2. An interpretation made by common agreement the contracting parties on a provision of this Agreement shall be binding on a tribunal established under this section.
Article 20. Awards and Implementation
1. Unless the parties agree otherwise, an arbitral award that determines that the contracting party has failed to fulfil its obligations under this Agreement may only order, individually or in combination:
a) The payment of monetary compensation; or
b) Restitution in kind, except that the Contracting Party may pay pecuniary compensation in lieu thereof.
2. In accordance with paragraph 1 above, when a claim is submitted on behalf of an enterprise: paragraph 1 above, when a claim is submitted on behalf of an enterprise:
a) The award for the restitution of property that shall provide restitution be made to the enterprise;
b) The award which awarded non-pecuniary damages and 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 has in the relief under applicable domestic law.
3. The arbitral awards shall be final and binding only in respect of disputing parties, and only in respect of the particular case.
4. The arbitral award shall be public, unless the parties agree otherwise.
5. A tribunal may not award punitive damages.
6. Each Contracting Party shall in its territory the measures necessary for the effective enforcement of the award in accordance with this article, and provided that any such award issued in a proceeding to which it is a party are implemented.
7. An investor may seek enforcement of an arbitration award under the ICSID Convention or the New York Convention, if both parties are contracting parties.
8. The opposing side shall not seek enforcement of a final award until:
a) In the case of a final award made under the ICSID Convention:
i) Within one hundred and twenty (120) days from the date of the delivery of the award and any of the Parties to the conflict has requested revision or annulment of the same, or
ii) Revision or annulment proceedings have been completed; and
b) In the case of a final award made under the ICSID Additional Facility or the UNCITRAL Arbitration Rules:
i) Within three (3) months from the date of the delivery of the award and any of the Parties to the conflict has commenced a proceeding revised to set aside or dismiss it, or
ii) A court has dismissed, rejects a request to revise or annul the award and there is no further appeal, or
iii) A tribunal has authorized, rejects a request to revise or annul the award and those proceedings have terminated without further appeal.
9. A Contracting Party may not initiate proceedings in accordance with Chapter Three, Second Section of this Agreement for a dispute concerning the violation of the rights of an investor, unless the other Contracting Party breaches or fails to comply with the award issued in a dispute. that said investor has submitted pursuant to this Section. In that case, the arbitral tribunal established in accordance with Chapter Three, Second Section of this Agreement, upon presentation of a request by the Contracting Party whose investor was a party to the dispute, may issue:
a) A statement that the failure or refusal of the terms of the final award is inconsistent with the obligations of the other Contracting Party in accordance with this Agreement; and
b) A recommendation to abide by the other contracting party or comply with the final award.
Section II. Settlement of Disputes between the Contracting Parties
Article 21. Settlement of Disputes between the Contracting Parties
1. The Contracting Parties shall consult each other on issues related to the interpretation or application of this Agreement.
2. The Contracting Parties shall endeavour to settle any dispute concerning the interpretation or application of this Agreement through consultations and negotiations and prompt friendly.
3. If a dispute cannot be settled through such means within a period of six (6) months from the negotiations or consultations were requested in writing by either contracting party at the request of either of the Contracting Parties to the dispute may be submitted to an arbitral tribunal established in accordance with the provisions of this Agreement or by mutual agreement in any other international court.
4. The arbitral tribunal shall consist of three (3) arbitrators appointed as follows:
a) Each Contracting Party shall appoint an arbitrator.
b) Within thirty (30) days of the appointment of the second arbitrator, the arbitrators appointed by each contracting party, by mutual agreement, shall select a third arbitrator who is a citizen or permanent resident of a third State which has diplomatic relations with both contracting parties;
c) Within thirty (30) days of the election of the third arbitrator, the Contracting Parties shall adopt the choice of that arbitrator who will serve as the Chairman of the arbitral tribunal.
5. The arbitral proceedings initiated by notification through diplomatic channels by the Contracting Party which has initiated the procedure to the other contracting party. Such notice shall contain a summary of the claim, as well as the name of the arbitrator appointed by the Contracting Party which has initiated the procedure. Within sixty (60) days of notification that have given to the respondent Contracting Party, it shall notify the Contracting Party initiating the procedure of the name of the arbitrator appointed by the respondent Contracting Party.
6. If within the periods referred to in paragraphs 4 (b), 4 and 5 (c) above have not been made or required the appointments have not been made the required authorisations, either Contracting Party may request the President of the International Court of Justice to make the necessary appointment. If the President is a citizen or a permanent resident of either Contracting Party or is unable to act, the Vice-President shall be invited to make the appointment. If the Vice-President is a citizen or permanent resident of one of the contracting parties or is unable to act, the member of the International Court of Justice next in seniority order and who is not a citizen or permanent resident of one of the Contracting Parties shall be invited to make the appointment.
7. Where any arbitrator appointed under this article resigns or is unable to act as a successor arbitrator shall be appointed in accordance with the same procedure as prescribed for the appointment of the original arbitrator and shall have the same powers and duties of the original arbitrator.
8. Once convened by the Chairman of the Tribunal, the arbitral tribunal shall determine the place of arbitration and the date of initiation of the arbitral proceedings.
9. The arbitral tribunal shall decide all questions relating to its competence and subject to any agreement between the Contracting Parties shall determine its own procedure, taking into account the optional rules of the Permanent Court of Arbitration for Arbitrating Disputes Between Two States.
10. Before the arbitral tribunal makes a decision, may at any stage of the proceedings the parties to propose that the dispute be settled amicably. The arbitral tribunal shall establish its award by a majority of votes. The arbitral tribunal will decide disputes in accordance with this Agreement and applicable rules and principles of international law.
11. Each Contracting Party shall bear the costs of its appointed arbitrator and of its representation in the proceedings. The costs of the Chairman of the arbitral tribunal and other expenses associated with the arbitration shall be borne in equal parts by the contracting parties. However, the arbitral tribunal may decide that a higher proportion of costs be borne by one of the Contracting Parties.
12. The arbitral tribunal shall ensure a fair hearing to the contracting parties. Any arbitral award shall be made in writing and shall contain all the findings of fact and of law arising from. A signed copy of the award shall be delivered to each Contracting Party. The arbitral award shall be final and binding on the contracting parties.
Chapter FOUR. Final Provisions
Article 22. Application of the Agreement
The provisions of this Agreement apply to future investments made by investors of one Contracting Party in the territory of the other contracting party, as well as to existing investments in accordance with the legislation of the Contracting Parties on the date of Entry into Force of this Agreement. However, the provisions of this Agreement shall not apply to claims arising out of events which occurred or to which claims have been settled before its Entry into Force.
Article 23. Consultations
Each Contracting Party may propose to the other contracting party for consultations regarding any matter relating to this Agreement. Such consultations shall be conducted at the time and place agreed by both contracting parties.
Article 24. Entry Into Force, Duration and Termination
1. The Contracting Parties shall notify in writing on the fulfilment of their constitutional requirements in relation to the approval and Entry into Force of this Agreement.
2. This Agreement shall enter into force thirty (30) days after the last notification through diplomatic channels, used by both contracting parties to notify the fulfilment of the requirements referred to in paragraph 1 above.
3. This agreement is concluded for an initial period of ten (10) years and at the end of the period is valid indefinitely unless either contracting party notifies in writing and through diplomatic channels to the other contracting party of its intention to terminate the agreement in twelve (12) month's notice.
4. With respect to investments made prior to the date of termination of this Agreement, the provisions of this Agreement shall remain in force for a period of ten (10) years from such date of termination.
5. This Agreement may be amended by mutual consent of the Contracting Parties, and the agreed modification shall enter into force in accordance with the procedures set out in paragraphs 1 and 2 above.
Conclusion
Attachments
Annex to article 10.2
In determining the measures aimed at ensuring the equitable or effective imposition or collection of direct taxes the Contracting Parties shall in accordance with their taxation Article XIV (d), including its footnotes, of the General Agreement on Trade in Services of the World Trade Organization.
Annex to article 12.2
The notice of intent referred to in Article 12.2 of this Agreement will be delivered:
In the case of Mexico, in the General Directorate of Foreign Investment of the Ministry of Economy; and
In the case of Panama, in the conduct of international trade agreements of the Ministry of Trade and Industries.
Any change in the above shall be published in the case of Mexico, in the Official Journal of the Federation, and in the case of Panama, in the Official Gazette. Furthermore, any change in the sense referred to shall be communicated by the contracting party corresponding to the other contracting party through diplomatic note.
The investor shall provide notice in Spanish.
For the purpose of facilitating the negotiation process, the investor shall, together with the notification referred to in the preceding paragraphs, copy of the following documents:
a) Passport or other proof of nationality of the investor, where this is a natural person, or a copy of the Constitutive Act or any other evidence of incorporation or organization according to the legislation of the contracting party litigants, not in the case of an enterprise of that Party, as the term is defined in this Agreement;
b) Where an investor of a Contracting Party intends to submit to arbitration a claim on behalf of an enterprise of the other Contracting Party that is a legal person that the investor owns or controls:
i) Constitutive act or any other evidence of incorporation or organization according to the legislation of the contracting party litigants, and
ii) A copy of the evidence that the disputing investor is owned or controlled, directly or indirectly, to the enterprise; and
c) Where a copy of the letter power of attorney or document proving sufficiently empowered to act on behalf of the investor.
Annex to article 13.1 and 13.2
An investor may not allege the breach of an obligation under Chapter II of this Agreement in an arbitration under chapter 3, section 1 of this Agreement, if the investor or an enterprise of a contracting party owned or controlled by an investor claims in proceedings before a court or administrative tribunal that the contracting party has breached an obligation under Chapter II of this Agreement.
Annex to article 16
1. A tribunal established under article 16 of this Agreement cumulated procedures in the interest of fair and efficient resolution, except that determines that the interests of one of the Parties would be seriously affected.
2. In accordance with the provisions of this Annex, ICSID of the Secretary-General shall establish a tribunal of cumulation under the UNCITRAL Arbitration Rules. The Tribunal shall cumulation in accordance with those rules, except as provided in chapter 3, section 1 of this Agreement.
3. At the request of any Party, a Tribunal established pursuant to article 15 of this Agreement, pending the establishment of a tribunal of cumulation under paragraph 4 below, may suspend the procedures that has initiated.
4. A tribunal established under this Annex, having heard disputing parties may determine:
a) To assume jurisdiction to carry out and resolve all or part of the claims together; or
b) To assume jurisdiction to resolve and carry out one or more of the claims, on the basis of which would contribute to the resolution of the others.
5. A tribunal established under article 15 of this Agreement shall not have jurisdiction to carry out and resolve any claim or part thereof, over which a consolidated tribunal has assumed jurisdiction.
6. A Party intending to determine the litigant cumulation under this Annex, shall request the Secretary-General of ICSID and establish a tribunal in the request shall specify:
a) The name of the contracting party or parties litigant investors against which the order is sought cumulation;
b) The nature of the order sought and cumulation;
c) The rationale underlying the request.
7. A Disputing party copy of the request to the other contracting party or any other litigant contending investors against which the order is sought.
8. Within a period of sixty (60) days from the date of receipt of the request, the Secretary-General of ICSID, having heard disputing parties for which it seeks an order of cumulation, shall establish a tribunal composed of three arbitrators (3). The Secretary-General of ICSID shall appoint the Chairman of the Tribunal who shall not be a national of one of the Contracting Parties. One member of the Tribunal shall be a national of the Contracting Disputing party and the other members of the Tribunal shall be a national of the contracting party of the disputants investors.
9. Where a disputing investor has submitted a claim to arbitration under article 13 of this Agreement and that has not been named in a request for cumulation litigants, the investor or the contracting party litigants may submit a written request to the Tribunal that includes the disputing investor in the order made in accordance with article 16 of this Agreement and paragraph 1 of this annex. The investor or the disputing contracting party, as the case may be, in the request shall specify: article 13 of this Agreement and that has not been named in a request for cumulation litigants, the investor or the contracting party litigants may submit a written request to the Tribunal that includes the disputing investor in the order made in accordance with article 16 of this Agreement and paragraph 1 of this annex. The investor or the disputing contracting party, as the case may be, in the request shall specify:
a) The name and address of the disputing investor;
b) The nature of the order sought and cumulation;
c) The reasons for the request.
10. A disputing investor referred to in paragraph 9 above shall deliver a copy of its request to the parties to the conflict identified in a request made under paragraph 6 above.