The panel shall, where possible, take its decisions by consensus. If a panel is unable to reach consensus, it may take its decisions by majority vote.
Except as otherwise provided in this Annex, the panel may conduct its business by any means, including by email, telephone, facsimile
transmission, videoconference, or any other means of electronic communication.
The reports of the panel shall be drafted and presented in accordance with Article 19.12 (Reports of the Panel). The panellists shall not delegate their responsibility for the drafting of the reports as provided for in paragraph 1 of Article 19.12 (Reports of the Panel).
If a procedural question arises that is not covered by Chapter 19 (Dispute Settlement) or its Annexes, the panel, after consulting the Parties, or on the joint request of the Parties, shall adopt an appropriate rule of procedure that is not inconsistent with the Agreement or these Rules of Procedure.
Subject to Rule 6 (Timetable), the complaining Party shall deliver its first written submission to the panel no later than 14 days after the date of establishment of the panel. The responding Party shall deliver its first written submission to the panel no later than 30 days after the date of delivery of the complaining Party’s first written submission. Copies shall be provided for each panellist.
The complaining Party shall deliver a rebuttal submission no later than 15 days after the date of delivery of the first written submission of the responding Party. In that case, the responding Party may submit its response no later than 15 days after the date of delivery of the rebuttal submission of the complaining Party.
No later 12 days after the last day of the hearing, each Party may deliver to the panel a supplementary written submission responding to any matter that arose during the hearing, if requested by the panel. Each Party may provide written comments on the other Party’s supplementary written submission no later than 10 days after receipt of the other Party’s supplementary written submission.
The timetable established pursuant to Rule 6 (Timetable) shall provide for at least one hearing for the Parties to present their case to the panel. Based on the timetable determined pursuant to Rule 6 (Timetable), the chair of the panel shall fix the time of the hearing. The chair shall notify in writing to the Parties the time and location of the hearing. The panel shall seek to hold the hearing at least 14 days after the date of delivery of the written rebuttal submissions.
Unless the Parties agree otherwise, the hearing shall be held in the capital of the responding Party.
On request of a Party, or on its own initiative, a panel may convene additional hearings if the Parties so agree. Any additional hearings shall alternate between the capital cities of the Parties.
Unless the Parties agree otherwise, the Party in whose capital city the hearing is held shall be responsible for the logistical arrangements for the hearing, in particular the organisation of the venue.
All presentations and statements made at hearings shall be made in the presence of the Parties to the dispute.
All panellists shall be present during the entirety of each hearing. If a replacement panellist has been appointed after a hearing has occurred but before the panel’s report is published, the panel may hold a new hearing if a Party requests, or if the panel considers a new hearing to be appropriate.
The following persons may also be present at hearings:
representatives of the Parties;
administrative personnel, translators, and designated note-takers of the panel; and
panellists’ assistants.
Any such arrangements established by the panel may be modified with the agreement of the Parties.
Unless the Parties agree otherwise, all hearings of the panel shall be open for the public to observe,1 except that the panel shall close the hearing for any discussion of confidential information.2 Attendance in the hearing room shall be limited to the persons referred to in paragraphs 6 and 7.
The Parties to the dispute shall make available to the panel written versions of their oral statements before the panel no later than 7 days after the last day of the relevant hearing. For greater certainty, this does not include responses to any questions asked orally during the hearing.
No later than five days before the date of a hearing, each Party shall deliver to the panel and to the other Party a list of names of the persons
1 For greater certainty, the expression “open for the public to observe” does not include physical presence at the hearing. To facilitate public observation of a hearing, that hearing may be transmitted electronically to the public at the time of the hearing at a different venue or at a later date or time, or through any other procedure as both Parties consider appropriate.
2 For greater certainty, hearings held in closed session shall be confidential.
who shall make oral arguments or presentations in the hearing on behalf of that Party, and of other representatives and advisers who shall be attending the hearing.
The hearing shall be conducted by the panel in a manner ensuring that the complaining Party and the responding Party are afforded equal time to present their case.
As a general rule, the panel shall conduct the hearing in the following manner:
Argument
argument of the complaining Party;
argument of the responding Party;
Rebuttal Argument
the reply of the complaining Party;
the counter-reply of the responding Party;
Closing Argument
closing statement of the complaining Party; and
closing statement of the responding Party.
The panel may direct questions to a Party at any time during the hearing.
The panel may decide, after consulting the Parties, to hold a virtual or hybrid hearing and make appropriate arrangements, taking into account the rights of due process.
The panel shall arrange for a transcript of the hearing to be prepared and delivered to the Parties as soon as possible after the hearing. The Parties may comment on the transcript and the panel may consider those comments and, if required, address any inaccuracies in the transcript.
Written Questions from the Panel
The panel may direct questions in writing to either Party at any time during the proceedings. The Parties shall respond promptly and fully in writing to any request by the panel for such information. Any question directed by the panel to one Party shall be copied to the other Party.
Each Party shall also provide a copy of its response to such questions to the other Party at the same time as it is delivered to the panel. Each Party shall be given a reasonable opportunity to provide written comments on the response of the other Party.
No Ex Parte Communications
The panel shall not meet or contact a Party in the absence of the other Party.
Neither Party shall meet or contact any panellists in relation to the dispute in the absence of the other Party. Any contact between a Party and a person who is under consideration for selection as a panellist shall be limited to issues relating to that person’s availability and the appointment contract.
No panellist shall discuss any aspect of the subject matter of the proceeding with a Party in the absence of the other Party or the other panellists.
On request of a Party, or on its own initiative, the panel may, subject to consultations with the Parties, seek information or technical advice from any individual or body that it deems appropriate. If the Parties agree that the panel should not seek information or technical advice, the panel shall resume without the information or technical advice.
Any information or technical advice received by the panel pursuant to paragraph 1 shall be provided to the Parties for comment. Where the panel takes the information or technical advice into account in the preparation of its report, it shall also take into account any comments by the Parties on the information or technical advice.
Each Party shall treat as confidential any information submitted by the other Party which that Party has designated as confidential.
If a Party designates information as confidential, it shall on the request of the other Party, provide the panel and the other Party with a non-
confidential summary of that information no later than 10 days after the date of request.
Public Release of Documents
Subject to the protection of confidential information, each Party may release a copy of the request for consultations and the request for establishment of a panel to the public. The timetable for hearings may be released to the public if both Parties agree.
Subject to the protection of confidential information, a Party may disclose statements of its own positions to the public, including releasing to the public its own written submissions, written versions of oral statements, and written responses to requests or questions from the panel.3
Rule 15 Replacement of Panellists
If a Party considers that a panellist has violated the requirement to comply with the Code of Conduct, that Party shall notify the other Party no later than 5 days after the date on which it obtained sufficient evidence of the panellist’s alleged failure to comply with the Code of Conduct.
The Parties shall consult no later 15 days after the date of the notification referred to in paragraph 1. They shall inform the panellist of the alleged non-compliance and may request the panellist to take steps to remedy it. If the Parties agree, the Parties may remove the panellist and select a new panellist in accordance with Article 19.8 (Composition of Panels).
Any period of time applicable to the panel proceedings shall be suspended for a period beginning on the date a panellist resigns, is removed, or is authorised to seek to remedy the non-compliance, and ending on the date a replacement panellist is appointed or the non-compliance has ceased after amelioration.
3 A Party releasing such written submissions, written versions of oral statements, and written responses to requests or questions from the panel, shall pay due regard to withhold information contained in them that pertains specifically to the other Party’s position.
If the Parties fail to agree on the need to replace a panellist other than the chair of the panel, either Party may refer this matter to the chair of the panel, whose decision shall be final.
If the chair of the panel finds that the panellist does not comply with the requirements of Code of Conduct, the panellist shall be removed and a new panellist shall be selected in accordance with Article 19.8 (Composition of Panels).
If the Parties fail to agree on the need to replace the chair, they will consult with each other and determine a mutually agreeable pathway to resolve the matter.
Unless the Parties agree otherwise, the costs of the panellists and other expenses associated with the conduct of the panel proceedings shall be borne by each Party in accordance with Article 19.22 (Expenses).
Each panellist shall keep a record and render a final account to the Parties of all time devoted to and expenses incurred in connection with the proceeding, as well as the time and expenses of their assistants. The panel shall keep a record and render a final account to the Parties of its administrative expenses.
Unless the Parties agree otherwise, remuneration for panellists shall be paid based on the rate for non-governmental panellists used by the World Trade Organization on the date a Party makes a written request for the establishment of a panel under Article 19.7 (Request for Establishment of a Panel).
Unless the Parties agree otherwise, expenses shall be paid at the Daily Subsistence Allowance rate for the location of the hearing established by the United Nations International Civil Service Commission on the date a Party makes a written request for the establishment of a panel under Article 19.7 (Request for Establishment of a Panel).
Each panellist may hire one assistant to provide research, translation, or interpretation support, unless a panellist requires an additional assistant and the disputing Parties agree that, due to exceptional circumstances, the panellist should be permitted to hire an additional assistant. Unless the Parties agree otherwise, the total remuneration of an assistant or all assistants of a panellist shall not exceed 50% of the remuneration of that panellist.
If the panel seeks information or technical advice pursuant to Rule 12 (Technical Advice), the amount and details of the remuneration and expenses an expert is to receive shall be determined by the Parties and
shall be borne by the Parties in equal share. Experts shall keep a record and render a final account to the Parties of all time devoted to and expenses incurred in connection with the proceeding.
In case of resignation or removal of a panellist, assistant, expert, or if the Parties reach a mutually agreed solution, the Parties will make payment of the remuneration and expenses owed, using resources provided equally by the Parties, on submission of a final account, following the procedures in paragraphs 2 and 6, as applicable.
A Party may at any time in the proceedings make reasonable request to the panel to furnish a statement of its costs to date in the proceedings and to provide an estimate of the additional work that is required.
ANNEX 19B. CODE OF CONDUCT FOR DISPUTE SETTLEMENT
Rule 1 Definitions and Scope
For the purposes of this Annex:
“ADR provider” means a provider of alternative dispute resolution (“ADR”) services, namely a provider of good offices, a conciliator, or a mediator who provides their services pursuant to Article 19.6 (Good Offices, Conciliation, or Mediation);
“assistant” means a person who is retained by a panellist pursuant to Rule 7 (Operation of the Panel) in Annex 19A (Rules of Procedure for Dispute Settlement) to conduct research or provide support to the panellist;
“candidate” means an individual who is under consideration for selection as a panellist under Article 19.8 (Composition of Panels);
“covered person” means a person serving as a panellist, a former panellist, an ADR provider, an expert, a panellist’s assistant, or staff involved in a proceeding;
“expert” means an individual or body providing information or technical advice in accordance with subparagraph (1)(f) of Article 19.11 (Rules of Procedure and Code of Conduct);
“family member” means the spouse, parent, child, grandparent, grandchild, sister, brother, aunt, uncle, niece, or nephew of a panellist or candidate, including whole and half blood relatives and step relatives; or the spouse of such an individual. A family member also includes any resident of a panellist’s or candidate’s household whom the panellist or candidate treats as a member of their family;
“panellist” means a member of a panel established under Article 19.8 (Composition of Panels);
“proceeding”, unless otherwise specified, means the proceeding of a panel under Chapter 19 (Dispute Settlement); and
“staff”, in respect of a panellist, means persons under the direction and control of the panellist, other than assistants.
This Code of Conduct shall apply to any person serving as a panellist in a proceeding. This Code of Conduct shall also apply, as appropriate, to other covered persons.
Provision of Code of Conduct
The Parties shall provide this Code of Conduct and the Initial Disclosure Statement to a candidate prior to confirmation of their appointment to serve as a panellist under Article 19.8 (Composition of Panels).
The Panel shall provide this Code of Conduct and the Initial Disclosure Statement to an expert when they are requested to provide information or technical advice under subparagraph (1)(f) of Article 19.11 (Rules of Procedure and Code of Conduct).
The Parties shall provide this Code of Conduct and the Initial Disclosure Statement to an ADR provider when they are requested to provide their services under Article 19.6 (Good Offices, Conciliation, or Mediation).
A panellist shall provide this Code of Conduct and the Initial Disclosure Statement to their assistants and staff.
In order to preserve the integrity and impartiality of the dispute settlement procedures, every candidate and panellist shall:
get acquainted with this Code of Conduct;
avoid impropriety and the appearance of impropriety or bias;
be independent and impartial;
avoid direct and indirect conflicts of interest;
maintain the confidentiality of proceedings and deliberations; and
observe high standards of conduct.
Prior to confirmation of their appointment as a panellist under this Agreement, a candidate shall disclose any interest, relationship, or
matter that is likely to affect their 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 identify any such interests, relationships, and matters.
Without limiting paragraph 1, candidates shall disclose, at a minimum, the following interests, relationships, and matters:
any financial interest of the candidate in:
the proceeding or in its outcome; and
an administrative proceeding, a domestic judicial or quasi-judicial proceeding, or another international dispute settlement proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;
any financial interest of the candidate's employer, business partner, business associate, or family member in:
the proceeding or in its outcome; and
an administrative proceeding, a domestic judicial or quasi-judicial proceeding, or another international dispute settlement proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;
any past or existing financial, business, professional, family, or social relationship with any interested parties in the proceeding, or their counsel or any such relationship involving a candidate's employer, business partner, business associate, or family member; and
any public advocacy or legal or other representation (including publications or public statements of personal opinion) concerning an issue in dispute in the proceeding or concerning a dispute involving the same matters that are the subject of the dispute in the proceeding.
Prior to confirmation of their appointment, a candidate shall communicate matters concerning actual or potential violations of this Code of Conduct for consideration by the Parties by submitting the Initial Disclosure Statement to the Parties no later than 7 days after they have been contacted to serve as a panellist.
Once appointed, a panellist shall continue to make all reasonable efforts to identify any interests, relationships, and matters referred to in Rule 3 (Responsibilities to the Process) and shall disclose them promptly, in writing, to the Parties. The obligation to disclose is a continuing duty, which requires a panellist to disclose any such
the communication is to both Parties or is necessary to ascertain whether that panellist has violated or may violate this Annex.
A panellist or former panellist shall avoid actions that may create the appearance that the panellist was biased in carrying out the panellist’s duties or would benefit from the decision or report of the panel.
A panellist shall ensure that they can be contacted, at all reasonable times, for the purpose of conducting the work of the panel.
Independence and Impartiality of Panellists
A panellist shall be independent and impartial. A panellist shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
A panellist shall not be influenced by self-interest, outside pressure, political considerations, and loyalty to a Party or fear of criticism.
A panellist 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 the panellist’s duties.
A panellist shall not use their position on the panel to advance any personal or private interests. A panellist shall avoid actions that may create the impression that others are in a special position to influence the panellist. A panellist shall make every effort to prevent or discourage others from representing themselves as being in such a position.
A panellist shall not allow past or existing financial, business, professional, family or social relationships, affiliations, or responsibilities to influence the panellist’s conduct or judgment.
A panellist shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect the panellist’s impartiality or that might reasonably create an appearance of impropriety or bias.
A panellist shall not take instructions from any organisation or government or be affiliated to a government, including governmental organisation, of either Party.
Duties in Certain Situations
A panellist or former panellist shall avoid actions that may create the appearance that the panellist was biased in carrying out the panellist’s duties or would benefit from the decision or report of the panel.
In any proceeding under Chapter 19 (Dispute Settlement), a panellist shall refrain, for the duration of the proceeding, from acting as counsel or party-appointed expert witness in any new or pending dispute, under the Agreement or another international agreement, that directly addresses the same measure in dispute in, or arises out of the facts giving rise to, the proceeding under Chapter 19 (Dispute Settlement).
A covered person shall not at any time disclose or use any confidential or non-public information concerning the proceeding or acquired during the proceeding except for the purposes of the proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others, or to affect adversely the interest of others. A covered person shall not make any public statement regarding the merits of a pending panel proceeding.
A covered person shall not disclose a panel report, or parts thereof, issued under Chapter 19 (Dispute Settlement) prior to its publication or a panel report, or parts thereof, not disclosed to the public.
A panellist or former panellist shall not at any time disclose the deliberations of a panel, or any panellist’s view, except as required by law.
APPENDIX 19B-1. INITIAL DISCLOSURE STATEMENT
1. I have received a copy of the Code of Conduct for dispute settlement under Chapter 19 (Dispute Settlement) of the Free Trade Agreement between India and New Zealand (“the Agreement”).
2. I acknowledge having read and understood the Code of Conduct and hereby undertake to fully comply with my obligations under the Code of Conduct.
3. I understand that I have a continuing obligation, while participating in the proceeding, to disclose interests, relationships, and matters that may bear on the integrity or impartiality of the dispute settlement process. As a part of this continuing obligation, I am making the following initial disclosures:
(a) my financial interest in the proceeding for which I am under consideration or in its outcome is as follows:
(b) my financial interest in any administrative proceeding, a domestic judicial or quasi-judicial proceeding, or another international dispute settlement proceeding that involves issues that may be decided in the proceeding is as follows:
(c) the financial interest that any employer, business partner, business associate, or family member of mine may have in the proceeding or in its outcome are as follows:
(d) the financial interest that any employer, business partner, business associate, or family member of mine may have in any administrative proceeding, a domestic judicial or quasi-judicial proceeding, or another international dispute settlement proceeding that involves issues that may be decided in the proceeding are as follows:
(e) my past or current financial, business, professional, family, and social relationships with any interested parties in the proceeding, or their counsel, are as follows:
(f) the past or current financial, business, professional, family, and social relationships with any interested parties in the proceeding, or their counsel, involving any employer, business partner, business associate, or family member of mine are as follows:
(g) my public advocacy or legal or other representation concerning an issue in dispute in the proceeding or involving the same matters is as follows:
(h) my other interests, relationships, and matters that may bear on the integrity or impartiality of the dispute settlement process and that are not disclosed in subparagraphs (a) to (g) above are as follows:
Signed on this ________day of _________, 20_________ .
By:
Signature ___________________
Name ______________________