Article 16. Indemnification
In an arbitration under this Section, a disputing Contracting 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.
Article 17. Applicable Law
1. A tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and the applicable rules and 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 thereunder.
Article 18. Finality and Enforcement of Awards
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 together with any daily rate of compensation awarded, or
(b) restitution in kind, provided that the Contracting Party may pay pecuniary compensation in lieu thereof.
2. When a claim is submitted to arbitration on behalf of an enterprise:
(a) an award of restitution in kind shall provide that restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the total amount be paid to the enterprise, and
(c) the award shall provide that it is made without prejudice to any right that any person has or may have, with respect to the remedy granted, 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 shall be public, unless the disputing parties agree otherwise.
5. A tribunal may not award punitive damages.
6. A disputing investor may seek enforcement of an arbitral award under the ICSID Convention or the New York Convention if both Contracting Parties are parties to such treaties.
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 on which the aw'ard 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 on which the aw'ard was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the aw'ard. or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
8. A Contracting Party may not initiate proceedings in accordance with Section Two by reason of an alleged breach under this Section, unless the other Contracting Party fails to abide by or comply with a final award rendered in a dispute that an investor may have submitted pursuant to this Section.
Article 19. Interim Measures of Protection
1. An arbitral tribunal may order 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 an order to preserve evidence in the possession or control of a disputing party or to protect the arbitral tribunal's jurisdiction.
2. An arbitral tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 11. For purposes of this paragraph, an order includes a recommendation.
Section TWO. Settlement of Disputes between the Contracting Parties
Article 20. Scope
This Section applies to the settlement of disputes between the Contracting Parties arising from the interpretation or application of the provisions of this Agreement. The alleged breach of a Contracting Party's obligation under Chapter II shall be settled as provided by Section One of this Chapter.
Article 21. Consultations and Negotiations
1. Either Contracting Party may request consultations on the interpretation or application of this Agreement.
2. If a dispute arises between the Contracting Parlies on the interpretation or application of this Agreement, it shall, to the extent possible, be settled amicably through consultations and negotiation.
3. 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, either Contracting Party may submit such dispute to an arbitral tribunal established in accordance with this Section or, by agreement of the Contracting Parties, to any other international tribunal.
Article 22. 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 pursuant to Article 21, 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 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 on 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 chairman of the arbitral tribunal upon approval of the Contracting Parties.
4. If within the time limits set forth in paragraphs 2 and 3 above, the required appointments have not been made or the required 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 said appointments. If the VicePresident 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 appointments.
5. In case an arbitrator appointed under this Article resigns or becomes unable to act, a successor shall be appointed in the same manner as 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 23. Proceedings
1. Unless the Contracting Parties agree otherwise, the place of arbitration shall be determined by the tribunal.
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, 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 24. 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 25. Applicable Law
A tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and the applicable rules and principles of international law.
Article 26. Costs
Each Contracting Party shall bear the costs of its appointed arbitrator and of any legal representation in the proceedings. The costs of the chairman of the arbitral tribunal 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.
Chapter IV. Final Provisions
Article 27. Application of the Agreement
This Agreement applies to investments made before or after its entry into force, but not to claims arising out of events which occurred, or to claims which had been settled, prior to that date.
Article 28. 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 29. 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 30. Application of other Rules
If the laws of either Contracting Party, or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to the present Agreement contain rules, whether general or specific, entitling investments by investors of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such rules shall, to the extent that they are more favourable, prevail over the present Agreement.
Article 31. Entry Into Force, Duration and Termination
1. The Contracting Parties shall notify each other in writing through diplomatic channels 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 date of the latter of the two notifications referred to in paragraph 1 above.
3. This Agreement shall remain in force for a period of ten (10) years. Thereafter it shall continue in force until the expiration of twelve (12) months from the date on which either Contracting Party shall have given written notice of termination to the other.
4. This Agreement shall continue to be effective for a period of ten (10) years from the date of termination only with respect to investments made prior to such date.
5. This Agreement may be modified in writing 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, being duly authorized by their respective
Governments, have signed this Agreement.
Done in Manama, on 29 day of November 2012, in duplicate, in the Arabic, Spanish, and
English languages, all texts being equally authentic. In case of divergence of interpretation
Of this Agreement, the English text shall prevail.
FOR THE GOVERNMENT OF THE KINGDOM OF BAHRAIN
Ahmed bin Mohammed Al Khalifa
Minister of Finance
FOR THE GOVERNMENT OF THE UNITED MEXICAN STATES
José Arturo Trejo Nava
Ambassador to the Kingdom of Bahrain
Attachments
Annex to article 10 paragraph 2
1. The notice of intent referred to in Article 10 paragraph 2 shall be delivered:
(a) In the case of the United Mexican States, at the Direction General de Consultoria Juridica de Negociaciones of the Ministry of Economy, or its successor, and
(b) In the case of the Kingdom of Bahrain, at the Foreign Economic Relations Directorate of the Ministry of Finance, or its successor.
2. The disputing investor shall submit the written notice of intent in English together with an applicable Arabic or Spanish translation.
3. In order to facilitate the process of consultation, the investor shall provide along with the notice of intent, copies of the follow ing documentation:
(a) passport or any other official document of nationality, where the investor is a natural person, or the applicable document of incorporation or organization under the law' of the non-disputing Contracting Party, where the investor is an enterprise of such Contracting Party;
(b) where an investor of a Contracting Party intends to submit a claim to arbitration on behalf of an enterprise of the other Contracting Party that is a legal person that the investors owns or controls:
(i) the applicable document of incorporation or organization of the enterprise under the law of the disputing Contracting Party, and
(ii) the document evidencing that the disputing investor owns or controls the enterprise.
If that is the case, power of attorney or the document whereby a person is duly authorized to act on behalf of the disputing investor shall also be submitted.