6. Notwithstanding the provisions of paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 5, a Party may prevent or limit transfers by a financial institution to, or for the benefit of, an affiliate of or person related to such institution, through the equitable, non-discriminatory and good faith application of measures relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions.
7. Notwithstanding paragraph 1, a Party may restrict transfers of returns in kind in circumstances where it could otherwise restrict transfers under the international agreements to which both Parties are party and as set out in paragraph 3.
Article 12. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are published or otherwise made available in a timely manner so as to enable interested persons and the other Party to become acquainted with them.
2. Each Party shall if required by its laws and regulations:
(a) publish in advance any such measure that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
3. Upon request by a Party, information shall be exchanged on the measures of the other Party that may have an impact on covered investments.
Article 13. Subrogation
1. If a Party or any agency makes a payment to any of its investors under a guarantee or a contract of insurance it has entered into in respect of an investment, the other Party shall recognize the validity of the subrogation in favour of such Party or agency to any right or title held by the investor.
2. A Party or any agency that is subrogated to the rights of an investor in accordance with paragraph 1 shall be entitled in all circumstances to the same rights as those of the investor in respect of the investment. Such rights may be exercised by the Party or any agency, or by the investor if the Party or any agency so authorizes.
Article 14. Taxation Measures
1. Except as set out in this Article, this Agreement shall not apply to taxation measures.
2. This Agreement shall not affect the rights and obligations of the Parties under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall apply to the extent of the inconsistency.
3. This Agreement shall not be construed to require a Party to furnish or allow access to information the disclosure of which would be contrary to the Party's law protecting information concerning the taxation affairs of a taxpayer.
4. Subject to paragraph 2, the provisions of Articles 4 (National Treatment) and 5 (Most Favoured Nation Treatment) shall apply to all taxation measures, other than taxation measures on income, capital gains or on the taxable capital of corporations, except that nothing in those Articles shall apply (2):
(a) to a non-conforming provision of any existing taxation measure, to its continuation or prompt renewal or to its amendment to the extent that the amendment does not decrease its conformity at the time of the amendment with any of those Articles;
(b) to any new taxation measure that is aimed at ensuring the equitable and effective imposition or collection of taxes (including, for greater certainty, any measure that is taken by a Party to ensure compliance with the Party's taxation system or to prevent the avoidance or evasion of taxes) and that does not arbitrarily discriminate between persons, goods or services of the Parties.
5. Provided that the conditions in paragraph 6 are met:
(a) a claim by an investor that a taxation measure of a Party is in breach of an agreement between a central government authority of a Party and the investor concerning an investment shall be considered a claim for breach of this Agreement; and
(b) the provisions of Article 10 (Expropriation) shall apply to taxation measures.
6. An investor may not make a claim pursuant to paragraph 5 unless:
(a) the investor provides a copy of the notice of claim to the taxation authorities of the Parties; and
(b) six months after receiving notification of the claim by the investor, the taxation authorities of the Parties fail to reach a joint determination that, in the case of 5(a), the measure does not contravene such determination, or that, in the case of 5(b), the measure in question is not an expropriation
7. If, in connection with a claim by an investor of a Party or a dispute between the Parties, an issue arises as to whether a measure of a Party is a taxation measure, a Party may refer the issue to the taxation authorities of the Parties. A decision of the taxation authorities shall bind any Tribunal formed pursuant to Section C (Settlement of Disputes between an Investor and the Host Party) or arbitral panel formed pursuant to Section D (State-to-State Dispute Settlement Procedures). A Tribunal or arbitral panel seized of a claim or a dispute in which the issue arises may not proceed pending receipt of the decision of the taxation authorities. If the taxation authorities have not decided the issue within six months of the referral, the Tribunal or arbitral panel shall itself decide the issue.
8. The taxation authorities referred to in this Article shall be the following until otherwise notified by a Party:
(a) for Canada: the Assistant Deputy Minister, Tax Policy, of the Department of Finance or his successor;
(b) for the United Republic of Tanzania: the Minister responsible for Finance or an authorized representative of the Minister or his successor.
Article 15. Health, Safety and Environmental Measures
The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement.
Article 16. Reservations and Exceptions
1. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors, and Entry of Personnel) and 9 (Performance Requirements) shall not apply to:
(a) any measure:
(i) existing and non-conforming, maintained in the territory of a Party,
(ii) maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition of a government's equity interests in, or the assets of, an existing state enterprise or an existing governmental entity, prohibits or imposes limitations on the ownership or control of equity interests or assets or imposes nationality requirements relating to senior management or members of the board of directors;
(b) In the case of the United Republic of Tanzania, the legislation to regulate the oil and gas sectors, in relation to ensuring domestic supply, foreign ownership restrictions and provisions regarding the composition of senior management and board of directors in these sectors, which is still in the process of development at the date of entry into force of this Agreement, shall be considered an existing measure, once in force. It is understood that this existing non-conforming measure is subject to the obligations of the Agreement;
(c) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a) or (b); or
(d) an amendment to any non-conforming measure referred to in subparagraph (a) or (b) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors, and Entry of Personnel) and 9 (Performance Requirements).
2. For illustrative purposes only and without prejudice to paragraph 1, each Party shall, to the extent possible, set out in its Schedule to Annex I any existing non-conforming measures it maintains at the national level.
3. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors, and Entry of Personnel) and 9 (Performance Requirements) shall not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its schedule to Annex II.
4. Article 5 (Most-Favoured-Nation Treatment) shall not apply to treatment accorded under any bilateral or multilateral international agreement in force or signed prior to January 1, 1994.
5. Article 5 (Most-Favoured-Nation Treatment) shall not apply to a Party which has concluded or may conclude an agreement:
(a) regarding the establishment, strengthening or expansion of a customs union, a common market, or a free trade area; or
(b) relating to aviation, fisheries or maritime matters, including salvage.
6. In respect of intellectual property rights, a Party may derogate from Articles 4 (National Treatment) and 5 (Most-Favoured-Nation Treatment) in a manner that is consistent with the WTO Agreement.
7. The provisions of Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors, and Entry of Personnel) and 9 (Performance Requirements) shall not apply to procurement by a Party.
8. The provisions of Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors, and Entry of Personnel) shall not apply to subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance.
9. In view of the need to strengthen the capacity of national entrepreneurs, the United Republic of Tanzania maintains the right to grant limited capacity-building special incentives to its nationals and companies. Article 4 (National Treatment) shall not apply to such incentives provided that they do not significantly affect the investments and activities of investors of the other Party. Subject to the strengthening of the capacity of local industries, the United Republic of Tanzania shall eliminate progressively such special incentives.
Article 17. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner that would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, this Agreement shall not be construed to prevent a Party from adopting or enforcing measures necessary:
(a) to protect human, animal or plant life or health;
(b) to ensure compliance with laws and regulations that are not inconsistent with this Agreement; or
(c) for the conservation of living or non-living exhaustible natural resources.
2. This Agreement shall not be construed to prevent a Party from adopting or maintaining reasonable measures for prudential reasons, such as:
(a) the protection of investors, depositors, financial market participants, policyholders, policy-claimants, or persons to whom a fiduciary duty is owed by a financial institution;
(b) the maintenance of the safety, soundness, integrity or financial responsibility of financial institutions; and
(c) ensuring the integrity and stability of a Party's financial system.
3. This Agreement shall not apply to non-discriminatory measures of general application taken by any public entity in pursuit of monetary and related credit or exchange rate policies. This paragraph shall not affect a Party's obligations under Article 9 (Performance Requirements) or Article 11 (Transfers).
4. This Agreement shall not be construed:
(a) to require any Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests;
(b) to prevent any Party from taking any actions that it considers necessary for the protection of its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment,
(ii) taken in time of war or other emergency in international relations, or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) to prevent any Party from taking action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
5. This Agreement shall not be construed to require a Party to furnish or allow access to information the disclosure of which would impede law enforcement or would be contrary to the Party's law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy or the confidentiality of the financial affairs and accounts of individual customers of financial institutions.
6. This Agreement shall not be construed to require a Party to furnish or allow access to information protected under its competition laws, or a competition authority of a Party to furnish or allow access to any other information that is privileged or otherwise protected from disclosure.
7. The provisions of this Agreement shall not apply to investments in cultural industries. "Cultural industries" means persons engaged in any of the following activities:
(i) the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine readable form but not including the sole activity of printing or typesetting any of the foregoing,
(ii) the production, distribution, sale or exhibition of film or video recordings,
(iii) the production, distribution, sale or exhibition of audio or video music recordings,
(iv) the publication, distribution, sale or exhibition of music in print or machine readable form, or
(v) radio communications in which the transmissions are intended for direct reception by the general public, and all radio, television or cable broadcasting undertakings and all satellite programming and broadcast network services.
8. Any measure adopted by a Party in conformity with a decision adopted, extended or modified by the World Trade Organization pursuant to Article IX:3 and IX:4 of the WTO Agreement shall be deemed to be also in conformity with this Agreement. An investor purporting to act pursuant to Section C may not claim that such a conforming measure is in breach of this Agreement.
Article 18. Denial of Benefits
1. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of such Party and to investments of such investor if investors of a non-Party own or control the enterprise and the denying Party adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investment.
2. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of such Party and to investments of such investor if investors of a non-Party own or control the enterprise and the enterprise has no substantial business activities in the territory of the Party under whose law it is constituted or organized.
Section C. Settlement of Disputes between an Investor and the Host Party
Article 19. Purpose
Without prejudice to the rights and obligations of the Parties under Section D, this Section establishes a mechanism for the settlement of investment disputes.
Article 20. Claim by an Investor of a Party
A disputing investor may submit to arbitration under this Section a claim that:
(a) the respondent Party has breached an obligation under Section B, other than an obligation under Article 8(3) (Senior Management, Boards of Directors and Entry of Personnel), 12 (Transparency) or 15 (Health, Safety and Environmental Measures); and
(b) the disputing investor or a covered investment of the investor has incurred loss or damage by reason of, or arising out of, that breach.
Article 21. Conditions Precedent to Submission of a Claim to Arbitration
1. The disputing parties shall hold consultations in an attempt to settle a claim amicably before a disputing investor may submit a claim to arbitration. Consultations shall be held within 90 days of the submission of the notice of intent to submit a claim to arbitration, unless the disputing parties otherwise agree. The place of consultation shall be the capital of the respondent Party, unless the disputing parties otherwise agree.
2. A disputing investor may submit a claim to arbitration under Article 20 (Claim by an Investor of a Party) only if:
(a) the disputing investor consent to arbitration in accordance with the procedures set out in this Agreement;
(b) at least 180 days have elapsed since the events giving rise to the claim;
(c) the disputing investor has delivered to the respondent Party written notice of its intent to submit a claim to arbitration at least 180 days prior to submitting the claim, which notice shall specify:
(i) the name and address of the disputing investor,
(ii) the provisions of this Agreement alleged to have been breached and any other relevant provisions,
(iii) the issues and the factual basis for the claim, including the measures at issue, and
(iv) the relief sought and the approximate amount of damages claimed;
(d) the disputing investor has delivered evidence establishing that it is an investor of the other Party with its notice of intent to submit a claim to arbitration under paragraph 2(c); and
(e) in the case of a claim submitted under Article 20(1) (Claim by an Investor of a Party):
(i) not more than three years have elapsed from the date on which the disputing investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the disputing investor has incurred loss or damage thereby; and
(ii) the disputing investor and, where the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the disputing investor owns or controls directly or indirectly, the enterprise waive their right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceedings with respect to the measure of the respondent Party that is alleged to be a breach referred to in Article 20 (Claim by an Investor of a Party) except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the respondent Party.
3. A consent and waiver required under paragraph 2 shall be delivered to the respondent Party and shall be included in the submission of a claim to arbitration.
Article 22. Special Rules Regarding Financial Services
1. With respect to:
(a) financial institutions of a Party; and
(b) investors of a Party, and investments of such investors, in financial institutions in the other Party's territory,
This Section applies only in respect of claims that the other Party has breached an obligation under Articles 10 (Expropriation), 11 (Transfers) or 18 (Denial of Benefits).
2. Where a disputing investor or respondent Party claims that a dispute involves measures adopted or maintained by a Party relating to financial institutions of the other Party or investors of the other Party and their investments in financial institutions in the respondent Party's territory, or where the respondent Party invokes Articles 11(6) (Transfers), 17(2), or 17(3) (General Exceptions), in addition to the criteria set out in Article 25 (2) (Arbitrators), the arbitrators shall have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
3. Where a disputing investor submits a claim to arbitration under this Section, and the respondent Party invokes Articles 11(6), 17(2), or 17(3) (General Exceptions), at the request of that Party, the Tribunal shall seek a report in writing from the Parties on the issue of whether and to what extent the said paragraphs are a valid defence to the claim of the disputing investor. The Tribunal may not proceed pending receipt of a report under this Article.
4. Pursuant to a request received in accordance with paragraph 3, the Parties shall proceed to prepare a written report, either on the basis of concurrence following consultations, or by means of an arbitral panel in accordance with Section D. The report shall be transmitted to the Tribunal, and shall be binding on the Tribunal.
5. The Tribunal may decide the matter where, within 70 days of the referral by the Tribunal, no request for the establishment of a panel pursuant to paragraph 4 has been made, and no report has been received by the Tribunal.
Article 23. Submission of a Claim to Arbitration
1. A disputing investor who meets the conditions precedent in Article 21 (Conditions Precedent to Submission of a Claim to Arbitration), may submit the claim to arbitration to:
(a) ICSID under the ICSID Convention, provided that both the respondent Party and the Party of the disputing investor are parties to the Convention;
(b) a tribunal constituted pursuant to and governed by the Additional Facility Rules of ICSID, provided that either the respondent Party or the Party of the disputing investor, but not both, is a party to the ICSID Convention; or
(c) an ad hoc tribunal set up under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).
2. The applicable arbitration rules shall govern the arbitration except as provided by this Section.
3. A claim is submitted to arbitration under this Section when:
(a) the request for arbitration under Article 36(1) of the ICSID Convention is received by the Secretary-General of ICSID;
(b) the notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General of ICSID; or
(c) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the respondent Party.
4. Delivery of notice and other documents on a Party shall be made to the place named for that Party below or any other place designated by the Parties through an exchange of diplomatic notes:
For Canada:
Office of the Deputy Attorney General of Canada
Justice Building
239 Wellington Street
Ottawa, Ontario K1A 0H8
Canada
For Tanzania:
Office of the Attorney General of Tanzania
Attorney General's Chambers
Kivukoni Front
P.O. Box 9050
Dar Es Salaam
Tanzania
Article 24. Consent to Arbitration
1. Each Party consents to the submission of a claim to arbitration in accordance with the terms of this Agreement. Failure to meet any of the conditions precedent in Article 21 (Conditions Precedent to Submission of a Claim to Arbitration) shall nullify that consent.
2. The consent given in paragraph 1 and the submission by a disputing investor of a claim to arbitration shall satisfy the requirement of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the Additional Facility Rules for written consent of the parties when the claim has been submitted under the ICSID Convention or the Additional Facility Rules; and
(b) Article II of the New York Convention for an agreement in writing.
Article 25. Arbitrators
1. Except in respect of a Tribunal established under Article 27 (Consolidation), and unless the disputing parties agree otherwise, 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.
2. Arbitrators shall have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent of, and not be affiliated with or take instructions from, either Party or the disputing investor.
3. If a Tribunal, other than a Tribunal established under Article 27, has not been constituted within 90 days from the date that a claim is submitted to arbitration, the Secretary-General of ICSID, on the request of either disputing party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed, except that the presiding arbitrator shall not be a national of either Party.
Article 26. Agreement to Appointment of Arbitrators
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 based on a ground other than nationality, citizenship or permanent residence:
(a) the respondent Party agrees to the appointment of each individual member of a Tribunal established under the ICSID Convention or the ICSID Additional Facility Rules; and
(b) a disputing investor referred to in Article 20(1) (Claim by an Investor of a Party) may submit a claim to arbitration, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only if the disputing investor agrees in writing to the appointment of each member of the Tribunal.
Article 27. Consolidation
1. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by Section C.
2. Where a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 23 (Submission of a Claim to Arbitration) have a question of law or fact in common, the Tribunal may, in the interest of fair and efficient resolution of the claims and after hearing the disputing parties, by order: