rijk/verdrag/verklaring-van-bepaalde-europese-regeringen-inzake-de-exploitatiefase-van-de-lan/BWBV0006861

titel	bwb_id	type	status	datum_inwerkingtreding	bron	citeertitel
Verklaring van bepaalde Europese Regeringen inzake de exploitatiefase van de lanceervoertuigen Ariane, Vega en Sojoez vanaf het Ruimtevaartcentrum in Guyana	BWBV0006861	verdrag	geldend	2009-11-26	https://wetten.overheid.nl/BWBV0006861	Verklaring van bepaalde Europese Regeringen inzake de exploitatiefase van de lanceervoertuigen Ariane, Vega en Sojoez vanaf het Ruimtevaartcentrum in Guyana

Verklaring van bepaalde Europese Regeringen inzake de exploitatiefase van de lanceervoertuigen Ariane, Vega en Sojoez vanaf het Ruimtevaartcentrum in Guyana

Artikel I

1. Through this Declaration the Parties hereto agree on a common framework for the exploitation phase of ESA developed launchers and of the Soyuz launcher operated from the CSG beyond 2008, succeeding to the scheme of the Ariane Production Declaration described in the preamble. The launchers exploitation phase, which follows the qualification process as described in the Reference Framework mentioned in the preamble, includes the relevant launcher manufacturing, launcher integration, launch operations and marketing activities.

2. The guarantee of an available, reliable, and independent access to space for Europe at affordable conditions has been and will remain an essential goal for the Parties hereto.

3. Guaranteed access to space shall be assured by (i) launchers developed and produced by European industry, primarily designed to respond to European institutional mission needs, (ii) an operational European launch base and (iii) European industrial capabilities.

4. The launchers exploitation phase shall be carried out for peaceful purposes in compliance with the Outer Space Treaty and the ESA Convention.

5. The Parties hereto decide to entrust the execution of the exploitation phase of the ESA developed launchers and of the Soyuz launcher operated from the CSG to Arianespace (hereinafter the “launch service provider”) in compliance with the roles and responsibilities defined in the Reference Framework referred to in the preamble; for this purpose, the Agency concludes arrangements with the launch service provider in accordance with the guidelines provided for in section III below. Such arrangements succeed to the Convention between ESA and Arianespace mentioned in the preamble while assuring continuity with the same.

6. The exploitation of the ESA developed launchers shall respect the industrial and geographical distribution of work resulting from the relevant development programmes undertaken by the Agency, subject to the specific provisions of the relevant exploitation agreements for each of the ESA developed launchers to be concluded among the States participating in the relevant Agency launcher development programme as mentioned in the preamble and to the provisions of the arrangements between ESA and the launch service provider foreseen in section III below.

7. The European launch base shall be maintained in operational conditions so as to allow ready access to space for the Parties to this Declaration. The Parties undertake for their part to contribute to the funding of the CSG launch range in accordance with specific arrangements.

8.

The Parties hereto will take the ESA developed launchers and the Soyuz launcher operated from the CSG into account when defining and executing their national programmes as well as the European and other international programmes in which they are involved, except where such use compared to the use of other launchers or space transport means available at the envisaged time presents an unreasonable disadvantage with regard to cost, reliability or mission suitability.

Preferenee to their utilisation shall be granted by the Parties in the following order of priority:

– – ESA developed launchers, – – the Soyuz launcher operated from the CSG when comparing the options to launch missions by non ESA-developed launchers, – – other launchers.

9. The Parties hereto agree to support collectively the setting-up of a framework governing the procurement of launch services for European institutional programmes and ensuring a level playing field for Europe on the worldwide market for launch services.

10.

In the case of sales of launch services provided through one of the launch systems which are the subject of this Declaration to a State which is not a member of the Agency or to a customer that does not come under the jurisdiction of a Member State of the Agency:

a) a) The Parties agree to set up a Committee, hereinafter referred to as “the Sales Control Committee”, which will succeed to the sales contral committee set up under the Ariane Praduction Declaration mentioned in the preamble, and will have the responsibility for determining whether a projected launch sale constitutes use that runs counter to the provisions of section I.4 above. The Sales Control Committee shall comprise one representative of each Party hereto. The members of the Sales Contral Committee shall be kept informed by the Director General of the Agency of projected sales of launch services by the launch service provider to States which are not members of the Agency and to customers that come under the jurisdiction of such States. The Sales Control Committee shall be convened as follows: one-third of the members may request a meeting on the grounds that the use of a launcher would run counter to the provisions of section I.4 above. This request must be made not more than four weeks after the members of the Sales Contral Committee have been informed of the proposed contract. The Sales Contral Committee must then be convened within two weeks. Within four weeks at the most, it may decide to prohibit the projected launch sale on the grounds that it is incompatible with the provisions of section I.4 above, doing so by a two-thirds majority of its members. This decision shall be binding on the launch service provider. In the exercise of the competences that France holds by virtue of the Outer Space Treaty, France undertakes to take the necessary steps to ensure the proper implementation of the prohibition decisions taken by the Sales Control Committee. b) b) Without prejudice to the obligations devolving upon it under this Declaration, any Party shall retain the right to declare that for reasons of its own, it does not associate itself with a particular launch. c) c) If a Party considers that the sale of a launch is not compatible with its adherence to this Declaration, it must, after such consultations as it may deem necessary, inform the Director General of the Agency. If, after the Director General has informed the launch service provider, the sale goes through, the Party may immediately suspend its adherence to this Declaration in respect of the sale in question, on condition that it formally notifies the Agency and the other Parties hereof within one month and that it respects the commitments it has entered into with regard to other sales. The Party shall keep available the national assets and intellectual property rights as defined in section I.11 below, used for the exploitation of the launcher and shall not oppose their use. Should the Party concemed object to making available, for the purposes of the launch in question, equipment and subsystems manufactured by its national industry, it shall be bound, within the framework of its powers, to facilitate the transfer of the manufacture of the relevant supplies to the industries of the other Parties, and may not under any circumstances oppose the manufacture of the supplies in question by the industries of the other Parties. d) d) The Sales Contral Committee shall establish its own rules of procedures.

11.

The Parties hereto undertake to make available to the launch service provider when required for the purposes of the exploitation of the ESA developed launchers and of the Soyuz launcher operated from the CSG:

– – under financial conditions limited to the costs incurred on that account, the assets which are owned by certain Parties hereto and which have been used for the development programmes of the ESA developed launchers and of the Soyuz at CSG programme, with the exception of the CSG launch range to which the specific provisions of section I.7 above shall apply; – – free of charge, the intellectual property rights belonging to them and deriving from the development programmes of the ESA developed launchers and of the Soyuz at the CSG programme; the launch service provider shall have access free of charge to technical information in their possession resulting from the said programmes.

12. The Parties hereto shall do their utmost to provide ESA and the launch service provider with the assistance required with regard to industrial quality surveillance and price surveys.

13. If, in connection with an export sale, it proves desirable to lay down special arrangements regarding guarantees and export financing, the Parties shall consult together to determine how such a request can be met on the basis of the principle of equitable distribution of the risk and the funding, pro rata to participation in exploitation as defined in the exploitation agreements mentioned in the preamble.

14. The Parties agree that they will consult together on the steps to be taken in case of major modifications of the features of the launch service provider or in case of events which may have a major impact on its business or on the future of the ESA developed launchers and of the Soyuz launcher from CSG.

Artikel II

The Parties to this Declaration:

1. 1. Invite the Agency to ensure that the provisions of this Declaration are complied with and applied and that their rights are safeguarded and to monitor that the activities performed by the launch service provider and industry during the exploitation phase do not put into question the qualification of the launch systems, including the related facilities;
2. 2. Invite the Agency to agree, through a Council decision, to the mandate given to it under the terms of this Declaration in conformity with Article V.2 of the ESA Convention;
3. 3. Invite the Agency to conclude specific arrangements with the launch service provider as foreseen in section III below in accordance with the principles contained in the present Declaration;

4. 4. Invite the Agency to agree that the reporting to the Parties on matters relevant to the mandate entrusted to it through this Declaration is made at the occasion of the meetings of the Council of the Agency or of its subordinate body entrusted with launcher related matters; such reporting activities will take place at least once a year and will include in particular:

      a)
      reports on the financial needs and funding of the CSG;
      
      
      b)
      reports by the Agency Director General or his representative on the world launch services market and associated critical analysis;
      
      
      c)
      detailed reports by the Agency Director General or his representative on the overall geographical distribution of work related to exploitation among the Parties to this Declaration;
      
      
      d)
      reports by the Agency Director General on the distribution of industrial work related to exploitation;
      
      
      e)
      detailed reports by the Agency Director General on the basis of the data acquired pursuant to the provisions of section III.1.n) below and reports on the annual business plan presented by the representative of the launch service provider on its activities. On that occasion, the Council or its subordinate body may make any recommendation to the launch service provider that it considers useful for attaining the objectives of this Declaration. It may request the launch service provider to supply it with further reports;
      
      
      f)
      reports by the Agency Director General on the launch service provider's activities, including any development in the structure and/or the composition of the shareholdings of the launch service provider's company and its group;
      
      
      g)
      reports by the chairman of the Sales Control Committee;
      

a) a) reports on the financial needs and funding of the CSG; b) b) reports by the Agency Director General or his representative on the world launch services market and associated critical analysis; c) c) detailed reports by the Agency Director General or his representative on the overall geographical distribution of work related to exploitation among the Parties to this Declaration; d) d) reports by the Agency Director General on the distribution of industrial work related to exploitation; e) e) detailed reports by the Agency Director General on the basis of the data acquired pursuant to the provisions of section III.1.n) below and reports on the annual business plan presented by the representative of the launch service provider on its activities. On that occasion, the Council or its subordinate body may make any recommendation to the launch service provider that it considers useful for attaining the objectives of this Declaration. It may request the launch service provider to supply it with further reports; f) f) reports by the Agency Director General on the launch service provider's activities, including any development in the structure and/or the composition of the shareholdings of the launch service provider's company and its group; g) g) reports by the chairman of the Sales Control Committee; 5. 5. Invite the Agency to treat the reports and information referred to above, which may be of a confidential nature, as such; 6. 6. Provide that the representatives of the Parties to this Declaration take the occasion of meetings of the Council of the Agency or of its subordinate body entrusted with launcher related matters to reach agreement on any matters relating to implementation of this Declaration; 7. 7. Invite the Council of the Agency to authorise the Director General of the Agency to exercise the duties of depositary of this Declaration and those described in section V below; 8. 8. Invite the Agency to assist the launch service provider in the promotion of the launcher export activities, in particular in approaching international organisations; 9. 9. Invite the Agency to provide the launch service provider with the assistance required with regard to industrial quality surveillance and price surveys.

Artikel III

1.

In execution of the mandate entrusted to the Agency under this Declaration and in compliance with the 2005 Launchers Resolution, ESA concludes arrangements with the launch service provider, succeeding to the Convention between ESA and Arianespace and its subsequent riders mentioned in the preamble while assuring continuity with the same. Such arrangements, which will include specific provisions applicable separately to each ESA developed launcher and to the Soyuz launcher operated from the CSG, will contain the commitment of the launch service provider, in consideration of the tasks entrusted to it, to:

a) a) carry out the activities entrusted to it in compliance with the ESA Convention, with the provisions of the Outer Space Treaty and with the applicable national laws and regulations; b) b) conform to the decisions taken by the Sales Contral Committee set up under section I.10 above; c) c) agree that:

        –
        its main company's purpose consists in the exploitation of the ESA developed launchers;
      
      
        –
        the exploitation of the Soyuz launcher from the CSG is carried out by it in support of its main company's purpose;
      
      
        –
        the exploitation of other launchers from the CSG may be carried out by it, following agreement of the ESA Council and of the French Govemment, in support of its main company's purpose;
      
      
        –
        any other activities may be carried out by it upon consultation of the ESA Council and shall not have a negative impact on its main company's purpose;
      
      
        –
        all the aforementioned activities shall be carried out by it in compliance with the relevant ESA Council decision(s) and, as appropriate, with the agreement(s) concluded between ESA and France;
      
      
        –
        it shall respect the order of priority set out in section I.8 above;

– – its main company's purpose consists in the exploitation of the ESA developed launchers; – – the exploitation of the Soyuz launcher from the CSG is carried out by it in support of its main company's purpose; – – the exploitation of other launchers from the CSG may be carried out by it, following agreement of the ESA Council and of the French Govemment, in support of its main company's purpose; – – any other activities may be carried out by it upon consultation of the ESA Council and shall not have a negative impact on its main company's purpose; – – all the aforementioned activities shall be carried out by it in compliance with the relevant ESA Council decision(s) and, as appropriate, with the agreement(s) concluded between ESA and France; – – it shall respect the order of priority set out in section I.8 above; d) d) implement a payload allocation policy with the objective to secure, for each ESA developed launcher, the minimum launch rate contributing to maintain the European industrial capabilities necessary to secure the guarantee of access to space for Europe and taking into account the range of their respective performances; e) e) establish a business plan, including a risk assessment, defined on the basis of committing objectives agreed with the Agency such as cost, reliability, launch rate capability and schedule and jointly agreed, with respect to ESA developed launchers, with the relevant launcher system prime contractors; f) f) respect, for each ESA developed launcher concerned, the industrial distribution of work resulting from all the relevant launcher development programmes undertaken by the Agency in compliance with the provisions in the exploitation agreements mentioned in the preamble on the basis of the following provisions:

        –
        if the launch service provider considers that this distribution cannot be maintained because industrial proposals are unreasonable in terms of price, quality or delivery dates, it shall put the work out to competitive tender;
      
      
        –
        before taking any such measure, the launch service provider shall notify the Party concerned and the Director General of the Agency of its intention to do so, providing reasoned grounds in support of it so that together a solution can be found within a reasonable time. The Agency shall be associated with the procedure leading to any change in the industrial distribution of work resulting from all ESA developed launcher programmes undertaken by the Agency. The procedures shall be as set out in the specific arrangements concluded between the Agency and Arianespace in accordance with the provisions of section II.3 above;
      
      
        –
        the previous contractor may match the best financial offer and shall have priority in relation to all industrial proposals that are equivalent in terms of prices, delivery dates and quality;

– – if the launch service provider considers that this distribution cannot be maintained because industrial proposals are unreasonable in terms of price, quality or delivery dates, it shall put the work out to competitive tender; – – before taking any such measure, the launch service provider shall notify the Party concerned and the Director General of the Agency of its intention to do so, providing reasoned grounds in support of it so that together a solution can be found within a reasonable time. The Agency shall be associated with the procedure leading to any change in the industrial distribution of work resulting from all ESA developed launcher programmes undertaken by the Agency. The procedures shall be as set out in the specific arrangements concluded between the Agency and Arianespace in accordance with the provisions of section II.3 above; – – the previous contractor may match the best financial offer and shall have priority in relation to all industrial proposals that are equivalent in terms of prices, delivery dates and quality; g) g) use the rights and information made available to it under sections I.11 above and III.2 below only for the purposes of the execution of the exploitation of the ESA developed launchers and the Soyuz launcher operated from the CSG and not disclose such rights and information to, or authorise the use thereof by, third parties without the owner's consent; comply with the applicable national export control rules and regulations and with the Agency's procedures relevant to technology transfers outside the Member States of the Agency; reflect the above restrictions in the contracts with its customers and suppliers; h) h) reimburse the French Govemment, with a ceiling of 60 M€ per launch, the amount of any damages it may be required to pay under the terms of section IV a) and c) of this Declaration, in the event of proceedings being instituted by the victims of damage caused by an Ariane launch or a Soyuz launch carried out by the launch service provider from the CSG during the exploitation phase; i) i) reimburse the French Govemment and ESA, pro rata to their respective shares of liability as defined in section IV b) of this Declaration and within a ceiling of 60 M€ per launch, the amount of any damages they may be required to pay in the event of proceedings being instituted by the victirns of damage caused by a Vega launch carried out by the launch service provider from the CSG during the exploitation phase; j) j) undertake care and custody of the assets and information made available to it by the Parties hereto and by the Agency and indemnify the owner(s) for any damage thereto caused by itself, its employees or persons at its service or by third parties; k) k) take out the appropriate insurance cover or equivalent guarantee for the liabilities described in sections III.1 h) i) j) above and the other liabilities and risks associated with the carrying out of its activities provided for in the arrangements mentioned in this section III.1; the terms of such insurance cover or guarantee will be agreed upon with the Agency and with the French Government; l) l) ensure that the activities carried out by it and by its suppliers during the exploitation phase do not put into question the qualification status of the launcher system and of the relevant production as sets and have the technical and financial responsibility for maintaining in good operational order the assets made available to it under the terms of sections I.11 above and III.2 below, in accordance with arrangements concluded with the owners. Subject to the above, the launch service provider, in agreement with the owners, may make modifications to these assets, as it deems necessary for its activities. Failing agreement, the launch service provider may carry out such modifications, guaranteeing that the assets will be restored to their initial state at the time of returning them; m) m) contribute to the funding of the costs associated with the use of the CSG launch range, according to the provisions referred to the 2005 Launchers Resolution mentioned in the preamble; n) n) undertake to afford the Agency' s Director General the visibility and audit rights it needs towards the launch service provider and its suppliers, and in particular on the yearly exploitation costs and revenues for each launcher and on the evolution of the business plan, in order to carry out the mandate assigned to it in this Declaration and under the ESA Convention and to provide the information and reports foreseen in section II.4 above; o) o) undertake, in discharging its responsibilities for marketing the launchers, in its relations with outside parties, with its customers and with the public, to emphasise the European and multilateral character of the development and exploitation of the ESA developed launchers, by mentioning, especially on written and audio-visual materials, that the relevant development programmes have been carried out by the Agency and by drawing attention to the role played in such development by the Parties to this Declaration; p) p) supply the Agency and the Parties hereto, giving them priority over third-party customers, with the launch services and slots required, under the following conditions:

        –
        the Agency and the Parties shall communicate to the launch serviceprovider their requests for services as their requirements arise, taking up cost-free options; in the event of a conflict of priorities between the Agency and a Party, the Agency shall have priority; in the event of a conflict of priorities between the Parties, those participating in the relevant launcher Agency's development programme shall have priority;
      
      
        –
        when a third-party customer requests a fee-paying option, or wishes to place a firm order, in respect of a slot reserved cost-free by the Agency or a Party, the Agency or the Party in question may convert its cost-free option into a fee-paying option or a firm order and retain its priority;
      
      
        –
        the arrangements between the Agency and Arianespace shall contain a model clause, which is to be included in the launch sale contracts, defining the procedure to be applied in the event of a slippage of the launch slot;

– – the Agency and the Parties shall communicate to the launch serviceprovider their requests for services as their requirements arise, taking up cost-free options; in the event of a conflict of priorities between the Agency and a Party, the Agency shall have priority; in the event of a conflict of priorities between the Parties, those participating in the relevant launcher Agency's development programme shall have priority; – – when a third-party customer requests a fee-paying option, or wishes to place a firm order, in respect of a slot reserved cost-free by the Agency or a Party, the Agency or the Party in question may convert its cost-free option into a fee-paying option or a firm order and retain its priority; – – the arrangements between the Agency and Arianespace shall contain a model clause, which is to be included in the launch sale contracts, defining the procedure to be applied in the event of a slippage of the launch slot; q) q) undertake such other commitments as may be necessary to implement the tasks entrusted to it. No provision of this Declaration shall be interpreted as a request to the launch service provider to pursue any activity which would result in continuous financial losses.

2.

The Parties take note that ESA shall make available to the launch service provider, when required for the purpose of the launchers exploitation:

– – free of charge the production master files stemming from the development programme relevant to each ESA developed launcher, as a basis for carrying out the relevant exploitation phase; – – free of charge, the facilities, equipment and tooling acquired within the framework of the development programme relevant to each ESA developed launcher and to the Soyuz launcher operated from the CSG, and of which the Agency is the owner. These assets may also, in agreement with the launch service provider, be made available to its suppliers; – – free of charge, its intellectual property rights deriving from the development programme relevant to each ESA developed launcher and from the programme relevant to the Soyuz launcher operated from the CSG; the launch service provider shall have access free of charge to the technical information in the Agency's possession, resulting from the said programmes.

3. An active dialogue shall be maintained between the launch service provider and the Agency, in order to monitor that the objectives of the launcher development programmes undertaken within the framework of the Agency take into account foreseeable trends of the launch services market.

Artikel IV

Subject to the undertakings of the launch service provider as foreseen in section III above, the Parties to this Declaration:

a) a) agree that in the event of proceedings being instituted by the victims of damage caused by an Ariane launch carried out by the launch service provider from the CSG during the exploitation phase, the French Government shall be responsible for the payment of any damages that may be awarded; b) b) take note of the liability principles defined in the 2005 Launchers Resolution for all launchers developed by the Agency other than Ariane and agree that in the event of proceedings being instituted by the victims of damage caused by a Vega launch carried out by the launch service provider from the CSG during the exploitation phase, the French Government shall be responsible for the payment of one third of any damages that may be awarded and the Agency shall be responsible for the payment of the remaining two-thirds; for such launcher, the Member States of the Agency which are Participating States in the relevant development programmes of the Agency will conclude the corresponding exploitation agreement mentioned in the preamble which shall regulate the sharing of such Agency's liability in accordance with the 2005 Launchers Resolution; it is understood that no other Member State of the Agency will be held responsible for the payment of any part of this 2/3 share; c) c) agree that in the event of proceedings being instituted by the victims of damage caused by a Soyuz launch carried out by the launch services provider from the CSG during the exploitation phase, the French Government shall be responsible towards ESA and the Parties to this Declaration for the payment of any damages that may be awarded; d) d) take note of the Resolution on the Agency's legal liability mentioned in the preamble and agree that sections IV.a), b) and c) shall not apply in cases where the Agency is the customer of the launch service provider and if it is found that the source of the damage is an Agency satellite; e) e) agree that the responsibilities taken on by the French Government in sections IV.a), b) and c) above shall not apply if the damage is caused by a deliberate act or omission on the part of the Agency, persons employed by it or its Member States (with the exception of the French State and public bodies under its authority), and that the responsibilities taken on by the Agency in section IV. b) above shall not apply if the damage is caused by a deliberate act or omission on the part of the French State or public bodies under its authority.

Artikel V

1. The Republic of Austria, the Kingdom of Belgium, the Kingdom of Denmark, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Kingdom of Norway, the Portuguese Republic, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, which are Member States of the European Space Agency may become a Party to this Declaration as from 30 March 2007 by notifying the Director General of the Agency in writing of their acceptance to become a Party. This Declaration shall enter into force when two-thirds of the Member States of the Agency have notified the Director General of the Agency in writing of their acceptance to become a Party. After its entry into force, any of the above ESA Member States may become a Party to this Declaration by notifying the Director General of the Agency of their acceptance to become a Party. This Declaration shall enter into force for such Member States 30 days after the date on which they notify the Direc tor General of the Agency of their acceptance to become a Party

2. After the entry into force of this Declaration, it shall be open for accession to any State becoming a new Member of the European Space Agency if it so requests. Any such request to accede shall be addressed to the Director General of the Agency and shall require the agreement of all the Parties to this Declaration. This Declaration shall enter into force for a Member State that has acceded to it 30 days after the date on which it notifies the Director General of the Agency of its accession.

3. Provided the condition set forth in section V.l above occurs, this Declaration is applicable as from 1 January 2009 until the end of 2020. The provisions of this Declaration shall remain applicable beyond the above expiration date in order to allow, where appropriate, for the execution of launch contracts concluded by the launch service provider up to the end of 2020. The parties hereto invite the Director General of the Agency to convene a meeting among them in 2014 in order to evaluate the progress of its implementation and the appropriate measures to be taken.

4. The Parties to this Declaration shall consult together on the conditions for its renewal in good time and not less than two years before the Declaration is due to expire.

5. The Parties to this Declaration shall meet, at the request of at least four of them, for the purpose of reviewing the provisions of this Declaration and its implementation. In the context of these reviews, the Director General of the Agency or any Party may formulate proposals to the Parties to this Declaration in order to amend the content of this Declaration. Amendments to the provisions of this Declaration shall be adopted by the unanimous acceptance of the Parties hereto.

6. The provisions of this Declaration are intended to regulate only the relationship between the Parties hereto; they do not affect or modify the agreements that any of the Parties to this Declaration may have entered into with third parties prior to the effective date of this Declaration as foreseen in section V.1 above; they cannot be affected or modified by the agreements that any of the Parties to this Declaration may enter into with third parties after the effective date of this Declaration.

Artikel VI

Any dispute arising between two or more Parties over the interpretation or implementation of this Declaration and not settled through the intervention of the Agency's Council, shall be settled in accordance with the provisions of Article XVII of the ESA Convention.