ANNEX INST: RULES OF PROCEDURE FOR DISPUTE SETTLEMENT
I. Definitions
1. For the purposes of Title I [Dispute Settlement] of Part Six of this Agreement and of these Rules of Procedure, the following definitions apply:
(a) “administrative staff”, in respect of an arbitrator, means individuals under the direction and control of an arbitrator, other than assistants;
(b) “adviser” means an individual retained by a Party to advise or assist that Party in connection with the arbitration proceedings;
(c) “arbitration tribunal” means a tribunal established under Article INST.15 [Establishment of an arbitration tribunal] of Title I [Dispute Settlement] of Part Six of this Agreement;
(d) “arbitrator” means a member of the arbitration tribunal;
(e) “assistant” means an individual who, under the terms of appointment and under the direction and control of an arbitrator, conducts research or provides assistance to that arbitrator;
(f) “complaining Party” means any Party that requests the establishment of an arbitration tribunal under Article INST.14 [Arbitration Procedure] of Title I [Dispute Settlement] of Part Six of this Agreement;
(g) “registry” means an external body with relevant expertise appointed by the Parties to provide administrative support for the proceedings;
(h) “respondent Party” means the Party that is alleged to be in violation of the covered provisions; and
(i) “representative of a Party” means an employee or any individual appointed by a government department, agency or any other public entity of a Party who represents the Party for the purposes of a dispute under this Agreement or any supplementing agreement.
II. Notifications
2. Any request, notice, written submission or other document of:
(a) the arbitration tribunal shall be sent to both Parties at the same time;
(b) a Party, which is addressed to the arbitration tribunal, shall be copied to the other Party at the same time; and
(c) a Party, which is addressed to the other Party, shall be copied to the arbitration tribunal at the same time, as appropriate.
3. Any notification referred to in rule 2 shall be made by e-mail or, where appropriate, any other means of telecommunication that provides a record of the sending thereof. Unless proven otherwise, such notification shall be deemed to be delivered on the date of its sending.
4. All notifications shall be addressed to the Legal Service of the European Commission and to the Legal Adviser of the Foreign, Commonwealth & Development Office of the United Kingdom, respectively.
5. Minor errors of a clerical nature in a request, notice, written submission or other document related to the arbitration tribunal proceedings may be corrected by delivery of a new document clearly indicating the changes.
6. If the last day for delivery of a document falls on a non-working day of the institutions of the Union or of the government of the United Kingdom, the time period for the delivery of the document shall end on the first following working day.
III. Appointment of arbitrators
7. If pursuant to Article INST.15 (Establishment of an arbitration tribunal) of Title I [Dispute Settlement] of Part Six of this Agreement, an arbitrator is selected by lot, the co-chair of the Partnership Council of the complaining Party shall promptly inform the co-chair of the respondent Party of the date, time and venue of the lot. The respondent Party may, if it so chooses, be present during the lot. In any event, the lot shall be carried out with the Party or Parties that are present.
8. The co-chair of the complaining Party shall notify, in writing, each individual who has been selected to serve as an arbitrator of his or her appointment. Each individual shall confirm his or her availability to both Parties within five days from the date on which he or she was informed of his or her appointment.
9. The co-chair of the Partnership Council of the complaining Party shall select by lot the arbitrator or chairperson, within five days from the expiry of the time period referred to in Article INST.15(2) [Establishment of an arbitration tribunal] of Title I [Dispute Settlement] of Part Six of this Agreement, if any of the sub-lists referred in paragraph 1 of Article INST.27 [List of arbitrators] of Title I [Dispute Settlement] of Part Six of this Agreement:
(a) is not established, amongst those individuals who have been formally proposed by one or both Parties for the establishment of that particular sub-list; or
(b) no longer contains at least five individuals, amongst those individuals who remain on that particular sub-list.
9a. The Parties may appoint a registry to assist in the organisation and conduct of specific dispute settlement proceedings on the basis of ad-hoc arrangements or on the basis of arrangements adopted by the Partnership Council pursuant to Article INST.34A [Annexes] of Title I [Dispute Settlement] of Part Six of this Agreement. To that end, the Partnership Council shall consider no later than 180 days after the entry into force of this Agreement whether there are any necessary amendments to these Rules of Procedure.
IV. Organisational Meeting
10. Unless the Parties agree otherwise, they shall meet the arbitration tribunal within seven days of its establishment in order to determine such matters that the Parties or the arbitration tribunal deem to be appropriate, including:
(a) if not determined earlier, the remuneration and expenses to be paid to the arbitrators, which shall in any case be in accordance with WTO standards;
(b) the remuneration to be paid to assistants; the total amount of the remuneration of an assistant or assistants of each arbitrator shall not exceed 50% of the remuneration of that arbitrator;
(c) the timetable of the proceedings; and
(d) ad-hoc procedures to protect confidential information.
Arbitrators and representatives of the Parties may take part in this meeting via telephone or video conference.
V. Written Submissions
11. The complaining Party shall deliver its written submission no later than 20 days after the date of establishment of the arbitration tribunal. The respondent Party shall deliver its written submission no later than 20 days after the date of delivery of the written submission of the complaining Party.
VI. Operation of the arbitration tribunal
12. The chairperson of the arbitration tribunal shall preside at all its meetings. The arbitration tribunal may delegate to the chairperson the authority to make administrative and procedural decisions.
13. Unless otherwise provided in Title I [Dispute Settlement] of Part Six of this Agreement or in these Rules of Procedure, the arbitration tribunal may conduct its activities by any means, including telephone, facsimile transmissions or computer links.
14. Only arbitrators may take part in the deliberations of the arbitration tribunal, but the arbitration tribunal may permit their assistants to be present at its deliberations.
15. The drafting of any decision and report shall remain the exclusive responsibility of the arbitration tribunal and shall not be delegated.
16. Where a procedural question arises that is not covered by Title I [Dispute Settlement] of Part Six of this Agreement and its Annexes, the arbitration tribunal, after consulting the Parties, may adopt an appropriate procedure that is compatible with those provisions.
17. When the arbitration tribunal considers that there is a need to modify any of the time periods for the proceedings other than the time periods set out in Title I [Dispute Settlement] of Part Six of this Agreement or to make any other procedural or administrative adjustment, it shall inform the Parties, in writing and after consultation of the Parties, of the reasons for the change or adjustment and of the time period or adjustment needed.
VII. Replacement
18. When a Party considers that an arbitrator does not comply with the requirements of Annex INST-X (Code of Conduct for arbitrators) and for that reason should be replaced, that Party shall notify the other Party within 15 days from when it obtained sufficient evidence of the arbitrator’s alleged failure to comply with the requirements of that Annex.
19. The Parties shall consult within 15 days of the notification referred to in rule 18. They shall inform the arbitrator of his or her alleged failure and they may request the arbitrator to take steps to ameliorate the failure. They may also, if they so agree, remove the arbitrator and select a new arbitrator in accordance with Article INST.15 (Establishment of an arbitration tribunal) of Title I [Dispute Settlement] of Part Six of this Agreement.
20. If the Parties fail to agree on the need to replace the arbitrator, other than the chairperson of the arbitration tribunal, either Party may request that this matter be referred to the chairperson of the arbitration tribunal, whose decision shall be final.
If the chairperson of the arbitration tribunal finds that the arbitrator does not comply with the requirements of Annex INST-X (Code of Conduct for arbitrators), the new arbitrator shall be selected in accordance with INST.15 (Establishment of an arbitration tribunal) of Title I [Dispute Settlement] of Part Six of this Agreement.
21. If the Parties fail to agree on the need to replace the chairperson, either Party may request that this matter be referred to one of the remaining members of the pool of individuals from the sub- list of chairpersons established under INST.27 (Lists of arbitrators) of Title I [Dispute Settlement] of Part Six of this Agreement. His or her name shall be drawn by lot by the co-chair of the Partnership Council from the requesting Party, or the chair’s delegate. The decision by the selected person on the need to replace the chairperson shall be final.
If this person finds that the chairperson does not comply with the requirements of Annex INST-X (Code of Conduct for arbitrators), the new chairperson shall be selected in accordance with Article INST.15 (Establishment of an arbitration tribunal) of Title I [Dispute Settlement] of Part Six of this Agreement.
VIII. Hearings
22. On the basis of the timetable determined pursuant to rule 10, after consulting with the Parties and the other arbitrators, the chairperson of the arbitration tribunal shall notify the Parties of the date, time and venue of the hearing. That information shall be made publicly available by the Party in which the hearing takes place, unless the hearing is closed to the public.
23. Unless the Parties agree otherwise, the hearing shall be held in London if the complaining Party is the Union and in Brussels if the complaining Party is the United Kingdom. The respondent Party shall bear the expenses derived from the logistical administration of the hearing.
24. The arbitration tribunal may convene additional hearings if the Parties so agree.
25. All arbitrators shall be present during the entirety of the hearing.
26. Unless the Parties agree otherwise, the following persons may attend the hearing, irrespective of whether the hearing is open to the public or not:
(a) representatives of a Party;
(b) advisers;
(c) assistants and administrative staff;
(d) interpreters, translators and court reporters of the arbitration tribunal; and
(e) experts, as decided by the arbitration tribunal pursuant to Article INST.26(2) [Receipt of Information] of Title I [Dispute Settlement] of Part Six of this Agreement.
27. No later than five days before the date of a hearing, each Party shall deliver to the arbitration tribunal and to the other Party a list of the names of persons who will make oral arguments or presentations at the hearing on behalf of that Party and of other representatives and advisers who will be attending the hearing.
28. The arbitration tribunal shall conduct the hearing in the following manner, ensuring that the complaining Party and the respondent Party are afforded equal time in both argument and rebuttal argument:
Argument
(a) argument of the complaining Party;
(b) argument of the respondent Party.
Rebuttal Argument
(a) reply of the complaining Party;
(b) counter-reply of the respondent Party.
29. The arbitration tribunal may direct questions to either Party at any time during the hearing.
30. The arbitration tribunal 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 arbitration tribunal may consider those comments.
31. Each Party may deliver a supplementary written submission concerning any matter that arises during the hearing within 10 days after the date of the hearing.
IX. Questions in Writing
32. The arbitration tribunal may at any time during the proceedings submit questions in writing to one or both Parties. Any questions submitted to one Party shall be copied to the other Party.
33. Each Party shall provide the other Party with a copy of its responses to the questions submitted by the arbitration tribunal. The other Party shall have an opportunity to provide comments in writing on the Party’s responses within five days after the delivery of such copy.
X. Confidentiality
34. Each Party and the arbitration tribunal shall treat as confidential any information submitted by the other Party to the arbitration tribunal that the other Party has designated as confidential. When a Party submits to the arbitration tribunal a written submission which contains confidential information, it shall also provide, within 15 days, a submission without the confidential information which shall be disclosed to the public.
35. Nothing in these Rules of Procedure shall preclude a Party from disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other Party, it does not disclose any information designated by the other Party as confidential.
36. The arbitration tribunal shall hold the relevant parts of the session in private when the submission and arguments of a Party contain confidential information. The Parties shall maintain the confidentiality of the arbitration tribunal hearings when the hearings are held in closed session.
XI. Ex parte contacts
37. The arbitration tribunal shall not meet or communicate with a Party in the absence of the other Party.
38. An arbitrator shall not discuss any aspect of the subject matter of the proceedings with a Party or both Parties in the absence of the other arbitrators.
XII. Amicus curiae submissions
39. Unless the Parties agree otherwise within five days of the date of the establishment of the arbitration tribunal, the arbitration tribunal may receive unsolicited written submissions from natural persons of a Party or legal persons established in the territory of a Party that are independent from the governments of the Parties, provided that they:
(a) are received by the arbitration tribunal within 10 days of the date of the establishment of the arbitration tribunal;
(b) are concise and in no case longer than 15 pages, including any annexes, typed at double space;
(c) are directly relevant to a factual or a legal issue under consideration by the arbitration tribunal;
(d) contain a description of the person making the submission, including for a natural person his or her nationality and for a legal person its place of establishment, the nature of its activities, its legal status, general objectives and its source of financing;
(e) specify the nature of the interest that the person has in the arbitration proceedings; and
(f) are drafted in English.
40. The submissions shall be delivered to the Parties for their comments. The Parties may submit comments, within 10 days of the delivery, to the arbitration tribunal.
41. The arbitration tribunal shall list in its report all the submissions it has received pursuant to rule 39. The arbitration tribunal shall not be obliged to address in its report the arguments made in such submissions, however, if it does, it shall also take into account any comments made by the Parties pursuant to rule 40.
XIII. Urgent cases
42. In cases of urgency referred to in Article INST.19 [Urgent proceedings] of Title I [Dispute Settlement] of Part Six of this Agreement, the arbitration tribunal, after consulting the Parties, shall adjust, as appropriate, the time periods referred to in these Rules of Procedure. The arbitration tribunal shall notify the Parties of such adjustments.
XIV. Translation and interpretation
43. The language of proceedings before the arbitration tribunal shall be English. Reports and decisions of the arbitration tribunal shall be issued in English.
44. Each party shall bear its own costs of the translation of any documents submitted to the arbitration tribunal which are not originally drafted in English, as well as any costs relating to interpretation during the hearing related to its representatives or advisers.
XV. Other Procedures
48. The time periods laid down in these Rules of Procedure shall be adjusted in accordance with the special time periods provided for the adoption of a report or decision by the arbitration tribunal in the proceedings provided for in Article INST.22 (Reasonable Period of Time), Article INST.23 (Compliance Review), Article INST.24 (Temporary Remedies) and Article INST.25 (Review of any Measure taken to comply after the Adoption of Temporary Remedies) of Title I [Dispute Settlement] of Part Six of this Agreement.
ANNEX INST: CODE OF CONDUCT FOR ARBITRATORS
I. Definitions
1. For the purposes of this this Code of Conduct, the following definitions apply:
(a) “administrative staff” means, in respect of an arbitrator, individuals under the direction and control of an arbitrator, other than assistants;
(b) “arbitrator” means a member of an arbitration tribunal;
(c) “assistant” means an individual who, under the terms of appointment of an arbitrator, conducts research or provides assistance to that arbitrator; and
(d) “candidate” means an individual whose name is on a list of arbitrators referred to in Article INST.27 [Lists of Arbitrators] of Title I [Dispute Settlement] of Part Six of this Agreement or who is under consideration for selection as an arbitrator under Article INST.15 [Establishment of an arbitration tribunal] of Title I [Dispute Settlement] of Part Six of this Agreement.
II. Governing Principles
2. In order to preserve the integrity and impartiality of the dispute settlement mechanism, each candidate and arbitrator shall:
(a) get acquainted with this Code of Conduct;
(b) be independent and impartial;
(c) avoid direct or indirect conflicts of interest;
(d) avoid impropriety and the appearance of impropriety or bias;
(e) observe high standards of conduct; and
(f) not be influenced by self-interest, outside pressure, political considerations, public clamour, and loyalty to a Party or fear of criticism.
3. An arbitrator 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 his or her duties.
4. An arbitrator shall not use his or her position on the arbitration tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence him or her.
5. An arbitrator shall not allow past or existing financial, business, professional, personal, or social relationships or responsibilities to influence his or her conduct or judgement.
6. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or bias.
III. Disclosure obligations
7. Prior to the acceptance of his or her appointment as an arbitrator under Article INST.15 [Establishment of an arbitration tribunal] of Title I [Dispute Settlement] of Part Six of this Agreement, a candidate requested to serve as an arbitrator shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceedings. To that end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters, including financial interests, professional interests, or employment or family interests.
8. The disclosure obligation under paragraph 7 is a continuing duty which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceedings.
9. A candidate or an arbitrator shall communicate to the Partnership Council for consideration by the Parties any matters concerning actual or potential violations of this Code of Conduct at the earliest time he or she becomes aware of them.
IV. Duties of Arbitrators
10. Upon acceptance of his or her appointment, an arbitrator shall be available to perform and shall perform his or her duties thoroughly and expeditiously throughout the proceedings, and with fairness and diligence.
11. An arbitrator shall consider only the issues raised in the proceedings and which are necessary for a decision and shall not delegate that duty to any other person.
12. An arbitrator shall take all appropriate steps to ensure that his or her assistants and administrative staff are aware of, and comply with, the obligations incurred by arbitrators under Parts II, III, IV and VI of this Code of Conduct.
V. Obligations of Former Arbitrators
13. Each former arbitrator shall avoid actions that may create the appearance that he or she was biased in carrying out the duties or derived advantage from the decision of the arbitration tribunal.
14. Each former arbitrator shall comply with the obligations in Part VI of this Code of Conduct.
VI. Confidentiality
15. An arbitrator shall not, at any time, disclose any non-public information concerning the proceedings or acquired during the proceedings for which he or she has been appointed. An arbitrator shall not, in any case, disclose or use such information to gain personal advantage or advantage for others, or to adversely affect the interests of others.
16. An arbitrator shall not disclose a decision of the arbitration tribunal or parts thereof prior to its publication in accordance with Title I [Dispute Settlement] of Part Six of this Agreement.
17. An arbitrator shall not, at any time, disclose the deliberations of an arbitration tribunal, or any arbitrator’s view, nor make any statements on the proceedings for which he or she has been appointed or on the issues in dispute in the proceedings.
VII. Expenses
18. Each arbitrator shall keep a record and render a final account of the time devoted to the proceedings and of his or her expenses, as well as the time and expenses of his or her assistants and administrative staff.
