Database
on Basic Documents of Japan-ASEAN Relations
Department of
Advanced Social and International Studies,
ASEAN Protocol on Enhanced Dispute Settlement Mechanism
The Governments of Brunei Darussalam, the Kingdom of Cambodia, the
Republic of Indonesia, the Lao People’s Democratic
Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic
of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam,
Member States of the Association of South East Asian Nations (hereinafter
collectively referred to as “ASEAN” or “Member States” or singularly
as “Member State”);
RECALLING the Framework Agreement on Enhancing ASEAN Economic Cooperation
signed in Singapore on 28 January 1992, as amended by the Protocol to Amend the
Framework Agreement on Enhancing ASEAN Economic Cooperation signed in Bangkok
on 15 December 1995 (the "Agreement") and the Protocol on Dispute
Settlement Mechanism signed in
Manila on 20 November 1996 ( the “1996 Protocol on
DSM”);
FURTHER RECALLING that the 9th ASEAN Summit held in Bali on 7-8 October
2003, had decided on institutional strengthening of ASEAN, including the
improvement of the ASEAN Dispute Settlement Mechanism, as reflected in the Bali
Concord II;
DESIRING to replace the 1996 Protocol on DSM with the ASEAN Protocol on
Enhanced Dispute Settlement Mechanism (hereinafter referred to as “Protocol”);
HAVE AGREED AS FOLLOWS:
ARTICLE 1
Coverage and Application
1.
The rules and procedures of this Protocol shall apply to disputes
brought pursuant to the consultation and dispute settlement provisions of the
Agreement as well as the agreements listed in Appendix I and future ASEAN
economic agreements (the "covered agreements").
2.
The rules and procedures of this Protocol shall apply subject to such
special or additional rules and procedures on dispute settlement contained in
the covered agreements. To the extent that there is a difference between the
rules and procedures of this Protocol and the special or additional rules and
procedures in the covered agreements, the special or additional rules and
procedures shall prevail.
3.
The provisions of this Protocol are without prejudice to the rights of
Member States to seek recourse to other fora for the
settlement of disputes involving other Member States. A Member State involved in a dispute can
resort to other fora at any stage before a party has
made a request to the Senior Economic Officials Meeting (“SEOM”) to establish a panel pursuant to paragraph 1 Article 5
of this Protocol.
ARTICLE 2
Administration
1.
The SEOM shall administer this Protocol and, except as otherwise
provided in a covered agreement, the consultation and dispute settlement
provisions of the covered agreements.
Accordingly, the SEOM shall have the authority to establish panels,
adopt panel and Appellate Body reports, maintain surveillance of implementation
of findings and recommendations of panel and Appellate Body reports adopted by
the SEOM and authorise suspension of concessions and
other obligations under the covered agreements.
2.
The SEOM and other relevant ASEAN bodies shall be notified of mutually
agreed solutions to matters formally raised under the consultation and dispute
settlement provisions of the covered agreements.
ARTICLE 3
Consultations
1.
Member States shall accord adequate opportunity for consultations
regarding any representations made by other Member States with respect to any
matter affecting the implementation, interpretation or application of the
Agreement or any covered agreement.
Any differences shall, as far as possible, be settled amicably between
the Member States.
2.
Member States which consider that any benefit accruing to them directly
or indirectly, under the Agreement or any covered agreement is being nullified
or impaired, or that the attainment of any objective of the Agreement or any
covered agreement is being impeded as a result of failure of another Member
State to carry out its obligations under the Agreement or any covered
agreement, or the existence of any other situation may, with a view to
achieving satisfactory settlement of the matter, make representations or
proposals to the other Member State concerned, which shall give due
consideration to the representations or proposals made to it.
3.
All such requests for consultations shall be notified to the SEOM. Any
request for consultations shall be submitted in writing and shall give the
reason for the request including identification of the measures at issue and an
indication of the legal basis for the complaint.
4.
If a request for consultations is made, the Member State to which the
request is made shall reply to the request within ten (10) days after the date
of its receipt and shall enter into consultations within a period of thirty
(30) days after the date of receipt of the request, with a view to reaching a
mutually satisfactory solution.
5.
In cases of urgency, including those which concern perishable goods, the
parties to the dispute, panels and the Appellate Body shall make every effort
to accelerate the proceedings to the greatest extent possible.
ARTICLE 4
Good Offices, Conciliation or Mediation
1.
Member States which are parties to a dispute may at any time agree to
good offices, conciliation or mediation.
They may begin at any time and be terminated at any time. Once
procedures for good offices, conciliation or mediation are terminated, a
complaining party may then proceed with a request to the SEOM for the
establishment of a panel.
2.
If the parties to a dispute agree, procedures for good offices,
conciliation or mediation may continue while the panel process proceeds.
3.
The Secretary-General of ASEAN may, acting in an ex officio capacity,
offer good offices, conciliation or mediation with the view to assisting Member
States to settle a dispute.
ARTICLE 5
Establishment of Panels
1.
If the Member State to which the request for consultations is made does
not reply within ten (10) days after the date of receipt of the request, or
does not enter into consultations within a period of thirty (30) days after the
date of receipt of the request, or the consultations fail to settle a dispute
within sixty (60) days after the date of receipt of the request, the matter
shall be raised to the SEOM if the complaining party wishes to request for a
panel. The panel shall be
established by the SEOM, unless the SEOM decides by consensus not to establish
a panel.
2.
A panel shall be established at the meeting of the SEOM held immediately
after the receipt of the request for a panel and accordingly the request shall
be placed on the agenda of the SEOM at that meeting. In the event that no the SEOM meeting is scheduled or planned within forty five (45) days
of receipt of the request, the establishment of the panel or the decision not to
establish it shall be done or taken, as the case may be, by circulation. A non-reply shall be considered as
agreement to the request for the establishment of a panel. The issue of the establishment of the
panel shall be settled within the forty five (45) day-period, irrespective of
whether it is settled at the SEOM or by circulation.
3.
The request for the establishment of a panel shall be made in writing.
It shall indicate whether consultations were held, identify the specific
measures at issue and provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly. In case the complainant requests the establishment
of a panel with other than standard terms of reference, the written request
shall include the proposed text of the special terms of reference.
ARTICLE 6
Terms of Reference of Panels
1.
Panels shall have the following terms of reference unless the parties to
the dispute agree otherwise prior to the establishment of a panel:
“To examine in the light of the relevant provisions in
(name of the covered agreement(s) cited by the parties to the dispute), the
matter referred to the SEOM by (name of party) in (document) … and to make such findings as will assist the SEOM in the adoption of the
panel report or in making its decision not to adopt the report.”
2.
Panels shall address the relevant provisions in any covered agreement or
agreements cited by the parties to the dispute.
3.
In establishing a panel, the SEOM may authorise
its Chairman to draw up the terms of reference of the panel in consultation
with the parties to the dispute, notwithstanding the provisions in paragraph 1
hereof. The terms of reference thus
drawn up shall be circulated to all Member States. If other than standard terms of
reference are agreed upon, any
ARTICLE 7
Function of Panel
The function of the panel is to make an objective assessment of the
dispute before it, (including an examination of the facts of the case and the
applicability of and conformity with the sections of the Agreement or any
covered agreements) and its findings and recommendations in relation to the
case.
ARTICLE 8
Panel Procedures, Deliberations and Findings
1.
A panel shall, apart from the matters covered in Appendix II regulate
its own procedures in relation to the rights of parties to be heard and its
deliberations.
2.
A panel shall submit its findings and recommendations to the SEOM in the
form of a written report within sixty (60) days of its establishment. In exceptional cases, the panel may take
an additional ten (10) days to submit its findings and recommendations to the
SEOM.
3.
Before submitting its findings and recommendations to the SEOM, the
panel shall accord adequate opportunity to the parties to the dispute to review
the report.
4. A panel shall have the
right to seek information and technical advice from any individual or body
which it deems appropriate. A
5.
Panel deliberations shall be confidential. The reports of panels shall be drafted
without the presence of the parties to the dispute in the light of the
information provided and the statements made.
ARTICLE 9
Treatment of Panel Report
1.
The SEOM shall adopt the panel report within thirty (30) days of its
submission by the panel unless a party to the dispute formally notifies the
SEOM of its decision to appeal or the SEOM decides by consensus not to adopt
the report. If a party has notified
its decision to appeal, the report by the panel shall not be considered for
adoption by the SEOM until after the completion of the appeal. SEOM representatives from Member States
which are parties to a dispute can be present during the deliberations of the
SEOM.
2.
In the event that no meeting of the SEOM is scheduled or planned to
enable adoption or non-adoption of the panel report, as the case may be, within
the thirty (30) day period in paragraph 1 hereof, the adoption shall be done by
circulation. A non-reply shall be
considered as acceptance of the decision and/or recommendation in the panel
report. The adoption or
non-adoption shall be completed within the thirty (30) day period in paragraph
1 hereof, notwithstanding the resort to a circulation process.
ARTICLE 10
Procedures for Multiple Complainants
1.
Where more than one
2.
The single panel shall organize its examination and present its findings
and recommendations to the SEOM in such a manner that the rights which the
parties to the dispute would have enjoyed had separate panels examined the
complaints are in no way impaired.
If one of the parties to the dispute so requests, the panel shall submit
separate reports on the dispute concerned.
The written submissions by each of the complainants shall be made
available to the other complainants, and each complainant shall have the right
to be present when any one of the other complainants presents its views to the
panel.
3.
If more than one panel is established to examine the complaints related
to the same matter, to the greatest extent possible, the same persons shall
serve as panelists on each of the separate panels and the timetable for the
panel process in such disputes shall be harmonized.
ARTICLE 11
Third Parties
1.
The interests of the parties to a dispute and those of other Member
States under a covered agreement at issue in the dispute shall be fully taken
into account during the panel process.
2.
Any Member State having a substantial interest in a matter before a
panel and having notified its interest to the SEOM (referred to in this
Protocol as a "third party") shall have an opportunity to be heard by
the panel and to make written submissions to the panel. These submissions shall also be given to
the parties to the dispute and shall be reflected in the panel report.
3.
Third parties shall receive the submissions of the parties to the
dispute to the first substantive meeting of the panel.
4.
If a third party considers that a measure already the subject of a panel
proceeding nullifies or impairs benefits accruing to it under any covered
agreement, that Member State may have recourse to normal dispute settlement
procedures under this Protocol.
Such a dispute shall be referred to the original panel wherever
possible.
ARTICLE 12
Appellate Review
1.
An Appellate Body shall be established by the ASEAN Economic Ministers (“AEM”). The
Appellate Body shall hear appeals from panel cases. It shall be composed of seven (7)
persons, three (3) of whom shall serve on any one case. Persons serving on the Appellate Body
shall serve on cases in rotation.
Such rotation shall be determined in the working procedures of the
Appellate Body.
2.
The AEM shall appoint persons to serve on the Appellate Body for a
four-year term, and each person may be reappointed once. A person appointed to replace a person whose
term of office has not expired shall hold office for the remainder of the
predecessor's term.
3.
The Appellate Body shall comprise of persons of recognised
authority, irrespective of nationality, with demonstrated expertise in law,
international trade and the subject matter of the covered agreements
generally. They shall be
unaffiliated with any government.
All persons serving on the Appellate Body shall be available at all
times and on short notice, and shall stay abreast of dispute settlement
activities and other relevant activities of ASEAN. They shall not participate in the
consideration of any disputes that would create a direct or indirect conflict
of interest.
4.
Only parties to the dispute, not third parties, may appeal a panel
report. Third parties, which have
notified the SEOM of a substantial interest in the matter pursuant to paragraph 2 of Article 11 may make
written submissions to, and be given an opportunity to be heard by the
Appellate Body.
5.
As a general rule, the proceedings of the Appellate Body shall not
exceed sixty (60) days from the date a party to the dispute formally notifies
its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate
Body shall take into account the provisions of paragraph 5 of Article 3. When the Appellate Body considers that
it cannot provide its report within sixty (60) days, it shall inform the SEOM
in writing of the reasons for the delay together with an estimate of the period
within which it will submit its report.
In no case shall the proceedings exceed ninety (90) days.
6.
An appeal shall be limited to issues of law covered in the panel report
and legal interpretations developed by the panel.
7.
The Appellate Body shall be provided with the appropriate administrative
and legal support as it requires.
8.
Working procedures of the Appellate Body shall be drawn up by the SEOM.
Any amendments thereto, shall be drawn up from time to time as necessary by the
Appellate Body in consultation with the SEOM and the Secretary-General of
ASEAN, and communicated to the Member States for their information.
9.
The proceedings of the Appellate Body shall be confidential. The reports of the Appellate Body shall
be drafted without the presence of the parties to the dispute and in the light
of the information provided and the statements made.
10.
Opinions expressed in the Appellate Body report by the individuals
serving on the Appellate Body shall be anonymous.
11. The
Appellate Body shall address each of the issues raised in accordance with
paragraph 6 hereof during the appellate proceeding.
12. The
Appellate Body may uphold, modify or reverse the legal findings and conclusions
of the panel.
13. An
Appellate Body report shall be adopted by the SEOM and unconditionally accepted
by the parties to the dispute unless the SEOM decides by consensus not to adopt
the Appellate Body report within thirty (30) days following its circulation to
the Member States. In the event
that no meeting of the SEOM is scheduled or planned to enable adoption or
non-adoption of the report, as the case may be, within the thirty (30) day
period, adoption shall be done by circulation. A non-reply within the said thirty (30)
day period shall be considered as an acceptance of the Appellate Body
report. This adoption procedure is
without prejudice to the rights of Member States to express their views on an
Appellate Body report. The adoption process shall be completed within the
thirty (30) day period irrespective of whether it is settled at the SEOM or by
circulation.
ARTICLE 13
Communications with the Panel or Appellate Body
1.
There shall be no ex parte communications with
the panel or Appellate Body concerning matters under consideration by the panel
or the Appellate Body.
2.
Written submissions to the panel or the Appellate Body shall be treated
as confidential, but it shall be made available to the parties to the
dispute. Nothing in this Protocol
shall preclude a party to a dispute from disclosing statement of its own
positions to the public. Member
States shall treat as confidential information submitted by another Member
State to the panel or the Appellate Body which that Member State has designated
as confidential. A party to a dispute shall also, upon request of a Member
State, provide a non-confidential summary of the information contained in its
written submissions that could be disclosed to the public.
ARTICLE 14
Panel and Appellate Body Recommendations
1.
Where a panel or the Appellate Body concludes that a measure is
inconsistent with a covered agreement, it shall recommend that the Member State
concerned bring the measure into conformity with that agreement. In addition to its recommendations, a
panel or the Appellate Body may suggest ways in which the Member State
concerned could implement the recommendations.
2.
In their findings and recommendations, a panel and the Appellate Body
cannot add to or diminish the rights and obligations provided in the covered
agreements.
3.
The panels and the Appellate Body shall also deal with the issue of
expenses to be borne by the parties to the dispute, including third parties, to
replenish the ASEAN Dispute Settlement Mechanism (“DSM”) Fund as part of their findings and
recommendations. The panels and the
Appellate Body may apportion the expenses in the manner appropriate to the
particular case.
ARTICLE 15
Surveillance of Implementation of Findings and Recommendations
1.
Since prompt compliance with the findings and recommendations of panel
and Appellate Body reports adopted by the SEOM is essential in order to ensure
effective resolution of disputes, parties to the dispute who are required to do
so shall comply with the findings and recommendations of panel reports adopted
by the SEOM within sixty (60) days from the SEOM's
adoption of the same, or in the event of an appeal sixty (60) days from the SEOM's adoption of the findings and recommendations of the
Appellate Body reports, unless the parties to the dispute agree on a longer
time period.
2.
When a party to the dispute requests for a longer time period for
compliance, the other party shall take into account the circumstances of the
particular case and accord favourable consideration
to the complexity of the actions required to comply with the findings and
recommendations of panel and Appellate Body reports adopted by the SEOM. The request for a longer period of time
shall not be unreasonably denied.
Where it is necessary to pass national legislation to comply with the
findings and recommendations of panel and Appellate Body reports, a longer
period appropriate for that purpose shall be allowed.
3.
The decision of the parties on the extension of time shall be made
within fourteen (14) days from the SEOM’s
adoption of the findings and recommendations of the panel report, or in the
event of an appeal fourteen (14) days from the SEOM’s
adoption of the findings and recommendations of the Appellate Body’s reports.
4.
Any party required to comply with the findings and recommendations shall
provide the SEOM with a status report in writing of their progress in the
implementation of the findings and recommendations of panel and Appellate Body
reports adopted by the SEOM.
5.
Where there is disagreement as to the existence or consistency with a
covered agreement of measures taken to comply with the findings and
recommendations of panel and Appellate Body reports adopted by the SEOM such
dispute shall be decided through
recourse to these dispute settlement
procedures, including wherever
possible resort to the original panel.
The panel shall circulate its report within sixty (60) days, after the
date of referral of the matter to it.
When the panel considers that it cannot provide its report within this
time frame, it shall inform the SEOM in writing of the reasons for the delay
together with an indication of the period within which it will submit its
report. In no case shall the
proceedings for this purpose and the submission of the report exceed ninety
(90) days after the date of reference of the matter to the panel.
6.
The SEOM shall keep under surveillance the implementation of the
findings and recommendations of panel and Appellate Body reports adopted by
it. The issue of implementation of
the findings and recommendations of panel and Appellate Body reports adopted by
the SEOM may be raised at the SEOM by any Member State at any time following
their adoption. Unless the SEOM decides otherwise, the issue of implementation
of the findings and recommendations of panel and Appellate Body reports adopted
by the SEOM shall be placed on the agenda of the SEOM meeting and shall remain
on the SEOM’s agenda until the issue is
resolved. At least ten (10) days
prior to each such the SEOM
meeting, the party concerned shall provide the SEOM with a status report in writing of its
progress in the implementation of the findings and recommendations of panel and
Appellate Body reports adopted by the SEOM.
ARTICLE 16
Compensation and the Suspension of Concessions
1.
Compensation and the suspension of concessions or other obligations are
temporary measures available in the event that the findings and recommendations
of panel and Appellate Body reports adopted by the SEOM are not implemented
within the period of sixty (60) days or the longer time period as agreed upon
by the parties to the dispute as referred to in Article 15. However, neither compensation nor the
suspension of concessions or other obligations is preferred to full
implementation of a recommendation to bring a measure into conformity with the
covered agreements. Compensation is voluntary and, if granted, shall be
consistent with the covered agreements.
2.
If the Member State concerned fails to bring the measure found to be
inconsistent with a covered agreement into compliance therewith or otherwise comply
with the findings and recommendations of panel and Appellate Body reports
adopted by the SEOM within the period of sixty (60) days or the longer time
period as agreed upon by the parties to the dispute as referred to in Article
15, such Member State shall, if so requested, and no later than the expiry of
the period of sixty (60) days or the longer time period referred to in Article
15, enter into negotiations with any party having invoked the dispute
settlement procedures, with a view
to developing mutually acceptable compensation. If no satisfactory compensation has been
agreed within twenty (20) days after the date of expiry of the period of sixty
(60) days or the longer time period as agreed upon by the parties to the
dispute as referred to in Article 15, any party having invoked the dispute
settlement procedures may request authorization from the SEOM to suspend the
application to the Member State concerned of concessions or other obligations
under the covered agreements.
3.
In considering what concessions or other obligations to suspend, the
complaining party shall apply the following principles and procedures:
(a) the
general principle is that the complaining party should first seek to suspend
concessions or other obligations with respect to the same sector(s) as that in
which the panel or Appellate Body has found a violation or other nullification
or impairment;
(b) if
that party considers that it is not practicable or effective to suspend
concessions or other obligations with respect to the same sector(s), it may
seek to suspend concessions or other obligations in other sector(s) under the
same agreement;
(c) if
that party considers that it is not practicable or effective to suspend concessions or other obligations with
respect to other sector(s) under the same agreement, and that the circumstances
are serious enough, it may seek to suspend concessions or other obligations
under another covered agreement;
(d) in
applying the above principles, that party shall take into account:
(i)
the trade in the sector or under the agreement under which the panel or
Appellate Body has found a violation or other nullification or impairment, and
the importance of such trade to that party;
(ii)
the broader economic elements related to the nullification or impairment
and the broader economic consequences of the suspension of concessions or other
obligations;
(e) for
purposes of this paragraph, "sector" means:
(i) with respect to goods, all goods;
(ii)
with respect to services, a principal sector as identified in the
current schedules of commitments under the ASEAN Framework Agreement on
Services (AFAS).
(f)
for purposes of this paragraph, "agreement" means:
(i)
with respect to goods, the agreements in relation to goods listed in
Appendix I to this Protocol;
(ii)
with respect to services, the ASEAN Framework Agreement of Services and
subsequent protocols;
(iii) any other covered
agreement as defined in Article 1 of this Protocol.
4
The level of the suspension of concessions or other obligations
authorized by the SEOM shall be equivalent to the level of the nullification or
impairment.
5. The SEOM shall not authorise suspension of concessions or other obligations if
a covered agreement prohibits such suspension.
6.
When the situation described in paragraph 2 hereof occurs, the SEOM,
upon request, shall grant authorization to suspend concessions or other
obligations within thirty (30) days of the expiry of the sixty (60) day-period
or the expiry of the longer period agreed upon by the parties to the dispute,
as the case may be, referred to in Article 15, unless the SEOM decides by
consensus to reject the request. In
the event that no meeting of the SEOM is scheduled or planned to enable authorisation to suspend concessions or other obligations
within the thirty (30) day period, the authorisation
shall be done by circulation. A
non-reply within the said thirty (30) day period shall be considered as an
acceptance of the authorisation. The authorisation process shall be completed within the thirty
(30) day period irrespective of whether it is settled at the SEOM or by
circulation.
7.
However, if the Member State concerned objects to the level of
suspension proposed, or claims that the principles and procedures set forth in
paragraph 3 have not been followed where a complaining party has requested authorisation to suspend concessions or other obligations
pursuant to paragraph 3(b) or (c), the matter shall be referred to
arbitration. Such arbitration shall
be carried out by the original panel, if members are available, or by an
arbitration appointed by the Secretary-General of ASEAN and shall be completed
within sixty (60) days after the date of expiry of the sixty (60) day period or
the expiry of the longer period agreed upon by the parties to the dispute, as
the case may be, referred to in Article 15. Concessions or other obligations shall
not be suspended during the course of the arbitration.
8.
The arbitrator acting pursuant to paragraph 7 hereof shall not examine
the nature of the concessions or other obligations to be suspended but shall
determine whether the level of such suspension is equivalent to the level of
nullification or impairment. The
arbitrator may also determine if the proposed suspension of concessions or
other obligations is allowed under the covered agreement. However, if the matter referred to
arbitration includes a claim that the principles and procedures set forth in
paragraph 3 hereof have not been followed, the arbitrator shall examine that
claim. In the event the arbitrator determines that those principles and
procedures have not been followed, the complaining party shall apply them
consistent with paragraph 3 hereof.
The parties shall accept the arbitrator's decision as final and the
parties concerned shall not seek a second arbitration. The SEOM shall be informed promptly of
the decision of the arbitrator and shall, upon request, grant authorisation to suspend concessions or other obligations
where the request is consistent with the decision of the arbitrator, unless the
SEOM decides by consensus to reject the request.
9. The suspension of
concessions or other obligations shall be temporary and shall only be applied
until such time as the measure found to be inconsistent with a covered
agreement has been removed, or the Member State that must implement
recommendations and findings of the panel and Appellate Body reports adopted by
the SEOM provides a solution to the nullification or impairment of benefits, or
a mutually satisfactory solution is reached. In accordance with paragraph 6 of
Article 15, the SEOM shall continue to keep under surveillance the
implementation of adopted recommendations and findings of the panel and
Appellate Body reports adopted by the SEOM, including those cases where
compensation has been provided or concessions or other obligations have been suspended
but the recommendations to bring a measure into conformity with the covered
agreements have not been implemented.
10. The
dispute settlement provisions of the covered agreements may be invoked in
respect of measures affecting their observance taken by regional or local
governments or authorities within the territory of a Member State. When the SEOM has ruled that a provision
of a covered agreement has not been observed, the responsible Member State
shall take such reasonable measures as may be available to it to ensure its
observance. The provisions of the
covered agreements and this Protocol relating to compensation and suspension of
concessions or other obligations shall apply in cases where it has not been
possible to secure such observance.
ARTICLE 17
ASEAN DSM Fund
1.
There shall be established an ASEAN DSM Fund (hereinafter referred to as
‘the Fund’) for the
purposes of this Protocol. The Fund
shall be a revolving fund, separate from ASEAN Secretariat’s regular budget. The initial
sum for the Fund shall be contributed equally by all the Member States. Any drawdown from the Fund shall be
replenished by the parties to the dispute in line with the provision of
paragraph 3 of Article 14. The
ASEAN Secretariat shall be responsible for administering the Fund.
2.
The Fund shall be used to meet the expenses of the panels, the Appellate
Body and any related administration costs of the ASEAN Secretariat. All other expenses, including legal
representation, incurred by any party to a dispute shall be borne by that
party.
3.
The subsistence allowances and other expenses of the panels and the
Appellate Body shall be in accordance with the criteria approved by the AEM on
the recommendations of the ASEAN Budget Committee.
ARTICLE 18
Maximum Time-Frame
The total period for the disposal of disputes under this Protocol until
the stage contemplated under paragraph 7 of Article 16, shall not exceed 445
days, unless the longer time period under Article 15 applies.
ARTICLE 19
Responsibilities of the Secretariat
1.
The ASEAN Secretariat shall have the responsibility of assisting the
panels and the Appellate Body, especially on the legal, historical and the
procedural aspects of the matters dealt with, and of providing secretarial and
technical support.
2.
The ASEAN Secretariat shall assist the SEOM to monitor and maintain
surveillance of the implementation of the findings and recommendations of the
panel and Appellate Body reports adopted by it.
3.
The ASEAN Secretariat shall be the focal point to receive all
documentations in relation to disputes and shall deal with them as appropriate.
4.
The ASEAN Secretariat in consultation with the SEOM shall administratively
update the list of covered agreements in Appendix I, as may be required from
time to time. The Secretariat shall
inform Member States as and when the changes have been made.
ARTICLE 20
Venue for Proceedings
1.
The venue for proceedings of the panels and the Appellate Body shall be
the ASEAN Secretariat.
2.
Notwithstanding the provisions of paragraph 1 above, panel and Appellate Body proceedings, apart from
substantive meetings, may be held at any venue which the panels and the
Appellate Body consider appropriate in consultation with the parties to the
dispute, having regard to the convenience and cost effectiveness of such venue.
ARTICLE 21
Final Provisions
1.
This Protocol shall enter into force upon signing.
2.
This Protocol shall replace the 1996 Protocol on DSM and shall not apply
to any dispute which has arisen before its entry into force. Such dispute shall
continue to be governed by the 1996 Protocol on DSM.
3.
The provisions of this Protocol may be modified through amendments
mutually agreed upon in writing by all Member States.
4.
This Protocol shall be deposited with the Secretary-General of ASEAN,
who shall promptly furnish a certified copy thereof, to each ASEAN Member
State.
IN WITNESS WHEREOF, the undersigned, being duly authorised
thereto by their respective Governments, have signed the ASEAN Protocol on
Enhanced Dispute Settlement Mechanism.
DONE at Vientiane, Lao PDR on 29 November 2004, in a single copy in the
English language.
For the Government of
Brunei Darussalam
ABDUL RAHMAN TAIB
Minister of Industry and
Primary Resources
For the Government of
the Kingdom of Cambodia
CHAM PRASIDH
Senior Minister
Minister of Commerce
For the Government of
the Republic of Indonesia
MARI ELKA PANGESTU
Minister of Trade
For the Government of
the Lao People’s Democratic Republic
SOULIVONG DARAVONG
Minister of Commerce
For the Government of
Malaysia
RAFIDAH AZIZ
Minister of International Trade
and Industry
For the Government of
the Union of Myanmar
SOE THA
Minister of National Planning and Economic Development
For the Government of
the Republic of the Philippines
CESAR V. PURISIMA
Secretary of Trade and Industry
For the Government of
the Republic of Singapore
LIM HNG KIANG
Minister for Trade and Industry
For the Government of
the Kingdom of Thailand
WATANA MUANGSOOK
Minister of Commerce
For the Government of
the Socialist Republic of Vietnam
TRUONG DINH TUYEN
Minister of Trade
APPENDIX I
COVERED AGREEMENTS
1.
Agreement on ASEAN Preferential Trading Arrangements, Manila, 24
February 1977.
2.
Agreement on the ASEAN Food Security Reserve, New York, 4 October 1979.
3.
Basic Agreement on ASEAN Industrial Projects, Kuala Lumpur, 6 March
1980.
4. Supplementary
Agreement of the Basic Agreement on ASEAN Industrial Projects ASEAN Urea
Project (Indonesia), Kuala Lumpur, 6 March 1980.
5.
Basic Agreement on ASEAN Industrial Joint Ventures, Jakarta, 7 November
1983.
6.
Agreement on ASEAN Energy Cooperation, Manila, 24 June 1986.
7.
ASEAN Petroleum Security Agreement, Manila, 24 June 1986.
8.
Agreement on the Preferential Shortlisting of
ASEAN Contractors, Jakarta, 20 October 1986.
9.
Supplementary Agreement to the Basic Agreement on ASEAN Industrial Joint
Ventures, Singapore, 16 June 1987.
10.
Protocol on Improvements on Extensions of Tariff Preferences under the
ASEAN Preferential Trading Arrangement, Manila, 15 December 1987.
11.
Revised Basic Agreement on ASEAN Industrial Joint Ventures, Manila, 15
December 1987.
12.
Agreement Among the Government of Brunei Darussalam, the Republic of
Indonesia, Malaysia, the Republic of the Philippines, the Republic of
Singapore, and the Kingdom of Thailand for the Promotion and Protection of
Investments, Manila, 15 December 1987.
13.
Protocol to Amend the Revised Basic Agreement on ASEAN Industrial Joint
Ventures, 1 January 1991.
14.
Framework Agreement on Enhancing ASEAN Economic Cooperation, Singapore,
28 January 1992.
15.
Agreement on the Common Effective Preferential Tariff Scheme for the
ASEAN Free Trade Area, Singapore, 28 January 1992.
16.
Second Protocol to Amend the Revised Basic Agreement on ASEAN Industrial
Joint Ventures, Manila, 23 October 1992.
17.
Third Protocol to Amend the Revised Basic Agreement on ASEAN Industrial
Joint Ventures, 2 March 1995.
18.
Protocol to Amend the Agreement on the Common Effective Preferential
Tariff (CEPT) Scheme for the ASEAN Free Trade Area (AFTA), Bangkok, 15 December
1995.
19.
Protocol to Amend the Agreement on ASEAN Preferential Trading
Arrangements, Bangkok, 15 December 1995.
20.
ASEAN Framework Agreement on
Services, Bangkok, 15 December 1995.
21.
ASEAN Framework Agreement on Intellectual Property Cooperation, Bangkok,
15 December 1995.
22.
Protocol Amending the Agreement on ASEAN Energy Cooperation, Bangkok, 15
December 1995.
23.
Basic Agreement on ASEAN Industrial Cooperation, Singapore, 26 April
1996.
24.
Protocol to Amend the Agreement Among the Government of Brunei
Darussalam, the Republic of Indonesia, Malaysia, the Republic of the
Philippines, the Republic of Singapore, and the Kingdom of Thailand for the
Promotion and Protection of Investments, Jakarta, 12 September 1996.
25.
ASEAN Agreement on Customs, Phuket, Thailand,
1 March 1997
26.
Protocol Amending the Agreement on the ASEAN Energy Cooperation, Kuala
Lumpur, Malaysia, 23 July 1997
27. 2nd
Protocol to Amend the Agreement on the ASEAN Food Security Reserve, Subang Jaya, Malaysia, 23 July
1997
28.
Protocol to Implement the Initial Package of Commitments Under the ASEAN
Framework Agreement on Services, Kuala Lumpur, Malaysia, 15 December 1997
29.
Agreement on the Establishment of the ASEAN Center for Energy, Manila,
Philippines, 22 May 1998
30.
Protocol on Notification Procedures, Makati,
Philippines, 7 October 1998
31.
Framework Agreement on the ASEAN Investment Area, Makati,
Philippines, 7 October 1998
32.
ASEAN Framework Agreement on Mutual Recognition Arrangement (MRAs), Ha Noi, Viet Nam, 16
December 1998
33.
Protocol to Implement the Second Package of Commitments Under the ASEAN
Framework Agreement on Services, Ha Noi, Viet Nam, 16
December 1998
34.
ASEAN Framework Agreement on the Facilitation of Goods in Transit, Ha Noi, Viet Nam, 16 December 1998
35.
Protocol on the Special Arrangement for Sensitive and Highly Sensitive
Products, Singapore, 30 September 1999
36.
Protocol regarding the Implementation of the CEPT Scheme Temporary
Exclusion List, Singapore, 23 November 2000
37.
E-ASEAN Framework Agreement, Singapore, 24 November 2000
38.
Protocol 5: ASEAN Scheme of Compulsory Motor Vehicle Insurance, Kuala
Lumpur, Malaysia, 8 April 2001
39.
Protocol to Amend the Framework Agreement on the ASEAN Investment Area,
Ha Noi, Viet Nam 14 September 2001
40.
Protocol to Implement the Third Package of Commitments Under the ASEAN
Framework Agreement Services, Ha Noi, Viet Nam, 31
December 2001
41. ASEAN
Sectoral Mutual Recognition Arrangement for
Electrical and Electronic Equipment, Bangkok, Thailand, 5 April 2002
42.
Protocol to Implement the Second Package of Commitments on Financial
Services Under the ASEAN Framework Agreements on Services, Yangon, Myanmar, 6
April 2002
43.
Protocol to Amend the Agreement the Common Effective Preferential Tariff
(CEPT) Scheme for the ASEAN Free Trade Area (AFTA) for the Elimination of
Import Duties, 31 January 2003
44.
Protocol Governing the Implementation of the ASEAN Harmonized Tariff
Nomenclature, Makati, Philippines, 7 August 2003
45.
Agreement on the ASEAN Harmonized Cosmetic Regulatory Scheme, Phnom
Penh, Cambodia, 2 September 2003
46.
Protocol to Amend the Protocol Governing the Implementation of the ASEAN
Harmonised Tariff Nomenclature, Jeju
Island, Korea, 15 May 2004
APPENDIX II
WORKING PROCEDURES OF THE PANEL
I.
Composition of Panels
1.
Panels shall be composed of well-qualified governmental and/or
non-governmental individuals, including persons who have served on or presented
a case to a panel, served in the Secretariat, taught or published on
international trade law or policy, or served as a senior trade policy official
of a Member State. In the nomination to the panels, preference shall be given
to individuals who are nationals of ASEAN Member States.
2.
Panel members should be selected with a view to ensuring the
independence of the members, a sufficiently diverse background and a wide
spectrum of experience.
3.
Nationals of Member States whose governments are parties to the dispute
shall not serve on a panel concerned with that dispute, unless the parties to
the dispute agree otherwise.
4.
To assist in the selection of panelists, the Secretariat shall maintain
an indicative list of governmental and non-governmental individuals possessing
the qualifications outlined in paragraph 1, from which panelists may be drawn
as appropriate. Members may
periodically suggest names of governmental and non-governmental individuals for
inclusion on the indicative list, providing relevant information on their
knowledge of international trade and of the sectors or subject matter of the
covered agreements, and those names shall be added to the list upon approval by
the SEOM. For each of the
individuals on the list, the list shall indicate specific areas of experience
or expertise of the individuals in the sectors or subject matter of the covered
agreements.
5.
Panels shall be composed of three panelists unless the parties to the
dispute agree, within ten (10) days from the establishment of the panel, to a
panel composed of five panelists.
Members shall be informed promptly of the composition of the panel.
6.
The Secretariat shall propose nominations for the panel to the parties
to the dispute. The parties to the
dispute shall not oppose nominations except for compelling reasons.
7.
If there is no agreement on
the panelists, within twenty (20) days of the decision of the SEOM to establish
a panel, at the request of either party, the Secretary-General of ASEAN, in
consultation with the SEOM shall, within ten (10) days determine the
composition of the panel by appointing the panelists whom the Secretary-General
of ASEAN considers most appropriate, and if so relevant, in accordance with any
relevant special or additional rules or procedures of the covered agreed or
covered agreements which are at issue in the dispute, after consulting the
parties in the dispute. The ASEAN
Secretariat shall inform the Member States of the composition of the panel thus
formed.
8.
Member States shall undertake, as a general rule, to permit their
officials to serve as panelists.
9.
Panelists shall serve in their individual capacities and not as
government representatives, nor as representatives of any organization. Member States shall therefore not give
them instructions nor seek to influence them as individuals with regard to
matters before a panel.
II.
Panel Proceedings
1.
In its proceedings the panel shall follow the relevant provisions of
this Protocol. In addition, the following working procedures shall apply.
2.
The panel shall meet in closed session. The parties to the dispute, and
interested parties, shall be present at the meetings only when invited by the
panel to appear before it.
3.
The deliberations of the panel and the documents submitted to it shall
be kept confidential. Nothing in
this Protocol shall preclude a party to a dispute from disclosing statements of
its own positions to the public.
Member States shall treat as confidential information submitted by
another Member State to the panel which that Member State has designated as
confidential. Where a party to a
dispute submits a confidential version of its written submissions to the panel,
it shall also, upon request of a Member State, provide a non-confidential
summary of the information contained in its submissions that could be disclosed
to the public.
4.
Before the first substantive meeting of the panel with the parties, the
parties to the dispute shall transmit to the panel written submissions in which
they present the facts of the case and their arguments.
5.
At its first substantive meeting with the parties, the panel shall ask
the party which has brought the complaint to present its case. Subsequently, and still at the same
meeting, the party against which the complaint has been brought shall be asked
to present its point of view.
6.
All third parties which have notified their interest in the dispute to
the SEOM shall be invited in writing to present their views during a session of
the first substantive meeting of the panel set aside for that purpose. All such third parties may be present
during the entirety of this session.
7.
Formal rebuttals shall be made at a second substantive meeting of the
panel. The party complained against shall have the right to take the floor
first to be followed by the complaining party. The parties shall submit, prior to that
meeting, written rebuttals to the panel.
8.
The panel may at any time put questions to the parties and ask them for
explanations either in the course of a meeting with the parties or in writing.
9.
The parties to the dispute and any third party invited to present its
views in accordance with Article 11 shall make available to the panel a written
version of their oral statements.
10. The
parties to the dispute shall make available to the panel a written version of
their oral statements.
11. In
the interest of full transparency, the presentations, rebuttals and statements
referred to in paragraphs 5 to 8 shall be made in the presence of the
parties. Moreover, each party's
written submissions, including any comments on the descriptive part of the
report and responses to questions put by the panel, shall be made available to
the other party or parties.
12. Any
additional procedures specific to the panel.