The EPA Council for the UK-Kenya EPA,

Having regard to the Agreement between the United Kingdom of Great Britain and Northern Ireland (the ‘UK’) and the Republic of Kenya, a Member of the East African Community, for an Economic Partnership, done at London on 8 December 2020 (‘the Agreement’), and in particular paragraph 3 of Article 105, Article 120 and paragraph 4 of Article 125 thereof,

Has adopted this decision:

1. Article 1

The rules of procedure of a panel and the code of conduct for arbitrators are adopted as set out in Annex I to this decision.

2. Article 2

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

Done at London, United Kingdom on 21 March 2023.

3. Annex I: procedures for the settlement of disputes

3.1 Article 1: definitions

For the purposes of these procedures for the settlement of disputes (the ‘rules of procedure’), the following definitions apply:

Adviser: a natural person retained by a party to advise or assist that party in connection with the arbitration proceeding.

Arbitration panel: a specific group set up under Article 113 of the Agreement.

Arbitrator: a member of an arbitration panel set up under Article 113 of the Agreement.

Assistant: a natural person who, under the terms of appointment of an arbitrator, conducts research for or provides assistance to the arbitrator.

Day: a calendar day.

Mediator: a natural person who conducts mediation in accordance with Article 111 of the Agreement.

Non-working day: Saturdays, Sundays and any other day designated by a party as a holiday for the purposes of the application of these rules of procedure.

Representative of a party: an employee or any natural person appointed by a government department or agency or any other public entity of a party who represents the party in a dispute under the Agreement.

Party complained against: the party that is alleged to be in violation of the provisions referred to in Article 109 of the Agreement.

Complaining party: the party requesting the establishment of an arbitration panel under Article 112 of the Agreement.

3.2 Article 2: general provision

These rules of procedure are established pursuant to Article 120 of the Agreement and shall apply to dispute settlement proceedings under Part VII of the Agreement, unless the parties agree otherwise. In the event of an inconsistency between these rules of procedure and any provisions in Part VII of the Agreement (Dispute avoidance and settlement), the provisions of Part VII shall prevail to the extent of the inconsistency.

3.3 Article 3: launch of arbitration proceedings and notification

1․ The arbitration procedure is considered to have been launched on the date on which the request for the establishment of an arbitration panel is received by the party complained against and by the Committee of Senior Officials in accordance with Article 112(2) of the Agreement.

2․ ‘Notification’, for the purposes of these rules of procedure, means any request, notice, written submission or other document related to the arbitration procedure.

Any notification:
a) from the arbitration panel shall be sent to both parties at the same time
b) from one party which is addressed to the arbitration panel shall be copied to the other party at the same time, and
c) from one party which is addressed to the other party shall be copied to the arbitration panel at the same time, where appropriate

3․ Any notification shall be made by e-mail or, where appropriate, by any other means of telecommunication that provides a record of the sending thereof. Unless proven otherwise, such notification shall be deemed to have been delivered on the date of its sending.

4․ All notifications shall be addressed to the Department for Business and Trade of the United Kingdom and the successors of the aforementioned department and to the Ministry of Trade, Investments and Industry of the Republic of Kenya and the successors of the aforementioned Department.

5․ Minor errors of a clerical nature in notifications related to the arbitration procedure may be corrected by the sending of a new notification clearly indicating the changes that have been made.

6․ If the last day for delivery of a notification is a non-working day for Kenya or the United Kingdom, the notification may be delivered on the next working day. No notification or request of any kind shall be deemed to have been received on a non-working day.

3.4 Article 4: appointment of arbitrators

1․ If, pursuant to Article 113 of the Agreement, an arbitrator is selected by drawing lots, the co-chair of the Committee of Senior Officials of the party requesting the selection shall promptly inform the parties of the date, time and venue of the drawing by lot.

2․ The lot drawing shall take place in the presence of the representatives of the parties.

3․ The co-chair of the Committee of Senior Officials of the party requesting the selection shall, in writing, inform each individual selected of his or her appointment as arbitrator. Each individual shall confirm his or her availability to both parties within 5 days of the date on which he or she was informed of his or her appointment.

3.5 Article 5: consultation between the parties and the arbitration panel

1․ Unless the parties agree otherwise, they shall meet the arbitration panel within 7 days of its establishment in order to determine such matters that the parties or the arbitration panel deem appropriate, including:
a) the remuneration and expenses to be paid to the arbitrators and their assistants, in accordance with Article 15 below
b) the timetable of the proceeding
c) organisational measures to streamline the proceeding, without prejudice to the procedural rights and obligations of the parties and due process. Such measures may include decisions on page limits for written submissions as well as on the length and number of hearings required.

2․ The arbitrators and the representatives of the parties may take part in this meeting by telephone or by video conference.

3․ Unless the parties agree otherwise within 5 days of the date of the establishment of the arbitration panel, the terms of reference of the arbitration panel shall be:

“to make findings of law and fact and determinations on the conformity of the measure at issue with the provisions of this Agreement or whether a party has otherwise failed to fulfil its obligations under this Agreement, together with the reasons thereof. The panel may suggest ways in which the responding party could implement the determinations”

4․ The parties shall notify the agreed terms of reference to the arbitration panel within 3 days of their agreement on the mandate.

3.6 Article 6: written submissions

1․ The complaining party shall deliver its initial written submission no later than 20 days after the date of the establishment of the arbitration panel. The party complained against shall deliver its written counter-submission no later than 20 days after the date of delivery of the initial written submission.

2․ With the agreement of the panel, within ten days of the conclusion of a hearing, each party may deliver to the arbitration panel and the other party a supplementary written submission responding to any matter that arose during the hearing.

3.7 Article 7: working of the arbitration panels

1․ The chairperson of the arbitration panel shall chair all meetings. An arbitration panel may delegate to its chairperson the authority to make administrative and procedural decisions in the area concerned.

2․ In accordance with Article 9 of these rules of procedure, the arbitrators and the persons requested shall attend the hearing. Unless otherwise provided for in the Agreement or these rules of procedure and without prejudice to Article 9(5) of these rules of procedure, the arbitration panel may conduct its activities by video conference, telephone or by any other means, including electronically.

3․ Only arbitrators may take part in the deliberations of the arbitration panel, but the arbitration panel may permit its assistants or designated note-takers to be present at its deliberations.

4․ The drafting of any ruling shall be the exclusive responsibility of the arbitration panel and shall not be delegated.

5․ The panel may include in its report any separate or dissenting opinions on matters not unanimously agreed. Any opinions expressed by individual panellists shall be anonymous.

6․ Where a procedural question arises that is not covered by the provisions of Part VII of the Agreement (dispute avoidance and settlement), the arbitration panel, after consulting with the parties, may adopt an appropriate procedure that is compatible with those provisions and that ensures equal treatment between the parties.

7․ If the arbitration panel considers that there is a need to make a procedural or administrative adjustment in relation to the proceedings, it shall inform the parties of the reasons for which the adjustment is required. The arbitration panel may adopt such adjustments after having consulted the parties.

8․ Any time limit established under these rules of procedure may be amended by the mutual agreement of the parties. Upon the request of one party, the arbitration panel may modify the time limits applicable in the proceedings. The arbitration panel may at any time propose to the parties to modify any time limit, stating the reasons for the proposal.

9․ At the request of both parties, the arbitration panel may suspend the proceeding at any time for a period agreed by the parties and not exceeding 12 consecutive months.

10․ In the event of a suspension, the relevant time limits shall be extended by the same amount of time as the proceeding before the arbitration panel was suspended. The arbitration panel shall resume the proceeding at any time at the joint request of both parties, or at the end of the agreed suspension period at the written request of one of the parties. The chairperson of the arbitration panel and, where necessary, the other party shall be informed of the request. If the proceeding before the arbitration panel has been suspended for over 12 consecutive months, the powers conferred for the establishment of the arbitration panel shall become invalid and the proceeding before the arbitration panel shall be terminated. The parties may at any time agree to terminate the proceeding before the arbitration panel. The parties shall jointly notify the chairperson of the arbitration panel of this agreement.

11․ The termination of the arbitration panel’s work shall be without prejudice to the rights of the parties in any other proceeding on the same matter under Part VII of the Agreement (dispute avoidance and settlement).

3.8 Article 8: replacement of arbitrators

1․ If an arbitrator is unable to participate in the proceeding, withdraws, or must be replaced, a replacement shall be selected in accordance with Article 113 of the Agreement.

2․ Where a party considers that an arbitrator does not comply with the requirements of the code of conduct for arbitrators and for this reason should be replaced, that party shall notify the other party within 15 days of the date on which it became aware of the circumstances underlying the arbitrator’s alleged failure to comply with the code of conduct for arbitrators.

3․ The parties shall consult each other within 15 days of the date of the notification referred to in paragraph 2 of this article. The parties shall inform the arbitrator of his or her alleged noncompliance and may request that the arbitrator take the steps necessary to remedy it. They may also, if they so agree, remove the arbitrator and select a new one in accordance with the procedure set out in Article 113(2) of the Agreement and, if relevant, Article 113(3) of the Agreement.

4․ If the parties fail to agree on the need to replace an arbitrator, other than the chairperson, either party may request that such matter be referred to the chairperson of the arbitration panel, whose decision shall be final.

5․ If, pursuant to this request, the chairperson finds that an arbitrator does not comply with the requirements of the code of conduct for arbitrators, a new arbitrator shall be selected in accordance with Article 113(3) of the Agreement.

6․ Where a party considers that the chairperson of the arbitration panel does not comply with the requirements of the code of conduct for arbitrators, the parties shall consult and, if they so agree, shall dismiss the chairperson and select a replacement following the procedure set out in Article 113 of the Agreement.

7․ If the parties fail to agree on the need to replace the chairperson, either party may request that this matter be referred to one of the persons on the list of individuals selected to act as chairperson of the arbitration panel established under Article 125 of the Agreement. The name of this individual shall be drawn at random by the co-chair of the Committee of Senior Officials of the party making the request. The individual thus selected shall decide whether or not the chairperson complies with the requirements of the code of conduct of arbitrators. His or her decision shall be final.

8․ If it is found that the chairperson does not comply with the requirements of the code of conduct for arbitrators, the new chairperson shall be selected in accordance with Article 113 of the Agreement.

3.9 Article 9: hearings

1․ The timetable determined pursuant to Article 5(1) shall provide for at least one hearing for the parties to present their cases to the panel. The arbitration panel may convene additional hearings if the parties so agree.

2․ Based upon the timetable determined pursuant to Article 5(l), and after consulting with the parties and the other arbitrators, the chairperson of the arbitration panel shall notify the parties of the date, time and venue of the hearing. The party responsible for the logistical administration of the proceeding shall make this information available to the public, subject to Article 11.

3․ Unless the parties agree otherwise, the hearing shall be held in the territory of the party complained against.

4․ All arbitrators shall be present during the entirety of the hearing.

5․ The following persons may attend the hearing, irrespective of whether the proceedings are open to the public or not:
a) representatives of the parties
b) advisers to the parties
c) administrative staff, interpreters, translators and stenographers
d) arbitrators’ assistants
e) experts, as chosen by the arbitration panel pursuant to Article 121 of the Agreement

6․ No later than 5 days before the date of a hearing, each party shall deliver to the arbitration panel and to the other party a list of the names of the natural persons who shall make oral arguments or presentations at the hearing on behalf of that party, and of the other representatives of or advisers to the parties who shall be attending the hearing.

7․ The arbitration panel shall conduct the hearing in the following manner, ensuring that the complaining party and the party complained against are afforded equal time:

Argument

a) argument of the complaining party
b) argument of the party complained against

Rebuttal Argument

a) reply of the complaining party
b) counter-reply of the party complained against

8․ The arbitration panel may direct questions to either party at any time during the hearing.

9․ The arbitration panel shall arrange for a transcript of the hearing to be prepared and delivered to the parties within 15 days of the hearing. The parties may comment on the transcript, which the arbitration panel may consider, within 5 days of transmission of the document.

10․ Within 10 days of the date of the hearing, each party may deliver to the arbitrators and to the other party a supplementary written submission concerning any matter arising during the hearing.

11․ Unless the parties agree otherwise, all hearings of the panel shall be open for the public to observe ^{[footnote 1]}, except that the panel shall close the hearing for the duration of any discussion of confidential information. Attendance in the hearing room shall be limited to approved persons.

3.10 Article 10: questions in writing

1․ The arbitration panel may at any time during the proceeding address questions in writing to one or both parties. Each of the parties shall receive a copy of any questions put by the arbitration panel.

2․ Each party shall also provide the other party with a copy of its written response to the questions of the arbitration panel. Each party shall be given the opportunity to provide written comments on the other party’s response within 5 days of the date of that response.

3.11 Article 11: transparency and confidentiality

1․ Each party and the arbitration panel shall endeavour to ensure the confidentiality of any information submitted by the other party to the arbitration panel and which that party has classified as confidential. Where a party’s submission to the arbitration panel contains confidential information, that party shall also provide, within 15 days of delivery of that submission, a non-confidential version of the submission that could be disclosed to the public.

2․ Nothing in these rules of procedure shall prevent a party disclosing statements of its own positions to the public to the extent that, when making reference to information submitted by the other party, it does not disclose any information classified by the other party as confidential.

3․ The arbitration panel shall meet in closed session when the submission and arguments of a party contain confidential business information. The parties shall maintain the confidentiality of the arbitration panel hearings when the hearings are held in closed session.

3.12 Article 12: ex parte contacts

1․ The arbitration panel shall not meet or communicate with a party in the absence of the other party.

2․ No arbitrator may discuss any aspect of the subject matter of the proceeding with a party or the parties in the absence of the other arbitrators.

3․ Neither party shall meet or contact any arbitrator in relation to the proceeding in the absence of the other party.

3.13 Article 13: amicus curiae submissions

1․ The arbitration panel shall have the authority to accept and consider amicus curiae submissions from interested persons and non-governmental entities, unless the parties agree otherwise.

2․ Any such submissions shall:
a) be made within 14 days following the provision of public notice pursuant to paragraph 6 of this article
b) be no longer than 10 typed pages, including any annexes
c) be directly relevant to the factual and legal issues under consideration by the arbitration panel

3․ The submission shall contain a description of the person, whether natural or legal, making the submission, including their nationality or place of establishment, the nature of their activities and the source of their financing, and specify the nature of their interest in the panel proceeding.

4․ The arbitration panel shall promptly provide to the parties for comment copies of any amicus curiae submissions it receives. The comments of the parties which have been submitted to the arbitration panel within 15 days shall be taken into consideration by the panel.

5․ The arbitration panel shall list in its report all the amicus curiae submissions that it has received but shall not be obliged to address the factual or legal arguments made in such submissions.

6․ To facilitate the submission of amicus curiae submissions, each party shall, within 5 days after the date of the meeting referred to in paragraph 1 of Article 5, provide public notice of:
a) the establishment of the arbitration panel
b) the opportunity for interested persons and non-governmental entities to submit amicus curie submissions, and the procedures and requirements for making such submissions

3.14 Article 14: urgent cases

In the urgent cases referred to in Articles 114(2), 115(2) and 116(4) of the Agreement, the arbitration panel, after consulting the parties, shall adjust the time limits referred to in these rules of procedure as appropriate and shall notify the parties of such adjustments.

3.15 ArtícIe 15: costs

1․ Each party shall bear its costs of participation in the arbitration proceeding.

2․ The party complained against shall be responsible for the logistical administration of the arbitration proceeding, in particular for organising hearings, and shall bear all the costs of the logistical administration of the hearing.

3․ The remuneration and expenses of the arbitrators and their assistants shall be borne by the parties in equal share.

4․ Unless the parties agree otherwise, remuneration for arbitrators shall be paid at the rate for non-governmental panellists used by the World Trade Organization (WTO) on the date a party gives a notice for establishment of an arbitration panel under Article 112 of the Agreement.

5․ Unless the parties agree otherwise, the total remuneration for each arbitrator’s assistant or assistants shall not exceed 50% of the remuneration of that arbitrator.

6․ Unless the parties agree otherwise, expenses shall be paid at the daily subsistence allowance rate for the location of the hearing established by the United Nations International Civil Service Commission on the date a party gives a notice for establishment of an arbitration panel under Article 112 of the Agreement.

7․ Each arbitrator shall keep a record and render a final account to the parties of all time devoted to and expenses incurred in connection with the proceeding, as well as the time and expenses of their assistants. The arbitration panel shall keep a record and render a final account to the parties of its administrative expenses.

8․ If the arbitration panel seeks information or technical advice pursuant to Article 121 of the Agreement, the amount and details of the remuneration and expenses an expert is to receive shall be determined by the parties and shall be borne by the parties in equal share. Experts shall keep a record and render a final account to the parties of all time devoted to and expenses incurred in connection with the proceeding.

9․ If the parties agree to undertake procedures listed under Article 111 of the Agreement, the amount and details of the remuneration and expenses a mediator is to receive shall be determined by the parties and shall be borne by the parties in equal share. Mediators shall keep a record and render a final account to the parties of all time devoted to and expenses incurred in connection with the procedures.

10․ In case of resignation or removal of an arbitrator, assistant, expert or mediator, or if the parties reach a mutually satisfactory solution, the parties shall make payment of the remuneration and expenses owed, using resources provided equally by the parties, on submission of a final account, following the procedures in paragraphs 7, 8 and 9 of this Article, as applicable.

3.16 Article 16: working language for the proceeding, translation and interpretation

1․ Reports and rulings of the arbitration panel shall be drafted in the language or languages chosen by the parties. If the parties have not agreed on a common working language, the interim and final reports of the arbitration panel shall be issued in one of the working languages of the WTO.

2․ Any costs incurred for the translation of a ruling of the arbitration panel into the language or languages chosen by the parties shall be borne equally by the parties.

3․ A party may provide comments on the accuracy of any translated version of a document drawn up in accordance with these rules of procedure.

3.17 Article 17: other procedures

The time limits set out in these rules of procedure shall be adjusted in line with the special time limits provided for the adoption of a ruling by the arbitration panel in proceedings under Articles 115 to 118 of the Agreement.

4. Annex II: code of conduct for arbitrators

4.1 Article 1: definitions

For the purposes of this code of conduct, the following definitions apply:

Arbitrator: a member of an arbitration panel set up under Article 113 of the Agreement.

Assistant: a natural person who, under the terms of appointment of an arbitrator, conducts research for or provides assistance to the arbitrator.

Candidate: an individual whose name is on the list of arbitrators referred to in Article 125 of the Agreement and who is under consideration for selection as an arbitrator under Article 113 of the Agreement.

Mediator: a natural person who conducts mediation in accordance with Article 111 of the Agreement.

Staff: in respect of an arbitrator, the natural persons under the direction and control of the arbitrator, other than assistants.

4.2 Article 2: basic principles

1․ In order to preserve the integrity and impartiality of the dispute settlement mechanism, each candidate and arbitrator shall:
a) take note of this code of conduct
b) be independent and impartial
c) avoid direct or indirect conflicts of interest
d) avoid impropriety and any act that may lead to the presumption of impropriety or of bias
e) observe high standards of conduct
f) not be influenced by self-interest, outside pressures, political considerations, public protest, loyalty to a party or fear of criticism

2․ An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would interfere or appear to interfere with the proper performance of his or her duties.

3․ An arbitrator shall not use his or her position on the arbitration panel to advance any personal or private interests. An arbitrator shall avoid any action that may lead to the presumption that others are in a position to influence him or her.

4․ An arbitrator shall not allow past or existing financial, business, professional, personal, or social relationships or responsibilities to influence his or her conduct or judgement.

5․ An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his or her impartiality or that might reasonably lead to the presumption of impropriety or of bias.

6․ An arbitrator shall exercise his or her position without accepting or seeking instructions from any government, any international governmental organisation or international non-governmental organisation or any private source, and shall not have intervened in any previous stage of the dispute assigned to them.

4.3 Article 3: disclosure obligations

1․ Prior to confirmation of his or her selection as an arbitrator under Article 113 of the Agreement, a candidate shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably lead to the presumption of impropriety or of bias in the framework of the proceeding.

2․ To that end, a candidate shall strive, to the extent possible, to become aware of any such interests, relationships and matters, including financial interests, professional interests, or employment or family interests.

3․ The disclosure obligation under paragraph 1 of this Article, being a continuing duty, means that arbitrators shall disclose any such interests, relationships or matters that may arise during any stage of the proceeding.

4․ A candidate or an arbitrator shall communicate to the Committee of Senior Officials for consideration by the Parties any matters concerning actual or potential violations of this code of conduct as soon as possible after having become aware of them.

5․ In the event of any uncertainty regarding whether an interest, relationship or matter must be disclosed under this Article, a candidate or arbitrator should err in favour of disclosure.

4.4 Article 4: duties of the arbitrators

1․ Upon acceptance of his or her appointment, an arbitrator shall be available to take up his or her duties and shall perform those duties thoroughly and effectively throughout the course of the proceeding, and with fairness and diligence.

2․ An arbitrator shall consider only those issues raised in the proceeding and necessary for a ruling, and shall not delegate this duty to any other person.

3․ An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the proceeding.

4․ An arbitrator shall not engage in ex parte contacts concerning the proceeding.

5․ An arbitrator shall take all necessary steps to ensure that his or her assistant and staff are aware of, and comply with, Articles 2,3,4 and 6 of this code of conduct.

4.5 Article 5: obligations of former arbitrators

All former arbitrators must avoid actions that may lead to the presumption that they were biased in carrying out their duties or derived advantage from the ruling of the arbitration panel.

4.6 Article 6: confidentiality

1․ An arbitrator or former arbitrator shall not, at any time, disclose or use any confidential or non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interests of others.

2․ An arbitrator or former arbitrator shall not disclose a panel report or parts thereof, issued under Part VII of the Agreement prior to release of the final report by the disputing parties.

3․ An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitration panel, or the position of any of its members.

4․ An arbitrator shall not make a public statement regarding the merits of a pending proceeding.

4.7 Article 7: expenses

Each arbitrator shall keep a record and render a final account to the parties of the time devoted to the proceeding and of his or her expenses, as well as the time and expenses of his or her assistant.

4.8 Article 8: mediators

This code of conduct applies mutatis mutandis to mediators.