Operation of the independent entity established under Article 4 of the agreement on preshipment inspection

Having regard to Article 4 of the Agreement on Preshipment Inspection (hereinafter the “PSI Agreement”);

Whereas Article 4(a) of the PSI Agreement provides that procedures for an independent review of disputes between preshipment inspection entities and exporters shall be administered by an independent entity (hereinafter the “Independent Entity”);

Whereas the Independent Entity shall be constituted jointly by an organization representing preshipment inspection entities and an organization representing exporters for the purposes of the PSI Agreement;

Whereas the International Federation of Inspection Agencies (IFIA) represents preshipment inspection entities and the International Chamber of Commerce (ICC) represents exporters;

Whereas it is appropriate, in order to ensure the functioning of the procedures contained in Article 4 of the PSI Agreement, to reach an agreement with these organizations to entrust the WTO with the task of setting up the Independent Entity and organising its functioning within the framework of the WTO and to define the terms and conditions of the cooperation of the ICC and the IFIA with the Independent Entity;

Whereas it is desirable to approve the agreement reached between the WTO, the ICC and the IFIA;

Whereas it is consequently appropriate to set up the Independent Entity as a subsidiary body of the Council for Trade in Goods, and that the experts appointed to serve as panelists pursuant to Article 4, paragraphs (c) through (e) of the PSI Agreement shall be considered as officials of the WTO within the meaning of Article VIII, paragraph 3, of the WTO Agreement;

Whereas it is appropriate to define the structure and organization of the Independent Entity and the rules of procedure applicable to disputes brought before the Independent Entity;

Decides as follows:

• The organizations mentioned in Article 4(a) of the PSI Agreement shall, for the time being, be the following:
  • the organization representing preshipment inspection entities for the purposes of the PSI Agreement shall be the International Federation of Inspection Agencies (IFIA), and
  • the organization representing exporters for the purposes of the PSI Agreement shall be the International Chamber of Commerce (ICC).
• The Agreement between the WTO, the ICC and the IFIA attached in Annex I is hereby approved on behalf of the WTO.
• The Independent Entity provided for in Article 4(a) of the PSI Agreement is hereby established as a subsidiary body of the Council for Trade in Goods. The Independent Entity shall report to the Council for Trade in Goods at least once a year. It shall be serviced by the WTO Secretariat.
• The experts appointed to serve as panelists pursuant to Article 4, paragraphs (c) through (e) of the PSI Agreement shall, for this purpose, be officials of the WTO and shall be accorded by each of its Members such privileges and immunities as are necessary for the independent exercise of their functions in connection with the WTO, within the meaning of Article VIII, paragraph 3, of the WTO Agreement.
• The Independent Entity shall be organized and shall function in accordance with the “Structure and Functions of the Independent Entity Established by Article 4 of the WTO Agreement on Preshipment Inspection” attached in Annex II.
• The “Rules of Procedure for the Operation of Independent Reviews under Article 4 of the WTO Agreement on Preshipment Inspection” attached in Annex III shall apply to the conduct of independent reviews within the meaning of Article 4 of the PSI Agreement within the framework of the Independent Entity.
• The Appendix and Annexes to this Decision are integral parts of this Decision.

  

Appendix
Basis for the Calculation of the Initial Costs for the Advance Deposit Tariff

The following is based on the assumption of a 3-person panel for 8 working days, without meeting of the panelists or inspection of the goods (if either a meeting or inspection were required, an additional deposit would be assessed as appropriate).

  

Annex I

Agreement between the World Trade Organization, the International Chamber of Commerce (ICC) and the International Federation of Inspection Agencies (IFIA) with respect to the Implementation of Article 4 of the WTO Agreement on Preshipment Inspection

The WTO, the ICC and the IFIA hereby agree that the ICC and the IFIA shall jointly constitute an independent entity to implement the provisions of Article 4 of the WTO Agreement on Preshipment Inspection (hereinafter the “PSI Agreement”) on the following terms:

• The ICC and the IFIA hereby entrust the WTO with the task of setting up the Independent Entity (hereinafter “IE”). The WTO shall establish the IE as a subsidiary body of the Council for Trade in Goods. The WTO shall also define the structure and functioning of the IE in consultation with the ICC and the IFIA. The WTO shall determine the rules of procedure applicable to the conduct of independent reviews by the IE in consultation with the ICC and the IFIA. The WTO shall be free to amend the structure and functioning of the IE, as well as the rules of procedure, in order to adapt them if need be.
• In the performance of their tasks relating to the establishment and operation of the IE under the provisions of Article 4 of the PSI Agreement, the ICC and the IFIA shall jointly:
  • draw up, and update annually, their respective lists of experts as provided for in paragraphs (b)(i) and (ii) of Article 4 of the PSI Agreement, and assist the IE in drawing up and updating the list of independent trade experts as provided for in paragraph (b)(iii) of that Article;
  • print IE documentation and make it available at the IE, at National Chambers of Commerce and at the information points maintained in the administrative offices of the preshipment inspection entities, it being understood that a minimal charge may be made for such documentation solely for the purpose of recovering the costs thereof;
  • report annually to the IE the views of their constituents on the operation of the independent review procedures;
  • keep the IE informed of developments in the area of preshipment inspection;
  • perform any other tasks as may be agreed jointly by the WTO, the ICC and the IFIA.
• All of the above arrangements shall be reviewed at the end of 1996, on the occasion of the first periodic review of the provisions, implementation and operation of the PSI Agreement, to be carried out by the WTO Ministerial Conference pursuant to the provisions of Article 6 of the PSI Agreement.
• This Agreement may be terminated by any party by written notice to the others. Unless otherwise agreed, this Agreement shall be terminated 6 months after receipt of such notice by the other parties.

  

Annex II
Structure and Functions of the Independent Entity Established by Article 4 of the WTO Agreement on Preshipment Inspection

I. Management

A. Management of the IE

The IE shall be administered by a professional staff member of the WTO (hereinafter referred to as the “Director”) and additional WTO staff, as required. It will be located in Geneva.

B. Role of ICC and IFIA

In the organization and functioning of the IE, the respective roles of the ICC and the IFIA shall be as defined in the Agreement between the WTO, the ICC and the IFIA.

C. Reporting by the IE

The IE will report to the Council for Trade in Goods at least once a year but more frequently if necessary.

D. Duties of the Director

The duties of the Director shall include:

(i)  to forward the IE Rules of Procedure for the Operation of Independent Reviews under Article 4 of the WTO Agreement on Preshipment Inspection (hereinafter the “Rules of Procedure”) and other documents relevant for the information of exporters and preshipment inspection entities on the functioning of the IE to the nominated person(s) in ICC/IFIA for printing and dissemination;

(ii)  to receive from ICC and IFIA their respective lists of experts and annual updates thereof and their contributions to the list of independent trade experts and annual updates thereof;

(iii)  to establish the list of experts and annual updates thereof, forward it to the nominated person(s) in ICC/IFIA for printing and dissemination and circulate it to all WTO Members;

(iv)  to receive applications requesting an independent review, and notify them to the other party to each dispute;

(v)  to verify that complainants have conformed with the time limits for requesting an independent review prescribed in paragraph 2.3 of the Rules of Procedure;

(vi)  to ensure that complainants have properly completed the IE's Standard Application Form for an independent review, have conformed to the provisions laid down in that Form and the Advance Deposit Tariff, and followed the Explanatory Notes attached thereto;

(vii)  to estimate the likely costs of independent review and determine the Advance Deposit Tariff and additional costs where necessary;

(viii)  to ensure in each case that an amount sufficient to cover the initial costs of an independent review in accordance with the IE's published “Advance Deposit Tariff” has been made available to the IE;

(ix)  to establish a three-member panel of experts or select a single independent trade expertSee footnote 3 in accordance with the agreement reached between the parties to the dispute;

(x)  to organise the payment of fees and the reimbursement of expenses to experts, and control the costs they incur in carrying out independent reviews;

(xi)  to ensure that documents submitted within the framework of an independent review are notified to the parties;

(xii)  to notify the decisions of the panels to the parties and to WTO Members;

(xiii)  to refund (less bank charges) the advance deposit(s) or release bank guarantee(s) against costs in accordance with the allocation of costs decided upon by the panel;

(xiv)  to maintain a confidential record of submissions made in the context of independent reviews and confidential and non-confidential records of the decisions reached thereon;

(xv)  to maintain a register of independent reviews, which shall not include information which a party requested to be kept confidential;

(xvi)  to ensure that decisions are made available in all the official languages of the WTO.

II. Operational procedures

A. Confidentiality

The IE shall ensure confidential treatment to information for which such a treatment has been requested by a party, provided that a non-confidential summary of the information has been submitted to the panel by that party.

B. Languages of the IE

The official languages of the IE shall be the official languages of the WTO. Communications with the IE, submissions to independent review panels and independent review proceedings shall take place in any of these languages. During the proceedings of the independent review panels, if requested, interpretation and translation shall be made available in any of the official languages of the WTO. Panel decisions shall be communicated to the parties in the official language(s) used by the panel. In cases where more than one official language is used during the independent review proceedings, the time-frame provided for in Article 4(g) of the PSI Agreement may be extended with the agreement of the parties.

C. Initiation of an Independent Review

1. Application Form and Explanatory Notes; Response Form

The IE shall make available to any exporter or preshipment inspection entity (as defined in Article 1.4 of the PSI Agreement), upon request:

(i)  a Standard Application Form for requesting the initiation of an independent review. This Standard Application Form shall include in annex the Explanatory Notes containing a description of the conditions under which the IE will accept a request for independent review;

(ii)  a Standard Response Form to give the opportunity for the other party to the dispute to respond to the application for an independent review.

2. Advance Deposits to Cover Estimated Costs

(i)  Any party which has not made a bank guarantee pursuant to paragraph 2(iii) below shall be required to make an initial deposit to the IE bank account according to the Advance Deposit Tariff published by the IE and revised from time to time.

(ii)  The Advance Deposit Tariff shall make provision for :

• fees for 3 panelists being utilised for 8 days. (without any meetings or inspection of the goods)
• lump sums for communication costs (mail, telephone, telefax)
• WTO overhead costs to be automatically adjusted by the IE in accordance with the percentage provided for in the Trust Fund Rules.

(iii)  To expedite the initiation of independent reviews, each preshipment inspection entity will arrange in advance in favour of the IE an automatically renewable bank guarantee in Swiss Francs, established on terms acceptable to the Director, to cover the initial costs of one independent review.

(iv)  As soon as an amount covering the initial cost of the independent review as established in the Advance Deposit Tariff is received, the WTO shall recruit the panelist(s) selected by the IE.

(v)  Were the panelist(s) in a specific case to find that travel is needed (either to meet among themselves and/or to meet the parties in dispute and/or to inspect the shipment), the Director shall inform the parties and request additional deposits. Upon receipt of an amount acceptable to the Director to cover the additional expenditure, the panelist(s) will be authorised to travel.

(vi)  If, for any other reason, the panelist(s) anticipate that the expenditure will exceed the initial amount made available, the Director shall inform the parties in dispute and request additional deposits. Upon receipt of an amount acceptable to the Director to cover the additional expenditure, the panelists will be authorized to proceed with the anticipated expenditure. If the amount received is less than the anticipated expenditure, the panelist(s) shall proceed on the basis of the funds available.

(vii)  Once the independent review is concluded, the IE shall prepare the final accounts of the case taking into account the panelist(s) actual fees and expenses and including the charge for WTO overheads required under the Trust Fund Rules.

(viii)  The IE will refund the unspent balance of the deposit(s) or release the unspent balance of the bank guarantee(s) to the parties in accordance with the apportionment decided by the panel.

3. Panelists' Fees and Expenses and other Costs

(i)  Panelists will be paid a daily fee, a lump sum for communication costs (mail, telephone, fax) and, when authorised by the Director, travel expenses.

(ii)  Expenses incurred by the parties to an independent review shall not be recoverable from the IE other than in relation to the full or partial refund of deposit(s) or release of bank guarantee(s) against the costs incurred by the IE.

4. Rules of Procedure for the Operation of Independent Reviews

The IE will publish and will make available upon request the Rules of Procedure for the operation of independent reviews. These Rules of Procedure shall be periodically reviewed by the IE.

5. Questionnaires for Experts to Be Nominated as Panelists

The IE will publish questionnaires to be completed by experts who wish to be considered for nomination as panelists.

D. Documentation of the IE

The IE documentation which will be published and updated, when applicable, shall include, but not necessarily be limited to, the following :

• Structure and Functions of the Independent Entity Established by Article 4 of the WTO Agreement on Preshipment Inspection
• Rules of Procedure for the Operation of Independent Reviews under Article 4 of the WTO Agreement on Preshipment Inspection
• Standard Application Form for a request for an independent review
• Standard Response Form to a request for an independent review
• Questionnaire Forms for experts to be nominated as panelists
• List of experts for independent reviews
• Advance Deposit Tariff

  

Annex III
Rules of procedure for the operation of independent reviews under article 4 of the WTO agreement on preshipment inspection

1.  Purpose and Scope of Independent Review

1.1.  The purpose of an independent review is to resolve disputes between exporters and PSI entities in accordance with the provisions of the PSI Agreement.

1.2.  The object of an independent review shall be limited, pursuant to Article 4(f) of the PSI Agreement, to establishing whether, in the course of the inspection in dispute, the parties to the dispute have complied with the provisions of the PSI Agreement.

1.3.  When reviewing price verification by a PSI entity, independent review panels shall determine whether the PSI entity has carried out price verification in accordance with the provisions of the PSI Agreement. Aspects of preshipment inspection involving elements of customs valuation shall be subject to the appropriate provisions of the PSI Agreement, in particular footnote 4 to Article 2.20 thereof.

2.  Availability and Timing of Independent Review

2.1.  The entities entitled to request independent review or become parties to proceedings before independent review panels shall be exporters of goods subject to preshipment inspection activities and PSI entities, within the meaning of the PSI Agreement.

2.2.  Independent review shall be available after the exporter has first submitted a complaint with the preshipment inspection entity under the appeals procedure provided for in Article 2.21 of the PSI Agreement.

2.3.  Independent review shall not be requested earlier than two working days after the dispute was submitted to the internal appeals procedure of the PSI entity. During a period of six months immediately following the entry into force of the present Rules of Procedure, independent review shall not be requested later than 180 days after the issuance of a Clean Report of Findings or notification of non-issuance of a Clean Report of Findings. After the end of the six month period referred to above, independent review shall not be requested later than 90 days after the issuance of a Clean Report of Findings or notification of non-issuance of a Clean Report of Findings. The IE shall not accept a request for independent review unless it is lodged within the foregoing time period, except when both parties agree otherwise. If no Clean Report of Finding or notification of non-issuance of a Clean Report of Finding is issued within the time-frame provided for in Article 2.16 of the PSI Agreement, the party concerned shall be free to request an independent review at any time thereafter.

3.  List of Experts for Independent Review Panels

3.1.  The IE shall establish and update annually a publicly available list of experts divided into three sections as follows:

3.1.1  a section of experts nominated by the International Chamber of Commerce (ICC);

3.1.2  a section of experts nominated by the International Federation of Inspection Agencies (IFIA);

3.1.3  a section of independent trade experts nominated by the IE.

4.  Procedure for Initiating an Independent Review

4.1.  The complainant, when seeking an independent review, shall submit to the IE a completed Standard Application Form (see: Appendix A hereto) and supporting documents.

4.2.  The application form submitted by the complainant may be written in any of the official languages of the WTO and shall include the following :

4.2.1  identity of the complainant, address, telephone, fax, telex numbers and the name of the contact person in the complainant's office;

4.2.2  name and address of the importer;

4.2.3  name and address of the respondent, its telephone, fax, telex numbers and the name of the contact person in the respondent's office;

4.2.4  preshipment inspection entity reference numbers and exporters' contract, order, invoice numbers as appropriate;

4.2.5  brief description of the goods;

4.2.6  indication of the provisions of the PSI Agreement which have allegedly been infringed and description of the elements on the basis of which it is alleged that the infringement took place;

4.2.7  copies of all documents considered to be relevant by the complainant for review;

4.2.8  details of submission of dispute to the PSI entity's internal appeal procedure;

4.2.9  complainant's statement as to whether it prefers the dispute to be determined by a single independent trade expert or by a three-member panel. If the complainant wishes the review to be conducted by a single independent trade expert and the respondent agrees, the single independent trade expert will be selected by the IE from the independent trade experts' section of the list of experts held by the IE. If the complainant wishes the review to be conducted by a three-member panel, it shall propose in its application form three names from the relevant section of the list held by the IE. The respondent shall propose in its response form three names from the relevant section of the list held by the IE.

4.2.10  When the complainant's request for independent review includes a request to have the matter decided by a single independent trade expert, the respondent shall state in its reply whether it concurs. Where the respondent does not concur, the names of three experts taken from the relevant section of the list maintained by the IE shall be included in the respondent's reply.

4.3.  A copy of the request for independent review and all accompanying papers shall be notified by the IE to the respondent.

4.4.  The respondent may submit a reply on the Standard Response Form (see: Appendix B hereto). The reply shall be delivered to the IE. The IE shall notify it to the complainant. In an effort to enable the panel to make a reasoned evaluation of the matter presented based upon the request for independent review and the response without any need to seek any further information, any response should include a statement of the respondent's position and any other relevant evidence or explanatory material that the respondent wishes to submit.

4.5.  Further documentation may be submitted by either party only upon request by the independent review panel.

5.  Appointment of Panel Members

5.1.  Upon receipt of the application form for the request for independent review from the complainant, the response form from the respondent, if any, and receipt of an amount covering the initial costs of the independent review, the IE will, whether the parties have agreed to the dispute being decided by a single independent trade expert or a three-member panel, appoint the single independent trade expert or the chairperson of the panel, as the case may be, from the independent trade experts section of the list maintained by the IE.See footnote 4

5.2.  Where there is to be a three-member panel, the IE will in addition select one expert to represent the exporter from the three names submitted by the exporter and one expert to represent the PSI entity from the three names submitted by the PSI entity.

5.3.  In selecting the single independent trade expert or the panelists of a three-member panel, the location of the experts, the location of the parties and the location of the site of inspection of the goods shall all be taken into account by the IE.

5.4.  No person shall be nominated by either party as a panelist if that person has any affiliation to the nominating party. A person shall be deemed to have an affiliation to a nominating party if that person is a director, employee, adviser, consultant or agent of that party or that person has a financial interest in that party or is in any way related by birth or marriage to that party or to any director, employee or partner of the nominating party.

5.5.  If either party has any objection to the proposal of any panelist by the other party based on an alleged affiliation to the other party, such objection shall be notified to the IE within one working day after the objecting party has received the other party's form.

5.6.  The IE will ask experts who are under consideration for appointment as panelists or as single independent trade experts to confirm that:

5.6.1  the expert has no affiliation, as defined in paragraph 5.4 above, to the party that has put his/her name forward or, in the case of an independent trade expert, that he/she has no affiliation to either party;

5.6.2  the expert will treat in confidence all confidential information made available during the course of any review.

5.7.  In the event that the respondent fails to respond to an application within two working days of the initiation of a request for an independent review, the IE will appoint a single independent trade expert and the review shall proceed despite the lack of response. However, if the complainant insists upon a three-member panel, the IE will, in addition to selecting the chairperson, appoint a third panel member on behalf of the non-participating party so that the review can proceed.

6.  Payment of Deposits to Cover Estimated Costs of an Independent Review

6.1.  Any party which has not secured an appropriate bank guarantee in favour of the IE shall deposit in the bank account of the IE cleared funds in Swiss Francs to cover the initial costs of the review in accordance with the Advance Deposit Tariff published by the IE. Such remittance shall be made by the complainant at the same time as the complainant submits the application for independent review to the IE.

6.2.  If the respondent is not a PSI entity that has arranged a bank guarantee on terms acceptable by the Director of the IE, it shall make the deposit referred to above forthwith on receipt of a copy of the complainant's application for independent review.

6.3.1  One of the conditions for the commencement of the independent review process is that deposits or bank guarantees of an amount sufficient to cover the initial costs of an independent review must have been received from both parties by the IE. The decision of the IE as to whether a deposit is sufficient shall be final.

6.3.2  Notwithstanding paragraphs 6.1, 6.2 and 6.3.1 above and paragraph II.C.(2) of the “Structure and Functions of the Independent Entity Established by Article 4 of the WTO Agreement on Preshipment Inspection”, a panel shall be established upon receipt of a deposit or bank guarantee by only one party, provided that the amount is sufficient, subject to the prior agreement of that party. It is understood that the costs will be borne by that party, in the event that the other party fails to make the deposit or secure the bank guarantee required under paragraph 6.3.1 above.

6.4.  After the conditions for the commencement of the review have been met, the IE will, within one working day, send the documents of the case to the nominated panelists.

6.5.  If upon its initial review, within one working day of receipt of the documents, the panel determines that (a) it is necessary to travel for the purpose of performing its duties, such as the inspection of the goods, or (b) additional expenditures are necessary, such as to procure the services of an independent consultant with specialist knowledge, the panel shall advise the IE accordingly. The IE shall estimate the additional deposits required and inform the parties.

6.6.  If in exceptional circumstances, whilst the review is in process, the panel anticipates expenditure in excess of the advance deposits received in order to reach a decision, it shall advise the IE accordingly. The IE shall estimate the additional deposits required and inform the parties.

6.7.  At the request of the panel, the IE shall also inform the parties that the time-frame set out in Article 4(g) of the PSI Agreement will be suspended until an amount sufficient to cover the additional expenditure has been received. The panel may decide at any time to terminate the suspension.

6.8.  If neither party agrees to provide further funds, the panel shall proceed to a decision on the basis of the information before it. If only one party makes an additional deposit, the panel may proceed on the basis of the funds available, subject to the agreement of that party. In such a case, notwithstanding paragraph 6.9, only the amount of the deposit or of the bank guarantee not used to cover the costs incurred will be refunded or released.

6.9.  Refunds of deposits or release of guarantees will be made in whole or in part, less bank charges, by the IE having regard to the total costs of the independent review as assessed by the IE and having regard to the allocation of costs between the parties made by the independent review panel.

7.  Procedure before Independent Review Panels

7.1.  Decisions will ordinarily be made on the basis of the initial written submissions and any subsequent oral representations. Either party shall be entitled to make oral representations to the panel subject to the provisions of paragraph 7.5. Parties shall not raise claims before the panel which were not previously raised in the appeals procedure before the preshipment inspection entity provided for in Article 2.21 of the PSI Agreement. The panel may determine whether a particular claim was effectively raised during the appeals procedure.

7.2.  The chairperson of the panel or the single independent trade expert shall make all necessary decisions so as to ensure the fair and expeditious resolution of the dispute submitted to independent review but always having due regard to the sums available by way of deposit(s) or guarantee(s) to cover the cost of the review.

7.3.  If any party fails to participate in the proceedings or to respond in a timely manner to requests from the panel, the panel shall nevertheless render a decision on the basis of the information before it.

7.4.  Except as otherwise provided in paragraph 9.2, copies of all written communications and documents submitted to the panel by a party shall be forthwith notified by the IE to the other party. Any party receiving any new document from the other party shall have the right to comment thereon.

7.5.  No ex parte communication shall be allowed.

7.6.  Each panelist shall act as an independent adjudicator in respect of the dispute under review and shall in no way act as an advocate or agent for either party.

7.7.  No party shall seek to influence any panelist concerning the matter in dispute in any way whatsoever except through the process of submissions and evidence in the course of an independent review.

8.  Evidence

8.1.  The panel may request documents and other relevant materials from the parties. The failure of a party to respond may be taken into account by the panel in rendering its decision but shall not, of itself, be a sufficient reason to render a decision against that party.

9.  Confidentiality

9.1.  Except as otherwise provided in paragraph 10.4, panelists and parties shall hold in strict confidence all submissions and other materials provided to the panel or otherwise received in the course of the proceedings.

9.2.  A party may request that certain information submitted to the panel be treated as confidential, provided it submits a non-confidential summary of the information concerned. A party may submit confidential business information, which it is unable to disclose to third parties by reason of such information having been provided on a confidential basis from parties not involved in the dispute, to an independent lawyer nominated by both parties to enable that lawyer to provide to the panel a report on the information so submitted. The costs of the lawyer in providing such a report shall be borne by the party requesting the report.

10.  Decision of the Independent Review Panel

10.1.  The decision of a three-member panel shall be adopted by majority vote.

10.2.  Each decision shall be rendered within eight working days after the request for independent review was received by the IE, unless both parties agree to extend this time limit. For the purposes of counting the eight working day period for completion of a review, a request shall be deemed to have been received only after:

10.2.1  the IE has received a properly completed Standard Application Form requesting a review; and

10.2.2  both parties to the review have lodged financial deposits or bank guarantees which cover the initial costs of the review or, in case only one party made a deposit or lodged a bank guarantee, this party agreed to bear the costs of the independent review in accordance with paragraph 6.3.2; and

10.2.3  the respondent has responded in writing to the application or two working days have elapsed without a response since that party was notified of the application.

10.3.  The decision shall state whether, in the opinion of the panel, the parties to the dispute have, in the course of the inspection in dispute, complied with the provisions of the PSI Agreement.

10.4.  Each decision shall include a brief statement giving reasons for the decision. Decisions shall be issued in all the official languages of the WTO.

10.5.  The panel shall apportion the costs of the review based upon the merits of the review. Such costs shall be limited to the costs of the IE for which deposits or bank guarantees have been taken by the IE. Other expenses incurred by the parties to the review are not recoverable.

10.6.  Panel decisions shall be issued in two versions: one confidential version for the IE confidential record and one non-confidential version for publication. Non-confidential versions of decisions shall be published by the IFIA and the ICC for the information of PSI entities and exporters and made available to WTO Members by the IE. The published decisions may contain non-confidential summaries of information for which a party requested confidential treatment and provided a non-confidential summary.

11.  Discontinuance of an Application for Independent Review

11.1.  If at any time, prior to the communication by the IE of the decision of a panel to the parties, the parties reach an amicable settlement, they may withdraw the review application by giving notice to the IE, including notice as to how review costs incurred to date are to be borne by the parties. In the absence of any agreement to the contrary, the costs will be divided equally between the parties.

11.2.  If the complainant unilaterally gives notice to the IE that the application for independent review is discontinued, the IE will refund to the complainant its deposit or release its bank guarantee less independent review costs incurred to that date and bank charges. If however the complainant withdraws his application by reason of the fact that the respondent has remedied the grievance which was the subject of the original application, the respondent shall bear all the independent review costs incurred to that date in respect of that application.

11.3.  The decision of the IE as to the amount of costs incurred in the independent review process up to the date of any discontinuance shall be final.

12.  Time

12.1.  Time limits for delivery of documents pursuant to these Rules of Procedure shall include only normal working days in the country where the office of the recipient of the communication is located.

12.2.  Where documents are received by a recipient after normal working hours in the country of the recipient, they shall be deemed to be received on the next working day.

12.3.  In calculating time limits, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of such time period shall be included.

12.4.  Any time limit prescribed by these rules may be extended with the consent of both parties. Any request for extension of time shall be made to the panel before the expiration of the time period to be extended unless it is impractical to do so.

13.  Information

13.1.  The IE, the PSI entities and the National Chambers of Commerce shall upon request provide information to enquirers on the independent review procedure. A nominal charge may be made for providing copies of the IE Rules of Procedure and related documents.

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The Application Form annexed to this document is available for download in WordPerfect format.

   psiforms.wp5

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Footnote: 1 Based on the assumption of two conference calls with the other panelists.

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Footnote: 2 To be automatically adjusted by the IE in accordance with the percentage provided for in the Trust Fund Rules.

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Footnote: 3 For the purposes of this Annex, the term “panel” shall refer to both three-member panels and single independent trade experts referred to respectively in Article 4(c) and (e) of the PSI Agreement. The term “panelist” shall refer to both members of three-member panels and single independent trade experts.

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Footnote: 4 For the purposes of this Annex, the term “panel” shall refer to both three-member panels and single independent trade experts referred to respectively in Article 4(c) and (e) of the PSI Agreement. The term “panelist” shall refer to both members of three-member panels and single independent trade experts.