Database
on Basic Documents of Japan-ASEAN Relations
Department of
Advanced Social and International Studies,
Agreement on
Dispute Settlement Mechanism of the Framework Agreement on Comprehensive Economic
Co-Operation Between the Association of Southeast Asian Nations and the People’s Republic of China
The Governments of
Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao
People's Democratic Republic ("Lao PDR"), 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 Southeast Asian Nations (“ASEAN”) and the People’s Republic of China (“China”), (collectively, “the Parties”, or individually
referring to an ASEAN Member State or to China as a “Party”);
RECALLING the
Framework Agreement on Comprehensive Economic Co-operation (“the Framework Agreement”) between ASEAN and
RECALLING
paragraph 1 of Article 11 of the Framework Agreement on the establishment of
appropriate formal dispute settlement procedures and mechanism for the purposes
of the Framework Agreement within 1 year after the date of entry into force of
the Framework Agreement;
Have agreed as
follows:
ARTICLE 1
Definitions
For the purposes
of this Agreement, the following definitions shall apply unless the context
otherwise requires:
(a)
All the definitions in the Framework Agreement shall apply to this
Agreement;
(b)
“days” means calendar days, including weekends and
holidays;
(c)
“parties to a dispute”, “parties to the dispute”, or “parties concerned”, means the complaining party and the party complained against;
(d)
“complaining party” means any party or parties that requests for consultations under
Article 4; and
(e)
“party complained against” means any party to which the request for consultations is made
under Article 4.
Article 2
Scope and Coverage
1.
This Agreement shall apply to disputes arising under the Framework
Agreement which shall also include the Annexes and the contents therein.
Hereinafter, any reference to the Framework Agreement shall include all future
legal instruments agreed pursuant to it unless where the context otherwise
provides.
2.
Any special or additional rules and procedures on dispute settlement
contained in the Framework Agreement may be listed administratively by the
ASEAN Secretariat as an Appendix to this Agreement with the consent of the
Parties.
3.
Unless otherwise provided for in this Agreement or in the Framework
Agreement, or as the Parties may otherwise agree, the provisions of this
Agreement shall apply with respect to the avoidance or settlement of disputes
between or among the Parties concerning their respective rights and obligations
under the Framework Agreement.
4.
The provisions of this Agreement may be invoked in respect of measures
affecting the observance of the Framework Agreement taken by central, regional
or local governments or authorities within the territory of a Party.
5.
Subject to paragraph 6, nothing in this Agreement shall prejudice any
right of the Parties to have recourse to dispute settlement procedures
available under any other treaty to which they are parties.
6.
Once dispute settlement proceedings have been initiated under this
Agreement or under any other treaty to which the parties to a dispute are
parties concerning a particular right or obligation of such parties arising
under the Framework Agreement or that other treaty, the forum selected by the
complaining party shall be used to the exclusion of any other for such dispute.
7.
Paragraphs 5 and 6 above shall not apply where the parties to a dispute
expressly agree to the use of more than one dispute settlement forum in respect
of that particular dispute.
8.
For the purposes of paragraphs 5 to 7, the complaining party shall be
deemed to have selected a forum when it has requested the establishment of, or
referred a dispute to, a dispute settlement panel or tribunal in accordance
with this Agreement or any other agreement to which the parties to a dispute
are parties.
ARTICLE 3
Liaison Office
1. For the
purpose of this Agreement, each Party shall:
(a)
designate an office that shall be responsible
for all liaison affairs referred to in this Agreement;
(b)
be responsible for the operation and costs of
its designated office; and
(c)
notify the other Parties of the location and
address of its designated office within 30 days after the completion of its
internal procedures for the entry into force of this Agreement.
2.
Unless otherwise provided in this Agreement, the submission of any
request or document under this Agreement to the designated office of any Party
shall be deemed to be the submission of that request or document to that Party.
Article 4
Consultations
1. A
party complained against shall accord due consideration and adequate
opportunity for consultations regarding a request for consultations made by a
complaining party with respect to any matter affecting the implementation or
application of the Framework Agreement whereby:
(a)
any benefit accruing to the complaining party
directly or indirectly under the Framework Agreement is being nullified or
impaired; or
(b)
the attainment of any objective of the
Framework Agreement is being impeded,
as a result of the failure of the party
complained against to carry out its obligations under the Framework
Agreement.[1]
2.
Any request for consultations shall be submitted in writing, which shall
include the specific measures at issue, and the factual and legal basis
(including the provisions of the Framework Agreement alleged to have been
breached and any other relevant provisions) of the complaint. The complaining
party shall send the request to the party complained against and the rest of
the Parties. Upon receipt, the party complained against shall acknowledge receipt of such
request to the complaining party and the rest of the Parties simultaneously.
3.
If a request for consultations is made, the party complained against
shall reply to the request within 7 days after the date of its receipt and
shall enter into consultations in good faith within a period of not more than
30 days after the date of receipt of the request, with a view to reaching a mutually
satisfactory solution. If the party complained against does not respond within
the aforesaid 7 days, or does not enter into consultations within the aforesaid
30 days, then the complaining party may proceed directly to request for the
appointment of an arbitral tribunal under Article 6.
4.
The parties to a dispute shall make every effort to reach a mutually
satisfactory resolution of any matter through consultations. To this end, the parties concerned
shall:
(a)
provide sufficient information to enable a full
examination of how the measure might affect the operation of the Framework
Agreement; and
(b)
treat as confidential any information exchanged
in the consultations which the other party concerned has designated as
confidential.
5.
Consultations shall be confidential, and are without prejudice to the
rights of any Party in any further or other proceedings.
6.
Whenever a Party (other than the parties to a dispute) considers that it
has a substantial interest in consultations being held pursuant to this
Article, such Party may notify the parties to a dispute in writing of its
desire to be joined in the consultations within 10 days after the date of receipt
of the request for consultations by the party complained against. Such Party
shall be joined in the consultations provided that the party complained against
agrees that the claim of substantial interest is well founded. The party
complained against shall inform the complaining party and the rest of the
Parties of its decision prior to the commencement of the consultations. If the
request to be joined in the consultations is not accepted, the requesting Party
shall be free to request for separate consultations under this Article.
7.
In cases of urgency, including those which concern perishable goods, the
parties concerned shall enter into consultations within a period of no more
than 10 days after the date of receipt of the request by the party complained
against. If the consultations have failed to settle the dispute within a period
of 20 days after the date of receipt of the request by the party complained
against, the complaining party may proceed directly to request for the
appointment of an arbitral tribunal under Article 6.
8.
In cases of urgency, including those which concern perishable goods, the
parties to a dispute and arbitral tribunals shall make every effort to
accelerate the proceedings to the greatest extent possible.
Article 5
Conciliation or
Mediation
1.
The parties to a dispute may at any time agree to conciliation or
mediation. They may begin at any
time and be terminated by the parties concerned at any time.
2.
If the parties to a dispute agree, conciliation or mediation proceedings
may continue before any person or body as may be agreed by the parties to the
dispute while the dispute proceeds for resolution before an arbitral tribunal
appointed under Article 6.
3.
Proceedings involving conciliation and mediation and positions taken by
the parties to a dispute during these proceedings, shall be confidential, and
without prejudice to the rights of any Party in any further or other
proceedings.
Article 6
Appointment of Arbitral
Tribunals
1.
If the consultations referred to in Article 4 fail to settle a dispute
within 60 days after the date of receipt of the request for consultations or
within 20 days after such date in cases of urgency including those which concern
perishable goods, the complaining party may make a written request to the party
complained against to appoint an arbitral tribunal under this Article. A copy
of this request shall also be communicated to the rest of the Parties.
2.
A request for the appointment of an arbitral tribunal shall give the
reasons for the request, including the identification of:
(a)
the specific measure at issue; and
(b)
the factual and legal basis (including the
provisions of the Framework Agreement alleged to have been breached and any
other relevant provisions) for the complaint sufficient to present the problem
clearly.
3.
Where more than 1 complaining party requests the appointment of an
arbitral tribunal related to the same matter, a single arbitral tribunal may,
whenever feasible, be appointed by the parties concerned to examine the matter,
taking into account their respective rights.
4.
Where a single arbitral tribunal is appointed under paragraph 3, it
shall organize its examination and present its findings to all the parties to
the dispute in such manner that the rights which they would have enjoyed had
separate arbitral tribunals examined the same matter are in no way impaired. If
one of the parties to the dispute so requests, the arbitral tribunal may submit separate reports on the
dispute to the parties concerned if the timeframe for writing the report so
permits. The written submissions by a party to the dispute shall be made
available to the other parties and each party to the dispute shall have the
right to be present when any of the other parties to the same dispute presents
its views to the arbitral tribunal.
5.
Where more than 1 arbitral tribunal is appointed under paragraph 3 to examine
the same matter, to the greatest extent possible, the same arbitrators shall be
appointed by the parties concerned to serve on each of the separate arbitral
tribunals and the timetable for the proceedings of each separate arbitral
tribunal shall be harmonised.
Article 7
Composition of
Arbitral Tribunals
1.
Unless otherwise provided in this Agreement or the parties to the
dispute agree, the arbitral tribunal shall have three members.
2.
The complaining party shall appoint an arbitrator to the arbitral
tribunal pursuant to Article 6 within 20 days of the receipt of the request for
appointment of the arbitral tribunal under Article 6. The party complained
against shall appoint an arbitrator to the arbitral tribunal pursuant to
Article 6 within 30 days of its receipt of the request for appointment of the
arbitral tribunal under Article 6. If any party to the dispute fails to appoint
an arbitrator within such period, then the arbitrator appointed by the other
party to the dispute shall act as the sole arbitrator of the tribunal.
3.
Once the complaining party and the party complained against have
appointed their respective arbitrators subject to paragraph 2, the parties
concerned shall endeavour to agree on an additional
arbitrator who shall serve as chair. If the parties concerned are unable to
agree on the chair of the arbitral tribunal within 30 days after the date on
which the last arbitrator has been appointed under paragraph 2, they shall
request the Director-General of the World Trade Organization (WTO) to appoint
the chair and such appointment shall be accepted by them. In the event that the
Director-General is a national of one of the parties to the dispute, the Deputy
Director-General or the officer next in seniority who
is not a national of either party to the dispute shall be requested to appoint
the chair. If one of the parties to the dispute is a non-WTO member, the
parties to the dispute shall request the President of the International Court
of Justice to appoint the chair and such appointment shall be accepted by them.
In the event that the President is a national of one of the parties to the
dispute, the Vice President or the officer next in seniority who
is not a national of either party to the dispute shall be requested to appoint
the chair.
4.
The date of composition of the arbitral tribunal shall be the date on
which the chair is appointed under paragraph 3, or the 30th day after the
receipt of the request under Article 6 where only a sole arbitrator of the
tribunal is available.
5.
If an arbitrator appointed under this Article resigns or becomes unable
to act, a successor arbitrator shall be appointed in the same manner as
prescribed for the appointment of the original arbitrator and the successor
shall have all the powers and duties of the original arbitrator. The work of
the arbitral tribunal shall be suspended during the appointment of the
successor arbitrator.
6.
Any person appointed as a member or chair of the arbitral tribunal shall
have expertise or experience in law, international trade, other matters covered
by the Framework Agreement or the resolution of disputes arising under
international trade agreements, and shall be chosen strictly on the basis of
objectivity, reliability, sound judgement and
independence. Additionally, the
chair shall not be a national of any party to a dispute and shall not have his
or her usual place of residence in the territory of, nor be employed by, any
party to a dispute.
7.
Where the original arbitral tribunal is required for a matter as
provided in this Agreement but cannot hear the matter for any reason, a new
tribunal shall be appointed under this Article.
ARTICLE 8
Functions of
Arbitral Tribunals
1. The function of an arbitral tribunal 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 Framework Agreement. Where
the arbitral tribunal concludes that a measure is inconsistent with a provision
of the Framework Agreement, it shall recommend that the party complained
against bring the measure into conformity with that provision. In addition to
its recommendations, the arbitral tribunal may suggest ways in which the party
complained against could implement the recommendations. In its findings and
recommendations, the arbitral tribunal cannot add to or diminish the rights and
obligations provided in the Framework Agreement.
2.
The arbitral tribunal shall have the following terms of reference unless
the parties to a dispute agree otherwise within 20 days from its composition:
“To
examine, in the light of the relevant provisions in the Framework Agreement,
the matter referred to this arbitral tribunal by (name of party)… and to make findings, determinations and
recommendations provided for in the Framework Agreement.”
The arbitral
tribunal shall address the relevant provisions in the Framework Agreement cited
by the parties to a dispute.
3.
The arbitral tribunal established pursuant to Article 6 above:
(a)
shall consult regularly with the parties to the
dispute and provide adequate opportunities for the development of a mutually satisfactory resolution;
(b)
shall make its decision in accordance with the Framework Agreement and
the rules of international law applicable between the parties to the dispute;
and
(c)
shall set out, in its decision, its findings of
law and fact, together with the reasons therefore.
4.
The decision of the arbitral tribunal shall be final and binding on the
parties to the dispute.
5.
An arbitral tribunal shall take its decision by consensus; provided that
where an arbitral tribunal is unable to reach consensus, it may take its
decision by majority opinion.
6.
The arbitral tribunal shall, in consultation with the parties to the
dispute and apart from the matters set out in paragraphs 2, 3, 4 of Article 6 and Article 9, regulate its own
procedures in relation to the rights of parties to be heard and its
deliberations.
Article 9
Proceedings of
Arbitral Tribunals
1.
An arbitral tribunal shall meet in closed session. The parties to the dispute shall be present
at the meetings only when invited by the arbitral tribunal to appear before it.
2.
The venue for the substantive meetings of the arbitral tribunal shall be
decided by mutual agreement between the parties to the dispute, failing which
the first substantive meeting shall be held in the capital of the party
complained against, with the second substantive meeting to be held in the
capital of the complaining party.
3.
After consulting the parties to the dispute, the arbitral tribunal
shall, as soon as practical and possible within 15 days after the composition
of the arbitral tribunal, fix the timetable for the arbitral process. In
determining the timetable for the arbitral process, the arbitral tribunal shall
provide sufficient time for the parties to the dispute to prepare their
respective submissions. The arbitral tribunal should set precise deadlines for
written submissions by the parties to the dispute and they shall respect these
deadlines.
4.
The deliberations of an arbitral tribunal and the documents submitted to
it shall be kept confidential.
Nothing in this Article shall preclude a party to a dispute from
disclosing statements of its own positions or its submissions to the public; a
party to a dispute shall treat as confidential information submitted by any of
the other parties concerned to the arbitral tribunal which the submitting party
has designated as confidential.
Where a party to a dispute submits a confidential version of its written
submissions to the arbitral tribunal, it shall also, upon request of any of the
other parties concerned, provide a non-confidential summary of the information
contained in its submissions that could be disclosed to the public.
5.
The rules and procedures pertaining to the proceedings before the
arbitral tribunal as set out in Annex 1 of this Agreement shall apply unless
the arbitral tribunal decides otherwise after consulting the parties to the
dispute.
6.
The report of the arbitral tribunal shall be drafted without the
presence of the parties to the dispute in the light of the information provided
and the statements made. The deliberations of the tribunal shall be
confidential. Opinions expressed in the report of the arbitral tribunal by an
individual arbitrator shall be anonymous.
7.
Following the consideration of submissions, oral arguments and any
information before it, the arbitral tribunal shall issue a draft report to the
parties concerned, including both a descriptive section relating to the facts
of the dispute and the arguments of the parties to the dispute and the arbitral
tribunal’s findings and conclusions. The arbitral
tribunal shall accord adequate opportunity to the parties concerned to review
the entirety of its draft report prior to its finalization and shall include a
discussion of any comments by the parties concerned in its final report.
8.
The arbitral tribunal shall release to the parties to the dispute its
final report within 120 days from the date of its composition. In cases of urgency, including those
relating to perishable goods, the arbitral tribunal shall aim to issue its
report to the parties to the dispute within 60 days from the date of its
composition. When the arbitral tribunal considers that it cannot release its
final report within 120 days, or within 60 days in
cases of urgency, it shall inform the parties concerned in writing of the
reasons for the delay together with an estimate of the period within which it
will issue its report. In no case should
the period from the composition of an arbitral tribunal to the release of the
report to parties to the dispute exceed 180 days.
9.
The final report of the arbitral tribunal shall become a public document
within 10 days after its release to the parties concerned.
ARTICLE 10
Third Parties
1.
Any Party having a substantial interest in a dispute before an arbitral
tribunal and having notified its interest in writing to the parties to such a
dispute and the remaining Parties (hereinafter referred to as a “third party”), shall have an opportunity to make written submissions to the
tribunal. These submissions shall also be given to the parties to a dispute and
may be reflected in the report of the arbitral tribunal.
2. Third parties shall
receive the submissions of the parties to a dispute to the first meeting of the
arbitral tribunal.
3.
If a third party considers that a measure already the subject of an
arbitral tribunal proceedings nullifies or impairs benefits accruing to it
under the Framework Agreement, such Party may have recourse to normal dispute
settlement procedures under this Agreement.
Article 11
Suspension and
Termination of Proceedings
1.
Where the parties to the dispute agree, the arbitral tribunal may
suspend its work at any time for a period not exceeding 12 months from the date
of such agreement. Upon the
request of any party to a dispute, the arbitral proceeding shall be resumed
after such suspension. If the work of the arbitral tribunal has been suspended
for more than 12 months, the authority for establishment of the arbitral
tribunal shall lapse unless the parties concerned agree otherwise.
2.
The parties to a dispute may agree to terminate the proceedings of an
arbitral tribunal established under this Agreement before the release of the
final report to them, in the event that a mutually satisfactory solution to the
dispute has been found.
3.
Before the arbitral tribunal makes its decision, it may at any stage of
the proceedings propose to the parties to the dispute that the dispute be
settled amicably.
Article 12
Implementation
1.
The party complained against shall inform the complaining party of its
intention in respect of implementation of the recommendations and rulings of
the arbitral tribunal.
2.
If it is impracticable to comply immediately with the recommendations
and rulings of the arbitral tribunal, the party complained against shall have a
reasonable period of time in which to do so. The reasonable period of time
shall be mutually determined by the parties to the dispute or, where the
parties concerned fail to agree on the reasonable period of time within 30 days
of the release of the arbitral tribunal’s final report, any of the parties to the dispute may refer the
matter to the original arbitral tribunal wherever possible which shall,
following consultations with the parties concerned, determine the reasonable
period of time within 30 days after the date of the referral of the matter to
it. When the arbitral tribunal considers that it cannot provide its report
within this timeframe, it shall inform the parties concerned in writing of the
reasons for the delay and shall submit its report no later than 45 days after
the date of the referral of the matter to it.
3.
Where there is disagreement as to the existence or consistency with the
Framework Agreement of measures taken within the reasonable period of time
referred to in paragraph 2 to comply with the recommendations of the arbitral
tribunal, such dispute shall be referred to the original arbitral tribunal,
wherever possible. The arbitral
tribunal shall provide its report to the parties to the dispute within 60 days
after the date of the referral of the matter to it. When the arbitral tribunal considers
that it cannot provide its report within this timeframe, it shall inform the
parties concerned in writing of the reasons for the delay and shall submit its
report no later than 75 days after the date of the referral of the matter to
it.
Article 13
Compensation and
Suspension of Concessions or Benefits
1.
Compensation and the suspension of concessions or benefits are temporary
measures available in the event that the recommendations and rulings are not
implemented within a reasonable period of time. However, neither compensation
nor the suspension of concessions or benefits is preferred to full
implementation of a recommendation to bring a measure into conformity with the
Framework Agreement. Compensation is voluntary and, if granted, shall be
consistent with the Framework Agreement.
2.
If the party complained against fails to bring the measure found to be
inconsistent with the Framework Agreement into compliance with the
recommendations of the arbitral tribunal within the reasonable period of time
determined pursuant to paragraph 2 of Article 12, that party shall, if so
requested, enter into negotiations with the complaining party with a view to reaching
a mutually satisfactory agreement on any necessary compensatory adjustment.
3.
If no mutually satisfactory agreement on compensation has been reached
within 20 days after the request of the complaining party to enter into negotiations
on compensatory adjustment, the complaining party may request the original
arbitral tribunal to determine the appropriate level of any suspension of
concessions or benefits conferred on the party which has failed to bring the
measure found to be inconsistent with the Framework Agreement into compliance
with the recommendations of the arbitral tribunal. The arbitral tribunal shall
provide its report to the parties to the dispute within 30 days after the date
of the referral of the matter to it. When the arbitral tribunal considers that
it cannot provide its report within this timeframe, it shall inform the parties
concerned in writing of the reasons for the delay and shall submit its report
no later than 45 days after the date of the referral of the matter to it.
Concessions or benefits shall not be suspended during the course of the
arbitral proceedings.
4.
Any suspension of concessions or benefits shall be restricted to those
accruing under the Framework Agreement to the party which has failed to bring
the measure found to be inconsistent with the Framework Agreement into
compliance with the recommendations of the arbitral tribunal. That party and
the rest of the Parties shall be informed of the commencement and details of any
such suspension.
5.
In considering what concessions or benefits to
suspend:
(a)
the complaining party should first seek to suspend concessions or
benefits in the same sector or sectors as that affected by the measure or other
matter that the arbitral tribunal has found to be inconsistent with the
Framework Agreement or to have caused nullification or impairment; and
(b)
the complaining party may suspend concessions
or benefits in other sectors if it considers that it is not practicable or
effective to suspend concessions or benefits in the same sector.
6.
The suspension of concessions or benefits shall be temporary and shall
only be applied until such time as the measure found to be inconsistent with
the Framework Agreement has been removed, or the Party that must implement the
arbitral tribunal’s recommendations has done so, or a mutually
satisfactory solution is reached.
ARTICLE 14
Language
1.
All proceedings pursuant to this Agreement shall be conducted in the
English language.
2.
Any document submitted for use in any proceedings pursuant to this
Agreement shall be in the English language. If any original document is not in
the English language, a party submitting it for use in the proceedings pursuant
to this Agreement shall provide an English translation of that document.
Article 15
Expenses
1.
Each party to a dispute shall bear the costs of its appointed arbitrator
and its own expenses and legal costs.
2.
The costs of the chair of the arbitral tribunal and other expenses
associated with the conduct of its proceedings shall be borne in equal parts by
the parties to a dispute.
Article 16
Amendments
The provisions of
this Agreement may be modified through amendments mutually agreed upon in
writing by the Parties.
Article 17
Depository
For ASEAN, this
Agreement shall be deposited with the Secretary-General of ASEAN, who shall
promptly furnish a certified copy thereof, to each
ARTICLE 18
Entry Into Force
1.
This Agreement shall enter into force on 1 January 2005.
2.
The Parties undertake to complete their internal procedures for the
entry into force of this Agreement prior to 1 January 2005.
3.
Where a Party is unable to complete its internal procedures for the
entry into force of this Agreement by 1 January 2005, the rights and
obligations of that Party under this Agreement shall commence on the date of
the completion of such internal procedures.
4.
A Party shall upon the completion of its internal procedures for the
entry into force of this Agreement notify all the other Parties in writing.
IN WITNESS
WHEREOF, the undersigned, being duly authorised
thereto by their respective Governments, have signed this Agreement on Dispute
Settlement Mechanism of the Framework Agreement on Comprehensive Economic
Co-operation between the Association of Southeast Asian Nations and the People’s Republic of
DONE
at
For
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
PEHIN DATO ABDUL
RAHMAN TAIB
Minister of
Industry and Primary Resources
For the
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
CHAM PRASIDH
Senior Minister
and Minister of Commerce
For the
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
MARI ELKA PANGESTU
Minister of Trade
For the Lao People’s Democratic Republic
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
SOULIVONG DARAVONG
Minister of
Commerce
For
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
RAFIDAH AZIZ
Minister of
International Trade and Industry
For the Union of
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
SOE THA
Minister of
National Planning and Economic Development
For the Republic
of the
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
CESAR V. PURISIMA
Secretary of Trade
and Industry
For the
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
LIM HNG KIANG
Minister for Trade
and Industry
For the
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
WATANA MUANGSOOK
Minister of
Commerce
For the
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
TRUONG DINH TUYEN
Minister of Trade
For the People’s Republic of
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
BO XILAI
Minister of
Commerce
ANNEX 1
RULES AND
PROCEDURES FOR THE ARBITRAL PROCEEDINGS
1.
Before the first substantive meeting of the arbitral tribunal with the
parties to the dispute, the parties concerned shall transmit to the arbitral
tribunal written submissions in which they present the facts of their case and
their arguments.
2.
The complaining party shall submit its first submission in advance of
the first submission of the party complained against unless the arbitral
tribunal decides, in fixing the timetable referred to in paragraph 3 of Article
9 and after consultations with the parties to the dispute, that the parties
concerned should submit their first submissions simultaneously. When there are
sequential arrangements for the submission of first submissions, the arbitral
tribunal shall establish a firm time-period for receipt of the submission of
the party complained against. Any subsequent written submissions shall be
submitted simultaneously.
3.
At its first substantive meeting with the parties to the dispute, the
arbitral tribunal shall ask the complaining party to present its submissions. Subsequently, and still at the same
meeting, the party complained against shall be asked to present its
submissions.
4.
Formal rebuttals shall be made at the second substantive meeting of the
arbitral tribunal. The party
complained against shall have the right to present its submission first, and
shall be followed by the complaining party. The parties to the dispute shall submit,
prior to the meeting, written rebuttals to the arbitral tribunal.
5.
The arbitral tribunal may at any time put questions to the parties to
the dispute and ask them for explanations either in the course of a meeting
with the parties concerned or in writing.
6.
The parties to the dispute shall make available to the arbitral tribunal
a written version of their oral statements.
7.
In the interests of full transparency, the presentations, rebuttals and
statements referred to in paragraphs 2 to 6 shall be made in the presence of
the parties to the dispute.
Moreover, each party’s written
submissions, including any comments on the draft report, written versions of
oral statements and responses to questions put by the arbitral tribunal, shall
be made available to the other party.
There shall be no ex parte communications with
the arbitral tribunal concerning matters under its consideration.
8. The arbitral
tribunal may consult experts to obtain their opinion on certain aspects of the
matter. With respect to factual issues concerning a scientific or other
technical matter raised by a party to the dispute, the arbitral tribunal may
request advisory reports in writing from an expert or experts. The arbitral
tribunal may, at the request of a party or parties to the dispute, or on its
own volition, select, in consultation with the parties to the dispute,
scientific or technical experts who shall assist the arbitral tribunal
throughout its proceedings but who shall not have the right to vote in respect
of any decision to be made by the arbitral tribunal.
[1] Non-violation
disputes are not permitted under this Agreement.