(a) Have specialized knowledge or experience in law, trade international, matters related to the matters contained in this Agreement, or in solving controversies derived from international commercial agreements;
(b) Be chosen strictly according to their objectivity, reliability and good judgment;
(c) Be independent, not be bound to the Parties and not receive instructions from the Parties, and
(d) Comply with the Code of Conduct provided in Annex II.
10. The president of the arbitral tribunal, in addition to complying with the requirements indicated in the paragraph 9, must be a jurist.
11. People who have participated in any of the alternative means of solving disputes referred to in Article 22.5, may not act as arbitrators in the same controversy.
Article 22.8. Terms of Reference of the Arbitral Tribunal
1. Unless the Parties agree otherwise, no later than fifteen (15) days after the date of receipt of the request for the establishment of the arbitral tribunal, the terms of The reference of the arbitral tribunal will be:
"To examine, objectively and in light of the relevant provisions of this Agreement, the matter referred to in the request for the establishment of the arbitral tribunal and formulate conclusions, determinations and recommendations, in accordance with Articles 22.11 and 22.12 ".
2. If, in its request for the establishment of an arbitral tribunal, the complaining Party indicates that a measure nullifies or impairs benefits within the meaning of Article 22.2 (c), the terms of reference will indicate so.
3. At the request of the complaining Party, the Parties may agree that the arbitral tribunal formulate conclusions on the degree of adverse trade effects generated by the dissatisfaction or nullification or impairment. In this case, the terms of reference should expressly indicate it.
Article 22.9. Role of the Arbitral Tribunal
1. The function of the arbitral tribunal is to make an objective assessment of the matter that has been submitted, including an analysis of the facts of the case and the applicability and compliance with this agreement.
2. The tribunal shall issue its findings, determinations and recommendations based on the provisions of this Agreement, its analysis of the facts of the case, the arguments and evidences submitted by the Parties, the applicable provisions of international law, and in accordance with the rules of interpretation of international law as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 1969. With regarding any provision of the WTO Agreement that has been incorporated into this Agreement, the arbitral tribunal will also consider the relevant interpretations contained in the Reports of the panels and the Appellate Body of the WTO, adopted by the WTO Dispute Settlement Body.
3. The arbitral tribunal shall be established and shall perform its functions in accordance with the provisions of this Chapter and the Rules of Procedure, unless the Parties agree another thing.
Article 22.10. Rules of Procedure
1. Unless the Parties agree otherwise, the hearings of the arbitral tribunal shall be shall be held in the capital of the Party complained against.
2. Unless the Parties agree otherwise, the arbitral tribunal established in accordance with with this Chapter will follow the Rules of Procedure contained in Annex I. The court arbitration may establish, in consultation with the Parties, supplementary procedural rules that do not conflict with the provisions of this Agreement.
3. The Rules of Procedure shall guarantee to each Party:
(a) The opportunity to present at least initial and rebuttal arguments in writing;
(b) The right to at least one hearing before the arbitral tribunal, and
(c) The right to present oral arguments.
4. The deliberations of the arbitral tribunal shall be confidential, as well as the documents Qualified as confidential or reserved by any of the Parties. Hearings before the arbitral tribunal shall be closed to the public, unless the Parties agree otherwise.
5. Notwithstanding the provisions of paragraph 4, the Parties may make public statements on your views on the controversy, but will treat the information as confidential or proprietary of the documents delivered by the other Party to the arbitral tribunal that it has qualified as confidential or reserved.
6. When a Party has submitted documents qualified by it as confidential or reserved, that Party may submit a non-confidential or non-reserved summary at the request of the another Party, which may be made public.
7. At the request of one of the Parties or on its own initiative, provided that both Parties agree, the arbitral tribunal may seek information and request technical advice from any person or entity that it deems pertinent in accordance with the Rules of Procedure. Information or obtained advice will not bind the arbitral tribunal. The arbitral tribunal shall provide the Parties a copy of any opinion or advice obtained and the opportunity to make comments.
8. After consultation with the Parties, and unless they agree otherwise, within ten (10) days following its establishment, the arbitral tribunal will set the schedule for its work, taking into account the provisions of Article 22.12.
9. The arbitral tribunal shall seek to adopt its decisions unanimously, including its award. Yes this is not possible, you can adopt them by majority.
10. Written communications, oral arguments or presentations at the hearing, the award of the arbitral tribunal, as well as other written or oral communications between the Parties and the court arbitration, relating to the proceedings of the arbitral tribunal, shall be conducted in Spanish or in Portuguese, unless the Parties agree otherwise.
Article 22.11. Award Project of the Arbitral Tribunal
1. The arbitral tribunal shall notify its draft award to the Parties within a period of ninety (90) days, counted from its establishment, unless the Parties agree on a different term.
2. In case of urgency, the arbitral tribunal shall notify its draft award to the Parties within of the sixty (60) days following the date of its establishment, unless the Parties agree a different term.
3. In exceptional cases, if the arbitral tribunal considers that it can not issue the draft award within the term of ninety (90) days or another that the Parties have agreed, shall inform in writing to the Parties the reasons justifying the delay, together with an estimate of the deadline which will issue your award draft. Any delay shall not exceed a period of thirty (30) days, unless the Parties agree otherwise.
4. The arbitral tribunal shall base its draft award on the relevant provisions of this Agreement, in the writings and oral arguments of the Parties, as well as in any information and technical advice received in accordance with this Agreement.
5. The draft award will contain:
(a) A summary of the oral arguments and arguments of the Parties;
(b) The conclusions with their factual and legal grounds;
(c) Determinations in a well-founded manner on whether a Party has complied or not with its obligations under this Agreement, or if the measure of that Party is a cause of nullification or impairment under the terms of Article 22.2 (c), or any other determination requested by the Parties in the terms of reference, and
(d) Its recommendations, where applicable, for the Party complained against to place its measures in accordance with this Agreement.
6. Either Party may submit to the arbitral tribunal written observations to the draft of the award, within a period of fifteen (15) days counted from the notification of the draft award or any other period established by the arbitral tribunal.
7. After considering such observations, the arbitral tribunal may reconsider its draft award and carry out any further examination that it considers relevant.
Article 22.12. Award of the Arbitral Tribunal
1. The award of the arbitral tribunal shall be final, unappealable and binding for the Parties from of the reception of the respective notification. It shall be adopted in accordance with the provisions of Article 22.10.9, shall be founded, and shall be subscribed by the president of the arbitral tribunal and by the other arbitrators. The arbitrators may not base dissent votes, and must maintain the confidentiality of the vote.
2. The arbitral tribunal shall notify the Parties of its award within thirty (30) days, counted from the notice of the draft award, unless the Parties agree otherwise.
3. The conclusions, determinations and recommendations of the arbitral tribunal may not be increase or decrease the rights and obligations of the Parties established in this Agreement.
4. Unless the Parties agree otherwise, any of them may publish the award after thirty (30) days of being notified, subject to the protection of the information confidential or reserved.
Article 22.13. Suspension and Termination of the Procedure
1. The Parties may agree at any time during the procedure, through a joint communication addressed to the president of the arbitral tribunal, the suspension of the work of the arbitral tribunal for a period not greater than twelve (12) months following the date of such communication.
2. The arbitral tribunal shall resume its work if the Parties so agree within the time limit of twelve (12) months referred to in paragraph 1.
3. If the work of the arbitral tribunal is suspended for more than twelve (12) months, the terms of reference of the arbitral tribunal shall be without effect, unless the Parties agree otherwise. If the terms of reference of the arbitral tribunal are without effect and the Parties have not reached an agreement on the resolution of the dispute, nothing of the provisions of this Article will prevent a Party from initiating a new proceeding concerning the same matter.
4. At any stage of the procedure prior to the notification of the award, the Parties may terminate the procedure through a joint communication addressed to the president of the arbitral tribunal.
Article 22.14. Implementation of the Award
1. Once the award of the arbitral tribunal has been notified, the Parties shall reach an agreement on the implementation of the award, in the terms of the determinations, conclusions and recommendations of the arbitral tribunal.
2. Either Party may request, within fifteen (15) days following the date of notification of the award, a clarification of the same. The arbitral tribunal shall rule on the request within fifteen (15) days following its presentation. The period of time from the request until the pronouncement of the arbitral tribunal will not be counted for the purpose of the term referred to in Article 22.15.
3. If in his award the arbitral tribunal determines that the measure in question is incompatible with obligations of this Agreement, or that the measure causes nullification or impairment in the terms of Article 22.2 (c), the requested Party shall eliminate the non-conformity or the cancellation or the impairment, whenever possible.
4. Unless the Parties agree otherwise, the Party complained against shall have a deadline reasonable to eliminate the disagreement or nullification or impairment if it is not feasible to do so immediately.
5. The Parties shall endeavor to agree on a reasonable period of time. If the Parties fail agree within a period of forty-five (45) days following the presentation of the award final, any Party may, no later than sixty (60) days after the presentation of the award final, send the request to the president of the arbitral tribunal to determine the reasonable time.
6. The president of the arbitral tribunal shall take into consideration that the reasonable time shall exceed six (6) months from the notification of the award pursuant to Article 22.12. However, that period may be shorter or longer, depending on the circumstances particular of the controversy.
7. The president will determine the reasonable term no later than ninety (90) days after the date of receipt of the request in accordance with paragraph 5.
Article 22.15. Non-implementation - Compensation or Suspension of Benefits
1. The Parties, at the request of the complaining Party, shall initiate negotiations with a view to establish mutually acceptable compensation if:
(a) The complaining Party has notified the complaining Party that it does not intend to eliminate nonconformity or nullification or impairment, or
(b) After the expiration of the reasonable period established in accordance with the Article 22.14.4, there is disagreement as to whether the requested Party has eliminated the dissatisfaction or nullification or impairment.
2. Such compensation will be temporary and will be granted until the dispute is resolved.
3. If the Parties:
(a) They do not agree to compensation in accordance with paragraph 1, within the thirty (30) days after the submission of the request for compensation of the Claiming party, or
(b) Have agreed on compensation in accordance with this Article and the complaining Party considers that the Party complained against has not complied with terms of the agreement reached, the complaining Party may communicate to the complained Party, in writing, its decision to temporarily suspend benefits and other equivalent obligations provided in this Agreement, tending to obtain compliance with the award.
4. The communication shall specify:
(a) The date on which the suspension will begin, in accordance with paragraph 6;
(b) The level of benefits or other equivalent obligations that it proposes to suspend, and
(c) The limits within which the suspension will apply, including what the benefits or obligations provided in this Agreement that will be suspended.
5. Suspension of benefits and other obligations will be temporary, and may be applied only up to the time when the disagreement or the nullification or impairment has been eliminated. The level of suspension will be equivalent to the level of nullification or impairment.
6. The complaining Party may initiate the suspension of benefits thirty (30) days after The subsequent date between the dates on which:
(a) Make the communication in accordance with paragraph 3, or
(b) The arbitral tribunal notifies the award pursuant to Article 22.16.
7. When considering benefits or other obligations to be suspended in accordance with this Article:
(a) The complaining Party will seek, first, to suspend benefits or other obligations in the same sector or sectors that are affected by the measure that the arbitral tribunal has concluded is incompatible with this Agreement or that causes nullification or impairment within the meaning of Article 22.2 (c), and
(b) If the complaining Party considers 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 sectors, with the exception of Chapter 12 (Public Contracting). The complaining Party must indicate the reasons why The decision is based on the notification to initiate the suspension.
Article 22.16. Examination of Compliance and Suspension of Benefits
1. The requested Party may, within thirty (30) days following the date of the communication made by the complaining Party in accordance with Article 22.15.3, request that the arbitral tribunal established in accordance with Article 22.6 be reconstituted for to determine indistinctly or jointly:
(a) If it considers that the level of benefits or other obligations that the complaining Party proposed to suspend is excessive, or the complaining Party has not observed the provisions in Article 22.15, or
(b) If it considers that the requested Party has eliminated the non-conformity or the cancellation or the impairment that the arbitral tribunal has determined exists.
2. The requesting Party shall indicate the specific measures or issues in the dispute and provide a brief summary of the legal bases of the resulting claim enough to present the problem clearly.
3. The arbitral tribunal shall be reconstituted within a term of thirty (30) days counted as upon receipt of the request and shall notify its draft award to the Parties within:
(a) The forty-five (45) days following its reconstitution to examine the application pursuant to paragraph 1 (a) or 1 (b), or
(b) Sixty (60) days after reconstitution to examine the request according to paragraphs 1 (a) and 1 (b).
4. The Parties may submit observations to the draft award in accordance with the Article 22.11.6. The arbitral tribunal may reconsider its draft award in accordance with what is established in Article 22.11.7.
5. The arbitral tribunal shall notify its award to the Parties within:
(a) Fifteen (15) days after the presentation of the draft award, in cases to examine the request in accordance with paragraph 1 (a) or 1 (b), or
(b) Twenty (20) days following the presentation of the draft award, in cases to examine the request in accordance with paragraphs 1 (a) and 1 (b).
6. If any of the original arbitrators can not be part of the arbitral tribunal, it will be applied the provisions of Article 22.7.
7. If the arbitral tribunal determines that the level of benefits or other obligations that proposed to suspend is excessive, or that the complaining Party has not observed the provisions of the Article 22.15, shall establish the manner in which the complaining Party may suspend benefits or other obligations. The complaining Party may only suspend benefits or other obligations in a manner consistent with the determination of the arbitral tribunal.
8. If the arbitral tribunal determines that the requested Party has eliminated the disagreement or nullification or impairment, the complaining Party may not suspend benefits or other obligations.
Article 22.17. Emergency Cases
1. In cases of urgency, the terms established in this Chapter shall be reduced by half, unless something different is established in it.
2. Without prejudice to the provisions of Article 22.11.1, the arbitral tribunal shall apply the term established in Article 22.11.2 when the complaining Party so indicates in the request of the establishment of the arbitral tribunal.
3. For the purposes of this Chapter, disputes shall be understood as cases of urgency relating to perishable goods, which comprise those goods that are decomposed quickly due to its natural characteristics, especially if conditions do not exist adequate storage.
Annex II. CODE OF CONDUCT FOR ARBITRATION DISPUTE RESOLUTION PROCEEDINGS
Preamble
Considering that the Parties attach paramount importance to the integrity and impartiality of procedures established in accordance with this Chapter, the Parties establish this Code of Conduct in compliance with Article 22.7.9 (d).
Article 1. Definitions
For the purposes of this Code of Conduct:
(a) Arbitrator means the person designated by the Parties under Article 22.7 to join an arbitral tribunal and has accepted his appointment to the position;
(b) Assistant means a person who provides support to the referee;
(c) Affidavit means the Affidavit of Confidentiality and Compliance with the Code of Conduct, which is included in the Appendix of this Code of Conduct;
(d) Expert means a person who provides information or technical advice in accordance with Rules 50 to 57 of Annex I;
(e) Family means the spouse or partner of the arbitrator, their relatives consanguineous and by affinity, and the spouses of such persons;
(f) Procedure means, unless otherwise specified, the procedure of an arbitral tribunal under this Chapter;
(g) Arbitral tribunal means the arbitral tribunal established pursuant to Article 22.6;
(h) Contact unit means the office that both Parties designate for provide administrative support to the arbitral tribunal, in accordance with the Rule 62 of Annex I, and
(i) Administrative unit means the designated Unit of the Party claimed, in accordance with Rule 63 of Annex I.
Article 2. Current Principles
(a) The arbitrators shall be independent and impartial and shall avoid conflicts of interest, direct or indirect. They should not receive instructions from any Government or governmental or non-governmental organization.
(b) The arbitrators and former arbitrators shall respect the confidentiality of the procedures of the arbitral tribunal.
(c) The arbitrators must disclose the existence of any interest, relationship or issue that might influence its independence or impartiality and that could reasonably create an appearance of impropriety or bias. There is an appearance of impropriety or bias when a reasonable person, with knowledge of all relevant circumstances that a reasonable investigation could throw, it would conclude that the capacity of an arbitrator to carry out his duties with integrity, impartiality and Competition is deteriorated.
(d) This Code of Conduct does not establish under what circumstances the Parties they will disqualify an arbitrator.
Article 3. Responsibilities Towards the Procedure
The referees and former referees will avoid being or appearing incorrect and will keep a high level of conduct to preserve the integrity and impartiality of the settlement procedure controversies.
Article 4. Disclosure Obligations
(a) Throughout the procedure, the arbitrators have a permanent obligation to disclose interests, relationships and issues that may be linked to the integrity or impartiality of the arbitration procedure of dispute resolution.
(b) As expeditiously as possible, after it is known that one of the Parties has appointed a person as arbitrator to serve on the arbitral tribunal, the Administrative unit shall provide such person with a copy of this Code of Conduct and the Affidavit.
(c) The person appointed to the arbitral tribunal shall have three (3) days to accept your appointment, in which case you must return to the Unit the Sworn Statement duly signed. The designated person to integrate the arbitral tribunal will disclose any interest, relationship or issue that could influence its independence or impartiality or that it could reasonably create the appearance of impropriety or bias in the procedure. To such In effect, the person appointed to the arbitral tribunal shall carry out all the reasonable efforts to have knowledge of such interests, relationships and matters To this end, it must disclose, as a minimum, the following interests, Relations and matters:
(i) Any economic or personal interest in:
(A) The procedure or its result, and
(B) An administrative procedure, an internal judicial procedure or another international dispute settlement procedure that involves issues that can be decided in the procedure for which it is being considered;
(ii) Any economic interest of your employer, partner, associate or relative in:
(A) The procedure or its result, and
(B) An administrative procedure, a judicial procedure national or other international procedure for the settlement of differences that involve issues on which you can decide in the procedure for which it is being considered;
(iii) Any current or previous economic, commercial, or professional, family or social with any of the Parties interested in the procedure or its lawyers or any relationship of that nature that involve your employer, partner, associate or relative, and
(iv) Public defense or legal or other representation about any controversial issue in the procedure or that involves the same goods or services.
(d) Once appointed, the arbitrator shall continue to make reasonable efforts to take note of any interest, relationship or issue mentioned in the subparagraph (c) and shall disclose them. The obligation of disclosure constitutes a permanent duty that requires arbitrators to disclose any interest, relationship personal and matter that may arise at any stage of the procedure.
(e) In case there is any doubt as to whether an interest, personal relationship or issue should be disclosed under subparagraphs (c) or (d), an arbitrator must choose please the disclosure. The disclosure of an interest, personal relationship or matter is understands without prejudice to whether the interest, personal relationship or matter is covered by subparagraphs (c) or (d), or if it merits correction, in accordance with numeral 6 (g), or disqualification.
(f) The disclosure obligations set forth in subparagraphs (a) to (e) must not interpreted in such a way that the burden of a detailed disclosure makes it practical to serve as arbitrators to the people of the legal or business community, depriving Parties of the services of those who could be the most qualified to serve as arbitrators.
Article 5. Performance of the Functions by the Arbitrators
(a) Bearing in mind that the prompt resolution of disputes is essential for this Agreement will work effectively, the arbitrators will perform their duties a complete and expeditious manner during the entire course of the procedure.
(b) The arbitrators shall ensure that the administrative unit can, at all times reasonable, to contact the arbitrators to carry out the tasks of the arbitral tribunal.
(c) The arbitrators shall perform their duties fairly and diligently.
(d) The arbitrators shall comply with the provisions of this Chapter.
(e) An arbitrator shall not deny the other arbitrators of the court the opportunity to participate in all aspects of the procedure.
(f) The arbitrators shall not establish ex parte contacts in relation to the procedure, in accordance with Rule 47 of Annex I.
(g) The arbitrators shall consider only the matters presented in the proceedings and that are necessary to make a decision and will not delegate their duty of decision to another person.
(h) The arbitrators shall take the necessary measures to ensure that their assistants comply with paragraphs 3, 4, 5 (d), 5 (f) and 8 of this Code of Conduct.
(i) The arbitrators shall be prevented from disclosing aspects related to real or potential of this Code of Conduct, unless the disclosure is with both Contact units and address the need to determine if a referee has violated or could violate this Code of Conduct.
Article 6. Independence and Impartiality of the Arbitrators
(a) The arbitrators must be independent and impartial. The arbitrators will act in a just and will not create the appearance of impropriety or bias.
(b) The arbitrators shall not be influenced by their own interests, external pressures, political considerations, public pressure, loyalty to a Party or fear of criticism.
(c) The arbitrators may not, directly or indirectly, incur any obligation or accept some benefit that could somehow interfere, or appear to interfere, with the correct fulfillment of their obligations.
(d) The arbitrators shall not use their position in the arbitral tribunal to promote interests personal or private. The arbitrators will avoid actions that can create the impression that there are other people who are in a special position to influence them. The arbitrators will do everything possible to prevent or discourage others people who have such influence.
(e) The arbitrators shall not allow their previous or current relations or economic, commercial, professional, family or social responsibilities influence their behavior or reasoning.
(f) The arbitrators shall avoid establishing any relationship or acquiring any interest that is likely to influence their impartiality or that could reasonably create the appearance of impropriety or bias.