(a) the operation and implementation of this Agreement and the monitoring of the fulfilment of its objectives;
(b) the examination of any major issue arising within the framework of this Agreement, as well as any other question of common interest affecting trade between the Parties, without prejudice to the rights conferred in Part VII; and
(c) the examination of proposals and recommendations from the Parties for the review and amendment of this Agreement.
Article 105. Powers of the EPa Council
1. The EPA Council shall have powers to take decisions and may adopt recommendations from the Committee of Senior Officials in writing by mutual agreement.
2. The decisions taken shall be binding on the Parties that shall take all the measures necessary to implement them in accordance with their respective internal rules.
3. The EPA Council shall establish and adopt within six (6) months after the entry into force of this Agreement the Rules of Procedure required for the establishment of the Arbitration Panel.
4. For matters in which an EAC Partner State acts individually the adoption of such decisions by the EPA Council shall require the agreement of the EAC Partner State concerned.
Article 106. Committee of Senior Officials
1. A Committee of Senior Officials is hereby established upon entry into force of this Agreement.
2. It shall be composed of Permanent Secretaries or Principal Secretaries, as the case may be, from the EAC Partner State(s) and representatives from the UK at Senior Official level.
3. Subject to any directions which may be given by the EPA Council, the Committee of Senior Officials shall meet at least once in each year and may hold extraordinary meetings whenever circumstances so require at any time agreed by the Parties. The Committee of Senior Officials shall also meet preceding the meetings of the EPA Council.
4. The Committee shall be co-chaired by a representative of each of the Parties.
5. The Committee of Senior Officials shall be responsible for:
(a) assisting the EPA Council in the performance of its duties;
(b) receiving and considering reports of the specialised committees, working sessions, task forces or any bodies established by the Committee under Article 107 and co-ordinating their activities as well as making recommendations for consideration by the EPA Council;
(c) submitting reports and recommendations on the implementation of this Agreement to the EPA Council either on its own initiative or upon the request of the EPA Council, or upon request of a Party;
(d) in the area of trade:
(i) supervising and being responsible for the implementation and proper application of the provisions of this Agreement and discussing and recommending areas of cooperation in this regard;
(ii) undertaking action to avoid disputes and resolving disputes that may arise regarding the interpretation or application of the Agreement, in accordance with the provisions of Title I of Part VII;
(iii) assisting the EPA Council in the performance of its functions, including the submission of recommendations for decisions to be taken by the EPA Council;
(iv) monitoring the development of regional integration and of economic and trade relations between the Parties;
(v) monitoring and assessing the impact of the implementation of this Agreement on the sustainable development of the Parties;
(vi) discussing and undertaking actions that may facilitate trade, investment and business opportunities between the Parties; and
(vii) discussing any matters pertaining to this Agreement and any issue liable to affect the attainment of its objectives;
(e) in the area of development:
(i) assisting the EPA Council in the performance of its functions regarding development cooperation related matters falling under this Agreement;
(ii) monitoring the implementation of the cooperation provisions laid down in this Agreement and to coordinate such action with third party donors;
(iii) making recommendations on trade-related cooperation between the Parties;
(iv) keeping under periodic review the areas of cooperation set out in this Agreement, and making recommendations on the inclusion of new priorities, as appropriate; and
(v) reviewing and discussing cooperation issues pertaining to regional integration and implementation of this Agreement.
Article 107. Powers of the Committee of Senior Officials
1. In the performance of its functions, the Committee of Senior Officials shall:
(a) establish as appropriate, give directives to and oversee any specialised committees, working sessions, task forces or bodies to deal with matters falling within its competence, and determine their composition, duties and their rules of procedure unless otherwise provided for in this Agreement;
(b) take decisions or adopt recommendations in the cases provided for in this Agreement or where such implementing power has been delegated to it by the EPA Council, in such cases, the Committee shall take decisions or make recommendations in accordance with the conditions laid down in Article 105; and
(c) consider any issues under this Agreement and take appropriate action in the exercise of its functions.
2. The Committee shall hold specific working sessions to perform the functions provided for in paragraph 1(a).
3. The Committee shall determine its own rules of procedure within three (3) months of the entry into force of this Agreement.
Article 108. EPA Consultative Committee
1. An EPA Consultative Committee is hereby established with the task of assisting the Committee of Senior Officials to promote dialogue and cooperation between representatives of the private sector, organisations of civil society, including the academic community, and social and economic partners. Such dialogue and cooperation shall include all matters covered under this Agreement as they arise in the context of the implementation of this Agreement.
2. Participation in the EPA Consultative Committee shall be decided by the EPA Council, upon recommendations from the Committee of Senior Officials, with a view to ensuring a broad representation of all interested parties.
3. The EPA Consultative Committee shall carry out its activities on the basis of consultation by the Committee of Senior Officials or on its own initiative and make recommendations to the Committee of Senior Officials. Representatives of the Parties shall attend the meetings of the EPA Consultative Committee.
4. The EPA Consultative Committee shall adopt its rules of procedure within three (3) months after its establishment in agreement with the Committee of Senior Officials.
Part VII. DISPUTE AVOIDANCE AND SETTLEMENT
Article 109. Scope and Objective
1. This Part applies to any dispute concerning the interpretation and application of the provisions of this Agreement, unless otherwise provided.
2. The objective of this Part is to avoid and settle any dispute between the Parties concerning the interpretation and application of this Agreement in good faith and to atrive at, where possible, a mutually agreed solution.
Title I. DISPUTE AVOIDANCE
Article 110. Consultations
1. The Parties shall enter into consultations and endeavour to resolve any dispute concerning the interpretation and application of this Agreement in good faith with the aim of reaching a mutually agreed solution.
2. A Party shall seek consultations by means of a written request to the other Party, copied to the Committee of Senior Officials, identifying the measure at issue and the provisions of the Agreement that it considers the measure not to be in conformity with.
3. Consultations shall take place, unless the Parties agree otherwise, in the territory of the Party complained against and shall be held within twenty (20) days of the date of the receipt of the request. The consultations shall be deemed concluded within sixty (60) days of the date of the receipt of the request of the Party complained against, unless the Parties agree to continue consultations. All information disclosed during the consultations shall remain confidential.
4. Consultations on matters of urgency, including those regarding perishable or seasonal goods shall be held as soon as is practically possible and in any event within fifteen (15) days of the date of the receipt of the request, and shall be deemed concluded within thirty (30) days of the date of the receipt of the request, unless the Parties agree to continue consultations.
5. If the Party to which the request is made does not respond to the request for consultations within ten (10) days of the date of its receipt, or if consultations are not held within the timeframes laid down in paragraph 3 or in paragraph 4 above respectively, or if consultations have been concluded and no agreement has been reached on a mutually agreed solution, either Party may request settlement of the dispute by arbitration in accordance with Article 112.
6. The Parties may agree to amend the time limits referred to in paragraphs 3 to 5 above given the difficulties or complexities of the case experienced by either Party.
Article 111. Mediation
1. If consultations fail to produce a mutually agreed solution, the Parties may, by agreement, seek recourse to a mediator. Unless the Parties agree otherwise, the terms of reference for the mediation shall be the matter referred to in the request for consultations.
2. Either Party may proceed to arbitration under Article 112 without recourse to mediation.
3. Unless the Parties agree on a mediator within fifteen (15) days of the date of the agreement to request mediation, the Chairperson of the Committee of Senior Officials, or his or her delegate, shall select by lot a mediator from the pool of individuals who are on the list referred to in Article 125 and are not nationals of either Party. The selection shall be made within twenty-five (25) days of the date of the submission of agreement to request mediation and in the presence of a representative of each Party. The mediator will convene a meeting with the Parties no later than thirty (30) days after being selected. The mediator shall receive the submissions of each Party no later than fifteen (15) days before the meeting and notify an opinion no later than forty-five (45) days after having been selected.
4. The mediator's opinion may include a recommendation on how to resolve the dispute consistent with the provisions of this Agreement. The mediator's opinion is non-binding.
5. The Parties may agree to amend the time limits referred to in paragraph 3. The mediator may also decide to amend these time limits upon request of any of the Parties or on his own initiative, given the difficulties experienced by the Party concerned or the complexities of the case.
6. The proceedings involving mediation, in particular all information disclosed and positions taken by the Parties during these proceedings, shall remain confidential.
Title II. DISPUTE SETTLEMENT
Article 112. Initiation of the Arbitration Procedure
1. Where the Parties have failed to resolve the dispute by recourse to consultations as provided for in Article 110, the complaining Party may give notice to initiate the procedure for the establishment of an arbitration panel, which shall be established in accordance with Article 113.
2. The notice for establishment of an arbitration panel shall be made in writing to the Party complained against and to the Committee of Senior Officials. The complaining Party shall identify in its notice the specific measures at issue, and it shall clearly explain how such measures constitute a breach of the provisions of this Agreement.
Article 113. Establishment of the Arbitration Panel
1. An arbitration panel shall be composed of three arbitrators.
2. Within ten (10) days of the date of the submission of the notice for the establishment of an arbitration panel to the Committee of Senior Officials, the Parties shall consult in order to reach an agreement on the composition of the arbitration panel.
3. In the event that the Parties are unable to agree on its composition within the timeframe laid down in paragraph 2, each Party will select an arbitrator from the list of arbitrators established under Article 125 within five (5) days. If any of the Parties fails to appoint its arbitrator, upon request of the other Party, this arbitrator shall be selected by lot by the Chairperson of the Committee of Senior Officials, or the Chairperson's delegate from the sub-list of that Party established under Article 125.
4. Unless the Parties reach an agreement concerning the Chairperson of the arbitration panel within the timeframe established in paragraph 2, the two arbitrators shall in turn appoint a third arbitrator as the Chairperson of the panel from the list established under Article 125 within five (5) days of their appointment and shall notify the Committee of Senior Officials of the appointment. In the event of failure to appoint the Chairperson of the panel, either Party may ask the Chairperson of the Committee of Senior Officials or the Chairperson's delegate to select by lot the Chairperson of the arbitration panel from the sub-list of Chairpersons contained in the list established under Article 125 within five (5) days.
5. The date of establishment of the arbitration panel shall be the date on which the three arbitrators are selected and have accepted their appointment according to the rules of procedure.
Article 114. Interim Panel Report
1. The arbitration panel shall notify the Parties of an interim report containing both the descriptive section and its findings and conclusions, as a general rule not later than ninety (90) days from its date of establishment. Where it considers that this deadline cannot be met, the Chairperson of the arbitration panel must notify the Parties and the Committee of Senior Officials in writing, stating the reasons for the delay and the date on which the panel plans to issue its interim report. Under no circumstances should the interim report be issued later than one hundred and twenty (120) days after the date of the establishment of the arbitration panel. Any Party may submit written comments to the arbitration panel on precise aspects of its interim report within fifteen (15) days of the notification of the report.
2. In cases of urgency, including those involving perishable or seasonal goods, the arbitration panel shall make every effort to issue its interim report in thirty (30) days, and in any case no later than forty-five (45) days after its establishment. A Party may submit a written request for the arbitration panel to review precise aspects of the interim report, within seven (7) days of the notification of the interim report.
3. After considering any written comments by the Parties on the interim report, the arbitration panel may modify its report and make any further examination it considers appropriate. The final arbitration panel ruling shall include a discussion of the arguments made at the interim review stage and shall answer clearly to the questions and observations of the Parties.
Article 115. Arbitration Panel Ruling
1. The arbitration panel shall:
(a) notify its ruling to the Parties and to the Committee of Senior Officials within one hundred and twenty (120) days from the date of its establishment;
(b) notwithstanding subparagraph (a) above, where this deadline cannot be met, the Chairperson of the arbitration panel shall notify the Parties and the Committee of Senior Officials in writing, stating the reasons for the delay and the date on which the panel plans to issue its ruling. Under no circumstances shall the ruling be notified later than one hundred and fifty (150) days from the date of its establishment.
2. In cases of urgency including those involving perishable and seasonal goods, the arbitration panel:
(a) shall notify its ruling within sixty (60) days from the date of its establishment; and
(b) may give a preliminary ruling, as soon as is practically possible and in any event within seven (7) days of its establishment on whether it deems the case to be urgent.
3. The arbitration panel ruling shall include recommendations as to how the Party complained against could bring itself into compliance.
4. Notwithstanding the provisions of paragraphs 6 to 9 on the Reasonable Period of Time (RPT), the Party complained against shall take any measure necessary to comply immediately and in good faith with the arbitration panel ruling.
5. If immediate compliance is not possible, the Parties shall endeavour to agree on the period of time to comply with the ruling. In such a case, the Party complained against shall, no later than twenty-one (21) days after the notification of the arbitration panel ruling to the Parties, notify the complaining Party and the Committee of Senior Officials of the time it will require for compliance.
6. If there is disagreement between the Parties on the RPT to comply with the arbitration panel ruling, the complaining Party shall, within fourteen (14) days of the notification made under paragraph 1, request in writing the arbitration panel to determine the length of the RPT. Such request shall be notified simultaneously to the other Party and to the Committee of Senior Officials. The arbitration panel shall notify its ruling to the Parties and to the Committee of Senior Officials within twenty- one (21) days from the date of the submission of the request.
7. In the event of the original arbitration panel, or some of its members, being unable to reconvene, the procedures set out in Article 113 shall apply. The time limit for notifying the ruling shall be thirty-five (35) days from the date of the submission of the request referred to in paragraph 6.
8. In determining the length of the RPT, the arbitration panel shall 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, and in particular, the panel shall take into account the difficulties the EAC Partner State(s) may encounter due to lack of requisite capacity.
9. The RPT may be extended by agreement of the Parties.
Article 116. Review of Any Measure Taken to Comply with the Arbitration Panel Ruling
1. The Party complained against shall notify the complaining Party and the Committee of Senior Officials before the end of the reasonable period of time of any measure that it has taken to comply with the arbitration panel ruling.
2. Where at the end of the RPT the Party complained against has not complied with paragraph 1 above, the complaining Party may take, upon notification to the other Party and the Committee of Senior Officials, appropriate measures in accordance with Article 117(2).
3. Where there is a disagreement between the Parties as to whether the Party complained against has brought itself into compliance with the provisions of this Agreement, either Party may request in writing the arbitration panel to rule on the matter. Such request shall identify the specific measure at issue and it shall explain clearly how such measure is incompatible or compatible with the provisions of the Agreement and the arbitration panel ruling.
4. The arbitration panel shall endeavour to notify its ruling within forty-five (45) days of the date of the submission of the request above. In cases of urgency, including those involving perishable and seasonal goods, the arbitration panel shall notify its ruling within thirty (30) days of the date of the submission of the request.
5. In the event that the original arbitration panel or some of its members being unable to reconvene within fifteen (15) days, the procedures set out in Article 113 shall apply. In such cases, the time limit for notifying the ruling shall be eighty (80) days from the date of the submission of the request referred to in paragraph 3 above.
Article 117. Temporary Remedies In Case of Non-Compliance
1. If the Party complained against fails to notify any measure taken to comply with the arbitration panel ruling before the expiry of the RPT or if the arbitration panel rules that the measure notified under Article 116(1) is not compatible with the obligations of the Party complained against under the provisions of this Agreement, the complaining Party shall be entitled, upon notification to the other Party, to adopt appropriate measures.
2. In adopting such measures, the complaining Party shall endeavour to select measures that least affects the attainment of the objectives of this Agreement and shall take into consideration their impact on the economy of the Party complained against. In addition, where the UK has obtained the right to adopt such measures, it shall select measures which are specifically aimed at bringing into compliance the EAC Partner State whose measures were found to be in breach of this Agreement.
3. Atany time after the expiry of the RPT, the complaining Party may request the Party complained against to provide an offer for temporary compensation and the Party complained against shall present such an offer.
4. Compensation or retaliatory measures shall be temporary and shall be applied only until any measure found to violate the provisions of this Agreement have been withdrawn or amended so as to bring it into conformity with those provisions or until the Parties have agreed to settle the dispute.
Article 118. Review of Any Measure Taken to Comply after the Adoption of Appropriate Measures
1. The Party complained against shall notify the other Party and the Committee of Senior Officials of any measure it has taken to comply with the ruling of the arbitration panel and of its request for an end to application of appropriate measures by the complaining Party.
2. Where 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 the submission of the notification, the complaining Party shall request in writing the arbitration panel to rule on the matter. Such request shall be notified to the other Party and to the Committee of Senior Officials. The arbitration panel ruling shall be notified to the Parties and to the Committee of Senior Officials within forty- five (45) days of the date of the submission of the request.
3. If the arbitration panel rules that any measure taken to comply is not in conformity with the provisions of this Agreement, it shall determine whether the complaining Party can 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 immediately following the date of the ruling.
4. In the event that the original arbitration panel, or some of its members, being unable to reconvene, the procedures laid down in Article 113 shall apply. The period for notifying the ruling shall be sixty (60) days from the date of the submission of the request referred to in paragraph 2 above.
Title III. COMMON PROVISIONS
Article 119. Mutually Agreed Solution
The Parties may reach an agreed solution to a dispute under this Part at any time and shall notify the Committee of Senior Officials of any such solution. If the solution requires approval pursuant to the relevant domestic procedures of either Party, the notification shall refer to this requirement, and the procedure shall be suspended. If such approval is not required, or upon notification of the completion of any such domestic procedure, the procedure shall be terminated.
Article 120. Rules of Procedure
Dispute settlement procedures shall be governed by Rules of Procedure to be adopted by the EPA Council within six (6) months after the entry into force of this Agreement.
Article 121. Information and Technical Advice
At the request of either 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 panel proceeding. The arbitration panel shall also have the right to seek the relevant opinion of experts as it deems appropriate. Interested natural or legal persons of the Parties and other third parties 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 which may submit comments.
Article 122. Language 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 interpretations at the hearings into the language chosen by the Party complained against, unless such language is an official language of that Party. (1)
Article 123. Rules of Interpretation
1. Arbitration panels shall interpret the provisions of this Agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties.
2. The interpretations and rulings of the arbitration panel cannot add to or diminish the rights and obligations provided in the provisions of this Agreement.
Article 124. Arbitration Panel Rulings Procedure
1. The arbitration panel shall make every effort to take any decision by consensus. Where a decision cannot be adopted by consensus, the matter at issue shall be decided by majority vote.
2. Any ruling of the arbitration panel shall set out the findings of fact, the applicability of the relevant provisions of this Agreement and the reasoning behind any findings, recommendations and conclusions that it makes. The Committee of Senior Officials shall make the arbitration panel rulings publicly available.
3. The arbitration panel ruling shall be final and binding on Parties.
Article 125. List of Arbitrators
1. The Committee of Senior Officials shall, not later than six (6) months after the entry into force of this Agreement, establish a list of at least fifteen (15) individuals who are willing and able to serve as arbitrators. The list shall be composed of three sub-lists: one sub-list for each Party to serve as arbitrators; and one sub-list of individuals that are not nationals of either Party and who shall act as Chairperson to the arbitration panel. Each sub-list shall include at least five (5) individuals. The Committee of Senior Officials shall ensure that the list is always maintained at this level in accordance with the Rules of Procedure.
2. Should any of the sub-lists not be established or not contain sufficient names of individuals at the time a notice is made pursuant to Article 113(2), the arbitrators shall be drawn by lot from the individuals who have been formally proposed for the respective sub-list by one or both of the Parties. If only one Party has proposed names, the three arbitrators shall be drawn by lot from among these names.
3. In case there is no list of arbitrators established under paragraph 1 above or names of arbitrators proposed under paragraph 2, the Party initiating the process of arbitration shall request the Secretary General of the Permanent Court of Arbitration to act as the appointing authority.
4. Arbitrators shall have specialised knowledge of and experience in law and international trade. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government, or be affiliated with the government of any of the Parties, and shall comply with the Code of Conduct annexed to the Rules of Procedures to be adopted by the EPA Council within six (6) months after the entry into force of this Agreement.
Article 126. Relations with WTO Dispute Settlement
1. Arbitration panels set up under this Agreement shall not adjudicate disputes on either 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 Agreement, including dispute settlement action. However, where a Party has, with regard to a particular measure, initiated a dispute settlement proceeding, either under this Title or under the WTO Agreement, it may not institute a dispute settlement proceeding regarding the same measure in the other forum until the first proceeding has ended. In addition, a Party shall not seek redress for the breach of an obligation which is identical under the Agreement and under the WTO Agreement in the two fora. In such case, once a dispute settlement proceeding has been initiated, the Party shall not bring a claim seeking redress for the breach of the identical obligation under the other agreement to the other forum, unless the forum selected fails for procedural or jurisdictional reasons to make findings on the claim seeking redress of that obligation.
3. A Party may, with regard to a particular measure, institute a dispute settlement proceeding, either under this Part or under the WTO Agreement:
(a) dispute settlement proceedings under this Part are deemed to be initiated by a Party's request for the establishment of an arbitration panel under Article 112 and are deemed to be ended when the arbitration panel notifies its ruling to the Parties and to the Committee of Senior Officials under Article 115 or where a mutually agreed solution has been reached under Article 119;
(b) 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 Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO (DSU) and are deemed to be ended when the Dispute Settlement Body adopts the Panel's report, and the Appellate Body's report as the case may be, under Articles 16 and 17(14) of the DSU.
4. Nothing in this Agreement shall preclude a Party from implementing the suspension of obligations authorised by the Dispute Settlement Body of the WTO. The WTO Agreement shall not preclude a Party from suspending obligations under this Agreement.
Article 127. Time Limits
1. Any time limits laid down 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 limit referred to in this Part may be extended by mutual agreement of the Parties.
Part VIII. GENERAL EXCEPTIONS
Article 128. General Exception Clause
1. 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 the UK or the EAC Partner State(s) of measures:
(a) necessary to protect public security and morals or to maintain public order;
(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 GATT 1994, 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 1994 Contracting Parties and not disapproved by them or which is itself so submitted and not so disapproved; (1)