# EUR-Lex - 52014PC0543 - EN

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# 52014PC0543

**Proposal for a COUNCIL DECISION On the position to be taken on behalf of the European Union as regards the establishment of a list of 15 arbitrators for the Protocol on Cultural Cooperation to the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part /* COM/2014/0543 final - 2014/0251 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The Free Trade
Agreement (FTA) between the European Union and its Member States, of the one
part, and the Republic of Korea, of the other part[1] has been provisionally
applied since July 2011. The Protocol on Cultural Cooperation (hereafter: the
Protocol), concluded by the Parties within the framework of the FTA,
established a framework within which the Parties shall cooperate to facilitate
exchanges in cultural activities, goods and services, including in the
audio-visual sector, and to improve the conditions governing such exchanges.

By derogation
from the institutional provisions of the FTA, the Trade Committee shall have no
jurisdiction over the Protocol. Instead the Committee on Cultural Cooperation, established
within the framework of the Protocol and comprising senior officials from
within the administration of each Party, shall exercise all functions of the
Trade Committee as regards the Protocol, where such functions are relevant for
the purposes of implementing the Protocol. The Committee on Cultural
Cooperation met for the first time on 5 December 2013 in Brussels and the
Parties on that occasion shared information on their respective legal bases and
cultural activities.

With the
Protocol, the Parties agreed inter alia to establish an arbitration
panel of 15 individuals who are willing and able to serve as arbitrators in
case of a dispute between the Parties. Each Party must propose five individuals
to serve as arbitrators. The Parties must also select five individuals who are
not nationals of either Party and who shall act as chairperson to the
arbitration panel.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

The Member
States were consulted on several occasions through the Council's Committee for
Cultural Affairs (CAC) in order to identify possible arbitrators for dispute
settlement under the Protocol. Following the call to CAC members on 30 July
2013 seven names were proposed for EU arbitrators.

The European
Commission received the list of Korean arbitrators on 7 April 2014.

The list of non-EU
non-Korean arbitrators was established following consultations with the EU
Delegations to OECD and UNESCO (in Paris), and to the UN (in Geneva) as well as
with the Korean Party.

The arbitrators
were selected on the basis of the following criteria:

– 
Independence: not
affiliated with the government of a Party, able to serve in an individual
capacity without taking instructions from any organisation or government with
regard to matters related to the dispute. Members of governments of Parties and
officials of Union institutions cannot be considered as independent.

– 
Compliance with the Code of Conduct for Members
of Arbitration Panels and Mediators (Annex 14-C of the Free Trade Agreement).

– 
A background in international relations and/or a
degree in international law.

– 
If possible, experience in working on cultural
and audio-visual cases, ideally also in an international context.

– 
If possible, experience of acting as an
arbitrator in matters of international trade.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The procedure
for establishing the arbitration panel is provided for in Article 3bis
of the Protocol. The required steps have been taken, as detailed above.

As indicated in
Article 3bis (c) "the Committee on Cultural Cooperation shall (...)
establish a list of 15 individuals who are willing and able to serve as
arbitrators". In accordance with Article 11 of the Rules of Procedure of
the Committee on Cultural Cooperation the Committee shall adopt the Decision on
the establishment of the list of 15 arbitrators by agreement between the
Parties (see draft below).

To do so a
Council Decision is required on the position to be taken on behalf of the
European Union as regards the establishment of a list of 15 arbitrators for the
Protocol according to Article 6 of Council Decision 2011/265/EU.

4.           BUDGETARY IMPLICATION

N/A

5.           OPTIONAL ELEMENTS

N/A

2014/0251 (NLE)

Proposal for a

COUNCIL DECISION

On the position to be taken on behalf of
the European Union
as regards the establishment of a list of 15 arbitrators for the Protocol on
Cultural Cooperation to the Free Trade Agreement
between the European Union and its Member States, of the one part,
and the Republic of Korea, of the other part

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning
of the European Union, and in particular Article 167(3) in conjunction
with Article 218(9) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       On 23 April 2007 the
Council authorised the Commission to negotiate a Free Trade Agreement with the Republic of Korea on behalf of the European Union and its Member States.

(2)       Those negotiations were
concluded and the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part[2] ("the
Agreement") was signed on 6 October 2010. The Agreement contains a
Protocol on Cultural Cooperation ("the Protocol") which, according to
Article 1 thereof, sets up the framework within which the Parties cooperate for
facilitating exchanges regarding cultural activities, goods and services.

(3)       Pursuant to Article 15.10(5)
of the Agreement, it has been in part provisionally applied by Council Decision
2011/265/EU[3]
("the Decision") since 1 July 2011, pending the completion of the
procedures for its conclusion.Pursuant to Article 6 of the Decision, the
position to be taken by the Union in the Committee on Cultural Cooperation
("the Committee") on decisions having legal effects shall be
determined by the Council acting in accordance with the Treaty.

(4)       Article 3bis of the Protocol
provides that the Committee shall, promptly after its establishment, establish
a list of 15 individuals who are willing and able to serve as arbitrators.

(5)       The
 Union should determine the position to be taken as regards the establishment
of the list of arbitrators.

HAS
ADOPTED THIS DECISION:

Article 1

The position to be taken by the Union in
the Committee on Cultural Cooperation, set up by the Protocol on Cultural
Cooperation annexed to the Free Trade Agreement between the European Union and
its Member States, of the one part, and the Republic of Korea, of the other
part, as regards the establishment of the list of 15 individuals to serve as
arbitrators shall be based on the draft decision of the Committee on Cultural
Cooperation attached to this Decision.

Article 2

This Decision shall enter into force on the
date of its adoption.

Done at Brussels,

For
the Council

The
President

[1]               OJ L 127, 14.5.2011, p.6.

[2]               OJ L 127, 14.5.2011, p. 6.

[3]               Council Decision 2011/265/EU of 16 September 2010 on
the signing, on behalf of the European Union, and provisional application of
the Free Trade Agreement between the European Union and its Member States, of
the one part, and the Republic of Korea, of the other part (OJ L 127,
14.5.2011, p. 1.)

ANNEXES

to the

Proposal for a Council Decision

on the position to be taken on
behalf of the European Union as regards the establishment of a list of 15
arbitrators for the Protocol on Cultural Cooperation to the Free Trade
Agreement between the European Union and its Member States, of the one part,
and the Republic of Korea, of the other part

ANNEX 1
DRAFT DECISION No 2 OF THE EU-KOREA COMMITTEE ON CULTURAL COOPERATION

on the establishment of a list of arbitrators referred to in Article
3bis of the 
Protocol on Cultural Cooperation annexed to the Free Trade Agreement between
the European Union and its Member States, of the one part, and the Republic of
Korea, of the
other part

THE COMMITTEE ON CULTURAL
COOPERATION,

Having regard to
Protocol on Cultural Cooperation annexed to the Free Trade Agreement between
the European Union and its Member States, of the one part, and the Republic of
Korea, of the other part, signed in Brussels on 6 October
2010 ('the Parties' and 'the Protocol'), and in particular
Article 3bis thereof,

Whereas:

(1) 
The Protocol provides for a dispute settlement mechanism whereby
disputes are solved through recourse to a panel of arbitrators.

(2) 
In the event of a
dispute, the Parties shall consult in order to reach an agreement on the
composition of the arbitration panel.

(3) 
If the Parties are
unable to agree on the composition of the arbitration panel, the panel shall be
composed by drawing lots from a list of names established in accordance with Article 3bis of
the Protocol.

(4) 
The Parties have agreed on a list of 15
arbitrators,

HAS ADOPTED THIS
DECISION:

Article 1

The
list of 15 arbitrators is hereby established in accordance with Article
3bis(c) of the Protocol.  The list is set out in the Annex to this Decision.

Article 2

This
Decision shall enter into force on the date of its adoption.

Done at

For the
Committee on Cultural Cooperation

Director-General of the Directorate General for Education and
Culture

European Commission

First Vice-Minister

Ministry for Culture, Sports and Tourism of the Republic of Korea

ANNEX 2

LIST OF
ARBITRATORS

Arbitrators
proposed by the EU

· 
James BRIDGEMAN

· 
Ursula KRIEBAUM

· 
Alessandra LANCIOTTI

· 
Hélène RUIZ FABRI

· 
Jan WOUTERS

Arbitrators proposed by
Korea

· 
Byung-Chol YOON

· 
Eun Young PARK

· 
Young Jae CHO

· 
Seung-Soo CHOI

· 
Chang Hwan SHIN

Chairpersons

· 
Florentino P. FELICIANO (Philippines)

· 
Juan Antonio DORANTES (Mexico)

· 
Christian HÄBERLI (Switzerland)

· 
Leng Sun CHAN (Malaysia)

· 
Teresa CHENG (China)