(d) any other arbitration rules, if the disputing parties so agree.
3. A disputing investor may submit a claim to arbitration only if:
(a) the investor consents to arbitration in accordance with the procedures set forth in this Section; and
(b) the investor and, where the claim is for loss or damage to an interest of an enterprise of the other Contracting Party that is a legal person that the investor owns or controls, the enterprise waive their right to initiate or continue before any administrative tribunal or court under the laws of a Contracting Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Contracting Party that is alleged to be a breach of Section II, except for proceedings for injunctive, declaratory or other similar relief, not involving the payment of damages, before an administrative tribunal or court under the law of the disputing Contracting Party.
4. The consent and waiver referred to in this Article shall be in writing, delivered to the disputing Contracting Party and included in the submission of a claim to arbitration.
5. The applicable arbitration rules shall govern the arbitration except to the extent modified by t this Section.
6. Without prejudice to Article 12, a dispute may be submitted not later than three (3) years from the date that the investor first acquired or should have first acquired knowledge of the events which gave rise to the dispute. o
7. The Contracting Parties recognize that under this Article, minority non-controlling investors have standing to submit only a claim for direct loss or damage to their own legal interest as investors.
Article 17. Consent by Contracting Parties
1. Each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration in accordance with this Section.
2. The consent under paragraph 1 above and the submission of a claim to arbitration by the disputing investor shall satisfy the requirements of Chapter I of the ICSID Convention (Jurisdiction of the Centre), the ICSID Additional Facility Rules and Article II of the New York Convention for written consent of the parties to the dispute.
Article 18. Constitution of the Arbitral Tribunal
1. Unless the parties to the dispute agree otherwise, the arbitral tribunal shall be composed by three arbitrators. Each party to the dispute shall appoint one arbitrator and the disputing parties shall agree upon a third arbitrator who shall be the chairman of the arbitral tribunal.
2. The arbitrators referred to in Paragraph 1 above shall have experience in international law and investment matters.
3. If an arbitral tribunal has not been established within ninety (90) days from the date in which the claim was submitted to arbitration, either because a disputing party failed to appoint an arbitrator or because the disputing parties failed to agree upon the chairman, the Secretary-General of ICSID, upon request of any of the disputing parties, shall be asked to appoint, at his own discretion, the arbitrator or arbitrators not yet appointed. Nevertheless, the Secretary-General of ICSID, when appointing the chairman, shall assure that he or she is a national of neither of the Contracting Parties.
Article 19. Consolidation
Where two or more investors notify an intention to submit claims to arbitration which have a question of law or fact in common and arise out of the same events of circumstances, the disputing this parties shall consult with a view to harmonising the procedures to apply, where all disputing parties agree to the consolidation of the claims, including with respect to the forum chosen to hear the dispute. (4)
Article 20. Conduction of the Arbitration
1. The disputing parties may agree on the legal place of any arbitration under the applicable arbitral the rules, If the disputing, parties fail to reach agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
[2. The Tribunal shall have the authority to accept and consider written amicus curiae submissions from a person or entity that is not a disputing Party, provided that the Tribunal has determined that by they are directly relevant to the factual and legal issues under consideration. The Tribunal shall ensure an opportunity for the parties to the dispute, and to the other Party, to submit comments on the written amicus curiae observations.]
3. In an arbitration under this Section, a disputing Contracting Party shall not assert as a defense, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to at insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
4. An Arbitral Tribunal may recommend an interim measure of protection to preserve the rights of a disputing party, or to ensure that the arbitral tribunal's jurisdiction is made fully effective, including a recommendation to preserve evidence in the possession or control of a disputing party or to protect the arbitral tribunal's jurisdiction. An arbitral tribunal may not recommend attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 16.
Article 21. Applicable Law
1. A tribunal established in accordance with this Section shall decide the submitted issues in dispute in accordance with this Agreement and generally recognised principles of international law.
2. An interpretation jointly formulated and agreed upon by the Contracting Parties with regard to any provision of this Agreement shall be binding on any tribunal established under this Section.
Article 22. Awards and Enforcement
1. Unless the disputing parties agree otherwise, an award which provides that a Contracting Party has breached its obligations pursuant to this Agreement may only award, separately or in combination:
(a) monetary damages and any applicable interest; or
(b) restitution in kind, provided that the Contracting Party may pay pecuniary compensation in lieu of restitution,
2. Where a claim is submitted to arbitration for loss or damages to an enterprise:
(a) an award of restitution in kind shall provide thar restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic law.
3. Arbitral awards shall be final and binding, solely between the disputing parties and with respect to the particular case.
4.€The arbitral award will be publicly accessible, unless the disputing parties agree otherwise.
5. A tribunal may not award punitive damages.
6. Each Contracting Party shall, within its territory, adopt all necessary measures for the effective enforcement of awards issued pursuant to this Article, and shall facilitate the enforcement of any award rendered within a proceeding in which it is a party.
7. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award rendered under the ICSID Convention:
(i) one hundred and twenty (120) days have elapsed from the date in which the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or any other arbitration rules selected by the disputing parties:
(i) three (3) months have elapsed from the date in which the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
Section IV. State-State Dispute Settlement
Article 23. Application
1. This Section applies to the settlement of disputes between the Contracting Parties arising from the interpretation or application of the provisions of this Agreement.
2. A Contracting Party may not initiate proceedings in accordance with this Section with regard to a dispute concerning the violation of the rights of an investor, unless the other Contracting Party fails to abide by or comply with a final award rendered in a dispute that such investor may have submitted pursuant to Section III. In this case, an Arbitral Tribunal established in conformity with this Section may render, upon request of the Contracting Party whose investor was part in the dispute:
(a) a statement that the failure to abide by or comply with the final award is inconsistent with the obligations set forth in this Agreement; and
(b) a recommendation that the other Contracting Party abide by or comply with the final award.
Article 24. Consultations and Negotiations
1. If a dispute arises between the Contracting Parties on the interpretation or application of this Agreement, it shall, to the extent possible, be settled amicably through consultations and negotiations.
2. In the event the dispute is not settled through the means mentioned above within six (6) months, from the date such negotiations or consultations were requested in writing, any Contracting Party may submit the dispute to an arbitral tribunal established in accordance with the provisions of this Section or, by agreement of both Contracting Parties, to any other international tribunal.
Article 25. Constitution of the Arbitral Tribunal
1. Arbitration proceedings shall initiate upon written notice delivered by one Contracting Party (the requesting Contracting Party) to the other Contracting Party (the respondent Contracting Party) through diplomatic channels. such notice shall contain a statement setting forth the legal and factual grounds of the claim, a summary of the development and results of the consultations and negotiations that took place pursuant to Article 24, the requesting Contracting Party's intention to initiate proceedings under this Section, and the name of the arbitrator appointed by such requesting Contracting Party.
2. Within thirty (30) days after the delivery of such notice, the respondent Contracting Party shall notify the requesting Contracting Party the name of its appointed arbitrator.
3. Within thirty (30) days following the date in which the second arbitrator was appointed, the arbitrators appointed by the Contracting Parties shall appoint, by mutual agreement, a third arbitrator, who shall be the presiding arbitrator upon approval of the Contracting, Parties. If the approval has not been rendered within thirty (30) days following the date in which the third arbitrator was appointed, paragraph 4 below shall apply.
4. If within the time limits provided for in paragraph 2 and 3 above, the required appointments approvals have not been given, either Contracting Party may invite the President of the International Court of Justice to appoint the arbitrator or arbitrators not yet appointed. If the President is a citizen or a permanent resident of either Contracting Party, or he or she is otherwise unable to act, the Vice-President shall be invited to make the referred appointment(s). If the Vice-President is a citizen or a permanent resident of either Contracting Party, or he or she is otherwise unable to act, the member of the International Court of Justice next in seniority who is not a citizen nor a permanent resident of either Contracting Party, shall be invited to make the necessary appointment(s).
5. In case an arbitrator appointed as provided for in this Article resigns or becomes unable to act, a successor shall be appointed in the same manner as that prescribed for the appointment of the original arbitrator, and he or she shall have the same powers and duties that the original arbitrator had.
Article 26. Conduct of the Arbitration
1. Once convened by the presiding arbitrator, the arbitral tribunal shall determine the seat of arbitration and the date of initiation of the arbitral process.
2. The arbitral tribunal shall decide all questions relating to its competence and, subject to any agreement between the Contracting Parties, determine its own procedure.
3. At any stage of the proceedings and before it issues any resolution, the arbitral tribunal may propose to the Contracting, Parties that the dispute be settled amicably.
4. At all times, the arbitral tribunal shall afford a fair hearing to the Contracting Parties.
Article 27. Applicable Law
A tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and with generally recognized principles of international law.
Article 28. Award
1. The arbitral tribunal shall reach its decision by majority vote. The award shall be issued in writing and shall contain the applicable factual and legal findings. A signed award shall be delivered to each Contracting Party.
2. The award shall be final and binding on the Contracting Parties.
Article 29. Costs
Each Contracting Party shall bear the costs of its appointed arbitrator and of any legal representation in the proceedings, The costs of the presiding arbitrator and of other expenses associated with the conduct of the arbitration shall be borne equally by the Contracting Parties, unless the arbitral tribunal decides that a higher proportion of costs be borne by one of the Contracting Parties.
Section V. Final Provisions
Article 30. Consultations
A Contracting Party may propose to the other Contracting Party to carry out consultations on any matter relating to this Agreement. These consultations shall be held at a place and at a time agreed by the Contracting Parties.
Article 31. Denial of Benefits
The Contracting Parties may decide jointly in consultation to deny the benefits of this Agreement to an enterprise of the other Contracting Party and to its investments, if a natural person or enterprise of a non-Contracting Party owns or controls such enterprise.
Article 32. Entry Into Force, Duration and Termination
1. The Contracting Parties shall notify each other in writing of the fulfilment of their domestic legal procedures in relation to the approval and entry into force of this Agreement.
2. This Agreement shall enter into force thirty (30) days after the date of the latter notification carried out through the diplomatic channels used by both Contracting Parties to notify the fulfilment of the requirements referred to in paragraph 1 above.
3. This Agreement shall remain in force for a period of ten (10) years and thereafter shall be in force for an indefinite period of time, unless either of the Contracting Parties delivers through diplomatic channels to the other Contracting Party a written notice of its decision to terminate this Agreement, with twelve (12) months in advance.
4. With respect to investments made prior to the termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten (10) years from the date of termination.
5. This Agreement may be modified by mutual consent of the Contracting Parties, and the agreed modification shall come into effect pursuant to the procedures set forth in paragraphs 1 and 2 above.
Conclusion
IN WITNESS WHEREOF the undersigned, duly authorized thereto by respective governments, have signed this Agreement.
Done in duplicate at______ on ________________in the Chinese, and ____________ and English languages, all texts being equally authentic. In case of divergent interpretation, the English text shall prevail.
For the Government of the People's Republic of China
For the Government of _________________________________