THAILAND-AUSTRALIA
FREE TRADE AGREEMENT
ARTICLE
1802
Consultations
1.
A Party shall accord adequate opportunity for consultations requested
by the other Party with respect to any matter affecting the interpretation,
implementation or application of this Agreement.
2. If a request for consultations is made, the Party to which the request
is made shall reply to the request within seven days after the date of
its receipt and shall enter into consultations within 30 days after the
date of receipt of the request, with a view to reaching a mutually satisfactory
solution.
3. The Parties shall make every effort to reach a mutually satisfactory
resolution through consultations of any matter raised in accordance with
this Article.
ARTICLE
1803
Good Offices, Conciliation and Mediation
1.
The Parties may at any time agree to good offices, conciliation or mediation.
They may begin at any time and be terminated at any time.
2. Good offices, conciliation or mediation may continue while procedures
of an arbitral tribunal established in accordance with this Chapter are
in progress.
ARTICLE
1804
Request to Establish an Arbitral Tribunal
1.
If the consultations referred to in Article 1802 fail to settle a dispute
within 60 days of the date after receipt of the request for consultations,
the Party which made the request for consultations may make a written
request to the other Party to establish an arbitral tribunal.
2. The request to establish an arbitral tribunal shall identify:
(a) the specific measures at issue;
(b) the legal basis of the complaint including the provisions of this
Agreement alleged to have been breached and any other relevant provisions;
and
(c) the factual basis for the complaint.
ARTICLE
1805
Establishment of an Arbitral Tribunal
1.
An arbitral tribunal shall consist of three members. Each Party shall
appoint a member within 30 days after the receipt of the request under
Article 1804. The two members appointed shall, within 30 days after the
appointment of the second of them, designate by common agreement the third
member.
2. The Parties shall, within seven days after the date of the designation
of the third member, approve or disapprove the appointment of that member,
who shall, if approved, chair the tribunal.
3. If the third member has not been designated within 30 days after the
date of the appointment of the second member, or if one or both of the
Parties disapproves the appointment of the third member, the Parties shall
consult each other in order to jointly appoint within a further period
of 30 days the chair of the arbitral tribunal.
4. An arbitral tribunal shall be regarded as established on the day on
which the appointment of the third member of the tribunal has been approved
or agreed by the Parties in accordance with this Article.
5. If a member appointed under this Article resigns or becomes unable
to act, a successor member shall be appointed in the same manner as prescribed
for the appointment of the member being replaced and the successor shall
have all the powers and duties of the member being replaced.
6. A person appointed as a member of an arbitral tribunal:
(a) shall have expertise or experience in law, international trade, other
matters covered by this Agreement or the settlement of disputes arising
under international trade agreements;
(b) shall be chosen strictly on the basis of objectivity, reliability,
sound judgement and independence; and
(c) shall be independent of, and not be affiliated with or take instructions
from, either Party.
7. A person appointed as chair of an arbitral tribunal shall not be a
national of, nor have his or her usual place of residence in the territory
of, nor be employed by, either Party nor have dealt with the dispute in
any capacity.
ARTICLE
1806
Functions of Arbitral Tribunals
1.
An arbitral tribunal established under Article 1804:
(a) shall consult the Parties as appropriate and provide adequate opportunities
for the development of a mutually satisfactory settlement of the dispute;
(b) shall make its award in accordance with this Agreement and applicable
rules of international law;
(c) shall set out, in its award, its findings of law and fact, together
with its reasons; and
(d) may, in addition to its findings of law and fact, include in its award
options for the Parties to consider in implementing the award.
2. The award of an arbitral tribunal shall be final and binding on the
Parties.
3. An arbitral tribunal shall attempt to make its decision, including
its award, by consensus but may also make such decisions by majority vote.
ARTICLE
1807
Proceedings of Arbitral Tribunals
1.
An arbitral tribunal shall meet in closed session. The Parties shall be
present at the meetings only when invited by an arbitral tribunal to appear
before it.
2. The deliberations of an arbitral tribunal and the documents submitted
to it shall be kept confidential. Nothing in this Article shall preclude
a Party from disclosing to the public statements of its own positions
or its submissions, but a Party shall not disclose information submitted
by the other Party to an arbitral tribunal which the latter Party has
designated as confidential.
3. The Parties shall transmit to the tribunal written submissions in which
they present the facts of their cases and their arguments and shall do
so within the following time limits:
(a) for the Party which requested the establishment of the arbitral tribunal,
within 21 days after the date of the establishment of that tribunal; and
(b) for the other Party, within 21 days after the date of the transmission
of the written submission of the Party which requested the establishment
of the arbitral tribunal.
4. At its first substantive meeting with the Parties, an arbitral tribunal
shall ask the Party which requested the establishment of the tribunal
to present its submission. At the same meeting, the arbitral tribunal
shall ask the other Party to present its submission.
5. Formal rebuttals shall be made at the second substantive meeting of
an arbitral tribunal. The Party which did not request the establishment
of the tribunal shall have the right to present its submission first.
Before the meeting, the Parties shall submit written rebuttals to the
tribunal.
6. An arbitral tribunal may at any time put questions to the Parties and
ask them for explanations either in the course of a meeting or in writing.
7. The Parties shall make available to an arbitral tribunal a written
version of their oral statements.
8. The submissions, rebuttals and statements referred to in paragraphs
4 to 6 shall be made in the presence of the Parties. Each Party's written
submissions, including any comments on the draft award made in accordance
with Article 1809 (2), written versions of oral statements and responses
to questions put by an arbitral tribunal, shall be made available to the
other Party.
9. An arbitral tribunal shall have no ex parte communications concerning
a dispute it is considering.
10. At the request of a Party, or on its own initiative, an arbitral tribunal
may seek information and technical advice from any person or body that
it deems appropriate, provided that the Parties so agree and subject to
such terms and conditions as the Parties may set. This paragraph does
not apply to information and technical advice provided by any person or
body as part of the submissions referred to in paragraphs 4 to 6.
11. An arbitral tribunal shall, in consultation with the Parties, regulate
its own procedures governing the rights of Parties to be heard and its
own deliberations where such procedures are not otherwise set out in this
Chapter.
ARTICLE
1808
Suspension or Termination of Proceedings
1. Where
the Parties agree, an arbitral tribunal may suspend its work at any time
for a period not exceeding 12 months. If the work of an arbitral tribunal
has been suspended for more than 12 months, the tribunal's authority for
considering the dispute shall lapse unless the Parties agree otherwise.
2. The Parties may agree at any time to terminate the proceedings of an
arbitral tribunal established under this Agreement by jointly notifying
the chair of that arbitral tribunal.
3. An arbitral tribunal may, at any stage of the proceedings prior to
release of its final award, propose that the Parties seek to settle the
dispute amicably.
ARTICLE
1809
Awards of Arbitral Tribunals
1.
Unless the Parties otherwise agree, an arbitral tribunal shall base its
award on the submissions and arguments of the Parties and on any information
it has obtained in accordance with Article 1807 (10).
2. An arbitral tribunal shall prepare a draft award and accord adequate
opportunity for the Parties to review this draft. The Parties may submit
to the tribunal written comments on the draft award within 14 days after
the date of its receipt. The tribunal shall consider any comments received
from the Parties in finalising its award.
3. An arbitral tribunal shall release to the Parties its final award on
a dispute within 120 days after the date of its establishment. If the
tribunal considers it cannot release its final award within 120 days,
it shall inform the Parties in writing of the reasons for the delay, together
with an estimate of the period within which it will issue its award.
4. The final award of an arbitral tribunal shall become a public document
within 10 days of its release to the Parties.
ARTICLE
1810
Implementation
1.
The Parties shall promptly comply with an award of an arbitral tribunal.
2. A Party shall notify the other Party in writing of any action it proposes
to take to implement an award of an arbitral tribunal within 30 days after
the date of the receipt of the final award by the Parties.
3. If a Party considers that prompt compliance with an award of an arbitral
tribunal is impracticable, or if a Party which requested the establishment
of an arbitral tribunal considers that an action proposed or subsequently
taken by the other Party does not implement the award of the tribunal,
the Parties shall immediately enter into consultations with a view to
developing a mutually acceptable resolution, such as compensation or any
alternative arrangement and agreeing on a reasonable period to implement
any such resolution. Compensation and any alternative arrangement are
temporary measures, neither of which is preferred to full implementation
of the original award.
ARTICLE
1811
Compensation and Suspension of Benefits
1.
If:
(a) the Party which requested the establishment of an arbitral tribunal
has not received any notice from the other Party under Article 1810 (2);
or
(b) the Parties are unable to agree on a mutually acceptable resolution
under Article 1810 (3) within 30 days of the commencement of consultations
under Article 1810 (3); or
(c) the Parties have agreed on a mutually acceptable resolution under
Article 1810 (3) and the Party which requested the establishment of the
arbitral tribunal considers that the other Party has failed to observe
the terms of such agreement,
the Party which requested the establishment of an arbitral tribunal may
at any time thereafter provide written notice to the other Party that
it intends to suspend the application of benefits of equivalent effect
to the non-conformity found by the tribunal. The notice shall specify
the level of benefits that the Party proposes to suspend. The Party which
requested the establishment of an arbitral tribunal may begin suspending
benefits 30 days after the date on which it provides notice to the other
Party.
2. In considering what benefits to suspend under this Article:
(a) the Party which requested the establishment of an arbitral tribunal
shall first seek to suspend the application of benefits in the same sector
or sectors as affected by the matter that the tribunal has found to be
inconsistent with this Agreement;
(b) the Party which requested the establishment of an arbitral tribunal
may suspend the application of benefits in other sectors if it considers
that it is not practicable or effective to suspend the application of
benefits in the same sector; and
(c) the Party which requested the establishment of the arbitral tribunal
shall aim to ensure that the level of suspension of benefits is of equivalent
effect to the non-conformity found by the tribunal.
Any suspension of benefits under this Article shall be temporary and shall
only be applied until such time as the Party that must implement an arbitral
tribunal's award has done so, or until a mutually satisfactory solution
is reached.
3. If the Party complained against considers that:
(a) the level of benefits that the other Party has proposed to suspend
under paragraph 2 is excessive; or
(b) it has eliminated the non-conformity found by the tribunal
it may, within 30 days after the other Party provides notice under Paragraph
1, request that the tribunal be reconvened to consider this matter. The
Party complained against shall deliver its request in writing to the other
Party. The tribunal shall reconvene within 30 days after delivery of the
request to the other Party and shall present its determination to the
Parties within 90 days after it reconvenes. If the tribunal determines
that the level of benefits proposed to be or actually suspended is excessive,
it shall determine the level of benefits it considers to be of equivalent
effect to the non-conformity found by the tribunal, adjusted to reflect
any loss sustained by a Party as a result of excessive suspension.
4. The compliance tribunal's award shall be final and binding on the Parties.
ARTICLE
1812
Expenses
Each
Party shall bear the costs of its appointed member and its own expenses.
The costs of the chair of an arbitral tribunal and other expenses associated
with the conduct of its proceedings shall be borne in equal parts by the
Parties.
CHAPTER
19
FINAL PROVISIONS
ARTICLE 1901
Headings
The
headings of the Chapters and Articles of this Agreement are inserted for
convenience of reference only and shall not affect the interpretation
of this Agreement.
ARTICLE
1902
Annexes and Footnotes
The
Annexes and Footnotes to this Agreement shall form an integral part of
this Agreement.
ARTICLE
1903
Amendments
This
Agreement may be amended by agreement in writing by the Parties, and such
amendments shall enter into force on such date or dates as may be agreed
between them.
ARTICLE
1904
Application
Each
Party is fully responsible for the observance of all provisions in this
Agreement and shall take such reasonable measures as may be available
to it to ensure their observance by regional and local governments and
authorities.
ARTICLE
1905
Association with the Agreement
This
Agreement is open to accession or association, on terms to be agreed between
the Parties, by any member of the WTO, or by any other State or separate
customs territory.
ARTICLE
1906
Consultations on Inconsistencies with other Agreements
If
either Party considers there is any inconsistency between this Agreement
and any other agreement to which both Parties are parties, the Parties
shall consult each other with a view to finding a mutually satisfactory
solution.
ARTICLE
1907
Preferences under other Agreements
1.
Except for Article 908 (2), Article 917 (3) and Article 1605, nothing
in this Agreement shall be regarded as obliging a Party to extend to the
other Party the benefit of any treatment, preference or privilege arising
from any existing or any future customs union, free trade area, free trade
arrangement, common market, monetary union or similar international agreement
or other similar forms of bilateral or regional cooperation to which either
of the Parties is or may become party; or as preventing the adoption of
an agreement designed to lead to the formation or extension of such a
union, area or arrangement or market.
2. Where, by virtue of the Annex on Article II Exemptions to GATS, a Party
is exempt from the obligations of Paragraph 1 of Article II of GATS in
relation to an agreement or arrangement with a non-Party, nothing in this
Agreement shall be regarded as obliging that Party to extend to the other
Party the benefit of any treatment, preference or privilege arising from
such agreement or arrangement. This Paragraph applies whether or not the
treatment, preference or privilege under that agreement or arrangement
would itself be subject to the obligations of Paragraph 1 of Article II
of GATS except for the Annex on Article II Exemptions to GATS.
ARTICLE
1908
Termination of 1979 Trade Agreement
The
Trade Agreement Between the Government of the Kingdom of Thailand and
the Government of Australia, done at Bangkok on 5 October 1979, shall
terminate on the day of entry into force of this Agreement.
ARTICLE
1909
Financial Provisions
Any
cooperative activities envisaged or undertaken under this Agreement shall
be subject to the availability of resources and to the laws, regulations
and policies of the Parties. Costs of cooperative activities shall be
borne in such manner as may be mutually determined from time to time between
the Parties.
ARTICLE
1910
Entry into Force, Duration and Termination
1.
This Agreement shall enter into force 30 days after the date on which
the Parties have notified each other in writing that their respective
internal procedures for the entry into force of this Agreement have been
fulfilled.
2. This Agreement shall remain in force until one Party gives written
notice of its intention to terminate it, in which case this Agreement
shall terminate twelve months after the date of the notice of termination.
IN
WITNESS WHEREOF, the undersigned, being duly authorised by their respective
Governments, have signed this Agreement.
DONE in duplicate
at Canberra, this 5th day of July, two-thousand and four, in the English
language.
For
the Kingdom of Thailand |
For
Australia |
Mr.
Watana Muangsook
Minister of Commerce
|
Mr.
Mark Vaile
Minister for Trade
|
|