Thailand-Australia Free Trade Agreement

Chapter 18 - Consultations and Dispute Settlement

Article 1801

Scope

  1. This Chapter shall apply to the avoidance and settlement of disputes between the Parties concerning the interpretation, implementation or application of this Agreement except for Chapter 6, Chapter 12 and Chapter 15.  In relation to Chapter 11, this Chapter shall only apply to Article 1102.
  2. Subject to Paragraph 4, 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 parties, 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.

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 anarbitral tribunal established in accordance withthis 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:
    1. the specific measures at issue;
    2. the legal basis of the complaint including the provisions of this Agreement alleged to have been breached and any other relevant provisions; and
    3. 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:
    1. 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;
    2. shall be chosen strictly on the basis of objectivity, reliability, sound judgement and independence; and
    3. 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:
    1. shall consult the Parties as appropriate and provide adequate opportunities for the development of a mutually satisfactory settlement of the dispute;
    2. shall make its award in accordance with this Agreement and applicable rules of international law;
    3. shall set out, in its award, its findings of law and fact, together with its reasons; and
    4. 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:
    1. for the Party which requested the establishment of the arbitral tribunal, within 21 days after the date of the establishment of that tribunal; and
    2. 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 immediatelyenter 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 anysuch 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:
    1. the Party which requested the establishment of an arbitral tribunal has not received any notice from the other Party under Article 1810 (2); or
    2. the Parties are unable to agree on a mutually acceptable resolution under Article 1810 (3) within 30 days of the commencement of consultationsunder Article 1810 (3); or
    3. the Parties have agreed on a mutually acceptableresolution 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,
  2. 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 effectto 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.

  3. In considering what benefits to suspend under this Article:
    1. 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;
    2. 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
    3. the Party which requested the establishment of the arbitral tribunal shall aim to ensure that the level of suspension of benefits is ofequivalent effectto the non-conformity found by the tribunal.
  4. 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.
  5. If the Party complained against considers that:
    1. the level of benefits that the other Party has proposed to suspend under paragraph 2 is excessive; or
    2. it has eliminated the non-conformity found by the tribunal
  6. 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 ofexcessive suspension.
  7. 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.

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