DECISION No 1/2021 OF THE CETA JOINT COMMITTEE

of 29 January 2021

setting out the administrative and organisational matters regarding the functioning of the Appellate Tribunal [2021/264]

THE CETA JOINT COMMITTEE,

Having regard to Article 26.1 of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part (the ‘Agreement’),

Whereas Article 8.28.7 of the Agreement provides that the CETA Joint Committee is to adopt a decision setting out the administrative and organisational matters regarding the functioning of the Appellate Tribunal,

HAS ADOPTED THIS DECISION:

the definitions in Article 1.1 (Definitions of general application) of Chapter One (General definitions and initial provisions) of the Agreement;

Article 2

Composition and administrative arrangements

1. The Appellate Tribunal shall be composed of six Members appointed by the CETA Joint Committee with a view to the principles of diversity and gender equality. For the purposes of this appointment: (a) two Members shall be selected from nominations proposed by Canada; (b) two Members shall be selected from nominations proposed by the European Union; and (c) two Members shall be selected from nominations proposed by Canada or the European Union, and shall not be nationals of either Canada or any Member State of the European Union.

2. The CETA Joint Committee may decide to increase the number of Members by multiples of three. Additional appointments shall be made on the same basis as provided for in paragraph 1 of this Article.

3. Members shall be appointed for a nine-year non-renewable term. However, the terms of three of the first six Members appointed pursuant to Article 8.28.3 of the Agreement shall be limited to six years. Those three Members shall be determined by lot with one Member selected from each of the groups of Members appointed pursuant to subparagraphs 1(a), 1(b) and 1(c) of this Article. In principle, a Member serving on a division of the Appellate Tribunal when his or her term expires may continue to serve on the division until the closure of the proceedings of that division, unless the President of the Appellate Tribunal, after consulting with the other Members of the division, decides otherwise, and shall, for that purpose only, be deemed to continue to be a Member. Vacancies in the Appellate Tribunal shall be filled as they arise.

4. The Appellate Tribunal shall have a President and Vice-President responsible for organisational issues, who shall be selected by lot by the Chair of the CETA Joint Committee for a two-year term from among the Members who are nationals of third countries. They shall serve on the basis of a rotation. The Vice-President shall replace the President when the President is unavailable.

5. The division of the Appellate Tribunal constituted to hear each case under Article 8.28.5 of the Agreement shall consist of three Members, of whom one Member has been appointed pursuant to subparagraph 1(a) of this Article, one Member has been appointed pursuant to subparagraph 1(b) of this Article and one Member has been appointed pursuant to subparagraph 1(c) of this Article. The division shall be chaired by the Member who has been appointed pursuant to subparagraph 1(c) of this Article.

6. The composition of the division of the Appellate Tribunal hearing each appeal shall be established in each case by the President of the Appellate Tribunal on a rotation basis, ensuring that the composition of the divisions is random and unpredictable, while giving equal opportunity to all Members to serve.

7. The Appellate Tribunal may sit in a division of six Members where a case pending before a division raises a serious question affecting the interpretation or application of Chapter Eight (Investment) of the Agreement. The Appellate Tribunal shall sit in a division of six Members when both disputing parties so request or where a majority of Members decides that it is desirable. The President of the Appellate Tribunal shall preside over the division of six Members.

8. The Appellate Tribunal may draw up its own working procedures.

9. Members shall ensure that they are available and able to perform the functions set out under this Decision and under Section F (Resolution of investment disputes between investors and states) of Chapter Eight (Investment) of the Agreement.

10. In order to ensure their availability, Members shall be paid a monthly retainer fee to be determined by the CETA Joint Committee.

11. The fees referred to in paragraph 10 of this Article shall be paid equally by both Parties into an account managed by the ICSID Secretariat. In the event that one Party fails to pay the retainer fee, the other Party may elect to pay. Any such arrears will remain payable, with appropriate interest.

12. The fees and expenses of Members on a division constituted to hear a claim, other than the fees referred to in paragraph 10 of this Article, shall be determined by the CETA Joint Committee and allocated among the disputing parties on the same basis as Article 8.39.5 of the Agreement.

13. Upon a decision by the CETA Joint Committee, the retainer fee and the fees for days worked may be transformed into a regular salary. In such an event, Members shall serve on a full-time basis and the CETA Joint Committee shall fix their remuneration and related organisational matters. In that event, the Members shall not be permitted to engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the President of the Appellate Tribunal.