1. Any Tribunal award under this Section shall be publicly available, subject to the redaction of confidential information. All other documents submitted to, or issued by, the Tribunal shall be publicly available unless the disputing parties otherwise agree, subject to the redaction of confidential information.
2. Hearings held under this Section shall be open to the public. The Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information, including business confidential information.
3. A disputing party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in such documents.
4. The Parties may share with officials of their respective central and sub-national governments all relevant unredacted documents in the course of dispute settlement under this Agreement, but they shall ensure that those persons protect any confidential information in such documents.
5. To the extent that a Tribunal's confidentiality order designates information as confidential and a Party's law on access to information requires public access to that information, the Party's law on access to information shall prevail. However, a Party should endeavour to apply its law on access to information so as to protect information designated confidential by the Tribunal.
Article 31. Submissions by a Non-disputing Party
A Tribunal shall have the authority to consider and accept written submissions from a person or entity that is not a disputing party and that has a significant interest in the arbitration. The Tribunal shall ensure that any non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice either disputing party.
Article 32. Governing Law
1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. A joint interpretation by the Parties of a provision of this Agreement shall be binding on a Tribunal established under this Section, and any award under this Section shall be consistent with such interpretation.
2. Where a disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex I or Annex II, on request of the disputing Party, the Tribunal shall request the joint interpretation of the Parties on the issue. The Parties shall submit in writing their joint interpretation to the Tribunal. Further to paragraph 1, the joint interpretation shall be binding on the Tribunal. If the Parties fail to submit the joint interpretation within 60 days of the delivery of the request, the Tribunal shall decide the issue.
Article 33. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal, at the request of a disputing party, or on its own initiative unless the disputing parties disapprove, may appoint experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party, subject to such terms and conditions as the disputing parties may agree.
Article 34. Interim Measures of Protection and Final Award
1. A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal's jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 20 (Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise). For purposes of this paragraph, an order includes a recommendation.
2. Where a Tribunal makes a final award against the disputing Party, the Tribunal may award, separately or in combination, only:
1. monetary damages and any applicable interest;
2. restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
The Tribunal may also award costs in accordance with the applicable arbitration rules.
3. Subject to paragraph 2, where a claim is made under paragraph 2 of Article 20 (Claim by a Disputing Investor of a Party on Its Own Behalf or on Behalf of an Enterprise):
1. an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise;
2. an award of restitution of property shall provide that restitution be made to the enterprise; and
3. 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.
4. A Tribunal may not award punitive damages.
Article 35. Finality and Enforcement of an Award
1. An award made by a Tribunal shall have no binding force except between the disputing parties and in respect of that particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party may not seek enforcement of a final award until:
1. in the case of a final award made under the ICSID Convention:
1. 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award, or
2. revision or annulment proceedings have been completed; and
2. in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
1. 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
2. a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its territory.
5. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.
Article 36. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a disputing Party shall not assert as a defence, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Section D. State-to-state Dispute Settlement Procedures
Article 37. Disputes between the Parties
1. Either Party may request consultations on the interpretation or application of this Agreement. The other Party shall give sympathetic consideration to the request. Any dispute between the Parties concerning the interpretation or application of this Agreement shall, whenever possible, be settled amicably through consultations.
2. If a dispute cannot be settled through consultations, it shall, at the request of either Party, be submitted to an arbitral panel for decision.
3. An arbitral panel shall be constituted for each dispute. Within two months after receipt through diplomatic channels of the request for arbitration, each Party shall appoint one member to the arbitral panel. The two members shall then select a national of a third State who, upon approval by the two Parties, shall be appointed Chair of the arbitral panel. The Chair shall be appointed within two months from the date of appointment of the other two members of the arbitral panel.
4. If within the periods specified in paragraph 3 the necessary appointments have not been made, either Party may invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Party or is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of either Party or is prevented from discharging the said function, the Member of the International Court of Justice next in seniority, who is not a national of either Party, shall be invited to make the necessary appointments.
5. Arbitrators shall have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent of, and not be affiliated with or take instructions from, either Party.
6. Where a Party determines that the dispute involves measures relating to financial institutions, or to investors or investments of such investors in financial institutions, or where a Party invokes paragraph 6 of Article 11 (Transfers), paragraphs 2 or 3 of Article 17 (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 5, have expertise or experience in financial services or practice, which may include the regulation of financial institutions.
7. The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. Such decision shall be binding on both Parties. Unless otherwise agreed, the decision of the arbitral panel shall be rendered within six months of the appointment of the Chair.
8. Each Party shall bear the costs of its own member of the panel and of its representation in the arbitral proceedings. The costs related to the Chair and any remaining costs shall be borne equally by the Parties. The arbitral panel may, however, award that a higher proportion of costs be borne by one of the two Parties, and this award shall be binding on both Parties.
9. Within 60 days of the decision of a panel, the Parties shall reach agreement on the manner in which to resolve their dispute. Such agreement shall normally implement the decision of the panel. If the Parties fail to reach agreement, the Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel.
Section E. Final Provisions
Article 38. Consultations and other Actions
1. A Party may request in writing consultation with the other Party regarding any actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
2. The consultations under paragraph 1 may address, inter alia, matters relating to:
1. the implementation of this Agreement; or
2. the interpretation or application of this Agreement.
3. Further to consultations under this Article, the Parties may take any action as they may agree, including making and adopting rules supplementing the applicable arbitral rules under Section C (Settlement of Disputes between an Investor and the Host Party) of this Agreement.
Article 39. Extent of Obligations
The Parties shall ensure that all necessary measures are taken in order to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by sub-national governments.
Article 40. Exclusions
The dispute settlement provisions of Sections C (Settlement of Disputes between an Investor and the Host Party) and D (State-to-State Dispute Settlement Procedures) of this Agreement shall not apply to the matters in Annex III.
Article 41. Application and Entry Into Force
1. All Annexes and footnotes shall form an integral part of this Agreement.
2. Each Party shall notify the other in writing of the completion of the procedures required in its territory for the entry into force of this Agreement. This Agreement shall enter into force on the date of the latter of the two notifications.
3. This Agreement shall remain in force unless either Party notifies the other Party in writing of its intention to terminate it. The termination of this Agreement shall become effective one year after notice of termination has been received by the other Party. In respect of investments or
Commitments to invest made prior to the date when the termination of this Agreement becomes effective, Articles 1 to 40 inclusive, as well as paragraphs 1 and 2, shall remain in force for a period of fifteen years.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorised, have signed this Agreement.
DONE in duplicate at Ulaanbaatar, on September 8, 2016, in the English and French languages. This Agreement shall also be drawn up in the Mongolian language. Once approved by the Parties by exchange of diplomatic notes, the Mongolian version shall be considered equally authentic.
FOR CANADA
FOR MONGOLIA
Attachments
The Parties confirm their shared understanding that:
1. indirect expropriation results from a measure or series of measures of a Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
2. the determination of whether a measure or series of measures of a Party constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
1. the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred;
2. the extent to which the measure or series of measures interferes with distinct, reasonable investment-backed expectations; and
3. the character of the measure or series of measures.
3. except in rare circumstances, such as when a measure or series of measures are so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.
In accordance with paragraph 2 of Article 16 of this Agreement, Canada reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:
Social services (i.e.: public law enforcement; correctional services, income security or insurance; social security or insurance; social welfare; public education; public training; health and child care), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
The rights or preferences provided to aboriginal peoples, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 5 (MostFavoured-Nation Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) Article 9 (Performance Requirements) of this Agreement; the rights or preferences provided to socially or economically disadvantaged minorities, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
Residency requirements for ownership of oceanfront land, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement;
Government securities (i.e. acquisition, sale or other disposition by nationals of the other Party of bonds, treasury bills or other kinds of debt securities issued by the Government of Canada, a province or local government), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement; maritime cabotage, Footnote 2 where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 5 (Most-Favoured-Nation Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
Licensing fishing or fishing related activities, including entry of foreign fishing vessels to Canada's exclusive economic zone, territorial sea, internal waters or ports and use of any services therein, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 5 (Most-Favoured-Nation Treatment) of this Agreement;
Telecommunications services, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement by limiting foreign investment in facilities-based telecommunications service suppliers, requiring that such service suppliers be controlled in fact by a Canadian, requiring that at least 80 percent of the members of the board of directors of such suppliers be Canadian, and imposing cumulative foreign investment level restrictions;and
The establishment or acquisition in Canada of an investment in the services sector, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement, provided that the measure is consistent with Canada's obligations under Articles II, XVI, XVII and XVIII of the WTO General Agreement on Trade in Services.
Schedule of Mongolia
Government securities (i.e. acquisition, sale or other disposition by nationals of the other Party of bonds, treasury bills other kinds of debt securities issued by the Government of Mongolia, a province or local government), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement.
Nationality requirements for ownership of land, where the measure does not conform to the obligations imposed by Article 4 (National Treatment) of this Agreement.
Social services (i.e. health, public welfare, public education, social insurance and security), where the measure does not conform with the obligations imposed by Article 4 (National Treatment), or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement.
Any measure to ensure local production of the majority of consumer demands for strategic food production (i.e. livestock-meat, milk, flour, wheat, grain seed, and drinking water), where the measure does not conform to the obligations imposed by Article 4 (National Treatment) or Article 9 (Performance Requirement) of this Agreement.
Any measures relating to admission of investment in its railway transportation sector, where the measure does not conform to the obligations imposed by Article 4 (National Treatment), or Article 9 (Performance Requirement) of this Agreement.
Any measures relating to admission of investment in real estate development and ownership and trading by foreign citizen and legal entities, where the measure does not conform to the obligations imposed by Article 4 (National Treatment) of this Agreement.
1. Article 5 (Most-Favoured-Nation Treatment) shall not apply to treatment accorded by a Party under a bilateral or multilateral international agreements in force or signed prior to the date of entry into force of this Agreement.
2. Article 5 (Most-Favoured-Nation Treatment) shall not apply to treatment by a Party under an existing or future bilateral or multilateral agreement:
1. establishing, strengthening or expanding a free trade area or customs union;
2. relating to:
1. aviation;
2. fisheries; or
3. maritime matters, including salvage.
Schedule of Mongolia
1. Article 5 (Most-Favoured-Nation Treatment) shall not apply to treatment accorded by a Party under bilateral or multilateral international agreements in force or signed prior to the date of entry into force of this Agreement.
2. Article 5 (Most-Favoured-Nation Treatment) shall not apply to treatment by a Party under an existing or future bilateral or multilateral agreement:
1. establishing, strengthening or expanding a free trade area or customs union;
2. relating to:
1. aviation;
2. animal/livestock raw materials; or
3. railway transportation;
3. Article 5 (Most-Favoured-Nation Treatment) shall not apply to a current and future technical assistance and development aid programmes under any bilateral and multilateral agreements.
1. A decision by Canada following a review under the Investment Canada Act is not subject to the dispute settlement provisions under Section C (Settlement of Disputes between an Investor and the Host Party) or D (State-to-State Dispute Settlement Procedures) of this Agreement.
2. A decision by Mongolia to prohibit or restrict the acquisition of an investment in its territory by an investor of Canada, or its investment, pursuant to paragraph 4 of Article 17 (General Exceptions) shall not be subject to the dispute settlement provisions under Section C (Settlement of Disputes between an Investor and the Host Party) or D (State-to-State Dispute Settlement Procedures) of this Agreement.
Footnotes
Footnote 1 For greater certainty, paragraph 1 of Article 10 shall be interpreted in accordance with Annex B.10.
Footnote 2 Maritime cabotage means (a) the transportation of either goods or passengers by ship between points in the territory of Canada or above the continental shelf of Canada, either directly or by way of a place outside Canada; but with respect to waters above the continental shelf of Canada, the transportation of either goods or passengers only in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; and (b) the engaging by ship in any other marine activity of a commercial nature in the territory of Canada and, with respect to waters above the continental shelf, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada