22.13 For greater certainty, a dispute within the meaning of paragraph 22 includes instances in which one of the State Parties refuses to take a position on a matter of interpretation.
Article 23. Investor-State Dispute Settlement
23.1. Amicable Settlement of Disputes
In the event of an investment dispute between an Investor or its Investment (referred to as an "Investor" for the purposes of the Investor-State dispute settlement provisions) and a Host State pursuant to this Treaty, the Investor and the Host State should initially seek to resolve the dispute through consultation and negotiation, which may include the use of non-binding, third-party mediation or other mechanisms.
23.2 Notice of Intent to Arbitrate At least six months before submitting any claim to arbitration under this Part, an Investor shall deliver to the Host State a written notice of its intention to submit the claim to arbitration ("Notice of Intent"). The notice shall specify:
a) the name and address of the Investor;
b) for each claim, the provision of this Treaty alleged to have been breached and any other relevant provisions;
c) the legal and factual basis for each claim; and
d) the relief sought and the approximate amount of damages claimed.
23.3 Mediation After submission of the Notice of Intent, the Investor or the Host State may request mediation of the dispute, in which case the other disputing party may agree to such mediation. The costs of the mediation shall be shared equally unless the mediator decides otherwise for good cause. The mediator shall provide written reasons for such a decision.
23.4 Conditions for Submission of a Claim to Arbitration
(i) An Investor may submit a claim to arbitration pursuant to this Treaty, provided that:
a) six months have elapsed since the Notice of Intent was filed with the State Party and no solution has been reached;
b) the Investor or Investment, as appropriate,
i. has first submitted a claim before the domestic courts of the Host State for the purpose of pursuing local remedies, after the exhaustion of any administrative remedies, relating to the measure underlying the claim under this Treaty, and a resolution has not been reached within a reasonable period of time from its submission to a local court of the Host State; or
ii. the Investor demonstrates to a tribunal established under this Treaty that there are no reasonably available legal remedies capable of providing effective remedies of the dispute concerning the underlying measure, or the legal remedies provide no reasonable possibility of such remedies in a reasonable period of time.
c) The Investor has provided a clear and unequivocal waiver of any right to pursue and/or to continue any claim relating to the measures underlying the claim made pursuant to this Treaty, on behalf of both the Investor and the Investment, before local courts in the Host State or in any other dispute settlement forum.
d) No more than three years have elapsed from the date on which the Investor first acquired, or should have first acquired, knowledge of the breach alleged in the Notice of Arbitration and knowledge that the Investor has incurred loss or damage, or one year from the conclusion of the request for local remedies initiated in the domestic courts.
e) The Investor consents in writing to arbitration in accordance with the procedures set out in this Treaty.
f) For the avoidance of doubt, the provisions in this Treaty relating to arbitration procedures shall prevail over those in the arbitration rules selected to govern the arbitration in the event of any inconsistency.
23.5 Exception for Interim Relief
Notwithstanding paragraph 23.4(c), the Investor may initiate or continue an action that seeks interim relief before a judicial or administrative tribunal of the State Party, for the sole purpose of preserving the Investors rights and interests during the pendency of the arbitration, and that does not involve the payment of monetary damages.
23.6 Applicable Arbitration Rules
Subject to Article 23.3, an Investor may submit an arbitration claim:
a) under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the Host State and the other State Party are parties to the ICSID Convention;
b) under the ICSID Additional Facility Rules, provided that either the Host State or the other State Party is a party to the ICSID Convention;
c) under the UNCITRAL Arbitration Rules; or
d) to the East African Court of Justice
23.7. Date of Submission of Claim
A claim shall be deemed submitted to arbitration under this Part when the Investor's notice of arbitration or request for arbitration ("Notice of Arbitration"):
(a) referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) referred to in Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules, are received by the respondent; or
(d) referred to under any arbitral institution or arbitral rules selected under paragraph 23.6 is received by the Host State.
23.8 Place of Arbitration
The place of arbitration shall be in a place determined by Treaty of the parties to the arbitration or in the absence of such Treaty, as determined by the tribunal as established under 23.12.
23.9 Scope of Arbitration
a) An arbitration under this Article shall relate to an allegation of a breach of one or more rights or obligations under this Treaty that is subject to investor- State arbitration.
b) Where an investment authorization or a contract includes a choice of forum clause for the resolution of disputes pertaining to that investment or the authorization or contract, no arbitration under this Treaty may be initiated by the Investor when the underlying measure in the arbitration would be covered by such a choice of forum clause.
23.10 Selection of Investor Arbitrator The claimant shall provide with the Notice of Arbitration:
a) the name of the arbitrator that the claimant appoints, or
b) the claimant's written consent for the Secretary-General to appoint that arbitrator.
23.11 Consent to Arbitration
a) Each Party consents to the submission of a claim to arbitration under this Section in accordance with this treaty.
b) The consent under paragraph 23.11(a) and the submission of a claim to arbitration under this Section shall satisfy the requirements of:
(i) Chapter Il of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute; and
(ii) Article Il of the New York Convention for an "agreement in writing"; and
(iii) Name any other body used and reference rule on submission of an arbitration
23.12 Establishment of Tribunal
a) 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.
b) All arbitrators shall be drawn from a roster of eligible arbitrators established by the State Parties within 12 months of the entry into force of this Treaty and maintained up to date by the State Parties. Said roster shall be composed of persons of good standing, independence and with experience in international law, international investment, and/or dispute settlement under international law.
c) If a tribunal has not been constituted within 75 days from the date that a claim is submitted to arbitration under this Article, the Secretary-General, on the request of a disputing party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed.
d) For purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator on a ground other than nationality,
i. the State Party hereby agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules; and
ii. an Investor may submit a claim to arbitration under this Article, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the Investor agrees in writing to the appointment of each individual member of the tribunal.
23.13 Avoidance of Conflict of Interest of Arbitrators
The arbitrators appointed to resolve disputes under this Treaty must, at all times during the arbitration:
a) be impartial, free of actual conflicts of interest and an appearance of conflict of interest, and independent of the disputing parties at the time of accepting an appointment to serve and shall remain so during the entire arbitration proceeding until the final award has been rendered or the proceeding has otherwise finally terminated; and
b) disclose to the parties, the arbitration institution or other appointing authority (if any, and if so required by the applicable institutional rules) and to the co- arbitrators, any items that may, in the eyes of a reasonable third person , give tise to doubts as to the arbitrator's impartiality, freedom from conflicts of interest, or independence.
For greater certainty, the above requirements include the requirement not to act concurrently as counsel in another actual or potential treaty-based arbitration involving a foreign investor and a State.
23.14 Submissions by Non-Disputing State Party
The non-disputing State Party to this Treaty may make oral and written submissions to the tribunal regarding the interpretation of this treaty and be present at the oral arguments.
22.15 Amicus Curiae Submissions
The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party. The procedures in Schedule 3 shall apply for this purpose.
23.16 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 subject to the consent of the disputing parties, which consent shall not be unreasonably withheld, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
23.17 Transparency of Proceedings
(a) Subject to paragraphs 23.17(c) and (d), the State Party that is party to the arbitration shall, after receiving the following documents, promptly make them available to the public and the non-disputing State Party:
i. the Notice of Intent;
ii. the Notice of Arbitration;
iii. pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted in the form of amicus submissions;
iv. minutes or transcripts of hearings of the tribunal, where available; and
v. orders, awards, and decisions of the tribunal.
(b) The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements.
(c) Any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
(d) Any protected information that is submitted to the tribunal shall be protected from disclosure in accordance with the following procedures:
i. Subject to subparagraph (iv), neither the disputing parties nor the tribunal shall disclose to the non-disputing State Party or to the public any protected information where the disputing State Party that provided the information clearly designates it in accordance with subparagraph (ii).
ii. Any disputing State Party claiming that certain information constitutes protected information shall clearly designate the information at the time it is submitted to the tribunal.
iii. A disputing State Party shall, at the time it submits a document containing information claimed to be protected information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the public in accordance with paragraph 23.17(a).
iv. The tribunal shall decide any objection regarding the designation of information claimed to be protected information. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may withdraw all or part of its submission containing such information, or agree to resubmit complete and redacted documents with corrected designations in accordance with the tribunal's determination and subparagraph (iii). In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents that either remove the information withdrawn by the disputing party that first submitted the information or re-designate the information, consistent with the designation of the disputing party that first submitted the information.
(e) The United Nations Commission on International Trade Law (UNCITRAL) Rules on Transparency in Treaty-based investor-State Arbitration shall form an integral part of this Treaty.
23.18 Consolidation of Arbitrations
(a) Where two or more claims have been submitted separately to arbitration under this Article and the claims have a question of law or fact in common and arise out of the same underlying measure or measures or circumstances, any disputing party may seek a consolidation order in accordance with the agreement of all the disputing parties sought to be covered by the order or the terms of paragraphs 23.2 - 23.10.
(b) A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the President of the International Court of Justice and to all the disputing parties sought to be covered by the order and shall specify in the request:
i. the names and addresses of all the disputing parties sought to be covered by the order;
ii. the nature of the order sought
iii. the grounds on which the order is sought
(c) Unless the President of the International Court of Justice finds within 30 days after receiving a request under paragraph 23.18(b) that the request is manifestly unfounded, a tribunal shall be established under this Article.
(d) Unless all the disputing parties sought to be covered by the order otherwise agree, a tribunal established under this Article shall comprise three arbitrators:
(i) one arbitrator appointed by agreement of the claimants;
(ii) one arbitrator appointed by the respondent; and
(iii) the presiding arbitrator appointed by the [President of the International Court of Justice], provided, however, that the presiding arbitrator shall not be a national of either Party.
(e) If, within 60 days after the President of the International Court of Justice receives a request made under paragraph 23.18(b), the respondent fails or the claimants fail to appoint an arbitrator in accordance with paragraph 23.18(d), the [President of the International Court of Justice, on the request of any disputing Party sought to be covered by the order, shall appoint the arbitrator or arbitrators not yet appointed. If the respondent fails to appoint an arbitrator, the [President shall appoint a national of the disputing Party, and if the claimants fail to appoint an arbitrator, the [President] shall appoint a national of the non- disputing Party.
(f) Where a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration under this Treaty have a question of law or fact in common and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
(i) assume jurisdiction over, and hear and determine together, all or part of the claims,
(ii) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others, or
(iii) instruct a tribunal previously established under Article 23 to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that
I. that tribunal, at the request of any Investor not previously a disputing party before that tribunal, shall be reconstituted with its original members, except that the arbitrator for the claimants shall be appointed pursuant to paragraphs 23.18(d)(i) and (e),, and
Il. that tribunal shall decide whether any prior hearing shall be repeated.
(g) Where a tribunal has been established under this Article, a claimant that has submitted a claim to arbitration under this Treaty and that has not been named in a request made under paragraph 23.18(b) may make a written request to the tribunal that it be included in any order made under paragraph 23.18(f), and shall specify in the request:
i. The name and address of the claimant;
ii. The nature of the order sought; and
iii. The grounds on which the order is sought the Investor shall deliver a copy of its request to the [President].
(h) A tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules in force at the time the proceedings are initiated, except as modified by this Treaty.
(i) A tribunal established under this Article shall not have jurisdiction to decide a claim, or a part of a claim, over which a tribunal established or instructed under this paragraph has assumed jurisdiction.
(j) On application of a disputing party, a tribunal established under this paragraph, pending its decision under subparagraph (f), may order that the proceedings of a tribunal established under this Article be stayed, unless the latter tribunal has already adjourned its proceedings.
23.19 Awards
(a) Where a tribunal makes a final award against a Host State or against an Investor in the light of a counterclaim by a State authorized under this Treaty, the tribunal may award, separately or in combination, only:
i. monetary damages and any applicable interest;
ii. restitution of property, in which case the award shall provide that the Host State or Investor, as the case may be, may pay monetary damages and any applicable interest in lieu of restitution.
(b) A tribunal established under this Treaty [shall issue an award for costs and legal representation fees for any arbitration where the jurisdiction of the tribunal is denied to the Investor, and][may][shall][shall, unless by special exception there is good reason not to do so] issue an award for costs and legal representation to the disputing party that prevails in the final award.
(c) A tribunal may not award punitive damages.
(d) An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
(e) Subject to paragraph 23.19(f) and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
(f) Adisputing party may not seek enforcement of a final award until:
i. in the case of a final award made under the ICSID Convention, (a) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award, or (b) revision or annulment proceedings have been completed;
ii. in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or any other rules selected pursuant to this Article, 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 a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
(g) Each Party shall provide for the enforcement of an award in its territory.
(h) A disputing party may seek enforcement of an arbitration award under the ICSID Convention when it is in force for both Parties or the New York Convention.
(i) Acclaim that is submitted to arbitration under this Section shall be presumed to arise out of a commercial relationship or transaction for purposes of Article | of the New York Convention, unless the State Party has proven that the claim has related to a sovereign matier.
23.20 Appeal Mechanism
Within three months of the date of entry into force of this Treaty, the Parties may establish an appellate body or similar mechanism to review awards rendered by tribunals under this Chapter. Such appellate body or similar mechanism shall be designed to provide coherence to the interpretation of investment provisions in the Treaty. The Parties shall take into account the following issues, among others:
i. the nature and composition of an appellate body or similar mechanism;
ii. the applicable scope and standard of review;
iii. transparency of proceedings of an appellate body or similar mechanism;
iv. the effect of decisions by an appellate body or similar mechanism;
v. the relationship of review by an appellate body or similar mechanism to the arbitral rules that may be selected under Articles 23.16; and
vi. the relationship of review by an appellate body or similar mechanism to existing domestic laws and international law on the enforcement of arbitral awards.
Article 24. Interpretive Statement of the State Parties
A joint decision of the State Parties, each acting through its representative designated for purposes of this Article, declaring their joint interpretation of a provision of this Treaty, shall be binding on any tribunal, and any decision or award issued by a tribunal must apply and be consistent with that joint decision.
Article 25. Governing Law In Dispute Settlement
25.1 When a claim is submitted to a tribunal under this Treaty, it shall be decided in accordance with this Treaty. The governing law for the interpretation of this Treaty shall be this Treaty and the general principles of international law relating to the interpretation of treaties, including the presumption of consistency between international treaties to which the State Parties are party. For matters related to domestic law, the national law of the Host State shall be resorted to as the governing law.
25.2 For greater certainty, paragraph 25.1 does not expand or alter the scope of obligations contained in this Treaty or incorporate other standards except where specifically expressed herein.
Article 26. Service of Documents
Delivery of notices and other documents on a State Party shall be made to the place named for that State Party.
Part 4. FINAL PROVISIONS
Article 27. Entry Into Force
This Treaty shall be subject to ratification by the State Parties in accordance with their constitutional procedures. It shall enter into force 60 days after the deposit by the last State Party of its instrument of ratification with the other Party.
Article 28. Period In Force and Termination
In addition, the text provides a mechanism for either Party to terminate the treaty upon 12 months notice to the other Party. This provides an additional safety valve for the Parties in the event of significant difficulties being experienced, significant differences in interpretation or application of the treaty, or other policy reasons a State may have to terminate the treaty. This specific rule would replace general rules under the Vienna Convention.
Finally, it is common for investment treaties to provide for a period of continued application of the treaty in favour of investors of the other State Party made prior to the termination of the treaty. In some instances, treaties have extended this period to between 20 and 30 years. In other instances, the period has been 10 years. The shorter period is proposed here, with an additional option to adopt only a 5-year time period.
28.1 The Treaty shall remain in force for ten years following its entry into force.
28.2 This Treaty shall automatically be renewed for an additional period of ten years, unless either State Party has submitted a Notice of Intent to terminate the Treaty at the expiration of the current ten-year period at least one year prior to the renewal date.
28.3 Either State Party may, at any time, terminate this Treaty by giving an official notice to the other Party twelve months prior to its intended termination date, notwithstanding any prior renewal of this Treaty.
28.4 The rights of Investors and the State Parties shall continue in force for ten years following the expiration of the period in force for investments made during the period the Treaty was in force.