5. Provided that six months have elapsed since the events giving rise to the claim, an investor of a Party may submit a claim referred to in paragraph 1:
(a) under the ICSID Convention, provided that both Parties are parties to the ICSID Convention;
(b) under the ICSID Additional Facility Rules, provided that either Party, but not both, is a party to the ICSID Convention;
(c) under the UNCITRAL Arbitration Rules; or
(d) if the disputing parties agree, to any other arbitration institution or under any other arbitration rules.
6. A claim shall be deemed submitted to arbitration under this Section when the claimant's notice of or request for arbitration (hereinafter referred to in this Section as "notice of arbitration"):
(a) referred to in paragraph (1) of Article 36 of the ICSID Convention is received by the Secretary- General;
(b) referred to in Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General ;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules, is received by the respondent; or
(d) under any other arbitration institution or arbitration rules selected under subparagraph 5(d) is received by the respondent, unless otherwise specified by such institution or in such rules.
7. The claimant shall provide with the notice of arbitration:
(a) the name of the arbitrator that the claimant appoints; or
(b) the claimant's written consent for the Secretary-General to appoint the claimant's arbitrator.
8. The arbitration rules applicable under paragraph 5, which are in effect on the date the claim is submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Section.
Article 90. Consent to Arbitration
1. Each Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Section.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this Section shall satisfy the requirements of:
(a) Chapter II of the ICSID Convention and the ICSID Additional Facility Rules for written consent of the parties; and
(b) Article II of the New York Convention for an agreement in writing.
Article 91. Conditions and Limitations on Consent
1. No claim may be submitted to arbitration under this Section if more than three years have elapsed from the date on which the investor in the case of subparagraph 1(a) of Article 89 or the enterprise in the case of subparagraph 1(b) of Article 89 first acquired, or should have first acquired, knowledge of the breach alleged under paragraph 1 of Article 89 and knowledge that such investor or enterprise had incurred loss or damage.
2. No claim may be submitted to arbitration under this Section unless:
(a) in the case of subparagraph 1(a) of Article 89:
(i) the claimant consents in writing to arbitration in accordance with the procedures set out in this Section;
(ii) the claimant waives in writing any right to initiate before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceedings with respect to any measure alleged to constitute a breach referred to in paragraph 1 of Article 89; and
(iii) the claimant has not initiated any proceedings before any administrative tribunal or court referred to in subparagraph (ii). For greater certainty, if the investor elects to initiate such proceedings, that election shall be definitive and the investor may not thereafter submit the claim to arbitration under this Section; and
(b) in the case of subparagraph 1(b) of Article 89:
(i) both the claimant and the enterprise consent in writing to arbitration in accordance with the procedures set out in this Section;
(ii) both the claimant and the enterprise waive in writing any right to initiate before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceedings with respect to any measure alleged to constitute a breach referred to in paragraph 1 of Article 89; and
(iii) the claimant or the enterprise referred to in subparagraph (ii) has not initiated any proceedings before any administrative tribunal or court referred to in subparagraph (ii). For greater certainty, if the investor or the enterprise elects to initiate such proceedings, that election shall be definitive and neither the investor nor the enterprise may thereafter submit the claim to arbitration under this Section.
3. Notwithstanding subparagraphs 2(a)(ii), 2(a)(iii), 2(b)(ii) and 2(b)(iii), the claimant or the enterprise referred to in subparagraphs 2(b)(ii) and 2(b)(iii) may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of monetary damages before an administrative tribunal or court under the law of the respondent.
Article 92. Establishment of a Tribunal
1. Unless the disputing parties otherwise agree, a 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. If an arbitrator or arbitrators are not appointed pursuant to paragraph 1 within 75 days from the date on which the claim was submitted to arbitration, the Secretary-General may be requested by either disputing party to appoint the arbitrator or arbitrators not yet appointed from the ICSID Panel of Arbitrators subject to the requirements of paragraph 3.
3. Unless the disputing parties agree otherwise, the presiding arbitrator shall not be a national of either Party, nor have his or her usual place of residence in either Party, nor be employed by either disputing party, nor have dealt with the claim in any capacity.
4. The date of establishment of a Tribunal shall be the date on which all the arbitrators have been appointed and accepted such appointment.
Article 93. Governing Law
1. Subject to paragraph 2, when a claim is submitted to arbitration under this Section, a Tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
2. An interpretation of a provision of this Agreement adopted by the Commission shall be binding on a Tribunal, and any award must be consistent with that interpretation. Such interpretation shall be made publicly available through the means that each Party considers appropriate.
Article 94. Interpretation of Annexes
1. Where a respondent asserts as a defense that the measure alleged to be a breach is within the scope of a non-conforming measure set out in Annex 6 or 7, the Tribunal shall, on request of the respondent, request the Commission to adopt an interpretation on the issue. The Commission shall adopt and submit in writing its interpretation to the Tribunal within 60 days of delivery of the request.
2. The interpretation adopted and submitted by the Commission under paragraph 1 shall be binding on the Tribunal, and any award must be consistent with that interpretation. If the Commission fails to submit an interpretation within the aforementioned 60 days period, the Tribunal shall decide the issue.
Article 95. Participation In Arbitration
1. On written notice to the disputing parties, the Party other than the respondent may make submissions to the Tribunal on a question of interpretation of this Agreement.
2. The Party other than the respondent shall be entitled to receive from the respondent, a copy of:
(a) the evidence that has been tendered to the Tribunal; and
(b) the written argument of the disputing parties.
Article 96. Place of Arbitration
Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in a country that is a party to the New York Convention.
Article 97. Preliminary Questions
1. (a) A Tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, the Tribunal May not make an award against the respondent in accordance with Article 103, provided that the respondent so requests as soon as possible after the Tribunal is established, and in no event later than the date the Tribunal fixes for the respondent to submit its counter-memorial. In deciding such objection, the Tribunal shall assume to be true the factual allegations of the claimant in support of any claim in the notice of arbitration. The Tribunal may also consider any relevant facts not in dispute.
(b) Subparagraph (a) shall not prejudice the authority of the Tribunal to address as a preliminary question any objection other than the objection referred to in subparagraph (a), such as an objection that the dispute is not within the competence of the Tribunal.
(c) On receipt of the objection referred to in subparagraph (a), the Tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds therefor.
2. In the event that the respondent so requests within 45 days after the date of establishment of the Tribunal, the Tribunal shall address and decide on an expedited basis the objection referred to in subparagraph 1(a) or any objection that the dispute is not within the competence of the Tribunal.
The Tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection, stating the grounds therefor, no later than 150 days, or 180 days if a hearing is held or under extraordinary circumstances, after the date of the request.
3. When it decides a respondent's objection pursuant to paragraph 1 or 2, the Tribunal may, if warranted, award to the prevailing disputing party reasonable costs including attorneys' fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the Tribunal shall consider whether the claimant's claim was frivolous or whether the respondent's objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
4. The respondent does not waive its right to make any objection or argument on the merits merely because the respondent did or did not make a request pursuant to paragraph 1 or 2.
Article 98. Insurance or Guarantee Contracts
In an arbitration under this Section, the respondent May not assert, as a defense, counterclaim, right of set- off or otherwise, that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
Article 99. Interim Measures of Protection
A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to facilitate the conduct of arbitral proceedings, including an order to preserve evidence in the possession or control of a disputing party. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in paragraph 1 of Article 89.
Article 100. Expert Report
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal, at the request of a disputing party or, except as the disputing parties agree otherwise, on its own initiative, may appoint one or more experts in the fields of environmental, health, safety or other scientific Matters to report to it in writing on any factual issue concerning matters of their expertise raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 101. Consolidation of Multiple Claims
1. When a disputing party considers that two or more claims submitted to arbitration under paragraph 1 of Article 89 have a question of law or fact in common and arise out of the same events or circumstances, the disputing party may seek a consolidation order in accordance with the terms of paragraphs 2 through 10.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General to establish a Tribunal under this Article. The request shall specify:
(a) the names and addresses of all the disputing parties sought to be covered by the order;
(b) the nature of the order sought; and (c) the grounds on which the order is sought.
3. Unless the Secretary-General finds within 60 days after receiving a request under paragraph 2 that the claims do not satisfy the requirements set out in paragraph 1, a Tribunal shall be established under this Article.
4. Unless all the disputing parties sought to be covered by the order otherwise agree, a Tribunal established under this Article shall comprise three arbitrators:
(a) one arbitrator appointed by agreement of the claimants;
(b) one arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the Secretary-General, provided, however, that the presiding arbitrator shall not be a national of either Party, nor have his or her usual place of residence in either Party, nor be employed by any disputing party, nor have dealt with the claims in any capacity.
5. If, within 60 days after the Secretary-General receives a request under paragraph 2, the respondent fails or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General may be requested by any disputing party sought to be covered by the order, to appoint the arbitrator or arbitrators not yet appointed. If the respondent fails to appoint an arbitrator, the arbitrator to be appointed by the Secretary-General shall be a national of the respondent, and if the claimants fail to appoint an arbitrator, the arbitrator to be appointed by the Secretary-General shall be a national of the Party other than the respondent.
6. Where a claimant that has submitted a claim to arbitration under paragraph 1 of Article 89 considers that such a claim raises a question of law or fact in common to, and arises out of the same events or circumstances as, claims upon which the consolidation under paragraph 2 has been requested, but has not been named in such request, the claimant may make a written request to the Tribunal established under this Article that the claimant be covered by any order made under paragraph 7, and shall specify in the request:
(a) the name and address of the claimant;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
7. Where a Tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration under paragraph 1 of Article 89 have a question of law or fact in common, and arise out of the same events or circumstances, the Tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
(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.
8. A Tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A Tribunal established under Article 92 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.
10. On application of a disputing party, a Tribunal established under this Article, pending its decision as to whether to make an order under paragraph 7, may order the adjourning of the proceedings of a Tribunal established under Article 92.
11. For greater certainty, the provisions of this Section other than this Article shall apply with respect to a Tribunal established under this Article except to the extent modified by this Article.
Article 102. Proposed Award
A Tribunal shall, at the request of a disputing party, submit to the disputing parties a proposed award, before making an award, except an award issued pursuant to Article 97. The disputing parties may submit to the Tribunal written comments on the proposed award within 60 days after the date of submission of the proposed award. The Tribunal shall consider such comments and make an award within 105 days of the date of submission of the proposed award.
Article 103. Award
1. Where a Tribunal makes an award against the respondent, 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 may pay monetary damages and any applicable interest in lieu of restitution.
A Tribunal may also award costs including attorney's fees in accordance with this Section and the applicable arbitration rules.
2. Subject to paragraph 1, in the case of subparagraph 1(b) of Article 89:
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(b) an award of restitution of property shall provide that restitution be made to the enterprise.
3. A Tribunal may not award punitive damages.
4. An award made by a Tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
5. Subject to paragraph 7, a disputing party shall abide by and comply with an award without delay.
6. If the respondent fails to abide by or comply with an award, the Party other than the respondent may request the establishment of an arbitral tribunal pursuant to Article 178. The requesting Party may seek in such proceedings:
(a) a determination that the failure to abide by or comply with the award is inconsistent with the obligations of this Agreement; and
(b) a recommendation that the respondent abide by or comply with the award.
7. A disputing party may not seek enforcement of an award until such award becomes final. An award becomes final when:
(a) in the case of an award under the ICSID Convention:
(i) 120 days have elapsed from the date the award was made 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 an award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to subparagraph 5(d) of Article 89:
(i) 90 days have elapsed from the date the award was made and no disputing party has commenced a proceeding to revise or annul the award; or
(ii) an application to revise or annul the award has been dismissed or allowed and there is no further appeal.
8. Each Party shall provide for the enforcement of an award in its Area in accordance with its relevant laws and regulations.
Article 104. Service of Documents
1. Notices and other documents relating to arbitration under this Section shall be served on a Party by delivery to:
(a) with respect to Japan, the Ministry of Foreign Affairs; and
(b) with respect to Chile, the Ministry of Foreign Affaires, Legal Affaires Directorate (Dirección de Asuntos Jurídicos del Ministerio de Relaciones Exteriores de la República de Chile).
2. The Commission shall make publicly available the addresses of the authorities referred to in paragraph 1.
Section 3. Definitions
Article 105. Definitions
1. For the purposes of this Chapter:
(a) the term “claimant” means an investor of a Party that submits a claim to arbitration under Section 2;
(b) the term “disputing parties” means the claimant and the respondent;
(c) the term “disputing party” means either the claimant or the respondent;
(d) the term “freely usable currency” means freely usable currency as defined under the Articles of Agreement of the International Monetary Fund;
(e) the term “ICSID” means the International Centre for Settlement of Investment Disputes;
(f) the term “ICSID Additional Facility Rules” means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
(g) the term “ICSID Convention” means the Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington, March 18, 1965;
(h) the term “investment” means every kind of asset that an investor owns or controls, directly or indirectly, which has the characteristics of an investment. Forms that an investment may take include:
Note 1: The characteristics of an investment include the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.
Note 2: An investment does not include an order or judgment entered in a judicial or administrative action.
(i) an enterprise and a branch of an enterprise;
(ii) shares, stocks, and other forms of equity participation in an enterprise;
(iii) bonds, debentures, loans and other debt instruments, but do not include a debt instrument of a Party or of a state enterprise;
(iv) futures, options and other derivatives;
(v) rights under contracts, including turnkey, construction, management, production or revenue-sharing contracts;
(vi) intellectual property rights;
(vii) rights conferred pursuant to domestic law, such as concessions, licenses, authorizations and permits; and
(viii) other tangible or intangible, movable or immovable property, and any related property rights, such as leases, mortgages, liens and pledges;
(i) the term “investment activities” means establishment, acquisition, expansion, management, conduct, operation, maintenance, use, enjoyment and sale or other disposition of investments;
(j) the term “investor of a Party” means a natural person or an enterprise of a Party, or the Party or state enterprise thereof, that attempts to make, is making, or has made investments in the Area of the other Party;
(k) the term “New York Convention” means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958;
(l) the term “respondent” means a Party against which a claim is submitted to arbitration under Section 2;
(m) the term “Secretary-General” means the Secretary General of ICSID;
(n) the term “Tribunal” means an arbitration tribunal established under Article 92 or 101; and
(o) the term “UNCITRAL Arbitration Rules” means the arbitration rules of the United Nations Commission on International Trade Law, approved by the United Nations General Assembly on December 15, 1976.
2. For the purposes of this Chapter, an enterprise is:
(a) “owned” by an investor if more than 50 percent of the equity interests in it is beneficially owned by the investor; and
(b) “controlled” by an investor if the investor has the power to name a majority of its directors or otherwise to legally direct its actions in accordance with the laws and regulations of a Party.
Chapter 9. Cross-Border Trade In Services
Article 106. Scope
1. This Chapter shall apply to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party. Such measures include measures affecting:
(a) the supply of a service;
Note: The measures affecting the supply of a service include those affecting the provision of any financial security as a condition for the supply of a service.