. Unless the disputing Parties otherwise agree, the arbitral tribunal proceedings shall be conducted in accordance with the Model Rules of Procedure for Arbitral Tribunals set out at Annex 15.B.
2. Unless the disputing Parties otherwise agree within 20 days from the date of delivery of the request for the establishment of the arbitral tribunal, the terms of reference shall be:
"To examine, in the light of the relevant provisions of the Agreement, the matter referred to in the request for the establishment of an arbitral tribunal pursuant to Article 15.6 and to make findings of law and fact together with the reasons therefore for the resolution of the dispute.â
3. If a complaining Party wishes to argue that a matter has nullified or impaired benefits, the terms of reference shall so indicate.
4. At the request of a disputing Party or on its own initiative, the arbitral tribunal may seek scientific information and technical advice from experts as it deems appropriate. Any information so obtained shall be submitted to the disputing Parties and any third Party for comment.
5. Unless the arbitral tribunal determines otherwise because of the particular
circumstances of the case, a disputing Party shall bear the cost of its appointed arbitrator and its own expenses. The cost of the Chair of the arbitral tribunal and
other expenses associated with the conduct of its proceedings shall be borne by the disputing Parties in equal shares.
Article 15.10. Suspension or Termination of Proceedings
1. The disputing Parties may agree that the arbitral tribunal suspend its work at any time for a period not exceeding 12 months from the date of such agreement. If the work of the arbitral tribunal has been suspended for more than 12 months, the authority for establishment of the tribunal shall lapse unless the disputing Parties agree otherwise.
2. The disputing Parties may agree to terminate the proceedings of an arbitral
tribunal in the event that a mutually satisfactory solution to the dispute has been found.
Article 15.11. Initial Report
1. The reports of the arbitral tribunal shall be drafted without the presence of the Parties and shall be based on the relevant provisions of this Agreement and the submissions and arguments of the Parties.
2. Unless the disputing Parties otherwise agree, the arbitral tribunal shall:
(a) within 90 days after the last arbitrator is selected; or
(b) in cases of urgency including those relating to perishable goods within 60 days after the last arbitrator is selected,
present to the disputing Parties an initial report. 3. The initial report shall contain: (a) findings of fact; (b) the determination of the arbitral tribunal as to whether a disputing Party has not conformed with its obligations under this Agreement or that a disputing Partyâs measure is causing nullification or impairment in the sense of Annex 15.A or any other determination requested in the terms of reference; and
(c) the decision of the arbitral tribunal on the dispute.
4. In exceptional cases, if the arbitral tribunal considers it cannot release its initial report within 90 days, or within 60 days in cases of urgency, it shall inform
the disputing Parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. Any delay shall not exceed a further period of 30 days unless the disputing Parties otherwise agree.
5. Arbitrators may furnish separate opinions on matters not unanimously agreed.
6. A disputing Party may submit written comments to the arbitral tribunal on its initial report within 15 days of presentation of the report or within such other period as the disputing Parties may agree.
7. After considering any written comments on the initial report, the arbitral tribunal may reconsider its report and make any further examination it considers appropriate.
Article 15.12. Final Report
1. The arbitral tribunal shall present a final report to the disputing Parties, including any separate opinions on matters not unanimously agreed, within 30 days of presentation of the initial report, unless the disputing Parties otherwise agree. The disputing Parties shall release the final report to the public within 15 days thereafter, subject to the protection of confidential information.
2. If in its final report the arbitral tribunal determines that a disputing Party has not conformed with its obligations under this Agreement, or that a Party's measure is causing nullification or impairment within the sense of Annex 15.A, the decision, whenever possible, shall be to eliminate the non-conformity or the nullification or impairment.
3. No arbitral tribunal may, either in its initial report or its final report, disclose which arbitrators are associated with majority or minority opinions.
Article 15.3. Implementation of Final Report
1. The final report of an arbitral tribunal shall be binding on the disputing Parties and shall not be subject to appeal.
2. Unless the disputing Parties decide otherwise, they shall implement the decision contained in the final report of the arbitral tribunal within a reasonable period of time if it is not practicable to comply immediately.
3. If the arbitral tribunal determines that a measure of a Party that is taken by local government is not in conformity with its obligations under this Agreement, the Party shall notify the other Parties of the steps, such as legislative, regulatory or administrative steps, which the Party will take to implement the decision of the arbitral tribunal.
4. The reasonable period of time shall be mutually determined by the disputing Parties, or where the disputing Parties fail to agree on the reasonable period of time within 45 days of the release of the arbitral tribunal's report, either Party to the dispute may refer the matter to the arbitral tribunal, which shall determine the reasonable period of time following consultation with the disputing Parties.
Article 15.14. Compliance Within Reasonable Period of Time
1. Where there is disagreement as to the existence or consistency with this Agreement of measures taken within the reasonable period of time to comply with the decision of the arbitral tribunal, such dispute shall be decided through recourse to the dispute settlement procedures in this Chapter, including wherever possible by resort to the original arbitral tribunal.
2. The arbitral tribunal shall provide its report to the disputing Parties within 60 days after the date of the referral of the matter to it. When the arbitral tribunal considers that it cannot provide its report within this timeframe, if shall inform the disputing Parties in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. Any delay shall not exceed a further period of 30 days unless the disputing Parties otherwise agree.
Article 15.15. Compensation and Suspension of Benefits
1. If the Party concerned fails to bring the measure found to be inconsistent with the Agreement into compliance with the decision of the arbitral tribunal under Article 15.12 within the reasonable period of time established in accordance with Article 15.13, that Party shall, if so requested, enter into negotiations with the complaining Party with a view to reaching a mutually satisfactory agreement on any necessary compensatory adjustment.
2. If the arbitral tribunal decides that a Partyâs measure is causing nullification or impairment in the sense of Annex 15.A and the nullification or impairment is not addressed within the reasonable period of time established in accordance with Article 15.13, that Party shall, if so requested, enter into negotiations with the complaining Party with a view to reaching a mutually satisfactory agreement on any necessary compensatory adjustment.
3. A complaining Party may suspend the application of benefits of equivalent effect to the responding Party 30 days after the end of the reasonable period of time established in accordance with Article 15.13. Benefits may not be suspended while the complaining Party is pursuing negotiations under Paragraphs 1 or 2.
4. Compensation and the suspension of benefits shall be temporary measures. Neither compensation nor the suspension of benefits is preferred to full implementation of a decision to bring a measure into conformity with this Agreement. Compensation and suspension of benefits shall only be applied until such time as the measure found to be inconsistent with this Agreement has been removed, or the Party that must implement the arbitral tribunal's decision has done so, or a mutually satisfactory solution is reached.
5. In considering what benefits to suspend pursuant to Paragraph 3:
(a) the complaining Party should first seek to suspend benefits in the same sector(s) as that affected by the measure or other matter that the arbitral tribunal has found to be inconsistent with the obligations derived of this Agreement or to have caused nullification or impairment in the sense of Annex 15.A; and
(b) _ if the complaining Party considers that it is not practicable or effective to suspend benefits in the same sector(s), it may suspend benefits in other sectors. The communication in which it announces such a decision shall indicate the reasons on which it is based.
6. Upon written request of the Party concerned, the original arbitral tribunal shall determine whether the level of benefits suspended by the complaining Party is excessive pursuant to Paragraph 3. If the arbitral tribunal cannot be established with its original arbitrators, the proceeding set out in Article 15.7 shall be applied.
7. The arbitral tribunal shall present its determination within 60 days from the request made pursuant to Paragraph 6, or if an arbitral tribunal cannot be established with its original arbitrators, from the date on which the last arbitrator is selected. The ruling of the arbitral tribunal shall be final and binding. It shall be delivered to the disputing Parties and be made publicly available.
Article 15.16. Compliance Review
1. Without prejudice to the procedures in Article 15.15, if the responding Party considers that it has eliminated the non-conformity or the nullification or impairment that the arbitral tribunal found, it may refer the matter to the arbitral tribunal by providing written notice to the other Party. The arbitral tribunal shall issue its report on the matter within 90 days after the responding Party provides notice.
2. If the arbitral tribunal decides that the responding Party has eliminated the non-conformity or the nullification or impairment, the complaining Party shall promptly reinstate any benefits it has suspended under in Article 15.15.
Chapter 16. STRATEGIC PARTNERSHIP
Article 16.1. Definitions
For the purposes of this Chapter, primary industry encompasses activities in the agriculture and fisheries sectors (including activities in production, harvesting, processing and manufacturing of food products and their derivatives) and the forestry sector.
Article 16.2. Objectives
1. The Parties agree to establish a framework for cooperation between two or more of the Parties as a means to expand and enhance the benefits of this Agreement for building a strategic economic partnership between them.
2. The Parties will establish close cooperation aimed inter alia at:
(a) strengthening and building on existing cooperative relationships among the Parties, including a focus on innovation, research and development;
(b) creating new opportunities for trade and investment, promoting competitiveness and innovation including the involvement of public and private sectors;
(c) supporting the important role of the private sector in promoting and building strategic alliances to encourage mutual economic growth and development;
(d) encouraging the presence of the Parties and their goods and services in the respective markets of Asia, Pacific and Latin America; and
(e) increasing the level of and deepening cooperation activities among the Parties in areas of mutual interest.
Article 16.3. Scope
1. The Parties affirm the importance of all forms of cooperation, with particular attention given to economic, scientific, technological, educational, cultural and primary industry cooperation in contributing towards implementation of the objectives and principles of this Agreement. Cooperation among the Parties may be extended to other areas as agreed by the Parties.
2. Possible areas of cooperation will be developed through Implementing Arrangements.
3. Cooperation among the Parties should contribute to achieving the objectives of the Trans-Pacific Strategic Economic Partnership Agreement through the identification and development of innovative cooperation programmes capable of providing added value to their relationships.
4. Cooperation among the Parties under this Chapter will supplement the cooperation and cooperative activities among the Parties set out in other Chapters of this Agreement.
Article 16.4. Economic Cooperation
1. The aims of economic cooperation will be:
(a) to build on existing agreements or arrangements already in place for trade and economic cooperation; and
(b) to advance and strengthen trade and economic relations among the Parties.
2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and facilitate, as appropriate, the following activities, including, but not limited to:
(a) policy dialogue and regular exchanges of information and views on ways to promote and expand trade in goods and services among the Parties;
(b) keeping each other informed of important economic and trade issues, and any impediments to furthering their economic cooperation;
(c) providing assistance and facilities to businesspersons and trade missions that visit each other's country with the knowledge and support of the relevant agencies;
(d) supporting dialogue and exchanges of experience among the respective business communities of the Parties;
(e) establishing and developing mechanisms for providing information and identifying opportunities for business cooperation, trade in goods and services, investment, and government procurement;
(f) stimulating and facilitating actions of public and/or private sectors in areas of economic interest, including to explore opportunities in third markets; and
(g) working together to promote the use of English and other languages as tools for small and medium enterprises, and in the use of information technology tools to assist the learning process, as agreed by the APEC Economic Leaders at their 12th meeting.
Article 16.5. Cooperation In Research, Science and Technology
1. The aims of cooperation in research, science and technology, carried out in the mutual interest of all Parties and in compliance with their policies, particularly as regards the rules for use of intellectual property resulting from research, will be:
(a) to build on existing agreements or arrangements already in place for cooperation in research, science and technology;
(b) to encourage, where appropriate, government agencies, research institutions, universities, private companies and other research organisations in each other's country to conclude direct arrangements in support of cooperative activities, programmes or projects within the framework of this Agreement; and
(c) to focus cooperative activities towards sectors where mutual and complementary interests exist.
2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and facilitate, as appropriate, the following activities, including, but not limited to:
(a) identifying strategies, in consultation with universities and research centres, that encourage joint postgraduate studies and research visits;
(b) exchange of scientists, researchers and technical experts;
(c) exchange of information and documentation;
(d) promotion of public/private sector partnerships in the support of the development of innovative products and services; and
(e) cooperation in regional and other governmental and nongovernmental forums in areas of mutual interest.
Article 16.6. Education
1. the Aims of Education Cooperation Will Be:
(a) to build on existing agreements or arrangements already in place for cooperation in education; and
(b) to promote networking, mutual understanding and close working relationships in the area of education among the Parties.
2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and facilitate, as appropriate, exchanges between and among their respective education-related agencies, institutions, organisations, in fields such as:
(a) education quality assurance processes;
(b) on-line and distance education at all levels;
(c) primary and secondary education systems;
(d) higher education;
(e) technical education and vocational training;
(f) industry collaboration for technical and vocational training; and
(g) teacher training and development.
3. Cooperation in education can focus on:
(a) the exchange of information such as teaching and curriculum materials, teaching aids, and demonstration materials, as well as the organisation of relevant specialised exhibitions and seminars;
(b) joint planning and implementation of programs and projects, and joint coordination of targeted activities in agreed fields;
(c) development of collaborative training, joint research and development, across graduate and postgraduate studies;
(d) the exchange of teaching staff, administrators, researchers and students in relation to programmes that will be of mutual benefit;
(e) gaining understanding of each Parties' education systems and policies including information relevant to the interpretation and evaluation of qualifications, potentially leading to discussions between institutions of higher learning on academic credit transfer and the possibility of mutual recognition of qualifications;
(f) collaboration on the development of innovative quality assurance resources to support learning and assessment, and the professional development of teachers and trainers in training and vocational education; and
(g) encouraging and facilitating the development of public and / or private ventures in education.
Article 16.7. Cultural Cooperation
The Aims of Cultural Cooperation Will Be to:
(a) build on existing agreements or arrangements already in place for cultural cooperation; and
(b) promote the exchange of information and practice among the Parties.
Article 16.8. Primary Industry
1. The aims of cooperation in primary industry, carried out in the mutual interest of all Parties and in compliance with their policies, will be:
(a) to build on existing Agreements or Arrangements already in place for cooperation in agriculture and forestry;
(b) to encourage and promote better understanding between the primary sectors in each country;
(c) to encourage, where appropriate, the development of scientific knowledge and technical cooperation among government agencies, research institutions, universities, private companies and other research organisations in each othersâ countries and to conclude direct arrangements in support of cooperative activities, programmes or projects within the framework of this Agreement;
(d) to direct cooperative activities towards sectors where mutual and complementary interests exist; and
(e) to promote international trade liberalisation in the primary industry sectors, develop trade and promote commercial partnerships, including common projects in third countries.
2. In pursuit of the objectives in Paragraph 1, the Parties will encourage and facilitate, as appropriate, the following activities in the primary industry sectors including, but not limited to:
(a) encouraging the expansion of opportunities for contact;
(b) promoting the exchange of information, ideas and research;
(c) encouraging specific industry exchanges and joint ventures, including in relation to research, to develop the primary industry sectors;
(d) encouraging universities in their countries to strengthen their links in the area of primary industry sectors including through the exploration of multi-disciplinary and multi-institutional degree courses; and
(e) encouraging the promotion of primary industry sectors related education services and other activities.
3. To facilitate cooperation in the primary industry sectors, the Parties will also work towards:
(a) promoting compliance with, and enforcement of, international rules relating to trade in primary industry sectors products;
(b) promoting transparency and public participation in decision-making relating to the Partiesâ primary industry sectors; and
(c) identifying and resolving issues that hamper the effectiveness of cooperation in the primary industry sectors.
Article 16.9. Mechanisms for Cooperation
1. The Parties will designate a contact point to facilitate communication on possible cooperation activities. The contact point will work with government agencies, private sector representatives and educational and research institutions in the operation of this Chapter.
2. The Parties agree that the mechanisms for cooperation will take the form of:
(a) regular meetings of the Commission to discuss cooperative areas of interest; and
(b) meetings as required between the relevant institutions (including, but not limited to, the relevant government agencies, Crown Research Institutes, and universities of the Parties to help foster closer cooperation in thematic areas.
3. The Parties will make maximum use of diplomatic channels to promote dialogue and cooperation consistent with this Agreement.
Article 16.10. Cooperation with Non-Parties
The Parties recognise the value of international cooperation for the promotion of sustainable development and agree to develop, where appropriate, projects of mutual interest, with non-Parties.
Article 16.11. Resources
With the aim of contributing to fulfilling the cooperation objectives of this Agreement, the Parties commit themselves to providing, within the limits of their own capacities and through their own channels, the appropriate resources, including financial resources.
Article 16.12. Specific Functions for the Commission In Cooperation Matters
Notwithstanding the provisions of Article 17.2 (Functions of the Commission) the Commission shall have, in particular, the following functions:
(a) oversight of the implementation of the cooperation framework agreed by the Parties;
(b) encouraging the Parties to undertake cooperation activities under the cooperation framework agreed by the Parties;