(a) assume jurisdiction over, and hear and determine together, all or part of the claims; or
(b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others.
3. A disputing party that seeks an order under paragraph 2 shall request the Secretary-General of ICSID to establish a Tribunal and shall specify in the request:
(a) the name of the respondent Party or disputing investors against which the order is sought;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
4. The disputing party shall deliver a copy of the request to the respondent Party or disputing investors against which the order is sought.
5. Within 60 days of receipt of the request, the Secretary-General of ICSID shall establish a Tribunal comprising three arbitrators. The Secretary-General of ICSID shall appoint one member who is a national of the respondent Party, one member who is a national of the Party of the disputing investors, and a presiding arbitrator who is not a national of either Party.
6. Where a Tribunal has been established under this Article, a disputing investor that has submitted a claim to arbitration under Article 23 (Submission of a Claim to Arbitration) and that has not been named in a request made under paragraph 3 may make a written request to the Tribunal that it be included in an order made under paragraph 2, and shall specify in the request:
(a) the name and address of the disputing investor;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
7. A disputing investor referred to in paragraph 6 shall deliver a copy of its request to the disputing parties named in a request made under paragraph 3.
8. A Tribunal established under Article 23 (Submission of a Claim to Arbitration) shall not have jurisdiction to decide a claim, or a part of a claim, over which a Tribunal established under this Article has assumed jurisdiction.
9. On application of a disputing party, a Tribunal established under this Article, pending its decision under paragraph 2, may order that the proceedings of a Tribunal established under Article 23 (Submission of a Claim to Arbitration) be stayed unless the latter Tribunal has already adjourned its proceedings.
Article 28. Documents to, and Participation of, the other Party
1. A respondent Party shall deliver to the other Party to this Agreement a copy of the notice of intent to submit a claim to arbitration and other documents no later than 30 days after the date that such documents have been delivered to the respondent Party. The other Party shall be entitled, at its cost, to receive from the respondent Party a copy of the evidence that has been tendered to the Tribunal, copies of all pleadings filed in the arbitration, and the written argument of the disputing parties. The Party receiving such information shall treat the information as if it were a respondent Party.
2. The other Party to this Agreement shall have the right to attend any hearings held under Section C. Upon written notice to the disputing parties, the other Party may make submissions to a Tribunal on a question of interpretation of this Agreement.
Article 29. Place of Arbitration
Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in the territory of a country that is a party to the New York Convention, selected in accordance with:
(a) the ICSID Additional Facility Rules if the arbitration is under those Rules or the ICSID Convention; or
(b) the UNCITRAL Arbitration Rules if the arbitration is under those Rules.
Article 30. Public Access to Hearings and Documents
1. Any Tribunal award under this Section shall be publicly available, subject to the redaction of confidential information. All other documents submitted to, or issued by, the Tribunal shall be publicly available unless the disputing parties otherwise agree, subject to the redaction of confidential information.
2. Hearings held under this Section shall be open to the public. The Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information, including business confidential information.
3. A disputing party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in such documents.
4. The Parties may share with officials of their respective federal and sub-national governments all relevant unredacted documents in the course of dispute settlement under this Agreement, but they shall ensure that those persons protect any confidential information in such documents.
5. 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. However, a Party should endeavour to apply its law on access to information so as to protect information designated confidential by the Tribunal.
Article 31. Submissions by a Non-disputing Party
A Tribunal shall have the authority to consider and accept written submissions from a person or entity that is not a disputing party and that has a significant interest in the arbitration. The Tribunal shall ensure that any non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice either disputing party.
Article 32. Governing Law
1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. A joint interpretation by the Parties of a provision of this Agreement shall be binding on a Tribunal established under this Section, and any award under this Section shall be consistent with such interpretation.
2. Where a respondent Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception in Annex I or Annex II, on request of the respondent Party, the Tribunal shall request the joint interpretation of the Parties on the issue. Within 60 days of delivery of the request, the Parties shall submit in writing their joint interpretation to the Tribunal. The interpretation shall be binding on the Tribunal. If the Parties fail to submit their joint interpretation within 60 days, the Tribunal shall decide the issue.
Article 33. Interim Measures of Protection and Final Award
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 may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 20 (Claim by an Investor of a Party). For purposes of this paragraph, an order includes a recommendation.
2. Where a Tribunal makes a final award against the respondent Party, the Tribunal may award, separately or in combination:
(a) monetary damages and any applicable interest;
(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.
The Tribunal may also award costs in accordance with the applicable arbitration rules.
3. A Tribunal may not order a respondent Party to pay punitive damages.
Article 34. Finality and Enforcement of an Award
1. An award made by a Tribunal shall have 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 may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award 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 or the UNCITRAL Arbitration Rules:
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
(ii) 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. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.
Article 35. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a respondent 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.
Section D. State-to-state Dispute Settlement Procedures
Article 36. Disputes between the Parties
1. Either Party may request consultations on the interpretation or application of this Agreement. The other Party shall give sympathetic consideration to the request. Any dispute between the Parties concerning the interpretation or application of this Agreement shall, whenever possible, be settled amicably through consultations.
2. If a dispute cannot be settled through consultations, it shall, at the request of either Party, be submitted to an arbitral panel for decision.
3. An arbitral panel shall be constituted for each dispute. Within two months after receipt through diplomatic channels of the request for arbitration, each Party shall appoint one member to the arbitral panel. The two members shall then select a national of a third State who, upon approval by the two Parties, shall be appointed Chair of the arbitral panel. The Chair shall be appointed within two months from the date of appointment of the other two members of the arbitral panel.
4. If within the periods specified in paragraph 3 the necessary appointments have not been made, either Party may invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Party or is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of either Party or is prevented from discharging the said function, the Member of the International Court of Justice next in seniority, who is not a national of either Party, shall be invited to make the necessary appointments.
5. 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.
6. Where a Party determines that the dispute involves measures relating to financial institutions, or to investors or investments of such investors in financial institutions, or where the respondent Party invokes Article 11(6) (Transfers), 17(2), or 17(3) (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 5, have expertise or experience in financial services or practice, which may include the regulation of financial institutions.
7. The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. Such decision shall be binding on both Parties. Unless otherwise agreed, the decision of the arbitral panel shall be rendered within six months of the appointment of the Chair.
8. Each Party shall bear the costs of its own member of the panel and of its representation in the arbitral proceedings. The costs related to the Chair and any remaining costs shall be borne equally by the Parties. The arbitral panel may, however, award that a higher proportion of costs be borne by one of the two Parties, and this award shall be binding on both Parties.
9. Within 60 days of the decision of a panel, the Parties shall make a determination on the manner in which to resolve their dispute. Such determination shall normally implement the decision of the panel. If the Parties fail to make a determination, the Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel.
Section E. Final Provisions
Article 37. Consultations and other Actions
1. A Party may request in writing consultation with the other Party regarding any actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
2. The consultations under paragraph 1 may address, inter alia, matters relating to:
(a) the implementation of this Agreement;
(b) the interpretation or application of this Agreement.
3. Further to consultations under this Article, the Parties may take any action as they may decide, including making and adopting rules supplementing the applicable arbitral rules under Section C.
Article 38. Extent of Obligations
The Parties shall ensure that all necessary measures are taken in order to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by sub-national governments.
Article 39. Exclusions
The dispute settlement provisions of Sections C and D shall not apply to the matters in Annex III.
Article 40. Application and Entry Into Force
1. Each Party shall notify the other in writing of the completion of the procedures required in its territory for the entry into force of this Agreement. This Agreement shall enter into force on the date of the latter of the two notifications.
2. This Agreement shall remain in force for a period of 10 years. Thereafter it shall remain in force until either Party notifies the other Party in writing of its intention to terminate it. The termination of this Agreement shall become effective one year after notice of termination has been received by the other Party. In respect of investments or commitments to invest made prior to the date when the termination of this Agreement becomes effective, Articles 1 to 40 inclusive, as well as paragraph 2 of this Article and Article 42 (Amendment of the Agreement), shall remain in force for a period of fifteen years.
Article 41. Amendment of the Agreement
This Agreement may be amended by a joint decision of the Parties. An amendment shall enter into force when each Party has notified the other in writing of the completion of the procedures required in its territory for the entry into force of the amendment. The amendment shall enter into force on the date of the later of the two notifications.
Article 42. Annexes and Footnotes
All Annexes and Footnotes shall form an integral part of this Agreement.
Conclusion
In witness whereof the undersigned, duly authorized by their respective Governments, have signed this Agreement.
Done in duplicate at Dar es Salaam, this 16th day of May 2013, in the English and French languages, each version being equally authentic.
John Baird (Minister of Foreign Affairs of Canada)
For the Government of Canada
Bernard Membe (Minister of Foreign Affairs and International Cooperation of the United Republic of Tanzania}
For the Government of the Republic of Tanzania
Attachments
Annex I - canada - Reservations for Existing Measures and Liberalization Commitments
Illustrative Schedule of Canada
1. Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.)
Investment Canada Regulations, SOR/85-611
These measures deal with the acquisition and establishment of businesses by non-Canadians and state that the establishment of new businesses by non-Canadians may be subject to review. They are reserved from the obligations imposed by Articles 4 (National Treatment), 8 (Senior Management, Board of Directors and Entry of Personnel) and 9 (Performance Requirements).
2. Canada Business Corporations Act, R.S.C. 1985, c. C-44
Canada Business Corporations Regulations, (2001), SOR/2001-512
Canada Cooperatives Act, S.C. 1998, c. 1
Canada Cooperatives Regulations,SOR/99-256
Canada Corporations Act, R.S.C. 1970, c. C-32
The Canada Business Corporations Act provides for constraints on shares of businesses and cooperatives incorporated pursuant to Canadian legislation to maintain participation requirements and Canadian ownership and control levels set out in the Canada Business Corporations Regulations. These measures are reserved from the obligations imposed by Article 4 (National Treatment).
3. Canada Business Corporations Act, R.S.C. 1985, c. C-44
Canada Business Corporations Regulations, (2001), SOR/2001-512
Canada Cooperatives Act, S.C. 1998, c. 1
Canada Cooperatives Regulations,SOR/99-256
Canada Corporations Act, R.S.C. 1970, c. C-32
Special Acts of Parliament incorporating specific companies
These measures contain provisions dealing with the nationality of senior management or directors of Canadian businesses. They are reserved from the obligations imposed by Article 8 (Senior Management, Board of Directors and Entry of Personnel).
4. Citizenship Act, R.S.C. 1985, c. C-29
Foreign Ownership of Land Regulations,SOR/79-416
These measures deal with foreign ownership of land. They are reserved from the obligations imposed by Article 4 (National Treatment).
5. Air Canada Public Participation Act, R.S.C. 1985, c. 35 (4th Supp.)
Canadian Arsenals Limited Divestiture Authorization Act, S.C. 1986, c. 20
Eldorado Nuclear Limited Reorganization and Divestiture Act, S.C. 1988, c. 41
Nordion and Theratronics Divestiture Authorization Act, S.C. 1990, c. 4
These measures set out non-resident ownership restrictions on the shares of certain companies. They are reserved from the obligations imposed by Article 4 (National Treatment).
6. Customs Act, R.S.C. 1985, c. 1 (2nd Supp.)
Customs Brokers Licensing Regulations,SOR/86-1067
These measures set out residency requirements for customs brokers. They are reserved from the obligations imposed by Articles 4 (National Treatment) and 8 (Senior Management, Board of Directors and Entry of Personnel).
7. Customs Act, R.S.C. 1985, c. 1 (2nd Supp.)
Duty Free Shop Regulations, SOR/86-1072
These measures set out residency and other requirements for duty free shop operations. They are reserved from the obligations imposed by Article 4 (National Treatment).
8. Cultural Property Export and Import Act, R.S.C. 1985, c. C-51
This measure sets out restrictions on foreign participation in the import or export of cultural property. This measure is reserved from the obligations imposed by Article 4 (National Treatment).
9. Patent Act, R.S.C. 1985, c. P-4 Patent Rules,SOR/96-423
These measures set out Canadian residency requirements for registered patent agents. They are reserved from the obligations imposed by Articles 4 (National Treatment) and 9 (Performance Requirements).
10. Trade-Marks Act, R.S.C. 1985, c. T-13
Trade-mark Regulations,SOR/96-195
These measures set out Canadian residency requirements for registered trade-mark agents. They are reserved from the obligations imposed by Articles 4 (National Treatment) and 9 (Performance Requirements).
11. Canada Petroleum Resources Act, R.S.C. 1985, c. 36 (2nd Supp.)
Territorial Lands Act, R.S.C. 1985, c. T-7
Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50
Canada-Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, S.C. 1988, c. 28
Canada Oil and Gas Land Regulations, C.R.C. 1978, c. 1518
These measures set out Canadian ownership requirements for oil and gas production licenses. They are reserved from the obligations imposed by Article 4 (National Treatment).
12. Canada Oil and Gas Production and Conservation Act, R.S.C. 1985, c. O-7, as amended by the Canada Oil and Gas Operations Act, S.C. 1992, c. 35
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act,S.C. 1988, c. 28
Canada Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3
Measures implementing the Canada-Yukon Oil and Gas Accord Measures implementing the Northwest Territories Oil and Gas Accord
These measures deal with benefits plans required to obtain authorisations set out in these measures. They are reserved from the obligations imposed by Article 9 (Performance Requirements).
13. Canada Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3
Hibernia Development Project Act, S.C. 1990, c. 41
These measures deal with benefits plans and performance requirements. They are reserved from the obligations imposed by Article 9 (Performance Requirements).
14. Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.)
Investment Canada Regulations, SOR/85-611
Non-Resident Ownership Policy in the Uranium Mining Sector, 1987
These measures deal with non-resident ownership in the uranium mining sector. They are reserved from the obligations imposed by Articles 4 (National Treatment) and 5 (Most-Favoured-Nation Treatment).
15. Canada Transportation Act, S.C. 1996, c.10