1. Unless the disputing parties otherwise agree, the tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
2. The Secretary-General of ICSID shall serve as appointing authority for an arbitration under this Section.
3. If a tribunal has not been constituted within 90 days from the date that a claim is submitted to arbitration under this Section, the appointing authority, on the request of a disputing party, shall appoint, in his or her discretion and after consulting with the disputing parties, the arbitrator or arbitrators not yet appointed.
4. The appointing authority may not appoint a presiding arbitrator who is a national of a Party, unless both parties to the dispute otherwise agree.
5.In the event that the appointing authority appoints a presiding arbitrator in accordance with relevant arbitration rules, the presiding arbitrator being appointed should be a recognized expert in public international law, and should be experienced in investor-state dispute settlement.
Article 27. Conduct of the Arbitration
1. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under paragraph 30f Article 24 [Submission of a Claim to Arbitration]. 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 non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Agreement.
3. Notwithstanding paragraph 2, without written consent of the disputing parties, the tribunal shall have no authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party.
Article 28. Governing Law
1. Subject to paragraph 3, when a claim is submitted under paragraphs 1(a)(i) or 1(a)(ii) of Article 24 [Submission of a Claim to Arbitration], the tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law (19).
2. Subject to paragraph 3 of this article and the other terms of this Section, when a claim is submitted under paragraph 1(a)(iii) of Article 24 [Submission of a Claim to Arbitration], the tribunal shall apply:
(a) the rules of law specified in the pertinent investment agreement, or as the disputing parties may otherwise agree; or
(b) if the rules of law have not been specified or otherwise agreed:
(i) the law of the respondent, including its rules on the conflict of laws (20); and
(ii) such rules of customary international law as may be applicable.
3. A joint decision of the Parties declaring their interpretation of a provision of this Agreement shall be binding on a tribunal of any ongoing or subsequent dispute, and any decision or award issued by such a tribunal must be consistent with that joint decision.
Article 29. Awards
1. Where a tribunal makes an award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
2. A tribunal may not award punitive damages.
3. The award shall be made available to the public promptly. (21)
4. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
Article 30. Service of Documents
Delivery of notice and other documents on a Party under Section B and C shall be made to the place named for that Party as listed out:
(a)For the People's Republic of China,
Department of Treaty and Law,
Ministry of Commerce of the People's Republic of China,
2 Dong Chang'an Avenue, Beijing, 100731,
People's Republic of China;
(b) For the Republic of Tajikistan,
Principal Department on Investment,
State Committee for Investment and State Property Management,
27 Shotemur Street, Dushanbe City, 734025,
Republic of Tajikistan.
Section C. State-State Dispute Settlement
Article 31. Consultations
1. In the event of a dispute subject to this Section, if the complaining Party intends to submit the dispute to arbitration, it shall deliver a request for consultations to the responding Party at least 180 days prior to submission of the dispute to arbitration, setting out its claims with respect to the interpretation or application of this Agreement.
2. At the receipt of such request for consultation, the Parties shall enter into consultations with a view to reaching a mutually satisfactory solution.
Article 32. Conduct of Arbitration
1. In the event that the dispute has not been settled by consultations pursuant to Article 31 [Consultations] of this Section and 180 days have elapsed since the date of the request for consultations, the complaining Party may submit its claims to arbitration in accordance with this Section and applicable rules of international law.
2. Unless the Parties agree otherwise, the UNCITRAL Arbitration Rules in effect on the date the claims were submitted to arbitration under this Section, shall govern the conduct of arbitration, except as modified by the Parties or this Agreement.
3. Articles 26 [Constitution of the Tribunal] and 28 [Governing Law] shall apply mutatis mutandis under this Section.
Article 33. Awards
1. Where a tribunal makes a final decision or award against a responding Party with respect to:
(a) a dispute concerning the interpretation or application of this Agreement, excluding a dispute referred to in sub-paragraph (b), the tribunal shall provide:
(i) a determination that the responding Party has acted inconsistently with the obligations of this Agreement; and
(ii) recommendations, if the Parties have jointly requested them, for resolution of the dispute;
(b) a dispute in which a Party exercised diplomatic protection on behalf of its investor for claims of breach of Articles 3 [National Treatment], Articles 4 [Most Favored Nation Treatment], Article 5 [Minimum Standard of Treatment], Article 6, [Compensation for Losses], Article 7 [Expropriation and Compensation], Article 8 [Transfers], Article 9 [Performance Requirement], and Article 10 [Senior Management and Board of Directors], the tribunal shall provide appropriate relief in accordance with the applicable rules of international law.
2.If the tribunal provide a determination referred to in paragraph 1(a)(i) that the measure at issue is inconsistent with a Party's obligations under this Agreement or a Party has otherwise failed to carry out its obligations under this Agreement, the responding Party shall eliminate the non-conformity or the nullification or impairment.
3. Expenses incurred by the arbitrators, and other costs of the proceedings, shall be paid for equally by the Parties. However, the tribunal may, in its discretion, direct that a higher proportion of the costs be paid by one of the Parties, in accordance with this Agreement and the applicable arbitration rules.
4. A tribunal may not award punitive damages.
5. The tribunal shall reach its award by a majority of votes.
Conclusion
IN WITNESS WHEREOF, the duly authorized representatives of their respective governments have signed this Agreement.
DONE in duplicate at Dushanbe on 5 July 2024 in the Chinese, Tajik and English languages, all texts being equally authentic. In case of any discrepancy or inconsistency, the English version shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF TAJIKISTAN
Sulton Rakhimzoda
FOR THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
Wang Wentao