Canada-Israel Free Trade Agreement

CHAPTER NINETEEN
DISPUTE SETTLEMENT

Section A – Dispute Settlement

Article 19.1: Cooperation

The Parties shall endeavour to come to an understanding on the interpretation and application of this Agreement, and shall attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of a matter that may affect its operation.

Article 19.2: Scope and Coverage

Except for matters arising under Chapter Seven (Sanitary and Phytosanitary Measures), Chapter Ten (Intellectual Property), Chapter Eleven (Trade and Environment), Chapter Twelve (Trade and Labour), Chapter Thirteen (Trade and Gender), Chapter Fourteen (Small and Medium-sized Enterprises), Article 15.1 of Chapter Fifteen (Conduct of Business) and Article 16.4 of Chapter Sixteen (Other Provisions), and as otherwise provided in this Agreement, the provisions of this Chapter apply with respect to the settlement of disputes between the Parties regarding the interpretation or application of this Agreement or wherever a Party considers that:

• (a) a measure of the other Party is inconsistent with one of its obligations under this Agreement;
• (b) the other Party has otherwise failed to carry out one of its obligations under this Agreement; or
• (c) there is nullification or impairment within the meaning of Annex 19.2.

Article 19.3: Choice of Forum

1. Subject to paragraph 2, a dispute regarding a matter arising under both this Agreement and the WTO Agreement or any other free trade agreement to which both Parties are party may be settled in a forum designated under the terms of one of these agreements at the discretion of the complaining Party.

2. Notwithstanding paragraph 1, if a Party complained against claims that a measure is subject to Article 1.5 (Relation to Environmental and Conservation Agreements) and requests in writing that the matter be considered under this Agreement, the complaining Party may resort only to the dispute settlement procedures in this Agreement.

3. If the complaining Party requests the establishment of a dispute settlement panel under an agreement referred to in paragraph 1, the forum selected shall be used to the exclusion of the other, unless the Party complained against makes a request pursuant to paragraph 2.

Article 19.4: Consultations

1. A Party may request in writing consultations with the other Party regarding a matter referred to in Article 19.2.

2. The Party requesting consultations shall deliver the request to the other Party, setting out the reasons for the request, identifying the measure or matter at issue under Article 19.2 and indicating the legal basis for the complaint.

3. Subject to paragraph 4, the Parties, unless they decide otherwise, shall enter into consultations within 30 days of the date of receipt of the request by the other Party.

4. In cases of urgency, including those involving a good that rapidly loses its trade value, such as perishable goods, consultations shall commence within 15 days of the date of receipt of the request by the other Party.

5. Both Parties shall make available personnel of their governmental agencies or other regulatory bodies with expertise in the subject matter of the consultations.

6. The Parties shall attempt to arrive at a mutually satisfactory resolution of the matter through consultations under this Article. To this end, each Party shall:

• (a) provide sufficient information that is reasonably available to it to the other Party to enable a full examination of the measure or matter at issue; and
• (b) treat confidential or proprietary information received in the course of consultations on the same basis as the Party providing the information.

7. Consultations, including documents prepared specifically for the purposes of consultations, are confidential and without prejudice to the rights of the Parties in proceedings under this Chapter.

8. Consultations may be held in person or by any other means that the Parties decide. If consultations are held in person, they shall take place in the territory of the Party complained against, unless the Parties decide otherwise.

Article 19.5: Good Offices, Conciliation and Mediation

1. The Parties at any time may decide to undertake an alternative method of dispute resolution, such as good offices, conciliation or mediation.

2. The Parties shall conduct alternative methods of dispute resolution according to procedures they decide.

3. Either Party at any time may begin, suspend or terminate proceedings established under this Article.

4. Proceedings involving good offices, conciliation and mediation, including documents prepared specifically for the purposes of those processes, are confidential and without prejudice to the rights of the Parties in other proceedings.

Article 19.6: Referral to a Dispute Settlement Panel

1. Unless the Parties decide otherwise, the complaining Party may refer a matter referred to in Article 19.4 to a dispute settlement panel if the matter has not been resolved:

• (a) within 55 days Of the date of receipt of the request for consultations; or
• (b) within 25 days of the date of receipt of the request for consultations for matters referred to in Article 19.4.4.

2. The complaining Party shall deliver a notice of the referral to the Coordinator of the other Party in writing, indicating the reason for the referral, identifying the specific measure or other matter at issue and providing a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

Article 19.7: Panel Appointment

1. The panel shall consist of three panellists.

2. Within 30 days of the date of receipt of the notice referred in Article 19.6, each Party shall notify the other Party of its appointment of a panellist and propose up to four candidates to serve as the chair of the panel. If a Party fails to appoint a panellist within this time, the panellist shall be appointed by the other Party from the candidates proposed for the chair by the Party that failed to appoint a panellist, if such a list exists or, in the absence of such a list, from the other Party's proposed candidates.

3. The Parties, within 45 days of the date of receipt of the notice referred to in Article 19.6, shall endeavour to decide, from among the candidates proposed, on a panellist who will serve as chair. If the Parties fail to decide on a chair within this time period, within a further seven days the chair shall be appointed after selection by lot, from the candidates proposed, in the presence of representatives of both Parties.

4. If a panellist appointed by a Party withdraws, is removed or becomes unable to serve, a replacement shall be appointed by that Party within 30 days and, in cases of urgency, within 15 days, failing which the replacement shall be appointed by the other Party from the candidates proposed for the chair in accordance with the second sentence of paragraph 2.

5. If the chair of the panel withdraws, is removed or becomes unable to serve, the Parties shall endeavour to decide on the appointment of a replacement within 30 days and, in cases of urgency, within 15 days, failing which the replacement shall be appointed in accordance with the second sentence of paragraph 3.

6. If an appointment in paragraph 4 or 5 would require selecting from the list of candidates proposed for chair and there are no remaining candidates, each Party shall propose up to three additional candidates within 30 days and, within a further seven days the chair shall be appointed after selection by lot, from the candidates proposed, in the presence of representatives of both Parties.

7. Removal of a panellist shall take place only for the reasons and according to the procedures detailed in Rules 30 through 32 of the Rules of Procedure in Annex 19.9.

8. Any time limit applicable to the proceeding shall be suspended as of the date a panellist or the chair withdraws, is removed or becomes unable to serve, and shall resume on the date the replacement is appointed.

Article 19.8: Qualifications of Panellists

1. Each panellist shall:

• (a) have expertise or experience in law, international trade or other matters covered by this Agreement, or in the settlement of disputes arising under international trade agreements;
• (b) be chosen strictly on the basis of objectivity, impartiality, reliability and sound judgment;
• (c) be independent of and not be affiliated with or employed by, or take instructions from, either Party;
• (d) be a national of states having diplomatic relations with both Parties;
• (e) comply with the Code of Conduct in Annex 19.8; and
• (f) not have been involved in an alternative dispute settlement proceeding referred to in Article 19.5 regarding the same dispute.

2. Panellists proposed to serve as chair shall not be nationals of either Party nor have their usual place of residence in either Party's territory.

3. Panellists appointed by each Party, unless otherwise decided by the Parties on a case by case basis, may be nationals of the appointing Party or have their usual place of residence in its territory.

Article 19.9: Proceedings of the Panel

1. A panel shall follow the provisions of this Chapter, including Annex 19.9. A panel, in consultation with the Parties, may establish supplementary rules of procedure that do not conflict with the provisions of this Chapter, including Annex 19.9, and ensure equal treatment between the Parties.

2. Unless the Parties decide otherwise within 15 days of the date of receipt by the Party complained against of the notice referred to in Article 19.6, the terms of reference of the panel shall be:

“To examine, in the light of the relevant provisions of the Canada – Israel Free Trade Agreement, the matter set out in the notice referred to in Article 19.6 and to make findings, determinations and recommendations as provided in Article 19.11.”

3. If the complaining Party claims that a benefit has been nullified or impaired within the meaning of Annex 19.2, the terms of reference shall so indicate.

4. If requested by a Party, the terms of reference of a panel shall include determining the degree of adverse trade effects on a Party of a measure found:

• (a) to be inconsistent with an obligation in the Agreement; or
• (b) to have caused nullification or impairment within the meaning of Annex 19.2.

5. The panel may seek information and technical advice, subject to the Rules of Procedure in Annex 19.9.

6. The panel may rule on its own jurisdiction.

7. The panel may delegate to the chair authority to make administrative and procedural decisions.

8. The panel, in consultation with the Parties, may, in light of unforeseen developments, modify a time period applicable in the panel proceedings and make other procedural or administrative adjustments required for the fairness or efficiency of the proceeding.

9. If a Party considers a matter to be a case of urgency, including a case involving a good that rapidly loses its trade value such as perishable goods, that Party may submit a reasoned request to the panel for an accelerated time period for the panel proceedings. Upon receipt of such a request, the panel shall provide the other Party with the opportunity to comment and shall issue its decision on whether the accelerated time period will apply within 10 days of the appointment of the last panellist.

10. The panel shall make its findings, determinations and recommendations under Article 19.11 by consensus or, in the event that the panel is unable to reach consensus, by a majority of its members.

11. Panellists may furnish separate opinions on matters not unanimously decided. A panel shall not disclose which panellists are associated with majority or minority opinions.

12. Unless the Parties decide otherwise, the expenses of the panel, including the remuneration of the panellists, shall be borne in equal shares by the Parties, in accordance with the Rules of Procedure in Annex 19.9.

13. All proceedings shall be conducted in the English language or in another language if the Parties decide.

Article 19.10: Panel Suspension and Termination Procedures

1. Prior to the issuance of the panel’s initial report, the complaining Party may request that the panel suspend its work for a period of time specified in the request and not exceeding 12 consecutive months. Upon receipt of this request, the panel shall suspend its work until it receives a request to resume its work from the complaining Party.

2. After the issuance of the panel’s initial report, upon the request of both the Parties, the panel shall suspend its work for a period of time specified in the request. The panel shall resume its work upon receipt of a request from either Party.

3. If there is no request for the resumption of the panel’s work by the end of the period of time specified in the request made in accordance with paragraphs 1 or 2, the proceedings shall be terminated. The termination of the panel’s work is without prejudice to the rights of either Party in another proceeding on the same matter under this Chapter.

Article 19.11: Panel Reports

1. Unless the Parties decide otherwise, the panel shall issue reports in accordance with the provisions of this Chapter, including the Rules of Procedure in Annex 19.9.

2. The panel shall base its reports on the provisions of this Agreement as interpreted and applied in accordance with customary rules of interpretation of public international law, the submissions and arguments of the Parties, and information and technical advice before it under the provisions of this Chapter.

3. The panel shall issue an initial report to the Parties within 90 days and, in cases of urgency, within 60 days, of the appointment of the last panellist. This report shall contain:

• (a) findings of fact and the basis upon which these findings were determined;
• (b) a determination and reasoning as to whether the Party complained against has complied with its obligations under this Agreement and any other finding or determination requested in the terms of reference; and
• (c) a recommendation for resolution of the dispute, if requested by a Party. This recommendation shall not include payment of monetary compensation.

4. The initial report of the panel shall be confidential.

5. A Party may submit written comments to the panel on its initial report, subject to time limits that may be set by the panel but not less than 14 days and, in cases of urgency, not less than 10 days after presentation of the initial report. After considering those comments, the panel, on its own initiative or on the request of a Party, may:

• (a) request the views of a Party;
• (b) reconsider its report; or
• (c) carry out any further examination that it considers appropriate.

6. The panel shall present to the Parties a final report within 30 days and, in cases of urgency, within 20 days of presentation of the initial report.

7. Unless the Parties decide otherwise, the final report of the panel may be published by either Party 15 days after it is presented to the Parties, subject to Rule 20(b) of the Rules of Procedure in Annex 19.9.

Article 19.12: Implementation of the Final Report

1. On receipt of the final report of a panel, the Parties shall decide on the implementation of the final report. Unless the Parties decide otherwise, the implementation shall conform with a determination or recommendation made by the panel.

2. Wherever possible, the implementation shall be the removal of a measure not conforming to this Agreement or removal of the nullification or impairment within the meaning of Annex 19.2.

3. If the Parties are unable to reach an agreement on implementation within 30 days of receipt of the final report, or within any other period as the Parties may decide, the Party complained against, if requested by the complaining Party, shall enter into negotiations with a view to agreeing on compensation.

Article 19.13: Non-Implementation – Suspension of Benefits

1. The complaining Party, subject to paragraphs 2 and 4 and following notice to the Coordinator of the other Party, may suspend the application to the other Party of benefits of equivalent effect if:

• (a) in its final report a panel determines that a measure is inconsistent with the obligations of this Agreement or that there is nullification or impairment within the meaning of Annex 19.2; and
• (b) the Parties have not been able to reach an agreement on implementation within 30 days, or such other period as the Parties may decide, of receiving the final report.

2. When a request has been made under Article 19.12.3, the complaining Party, subject to paragraph 4 and following notice to the other Party, may suspend the application to the other Party of benefits of equivalent effect only if the Parties fail to agree on compensation and 30 days, or such other period as the Parties decide, have passed since the request was made.

3. The notice referred to in paragraph 1 shall specify the level of benefits that the complaining Party intends to suspend and the date on which the suspension will take effect, and shall be provided no later than 30 days before the date on which the suspension will take effect.

4. In considering which benefits to suspend under paragraph 1:

• (a) the complaining Party should first seek to suspend benefits or other obligations in the same sector affected by the measure or other matter that the panel has found to be inconsistent with an obligation under this Agreement or to have caused nullification or impairment within the meaning of Annex 19.2; and
• (b) if the complaining Party considers it is not practicable or effective to suspend benefits or other obligations in the same sector it may suspend benefits in another sector.

5. A complaining Party may only suspend benefits temporarily, and only until the other Party has brought the inconsistent measure or other matter into conformity with this Agreement, including as a result of the panel process described in Article 19.14, or until the Parties arrive at a resolution of the dispute.

6. For the purposes of paragraph 5, “inconsistent measure or other matter” means a measure or other matter found by a panel to be inconsistent with the obligations of this Agreement or otherwise nullifying or impairing benefits within the meaning of Annex 19.2.

Article 19.14: Review of Compliance and Suspension of Benefits

1. A Party, by written notice to the other Party, may request that a panel be reconvened to make a determination regarding:

• (a) whether the level of benefits suspended by a Party under Article 19.13.1 is manifestly excessive; or
• (b) any disagreement as to the existence or consistency with this Agreement of a measure taken to comply with the determinations or recommendations of the previously established panel.

2. In the written notice of the request referred to in paragraph 1, the Party shall identify the specific measure or matter at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

3. The panel shall be reconvened when the other Party receives written notice of the request referred to in paragraph 1. In the event that a panellist is unable to serve on the reconvened panel, he or she shall be replaced under Article 19.7.4 or 19.7.5 as applicable.

4. The provisions of Articles 19.9 and 19.10, and of Annex 19.9, shall apply to procedures adopted and a report issued by a panel reconvened under this Article, with the exception that, subject to Article 19.9.8, the panel shall present an initial report within 60 days of being reconvened if the request concerns only paragraph 1(a), and otherwise within 90 days.

5. A panel reconvened under this Article may include in its report a recommendation, if appropriate, that a suspension of benefits be terminated or that the amount of benefits suspended be modified.

Section B – Domestic Proceedings and Private Commercial Dispute Settlement

Article 19.15: Referrals of Matters from Judicial or Administrative Proceedings

1. If an issue of interpretation or application of this Agreement arises in a domestic, judicial or administrative proceeding of a Party that either Party considers would merit its intervention, or if a court or administrative body solicits the views of a Party, that Party shall notify the other Party. The Commission shall endeavour to decide on an appropriate response as expeditiously as possible.

2. The Party in whose territory the court or administrative body is located shall submit any interpretation of the Commission to the court or administrative body in accordance with the rules of that forum.

3. If the Commission is unable to decide on the interpretation, each Party may submit its own views to the court or administrative body in accordance with the rules of that forum.

Article 19.16: Private Rights

A Party shall not provide a right of action under its law against the other Party on the ground that an act or omission of that other Party is inconsistent with this Agreement.

Article 19.17: Alternative Dispute Resolution

1. Each Party shall encourage and facilitate the use of arbitration and other means of alternative dispute resolution to the extent possible in order to settle international commercial disputes between private parties in the free trade area.

2. To this end, each Party shall provide appropriate procedures for the recognition of agreements to arbitrate and for the recognition and enforcement of awards in those disputes subject to the provisions of the New York Convention.

Article 19.18: Definitions

For the purposes of this Chapter:

adviser means a person retained by a Party to advise or assist the Party in connection with the panel proceeding;

assistant means, in respect of a panellist, a natural person under the direction and control of the panellist;

business confidential information means proprietary information provided by a natural person or private enterprise for the purpose of proceedings under this Chapter;

candidate means a natural person who is under consideration for appointment as a panellist of a panel;

complaining Party means a Party that requests the establishment of a panel under Article 19.6;

decision includes a determination of a question in the proceeding, including an initial, interlocutory or final decision;

expert means an expert from whom the panel seeks information and technical advice pursuant to Rule 21 of the Rules of Procedure in Annex 19.9;

former panellist means a natural person who served as a panellist on a panel;

legal holiday means every Friday, Saturday and Sunday and any other day designated by a Party as holiday for the purposes of procedures under this Chapter;

panel means a panel established under Article 19.6;

panellist means a member of a panel established under Article 19.6;

Party complained against means the Party that receives the notice of referral under Article 19.6;

proceeding means a panel proceeding under this Chapter; and

representative means an employee of, or any person appointed by, a government department or agency or of another government entity of a Party.

ANNEX 19.2
NULLIFICATION OR IMPAIRMENT

1. If a Party considers that a benefit it could reasonably have expected to accrue to it under a provision of Chapter Three (Rules of Origin), Chapter Four (National Treatment and Market Access for Goods), Chapter Five (Customs Procedures) or Chapter Six (Trade Facilitation) is being nullified or impaired as a result of the application of a measure of the other Party that is not inconsistent with this Agreement, in the sense of Article XXIII:1(b) of the GATT 1994, the Party may have recourse to dispute settlement proceedings under this Chapter.

2. A Party shall not invoke paragraph 1 with respect to a measure subject to the exception under Article 20.5 (Cultural Industries) or under Section B (a)(ii) of Annex 4.1 (Exceptions to Articles 4.1 (National Treatment), 4.2 (Import and Export Restrictions) and 4.7 (Export Taxes)).

ANNEX 19.8
CODE OF CONDUCT FOR PANELLISTS AND OTHERS ENGAGED
IN DISPUTE SETTLEMENT PROCEEDINGS
UNDER THE CANADA – ISRAEL FREE TRADE AGREEMENT

General Rule

1. A candidate and a panellist shall:

• (a) avoid impropriety and the appearance of impropriety;
• (b) be independent and impartial;
• (c) avoid direct and indirect conflicts of interests;
• (d) observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved; and
• (e) take appropriate measures to ensure that assistants and experts comply with this Code of Conduct.

2. A candidate shall not accept appointment as a panellist unless the candidate is fully satisfied of his or her ability to comply with the requirements of this Code of Conduct.

3. A panellist shall select an expert or assistant only if he or sheis fully satisfied with the ability of the expert or assistant to comply with the requirements of this Code of Conduct. The selected expert or assistant shall accept the selection only if he or she is fully satisfied of his or her ability to comply with these requirements.

Disclosure Obligations

4. A candidate shall, prior to being appointed as a panellist under Article 19.7, disclose an interest, relationship or matter that might create an appearance of impropriety or bias in the proceeding or is likely to affect the candidate’s independence or impartiality, by completing and providing to both Parties the Undertaking Form in the Appendix to this Annex. To this end, a candidate shall make reasonable efforts to become aware of any such interests, relationships and matters.

5. An expert or assistant shall, prior to accepting an invitation to participate in panel proceedings, disclose an interest, relationship or matter that might create an appearance of impropriety or bias in the proceeding or is likely to affect the assistant’s or the expert's independence or impartiality, by completing and providing to both Parties the Undertaking Form in the Appendix to this Annex. To this end, an expert or an assistant shall make reasonable efforts to become aware of any such interests, relationships and matters.

6. Without limiting the generality of the obligation in paragraphs 4 or 5, a candidate, expert or assistant shall disclose the following interests, relationships and matters:

• (a) for the candidate, expert or assistant, or the candidate’s, expert's or assistant’s employer, partner, business associate or family member:
  • (i) a direct or indirect financial, business, property, professional or personal interest:
    • (A) in the proceeding or in its outcome, and
    • (B) in an administrative proceeding, a domestic court proceeding, or another panel or committee proceeding that involves an issue that may be decided in the proceeding for which the candidate, expert or assistant is under consideration, and
  • (ii) a past or existing financial, business, professional, family or social relationship with a party that has an interest in the proceeding or their counsel; and
• (b) for the candidate, expert or assistant: public advocacy, including public statements of personal opinion, or legal or other representation concerning an issue in dispute in the proceeding or involving the same type of good, service, investment, or government procurement.

7. A candidate, expert or assistant is not required to identify interests, relationships, or matters that are unlikely to affect his or her independence or impartiality or that are unlikely to create an appearance of impropriety or bias in the proceeding. Disclosure obligations shall be interpreted and applied in the light of the need to respect the personal privacy of candidates, experts and assistants.

8. Once selected, a panellist, expert or assistant shall continue to make all reasonable efforts to become aware of an interest, relationship or matter referred to in paragraphs 4, 5 or 6. A panellist, expert or assistant shall disclose any new relevant information in writing to the Parties as soon as they become aware of that information.

9. A candidate, panellist, expert or assistant shall not communicate matters concerning actual or potential violations of this Code of Conduct unless the communication is to both Parties or is necessary to ascertain from a third party whether that candidate, panellist, expert or assistant has violated or may violate this Code of Conduct.

10. Disclosures made pursuant to this Code of Conduct do not determine whether or under what circumstances the Parties will disqualify:

• (a) a candidate or panellist from being appointed to or serving as a member of a panel; or
• (b) an expert or assistant from participating in panel proceedings.

Performance of Duties

11. A panellist shall be available to perform, and shall perform, his or her duties thoroughly and expeditiously throughout the course of the proceeding.

12. A panellist shall carry out his or her duties fairly and diligently.

13. A panellist shall consider only those issues raised in the proceeding and necessary for a ruling, and shall not delegate the duty to another person, except as provided in the Rules of Procedure.

14. A panellist shall ensure that he or she can be contacted at all reasonable times to conduct business relating to the proceeding.

Independence and Impartiality of Panellists, Experts and Assistants

15. A panellist, expert or assistant must be independent and impartial and avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party or fear of criticism.

16. A panellist, expert or assistant shall not, directly or indirectly, incur an obligation or accept a benefit that would interfere, or reasonably appear to interfere, with the proper performance of the panellist’s, expert’s or assistant’s duties.

17. A panellist , expert or assistant shall not use his or her involvement in panel proceedings to advance a personal or private interest and shall avoid conduct that may create the reasonable impression that others are in a special position to influence him or her.

18. A panellist or assistant shall not allow financial, business, professional, family or social relationships or responsibilities to influence his or her conduct or judgement.

19. An expert shall not allow financial, business, professional, family or social relationships or responsibilities to influence or impair his or her impartiality or independence in the performance of his or her duties concerning an issue in dispute in the proceedings.

20. A panellist, expert or assistant shall avoid entering into a relationship or acquiring a financial interest that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or bias.

21. A panellist shall not engage in ex parte contacts concerning the proceeding.

22. A panellist or assistant shall exercise his or her position without accepting or seeking instructions from any international, governmental or non-governmental organisation or any private source. The panellist, expert or assistant shall not have intervened in any previous stage prior to the proceedings unless otherwise decided by the Parties.

23. A natural person acting as an expert in his or her own capacity shall exercise his or her duties without accepting or seeking instructions from any international, governmental or non-governmental organisation or any private source concerning an issue in dispute in the proceedings.

Obligations of Former Panellists, Experts and Assistants

24. A former panellist, expert or assistant shall avoid conduct that may create the appearance that the former panellist, expert or assistant was biased in carrying out his or her duties or derived advantage from the decision or ruling of the panel.

Confidentiality

25. A candidate, panellist, former panellist, expert or assistant shall not:

• (a) disclose or use confidential information concerning the proceeding, or acquired during the proceeding, except for the purposes of the proceeding or except as required by law;
• (b) disclose a panel ruling or part of a ruling prior to its publication in accordance with Article 19.11.7;
• (c) make a public statement about the proceeding; or
• (d) disclose the issues in dispute, the deliberations of the panel or a panellist's view.

26. In case the disclosure referred to in paragraph 25(a) is required by law, the candidate, panellist, former panellist, expert or assistant shall provide sufficient advance notice to the Parties and the disclosure shall not be broader than necessary to satisfy the legitimate purpose of the disclosure.

Good Offices, Conciliation, and Mediation

27. In the event of recourse to Article 19.5, the Parties shall determine which provisions of this Code of Conduct shall apply.

APPENDIX TO ANNEX 19.8
UNDERTAKING FORM FOR USE BY PANELLISTS
AS WELL AS ASSISTANTS AND EXPERTS PARTICIPATING
IN PANEL PROCEEDINGS

Canada-Israel Free Trade Agreement

Undertaking

In the Matter of Proceeding (title)

I have read the Code of Conduct for Dispute Settlement Procedures for the Canada-Israel Free Trade Agreement^{Footnote 1} and affirm that I comply with the standards set out in that Code of Conduct.

To the best of my knowledge there is no reason why I should not accept appointment as a panellist /assistant/ expert in this proceeding.

The following matters could potentially be considered to affect my independence or impartiality, or might create an appearance of impropriety or an apprehension of bias in the proceeding:

(Set out the details of any interests covered by paragraphs 4 and 5 and, in particular, all relevant information covered by paragraph 6.)

I recognise that, once appointed, I have a continuing duty to uphold all obligations specified in this Code of Conduct, including to make all reasonable efforts to become aware of any interest, relationship or matter referred to in this Code of Conduct that may arise during any stage of the proceeding. I will disclose in writing any applicable interest, relationship or matter to the Parties as soon as I become aware of it.

Signature

Name

Date

ANNEX 19.9
RULES OF PROCEDURE

Application

1. The following rules of procedure apply to a dispute settlement proceeding under Chapter Seventeen of this Agreement, unless the Parties decide otherwise.

Administration of Proceedings

2. The Party in whose territory the proceedings take place shall be in charge of the logistical administration of dispute settlement proceedings, in particular the organisation of hearings, unless the Parties decide otherwise.

Written Submissions and Other Documents

3. Each Party shall deliver the original and a minimum of three copies of any written submission to the panel and one copy to the Coordinator of the other Party. Delivery of submissions and any other document related to the panel proceeding may be made by electronic mail or, if the Parties decide, by other means of electronic transmission, that provides a record of its sending. When a Party delivers physical copies of written submissions or any other document related to the panel proceeding, that Party shall deliver at approximately the same time an electronic version of the submissions or other documents.

4. The complaining Party shall deliver an initial written submission no later than 10 days after the date on which the last panellist is appointed. The Party complained against, in turn, shall deliver a written counter-submission no later than 25 days after the date on which the initial written submission of the complaining Party is due.

5. The panel, in consultation with the Parties, shall establish dates for the delivery of the subsequent written rebuttal submissions of the Parties and any other written submissions that the panel determines are appropriate.

6. At any time, a Party may correct minor errors of a clerical nature in any written submission or other document related to the panel proceeding by delivering a new document clearly indicating the changes.

7. If the last day for delivery of a document falls on a legal holiday observed by either Party or on another day on which the government offices of either Party are closed by order of the government or by force majeure, the document may be delivered on the next business day.

Operation of Panels

8. The chair shall preside at all of the panel’s meetings.

9. The panel may conduct its business by any appropriate means, including by telephone, facsimile transmission and video or computer links.

10. The panel, in consultation with the Parties, may employ:

• (a) an assistant, interpreter, translator or stenographer as it requires to carry out its functions; and
• (b) an additional reasonable number of such natural persons it deems necessary for the proceedings.

11. Only panellists may take part in the deliberations of the panel. The panel may, in consultation with the Parties, permit the natural persons employed by the panel to be present during the panel’s deliberations.

12. The panellists and the natural persons employed by the panel shall maintain the confidentiality of the panel’s deliberations and any information that is protected under Rule 20 and paragraphs 25 and 26 of Annex 19.8.

Hearings

13. In every dispute arising under Chapter Nineteen of this Agreement, there shall be at least one hearing. The panel may convene additional hearings in consultation with the Parties.

14. The chair shall fix the date and time of the initial hearing and any subsequent hearing in consultation with the Parties and the panellists, and then notify the Parties in writing of those dates and times.

15. Unless the Parties decide otherwise, the hearings shall take place in the territory of the Party complained against.

16. No later than five days before the date of a hearing, each Party shall deliver to the other Party and the panel a list of the names of the persons who will be present at the hearing on behalf of that Party and of other representatives or advisers who will be attending the hearing.

17. Panels shall normally afford the complaining Party and the Party complained against equal time for arguments, replies and counter replies.

18. The panel shall arrange the preparation of hearing transcripts, if any, and shall, as soon as possible after these transcripts are prepared, deliver a copy to each Party.

19. Unless the Parties decide otherwise, hearings shall be open to the public, except as necessary to protect information designated by either Party under Rule 20 for confidential treatment. The panel shall, in consultation with the Parties, adopt appropriate logistical arrangements and procedures to ensure that hearings are not disrupted by the attendance of the public. These procedures may include, among other things, the use of live web-broadcasting or of closed-circuit television.

20. The Parties, their advisers and representatives shall maintain the confidentiality of the panel's initial report, and all written submissions to, and communications with, the panel, in accordance with the following procedures:

• (a) a Party may make available to the public at any time its own written submissions;
• (b) each Party shall ensure that information designated by either Party for treatment as confidential information, in particular business confidential information, is protected;
• (c) a Party shall, upon request of the other Party, provide a non-confidential version of its written submissions, transcript of oral statements and written responses to requests or questions from the panel that may be made available to the public; and
• (d) each Party shall take such reasonable steps as necessary to ensure that its experts, interpreters, translators, court reporters and other persons involved in the panel proceedings maintain the confidentiality of the panel proceedings.

Role of Experts

21. At the request of a Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, subject to Rules 22 through 27 and additional terms and conditions as the Parties may decide. The requirements set out in Article 19.8.1(b), (c), (e) and (f) shall apply to the experts as appropriate.

22. Before the panel seeks information or technical advice, it shall notify the Parties of its intention to seek information or technical advice under Rule 21 and the reasons for seeking it. In addition, the panel shall identify the expert from whom the information or technical advice is sought. The panel shall provide the Parties with an adequate period of time to submit comments and take into consideration these comments.

23. The panel shall only seek information or technical advice relating to the factual or legal issues before it.

24. The panel shall set a reasonable time limit for the submission of the information or the technical advice under Rule 21, which shall normally be no longer than 60 days.

25. If information or technical advice is sought under Rule 21, the panel may suspend any time limit applicable to the panel proceedings until the date the information or the technical advice is delivered to the panel.

26. The panel shall provide the Parties with a copy of any information or technical advice received under Rule 21 and provide them with an adequate period of time to submit comments.

27. If the panel takes into consideration the information or technical advice received under Rule 21 for the preparation of its report, it shall also take into consideration any comments or observations submitted by the Parties with respect to that information or technical advice.

Burden of Proof

28. A complaining Party asserting that a measure of the other Party is inconsistent with the provisions of this Agreement shall have the burden of establishing that inconsistency. If the Party complained against asserts that a measure is subject to an exception or exemption under this Agreement, it shall have the burden of establishing that the exception or exemption applies.

Ex Parte Contacts

29. The panel shall not meet with or contact a Party in the absence of the other Party. Subject to Article 19.9.7, a panellist shall not discuss any aspect of the subject matter of the proceeding with the Parties in the absence of the other panellists.

Removal of a panellist

30. If a Party considers that a panellist or the chair is not in compliance with the requirements of the Code of Conduct and for this reason must be replaced, that Party shall immediately notify the other Party. Upon receipt of this notice, the Parties shall consult and, if they so decide, shall replace the panellist or the chair and select a replacement using the procedure set out in Article 19.7.4 or 19.7.5 and, if necessary, Article 19.7.6.

31. If the Parties fail to decide on the need to replace a panellist, either Party may request that the matter be referred to the chair of the panel, whose decision shall be final. The chair shall render a decision within 10 days of the request. If the chair decides that the panellist should be replaced, a replacement shall be selected using the procedure set out in Article 19.7.4 and, if necessary, Article 19.7.6.

32. If the Parties fail to decide on the need to replace the chair, either Party may request that the matter be referred to the two remaining panellists, whose decision shall be final. The panellists shall render a decision within 10 days of the request. If the panellists decide that the chair should be replaced, or if the panellists cannot reach a decision within the 10 days of the request, a replacement shall be selected using the procedure set out in Article 19.7.5 and, if necessary, Article 19.7.6.

Remuneration and Payment of Expenses

33. For the purposes of Article 19.9.12:

• (a) the amount of remuneration of the panel shall be set by the Joint Commission in accordance with Article 18.1.3(e) (Joint Commission); and
• (b) the expenses of the panel include travel and lodging expenses and all general expenses of the panellists and experts appointed by the panel.

34. Each panellist shall keep a record and render a final account to the Parties of their time and expenses. The chair of the panel shall keep a record and render a final account to the Parties of all general expenses.

Amicus Curiae Submissions

35. Unless otherwise decided by the Parties, a panel may, on application, grant leave to a non-governmental person of a Party to file a written submission. An application for leave to file a written submission shall conform to the requirements of paragraph 2 of the Appendix to this Annex. In making its decision to grant leave, the panel shall consider, among other things:

• (a) whether there is a public interest in the proceeding;
• (b) whether the non-governmental person has a substantial interest in the proceeding, which requires establishing more than an interest in the development of trade law jurisprudence, the interpretation of this Agreement, or in the subject matter of the dispute;
• (c) whether the written submission would assist the panel in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the Parties; and
• (d) any submissions by the Parties on the application for leave.

36. If the panel has granted leave to a non-governmental person to file a written submission, the panel shall ensure that:

• (a) the written submission conforms to the requirements in paragraph 6 of the Appendix to this Annex;
• (b) the written submission does not introduce new issues to the dispute, is within the terms of reference of the dispute as defined by the Parties, and addresses only the issues of fact and law that the non-governmental person described in its application for leave;
• (c) the written submission avoids disrupting the proceeding and preserves the equality of the Parties; and
• (d) the Parties have the opportunity to respond to the written submission.

APPENDIX TO ANNEX 19.9
PROCEDURES APPLICABLE TO WRITTEN SUBMISSIONS
BY A NON-GOVERNMENTAL PERSON

1. A non-governmental person of a Party that wishes to file a written submission with a panel may apply for leave from the panel to file a submission within 20 days after the last panel member is selected.

2. The application for leave must:

• (a) contain a description of the non-governmental person, including, as applicable, a statement of its membership, ownership, legal status, general objectives and the nature of its activities;
• (b) identify the specific issues of fact and law the non-governmental person will address in its submission;
• (c) explain how the non-governmental person’s submission would assist the panel in the determination of a factual or legal issue related to the dispute by bringing a perspective, particular knowledge or insight that is different from that of the Parties; and
• (d) contain a statement disclosing:
  • (i) whether the non-governmental person has or had any relationship, direct or indirect, with a Party, or
  • (ii) whether the non-governmental person received or will receive anyassistance, financial or otherwise, in the preparation of the entity’s application for leave or its submission, and
  • (iii) if the non-governmental person has received any assistance referred to in sub-paragraph (ii), the Party or person providing the assistance and the nature of that assistance;
• (e) be made in writing, dated and signed by the non-governmental person, and include the address and other contact details of the entity;
• (f) be no longer than five double-spaced typed pages, including any appendices;
• (g) be made in the English language or in another language if the Parties decide, consistent with Article 19.9.13; and
• (h) be delivered to the Parties and the Panel.

3. The panel shall set an appropriate date by which the Parties may comment on the application for leave.

4. The panel shall review the application for leave, together with any comments made by the Parties. The panel shall then, without delay, decide whether to grant the non-governmental person leave to file a written submission.

5. If leave is granted, the panel shall set the date for delivery of the non-governmental person’s written submission, and the date for delivery of any responses to that submission by the Parties. The panel shall set all of those dates prior to the date of the initial hearing set under Rule 14.

6. The written submission of the non-governmental person must:

• (a) be dated and signed by the non-governmental person;
• (b) be no longer than 20 double-spaced typed pages, including any appendices;
• (c) address only the issues of fact and law that the non-governmental person described in its application for leave ;
• (d) be made in a language notified by a Party in accordance with Article 19.9.13; and
• (e) be delivered to the Parties and the panel.

7. A panel is not required to address in its report any issue raised in a written submission by a non-governmental person.