(c) Several proceedings have been consolidated pursuant to Article 17.6.4 and the matter has not been resolved within 30 days of the meeting of the Free Trade Commission in the most recent consolidated proceedings; or
(d) The matter has not been resolved within any other timeframe agreed by the consulting Parties.
2. The complaining Party shall deliver the written request for establishment of the Panel of Arbitrators to the Party complained against. The complaining Party shall indicate the reasons for its request, including identification of the measure or other matter at issue and indication of the legal grounds for the complaint. A copy of the request must be promptly sent to the other Parties.
3. No Party may request the establishment of a Panel of Arbitrators to examine a proposed measure.
Article 17.8. Participation of a Third Party
1. A Party may participate in the arbitral proceedings in the capacity of a third party, upon delivery of a written notice to the disputing Parties within 10 days of delivery of the request for establishment of a Panel of Arbitrators. In the event that a Party makes such submission after this timeframe has elapsed, the Panel of Arbitrators may authorise that Party's involvement in the capacity of a third party, based on consultation with the disputing Parties, on the condition that such involvement does not hinder the proper execution of the proceedings or undermine the interests of the disputing Parties.
2. A third party has the right to:
(a) Make written submissions to the Panel of Arbitrators;
(b) Attend and submit oral arguments in all non-confidential hearings of the Panel of Arbitrators; and
(c) Receive a copy of the documents submitted by the disputing Parties.
Article 17.9. Multi-party Proceedings
Parties that comply with the requirements established in Article 17.7 may act jointly as a complaining Party in arbitral proceedings. In such cases, the Parties must agree to appoint the same arbitrator and the same candidates to chair the Panel of Arbitrators, pursuant to Article 17.13.
Article 17.10. Consolidation of Proceedings
Wherever possible, when more than one Party requests the establishment of a Panel of Arbitrators for the same measure and on the same legal basis, a single Panel of Arbitrators shall be established to examine such requests.
Article 17.11. Terms of Reference of the Panel of Arbitrators
1. Unless the Parties agree otherwise, for 15 days from the delivery of the request for the establishment of a Panel of Arbitrators, the terms of reference for the Panel of Arbitrators shall be: "To examine, objectively and in the light of the relevant provisions of this Additional Protocol, the matter referred to in the request for the establishment of the Panel of Arbitrators, and to make conclusions, rulings and recommendations pursuant to the provisions of Articles 17.15 and 17.16."
2. If the complaining Party claims in the request for establishment of the Panel of Arbitrators that a matter has nullified or impaired benefits pursuant to Article 17.3 (c), the terms of reference shall so indicate.
3. Where the complaining Party includes in its request the requirement for the Panel of Arbitrators to make conclusions on the level of adverse trade affects caused by failure to comply with the obligations of this Additional Protocol, the terms of reference shall so indicate.
Article 17.12. Requirements of the Arbitrators
1. All arbitrators must:
(a) Have expertise or experience in law, international trade, other matters covered by this Additional Protocol, or the resolution of disputes arising under international trade agreements;
(b) Be chosen strictly on the basis of objectivity, impartiality, reliability and sound judgement;
(c) Be independent of, and not be affiliated with or take instructions from any Party; and
(d) Comply with the Code of Conduct adopted by the Free Trade Commission.
2. Persons that have participated in any of the alternative dispute resolution mechanisms referred to in Articles 17.6.3 (b) or 17.23 may not serve as arbitrators in the same dispute.
Article 17.13. Selection of the Panel of Arbitrators
1. The Panel of Arbitrators shall comprise three members.
2. Within 20 days of the delivery of request for the establishment of the Panel of Arbitrators, each disputing Party shall appoint an arbitrator, who may be a national and propose up to four candidates to serve as chair of the Panel of Arbitrators. The chair of the Panel of Arbitrators may not be a national nor permanent resident in the country of any of the disputing Parties. This information shall be informed in writing to the other disputing Party.
3. If a disputing Party does not appoint an arbitrator within the timeframe stipulated in paragraph 2, it shall be chosen by the other Party from the indicative list of experts that may be members of WTO panels of the disputing Party that did not appoint an arbitrator. In the event that the candidates on that list are unavailable, an arbitrator shall be selected from the candidates of the indicative list of experts that may be members of WTO panels of any of the Parties other than the disputing Parties.
4. Within 20 days of the deadline established in paragraph 2, the disputing Parties shall appoint by common accord the chair of the Panel of Arbitrators from among the proposed candidates. If the disputing Parties have not reached an agreement by the end of this 20-day period, the chair shall be selected by the representative of the pro tempore presidency drawing lots from among the proposed candidates within a timeframe of seven additional days.
5. If an arbitrator cannot fulfil his or her role, resigns or is removed, a successor shall be selected in accordance with this Article. Any procedural timeframe shall be suspended from the date on which the arbitrator cannot fulfil his or her position, resigns or is removed, and end on the date the successor is selected. The successor shall assume the role and responsibilities of the original arbitrator.
6. Any disputing Party may refuse an arbitrator or candidate in accordance with the procedural rules of the Panel of Arbitrators.
Article 17.14. Procedural Rules of the Panel of Arbitrators
1. Within six months of the date that this Additional Protocol enters into force, the Free Trade Commission shall approve the procedural rules.
2. Unless the disputing Parties agree otherwise, a Panel of Arbitrators established in accordance with this Chapter shall comply with the procedural rules. A Panel of Arbitrators may establish supplementary procedural rules that do not conflict with the provisions of this Protocol, based on consultation with the Parties.
3. The procedural rules shall ensure:
(a) That each disputing Party has the opportunity to provide at least initial and rebuttal written submissions;
(b) That each disputing Party has the right to at least one hearing before the Panel of Arbitrators;
(c) That each disputing Party has the right to make oral submissions;
(d) That the hearings of the Panel of Arbitrators are open to the public, (2) except when information designated as confidential by one of the disputing Parties is being discussed. Notwithstanding the foregoing, where a disputing Party presents valid reasons for their request, and with the agreement of the other disputing Party, said hearings may be closed to the public;
(e) That deliberations by the Panel of Arbitrators and documents designated as confidential by one of the disputing Parties remain confidential;
(f) That all information and documents submitted to the Panel of Arbitrators by a disputing Party are made available to the other disputing Parties; and
(g) That information designated as confidential by any of the disputing Parties is protected.
4. Notwithstanding the provisions of paragraph 3, any disputing Party may make public statements on their opinions regarding the dispute, but it shall treat the information, documents and papers submitted by the other disputing Party to the Panel of Arbitrators as confidential when that other Party has designated the information as such.
5. Where a disputing Party submits information, documents or papers qualified as confidential, that Party must also submit a non-confidential summary of the information or papers that may be made available to the public, within 30 days of a request by the other disputing Party.
6. After notifying the disputing Parties, the Panel of Arbitrators may, at the request of a Party, or on its own initiative, compile information and seek technical advice from any person or entity it deems appropriate pursuant to the procedural rules and as agreed by the disputing Parties within 10 days of the notification. In the absence of agreement between the disputing Parties, the Panel of Arbitrators shall establish such terms. The Panel of Arbitrators shall provide the disputing Parties with a copy of any opinion or advice received and an opportunity to comment on such.
7. The Panel of Arbitrators shall seek to adopt decisions, including its award, by consensus. If this is not possible, the Panel of Arbitrators may adopt decisions by majority vote.
8. Each disputing Party shall assume the cost of the arbitrator it appoints, as well as the arbitrator's expenses. The cost of the chair of the Panel of Arbitrators and other expenses associated with proceedings shall be assumed by the disputing Parties in equal parts, in accordance with the procedural rules.
Article 17.15. Draft Award of the Panel of Arbitrators
1. The Panel of Arbitrators shall notify their draft award to the disputing Parties within 90 days of the date of appointment of the last arbitrator, unless the disputing Parties agree on a different timeframe.
2. In urgent circumstances, the Panel of Arbitrators shall notify the disputing Parties of the draft award within 60 days of the date of appointment of the last arbitrator, unless the disputing Parties agree on a different timeframe.
3. In extraordinary cases, should the Panel of Arbitrators find that it cannot issue the draft award within 90 days or 60 days in urgent circumstances, it must inform the disputing Parties in writing of the reasons for the delay together with an estimate of when the draft award shall be issued. Any delay shall not exceed 30 days, unless the disputing Parties agree on a different timeframe.
4. The Panel of Arbitrators shall base its draft award on the relevant provisions of this Additional Protocol, in accordance with the customary interpretation norms of public international law, the papers and oral submissions of the disputing Parties, and any information and technical advice that it has received in accordance with this Additional Protocol.
5. The draft award shall include:
(a) A summary of the written and oral submissions;
(b) The conclusions based on factual and legal grounds;
(c) A decision on whether a disputing Party has complied or failed to comply with its obligations under this Additional Protocol, or if the measure at issue has caused nullification or impairment in terms of Article 17.3 (c), or any other decision requested in the terms of reference;
(d) Recommendations, where appropriate, for the Party complained against to bring its measures into line with this Additional Protocol. Furthermore, it may suggest the manner in which the Party complained against may implement the arbitral award.
6. The conclusions and decisions of the Panel of Arbitrators and, where appropriate, any recommendations, may not enhance or reduce the rights and obligations of the Parties as established under this Additional Protocol.
7. Any of the disputing Parties may submit written observations on the draft award to the Panel of Arbitrators within 15 days of being notified, or within any other timeframe established by the Panel of Arbitrators.
8. After hearing said observations, the Panel of Arbitrators may reconsider its draft award and carry out any further review that it considers appropriate.
Article 17.16. Final Award of the Panel of Arbitrators
1. The Panel of Arbitrators shall inform the disputing Parties of the final award and, where appropriate, of divergent opinions on matters on which the decision was not unanimous, within 30 days of notification of the draft award, unless the disputing Parties agree on a different timeframe.
2. The final award shall be definitive, without appeal and binding for the disputing Parties.
3. Unless the disputing Parties agree otherwise, any of them may publish the final award of the Panel of Arbitrators 15 days after being notified, subject to the protection of confidential information.
4. The Panel of Arbitrators may not reveal the identity of the arbitrators that voted with the majority or the minority.
Article 17.17. Request for Clarification by the Panel of Arbitrators
1. Within 10 days of notification of the final award, a disputing Party may make a written request for the Panel of Arbitrators to clarify any conclusion, decision or recommendation of the final award that it considers ambiguous. The Panel of Arbitrators shall reply to such request within 10 days of its submission.
2. Clarification by the Panel of Arbitrators may not substantially alter its conclusions, decisions or recommendations.
3. The submission of a request as described in paragraph 1 of this Article shall not affect the timeframes referred to in Article 17.20.
Article 17.18. Suspension and Termination of Proceedings
1. The disputing Parties may agree for the proceedings of the Panel of Arbitrators to be suspended at any time for a period of no more than 12 months from the date that such agreement is made. If the proceedings of the Panel of Arbitrators have been suspended for more than 12 months, the terms of reference of the Panel of Arbitrators shall cease to have effect, unless the disputing Parties agree otherwise. If the terms of reference of the Panel of Arbitrators cease to have effect and the disputing Parties have not resolved the dispute, none of this Article shall prevent a disputing Party from initiating a new proceeding concerning the same matter.
2. The disputing Parties may terminate the proceedings before a Panel of Arbitrators at any time after the issue of the final award by means of a joint submission to the presidency of the Panel of Arbitrators.
Article 17.19. Compliance with the Final Award of the Panel of Arbitrators
1. Once the disputing Parties have been informed of the final award of the Panel of Arbitrators, they shall agree to comply with the final award on the terms of the decisions, conclusions and recommendations of the Panel of Arbitrators.
2. When the Panel of Arbitrators determines in the final award that the measure is inconsistent with the provisions of this Additional Protocol or that a measure of that Party is cause for nullification or impairment under Article 17.3 (c), the Party complained against must, wherever possible, eliminate the breach, nullification or impairment.
Article 17.20. Compensation or Suspension of Benefits
1. If the disputing Parties fail to reach an agreement on compliance with the final award or if they do not reach a mutually satisfactory resolution of the dispute within 30 days of the notice of the final award, the Party complained about, at the request of the complaining Party, shall initiate negotiations with a view to establishing a mutually agreeable compensation. Such compensation shall be of a temporary nature and it shall be granted until the dispute is resolved.
2. If compensation has not been requested or if the disputing Parties:
(a) Have not reached an agreement on compliance with the final award or a mutually satisfactory resolution of the dispute within 30 days of notice of the final award;
(b) Fail to reach an agreement on compensation pursuant to paragraph 1 within 30 days of submission of a request for compensation by the complaining Party; or
(c) Have reached an agreement on compliance with the final award or a mutually satisfactory resolution of the dispute or on compensation in accordance with this Article and the complaining Party deems that the Party complained against has not complied with the terms of the agreement reached, then the complaining Party may at any time begin to suspend benefits and other obligations to the Party complained about as established in this Additional Protocol, once the complaining Party has informed the Party complained about. The level of suspension shall be equivalent to the level of the nullification or impairment.
3. In the notice of initiation of suspension, the complaining Party shall specify the date on which the suspension shall take effect, the level of concessions and other obligations that it plans to suspend and the boundaries within which the suspension of benefits shall apply. The suspension of benefits shall take effect no earlier than five days after such notice.
4. When considering benefits and other obligations to suspend in accordance with this Article:
(a) The complaining Party shall firstly seek to suspend benefits and other obligations in the same sector or sectors which are affected by the measure that the Panel of Arbitrators has determined to be inconsistent with this Additional Protocol or that has caused nullification or impairment under the terms of Article 17.3 (c); and
(b) The complaining Party that deems that it is not feasible or effective to suspend benefits or other obligations within the same sector or sectors, may suspend benefits or other obligations in another sector or other sectors. The complaining Party must indicate the reasons which form the basis for such decision in the notice to initiate suspension.
5. The suspension of benefits or other obligations shall be temporary and the complaining Party shall only apply suspension until:
(a) The measure considered to be inconsistent is brought into line with this Additional Protocol or the nullification or impairment is eliminated pursuant to Article 17.3 (c);
(b) The Panel of Arbitrators provided for in Article 17.22 determines in its final award that the Party complained about has complied; or
(c) The disputing Parties reach an agreement on the dispute resolution.
Article 17.21. Urgent Circumstances
1. In urgent circumstances, (3) the timeframes established in this Chapter shall be halved, unless the Chapter establishes otherwise.
2. Notwithstanding the provisions of Article 17.15.2, the Panel of Arbitrators shall apply the timeframe established in Article 17.15.1, where the complaining Party indicates this in the request for establishment of the Panel of Arbitrators.
Article 17.22. Review of Compliance and Suspension of Benefits
1. Any disputing Party may request in writing to the other Party that the original Panel of Arbitrators established in accordance with Article 17.7 be reconstituted so that it may individually or jointly make a decision:
(a) As to whether the level of benefit suspension applied by the complaining Party in accordance with Article 17.20 is manifestly excessive; or
(b) On any disagreement between the disputing Parties in terms of the existence of measures adopted to comply with the final award of the Panel of Arbitrators, or with regard to consistency of any measure adopted for the purpose of compliance.
2. The requesting Party shall indicate in the request the specific measures or matters in dispute and it shall provide a brief summary of the legal grounds for the complaint in order to clearly present the issue.
3. The Panel of Arbitrators shall be reconstituted following delivery of the request and it shall present its draft award to the disputing Parties within:
(a) 45 days of its reconstitution when reviewing the request pursuant to paragraph 1 (a) or (b); or
(b) 60 days of its reconstitution when reviewing the request pursuant to paragraph 1 (a) and (b).
4. The Panel of Arbitrators shall submit its final award to the disputing Parties within:
(a) 15 days of submission of the draft award, when reviewing the request pursuant to paragraph 1 (a) or 1 (b); or
(b) 20 days of submission of the draft award, when reviewing the request pursuant to paragraph 1 (a) and 1 (b).
5. If any of the original arbitrators cannot be part of the Panel of Arbitrators, the provisions of Article 17.7 shall be applied.
6. If the Panel of Arbitrators has before it a matter pursuant to paragraph 1 (a) and decides that the level of suspended benefits is manifestly excessive, it shall establish the level of benefits that it deems to have an equivalent effect. In this case, the complaining Party shall adjust the suspension applied to such level.
7. If the Panel of Arbitrators has before it a matter pursuant to paragraph 1 (b) and decides that the Party complained against has complied, the complaining Party shall immediately terminate the suspension of benefits. If the complaining Party comprises two or more Parties and the Panel of Arbitrators decides that the Party complained against has brought its measure in line or complied with the final award of the Panel of Arbitrators, the complaining Party shall immediately terminate the suspension of benefits.
Article 17.23. Good Offices, Conciliation and Mediation
1. The disputing Parties may agree at any time to the use of an alternative dispute resolution mechanism such as good offices, conciliation or mediation.
2. Such alternative dispute resolution mechanisms shall be implemented pursuant to the proceedings agreed upon by the disputing Parties.
3. Any of the disputing Parties may at any time initiate, suspend or terminate the proceedings established under this Article.
4. The good offices, conciliation and mediation procedures are confidential and without prejudice to the rights of the disputing Parties in any other proceedings.
Article 17.24. Administration of Dispute Resolution Proceedings
1. Each Party must:
(a) Designate a permanent office to provide administrative support to the Panels of Arbitrators covered by this Chapter and to perform other functions as instructed by the Free Trade Commission; and
(b) Communicate the registered address of its designated office and the official responsible for the office's administration to the Free Trade Commission.
2. Each Party shall be responsible for the operation of its designated office.
Annex 17.3. NULLIFICATION AND IMPAIRMENT
A Party may resort to the dispute resolution mechanism described in this Chapter when, on the basis of the application of a measure that does not contravene this Additional Protocol, it considers that the benefits that it could have reasonably expected to receive from the application of the Chapters below have been nullified or impaired:
1. Market Access.
2. Rules of Origin and Procedures Related to Origin.
3. Sanitary and Phytosanitary Measures.
4. Technical Barriers to Trade.
5. Government Procurement.
6. Cross-Border Trade in Services.
Chapter 18. EXCEPTIONS
Article 18.1. General Exceptions
1. For the purposes of Chapters 3 (Market Access), 4 (Rules of Origin and Procedures Related to Origin), 5 (Trade Facilitation and Customs Cooperation), 6 (Sanitary and Phytosanitary Measures), 7 (Technical Barriers to Trade) and 13 (Electronic Trade), Article XX of the GATT of 1994 and its interpretive notes are incorporated into this Additional Protocol and are made part thereof, mutatis mutandis. The Parties understand that the measures referred to in Article XX (b) of the GATT of 1994 include environmental measures necessary for protecting human, animal or plant life or health, and that Article XX (g) of the GATT of 1994 applies to measures related to the conservation of non-renewable natural resources, living or non-living.
2. For the purposes of Chapters 9 (Cross-Border Trade in Services), 12 (Maritime Services), 13 (Electronic Trade) and 14 (Telecommunications), Article XIV of the GATS (including its footnotes) is incorporated into this Additional Protocol and is made part thereof, mutatis mutandis. The Parties understand that the measures referred to in Article XIV (b) of the GATS include environmental measures necessary for protecting human, animal or plant life or health.
Article 18.2. Public Order
The Parties understand that nothing in Chapter 10 (Investment) shall be construed as preventing a Party from adopting or maintaining measures concerning natural persons of another Party that are necessary for public order, (1) provided that the measure specified is not applied in a way that constitutes a form of arbitrary or unjustified discrimination.
Article 18.3. Essential Security
Nothing in this Additional Protocol shall be construed as:
(a) Requiring a Party to provide any information the disclosure of which it determines to be contrary to its essential security interests;
(b) Preventing a Party from adopting measures that it deems necessary for the protection of its essential security interests with regard to:
(i) Fissionable and fusionable materials or the materials from which they are derived;
(ii) The traffic of arms, ammunition and war supplies, and other goods and materials of this type or related to the provision of services which are directly or indirectly intended for the sourcing or procurement of military establishments; or
(iii) Measures adopted in war times or during other international relations emergencies; or
(c) Preventing a Party from adopting measures in order to comply with obligations assumed under the United Nations Charter for peacekeeping and international security.
Article 18.4. Taxation Measures
For the purposes of this Article:
1. Taxation agreement means an agreement to avoid double taxation or another international agreement or arrangement concerning taxation, and
2. Taxes and taxation measures do not include:
(a) Customs duties, as defined in Article 2.1 (General Definitions); or
(b) The measures listed in subparagraphs (b), (c) and (d) of the definition of customs duties of Article 2.1 (General Definitions).
3. Except for the provisions of this Article, no other provisions in this Additional Protocol shall apply to taxation measures.
4. Nothing in this Additional Protocol shall affect the rights and obligations of any of the Parties that arise from any taxation agreement. In the event of inconsistency between this Additional Protocol and any of these agreements, the agreement shall prevail to the extent of the inconsistency.