THAILAND-NEW
ZEALAND
FREE TRADE AGREEMENT
Chapter 16: Institutional Provisions
Article
16.1 Establishment of the Closer Economic Partnership Joint Commission
A
Closer Economic Partnership Joint Commission (CEP Joint Commission) shall
be established to ensure the proper implementation of this Agreement and
to review periodically the economic relationship and partnership between
the Parties. The CEP Joint Commission may meet at the level of Ministers
or senior officials, as mutually determined by the Parties. Each Party
shall be responsible for the composition of its delegation.
Article
16.2 Mandate of the Closer Economic Partnership Joint Commission
1.
The CEP Joint Commission shall:
-
(a)
review the general functioning of this Agreement;
-
(b)
review and consider specific matters related to the operation and
implementation of this Agreement;
-
(c)
consider any proposal to amend this Agreement;
-
(d)
establish, as required, permanent and ad hoc subsidiary bodies and
refer matters to them for advice and consider matters raised by all
subsidiary bodies created under this Agreement;
-
(e)
seek advice from non-governmental persons or groups on any matter
falling within its responsibilities where this would help the CEP
Joint Commission make an informed decision;
-
(f)
explore measures for the further expansion of trade and investment
between the Parties and identify appropriate areas of commercial,
industrial and technical cooperation between relevant enterprises
and organisations of the Parties; and
-
(g)
take such other action as the Parties may mutually determine.
2.
The CEP Joint Commission shall develop procedures governing the extent
to which representatives from the private sector may participate in its
deliberations.
Article
16.3 Meetings of the Closer Economic Partnership Joint Commission
1.
The CEP Joint Commission shall meet within one year of the date of entry
into force of this Agreement and then each year, or as otherwise mutually
determined by the Parties.
2.
Sessions of the CEP Joint Commission shall be held alternately in the
territory of each Party.
1.
Each Party shall designate a contact point to facilitate communications
between the Parties on any matter covered by this Agreement and for which
a contact point has not been designated under Chapter
6 , Chapter 7 , Chapter
12 or Chapter 13 of this Agreement.
2.
Upon request, the contact point shall identify the office responsible
for the matter and assist, as necessary, in facilitating communication
with the requesting Party.
1.
The Parties shall undertake a general review at ministerial level of the
Agreement, including matters relating to liberalisation, cooperation and
trade facilitation, within five years of its entry into force and at least
every five years thereafter.
2.
The conduct of general reviews shall normally coincide with regular meetings
of the CEP Joint commission.
Chapter
17: Consultations and Dispute Settlement
Article
17.1 Scope
1.
Except as otherwise provided in this Agreement, this Chapter shall apply
to the avoidance and settlement of disputes between the Parties concerning
the interpretation, implementation or application of this Agreement.
2.
Subject to Paragraph 4, and notwithstanding Paragraph 1, nothing in this
Chapter shall affect the rights of the Parties to have recourse to a dispute
settlement procedure available under any other international agreement
to which they are parties.
3.
If a Party decides to have recourse to a dispute settlement procedure
under another international agreement, it shall notify the other Party
in writing of its intention to bring a dispute to a particular forum before
doing so.
4.
Once a dispute settlement procedure has been initiated between the Parties
with respect to a particular dispute under this Chapter or under any other
international agreement to which the Parties are party, that procedure
shall be used to the exclusion of any other procedure for that particular
dispute. This paragraph does not apply if substantially separate and distinct
rights or obligations under different international agreements are in
dispute.
5.
Paragraph 4 shall not apply where the Parties expressly agree to have
recourse to dispute settlement procedures under this Chapter and another
international agreement.
6.
For the purposes of this Article, a dispute settlement procedure under
the WTO Agreement shall be regarded as initiated by a Party's request
for a panel under Article 6 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes.
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 7 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 on any matter raised in accordance with this Article.
Article
17.3 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
17.4 Request to Establish an Arbitral Tribunal
1.
If the consultations referred to in Article 17.2 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
17.5 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 17.4. 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 7 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 within the periods specified in Paragraphs 1 and 2 of this Article
the necessary appointments have not been made, either Party may, in the
absence of any other agreement, invite the President of the International
Court of Justice to make the necessary appointments. If the President
is a national of either Party or is otherwise prevented from discharging
the said function, the Vice-President shall be invited to make the necessary
appointments. If the Vice-President is a national of either Party or is
prevented from discharging the said function, the Member of the International
Court of Justice next in seniority, who is not a national of either Party,
shall be invited to make the necessary appointments.
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 judgment 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
17.6 Functions of Arbitral Tribunals
1.
An arbitral tribunal established under Article 17.4:
-
(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
17.7 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.
The responding Party shall respond fully and without undue delay.
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 17.9 (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 individual or body
which it deems appropriate. Where information or technical advice is sought
by an arbitral tribunal, the Parties may set terms and conditions on the
provision of confidential information and technical advice. The arbitral
tribunal shall provide the Parties with a copy of the information or technical
advice received and an opportunity to provide comments. Where the arbitral
tribunal takes the information or technical advice into account in the
preparation of its report, it shall also take into account any comments
by the Parties on the information or technical advice. 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
17.8 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
17.9 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 17.7 (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.
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
17.11 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 17.10
(2); or
-
(b)
the Parties are unable to agree on a mutually acceptable resolution
under Article 17.10 (3) within 30 days of the commencement of consultations
under Article 17.10 (3); or
-
(c)
the Parties have agreed on a mutually acceptable resolution under
Article 17.10 (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 arbitral 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 tribunal's award under Paragraph 3 shall be final and binding on the
Parties.
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.
Part
8
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