16. Pursuant to Article 22.10.6, where a Party submits to the arbitral tribunal a document containing information designated as confidential, it may, at the request of the other Party, provide a non-confidential summary thereof within thirty (30) days of the request.
17. During and even after the arbitration proceedings, the Parties, their representatives, the arbitrators or any other person involved in the arbitration proceedings shall keep confidential the information qualified as such, as well as the deliberations of the arbitral tribunal, the draft award and the comments thereon.
18. The Administrative Unit shall take all reasonable measures necessary to ensure that experts, stenographers and other persons involved in the arbitration proceedings safeguard the confidentiality of information qualified as such.
Functioning of arbitration tribunals
19. Once an arbitrator has been appointed pursuant to Article 22.7, the Administrative Unit shall notify the arbitrator by the most expeditious means possible. Together with the communication, a copy of the Code of Conduct and an affidavit of confidentiality and compliance with the Code of Conduct shall be sent to each person appointed to the arbitral tribunal, whether as principal or alternate arbitrator. Each person appointed to the arbitral tribunal shall have three (3) days to communicate his or her acceptance, in which case he or she shall return the duly signed affidavit to the Administrative Unit. If the designated person does not communicate his/her acceptance to serve on the arbitral tribunal in writing to the Administrative Unit within the indicated period, it shall be understood that he/she does not accept the position.
20. The Administrative Unit shall inform the Parties, by the most expeditious means possible, of the response of each person appointed to the arbitral tribunal or of the fact that no response has been received. Once the persons appointed to the arbitral tribunal as arbitrators and alternate arbitrators have communicated their acceptance, the Administrative Unit shall so communicate, by the most expeditious means possible, to the Parties.
21. Pursuant to Article 22.7.7, any Party may challenge an arbitrator or a candidate arbitrator if it considers that he or she does not meet the requirements set forth in Article 22.7.9.
21.1. Request for challenge of arbitrator or alternate arbitrator appointed by a Party
(a) Any Party that becomes aware of an alleged violation or breach by the arbitrator or alternate arbitrator appointed by the other Party of the requirements for appointment as arbitrator or of the obligations set forth in the Code of Conduct and in Article 22.7.9 may request his or her challenge. The request for challenge shall be reasoned and notified in writing to the other Party, to the challenged arbitrator and to the arbitral tribunal within fifteen (15) days from the date of the challenge.
appointment or as soon as the fact giving rise to the recusal request becomes known.
(b) The Parties shall attempt to reach an agreement on the challenge within fifteen (15) days following the notification of the request. The arbitrator may, after the challenge has been raised, resign from his function, without this implying acceptance of the validity of the reasons for the challenge.
(c) If the parties are unable to reach an agreement or if the challenged arbitrator does not resign, the request for challenge shall be decided by the chairman of the arbitral tribunal within fifteen (15) days after the expiration of the time limit set forth in (b). In the event that the chairman of the arbitral tribunal has not accepted his designation by the date of expiration of the time limit set forth in (b), the challenge request shall be submitted once the chairman of the arbitral tribunal has accepted his designation.
(d) If, pursuant to (b) or (c), the request for disqualification of the original arbitrator is granted or the original arbitrator resigns, the substitute arbitrator appointed pursuant to Article 22.7 shall act as the original arbitrator. If the challenge concerns an incumbent arbitrator who was an alternate arbitrator, the merits of the challenge shall entitle the appointing Party to appoint a new incumbent arbitrator in accordance with Article 22.7.
21.2. Challenge of the chairman of the arbitral tribunal
(a) Any Party that becomes aware of an alleged violation or breach by the chairman of the arbitral tribunal of the requirements for appointment as chairman of the arbitral tribunal or of the obligations set forth in the Code of Conduct and Article 22.7.9 may request the removal of the chairman of the arbitral tribunal. The request for disqualification shall be reasoned and notified in writing to the other Party, to the chairman of the arbitral tribunal and to the arbitral tribunal within fifteen (15) days of the appointment, drawing of lots or from the time the fact giving rise to the request for disqualification becomes known.
(b) The Parties shall attempt to reach an agreement on the challenge of the chairman of the arbitral tribunal within fifteen (15) days of the notification of the challenge. The chairman of the arbitral tribunal may, after the challenge has been raised, resign from his office, without this implying acceptance of the validity of the reasons for the challenge.
(c) If it is not possible to reach an agreement or if the challenged arbitrator does not resign, the request for challenge shall prevail and the alternate arbitrator shall take over. Each party may request the challenge of the chairman of the arbitral tribunal only once. However, a request for a challenge of the presiding arbitrator in which the presiding arbitrator has resigned pursuant to (b) shall not be counted as a request for a challenge for the purposes of this subsection.
22. The time limits provided for in this Chapter and in these Rules, which are counted from the appointment of the last arbitrator, shall begin to run from the date on which the arbitrator accepted his appointment.
23. The chairman of the arbitral tribunal shall preside at all its meetings. The arbitral tribunal may delegate to its chairman the power to make administrative and procedural decisions.
24. The arbitral tribunal shall perform its functions in person or by any technological means, as agreed by the Parties.
25. Only the arbitrators may participate in the deliberations of the arbitral tribunal, unless, after prior notice to the Parties to the dispute, the tribunal allows the presence of their assistants and, where appropriate, interpreters.
26. For procedural matters not covered by these Rules, the arbitral tribunal, in consultation with the Parties, may establish supplementary rules of procedure, provided that they do not conflict with the provisions of the Agreement and these Rules. When supplementary rules of procedure are adopted, the chairman of the arbitral tribunal shall immediately notify the Parties.
Hearings
27. The Parties shall designate their representatives before the arbitral tribunal, and may appoint counsel to defend their rights.
28. The presiding arbitrator shall fix the place, date and time of the hearing, in consultation with the Parties, subject to Rule 10. The date of the hearing shall be fixed after the Parties have filed their initial and counter-submissions, respectively. The Administrative Unit shall notify the Parties, by the most expeditious means possible, of the place, date and time of the hearing.
29. Unless otherwise agreed by the Parties, the hearing shall be held in the capital of the Party complained against.
30. When it considers it necessary, the arbitral tribunal may, with the agreement of the Parties, convene additional hearings.
31. All arbitrators must be present at the hearings, otherwise they cannot be held. The hearings shall be held in person. However, the arbitral tribunal, subject to the consent of the Parties, may agree that the hearing be held by any other means.
32. All hearings shall be closed to the public. However, when a Party for justified reasons so requests, and with the agreement of the other Party, such hearings may be open, except when information designated as confidential by one of the Parties is being discussed. Unless otherwise agreed by the Parties, the presence of the public at the hearings of the arbitral tribunal shall be by simultaneous transmission by closed-circuit television or any other technological means.
33. If a Party wishes to submit confidential information during the hearing, it shall so advise the Administrative Unit at least ten (10) days prior to the hearing. The Administrative Unit shall take the necessary steps to ensure that the hearing is conducted in accordance with Rule 32.
34. Unless the Parties agree that the hearing shall be open, only those present may be present at the hearings:
(a) representatives of the Parties, officials and advisors designated by them, and
(b) assistants to the arbitrators and interpreters if required.
In all circumstances, the presence of any person from whom a benefit could reasonably be expected from access to confidential information is excluded.
35. The Parties may object to the presence of any of the persons referred to in Rule 34 no later than two (2) days before the hearing, stating the reasons for such objection. The objection shall be decided by the arbitral tribunal prior to the commencement of the hearing.
36. No later than five (5) days prior to the date of the hearing, each Party shall submit to the Administrative Unit a list of the persons who will attend the hearing as representatives and other members of its delegation.
37. The hearing shall be conducted by the presiding arbitrator, who shall ensure that the Parties are given equal time to present their oral arguments.
38. The hearing will be conducted in the following order:
(a) pleadings
(i) the Complaining Party's allegation, and
(ii) pleading of the Party complained against.
(b) replies and rejoinders
(i) reply of the complaining Party, and
(ii) rejoinder of the Party complained against.
39. The arbitral tribunal may put questions to any Party at any time during the hearing.
40. The Administrative Unit shall adopt the necessary measures to keep a system for recording the oral presentations. Such record shall be made by any means, including transcription, that ensures the preservation and reproduction of its contents. At the request of any of the Parties or the arbitral tribunal, the Administrative Unit shall provide a copy of the record. In the case of a hearing closed to the public, such record may only be requested by the Parties or the arbitral tribunal.
Complementary documents
41. The arbitral tribunal may put questions in writing to any Party at any time during the proceedings, and shall determine the period of time within which it shall deliver its answers.
42. Each Party shall be given the opportunity to comment in writing on the answers referred to in Rule 41 within such period of time as the arbitral tribunal may prescribe.
43. Notwithstanding the provisions of Rule 10, within ten (10) days after the date of the conclusion of the hearing, the Parties may submit supplementary written submissions in connection with any matter that has arisen during the hearing.
Burden of proof with respect to incompatible measures and exceptions
44. Where the complaining Party considers that a measure of the Party complained against is inconsistent with the obligations under the Agreement; or that the Party complained against has otherwise failed to comply with the obligations under the Agreement, it shall have the burden of proving such inconsistency or failure, as the case may be.
45. Where the Party complained against considers that a measure is justified by an exception under the Agreement, it shall have the burden of proving it.
46. The Parties shall offer or submit evidence with the initial and rebuttal pleadings in support of the arguments made in such pleadings. The Parties may also submit additional evidence in their rebuttal and rejoinder pleadings.
Ex parte contacts
47. The arbitral tribunal shall not meet or contact either Party in the absence of the other.
48. No arbitrator may discuss any matter relating to the arbitration proceedings with any Party in the absence of the other Party and the other arbitrators.
49. In the absence of the Parties, an arbitral tribunal may not meet or have discussions concerning the subject matter of the arbitral proceedings with a person or entity that provides information or technical advice.
Information and technical advice
50. The arbitral tribunal may not request information or technical advice pursuant to Article 22.10.7, whether at the request of a Party or on its own initiative, later than ten (10) days after the date of the hearing.
51. Within five (5) days after the date on which the arbitral tribunal consults with the Parties on the request for information or technical advice, it shall select the person or entity to provide such information or technical advice.
52. The arbitral tribunal shall select experts or advisors strictly on the basis of their expertise, objectivity, impartiality, independence, reliability and sound judgment.
53. The arbitral tribunal may not select as an expert or advisor a person who has, or whose employers, partners, associates or relatives have, a financial, personal or other interest that may affect his or her independence and impartiality in the proceeding.
54. The arbitral tribunal shall deliver a copy of its request for information or technical advice to the Administrative Unit, which in turn shall deliver it by the most expeditious means possible to the Parties and to the persons or entities that are to provide the information or technical advice.
55. The persons or entities shall deliver the information or technical advice to the Administrative Unit within the period of time established by the arbitral tribunal, which in no case shall exceed ten (10) days from the date on which they received the request from the arbitral tribunal. The Administrative Unit shall deliver to the Parties and to the arbitral tribunal, by the most expeditious means possible, the information provided by the experts or technical advisors.
56. Either Party may comment on the information provided by the experts or technical advisors within five (5) business days from the date of delivery. Such comments shall be submitted to the Administrative Unit, which, in turn, no later than the following day, shall deliver them to the other Party and to the arbitral tribunal.
57. Where a request for information or technical advice is made, the Parties may agree to suspend the arbitration proceedings for a period of time to be determined by the arbitral tribunal in consultation with the Parties.
Computation of deadlines
58. All time limits set forth in this Chapter, in these Rules or by the arbitral tribunal shall be calculated from the day following the day on which the notice, request or document relating to the arbitration proceedings was received.
59. In the event that any action is required to be taken before or after a date or event, the day of that date or event shall not be included in the computation of the term.
60. When the period begins or expires on a non-business day, the provisions of Rule 13 shall apply.
61. All time limits established in this Chapter and in these Rules may be modified by mutual agreement of the Parties.
Contact unit
62. Each Party shall designate a Contact Unit to provide administrative support to the arbitral tribunal. Once designated, its address shall be communicated to the Administrative Commission no later than sixty (60) days from the date of entry into force of this Agreement.
Administrative unit
63. The Administrative Unit shall have the following functions:
(a) provide administrative assistance to the arbitral tribunal, the arbitrators and their assistants, interpreters, translators, persons or entities selected by the arbitral tribunal to provide information or technical advice and other persons involved in the arbitral proceedings;
(b) make available to the arbitrators, upon acceptance of their appointment, documents relevant to the arbitration proceedings;
(c) keep a copy of the complete file of each arbitration proceeding;
(d) inform the Parties of the amount of the costs and other expenses associated with the arbitration proceeding that each Party will bear, and
(e) organize logistical issues related to the hearings.
Costs and other associated expenses
64. Each Party shall bear the cost of the arbitrator it appoints or should have appointed pursuant to Article 22.7, as well as the cost of his or her assistants, if any, travel, accommodation and other expenses associated with the conduct of the proceeding. Unless otherwise agreed by the Parties, the remuneration of the arbitrators shall be paid according to the WTO scale of payments for non-governmental arbitrators in a dispute before the WTO as of the date on which the complaining Party requests the establishment of the arbitral tribunal under Article 22.6.
65. The costs of the chairman of the arbitral tribunal, his assistants, if any, their travel, lodging and other expenses associated with the proceedings shall be borne by the Parties in equal proportions.
66. Each arbitrator shall keep a complete record of the expenses incurred and submit a settlement, together with supporting documents, for the purpose of determining their relevance and subsequent payment. The same shall apply to assistants and experts.
67. The amount of the fees of the arbitrators, their assistants and experts, as well as the expenses that may be authorized, shall be established by the Administrative Commission.
68. When the chairman of the arbitral tribunal or an arbitrator requires one or more assistants to carry out his work, he shall agree with both parties.
Compliance review and suspension of benefits arbitration court
69. Without prejudice to the foregoing rules, in the case of a proceeding conducted pursuant to Article 22.16 the following shall apply:
(a) where a Party requests the establishment of the arbitral tribunal, it shall deliver its initial written statement within five (5) days after the constitution of the arbitral tribunal pursuant to Article 22.16;
(b) the other Party shall deliver its counter-submission within fifteen (15) days from the date of receipt of the original submission, and
(c) subject to the time limits set forth in the Agreement and these Rules, the arbitral tribunal shall establish the time limit for the delivery of any supplementary documents, ensuring that each Party has an equal opportunity to submit documents.
Procedure for selecting the chairman of the arbitral tribunal in case of non-appointment
70. Unless otherwise agreed by the Parties, the following procedure shall apply for the purpose of selecting the chairman of the arbitral tribunal pursuant to Article 22.7:
(a) the drawing of lots shall take place in the capital of the claimant Party;
(b) the complaining Party shall notify the Party complained against of the date of the draw at least five (5) days in advance. The Party complained against shall designate a representative to be present during the drawing of lots;
(c) the claimant Party shall provide a container containing envelopes containing the names of the candidates for presiding arbitrators, in accordance with Article 22.7. The Party complained against shall check each envelope before it is sealed for the drawing of lots;
(d) Once all the envelopes have been sealed and inserted in the container, the representative of the Party complained against shall draw one of them, at random and without the possibility of discerning the identity of the candidate whose name appears on the envelope;
(e) the candidate whose name is on the envelope drawn shall be the chairman of the arbitral tribunal.
71. If, after the notification referred to in Rule 70 (b), the representative of the Party complained against fails to appear at the drawing of lots, or if such representative refuses to draw an envelope from the container pursuant to Rule 70 (d), the complaining Party shall draw the envelope.
72. If a Party fails to submit its list of candidates, the chairman of the arbitral tribunal shall be designated by lot from the list submitted by the other Party.
Procedure for selecting an arbitrator in case of non-appointment
73. If a Party fails to appoint its arbitrator within the time period provided for in Article 22.7, the arbitrator shall be appointed by the other Party from the indicative list of WTO panelists for the Party that failed to appoint the arbitrator. In the event that candidates from that list are not available, the arbitrator shall be selected from the indicative list of WTO panelists for any Member other than the Parties.
Chapter 22. Dispute Resolution
Article 22.1. Objectives
1. This Chapter seeks to provide an effective, efficient and transparent solution process of disputes between the Parties with respect to the rights and obligations provided in this Agreement.
2. The Parties shall endeavor at all times to reach agreement on the interpretation and application of this Agreement, and will make every effort to reach a solution mutually satisfactory in any matter that could affect its operation.
Article 22.2. Scope of Application
Unless otherwise provided in this Agreement, the provisions on settlement of disputes established in this Chapter shall apply:
(a) To the prevention or settlement of all disputes between the Parties relating to the interpretation or application of this Agreement;
(b) When a Party considers that a measure of the other Party is incompatible with the obligations of this Agreement, or that the other Party has otherwise breached the obligations assumed in this Agreement, and
(c) When a Party considers that a measure of the other Party causes cancellation or impairment of the benefits that could reasonably have been expected according to the Chapters 2 (Trade Facilitation), 4 (Sanitary and Phytosanitary Measures), 5 (Technical Barriers to Trade), 6 (Cross-Border Trade in Services) and 12 (Public Procurement).
Article 22.3. Choice of Forum
1. Disputes over the same matter that arise in relation to the provisions of this Agreement, in the WTO Agreement or in any other commercial agreement of which the Parties be part, may be resolved in any such forum, at the option of the complaining Party. Without prejudice thereof, the Twenty-First Additional Protocol to ACE No. 35 shall not apply to disputes arising between the Parties on matters regulated exclusively in this Agreement.
2. To this end, it will be understood that two procedures deal with the same matter when they refer to the same measure or the same allegation of disagreement or nullification or impairment.
3. Once the complaining Party has requested the establishment of an arbitral tribunal under this Chapter or one of the agreements referred to in paragraph 1, or well, has requested the establishment of a special group under the Relative Understanding to the Rules and Procedures Governing the Settlement of Differences, which is part of of the WTO Agreement, the selected forum will be exclusive of any other.
4. Nothing in this Agreement shall be construed as preventing a Party from adopt a measure consistent with the WTO Agreement, including a suspension of concessions and other obligations authorized by the Dispute Settlement Body of the WTO, or a measure authorized in the framework of a dispute settlement procedure of another commercial agreement with respect to which both Parties are parties.
Article 22.4. Consultations
1. Either Party may request in writing to the other Party the performance of consultations regarding any matter referred to in Article 22.2.
2. The requesting Party shall provide in writing the request for consultations to the other Party, and shall indicate in your request the reasons for it, including the identification of the measure in question or any other matter in question, and an indication of the facts and legal bases of the request.
3. The Party consulted will respond in writing within ten (10) days following the date of receipt of the request, unless the Parties agree otherwise. The consultations will take carried out within thirty (30) days following the date of receipt of the request for consultations, or within another mutually agreed period.
4. Consultations under this Article will be conducted in good faith, with a view to arriving at a mutually satisfactory solution.
5. Queries may be made in person or by any technological means available, in accordance with the agreement of the Parties. Unless the Parties agree otherwise, the face-to-face consultations will be held in the capital of the Party consulted.
6. The consultations will be confidential.
7. In the consultations, each Party:
(a) Provide sufficient information to allow a full examination of the measure or subject in question, and
(b) Will give the confidential information received during the consultation the same treatment in confidentiality matter granted by the Party that has provided it.
8. The Parties will make every effort to provide each other with information requested during consultations and so that, at the request of one of the Parties, it participates in the specialized staff consultations of your government agencies or other entities regulators with competence in the matter that is the subject of the consultations.
9. The period of consultations shall not exceed sixty (60) days following the date of receipt of the request for consultations, unless the Parties agree on a different term.
Article 22.5. Good Offices, Conciliation and Mediation
1. The Parties may at any time agree to the use of alternative means of dispute resolution, such as good offices, conciliation or mediation.
2. Such alternative means of dispute resolution shall be conducted in accordance with the procedures agreed by the Parties.
3. Either Party may initiate, suspend or terminate at any time the procedures established under this Article.
4. The procedures of good offices, conciliation and mediation are confidential and without prejudice of the rights of the Parties in any other procedure.
Article 22.6. Establishment of an Arbitral Tribunal
1. If, after the period established in Article 22.4.9 has elapsed, no agreement has been reached mutually satisfactory solution, the complaining Party may request the establishment of a arbitral tribunal.
2. The requesting Party shall indicate the reasons for its request, including the identification of the measure or other matter in question, the indication of the legal basis of the claim and will deliver the request to the other Party. If cancellation or impairment is claimed, you must indicate it.
3. Unless the Parties agree otherwise, the arbitral tribunal shall be established and shall perform its functions in accordance with the provisions of this Chapter and the Rules of Procedure of Annex I.
4. The arbitral tribunal shall be deemed established at the time of the acceptance of the last of its members, in accordance with Article 22.7.
5. An arbitral tribunal may not be established to review a proposed measure.
Article 22.7. Composition of the Arbitral Tribunal
1. The arbitral tribunal shall consist of 3 arbitrators.
2. Each Party shall designate, within twenty (20) days following the date of receipt of the request for the establishment of the arbitral tribunal, a titular and an alternate arbitrator, who may be of his own nationality, and propose up to 3 candidates to act as president of the arbitral tribunal, among which a holder and an alternate will be appointed.
3. If a Party does not designate its arbitrator within the period provided in paragraph 2, it shall be appointed by the other Party in accordance with the Rules of Procedure.
4. The Parties shall make every effort to designate by common agreement the president of the arbitral tribunal, among the candidates proposed by the Parties, within twenty (20) days following the expiration of the period provided in paragraph 2. If the Parties fail to reach an agreement Regarding the president of the arbitral tribunal in the aforementioned period, the president and his deputy shall be designated by lot drawn by the Parties in accordance with the Rules of Procedure.
5. The president of the arbitral tribunal shall not be a national of any of the Parties, nor may he have their current place of residence in the territory of any of the Parties, or be or have been employed by any of the Parties, unless the Parties agree otherwise.
6. In case of death, recusal, impossibility or resignation of any of the arbitrators appointed in accordance with this Article, shall assume his substitute. If the substitute could not assume for the same reasons, a successor will be selected according to the procedure of designation provided for in paragraphs 2, 3 and 4, which will be applied mutatis mutandis. The successor You will have all the authority and the same obligations as the original arbitrator. The work of the court arbitration shall be suspended from the date of death, challenge, impossibility or resignation of the arbitrator or his alternate, and shall resume on the date on which the successor is appointed.
7. Any Party may challenge an arbitrator or a candidate in accordance with the provisions of the Rules of Procedure.
8. The members of the arbitral tribunal, upon accepting their appointment, shall assume in writing the commitment to act in accordance with the provisions of this Chapter, the Rules of Procedure and this Agreement.
9. All arbitrators must: