4. The parties shall enter into consultations within 30 days after the date of receipt of the request or within 15 days following the date of receipt of the request in cases of urgency including those which concern perishable agricultural goods.
5. During the consultations, the Parties shall make every effort to reach a mutually satisfactory resolution of the matter subject to consultations. To this end, the Parties shall:
(a) Provide sufficient information to enable a full examination of how the actual or proposed measure, might affect the operation and application of this Agreement; and
(b) They shall treat any confidential information exchanged in the consultations.
6. With a view to seeking a mutually agreed solution of the matter, the party that sought consultations may make representations or proposals to the other party, who give due consideration to the representations or proposals made.
Article 16.5. The Intervention of the Administrative Commission
1. A Party may request in writing a meeting of the Commission, if the parties fail to resolve a matter pursuant to article 16.4 within:
(a) 40 days following the receipt of a request for consultations;
(b) 15 days of receipt of a request for consultations in matters relating to cases of urgency including those which concern perishable agricultural goods; or
(c) Any period which may agree.
2. A Party may also request in writing a meeting of the Commission where administering consultations have been held in accordance with Chapter 9 (sanitary and phytosanitary measures) and Chapter 10 (Technical Barriers to Trade), to replace consultations under Article 16.4.
3. The State in the requesting party shall request the measure or other matter complained of and shall deliver the request to the other party.
4. Unless otherwise decided by the administering the Commission shall convene within 10 days of delivery of the request and shall endeavour to resolve the dispute promptly. The Commission may: administering
(a) To hold technical advisers or create such working groups or expert groups as it deems necessary;
(b) Recourse to conciliation, mediation or such other dispute resolution procedures; or
(c) Recommendations
To assist the parties to reach a mutually satisfactory resolution of the dispute.
Article 16.6. Establishment of an Arbitral Tribunal
1. If the parties fail to meet to resolve the matter within:
(a) 25 days from the date of the meeting of the Administrative Committee convened under Article 16.5;
(b) 50 days from the date of receipt of the request for consultations, when administering the Commission has not convened pursuant to article 16.5.4;
(c) 30 days from the date of receipt of the request for consultations in cases of urgency including those which concern perishable agricultural goods, when administering the Commission has not convened pursuant to article 16.5.4; or
(d) Any period that the parties agree,
Any Party may request the establishment of an arbitral tribunal.
2. The request for the establishment of an arbitral tribunal shall be in writing and identify:
(a) The specific measure subject to their knowledge;
(b) The legal basis for the claim including the provisions of this Agreement that may be breached and any other relevant provisions; and
(c) The factual basis of the request.
3. Unless the parties agree otherwise, the arbitral tribunal shall be established and perform its functions in accordance with the provisions of this chapter.
4. Without prejudice to paragraphs 1, 2 and 3, an arbitral tribunal may not be established to review a proposed measure.
Article 16.7. Composition of Arbitral Tribunals
1. The arbitral tribunal shall consist of three members.
2. In the written notification pursuant to Article 16.6, the complaining party shall designate one member of that arbitral tribunal.
3. Within 15 days from the receipt of the request for the establishment of an arbitral tribunal, the responding party shall appoint one member of the arbitral tribunal.
4. The Parties shall agree on the appointment of the third arbitrator within 15 days of the appointment of the second arbitrator. The member thus appointed shall act as Chairman of the arbitral tribunal.
5. If it has not been possible to compose the arbitral tribunal within 30 days after the date of receipt of the request for the establishment of the arbitral tribunal, the necessary appointments shall be made at the request of either party by the Secretary-General of ALADI within 30 days.
6. The Chairman of the arbitral tribunal shall not be a national of any of the Parties or permanent residence in the territory of any of them, nor be employed by any of the parties or have had any involvement in the case in any capacity.
7. All arbitrators shall:
(a) Have expertise or experience in law and international trade or other matters covered by this Agreement or the resolution of disputes arising under international trade agreements;
(b) Strictly be chosen on the basis of its reliability and objectivity, sound judgment;
(c) Be independent, not be linked with one of the Parties and not receive instructions from the same; and
(d) Comply with the standards of conduct for the implementation of the Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO document WT / (the DSB / RC / 1).
8. No arbitrator may be in a dispute individuals who have participated in the procedures described in article 16.5.
9. If any of the arbitrators appointed in accordance with this article abandoned or is unable to serve as a replacement arbitrator shall be appointed within 15 days of the event, according to the procedure for the election used to select the original arbitrator and the replacement shall have all the powers and duties of the original arbitrator. If it has not been possible within that period, the appointment shall be made at the request of either party by the Secretary-General of ALADI within 30 days.
10. The date of establishment of the arbitral tribunal shall be the date on which the Chair is appointed.
Article 16.8. Functions of Arbitral Tribunals
1. The function of an arbitral tribunal is to make an objective assessment of the dispute referred to it, including an objective assessment of the facts of the case and the applicability of and conformity with this Agreement, as well as any other findings necessary for the resolution of the dispute submitted to them.
2. The arbitral tribunal shall establish, in consultation with the parties, its own procedures in relation to the rights of parties to be heard and its deliberations as well as those matters covered by article 16.9.
Article 16.9. Model Rules of Procedure
1. Unless the parties to the dispute otherwise agree, the proceedings of the arbitral tribunal shall be governed by the Model Rules of Procedure, which shall be established by the Commission upon the administering Entry into Force Agreement.
2. Unless within 20 days of the date of delivery of the request for the establishment of an arbitral tribunal the parties agree otherwise, the terms of reference of arbitral tribunal shall:
"Examine, in the light of the relevant provisions of the Agreement, the matter indicated in the request for the establishment of an arbitral tribunal as provided in Article 16.6 and make findings, determinations and decisions as provided in Article 16.11.3 and submit the reports referred to in Articles 16.11 and 16.12."
3. If the complaining party wishes to the arbitral tribunal shall decide the nullification and impairment caused or to make findings as to the degree of adverse effects that trade has generated by that party non-compliance with the obligations of this Agreement, the terms of reference shall so indicate.
4. At the request of a party or on its own initiative, the arbitral panel may seek scientific information and technical advice from experts as it deems appropriate. Any information obtained in this way must be delivered to the parties to the dispute to its comments.
5. The arbitral tribunal shall take its decisions by consensus. If the arbitral tribunal is unable to reach consensus it may take its decisions by a majority of its members.
6. The costs associated with the process, including the expenses of the arbitral tribunal shall be borne in equal parts by the parties, unless the arbitral tribunal determines otherwise given the particular circumstances of the case.
Article 16.10. Suspension or Termination of Proceedings
1. The parties may agree that the arbitral tribunal suspend its work at any time for a period not exceeding 12 months following the date of such agreement. If the work of the arbitral tribunal has been suspended for more than 12 months, shall be without effect on the establishment of the arbitral tribunal, unless the parties to the dispute agree otherwise.
2. The parties may agree to terminate the proceedings as a result of a mutually satisfactory solution to the dispute. Without prejudice to the foregoing, the complaining party may at any time withdraw the request for the establishment of the arbitral tribunal shall terminate immediately.
Article 16.11. Preliminary Report
1. The report of the arbitral tribunal shall be drafted without the presence of the Parties and shall be based on the relevant provisions of this Agreement and the submissions and arguments of the Parties.
2. Unless the parties otherwise agree, within 90 days from its establishment, or 60 days in cases of urgency including those which concern perishable agricultural goods, the arbitral tribunal shall present to the parties an initial report.
3. The initial report shall contain:
(a) The findings of fact;
(b) The determination of the arbitral tribunal as to whether a party has breached its obligations under this Agreement or whether the measure of that party cause nullification or impairment in the sense of article 16.2 (c) or any other determination requested in the terms of reference; and
(c) The decision of the arbitral tribunal.
4. In exceptional cases, when the arbitral tribunal considers that it cannot issue its initial report within 90 days or within 60 days in cases of urgency, it shall inform the Parties in writing of the reasons for the delay and shall include an estimate of the period within which will issue its report. In no case should the period of delay shall not exceed a further period of 30 days unless the parties otherwise.
5. Arbitrators may make dissenting opinions on matters for which there is no decision by consensus.
6. An arbitral tribunal may either in its initial report or its final report disclose which arbitrators voted with the majority or minority.
7. A Party may submit written comments to the arbitral tribunal on the preliminary report, including the request referred to in article 16.13.3, within 15 days following the submission of such report unless the parties agree otherwise.
8. After considering any written comments on the initial report the arbitral tribunal shall respond to such comments and may reconsider its report and make any further examination that it considers appropriate.
Article 16.12. Final Report
1. The arbitral tribunal shall present to the Parties a final report including dissenting opinions, if any, within 30 days of presentation of the initial report unless the parties agree otherwise. The Parties shall publicly disclose the final report within 15 days, subject to the protection of confidential information.
2. In its final report if the arbitral tribunal finds that the responding party has not complied with the obligations contained in this Agreement or that a measure of that party cause nullification or impairment in the sense of article 16.2 (c), the decision shall, whenever possible, to eliminate the non-conformity or the nullification or impairment.
Article 16.13. Implementation of the Final Report
1. The final report of the arbitral tribunal shall be final and binding on the parties and shall not be subject to appeal.
2. Unless the parties agree otherwise, they shall immediately implement the decision of the arbitral tribunal contained in the final report.
3. If the respondent fails to comply immediately the decision of the arbitral tribunal shall do so within a reasonable period of time. The reasonable period of time shall be agreed upon by the parties in a period not exceeding 20 days of the notification of the final report and, in the absence of agreement, shall be fixed by the arbitral tribunal at the request of either party, taking into account the comments referred to in article 16.11.7 within 30 days following the date on which the request was made. Such determination shall be made in consultation with the parties.
Article 16.14. Disagreement on Compliance
1. In case of disagreement as to the implementation of measures to comply with the ruling or to the consistency with this agreement of the measures taken within reasonable period of time, the dispute shall be settled under the dispute settlement procedure in this chapter.
With intervention, whenever possible, the arbitral tribunal to which the matter is not required, initially known in no case exhaust stages of consultation and involvement of the Commission.
2. The arbitral tribunal shall circulate its report to the parties within 60 days after the date on which the matter was referred to it. When the arbitral tribunal considers that it cannot provide its report within this period, it shall inform the Parties in writing of the reasons for the delay and shall include an estimate of the period within which it will issue its report, which shall not exceed a further period of 30 days.
Article 16.15. Suspension of Benefits and Compensation
1. If:
(a) The expiry of the reasonable period of time and the respondent party notifies that has not fulfilled; or
(b) The arbitral tribunal, in accordance with article 16.14 concludes that there are no measures to comply with the ruling or such measures are incompatible with this Agreement,
The complaining party may suspend the respondent Party, concessions or other obligations under this Agreement, equivalent to the level of nullification or impairment. The notice shall specify the level of suspension and shall be extended with a notice of at least 30 days after the entry into force of the measures.
2. Without prejudice to paragraph 1, the complaining party may at any time after the issuance of the final report of the arbitral tribunal shall require the defendant to enter into negotiations with a view to finding a mutually acceptable compensation. Unless the parties agree otherwise, such negotiations shall suspend the proceedings already initiated, in particular those referred to in articles and 16.16 16.15.6 16.14, nor shall prevent the complaining party to exercise the rights referred to in paragraph 1.
3. Compensation and suspension of concessions or other obligations are temporary measures and in no case preferable to the full implementation of the decision of the arbitral tribunal to bring the measure into conformity with this Agreement. Compensation and suspension of benefits shall only be applied until it has eliminated the measure found to be inconsistent with this agreement, or until the parties have reached a mutually satisfactory solution.
4. If the complaining party decides to suspend benefits in the same sector or sectors affected by the measure that the arbitral tribunal has found to be inconsistent with this Agreement or causing nullification or impairment in accordance with article 16.2 (c), and only if this is not possible, will be ineffective or in another sector or area covered by the Agreement. The communication in which it announces such a decision shall indicate the reasons on which it is based.
5. Upon written request of the defendant, within 30 days of the notification referred to in paragraph 1, the arbitral tribunal to which the matter is known initially shall determine whether the level of concessions or other obligations suspended by the complaining party is not equivalent to the level of nullification and impairment caused by the measure under the dispute in accordance with paragraph 1, or if procedures have been followed and principles of paragraph 4.
6. The arbitral tribunal shall circulate its report to the parties within 30 days after the date on which the matter was referred in accordance with paragraph 5. The decision of the arbitral tribunal, which shall be made available to the public, shall be final and binding and the parties shall not seek a second arbitration.
Article 16.16. The Compliance Review
1. If the responding party considers that it has eliminated the non-conformity or the nullification or impairment found by the arbitral tribunal shall notify the other party of the measure adopted compliance. In case of disagreement based on the compatibility of the measure with this Agreement, the respondent party may refer the matter to the procedure established in article 16.14.
2. The complaining party, without delay, it shall reinstate any concessions or other obligations which has been suspended pursuant to Article 16.15, if there is disagreement on compliance with the action taken by the responding party within 15 days from the receipt of the notification under paragraph 1, or if it contests without establish, or if the tribunal decides that the responding party has eliminated the non-conformity.
Article 16.17. Other Provisions
Any time period mentioned in this chapter may be modified by mutual agreement between the parties.
Article 16.18. The Right of Individuals
No Party may grant a right of action under its domestic law against the other Party on the ground that a measure of the other party is inconsistent with this Agreement
Chapter 17. Exceptions
Article 17.1. General Exceptions
1. For the purposes of chapters 3 to 10 (Trade in Goods and rules of origin and customs procedures and trade facilitation, sanitary and phytosanitary measures and technical barriers to trade), article XX of GATT 1994 and its interpretative notes are incorporated into this Agreement and form an integral part thereof, mutatis mutandis. The parties understand that the measures referred to in article XX (b) of GATT 1994 include environmental measures necessary to protect the life and health of humans or animals, plant and that article XX (g) of GATT 1994 applies to measures relating to the conservation of natural resources whether living or non-living exhaustible.
2. For the purposes of twelve chapters (cross-border trade in services), article XIV of GATS (including its footnotes) is incorporated into and form part of this Agreement. The parties understand that the measures referred to in article XIV (b) of GATS include environmental measures necessary to protect the life and health of humans, animals or plant.
Article 17.2. Essential Security
Nothing in this Agreement shall be construed as:
(a) To require a party to furnish or allow access to information the disclosure of which it considers contrary to its essential security interests; or
(b) Prevent a party from applying any measure which it considers necessary for the fulfillment of its obligations under the United Nations Charter with respect to the maintenance or restoration of international peace and security, or for the protection of its essential security interests.
Article 17.3. Taxation
1. Except as provided in this article nothing in this Agreement shall apply to Taxation Measures.
2. Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention. In the event of any inconsistency between this Agreement and any such conventions, the Convention shall prevail to the extent of the inconsistency. In the case of a tax convention between the parties, the competent authorities under that Convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that Convention.
3. Notwithstanding paragraph 2:
(a) Article 3.1 (National Treatment), and such other provisions of this Agreement as are necessary to give effect to that article shall apply to taxation measures to the same extent as article III of the GATT 1994; and
(b) Article 3.2.12 (release programme - export taxes) shall apply to taxation measures.
4. Subject to paragraph 2:
(a) Article 12.3 (National Treatment) shall apply to measures taxation on income or capital gains on the capital tributable undertakings relating to the purchase or consumption of particular services except that nothing in this subparagraph shall prevent a party from conditioning the receipt of an advantage or which shall continue to receive the same relating to the purchase or consumption of particular services on the service requirements to provide in its territory; and
(b) Articles 11.2 and 11.3 (National Treatment) (most-favoured-nation treatment), Articles 12.3 and 12.4 (National Treatment) (most-favoured-nation treatment) apply to all taxation measures other than those on income or capital gains on the capital tributable companies, property tax, inheritance, gifts and transfers to jump generations (generation-skipping transfers),
None of the articles referred to in subparagraphs (a) and (b) apply:
(c) Any most-favored-nation obligation with respect to the benefits accorded by a Party pursuant to a tax convention;
(d) No dissenting A provision of any existing taxation measure;
(e) The continuation or prompt renewal of a provision of any dissenting existing taxation measure;
(f) To an amendment to A provision of any existing taxation measure dissenting, both in the amendment does not decrease, at the time of his grade in accordance with any of those articles;
(g) To the adoption or enforcement of any taxation measure aimed at ensuring the imposition or collection of taxes in a fair and effective (as permitted by article XIV (d) of GATS);
(h) A provision that the conditions to benefit or continues to obtain the same, with respect to the contributions to or income of pension plans and funds, provided that the Party maintain continuous jurisdiction over the pension plan or funds.
5. Subject to paragraph 2 and without prejudice to the rights and obligations of the Parties under paragraph 3. paragraphs 2, 3 and 4 of article 11.6 (performance requirements) shall apply to taxation measures.
6. 11.10 (Articles expropriation and compensation) and article 11.16 (submission of a claim to arbitration) shall apply to a taxation measure expropiatoria as alleged. However, no investor may invoke article 11.10 (expropriation and compensation) as the basis of a claim where it has been determined pursuant to this paragraph that the measure is not an expropriation. An investor that seeks to invoke article 11.10 (expropriation and compensation) with respect to a taxation measure must first refer the matter to the Competent Authorities identified in annex 17.3, when giving notice of intent under article 11.16.3 (submission of a claim to arbitration), so that such authorities determine whether the measure constitutes an expropriation. If the competent authorities do not agree to consider the issue or having agreed to consider it fail to agree on the ground that the measure is not an expropriation within a period of 6
Months after they have been subjected the matter, the investor may submit its claim to arbitration in accordance with article 11.16 (submission of a claim to arbitration).
Article 17.4. Difficulties In the Balance of Payments
1. If a party experiences serious difficulties in their balance of payments and external financial or threat thereof, or the risk of them live, may adopt or maintain restrictive measures with regard to trade in goods and services and with regard to payments and capital movements, including those related to direct investment.
2. The Parties shall endeavour to avoid the application of the restrictive measures referred to in paragraph 1.
3. Restrictive measures adopted or maintained under this article shall be non-discriminatory and of limited duration and shall not go beyond what is necessary to remedy the balance of payments and external financial. They shall be in accordance with the conditions established in the WTO Agreements and consistent with the Articles of Agreement or articles of agreement of the International Monetary Fund, as appropriate.
4. The party maintaining or having adopted restrictive measures or any changes thereto, shall forthwith inform the other party and shall, as soon as possible a time schedule for their removal.
5. The party applying restrictive measures shall consult promptly within the framework of the Commission. In such consultations shall assess the balance of payments situation of the Party and the restrictions adopted or maintained under this Article, taking into account, inter alia, factors such as:
(a) The nature and scope of the external financial difficulties and balance of payments;
(b) The external economic and trading environment of the consulting Party;
(c) Alternative corrective measures which may be used.
The consultations shall examine the conformity of any restrictive measure with paragraphs 3 and 4. It shall accept all findings of statistical and other to submit to the International Monetary Fund on issues of change, monetary reserves and balance of payments and the conclusions shall be based on the assessment by the Fund of the financial position and external balance of payments of a Party in the consultations.
Article 17.5. Definitions
For the purposes of this chapter:
Tax convention means a convention for the avoidance of double taxation or other international agreement or arrangement; taxation and taxes and Taxation Measures do not include:
(a) Charges;
(b) Anti-dumping or countervailing duties; or
(c) Fee or other charge in connection with importation commensurate with the bear D services.
Chapter 18. Cooperation and Trade Promotion (1)
Article 18.1. Cooperation
1. The Parties shall promote cooperation in areas such as economic policies and techniques; trade, monetary and financial policies of public finances; customs matters; and phytosanitary rules Zoo and qualitative; fuel and energy; transport and communications; modern services, such as technology, engineering, and consult other.
2. To undertake specific actions of the Economic Cooperation, relevant entities of the respective areas may enter into agreements within its competence.
3. The parties, with the participation of their respective private sectors; encourage the development of economic complementarity of actions in the areas of goods and services.
Article 18.2. Trade Promotion
The Parties shall establish joint programmes for trade promotion covering, inter alia, exhibitions, fairs and exhibitions, as well as meetings and reciprocal visits entrepreneurs and information on supply and demand and market studies.