RESTRICTED  
  
GPA/W/335  
 
19 November 2015  
(15-6142)  Page: 1/6  
Committee on Government Procurement   
 
DRAFT DECISION ON ARBITRATION PROCEDURES PURSUANT TO 
ARTICLE XIX:8 OF THE REVISED GPA 
Draft Decision of the Committee [of 17 February 2016] 
Attached for consideration by delegations and adoption, if agreeable, at the Committee's formal 
meeting to be scheduled for 17 February 2016, is an updated draft decision of the Committee on 
arbitration procedures pursuant to Article XIX:8 of the revised GPA.  
 
As agreed in the course of the formal meetin g of the Committee held on 11 November 2015, the 
terms attached are those circulated by Canada on 10 November (negs440, Job No. 9574), with the following three revisions:  
 
 In paragraph 6., the second option has been retained (i.e. […] " be invited to make a 
written submission, attend substantive meetings of the arbitrators with the Parties to the 
arbitration, make oral statements, and be entitled to respond to questions from the 
arbitrators "). The other option and the brackets have been deleted.  
 
 In paragraph 7.f., the first option has been retained (i.e. […] " open to the public, except 
where a Party to the arbitration requests that the meeting be closed to protect information designated as confidential "). The other option and the brackets have been 
deleted. 
 
 In paragraph 12., the brackets have been deleted.  
 
In addition, the previous paragraph 8bis. has been renumbered to 9. The subsequent paragraphs 
and references to specific paragraphs in th e text have been adjusted accordingly.  
 
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  GPA/W/335 
 
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  DRAFT DECISION ON ARBITRATION PROCEDURES PURSUANT TO 
ARTICLE XIX:8 OF THE REVISED GPA 
Draft Decision of the Committee [of 17 February 2016] 
The Committee on Government Procurement ("the Committee"), 
Noting  that Article XIX:8 of the Revised Agreement on Government Procurement 
("the Agreement") requires the Committee to develop arbitration procedures to facilitate resolution of objections under Article XIX:2 of the Agreement;  and 
Confirming  the importance of Article XIX:8(b) and (c) of the Agreement to these arbitration 
procedures and reiterating the Parties' commitment to adopt decisions pursuant to Article XIX:8(b) 
and (c) of the Agreement. 
Hereby adopts  the following arbitration procedures to facilitate the resolution of objections 
under Article XIX:2 of the Agreement: 
Invocation of Arbitration Procedures 1. Pursuant to Article XIX:7 of the Agreement, where the modifying Party and an objecting 
Party are unable to resolve an objection to a pr oposed modification under Article XIX:1 of the 
Agreement, the modifying Party or any objecting Party may refer the proposed modification to arbitration, stating the reasons for its request, by notifying the Committee no earlier than 45 days 
after the date of circulation of the notification of the proposed modification under Article XIX:1 of 
the Agreement. 
2. Where two or more Parties refer the same proposed modification to arbitration prior to the 
appointment of all the arbitrators, the modifying Party and all objecting Parties shall agree to a 
single arbitration addressing all objections to the same proposed modification. If additional 
referrals on the same proposed modification are made after the appointment of all the arbitrators, the modifying Party and all objecting Parties shall agree to a single arbitration whenever feasible. 
Appointment of the Arbitrators 
3. Arbitration shall be carried out by arbitrator s. Unless the Parties to the arbitration otherwise 
agree, there shall be three arbitrators. Arbitrator s shall meet the requirements set out for panelists 
under Articles 8(1), 8(2), and 8(9) of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes. 
4. The Secretariat of the Committee
 shall on request from a Party to the arbitration, propose 
nominations for the arbitrators. The Parties to th e arbitration shall not oppose nominations except 
for compelling reasons. Citizens of the Parties to the arbitration and government officials of the 
third Parties shall not be appointed  as arbitrators, unless otherwise agreed by the Parties to the 
arbitration. 
5. Where the Parties to the arbitration cannot ag ree on who should be appointed as arbitrators 
within 20 days after referring the proposed modification to arbitration, at the request of a Party to the arbitration, the Director-General shall appoint the arbitrators within 10 days, after consulting 
Parties to the arbitration and the Chair of the Committee. GPA/W/335 
 
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  Third Party Participation 
6. Any Party to the Agreement having a substantial interest in a proposed modification brought 
to arbitration and having notified its interest to the Committee (referred to herein as "third Party") within 10 days after the proposed modification be ing referred to arbitration shall be invited to 
make a written submission, attend substantive meetings of the arbitrators with the Parties to the 
arbitration, make oral statements, and be entitled to respond to questions from the arbitrators. 
Procedures  
7. In its proceedings, the arbitrators shall appl y the relevant provisions of the Agreement and 
be guided by the decision adopted by the Committ ee in accordance with Article XIX:8(b) of the 
Agreement, once it is adopted. In addition, the following working procedures shall apply: 
a. The Secretariat of the Committee shall promptly transmit to the arbitrators the 
applicable notification and objection under paragraph 1 or 2 of Article XIX of the 
Agreement. Within 10 days of the appointment of the arbitrators, and after consultations 
with the Parties to the arbitration, the arbitrators shall adopt a timetable for the conduct 
of the arbitration proceedings. The timetable should be based on the timetable included 
in the Annex to this Decision. 
b. Unless the Parties to the arbitration agree that it is unnecessary, the arbitrators shall 
hold a substantive meeting with the Parties to the arbitration. Before the substantive 
meeting, the Parties to the arbitration shall transmit to the arbitrators written submissions in which they present the fa cts of the case and their arguments. 
c. Where a Party to the arbitration submits information that it has designated as 
confidential to the arbitrators, the arbitrat ors, the other Parties to the arbitration and 
third Parties shall treat that information as confidential. Upon request of a Party to the arbitration, the arbitrators shall establish additional procedures necessary to preserve 
the confidentiality of such information. 
d. Where a Party to the arbitration designates information in its written submissions as 
confidential, the Party shall, on request of another Party to the arbitration or a third 
Party, provide a non-confidential summary of the information contained in its submission 
that could be disclosed to the public. 
e. At the substantive meeting, the arbitrators shall ask the Party that has requested 
arbitration to present its case by making an oral submission. The Party against which the 
arbitration has been brought shall then be as ked to present its point of view by making 
an oral submission. 
f. The substantive meetings of the arbitrators sh all be open to the public, except where a 
Party to the arbitration requests that the meeting be closed to protect information 
designated as confidential. 
g. The arbitrators may, at any time, put questions to the Parties to the arbitration and third 
Parties and ask them for explanations either in the course of the meeting or in writing. 
h. The written submissions of the Parties to the arbitration, including any responses to 
questions put by the arbitrators, shall be made  available to the other Party or Parties to 
the arbitration as well as to the third Parties. The Parties to the arbitration shall submit a 
written version of their oral statements made at the meeting with the arbitrators to the 
arbitrators, the other Party or Parties to the arbitration and to the third Parties. 
i. The written submissions, responses to questions, and written versions of oral statements 
of the third Parties shall be made available to the arbitrators, the Parties to the 
arbitration and other third Parties, and shall be reflected in the arbitrators' report. 
j. The deliberations of the arbitrators shall be kept confidential. GPA/W/335 
 
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  k. The arbitrators may seek information from any relevant source and may consult experts. 
The arbitrators shall provide to the Partie s to the arbitration and third Parties any 
information provided to or received from experts. The Parties to the arbitration shall have an opportunity to comment on any input received from experts. 
l. Any additional procedures specific to th e arbitration shall be determined by the 
arbitrators in consultation with the Parties to the arbitration. 
m. Subject to paragraph 7.c., nothing in these procedures shall preclude a Party to the 
arbitration or a third Party from disclosing st atements of its own positions to the public. 
8. The Rules of Conduct for the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  shall apply to each person serving as an arbitrator under these procedures 
and, as specified in the Rules of Conduct  and the relevant provisions of the Staff Regulations, to 
those members of the Secretariat called upon to assist the arbitrators. 
9. Where Parties to the arbitration reach a mutu ally agreed solution to objections to the 
proposed modification, they shall promptly notify the arbitrators. Upon receipt of the notification , 
the arbitrators shall terminate the proceedings  for those Parties. The details of any mutually 
agreed solution shall be notified to the Committee, where any Party to the Agreement may comment. 
Arbitrators' Determination 
10. The terms of reference for the arbitrators shall require the arbitrators to determine: 
a. in the case of a proposed withdrawal under Article XIX:1(a) of the Agreement, whether 
government control or influence over the covered procurement of the entity proposed to 
be withdrawn has been effectively eliminated; or 
b. in the case of any other proposed modification under Article XIX:1(b), whether the 
proposed modification maintains a balance of rights and obligations and a comparable 
level of mutually agreed coverage provided  in the Agreement and, where appropriate, 
the level of compensatory adjustment. 
11. The arbitrators shall issue a report containing its reasoned determination to the Parties to 
the arbitration within 90 days or, in the event that the timetable is modified by the arbitrators, no 
later than 120 days of: 
a. the appointment of the arbitrators where an  arbitration is conducted pursuant to 
paragraph 1.; or 
b. the request where an arbitration is conducted pursuant to paragraph 12. 
The time period set out in this paragraph may be extended by mutual agreement of the Parties to 
the arbitration. The Secretariat of the Committee sh all promptly circulate the report to the Parties 
to the Agreement following translation. 
12. Where the arbitrators make a negative determination under paragraph 10.a., and where the 
arbitrators made no determination of compensatory adjustment under paragraph 10.b., any Party 
to the arbitration may request after 30 days and no  later than 60 days following the circulation of 
the arbitrators' report that the same arbitrator s, where available, shall determine the level of 
compensatory adjustment that would result in a comparable level of coverage and maintain the balance of rights and obligations under the Agreement. In doing so, the arbitrators shall be guided 
by the decision adopted by the Committee in accord ance with Article XIX:8(c) of the Agreement, 
once it is adopted. Where any of the original ar bitrators are not available, a replacement shall be 
appointed in accordance with paragraphs 3. to 5. 
 GPA/W/335 
 
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  Implementation 
13. The Parties to the arbitration shall accept the arbitrators' determination as final. 14. For the purposes of Article XIX:7(b)(i) of the Agreement, the arbitration procedures are 
completed: 
 
a. when a report under paragraph 11. that does not give rise to the right to further 
proceedings under paragraph 12. is circulated to the Parties to the Agreement; or 
b. where Parties to the arbitration do not ex ercise a right available to them under 
paragraph 12., upon the expiration of the time period set out in that paragraph. GPA/W/335 
 
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  ANNEX 
PROPOSED TIMETABLE FOR ARBITRATION 
The arbitrators shall base the timetable adopted under paragraph 7.a. on the following: 
 
a. Receipt of written submissions of the Parties to the arbitration: 
(1) Requesting Party: ---------- 2 weeks 
(2) Responding Party: ---------- 2 weeks 
 
b. Receipt of third party submissions:    ---------- 1 week 
c. Substantive meeting with the arbitrators:  ---------- 1-2 weeks 
d. Responses to questions to Parties and third Parties  
to the arbitration:      ---------- 1-2 weeks 
e. Issuance and circulation of the arbitrators' report  
on its determination:      ---------- 4 weeks 
Consistent with the provisions of paragraph 10., the arbitrators may change the above timetable 
and may schedule additional meetings with the Parties to the arbitration after consulting them. 
 
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