Analysis of Canada-Chile Agreement on Environmental Cooperation: chapter 5


Part Five: Consultation and Resolution of Disputes

Article 22: Consultations This article allows that either Party may request consultations and seek a mutually satisfactory resolution of concerns regarding whether there has been a persistent pattern of failure by the other Party to effectively enforce an environmental law.

Article 23: Initiation of Procedures Where consultations have failed to resolve a concern within 60 days under Article 22, a special session of the Council can be requested by a Party. Council shall meet within 20 days and shall attempt to resolve the dispute promptly through any means, such as mediation or creation of expert groups.

Article 24 : Request for an Arbitral Panel This article establishes the possibility of convening an arbitral panel if the matter has not been resolved and if the alleged persistent pattern of failure to effectively enforce environmental law in areas mentioned in Article 22, is trade related.

Article 25: Roster This article calls for the establishment and maintenance of a roster of up to 30 individuals, six of whom must not be citizens of either of the Parties, who have agreed to serve as panellists and the way in which roster members are appointed . It also establishes the pre-requisites for roster members including expertise in environmental law or its enforcement and compliance with a code of conduct.

Article 26: Qualifications of Panellists This article establishes the qualifications required of panellists and the circumstances under which they may not participate in an Arbitral panel.

Article 27: Panel Selection This article states the procedures and timeframes for establishing arbitral panels of five members with a chair agreed to by both Parties. Panellists are normally selected from the roster and can be removed from a panel for violation of the code of conduct.

Article 28: Rules of Procedure This article states that the Council shall establish model rules of procedure for arbitral panels and describes the general terms of reference for panels.

Article 29: Role of Experts This article enables arbitral panels to seek information and technical advice from any person or body it deems appropriate, provided the Parties agree.

Article 30: Initial Report This article establishes the requirements and timetables for the submission of the panel's initial report. The initial report is to contain findings of fact and a determination of whether there has been a persistent pattern of failure by a Party to enforce its environmental laws as described in Article 22 and its recommendations, in the case of an affirmative determination. Panellists may furnish separate and either Party may submit written comments to the panel, a panel may subsequently request views on the comments, reconsider its report or make a further examination.

Article 31: Final Report This article establishes procedures and timeframes for presentation of the final report which is submitted to Council on a confidential basis and subsequently published.

Article 32: Implementation of Final Report This articles calls on Parties, in the case of a determination of a persistent pattern of failure to effectively enforce environmental laws in the areas described in Article 22, to agree on a mutually acceptable action plan.

Article 33: Review of Implementation This article establishes when the panel may be reconvened, such as the Parties not agreeing on an action plan or on its implementation. It also establishes the timeframes and guidelines for Parties to agree to an action plan and for a request to be made for the panel to reconvene. It also sets the determinations that can be made by a reconvened panel, which can include a monetary enforcement assessment.

Article 34: Further Proceeding This article establishes the requirements for a panel to be reconvened to determine if a Party is implementing the action plan and the timeframe for the panel to make its determination.

Article 35: Domestic Enforcement and Collection This article establishes a definition of "panel determination" and establishes the procedures in both Canada and Chile to file a panel determination with domestic courts and to undertake proceedings to enforce a panel determination. It also establishes that any change to these procedures constitute a breach of this Agreement.

Article 36: Funding of Panel Proceedings This article establishes that Parties will agree on a separate budget for each set of panel proceedings and will contribute equally.

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