Democratic Republic of the Congo - Rwanda BIT (2021) - Electronic Database of Investment Treaties (EDIT)

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Democratic Republic of the Congo - Rwanda BIT (2021)

Article 38. Consolidation of Proceedings

(1) Where two or more proceedings have been referred separately to arbitration under this Section, and the proceedings have a question of law or fact in common and arise out of the same events or circumstances, any Party to the dispute may apply for an order for consolidation of the proceedings, in accordance with the agreement of all the parties to the dispute whose subject matter was covered by the order, or the terms and conditions of this Article.

(2) A Party to the dispute requesting an order for consolidation of proceedings under this Article shall deliver a written request to the Secretary General of the ICSID or to the chairman of any other arbitration body that parties may agree to, and to all the parties to the dispute whose subject matter is covered by the order for consolidation of proceedings, specifying the name and address of each party to the dispute whose subject matter is covered by the order; the nature of the order sought; and the grounds on which the order is sought.

(3) Unless the Secretary General of the ICSID or the chairperson of any other arbitration body designated as agreed by the parties, finds within 30 days of receiving a request in accordance with paragraph 2 of this Article that the application is manifestly unfounded, a tribunal all be constituted under this Article.

(4) Unless all parties to the dispute seeking to be covered by the consolidation order agree otherwise, the tribunal established under this Article shall consist of three arbitrators, who shall not be nationals or permanent residents of either party, and who shall be appointed as follows:

(a) an arbitrator appointed by mutual agreement of the disputing investors;

(b) an arbitrator appointed by the Respondent; and

(5) If, within 60 days of the receipt by the Secretary-General of a request under paragraph 2 of this Article, the Respondent Party fails or the disputing investors fail to appoint an arbitrator in accordance with paragraph 4 of this Article, the Secretary-General shall, at the request of any Party to the dispute and the subject matter of which is covered by the order, designates the arbitrator or arbitrators not yet appointed.

(6) Where a Tribunal constituted under this Article is satisfied that two or more claims submitted to arbitration under Article 28 (Institution of Arbitral Proceedings) have a question of law or fact in common and arise out of the same events or circumstances, the Tribunal may, in the interests of a just and efficient determination of the claims, and after having heard the parties to the dispute, by order:

(a) exercise jurisdiction, hear and decide together on all or part of the applications;

(b) exercise jurisdiction to hear and determine one or more of the latter claims, the outcome of which, in its opinion, would facilitate the resolution of the other claims; or

(c) appoint a tribunal previously constituted under Article 30 (Constitution of Arbitral Tribunal) to exercise jurisdiction over, hear and determine all or part of the claims, provided that

(i) such tribunal shall, at the request of any disputing investor who was not previously a Party to the dispute before such tribunal, be reconstituted with its original members, except that the arbitrator for the disputing investors shall be appointed pursuant to paragraphs 4(a) and 5 of this Article; and

(ii) such Tribunal shall decide whether an earlier hearing shall be repeated.

(7) Where a tribunal has been established under this Article, a disputing investor who has submitted a request under Article 28 (Commencement of Arbitral Proceedings) and whose name has not been disclosed in a request made under paragraph 2 of this Article, may apply in writing to the tribunal for its inclusion in any order made under paragraph 6 of this Article, specifying:

(a) the name and address of the disputing investor;

(b) the nature of the order sought; and

The applicant must provide the Secretary General with a copy of the application.

(8) A Tribunal established under this Article shall conduct the proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.

(9) A tribunal constituted under Article 30 (Constitution of the Arbitral Tribunal) shall not_have jurisdiction to decide a claim or a part of a claim over which a tribunal constituted or constituted under this Article has declared itself competent.

(10) At the request of a party to the dispute, a court established under this Article may, pending its decision under paragraph 6 of this Article, order that the proceedings before a tribunal constituted under Article 30 (Constitution of the Arbitral Tribunal) be suspended, unless that tribunal has already begun its work.

Section II. SETTLEMENT OF DISPUTES BETWEEN STATES

Article 39. Scope of Application

This Section applies to the settlement of disputes between the Parties arising from the interpretation or application of the provisions of this Agreement.

Article 40. Consultations and Negotiations

(1) Each Party may request in writing consultations on the interpretation or application of this Agreement. In the event of a dispute between the Parties on the interpretation or application of this Agreement, it should, as far as possible, be settled amicably by consultation and negotiation.

(2) If the dispute is not settled by the above means within six months from the date on which such negotiations or consultations have been requested in writing, an unless the Parties agree otherwise, either Party may submit the dispute to an arbitral tribunal constituted in accordance with this Chapter or, with the agreement of the Parties, to any other international tribunal.

Article 41. Initiation of a Procedure

(1) An arbitration procedure shall be initiated upon written notification by one of the Parties (hereinafter referred to as "the Claimant") to the other Party (hereinafter referred to as "the Respondent") through diplomatic notification. Such notification shall contain a statement of the provisions of this Agreement alleged to have been violated, the legal and factual grounds for the complaint, a summary of the progress and results of consultations and negotiations under Article 41 (Consultations & Negotiations), the intention of the requesting Party to initiate proceedings under this Section and the name of the arbitrator appointed by that requesting Party.

Article 42. Application of Articles

(1) The following articles of Section I concerning the settlement of disputes between an investor and a State apply mutatis mutandis to this Section II with respect to the settlement of disputes between States.

(a) Article 30 - Constitution of the arbitral tribunal

(b) Article 31 - Prevention of conflicts of interest of arbitrators

(d) Article 33 - Applicable law in matters of dispute settlement

(e) Article 34 - Expedited procedure for preliminary objections

() Article 36 - Presentation of submissions by third parties

Chapter VI. FINAL PROVISIONS

Article 43. Periodic Review of this Agreement

(1) The Parties shall meet every five years after the entry into force of this Agreement to review its operation and effectiveness, including levels of investment between the Parties.

(2) The Parties may adopt joint measures to improve the effectiveness or clarify the provisions of this Agreement.

Article 44. Other Obligation

If the legislation of one of the Parties or existing or subsequently established international obligations between the Parties, in addition to this Agreement, create a position entitling the investment of investors of the other Party to more favourable treatment than that provided for in this agreement, that position is not affected by this Agreement.

Article 45. Denial of Benefits

Subject to prior notification and consultation, a Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of that Party and to the investment of such an investor where the rejecting Party establishes that the enterprise is owned or controlled by persons of a non-Party, or the rejecting Party and does not exercise control over it no significant commercial activity in the territory of the other Party.

Article 46. Indirect Expropriation Through Taxation

(1) Article 6 (Expropriation) and Section I (Settlement of disputes between States) of Chapter V (Settlement of Disputes) shall apply to tax measures to the extent that such tax measures constitute an expropriation as provided for in Article 6. (1)

(2) An investor seeking to invoke Article 6 with respect to a tax measure shall first refer the matter to the competent tax authorities of both Parties as set forth below at the time it notifies its intention to submit the dispute to such arbitration under Section I of Chapter V. If the competent tax authorities of both Parties do not agree to consider the matter or, after agreeing to consider it, do not agree that the measure is not an expropriation within the meaning of Article 6 within six months of such referral, the investor may submit its claim to arbitration under Section I of Chapter V.

(3) For the purposes of this Article, "relevant tax authorities" means :

(a) in the case of the Democratic Republic of Congo, the Ministry of Finance or its representative; and

(b) In the case of the Republic of Rwanda, the Ministry of Finance and Economic Affairs Economic Planning or its successor.

(1) In determining whether a tax measure constitutes an expropriation, the following considerations are relevant: (i) The imposition of taxes does not generally constitute expropriation. The mere introduction of new tax measures or the imposition of taxes in more than one jurisdiction respect of an investment does not in itself constitute an expropriation; (ii) tax measures consistent with tax policies, principles and practices In particular, tax measures aimed-at-preventing tax evasion or tax avoidance should not generally be considered as expropriation, In particular, tax measures aimed at preventing tax evasion or tax fraud should not generally be considered as liable to expropriation; and (iii) tax measures applied in a non-discriminatory manner, as opposed to being directed at investors of a particular nationality or particular taxpayers, are less likely to constitute expropriation. A tax measure should not constitute an expropriation if, at the time of the investment, it was already in force and the information relating to the measure was made public or was otherwise publicly available.

Article 47. Entry Into Force, Duration, Amendment and Termination

(1) Each Party shall notify the other Party through diplomatic channels of the completion of its internal legal procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the thirtieth day after the date of notification by the last Party.

(2) The Agreement may be amended by mutual written consent of the Parties. Amendments shall enter into force in accordance with the same legal procedure prescribed in the first paragraph of this Article.

(3) This Agreement is concluded for a period of ten (10) peas and is automatically renewed for a further period of ten (10) years, unless either Party has given notice of intention to terminate the Agreement at the end of the current period of ten years, at least six months before the renewal date.

(4) Each State Party may terminate this Agreement by giving official notice to the other Party twelve (12) months after the date of termination, notwithstanding any previous renewal, of this Agreement.

(5) With respect to investments made prior to the date on which this Agreement is terminated, the provisions of this Agreement shall remain in force for a further period of ten (10) years from that date.