FTAA - Free Trade Area of the Americas
Chapter on Dispute
107. Article 21. Establishment of a Neutral Panel
108. [A Party to a dispute may, with the consent of the other party, refer the matter to a neutral panel constituted in accordance with the provisions of this Chapter.]
109. [The request for the establishment of a neutral panel shall be made in writing, informing about the stages gone through prior to the procedure, indicating the facts and legal basis of the dispute. The provisions of the Agreement that are considered relevant, and the specific measure at issue. The other Party may not object to the establishment of the neutral panel.]
110. Unless the consulting Parties decide otherwise, [the neutral panel shall be established within [ten (10)] [fifteen (15)] days] [the Commission shall establish an neutral panel] of the [delivery of the] request. [The Parties to the dispute shall meet at the headquarters of the Secretariat or at any other location upon which the Parties agree in order to establish the neutral panel pursuant to Article XX (Establishment of the Neutral Panel). This meeting shall be held with the Party or Parties that are present.] [To this effect the request shall be sent to the DSB, which within five (5) days shall notify this to the Party or Parties in dispute, as well as the other Parties to the FTAA Agreement.]
111. [Likewise, if the 30 day period established in Article XX (Intervention of the Commission -- good offices, mediation and conciliation) expires, the neutral panel shall be established automatically and immediately. In all cases the neutral panel shall be constituted without the need for good offices, mediation or consultations to be exhausted.]
112.[A Party that [has requested consultations] [may request the establishment of a neutral panel] and that decides to refrain from participating as a complaining Party, may only participate as a third Party before such neutral panel pursuant to the provisions of Article XX (Third Parties), provided that it makes known its interest in participating as such within the period of [seven (7)] [ten (10)] days, calculated from the receipt of the request for the establishment of the neutral panel.]
113. [A Party that considers it has a substantial [trade] interest in the matter shall be entitled to join as a complaining Party by notifying the Parties to the FTAA Agreement of its intention to participate. The notification shall be made at the earliest possible time, and in any event no later than a week after the date of delivery of a request by a Party for the establishment of a neutral panel.]
114. [[The neutral panel] [the Parties to the dispute] shall determine in each case if the other Party to the FTAA Agreement has a substantial [trade] interest in the dispute]
115. [In the absence of a significant change in the [economic or] [commercial] circumstances, if a Party decides not to join as a [complaining] [third] Party, it shall [normally] refrain thereafter from initiating [or continuing] regarding the same matter:
116. a dispute settlement procedure under this Chapter [or the FTAA Agreement]; and
117. a dispute settlement proceeding under the Understanding [on Rules and Procedures Governing the Settlement of Disputes of the World Trade Organization] [or a regional agreement] [on grounds that are substantially equivalent to those available to that Party under the FTAA Agreement].
118. Unless otherwise agreed by the Parties to the dispute, the neutral panel shall be established and perform its functions in a manner consistent with the provisions of this Chapter.
119. Article 22. Roster of Panelists7
120. [To assist in the selection of members of neutral panels [the [FTAA] Secretariat] [institutional body] shall maintain an indicative list of [up to thirty (30)] [governmental and non-governmental] individuals, from which members of the neutral panels may be drawn, as appropriate.]
121. The Parties shall establish by consensus no later than _____, a roster of up to ___ persons, [five (5) of whom must not be nationals of any of the Parties,] who are willing and able to serve as panelists.
122. [To approve the Roster, the Parties shall forward to the Secretariat the names of three candidates, whether nationals or not, within three months after the entry into force of this Agreement. The Parties shall have a maximum period of thirty (30) days, from the date of notification of the proposed candidates by the Secretariat, to indicate in writing via the Secretariat their reaction to the proposed candidates. The Secretariat shall communicate to the Parties whose candidates have been vetoed reasonably for failing to meet the qualifications of Article XX (Qualifications of Panelists). These Parties shall have fifteen (15) days to present their new candidates, without prejudice to the Roster, containing the candidates who have not been vetoed pursuant to this paragraph, shall be considered approved.]
123. Roster members shall possess the qualifications stipulated in Article XX (Qualifications of Panelists).
124. Parties may periodically suggest names of individuals for inclusion on the indicative list, providing relevant information on their knowledge of international trade [and of the sectors or subject matter of the covered agreements,] and those names shall be added to the list [, after approval by the institutional body]. The list shall indicate specific areas of experience or expertise of the individuals in the sectors or subject matter of the covered agreements.
125. [The roster members [including those nominated to fill a vacancy] shall be appointed for terms of [three (3)] [five (5)] years, and may be re-appointed.]
126. Article 23. Qualifications of Panelists
127. Members of neutral panels shall:
a) have expertise or experience in law, international trade, other [matters covered by] [issues likely to arise in disputes under] the FTAA Agreement, or the resolution of disputes arising under international trade agreements;
b) be selected strictly on the basis of their objectivity, probity, reliability, sound judgment, and honesty;
c) be independent [in the exercise of their functions,] [not be affiliated with any of the Parties to the dispute or take instructions from any Party] and shall abstain from any action incompatible with the character of their position. [Governments shall therefore not give them instructions nor seek to influence them as individuals with regard to matters before a neutral panel.];
d) comply with the Code of Conduct [established in Annex XX (Code of Conduct).]
128. [Persons who have participated in any capacity in the previous stages of the procedure or who lack the necessary independence in relation to the governments of the Parties to the dispute may not act as members of the neutral panel.]
129. [Citizens of Parties whose governments are Parties to the dispute or third Parties shall not serve as members of the neutral panel concerned with that dispute, unless the Parties to the dispute agree otherwise.]
130. Article 24. Establishment of the Neutral Panel
131. The following procedures shall apply to neutral panel selection:
a) The neutral panel shall comprise [three (3)] [five (5)] members [that may not be citizens of any of the Parties to the dispute] one of whom shall act as Chair.
b) The Parties shall be informed promptly of the composition of the neutral panel.
c) [[The FTAA Secretariat] shall propose nominations for the neutral panel to the Parties to the dispute. The Parties to the dispute shall not oppose nominations except for duly justified compelling reasons.]
d) The members of the neutral panel [including its Chair] shall be selected by mutual agreement by the Parties to the dispute; [of whom ____ must be nationals of each Party and ____ must not be nationals of any of the Parties] [Each Party involved in the dispute shall select a neutral panel member from the roster provided in Article XX, within [ten (10)] [fifteen (15)] days from the date on which the DSB notified the Parties. Within the same period each of the Parties shall select, moreover, a substitute member, who will replace the regular one in case of incapacity, excuse or resignation.
e) The third member of the neutral panel shall be chosen by mutual agreement of the Parties, within ten (10) calendar days of the date on which the last of the members previously appointed has been selected, who shall be the Chair of the neutral panel. Within this same period, both Parties in dispute shall appoint a substitute for the third member.]
f) The members shall be selected [preferably] from the roster.
g) If there is no agreement on the members within [ten (10)] [fifteen (15)] [twenty (20)] [thirty (30)] days [of the establishment of the neutral panel,] [established for holding consultations,] [provided for perishable goods,] [established for good offices, mediation or conciliation,] or before the expiration of this period by mutual agreement between the Parties, the following procedure shall be followed:
132. [At the request of either Party to the dispute, the institutional body shall compose the neutral panel by appointing the members it considers most appropriate, after consulting with the Parties to the dispute. The institutional body shall inform the Parties of the composition of the neutral panel thus formed no later than ten (10) days after the date the body received such a request.]
133. [Each Party shall select a member of the neutral panel from the roster referred to in article XX (Roster of Panelists); and the third member, who shall be the Chair, shall be chosen by [lot] [by one of the Parties to the dispute chosen by lot.] The person designated as Chair of the neutral panel shall be a member of the Roster referred to in Article XX (Roster of Panelists) and shall not be a national of either of the Parties [to the dispute].] [Where the members fail to appoint a Chair within the time prescribed, the [ ] shall make the appointment within ten (10) days.]
134. [The Parties [to the dispute] shall endeavor to agree on the Chair of the neutral panel within 15 days of the [delivery] [submission] of the request for its establishment. If the Parties [to the dispute] are unable to agree [on the Chair] within this period, the Party chosen by lot, shall select, within 5 days, an individual who is not a citizen of a Party;]
135. [Within [five (5)] [fifteen (15)] days of the selection of the Chair, each Party to the dispute shall choose [one] [two] member[s] who is a national of the other Party to the dispute. Notwithstanding the above, the Parties to the dispute, by mutual agreement, may provide that the neutral panel be comprised of panelists who are not nationals of one of the Parties. If a Party to the dispute fails to select a member of the neutral panel within this period, such member shall be selected by lot from among the roster members who are citizens of the other Party to the dispute.]
136. [Each Party shall select a member of the neutral panel from the roster referred to in Article XX (Roster of Panelists), and a third member, who shall be Chair, shall be chosen by lot and may not be a citizen of any of the Parties. If any of the Parties fails to select a member of the neutral panel within the period provided, the Secretariat shall proceed to appoint the member in a period not exceeding ten (10) days. If the Parties agreed to the composition of the neutral panel, its members shall designate the Chair. If the members of the neutral panel do not reach agreement within fifteen days of the date of the establishment of the neutral panel, the Chair shall be chosen by lot.]
137. [When one of the Parties involved in the dispute has not appointed a member of the neutral panel, the member shall be chosen by lot, by the DSB, within ten (10) calendar days following the time period, among the panelists on the Roster. If there is no agreement between the Parties directly involved in the dispute to select a third member of the neutral panel, or a substitute for the member within the time period established in this Article, the DSB, within five (5) calendar days following this time period, shall proceed to choose by lot from the roster provided in Article XX (Roster of Panelists).]
138. [The person designated as Chair of the neutral panel shall not be a national of any of the Parties.]
139. Parties shall permit, as a general rule, their officials to serve on neutral panels.
140. Any Party [to the dispute] may exercise a peremptory challenge against any individual not on the Roster who is proposed as a member of the neutral panel by the other Party [to the dispute] within 15 days after the individual has been proposed.
141. If [a Party to the dispute is comprised of two or more Parties] [two or more Parties decide to participate jointly,], [one of these, selected by lot, shall represent the others with respect to the procedure established in this article.] [they shall unify their representation in the neutral panel by selecting a member by mutual agreement in the time period stipulated in this Article. If there is no agreement on selecting the member, the procedure set out in this Article shall be followed.] [Where more than two Parties are parties to a dispute, the parties concerned shall agree among themselves on the two members to be appointed from the Roster within fifteen days following the decision to refer the matter to the neutral panel and the two members shall within fifteen days of their appointment appoint a third member from the Roster who shall be the Chairman. Where no agreement is reached under paragraph X, the [.................] shall make the appointment within ten days and where the members fail to appoint a Chairman within the time prescribed the [ ] shall make the appointment within ten days. ]
142. [If a disputing Party believes that a member is in violation of the Code of Conduct, the Parties to the dispute shall consult and if they agree, the member shall be removed and a new one shall be selected in accordance with the provisions of this Article.]
143. [When a dispute is between a developing country Party and a developed country Party, the neutral panel shall, if the developing country Party so requests, include at least one member from a developing country Party.]
144. [Notwithstanding the provisions of this Article, parties to a dispute may refer the matter to arbitration and consent to the [.................] appointing a sole arbitrator from the Roster who shall not be a national of any party to the dispute.]
145. Article 25. Terms of Reference of the Neutral Panel
146. Unless the disputing Parties within [15 days after] [20 days from the date of the delivery of the request for] the establishment of the neutral panel otherwise agree, the terms of reference of the neutral panel shall be:
147. "To examine, [within three months of the establishment of the neutral panel] in the light of the relevant provisions of the FTAA Agreement [invoked by the Parties to the dispute], the matter submitted for its consideration, under the terms set forth in the request for [consultations] [the Commission meeting] [the establishment of the neutral panel] and [issue [the preliminary report] the final report] [make findings, determinations and recommendations as provided in Article XX (Initial Report) and Article XX (Final Report)].”
148. [If a Party argues that a matter has nullified or impaired benefits in the sense of Annex XX (Nullification or Impairment) the terms of reference shall so indicate.]
149.[If a Party wishes the neutral panel to make findings as to the degree of adverse trade effects of any measure adopted by another Party found not to conform with the obligations of the Agreement or to have caused nullification or impairment in the sense of Annex XX (Nullification or Impairment), the terms of reference shall so indicate.]
150. [In case the requesting party requests the establishment of a neutral panel with other than standard terms of reference, its request shall include the proposed text of special terms of reference.]
151. Article 26. Model Rules of Procedure
152. [Unless otherwise agreed by the Parties to the dispute, the proceedings before the neutral panel shall be governed by the Model Rules of Procedure established in Annex XX.]
153. [Subject to the relevant provisions of this Chapter, the neutral panel shall establish its own rules of procedure.] [The Parties to the FTAA Agreement] [The Commission] shall establish [by January 1, 2005 Model Rules of Procedure,] in accordance with the following principles:
a) the procedures shall assure a right to at least one hearing before the neutral panel as well as the opportunity to provide initial and rebuttal written submission; and
[b) One week after the selection of the last member of the neutral panel, notice shall be provided to the public of the deadline established by the neutral panel for members of the public to submit views on legal or factual issues to the neutral panel. The deadline established by the neutral panel shall permit ample time for the public to prepare submissions and for disputing Parties to respond to any such submissions. The Model Rules shall establish rules concerning the length and format for the submission of such views. [In no case shall an organization, individual or groups of individuals, on their own initiative, make at any stage of the proceedings, representations or written submissions or appear at hearings before the neutral panel.]]
154. The neutral panel shall conduct its proceedings in accordance with the Model Rules of Procedure. The disputing Parties may modify any of the provisions of the Model Rules of Procedure by mutual agreement for a particular proceeding[, except for those provisions requiring public hearings, providing for submissions by third Parties, providing opportunities for interested persons to submit views to the neutral panel, or requiring that all submissions be made available to the public.]
155. [The neutral panel shall favourably consider the request of any Party to submit views orally or in writing at all stages of the proceedings. The foregoing notwithstanding, the neutral panel shall rule on requests it considers not to be in good faith, or which is otherwise intended to frustrate the procedure.]
156. [The Commission may amend from time to time the Model Rules of Procedure established in this Article.] [The neutral panel may modify the Model Rules of Procedures for the specific case referred to it.]
157. [In this Chapter, where there is a requirement for notification to be given, such notification shall be in writing.]
158. The reports of the neutral panel [and of the Appellate Body] shall be drafted without the presence of the Parties to the dispute and in light of the information provided and the statements made.
159. Opinions expressed in the neutral panel [or the Appellate Body] report by individuals serving on the neutral panel or on the Appellate Body shall be anonymous.]
160. [Article 27. Procedures for Multiple Complainants
161. Where more than one Party to this Agreement requests the establishment of neutral panels related to the same matter, a single neutral panel may be established to examine these complaints taking into account the rights of all interested Parties concerned. A single neutral panel should be established to examine such complaints whenever feasible.
162. The neutral panel shall ensure that the rights which the disputing parties would have enjoyed had separate neutral panels examined the complaints are in no way impaired. [If one of the disputing parties so requests, the neutral panel shall submit separate reports on the dispute concerned.] The written submissions by each of the complainants shall be made available to the other complainants, and each complainant shall have the right to be present when any one of the other complainants presents its views to the neutral panel.
163. [If more than one neutral panel is established to examine the complaints related to the same matter, to the greatest extent possible the same persons shall serve as members on each of the separate neutral panels and the timetable for the neutral panel process in such disputes shall be harmonized.]]
164. [Article 28. Multiple Parties Complained Against]
165.[Article 29. Third Parties
166. The interests of the parties to the dispute and those of other FTAA Parties shall be fully taken into account during the neutral panel process.
167. If a Party that is not a disputing Party [that considers it has a substantial [trade] interest in the matter] submits a notification to the disputing Parties [and to the Parties to this Agreement] [and to the Commission] [and to the institutional body], that Party shall be entitled to [participate as a complaining Party] attend the hearings [as observer to any substantive meetings of the neutral panel with the Parties] [except when confidential factual information [designated as such by the party that has submitted it] is being examined], to be heard by the neutral panel, to make written and oral submissions to the neutral panel, [and to receive written submissions of the neutral panel, except certain confidential factual information and any submission subsequent to the initial report] [and of the disputing Parties.]
168. [The notification shall be delivered at the earliest possible time, and in any event no later than seven days after the date of delivery of a request by a Party for the establishment of a neutral panel.]
169. [ [The [neutral panel] [disputing parties] shall define in each case if the other FTAA Party has a substantial interest in the dispute.]
170. The proceedings of third Parties shall be reflected in the [initial and] final report of the neutral panel.
171. [If a Party to the FTAA that is a third party to the dispute considers that a measure already the subject of an neutral panel proceeding nullifies or impairs benefits accruing to it under the Agreement, it may have recourse to normal dispute settlement procedures under this chapter. Such a dispute shall be referred to the original neutral panel wherever possible.] ]
172. [Article 30. Representatives of the Parties to the dispute
173. The Parties to the dispute shall designate their representatives to the neutral panel.
174. All notifications made by the neutral panel to the Parties to the dispute shall be sent to the designated representatives. ]
175. [Article 31. Withdrawal or Settlement
176. At any stage of the procedure, a Party may withdraw its claim, or the Parties to the dispute may reach a settlement, thus concluding the dispute in both cases. Such withdrawal or settlement shall be communicated to the Commission or to the neutral panel, as appropriate, so that the necessary corresponding measures may be adopted.]
177. Article 32. Expert Advice
178. On request of a Party to the dispute or on its own initiative, [unless both Parties otherwise agree] the neutral panel may seek information and technical advice from any person or body that it deems appropriate [including highly qualified, independent experts in technical or scientific matters, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree].
179. [[On request of a Party to the dispute or on its own initiative, [unless both Parties otherwise agree]] [Provided that the Parties so agree] the neutral panel may request a written report from [a Scientific Review Board] [persons or institutions, including highly qualified, independent experts in technical or scientific matters] on any [technical] [factual] issue, [including concerning environmental, health, security or other scientific matters raised by a Party in a proceeding,] subject to such terms and conditions as the Parties may agree. Nothing in this article shall be construed to limit the information that a Party may choose to include in its own submissions.]
180. The persons or [groups of experts] [institutions] shall be selected by the neutral panel from among highly qualified technical personnel in their respective areas, after consultations with the Parties to the dispute and in accordance with the Model Rules of Procedure.
181. The Parties to the dispute [and third Parties] shall be provided:
a) advance notice and a reasonable period of time to provide comments to the neutral panel on the [technical ] [factual] issues to be referred to [the experts] [the Board]; and
b) a copy of the [experts’] [Board’s] report and the opportunity to provide comments on the report to the neutral panel. These comments shall be delivered to the other Party.
182. The neutral panel shall take into account this report and the comments of the Parties in the preparation of the [initial and] final report.
183. [Article 33. Groups of Experts
184. Technical advisers and groups of experts established in accordance with this Chapter shall be governed by the following rules and procedures:
a) advisers and groups of experts shall be under the authority of the Commission or of the neutral panel, as the case may be, which shall decide the terms of reference and detail the working procedures and to whom to report;
b) only persons of professional standing and experience in the field in question may serve as technical advisers or participate in groups of experts;
[c) Citizens of Parties to the dispute shall not serve as advisers or members of a Group of Experts without the consent of the other disputing Party;
d) technical advisers or groups of experts may consult and seek information from any source they deem appropriate. Before obtaining such information or advice from any source within the jurisdiction of a Party, they shall inform the government of that Party, which shall respond promptly and fully to any request addressed to it;
e) the Parties shall have access to all relevant information provided to the advisor or Group of Experts, unless it is of a confidential nature. Confidential information provided shall not be released without formal authorization from the government, organization or person providing it. Where such information is requested from an advisor or Group of Experts but release of such information by the Advisor or Group is not authorized, a non-confidential summary of the information will be provided by the government, organization or person supplying the information;
f) the report of the Group of Experts shall be advisory only; and
g) the expenses for assistance shall be borne equally by the Parties.] ]
185. [Article 34. Provisional Measures
186. [At the request of a Party to the dispute and to the extent that there are well founded presumptions that maintaining the situation would cause serious and irreparable injury to one of the Parties, the neutral panel may issue provisional measures it considers appropriate, according to the circumstances and under the conditions that the neutral panel itself establishes, in order to prevent such injury.]
187. [A neutral panel having jurisdiction and to which a dispute has been duly submitted, may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties, pending a final determination of the dispute.]
188. [The neutral panel may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations.] [Provisional measures may be modified or revoked as the circumstances justify.]
189. [The neutral panel shall order or recommend provisional measures, or any modification or revocation thereof, only after giving each party an opportunity of presenting its observations.] [Provisional measures may be prescribed, modified or revoked under this Article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard.]
190. [The Party complained against shall immediately, or in the period that the neutral panel determines, comply with any provisional measure, which shall be extended until the final report is issued.] [The parties to the dispute shall comply promptly with any provisional measures prescribed under this Article.]
191. [The neutral panel shall forthwith give notice to the parties to the dispute, and to such other Contracting parties as it considers appropriate, of the prescription, modification or revocation of provisional measures.
192. The provisions of this Article are
a) subject to Article [ ] on preliminary proceedings, and
b) without prejudice to provisions elsewhere in this chapter and this Agreement concerning situations of urgency, including those involving perishable goods.] ]
193. [Article 35. Initial Report
194. Unless the Parties to the dispute otherwise agree, the neutral panel shall, within 90 days [of the establishment of the neutral panel,] [after the last member is selected,] [or such other period as the Model Rules of Procedure established pursuant to Annex XX (Model Rules of Procedure) may provide,] present to the Parties to the dispute [and to the Third Parties] an initial report. This shall be based on the arguments and submissions of the Parties to the dispute and on any information before it pursuant to [Articles XX (Third Parties) and] Article XX (Expert Advice), unless the Parties to the dispute otherwise agree.
195. The initial report shall contain:
a) findings of fact, including any findings pursuant to a request under Article XX (Terms of Reference of the Neutral Panel), and
b) its determination as to whether the measure at issue is or would be inconsistent with the obligations of this Agreement, or cause nullification or impairment in the sense of Annex XX (Nullification or Impairment) or any other determination requested in the terms of reference; and
c) its recommendations, if any, for resolution of the dispute.
196. The members of the neutral panel may furnish separate opinions in writing on matters not unanimously agreed.
197. The Parties to the dispute [and third Parties] may submit written comments to the neutral panel on its initial report, within 14 days of the presentation thereof.
198. In such an event, and after considering such written comments, the neutral panel, on its own initiative or at the request of any Party to the dispute, may:
a) request the views of any participating Party;
b) reconsider its report; and
c) [make] [take] any further [examination] [action] that it considers appropriate.]
199. [Article 36. Jurisdiction of the Neutral Panel
200. [The Parties hereby affirm as obligatory and without need of special agreement, the jurisdiction of the neutral panel, in each case that it is established to examine and resolve disputes referred to in this Chapter.]
201. [Any neutral panel established under this chapter shall have jurisdiction over any dispute concerning the interpretation in application of the FTAA Agreement, as set out in Article XX, and which is duly submitted to such neutral panel.
202. Any neutral panel having jurisdiction as set out in the previous paragraph shall apply the FTAA Agreement and other rules of international law not incompatible with the FTAA Agreement.
203. The foregoing shall be without prejudice to the pre-existing regional or bilateral agreement already in force between the Parties to the FTAA Agreement or Parties to the FTAA Agreement, and third States or other entities, subjects of international Law.
204. The provisions of paragraph X does not prejudice the power of the neutral panel, mechanism or procedure having jurisdiction under this chapter to decide a dispute ex aequo et bono, if the parties so agree.] ]
205.[Article 37. Final Report
206. The neutral panel shall communicate to [the Secretariat, which shall communicate to] the Parties to the dispute [, to third Parties,] [and to the Commission], its final report, including any opinions explained in writing on matters not unanimously agreed, within [thirty (30)] [sixty (60)] days, of [the presentation of the initial report,] [establishment of the neutral panel] unless the Parties agree otherwise. [This period may be extended one time up to thirty (30) days.]
207 [The neutral panel, at the time it issues its final report, in addition to ruling on the matter submitted to it, shall only take into consideration the report of the scientific review board and the comments of the Parties in the preparation of this report, as well as matters related to the participation of third parties.]
208. [The Parties may submit to the institutional body any written comment on the final report as they may deem appropriate.]
209. No neutral panel may disclose in its initial or final report which members are associated with majority or minority opinions.
210. Unless otherwise agreed by the Parties to the dispute, the final report shall be published [within [thirty (30)] [fifteen (15)] days of] [immediately after] the notification to [the institutional body] [the Commission and to] the Parties to the dispute.
211. The neutral panel shall decide the dispute on the basis of the provisions of the FTAA Agreement, [the instruments signed in the framework of the FTAA Agreement,] and the principles and provisions of international law applicable to the interpretation of treaties.
212. [The provisions of this Article do not limit the authority of the neutral panel to decide the dispute
ex aequo et bono, if the Parties to the dispute so agree. ]
213. [The final report of the neutral panel shall be confined to the subjectmatter of the dispute and shall state the reasons on which it is based.]
214. [The final report shall necessarily contain the following elements, without prejudice to other elements that the neutral panel may deem appropriate:
a) indication of the Parties to the dispute;
b) the name and nationality of each of the members of the neutral panel and the date of its establishment ;
c) the names of the Parties’ representatives;
d) the matter in dispute;
e) a report of the implementation of the neutral panel procedure, including a summary of the acts carried out and the allegations of each of the Parties;
f) the decision on the dispute, detailing the factual and legal basis;
[g) the degree of adverse trade effects caused by the measure in question, when this has been so requested;]
[h) the amount of costs of the neutral panel procedure to be covered by each Party;]
i) the date and location it was issued; and
j) the signature of all members of the neutral panel.]
215. [Decisions of the neutral panel shall be taken by a majority vote of its members and shall be final and binding on the Contracting Parties, parties to the dispute.]
216. [Unless the disputing Parties agree to suspend the proceeding, the final report of the neutral panel shall be published immediately after it is transmitted to them.] ]
217. [Article 38. Clarification or Interpretation of the Final Report
218. [Any of the Parties to the dispute may request, within [fifteen (15)] [twenty (20)] days after notification of the final report, a clarification thereof or an interpretation on the manner in which implementation is to be carried out.]
219. [Where the parties cannot agree on the interpretation or implementation of the final report, either party may apply to the neutral panel for a ruling within thirty days of the final report. The term of the neutral panel shall come to an end unless an application for a ruling has been received, in which case it shall continue for such reasonable time, not exceeding thirty days, as may be required to make the ruling.]
220. [The neutral panel shall make its ruling within [fifteen (15)] [thirty (30)] days after the presentation of the request.]
221. [If the neutral panel considers that the circumstances so require, it may suspend implementation of the final report until it makes a decision on the request.]
222. Wherever possible the original neutral panel shall be convened again to clarify or interpret the final report. If the neutral panel cannot be established with the same members, the procedures pursuant to Article XX (Establishment of the Neutral Panel) shall be followed.]
7 The term “panelist” or “panel member” is used throughout this draft chapter without prejudice to the NGDS adopting another term as it advances in its discussion.