CHILE – MEASURES AFFECTING THE TRANSIT AND IMPORTATION OF SWORDFISH
Document: Joint Communication from the European Union and Chile
Date: 3 June 2010
Document codes: WT/DS193/4; G/L/367/Add.1
Complainant: New Zealand
Respondent: Australia
Third parties: Chile, EU, Japan, Pakistan, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)

CHILE – MEASURES AFFECTING THE TRANSIT AND
IMPORTATION OF SWORDFISH

Joint Communication from the European Union and Chile

 The following communication, dated 28 May 2010, from the delegations of the European
Union and Chile to the Chairperson of the Dispute Settlement Body, is circulated at the request of
those delegations.

 Chile and the European Union hereby inform the Dispute Settlement Body and the Council
for Trade in Goods that the International Tr ibunal for the Law of the Sea (ITLOS), in the Case
concerning the Conservation and Sustainable Exploita tion of Swordfish Stocks in the South-Eastern
Pacific Ocean (Chile/European Union) , by Order dated 16 December 2009, placed on record,
pursuant to Article 105, paragraph 2, of the Rules of the Tribunal, the discontinuance, by agreement
of the Parties, of the proceedings initiated on 20 December 2000 by Chile and the European
Community, and ordered that the case be removed fro m the List of cases. A copy of the Order is
attached for information.

 Pursuant to Article 3.6 of the DSU, Chile and the European Union intend to notify to the
Dispute Settlement Body and the Council for Trade in Goods any mutually agreed solution to the
matters raised under the consultatio n and dispute settlement provisions of the covered agreements in
DS193 Chile-Measures Affecting the Transit and Importation of Swordfish once any such mutually
agreed solution has been ratified in accordance with their respective domestic law requirements.

 In addition, Chile and the European Union he reby notify the Dispute Settlement Body and the
Council for Trade in Goods that they have unconditi onally agreed that neither party shall further
exercise any procedural right accruing to it under the DSU in case DS193 Chile-Measures Affecting
the Transit and Importation of Swordfish.

 Save as otherwise provided herein, this info rmation and notification is without prejudice to
the rights and obligations of Chile and the European Union under the WTO Agreement.

For the European Union: For Chile:

________________________ ________________________
Mr. John Clarke H.E. Mr. Mario Matus
Chargé d'affaires a.i. Ambassador

List of Cases No. 7 Order 2009/1

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

YEAR 2009
16 December 2009

CASE CONCERNING THE CONSERVATION AND
SUSTAINABLE EXPLOITATION OF SWORDFISH STOCKS
IN THE SOUTH-EASTERN PACIFIC OCEAN

(CHILE/EUROPEAN UNION)

ORDER

Present: Judge CHANDRASEKHARA RAO, President of the Special Chamber ;
 Judges CAMINOS, YANKOV, WOLFRUM; Judge ad hoc ORREGO
 VICUÑA; Registrar GAUTIER.

The Special Chamber of the International Tribunal for the Law of the Sea formed to deal with the
above-mentioned case,

 composed as above,

 after deliberation,

Having regard to article 27 of the Statute of the Tribunal (hereinafter "the Statute"),

Having regard to articles 45, 49, 105, and 107 of the Rules of the Tribunal (hereinafter "the
Rules"),

Having regard to the Order of the Tribunal of 20 December 2000,

Having regard to the Orders of the President of the Special Chamber of 15 March 2001 and
16 December 2003,

Having regard to the Orders of th e Special Chamber of 29 December 2005,
30 November 2007 and 11 December 2008,

Makes the following Order:

1. Whereas, pursuant to the request of Chile and the European Community the Tribunal, by its
Order dated 20 December 2000, formed a special ch amber of five judges to deal with the above-
mentioned case;

2. Whereas, by the said Order, the Tribunal decided that:

if no preliminary objection is made in writing within 90 days from the institution of
proceedings, or if the Special Chamber rejects the preliminary objection or objections, if any,

made, or in case of other issues not affected by the judgment of the Special Chamber on the
preliminary objection or objections, the written proceedings shall consist of:

– a Memorial presented by each of the Parties within six months from the date of the
judgment on the preliminary objection or, if no preliminary objection is made within the time-
limit specified above, within six months after th e expiry of the period of 90 days from the
institution of proceedings;

– a Counter-Memorial presented by each of th e Parties within three months after the
date on which a certified copy of the last of the two Memorials sent by one Party has been
received by the other Party;

3. Whereas the President of the Special Chambe r, by his Order dated 15 March 2001 decided
that for the words “the institution of proceedings”, wherever they o ccur in the decision contained in
the Order dated 20 December 2000, the words “1 Janua ry 2004” shall be substituted, and reserved the
subsequent procedure for further decision;

4. Whereas the President of the Special Cham ber, by his Order dated 16 December 2003,
decided that for the words “the institution of pr oceedings”, wherever they occur in the decision
contained in the Order dated 20 December 2000, the wo rds “1 January 2006” shall be substituted, and
reserved the subsequent procedure for further decision;

5. Whereas, in the Order dated 29 December 200 5, the Special Chamber decided that for the
words “the institution of proceedi ngs” wherever they occur, the wo rds “1 January 2008” shall be
substituted, and reserved the subsequent procedure for further decision;

6. Whereas, in the Order dated 30 November 2007, the Special Chamber decided that for the
words “the institution of proceedi ngs” wherever they occur the wo rds “1 January 2009” shall be
substituted, and reserved the subsequent procedure for further decision;

7. Whereas, in the Order dated 11 December 200 8, the Special Chamber decided that for the
words “the institution of proceedi ngs” wherever they occur, the wo rds “1 January 2010” shall be
substituted, and reserved the subsequent procedure for further decision;

8. Whereas the European Comm unity, by a letter dated 13 October 2009, and Chile, by an e-
mail of 25 November 2009, informed the Special Chamber that the parties had held bilateral
consultations on 5 and 6 October 2009 and agreed to report to the Special Chamber the following:

 [b]oth the European Community and Chile are committed to the signature, ratification
or approval, and implementati on of and compliance with the Understanding agreed between
negotiators for both Parties on 16 October 2008. As a consequence, in accordance with the
provisions of the said Understa nding, Parties will not seek a further extension of the
suspension of the Proceedings of Case No. 7, but will request the Special Chamber to issue an
order for discontinuance of the case. The Par ties are ready to provide the Special Chamber
with further particulars on the occasion of the forthcoming consultations between the
President of the Special Chamber and the Agents of the Parties.

9. Whereas the European Commission, by its letter dated 7 Decembe r 2009, informed the
President of the Special Chamber as follows:

 In preparation for the forthcoming hearing of 15 and 16 December 2009 of the
Special Chamber in Case No 7, we have th e honour to advise you that the Treaty of Lisbon

amending the Treaty on European Union an d the Treaty establishing the European
Community has entered into force on 1 December 2009.

 As a consequence, from that date the Eu ropean Union has replaced and succeeds the
European Community (Article 1, third paragr aph, of the Treaty on European Union as it
results from the amendments introduced by the Treaty of Lisbon). Consequently, since 1
December 2009 the European Union exercises a ll rights and assumes all obligations of the
European Community, whilst continuing to exer cise existing rights and assume obligations of
the European Union. In particular, the Eur opean Union has succeeded to all agreements
concluded and all commitments made by th e European Community with International
Organisations, including the United Nations, and to all agreements or commitments binding
on the European Community.

 As a consequence, from 1 December 2009 the European Commission, of which the
undersigned are agents, represents the interests of the European Union in Case No 7, currently
pending with the Special Chamber. However, the succession of the European Community by
the European Union has no consequences fo r this case. The European Commission will on
behalf of the European Union, and jointly with the agents for Chile, ask for a discontinuance
of Case No 7.

10. Whereas the Agent of Chile has expressed no objection to treating the European Union as a
party to this case in place of the European Community;

11. Whereas, in response to a request made by the Special Chamber on 30 November 2009, the
Agents of the Parties provided additional inform ation in a joint communicat ion dated 15 December
2009;

12. Whereas, in the joint communication referred to in the preceding paragraph the Agent of the
European Union and the Agent of Chile informed the Special Chamber as follows:

The European Union and Chile have informed the Special Chamber that they are committed
to the signature, ratification or approval, and implementation of and compliance with the new
Understanding agreed between negotiators for both Parties on 16 October 2008.

The terms of the settlement agreed between negotiators comprise the following elements:

1) a more structured framework of fisheries cooperation to replace and
transform the 2001 bilateral Provisional Arrangement into a definitive
commitment to cooperate for the long-te rm conservation and management of the
swordfish stocks in the South Eastern Pacific.

2) conducting their respective swordfish fisheries to catch levels
commensurate with the objective of ensuri ng the sustainability of these resources
as well as safeguarding the marine ecosystem.

3) freezing of the fishing effort by both Parties at the 2008 level or at the
maximum historical peak.

4) establishment of a Bilateral Scientific and Technical Committee (BSTC),
with the following tasks: exchange of information and data on catch and fishing
effort, as well as on stock status; providing scientifically-based advice to fisheries
stocks managers to assist them in en suring the sustainability of the fishing

activities of both Parties; advising Parties on the adoption of further conservation
measures if needed.

5) the multilateral consultation currently in place should include all the
relevant participants in the South Eastern Pacific Ocean swordfish fishery and
invited observers from existing organizati ons with a legitimate interest in the
swordfish fishery.

6) agreement that EU vessels fishing fo r swordfish in the high seas in
accordance with the objectives contained in the new Understanding shall be
granted access to designated Chilean ports for landings, transshipments,
replenishing or repairs.

As a consequence, in accordance with th e provisions of the said Understanding,
Parties request that the Special Chamber issue an Order for discontinuance of the
Case No 7 (Case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European
Community).

13. Whereas, on 15 and 16 Decem ber 2009, the President of the Special Chamber held
consultations with the Agents of the Parties, in accordance with article 45 of the Rules;

14. Whereas the Special Chamber held deliberati ons on 15 and 16 December 2009 in regard to
the communications of the Parties referred to in paragraphs 9, 11 and 12;

THE SPECIAL CHAMBER,

 Places on record , pursuant to article 105, paragraph 2, of the Rules, the discontinuance, by
agreement of the Parties, of the proceedings initiated on 20 December 2000 by Chile and the
European Community; and

 Orders that the case be removed from the List of cases,

 Done in English and in French, both texts bei ng authoritative, in the Free and Hanseatic City
of Hamburg, this sixteenth day of December, two thousand and nine, in three copies, one of which
will be placed in the archives of the Tribunal and th e others transmitted to the Government of Chile
and to the European Union, respectively.

 (signed)
P.
 CHANDRASEKHARA RAO,
President of the Special Chamber.

(signed)
PHILIPPE GAUTIER,
Registrar.