Article 15.31. Transparency of Proceedings
1. The UNCITRAL Transparency Rules, as modified by this Agreement, apply in connection with proceedings under this Section.
2. The agreement to mediate, the notice of intent to challenge a member of the Tribunal, the decision on challenge to a member of the Tribunal, and the request for consolidation shall be included in the list of documents to be made available to the public under Article 3(1) of the UNCITRAL Transparency Rules.
3. Exhibits shall be included in the list of documents to be made available to the public under Article 3(2) of the UNCITRAL Transparency Rules.
4. Prior to the constitution of the Tribunal, the respondent Party shall make publicly available in a timely manner relevant documents pursuant to paragraph 2, subject to the redaction of confidential information. That documentation may be made publicly available by communication to the repository referred to in paragraph 9.
5. A disputing party may disclose to other persons in connection with the proceedings, including witnesses and experts, unredacted documents that it considers necessary to disclose in the course of proceedings under this Section. However, the disputing party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
6. A Party may disclose to government officials and officials of a government other than at the central level, if applicable, unredacted documents that it considers necessary to disclose in the course of proceedings under this Section. However, that Party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
7. Hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to the hearings. If the Tribunal determines that there is a need to protect confidential information, it shall make the appropriate arrangements to hold in private that part of the hearing requiring that protection.
8. This Agreement does not require a respondent Party to withhold from the public information required to be disclosed by the respondent Party’s law. 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. The respondent Party should apply its law in a manner sensitive to protecting from disclosure information that has been designated as confidential information.
9. The administering authority of a dispute under this Section shall be the repository of information published pursuant to this Article.
Article 15.32. Participation of the Non-Disputing Party
1. The UNCITRAL Transparency Rules apply with respect to the participation of a non-disputing Party in proceedings under this Section, except as modified by this Agreement.
2. The respondent Party shall deliver to the non-disputing Party:
(a) a claim submitted pursuant to Article 15.23, a request for consolidation, and any document that is appended to those documents;
(b) on request:
(i) a request for consultations;
(ii) pleadings, memorials, briefs, requests, and other submissions made to the Tribunal by a disputing party;
(iii) written submissions made to the Tribunal pursuant to Article 4 of the UNCITRAL Transparency Rules;
(iv) minutes or transcripts of hearings of the Tribunal, if available;
(v) orders, awards, and decisions of the Tribunal; and
(c) on request and at the cost of the non-disputing Party, all or part of the evidence that has been tendered to the Tribunal, unless the requested evidence is publicly available.
3. The non-disputing Party receiving materials pursuant to paragraph 2 shall treat the information as if it were the respondent Party.
4. The Tribunal shall accept or, after consultation with the disputing parties, may invite, oral or written submissions from the non-disputing Party regarding the interpretation of this Agreement. The non-disputing Party may attend a hearing held under this Section.
5. The Tribunal shall not draw any inference from the absence of a submission pursuant to paragraph 4.
6. The Tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on a submission by the non-disputing Party.
Article 15.33. Expert Reports
The Tribunal may, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, appoint one or more experts to report to it in writing on any factual issue, including the rights of Indigenous Peoples or scientific matters raised by a disputing party in a proceeding, subject to any terms and conditions agreed on by the disputing parties.
Article 15.34. Interim Measures of Protection
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 shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 15.23. For the purposes of this paragraph, an order includes a recommendation.
2. At the request of a disputing party, the Tribunal may order the claimant to provide security for all or part of the costs, if there are reasonable grounds to believe that there is a risk the claimant may not be able to honour a potential costs award against it. In considering that request, the Tribunal may take into account evidence of third-party funding. If the security for costs is not posted in full within 30 days of the Tribunal’s order, or within any other time period set by the Tribunal, the Tribunal shall so inform the disputing parties and may order the suspension or termination of the proceedings.
Article 15.35. Final Award
1. If a Tribunal makes a final award against the respondent Party, in respect of its finding of liability, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent Party may pay monetary damages and any applicable interest in lieu of restitution.
2. Subject to paragraph 1, if a claim is made under Article 15.23.2:
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise;
(b) an award of restitution of property shall provide that restitution be made to the enterprise;
(c) an award of costs in favour of the investor shall provide that the sum be paid to the investor; and
(d) the award shall provide that it is made without prejudice to a right that a person, other than a person which has provided a waiver pursuant to Article 15.23, may have in monetary damages or property awarded under a Party’s domestic law.
3. The Tribunal shall make an order with respect to the costs of the arbitration, which shall in principle be borne by the unsuccessful disputing party or parties. In determining the appropriate apportionment of costs, the Tribunal shall consider all relevant circumstances, including:
(a) the outcome of any part of the proceeding, including the number or extent of the successful parts of the claims or defences;
(b) the disputing parties’ conduct during the proceeding, including the extent to which they acted in an expeditious and cost-effective manner;
(c) the complexity of the issues; and
(d) the reasonableness of the costs claimed.
4. The Tribunal and the disputing parties shall make every effort to ensure the dispute settlement process is carried out in a timely manner. The Tribunal shall issue its final award within 12 months of the final date of the hearing on the merits. A Tribunal may, with good cause and notice to the disputing parties, delay issuing its final award by an additional brief period.
5. Monetary damages in an award:
(a) shall not be greater than the loss or damage incurred by the investor, or, as applicable, by the enterprise referred to in Article 15.23.2, as valued on the date of the breach; (14)
(b) shall only reflect loss or damage incurred by reason of, or arising out of, the breach; and
(c) shall be determined with reasonable certainty, and shall not be speculative or hypothetical.
6. In making an award under paragraph 5, the Tribunal shall calculate monetary damages based only on the submissions of the disputing parties, and shall consider, as applicable:
(a) contributory fault, whether deliberate or negligent;
(b) failure to mitigate damages;
(c) prior damages or compensation received for the same loss; or
(d) restitution of property, or repeal or modification of the measure.
7. The Tribunal may award monetary damages for lost future profits only insofar as those damages satisfy the requirements under paragraph 5. This determination requires a case-by-case, fact-based inquiry that takes into consideration, among other factors, whether a covered investment has been in operation in the territory of the respondent Party for a sufficient period of time to establish a performance record of profitability.
8. The Tribunal may award pre-award and post-award interest at a reasonable rate of return compounded annually.
9. The Tribunal shall not award punitive damages.
10. The Tribunal shall not award monetary damages under Article 15.23.1 for loss or damage incurred by the investment.
Article 15.36. Finality and Enforcement of an Award
1. An award made by a Tribunal has 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 shall not seek enforcement of a final award until:
(a) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, to set aside or to annul the award; or
(b) 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. If a respondent Party fails to abide by or comply with a final award, the Joint Committee, on delivery of a request by a Party whose investor was a disputing party to the arbitration, shall establish a panel under Article 27.7 (Dispute Settlement – Request for the Establishment of a Panel). The requesting Party may seek in those proceedings:
(a) a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and
(b) a recommendation that the Party abide by or comply with the final award.
6. A claim submitted to arbitration under Article 15.23 shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 15.37. Third-Party Funding
1. A claimant benefiting from a third-party funding arrangement shall disclose to the respondent Party and to the Tribunal the name and address of the third-party funder.
2. The claimant shall make the disclosure under paragraph 1 at the time of the submission of a claim to arbitration under Article 15.23, or, if the third-party funding is arranged after the submission of a claim, within ten days of the date on which the third-party funding was arranged.
3. The claimant shall have a continuing obligation to disclose any changes to the information referred to in paragraph 1 occurring after its initial disclosure, including termination of the third-party funding arrangement.
Article 15.38. Service of Documents
Each Party shall promptly make publicly available, and notify the other Party by diplomatic note, the location for delivery of notice and other documents, including any subsequent change to the location for delivery. Investors shall ensure that service of documents to a Party is made to the appropriate location.
Article 15.39. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a respondent Party may not assert as a defence, counterclaim, right of set-off, or otherwise, that the claimant has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Article 15.40. Establishment of a First Instance Investment Tribunal or an Appellate Mechanism for Investor-State Dispute Settlement
If an investor-state dispute settlement mechanism, consisting of a first instance investment tribunal or an appellate mechanism, is developed under other institutional arrangements and is open to the Parties for acceptance, the Parties shall consider whether, and to what extent, a dispute under this Section should be decided pursuant to that investor-state dispute settlement mechanism.
Article 15.41. Committee on Investment
1. The Parties hereby establish a Committee on Investment composed of representatives from each Party responsible for matters falling under the scope of this Chapter.
2. The Committee on Investment shall provide a forum for the Parties to consult on issues relating to this Chapter, including:
(a) difficulties which may arise in the implementation of this Chapter; and
(b) possible improvements of this Chapter, in particular in the light of experience and developments in other international fora and under the Parties' other agreements.
3. The Committee on Investment may, after completion of any internal requirements and procedures that may be applicable to each Party:
(a) recommend to the Joint Committee the adoption of interpretations pursuant to Article 15.27.2;
(b) recommend to the Joint Committee that the dispute settlement rules and procedures set out in this Chapter and Annex 15-B, as well as the applicable rules on transparency, be amended in accordance with the procedure set out in Article 29.2 (Final Provisions – Amendments); and
(c) take any other action as the Parties may decide.
4. The Committee on Investment shall meet, in person or by any other technological means available, within one year after the entry into force of this Agreement, and thereafter at the request of a Party.
Section E. Expedited Arbitration
Article 15.42. Consent to Expedited Arbitration
1. The disputing parties to an arbitration under Section D may consent to expedite the arbitration in accordance with this Section, when the damages claimed do not exceed CAD 10 million, by following the procedure in paragraph 2.
2. The disputing parties shall jointly notify the designated appointing authority in writing of their consent to an expedited arbitration in accordance with this Section. The notice must be received within 20 days of the submission of a claim to arbitration under Article 15.23.6(a) or (b).
3. Section D and Annex 15-B, as modified by this Section, apply to the investment dispute, except for Article 15.28, which does not apply.
Article 15.43. Mediation
1. The disputing parties may consent to have recourse to mediation in accordance with this Section. Recourse to mediation is without prejudice to the legal position or rights of a disputing party under this Section.
2. If the disputing parties jointly agree to have recourse to mediation, the disputing parties shall appoint a mediator to facilitate the resolution of the dispute within 20 days of the notification provided under Article 15.42.2.
3. If the disputing parties do not select a mediator within the time period provided for in paragraph 2, the designated appointing authority shall select the mediator within 20 days of the expiration of that time period.
4. The disputing parties may hold mediation sessions by videoconference, telephone or similar means of communication as appropriate.
5. If the disputing parties fail to reach a resolution of the dispute within 60 days of the appointment of the mediator, the dispute shall proceed to arbitration in accordance with this Section.
Article 15.44. Constitution of the Tribunal
1. The Tribunal in an expedited arbitration shall consist of a sole arbitrator appointed pursuant to paragraphs 2 to 7 of this Article.
2. The disputing parties shall jointly appoint the sole arbitrator within 30 days of the notification delivered under Article 15.42.2. The sole arbitrator shall have the qualifications under Article 15.26.
3. If the disputing parties do not appoint the sole arbitrator within the time period under paragraph 2, the designated appointing authority shall appoint the sole arbitrator in the manner specified in Rule 3(2) of Annex 15-B.
4. The sole arbitrator shall have expertise or experience as an arbitrator of investor-State disputes arising under international investment agreements.
5. The sole arbitrator shall be prepared to meet the shorter timeframes provided for in this Section.
6. The sole arbitrator’s fees shall be fixed according to the scales of administrative expenses and arbitrator’s fees for the expedited procedure set out in Appendix III of the Arbitration Rules of the International Chamber of Commerce.
7. The sole arbitrator shall abide by Annex 15-C.
Article 15.45. First Session In Expedited Arbitration
1. The sole arbitrator shall hold a first session within 30 days of the constitution of the Tribunal under Article 15.44.
2. The sole arbitrator shall hold the first session by videoconference, telephone or similar means of communication, unless both disputing parties and the sole arbitrator agree it shall be held in person.
Article 15.46. Procedural Schedule for Expedited Arbitration
1. The following schedule for written submissions and the hearing shall apply in the expedited arbitration:
(a) the claimant shall file, within 90 days of the first session, a memorial, of no more than 150 pages;
(b) the respondent Party shall file, within 90 days of the claimant’s filing of its memorial pursuant to subparagraph (a), a counter-memorial, of no more than 150 pages;
(c) the claimant shall file, within 90 days of the respondent Party’s filing of its counter-memorial pursuant to subparagraph (b), a reply of no more than 100 pages;
(d) the respondent Party shall file, within 90 days of the claimant’s filing of the reply pursuant to subparagraph (c), a rejoinder of no more than 100 pages;
(e) a non-disputing Party may file, within 60 days of the respondent Party’s filing of the rejoinder pursuant to subparagraph (d), a written submission regarding the interpretation of this Agreement pursuant to Article 15.32;
(f) the sole arbitrator shall hold the hearing within 120 days of the respondent Party’s filing of the rejoinder pursuant to subparagraph (d);
(g) each disputing party shall file a statement of costs within 30 days of the last day of the hearing referred to in subparagraph (f); and
(h) the sole arbitrator shall render the award as soon as possible, and in any event within 180 days of the last day of the hearing referred to in subparagraph (f).
2. The sole arbitrator may grant a claimant in default a grace period not exceeding 30 days, otherwise the claimant is deemed to have withdrawn its claim and to have discontinued the proceedings. The sole arbitrator, if appointed, shall, at the request of the respondent Party, and after notice to the disputing parties, in an order take note of the discontinuance. After the order has been rendered, the authority of the Tribunal shall cease.
3. The sole arbitrator may grant a respondent Party in default a grace period not exceeding 30 days, otherwise the claimant may request that the sole arbitrator address the questions submitted to it and render an award.
4. At the request of a disputing party, the sole arbitrator may grant limited requests for specifically identifiable documents that the requesting disputing party knows, or has good cause to believe, exist and are in the possession, custody or control of the other disputing party, and shall adjust the schedule under paragraph 1 as appropriate.
5. The sole arbitrator may, after consulting the disputing parties, limit the number, length, or scope of written submissions or written witness evidence (both fact witnesses and experts).
6. The sole arbitrator may, following a joint request by the disputing parties, decide the dispute solely on the basis of the documents submitted by the disputing parties, with no hearing and no or a limited examination of witnesses or experts. If the sole arbitrator holds a hearing under paragraph 1(f), the sole arbitrator may conduct the hearing by videoconference, telephone or similar means of communication.
7. The sole arbitrator shall, following a joint request by the disputing parties, but no later than the date of filing of the respondent Party’s counter-memorial referred to in paragraph 1(b), decide that this Section shall no longer apply to the case.
8. The sole arbitrator may, at the request of a disputing party, but no later than the date of filing of the respondent Party’s counter-memorial referred to in paragraph 1(b), decide that this Section shall no longer apply to the case. The disputing party that has made the request shall bear the costs of the expedited arbitration.
9. If, pursuant to paragraph 7 or 8, the sole arbitrator decides that this Section no longer applies to the case, and unless the disputing parties agree otherwise, the sole arbitrator appointed pursuant to Article 15.44 shall be appointed as presiding arbitrator of the Tribunal constituted under Section D.
Article 15.47. Consolidation
When two or more claims falling under Article 15.42 have a question of law or fact in common and arise out of the same events or circumstances, Article 15.29 applies.
Annex 15-A. Exclusions from Dispute Settlement
1. Section D, Section E and Chapter 27 (Dispute Settlement) of this Agreement do not apply to a measure adopted or maintained relating to a review under the Investment Canada Act, R.S.C. 1985, c. 28, with respect to whether or not to permit an investment that is subject to review.
2. In the event that Ecuador adopts legislation analogous to the Investment Canada Act, R.S.C. 1985, c. 28, it may submit a request to the Committee on Investment that the legislation be included in this Annex. Canada shall give positive consideration to the request if it considers that the inclusion of this legislation in this Annex would result in equivalent commitments from both Parties. In determining whether acceding to this request would result in equivalent commitments, Canada may take into account any available evidence relating to how the legislation has been implemented.
3. Section D and Section E of this Chapter do not apply to a tobacco control measure adopted or maintained by a Party. A “tobacco control measure” means a measure of a Party related to the production or consumption of manufactured tobacco products (including products made or derived from tobacco), their distribution, labelling, packaging, advertising, marketing, promotion, sale, purchase, or use, as well as enforcement measures, such as inspection, recordkeeping, and reporting requirements.
A measure with respect to tobacco leaf that is not in the possession of a manufacturer of tobacco products, or that is not part of a manufactured tobacco product, is not a tobacco control measure.
Annex 15-B. Arbitration Rules
Section I. Introductory Rules
Scope of application
Rule 1
1. Investment disputes under Section D of this Chapter shall be settled in accordance with these Rules, except where there is a conflict between these Rules and a provision of the Chapter, the provision of the Chapter shall prevail.
2. Any procedural question not provided for in this Chapter or these Rules shall be decided by the Tribunal.
Authorities of the designated appointing authority
Rule 2
1. In exercising its functions under this Chapter and these Rules, the designated appointing authority may require from any disputing party and the arbitrators the information it deems necessary and it shall give the disputing parties and, where appropriate, the arbitrators, an opportunity to present their views in any manner it considers appropriate. All those communications to and from the designated appointing authority shall also be provided by the sender to all disputing parties.
2. When the designated appointing authority is requested to appoint an arbitrator, the disputing party making the request shall provide the designated appointing authority with a copy of the notice of arbitration and, if it exists, any response to the notice of arbitration.
Section II. Composition of the Tribunal
Appointment of arbitrators