Common use of Non-Implementation - Suspension of Benefits Clause in Contracts

Non-Implementation - Suspension of Benefits. 1. If no satisfactory compensation or any alternative arrangement has been agreed pursuant to paragraph 5 of Article 218 within 20 days after the date of expiry of the implementation period as determined pursuant to paragraphs 2 through 4 of Article 218, the complaining Party may notify the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement. 2. If the arbitral tribunal to which the matter is referred pursuant to paragraph 6 of Article 218 confirms that the Party complained against has failed to comply with the award within the implementation period as determined pursuant to paragraphs 2 through 4 of Article 218, the complaining Party may, within 30 days after the date of such confirmation by the arbitral tribunal, notify the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations under this Agreement. 3. The suspension of the application of concessions or other obligations under paragraph 1 or 2 may only be implemented at least 30 days after the date of the notification in accordance with the applicable provisions of this Article. Such suspension shall: (a) not be effected if, in respect of the dispute to which the suspension relates, consultations or proceedings before the arbitral tribunal are in progress; (b) be temporary, and be discontinued when the Parties reach a mutually satisfactory resolution or where compliance with the award is effected; (c) be restricted to the same level of nullification or impairment that is attributable to the failure to comply with the award; and (d) be restricted to the same sector or sectors to which the nullification or impairment relates, unless it is not practicable or effective to suspend the application of concessions or obligations in such sector or sectors. 4. If the Party complained against considers that the requirements for the suspension of the application to it of concessions or other obligations under this Agreement by the complaining Party set out in paragraph 1, 2 or 3 have not been met, it may request consultations with the complaining Party. The complaining Party shall enter into consultations within 10 days after the date of receipt of the request. If the Parties fail to resolve the matter within 30 days after the date of receipt of the request for consultations pursuant to this paragraph, the Party complained against may refer the matter to an arbitral tribunal, which then shall determine whether such requirements have been met. 5. Notwithstanding subparagraph 1(e) of Article 210, the arbitral tribunal that is established for the purposes of Article 218 and this Article shall, wherever possible, have, as its arbitrators, the arbitrators of the original arbitral tribunal. If this is not possible, the arbitrators to the arbitral tribunal that is established for the purposes of Article 218 and this Article shall be appointed pursuant to paragraph 1 of Article 210. Unless the Parties agree on a different period, the arbitral tribunal established under Article 218 and this Article shall issue its award within 60 days after the date when the matter is referred to it. Such award shall be binding on the Parties.

Non-Implementation - Suspension of Benefits. 1. If no satisfactory compensation or any alternative arrangement a panel has been agreed made a determination of the type described in Article 21.15.2, and the disputing Parties are unable to reach agreement on a resolution pursuant to paragraph 5 Article 21.15 within 45 days of Article 218 receiving the final report, or such other period as the disputing Parties agree, the Party complained against shall enter into negotiations with the complaining Party or Parties with a view to developing mutually acceptable compensation. 2. If the disputing Parties: 21-8 (a) are unable to agree on compensation within 20 30 days after the date of expiry period for developing such compensation has begun; or (b) have agreed on compensation or on a resolution pursuant to Article 21.15 and a complaining Party considers that the Party complained against has failed to observe the terms of the implementation period as determined pursuant to paragraphs 2 through 4 of Article 218agreement, the any such complaining Party may notify at any time thereafter provide written notice to the Party complained against that it intends to suspend the application to the Party complained against of concessions or other obligations benefits of equivalent effect. The notice shall specify the level of benefits that the Party proposes to suspend. 3 Subject to paragraph 5, the complaining Party may begin suspending benefits 30 days after the later of the date on which it provides notice under this Agreementparagraph or the panel issues its determination under paragraph 3, as the case may be. 23. If the arbitral tribunal to which the matter is referred pursuant to paragraph 6 of Article 218 confirms that the Party complained against considers that: (a) the level of benefits proposed to be suspended is manifestly excessive; or (b) it has failed to comply with eliminated the award within non-conformity or the implementation period as determined pursuant to paragraphs 2 through 4 of Article 218nullification or impairment that the panel has found, the complaining Party it may, within 30 days after the date complaining Party provides notice under paragraph 2, request that the panel be reconvened to consider the matter. The Party complained against shall deliver its request in writing to the complaining Party. The panel shall reconvene as soon as possible after delivery of such confirmation the request and shall present its determination to the disputing Parties within 90 days after it reconvenes to review a request under subparagraph (a) or (b), or within 120 days for a request under subparagraphs (a) and (b). If the panel determines that the level of benefits proposed to be suspended is manifestly excessive, it shall determine the level of benefits it considers to be of equivalent effect. In determining the level of benefits that may be suspended, the panel shall take into account any findings by the arbitral tribunalpanel on the level of adverse trade effects if a request for such findings was made under Article 21.10.6. 4. The complaining Party may suspend benefits up to the level the panel has determined under paragraph 3 or, notify if the panel has not determined the level, the level the complaining Party has proposed to suspend under paragraph 2, unless the panel has determined that the Party complained against that it intends has eliminated the non-conformity or the nullification or impairment. 5. In considering what benefits to suspend the application pursuant to the Party complained against of concessions or other obligations under this Agreement. 3. The suspension of the application of concessions or other obligations under paragraph 1 or 2 may only be implemented at least 30 days after the date of the notification in accordance with the applicable provisions of this Article. Such suspension shall2: (a) not be effected if, the complaining Party should first seek to suspend benefits in respect of the dispute to which the suspension relates, consultations or proceedings before the arbitral tribunal are in progress; (b) be temporary, and be discontinued when the Parties reach a mutually satisfactory resolution or where compliance with the award is effected; (c) be restricted to the same level of nullification or impairment that is attributable to the failure to comply with the award; and (d) be restricted to the same sector or sectors as that affected by the measure or other matter that the panel has found to 3 For greater certainty, the phrase "the level of benefits that the Party proposes to suspend" refers to the level of concessions under the Agreement the suspension of which a complaining Party considers will have an effect equivalent to that of the disputed measure. be inconsistent with the obligations of this Agreement or to have caused nullification or impairment relates, unless in the sense of Article 21.2; and (b) if the complaining Party considers that it is not practicable or effective to suspend benefits in the application of concessions or obligations in such same sector or sectors. 4. If the Party complained against considers that the requirements for the suspension of the application to it of concessions or other obligations under this Agreement by the complaining Party set out in paragraph 1, 2 or 3 have not been met, it may request consultations with the complaining Partysuspend benefits in other sectors. 6. The complaining Party shall enter into consultations within 10 days after the date of receipt of the request. If the Parties fail to resolve the matter may not suspend benefits if, within 30 days after it provides written notice of intent to suspend benefits or, if the date of receipt of panel is reconvened under paragraph 3, within 20 days after the request for consultations pursuant to this paragraphpanel provides its determination, the Party complained against may refer provides written notice to the matter complaining Party that it will pay an annual monetary assessment. The disputing Parties shall consult, beginning no later than 10 days after the Party complained against provides notice, with a view to reaching agreement on the amount of the assessment. If the disputing Parties are unable to reach an arbitral tribunal, which then shall determine whether such requirements have been met. 5. Notwithstanding subparagraph 1(e) of Article 210agreement within 30 days after consultations begin, the arbitral tribunal that is established for the purposes of Article 218 and this Article shall, wherever possible, have, as its arbitrators, the arbitrators amount of the original arbitral tribunal. If this is not possible, the arbitrators to the arbitral tribunal that is established for the purposes of Article 218 and this Article assessment shall be appointed pursuant set at a level, in U.S. dollars, equal to 50 percent of the level of the benefits the panel has determined under paragraph 1 3 to be of Article 210equivalent effect or, if the panel has not determined the level, 50 percent of the level that the complaining Party has proposed to suspend under paragraph 2. 7. Unless the Parties agree on Commission otherwise decides, a different periodmonetary assessment shall be paid to the complaining Party in U.S. dollars, or in an equivalent amount of the arbitral tribunal established under Article 218 and this Article shall issue its award within currency of the Party complained against, in equal, quarterly installments beginning 60 days after the date when Party complained against gives notice that it intends to pay an assessment. Where the matter is referred to it. Such award circumstances warrant, the Commission may decide that an assessment shall be binding on paid into a fund established by the PartiesCommission and expended at the direction of the Commission for appropriate initiatives to facilitate trade between the disputing Parties including by further reducing unreasonable trade barriers or by assisting a disputing Party in carrying out its obligations under this Agreement.