2. Upon notification by the Party complained against, the Parties shall seek to agree on such a reasonable period of time. If there is disagreement between the Parties on the reasonable period of time to comply with the arbitral ruling, the complaining Party shall, within thirty (30) days of the notification made under paragraph 1, request in writing the original arbitration panel to determine the length of the reasonable period of time. Such request shall be notified simul- taneously to the Party complained against and to the Trade and Development Committee. The arbitration panel shall notify its ruling to the Parties and to the Trade and Development Committee within thirty (30) days from the date of the receipt of the request.
3. The arbitration panel shall, in determining the length of the reasonable period of time, take into consideration the length of time that it will normally take the Party complained against to adopt comparable legislative or administrative measures to those identified by such Party as being necessary to ensure compliance. The arbitration panel shall also take into consideration capacity constraints and the different level of development which may affect the adoption of the necessary measures by the Party complained against.
4. In the event of the original arbitration panel, or some of its members, being unable to reconvene, the procedures set out in Article 80 shall apply. The time limit for notifying the ruling shall be forty-five (45) days from the date of the receipt of the request referred to in paragraph 2.
5. The reasonable period of time may be extended by agreement of the Parties.
Article 85. Review of Any Measure Taken to Comply with the Arbitral Ruling
1. The Party complained against shall notify the complaining Party and the Trade and Development Committee, before the end of the reasonable period of time, of any measure that it has taken to comply with the arbitral ruling.
2. In the event of a disagreement between the Parties concerning the compatibility of any measure notified under paragraph 1 with the provisions of this Agreement, the complaining Party may request in writing the original arbitration panel to rule on the matter. Such request shall identify the specific measure at issue and it shall explain how such measure is incompatible with the provisions of this Agreement. The arbitration panel shall notify its ruling within ninety (90) days of the date of the receipt of the request. In cases of urgency, including those involving perishable and seasonal goods, the arbitration panel shall notify its ruling within forty-five (45) days of the date of the receipt of the request.
3. In the event of the original arbitration panel, or some of its members, being unable to reconvene, the procedures set out in Article 80 shall apply. The time limit for notifying the ruling shall be one hundred and five (105) days from the date of the receipt of the request referred to in paragraph 2.
Article 86. Temporary Remedies In Case of Non-compliance
1. If the Party complained against fails to notify any measure taken to comply with the arbitral ruling before the expiry of the reasonable period of time, or if the arbitration panel rules that the measure notified under Article 85(1) is not compatible with the provisions of this Agreement, the Party complained against shall, if so requested by the complaining Party, present an offer for compensation. Such compensation may include or consist of financial compensation, although nothing in this Agreement shall oblige the Party complained against to offer such financial compensation.
2. If no agreement on compensation is reached within thirty (30) days of the end of the reasonable period of time or of the arbitral ruling under Article 85 that a measure taken to comply is not compatible with this Agreement, the complaining Party shall be entitled, upon notification to the Party complained against, to adopt appropriate measures.
3. In adopting such measures the complaining Party shall seek to select measures proportionate to the violation which least affect the attainment of the objectives of this Agreement and shall take into consideration their impact on the economy of the Party complained against and on the individual SADC EPA States.
4. If the EU fails to notify any measure taken to comply with the arbitral ruling by the expiry of the reasonable period of time at the latest, or if the arbitration panel rules that the measure notified under Article 85(1) is not compatible with that Party's obligations under this Agreement, and the complaining Party asserts that the adoption of appropriate measures would result in significant damage to its economy, the EU shall consider providing financial compensation.
5. The EU shall exercise due restraint in asking for compensation or adopting appropriate measures pursuant to paragraphs 1 or 2.
6. Compensation or appropriate measures shall be temporary and shall be applied only until any measure found to violate the provisions of this Agreement has been withdrawn or amended so as to bring it into conformity with those provisions or until the Parties have agreed to settle the dispute.
7. For the purposes of Articles 86 and 87, appropriate measures refer to measures similar to those available under Understanding on Rules and Procedures Governing the Settlement of Disputes contained in Annex 2 of the WTO Agreement ("DSU").
Article 87. Review of Any Measure Taken to Comply after the Adoption of Appropriate Measures
1. The Party complained against shall notify the complaining Party and the Trade and Development Committee of any measure it has taken to comply with the arbitral ruling and of its request to end the application of appropriate measures by the complaining Party.
2. If the Parties do not reach an agreement on the compatibility of the notified measure with the provisions of this Agreement within thirty (30) days of the date of notification, the complaining Party shall request in writing the original arbitration panel to rule on the matter. Such request shall be notified to the Party complained against and to the Trade and Development Committee. The arbitral ruling shall be notified to the Parties and to the Trade and Development Committee within forty-five (45) days of the date of the receipt of the request. If the arbitration panel rules that any measure taken to comply is not in conformity with the provisions of this Agreement, the arbitration panel shall determine whether the complaining Party may continue to apply appropriate measures. If the arbitration panel rules that any measure taken to comply is in conformity with the provisions of this Agreement, the appropriate measures shall be terminated.
3. In the event of the original arbitration panel, or some of its members, being unable to reconvene, the procedures laid down in Article 80 shall apply. The period for notifying the ruling shall be sixty (60) days from the date of the receipt of the request referred to in paragraph 2.
Chapter IV. Common Provisions
Article 88. Mutually Agreed Solution
The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time. They shall notify the Trade and Development Committee and the arbitration panel, if any, of such a solution. Upon adoption of the mutually agreed solution, the dispute settlement procedure shall be terminated.
Article 89. Rules of Procedure and Code of Conduct
1. The Parties shall agree on Rules of Procedure and a Code of Conduct within twelve (12) months of the entry into force of this Agreement which shall be adopted by the Joint Council.
2. Any meeting of the arbitration panel shall be open to the public in accordance with the Rules of Procedure, unless the arbitration panel decides otherwise on its own motion or at the request of the Parties. The arbitration panel shall meet in closed session when the submissions or arguments of a Party contain confidential information.
Article 90. Information and Technical Advice
At the request of a Party, or upon its own initiative, the arbitration panel may obtain information from any source, including the Parties involved in the dispute, it deems appropriate for the arbitration proceeding. The arbitration panel shall also have the right to seek the opinion of relevant experts as it deems appropriate. Interested entities are authorised to submit amicus curiae briefs to the arbitration panel in accordance with the Rules of Procedure. Any information obtained in this manner must be disclosed to the Parties and submitted for their comments.
Article 91. Languages of the Submissions
1. The written and oral submissions of the Parties shall be made in any official language of the Parties.
2. The Parties shall endeavour to agree on a common working language for any specific proceedings under this Part. If the Parties are unable to agree on a common working language, each Party shall arrange for and bear the costs of the translation of its written submissions and interpretation at the hearings into the language chosen by the Party complained against, unless such language is an official language of that Party. The EU shall, when seeking to agree on a common working language, take into account the potential impact of such costs on the SADC EPA States.
Article 92. Rules of Interpretation
The arbitration panel shall interpret the provisions of this Agreement in accordance with the customary rules of inter- pretation of public international law, including those codified in the Vienna Convention on the Law of Treaties. The rulings of the arbitration panel cannot add to or diminish the rights and obligations provided for in this Agreement.
Article 93. Arbitral Rulings
1. The arbitration panel shall make every effort to take any decision by consensus. Where, nevertheless, a decision cannot be arrived at by consensus, the matter at issue shall be decided by majority vote.
2. The ruling shall set out the findings of fact, the applicability of the relevant provisions of this Agreement and the reasoning behind any findings and conclusions that it makes. The Trade and Development Committee shall make the arbitral ruling publicly available unless it decides not to do so.
Article 94. List of Arbitrators
1. The Trade and Development Committee shall, no later than three (3) months after the entry into force of this Agreement, establish a list of twenty-one (21) individuals who are willing and able to serve as arbitrators. Each of the Parties shall select eight (8) individuals to serve as arbitrators. The Parties shall also agree on five (5) individuals who are not nationals of either Party and who shall act as chairperson of the arbitration panel. The Trade and Development Committee will ensure that the list is always maintained in accordance with this Article.
2. Arbitrators shall have specialised knowledge on matters covered by this Agreement or experience in law and inter- national trade. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government, or be affiliated with the governments of any of the Parties, and shall comply with the Code of Conduct annexed to the Rules of Procedures.
3. The Trade and Development Committee may establish an additional list of fifteen (15) individuals having a sectoral expertise in specific matters covered by this Agreement. When recourse is made to the selection procedure of Article 80, the Chairperson of the Trade and Development Committee may use such a sectoral list upon agreement of both Parties.
Article 95. Relation with WTO Obligations
1. Arbitration bodies set up under this Agreement shall not arbitrate disputes on a Party's rights and obligations under the WTO Agreement.
2. Recourse to the dispute settlement provisions of this Agreement shall be without prejudice to any action in the WTO framework, including dispute settlement action. However, where a Party has, with regard to a particular measure, initiated a dispute settlement proceeding under this Agreement or under the WTO Agreement, it may not initiate a dispute settlement proceeding regarding the same measure in the other forum until the first proceeding has ended. For the purposes of this paragraph, dispute settlement proceedings under the WTO Agreement are deemed to be initiated by a Party's request for the establishment of a panel under Article 6 of the DSU.
3. Nothing in this Agreement shall preclude a Party from implementing the suspension of obligations authorised by the Dispute Settlement Body of the WTO.
Article 96. Time Limits
1. Any time limits referred to in this Part, including the limits for the arbitration panels to notify their rulings, shall be counted in calendar days from the day following the act or fact to which they refer.
2. Any time limits referred to in this Part may be extended by mutual agreement of the Parties.
Part IV. GENERAL
Article 97. General Exception Clause
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by either Party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the importation or exportation of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article Il and Article XVII of the GATT, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the GATT Contracting Parties and not disapproved by them or which is itself so submitted and not so disapproved (1);
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilisation plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination; or
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that the Parties and the SADC EPA States are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist.
Article 98. Security Exceptions
1. Nothing in this Agreement shall be construed to:
(a) require either Party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) prevent either Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived; or
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; or
(iii) taken in time of war or other emergency in international relations; or
(c) prevent either Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Trade and Development Committee shall be informed of measures taken under paragraph 1(b) and (c) and of their termination.
Article 99. Taxation
1. Nothing in this Agreement, or in any arrangement adopted under this Agreement, shall be construed to prevent either Party from distinguishing, in the application of the relevant provisions of their fiscal legislation, between taxpayers who are not in the same situation, in particular with regard to their place of residence or with regard to the place where their capital is invested.
2. Nothing in this Agreement, or in any arrangement adopted under this Agreement, shall be construed to prevent the adoption or enforcement of any measure aimed at preventing the avoidance or evasion of taxes pursuant to the tax provisions of agreements to avoid double taxation or other tax arrangements or domestic fiscal legislation.
3. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
Part V. INSTITUTIONAL PROVISIONS
Article 100. The Joint Council
A Joint SADC EPA States - EU Council ("Joint Council") is hereby established, which shall oversee and administer the implementation of this Agreement.
Article 101. Composition and Functions
1. The Joint Council shall be composed, on the one hand, of the relevant members of the Council of the EU and relevant members of the European Commission or their representatives, and, on the other hand, of the relevant Ministers of the SADC EPA States or their representatives. The first meeting of the Joint Council shall be co-chaired by the Parties.
2. In relation to matters where SACU acts collectively for purposes of this Agreement, SACU shall act collectively in such matters under this provision and the EU shall treat SACU as such. In relation to matters where Member States of SACU act individually in such matters under this provision, the specific SACU Member State shall act in that capacity and the EU shall treat that Member State as such.
3. Without prejudice to the functions of the Council of Ministers as defined in Article 15 of the Cotonou Agreement, the functions of the Joint Council shall be to:
(a) be responsible for the operation and implementation of this Agreement and monitor the fulfilment of its objectives;
(b) examine any major issues arising under this Agreement that are of common interest and affect trade between the Parties;
(c) examine proposals and recommendations from the Parties for the review of this Agreement;
(d) make appropriate recommendations;
(e) monitor the development of economic and trade relations between the Parties;
(f) monitor and assess the impact of the cooperation provisions of this Agreement on sustainable development;
(g) monitor and review progress on all matters covered by this Agreement;
(h) establish its own rules of procedure;
(i) establish the rules of procedures of the Trade and Development Committee;
(j) monitor the work of the Trade and Development Committee; and
(k) perform any other duties under this Agreement.
4. The Joint Council may provide periodic reports on the operation of this Agreement to the Council of Ministers established in accordance with Article 15 of the Cotonou Agreement.
Article 102. Decision-making Powers and Procedures
1. In order to attain the objectives of this Agreement, the Joint Council shall have the power to take decisions in respect of all matters covered by this Agreement.
2. The decisions of the Joint Council shall be taken by consensus and shall be binding on the Parties. The Parties shall take all the measures necessary to implement such decisions in accordance with their respective internal rules.
3. For procedural matters and dispute settlement procedures, the Joint Council shall adopt decisions and recommen- dations by mutual agreement between the Parties.
4. The Joint Council shall meet at regular intervals, not exceeding a period of two (2) years, and extraordinarily whenever circumstances so require, if the Parties so agree.
Article 103. Trade and Development Committee
1. The Joint Council shall be assisted in the performance of its duties by a Trade and Development Committee composed of representatives of the Parties, normally at the level of senior officials.
2. The Trade and Development Committee shall be chaired alternately by a representative of each of the Parties for a period of one year. The first meeting of the Trade and Development Committee shall be co-chaired by the Parties.
3. This Committee may establish any special technical groups to deal with specific matters falling within their competence.
4. This Committee shall establish the rules of procedure of the special technical groups established under paragraph 3.
5. This Committee shall report and be responsible to the Joint Council.
6. This Committee shall take decisions or make recommendations in the cases provided for in this Agreement or where such power has been delegated to it by the Joint Council. In this event the Committee shall take its decisions by consensus.
7. This Committee shall have, in particular, the following functions:
(a) In the area of trade, to:
(i) monitor and evaluate the implementation of the decisions of the Joint Council;
(ii) facilitate and supervise the implementation of the provisions of this Agreement;
(iii) consider and recommend cooperation priorities to the Joint Council;
(iv) make recommendations to the Joint Council to avoid potential conflicts in areas covered by this Agreement;
(v) carry out any other function assigned to it by the Joint Council;
(vi) supervise the work of the special technical groups as referred to in paragraph 3;
(vii) monitor the development of regional integration and of economic and trade relations between the Parties;
(viii) discuss and undertake actions that may facilitate trade, investment and business opportunities between the Parties; and
(ix) discuss any matters under this Agreement and any issue that may affect the attainment of its objectives.
(b) In the area of development cooperation, to:
(i) monitor the implementation of the cooperation provisions laid down in this Agreement and coordinate such action with third party donors;
(ii) make recommendations on trade-related cooperation between the Parties;
(iii) keep under periodic review the cooperation priorities set out in this Agreement, and make recommendations on the inclusion of new priorities, as appropriate;
(iv) review and discuss cooperation issues pertaining to regional integration and implementation of this Agreement; and
(v) monitor and assess the impact of the implementation of this Agreement on the sustainable development of the Parties.
Part VI. GENERAL AND FINAL PROVISIONS
Article 104. Definition of the Parties and Fulfilment of Obligations
1. The Parties of this Agreement shall be Botswana, Lesotho, Namibia, South Africa, Swaziland and Mozambique, of the one part ("the SADC EPA States"), and the European Union or its Member States or the European Union and its Member States, within their respective areas of competence as derived from the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), of the other part (the EU).
2. The term "Party" shall refer to the SADC EPA States individually on the one part or the EU on the other part as the case may be.
3. Where reference is made to SACU in this Agreement, as in Articles 25(1), 34, 35 and 101 and in PART Ill, Botswana, Lesotho, Namibia, South Africa and Swaziland, shall act collectively as provided for in the SACU Agreement.
4. The Joint Council may decide to modify the application of paragraph 3.
5. The Parties shall adopt any general or specific measures required to fulfil their obligations under this Agreement and shall ensure that they comply with the objectives laid down in this Agreement.
Article 105. Exchange of Information
1. In order to facilitate communication relating to the effective implementation of this Agreement, the Parties shall designate a coordinator for the exchange of information upon the entry into force of this Agreement. The designation of a coordinator for the exchange of information is without prejudice to the specific designation of competent authorities under specific provisions of this Agreement.
2. At the request of either Party, the coordinator of the other Party shall indicate the office or official responsible for any matter pertaining to the implementation of this Agreement and provide the required support to facilitate communi- cation with the requesting Party.
3. At the request of either Party, the other Party shall, to the extent legally possible, provide information and reply promptly to any question relating to an actual or proposed measure that might affect trade between the Parties.
Article 106. Transparency
1. A Party shall publish or make publicly available its laws, regulations, procedures and administrative rulings of general application as well as any other commitments under an international agreement relating to any trade matter covered by this Agreement. Any such measures adopted after the entry into force of this Agreement shall be brought to the attention of the other Party.
2. Without prejudice to specific transparency provisions in this Agreement, the information referred to under this Article shall be considered to have been brought to the attention of the other Party when the information has been made available:
(a) by appropriate notification to the WTO; or
(b) on the official, fee-free and publicly accessible website; or
(c) to the coordinator of the other Party.
However, where the EU has provided such information and it has not been notified to the WTO through an official, fee- free and publicly accessible website, the SADC EPA States, which, because of capacity constraints, have difficulties accessing such a website, may request the EU to provide such information to the relevant coordinator.
3. Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private, except to the extent that it may be necessary to be disclosed in the context of a dispute settlement proceeding under this Agreement. Where such disclosure is considered necessary by a panel established under PART Il, the panel shall ensure that confidentiality is fully protected.
Article 107. Temporary Difficulties In Implementation
A Party encountering difficulties in meeting its obligations under this Agreement as a result of factors beyond its control shall immediately bring the matter to the attention of the Joint Council.
Article 108. Regional Preferences
1. Nothing in this Agreement shall oblige a Party to extend to the other Party any more favourable treatment which is applied by a Party as part of its respective regional integration process.
2. Any more favourable treatment and advantage that may be granted under this Agreement by a SADC EPA State to the EU shall be enjoyed by the other SADC EPA States.
Article 109. Outermost Regions of the EU
1. Taking account of the geographical proximity of the outermost regions of the EU and the SADC EPA States and in order to reinforce economic and social links between those regions and the SADC EPA States, the Parties shall endeavour to facilitate cooperation in all areas covered by this Agreement between the outermost regions of the EU and the SADC EPA States.
2. The objectives of paragraph 1 shall also be pursued, wherever possible, through fostering the joint participation of the SADC EPA States and the outermost regions of the EU in the framework and specific programmes of the EU in areas covered by this Agreement.
3. The EU shall endeavour to ensure coordination between the various financial instruments of the EU's cohesion and development policies in order to foster cooperation between the SADC EPA States and the outermost regions of the EU in the areas covered by this Agreement.