34. Each Party to the dispute and its advisers shall treat as confidential any information submitted by the other Party to the dispute to the arbitration panel which that Party has designated as confidential. Where a Party to the dispute submits a confidential version of its written submissions to the arbitration panel, it shall also, upon request of the other Party, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public. That Party shall provide the non-confidential summary no later than 15 days after the date of either the request or the submission, whichever is later and an explanation why the non-disclosed information is confidential. Nothing in these Rules shall preclude a Party to the dispute from disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other Party, it does not disclose any information designated by the other Party as confidential. The arbitration panel shall meet in closed session when the submission and the arguments of a Party contain confidential information. The Parties to the dispute and their advisers shall maintain the confidentiality of the arbitration panel hearings where the hearings are held in closed session.
Ex parte contacts
35. The arbitration panel shall not meet or communicate with a Party in the absence of the other Party.
36. No arbitrator may discuss any aspect of the subject matter of the proceedings with one Party or both Parties to the dispute in the absence of the other arbitrators.
Amicus curiae submissions
37. Unless the Parties agree otherwise within three days of the date of the establishment of the arbitration panel, the arbitration panel may receive unsolicited written submissions from natural or legal persons established in the territory of a Party to the dispute who are independent from the governments of the Parties to the dispute, provided that they are made within ten days of the date of the establishment of the arbitration panel, that they are concise and in no case longer than 15 pages typed at double space and that they are directly relevant to a factual or a legal issue under consideration by the arbitration panel.
38. The submission shall contain a description of the person making the submission, whether natural or legal, including its nationality or place of establishment, the nature of its activities, its legal status, general objectives and the source of its financing, and specify the nature of the interest that the person has in the arbitration proceeding. It shall be drafted in the languages chosen by the Parties to the dispute in accordance with rules 41 and 42 of these Rules.
39. The arbitration panel shall list in its ruling all the submissions it has received that conform to Rules 37 and 38 of these Rules. The arbitration panel shall not be obliged to address in its ruling the arguments made in such submissions. Any such submission shall be notified by the arbitration panel to the Parties to the dispute for their comments. The comments of the Parties to the dispute shall be submitted within ten days from the notification of the arbitration panel and any such comments shall be taken into consideration by the arbitration panel.
Urgent cases
40. In cases of urgency referred to in Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade-related Matters) of this Agreement, the arbitration panel, after consulting the Parties, shall adjust the time-limits referred to in these Rules as appropriate and shall notify the Parties of such adjustments.
Translation and interpretation
41. During the consultations referred to in Article 246 of this Agreement, and no later than the meeting referred to in Rule 8(e) of these Rules, the Parties to the dispute shall endeavour to agree on a common working language for the proceedings before the arbitration panel.
42. If the Parties to the dispute are unable to agree on a common working language, each Party shall make its written submissions in its chosen language. Such Party shall provide at the same time a translation in the language chosen by the other Party, unless its submissions are written in one of the working languages of the WTO. The Party complained against shall arrange for the interpretation of oral submissions into the languages chosen by the Parties to the dispute.
43. Arbitration panel rulings shall be notified in the language or languages chosen by the Parties to the dispute.
44. Any Party to the dispute may provide comments on the accuracy of the translation of any translated version of a document drawn up in accordance with these Rules.
45. Each Party shall bear the costs of the translation of its written submissions. Any costs incurred for translation of an arbitration ruling shall be borne equally by the Parties to the dispute.
Other procedures
46. These Rules are also applicable to procedures established under Article 246, Article 255(2), Article 256(2), Article 257(2), and Article 259(2) of this Agreement. However, the time-limits laid down in these Rules shall be adjusted by the arbitration panel in line with the special time-limits provided for the adoption of a ruling by the arbitration panel in those other procedures.
ANNEX XXI. CODE OF CONDUCT FOR ARBITRATORS AND MEDIATORS
Definitions
1. In this Code of Conduct:
(a) ‘arbitrator’ means a member of an arbitration panel established under Article 249 of this Agreement;
(b) ‘candidate’ means an individual whose name is on the list of arbitrators referred to in Article 268 of this Agreement and who is under consideration for selection as an arbitrator under Article 249 of this Agreement;
(c) ‘assistant’ means a person who, under the terms of appointment of an arbitrator, conducts, researches or provides assistance to the arbitrator;
(d) ‘proceeding’, unless otherwise specified, means an arbitration panel proceeding under Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade-related Matters) of this Agreement;
(e) ‘staff’, in respect of an arbitrator, means persons under the direction and control of the member, other than assistants;
(f) ‘mediator’ means a person who conducts a mediation procedure in accordance with Annex XIX to this Agreement.
Responsibilities to the process
2. Throughout the proceedings, every candidate and arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved. Former arbitrators must comply with the obligations established in Rules 15, 16, 17 and 18 of this Code of Conduct.
Disclosure obligations
3. Prior to confirmation of his/her selection as an arbitrator under Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade-related Matters) of this Agreement, a candidate shall disclose any interest, relationship or matter that is likely to affect his/her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
4. A candidate or an arbitrator shall communicate matters concerning actual or potential violations of this Code of Conduct only to the Association Committee in Trade configuration as set out in Article 408(4) of this Agreement for consideration by the Parties.
5. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in rule 3 of this Code of Conduct and shall disclose them. The disclosure obligation is a continuing duty which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceeding. The arbitrator shall disclose such interests, relationships or matters by informing the Association Committee in Trade configuration in writing, for consideration by the Parties.
Duties of arbitrators
6. Upon confirmation of his/her selection, an arbitrator shall be available to perform and shall perform his/her duties thoroughly and expeditiously throughout the proceeding, and with fairness and diligence.
7. An arbitrator shall consider only those issues raised in the proceeding and necessary for a ruling and shall not delegate that duty to any other person.
8. An arbitrator shall take all appropriate steps to ensure that his/her assistant and staff are aware of, and comply with, Rules 2, 3, 4, 5, 16, 17 and 18 of this Code of Conduct.
9. An arbitrator shall not engage in ex parte contacts concerning the proceeding.
Independence and impartiality of arbitrators
10. An arbitrator shall be independent and impartial, and avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamour and loyalty to a Party or fear of criticism.
11. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his/her duties.
12. An arbitrator shall not use his/her position on the arbitration panel to advance any personal or private interests and shall avoid actions that may create the impression that others are in a special position to influence him/her.
13. An arbitrator shall not allow financial, business, professional, personal, or social relationships or responsibilities to influence his/her conduct or judgement.
14. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his/her impartiality or that might reasonably create an appearance of impropriety or bias.
Obligations of former arbitrators
15. All former arbitrators shall avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decision or ruling of the arbitration panel.
Confidentiality
16. No arbitrator or former arbitrator shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
17. An arbitrator shall not disclose an arbitration panel ruling or parts thereof prior to its publication in accordance with Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade-related Matters) of this Agreement.
18. An arbitrator or a former arbitrator shall not disclose the deliberations of an arbitration panel, or any arbitrator's view at any time.
Expenses
19. Each arbitrator shall keep a record and render a final account of the time devoted to the procedure and of his/her expenses, as well as the time and expenses of his/her assistant and staff.
Mediators
20. The disciplines described in this Code of Conduct as applying to arbitrators or former arbitrators shall apply, mutatis mutandis, to mediators.