a) an enterprise of a non-Party that directly or indirectly owns or controls the investor of a Party, or
b) an enterprise of a non-Party that is directly or indirectly owned or controlled by the investor of a Party.
Notwithstanding the preceding paragraph, the claim may proceed if the defendant agrees that the claim should proceed, or if the investor of a Party and the enterprise of a non-Party agree to consolidate the claims under their respective agreements before a tribunal constituted under this Section.
3. Without prejudice to paragraph 1 of this Article, if six months have elapsed since the facts giving rise to the claim, the claimant may submit the claim referred to in paragraph 1 of this Article:
a) under the ICSID Convention and the ICSID Rules of Arbitration Procedure, provided that both the Party complained against and the non-disputing Party are parties to the ICSID Convention
b) under the rules of the ICSID Additional Mechanism, provided that both the Party complained against and the non-challenging Party are parties to the ICSID Convention;
c) Under the UNCITRAL Arbitration Rules:
d) if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.
4. A claim shall be deemed to have been submitted to arbitration under this Section when the claimant's notice or request for arbitration ("notice of arbitration"):
a) referred to in Article 36(1) of the ICSID Convention is received by the Secretary General;
b) referred to in Article 2 of Annex C of the ICSID Additional Mechanism 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 20 of the UNCITRAL Arbitration Rules, is received by the respondent;
d) referred to in any arbitral institution or arbitral rules selected pursuant to paragraph 3(d) of this Article are received by the respondent.
Where the claimant submits a claim pursuant to subparagraph B(1)(a)(i) or subparagraph B(1)(b)(i), the respondent may submit a counterclaim relating to the factual and legal basis of the claim or rely on a claim for set-off against the claimant.
5. In addition to any other information required by the applicable arbitration rules, the notice of arbitration shall also include information relating to each of the categories referred to in Article 23 (consultations).
6. The arbitration rules applicable pursuant to paragraph 3 of this Article and in effect on the date the claim or claims were submitted to arbitration pursuant to this Section shall govern the arbitration, except to the extent modified by this Agreement.
7. For greater certainty, a minority shareholder who does not control a company may not bring a claim on behalf of that company.
8. In the case of arbitration under Section B, in accordance with the UNCITRAL Arbitration Rules, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration shall not apply, unless otherwise agreed by the Parties to the dispute.
Article 25. Consent of Each Party to the Arbitration
1. Each Party consents to the submission of a request for arbitration under this Section in accordance with this Agreement.
2. Consent under paragraph 1 of this Article and the submission of a request for arbitration under this Section shall fulfil the requirements of:
a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Mechanism Rules for written consent of the parties to the dispute; and
b) Article II of the New York Convention for a "written agreement".
Article 26. Conditions and Limitations on the Consent of Each Party
1. No claim may be submitted to arbitration pursuant to this Section if more than 3 years have elapsed from the date on which the claimant knew, or should have known, of the alleged breach pursuant to Article 24(1) (Submission of a request for arbitration) and the fact that the claimant (for claims submitted pursuant to Article 24(1)(a) (Submission of a request for arbitration) or the company (for claims submitted pursuant to Article 24(1)(b)) is not a party to the dispute.
2. No claim may be submitted to arbitration under this Section unless:
a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement:
b) the claim arises out of measures included in the claimant's request for consultations pursuant to Article 23 (Consultations):
c) the notice of arbitration is accompanied by:
i. For claims submitted to arbitration pursuant to Article 24(1)(a) (submission of a request for arbitration), by the claimant's written waiver:
ii. For claims submitted to arbitration under Article 24(1)(b) (submission of a request for arbitration), by the written waiver of the claimant and the company. Any right to initiate or pursue before any Administrative Tribunal or Court under the laws of a Party, or under other dispute resolution procedures, any proceedings relating to any measure alleged to constitute a violation referred to in Article 24.
Article 27. Constitution of the Tribunal
1. Unless otherwise agreed by the Parties to the dispute, the Tribunal shall be composed of three Arbitrators, one Arbitrator appointed by each of the Parties to the dispute and the third, who shall be the Presiding Arbitrator, appointed by agreement of the Parties to the dispute.
2. The Secretary General shall be the Appointing Authority for an arbitration under this Section.
3. If the Tribunal has not been constituted within 90 days from the date on which a claim is submitted to arbitration under this Section, the Appointing Authority shall, at the request of one of the Parties to the dispute, appoint, at its discretion and after consultation with the Parties to the dispute, the Arbitrator or Arbitrators not yet appointed.
4. The appointing authority may not appoint a Presiding Arbitrator who is a national of a Party, unless both Parties to the dispute agree otherwise.
5. In the event that the appointing authority appoints the Arbitrator in accordance with the relevant arbitration rules, the appointed Arbitrator must be a recognised expert in Public International Law and must have experience in resolving investor-State disputes.
Article 28. Conduct of Arbitration
1. The Parties to the dispute may agree on the legal venue of any arbitration, in accordance with the applicable arbitration rules, pursuant to Article 24(3) (submission of a request for arbitration). If the parties to the dispute cannot agree, the Court shall determine the place in accordance with the applicable arbitration rules, provided that the place is in the territory of a State that is a party to the New York Convention.
2. The non-disputing Party may submit to the Tribunal oral and written observations concerning the interpretation of this Agreement.
3. After consultation with the Parties to the dispute, the Tribunal may allow a person or entity that is not a Party to the dispute to submit to the Tribunal a written amicus curiae brief on an issue within the scope of the dispute. Such a submission must provide the identity of that person or entity (including any controlling entity and any source of substantial financial assistance in any of the two years preceding the submission, e.g. funding of about 20 per cent of an entity's global operations annually), disclose any connection with any disputing party and identify any person, government or other entity that has provided or will provide any financial or other assistance in preparing the submission. In determining whether to permit such a submission, the court should consider, among other things, the extent to which:
a) The submission of the amicus curiae will assist the Tribunal in determining a question of fact or law relating to the proceedings by bringing a perspective, particular expertise or view different from that of the Parties to the dispute;
b) The amicus curiae's submission will address an issue within the scope of the dispute:
c) The amicus curiae has a significant interest in the proceedings.
4. The tribunal shall ensure that the submission of the amicus curiae does not disrupt the proceedings or unduly burden or unfairly prejudice any of the parties to the dispute, and that the parties to the dispute have the opportunity to submit their observations on the submission of the amicus curiae.
5. Without prejudice to the power of the Tribunal to consider other objections as a preliminary issue, the Tribunal shall consider and decide as a preliminary issue any objection by the respondent that, as a matter of law, an application submitted is not an application in respect of which a decision in favour of the applicant can be given under this Section.
6. When deciding on an objection under paragraph 5, the court shall take the applicant's factual allegations as true. The court may also consider any relevant uncontested facts. The Tribunal shall decide on the objection expeditiously and issue a decision or award on the objection(s) within a maximum of 150 days from the date of the request.
7. In any arbitration conducted under this Section, at the request of a disputing party, the Tribunal shall, before rendering a decision or award on liability, transmit its proposed decision or award to the disputing parties. Within 60 days after the Tribunal has transmitted its draft decision or award, the parties to the dispute may submit written comments to the Tribunal on any aspect of its draft decision or award. The Tribunal shall consider such comments and issue its decision or judgement no later than 45 days after the expiry of the period of validity of the decision or judgement.
8. In the event that an appeal mechanism for the review of judgements rendered by Investor-State Dispute Settlement Tribunals is developed in the future under other institutional arrangements, the Parties shall consider whether judgements rendered under Article 30 should be reviewed.
Article 29. Applicable Law
1. Without prejudice to paragraph 3 of this Article, where a request is submitted pursuant to subparagraph 1(a)(i)(A) or subparagraph 1(b)(i)(A) of Article 24 (submission of a request for arbitration), the Tribunal shall decide the issues in dispute in accordance with this Agreement and the applicable rules of international law.
2. Without prejudice to paragraph 3 of this Article and the other provisions of this Section, when a request is made under subparagraph 1(a)(i)(B) or 1(b)(i)(B) of Article 24 (making a request for arbitration), the Tribunal shall apply:
a) the rules of law specified in the relevant investment agreement, or as otherwise agreed by the parties to the dispute; or
b) If the rules of law have not been specified or otherwise agreed:
i. The law of the respondent, including its conflict of laws rules; and
ii. Such rules of customary international law as may be applicable.
3. A common decision of the Parties stating their interpretation of a provision of this Agreement shall be binding on a Tribunal in any ongoing or subsequent dispute and any decision or judgement rendered by that Tribunal shall be consistent with such common decision.
4. For greater certainty, paragraph 1 of this Article shall be without prejudice to the consideration of the domestic law of the defendant where it is relevant to the question of fact.
5. The "law of the defendant" means the law that a competent national court would apply in the same case.
Article 30. Awards
1. When a Tribunal renders a judgement against a defendant, the Tribunal may award, separately or in combination, only:
a) monetary damages and any applicable interest:
b) restitution of property, in which case the judgement shall provide that the defendant may pay monetary damages and any applicable interest in lieu of restitution.
The Tribunal may also award costs and attorneys' fees in accordance with this Section and the applicable arbitration rules.
2. Without prejudice to paragraph 1 of this Article, where an action is referred to arbitration pursuant to Article 24(1)(b), the Court may award costs and attorneys' fees:
a) an award for restitution of property shall provide for restitution to be made to the undertaking;
b) an award for monetary damages and any applicable interest shall provide for the sum to be paid to the company:
c) the judgement shall provide that it is rendered without prejudice to any right that any person may have to compensation under applicable national law.
3. The Court may not award punitive damages.
4. The judgement shall be made available to the public without delay.
5. A Party to the dispute may not request enforcement of a final judgement until:
a) in the case of a final award made under the ICSID Convention:
i. 120 days have elapsed from the date on which the award was made and no party to the dispute has applied for review or annulment of the award; or
ii. The review or annulment procedure has been completed.
b) in the case of a final award rendered under the ICSID Additional Mechanism Rules, the UNCITRAL Arbitration Rules or the rules selected pursuant to Article 24(3)(d):
i. 90 days have elapsed from the date on which the award was rendered and no party to the dispute has initiated proceedings for review, annulment or revocation of the award:
ii. A court has dismissed or granted an application for review, annulment or revocation of the judgement and there is no further appeal.
6. The judgement handed down by a Tribunal shall only be binding between the Parties to the dispute and in relation to the specific case.
Article 31. Expert Reports
Without prejudice to the appointment of other types of experts, where authorised by the applicable arbitration rules, a Tribunal, at the request of a Party to the dispute or, unless the Parties to the dispute do not so approve, on its own initiative, may appoint one or more experts to submit to it a written report on any factual issue relating to the environment, health, safety or other scientific issues raised by a Party to the dispute in a proceeding, subject to such terms and conditions as the Parties to the dispute may agree.
Article 32. Service of Documents
Service of notifications and other documents on a Party shall be effected at the place indicated for that Party in Annex D (Service of Documents on a Party).
Section C.
Article 33. Consultations
1. In the event of a dispute covered by this Section, if the complaining Party wishes to submit the dispute to arbitration, it shall submit a request for consultations to the Party complained against at least 180 days before the dispute is submitted to arbitration, setting out its wishes regarding the interpretation or application of this Agreement.
2. The request for consultations shall:
a) For each request, identify the provision of this Agreement allegedly violated and any other relevant provisions;
b) For each request, identify the measures or events giving rise to the request;
c) For each request, provide a brief summary of the legal and factual basis:
d) Specify the relief sought.
3. Upon receipt of the request for consultation, the Parties shall enter into consultations with a view to reaching a mutually satisfactory solution.
Article 34. Submission of a Request for Arbitration
1. If the dispute has not been resolved through consultations pursuant to Article 33 (Consultations) of this Section and 180 days have elapsed from the date of the request for consultations, the complaining Party may submit its claims to arbitration in accordance with this Section and the applicable rules of international law.
2. No claim may be submitted to arbitration under this Section if more than four years have elapsed from the date on which the event giving rise to the dispute first occurred.
3. Unless otherwise agreed by the Parties, the UNCITRAL arbitration rules in force on the date the claims were submitted to arbitration under this Section shall apply, unless otherwise agreed by the Parties or this Agreement.
4. A claim shall be deemed to have been submitted to arbitration under this Section when the complaining Party's notice or request for arbitration (‘notice of arbitration’):
a) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the Statement of Claim referred to in Article 20 of the UNCITRAL Arbitration Rules, are received by the Party complained against:
b) references to any alternative arbitral institution or arbitral rules selected by the Parties are received by the Party requested.
5. In addition to any other information required by the applicable arbitration rules, the notice of arbitration shall also include information relating to each of the categories referred to in Article 33 (consultations) of this Section. The complaining Party shall provide, together with the notice of arbitration, its written consent for the Secretary General to appoint the Arbitrator.
Article 35. Supplementary Provisions
Articles 27 (Constitution of the Tribunal), 28 (Conduct of the Arbitration) and 29 (Applicable Law) shall apply mutatis mutandis to this Section.
Article 36. Awards
1. If a tribunal makes a final decision or award against a Party complained against in relation to:
a) a dispute concerning the interpretation or application of this Agreement, other than a dispute referred to in subparagraphs (b), the Tribunal shall provide for:
i. A determination that the Party complained against has acted inconsistently with its obligations under this Agreement:
ii. Recommendations, if the Parties have jointly requested them for the settlement of the dispute.
b) A dispute in which a Party has exercised diplomatic protection on behalf of its investor for alleged violations of Articles 3 (national treatment), 4 (most-favoured-nation treatment), 5 (minimum standards of treatment), 6 (compensation for damages), 7 (expropriation and compensation for damages), 8 (expropriation and compensation for damages) and 9 (expropriation and compensation for damages). In accordance with Articles 7 (expropriation and compensation), 8 (transfers), 9 (performance requirements) and 10 (senior management and Board of Directors), the Court must grant appropriate redress in accordance with the applicable rules of international law.
2. If the Tribunal determines, as referred to in paragraph 1(a)(i), that the measure in question is inconsistent with a Party's obligations under this Agreement or that a Party has failed to fulfil its obligations under this Agreement, the responding Party shall eliminate the non-compliance, nullification or impairment.
3. The expenses incurred by the Arbitrators and other costs of the proceedings shall be paid equally by the Parties. However, the Tribunal may, at its discretion, order that a higher proportion of the costs be paid by one of the Parties, in accordance with this Agreement and the applicable arbitration rules.
4. The Tribunal may not award punitive damages.
5. The judgement handed down by a Tribunal shall not be binding except between the Parties and in relation to a specific case.
Article 37. Service of Documents
Service of notices and other documents on a Party shall be effected at the place indicated for that Party in Annex D (Service of documents on a Party). In witness whereof, the duly authorised representatives of the respective Governments have signed this Agreement. Done in duplicate, at Beijing, on 6 December 2023, in the Portuguese, Chinese and English languages, each text being equally authentic. In the event of any discrepancy or inconsistency, the English version shall prevail. For the Government of the Republic of Angola, Mr Téte António - Minister of Foreign Affairs. For the Government of the People's Republic of China, Wang Wentao - Minister of Commerce.
Conclusion
Annex A. Customary International Law
The Parties confirm their common understanding that "customary international law’" in general and as specifically referred to in Article 5 (minimum standards of treatment), results from a general and consistent practice of States which they adopt on the basis of a sense of legal obligation. With regard to Article 5 (minimum standards of treatment), the minimum standard of customary international law relating to the treatment of aliens refers to all principles of customary international law that protect the rights and economic interests of aliens.
Annex B. Expropriation
The Parties confirm their common understanding that:
1. An action or series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Article 7(1) (expropriation and compensation) addresses two situations. The first is direct expropriation, where an investment is nationalised or otherwise directly expropriated through a formal transfer of title or a definitive seizure.
3. The second situation addressed in Article 7(1) (expropriation and compensation) is indirect expropriation, when an action or series of actions by a Party has an effect equivalent to direct expropriation, without a formal transfer of title or definitive seizure:
a) In order to determine whether an action or series of actions by a Party, in a specific situation, constitutes indirect expropriation, a case-by-case, fact-based enquiry is required which considers, among other factors:
i. The economic impact of the government action, although the fact that a Party's action or series of actions has an adverse effect on the economic value of an investment does not, in itself, establish the occurrence of an indirect expropriation;
ii. The extent to which the governmental action interferes with distinct and reasonable expectations based on the investment: eiii. The character and purpose of the government action.
b) Except in rare circumstances, a Party's non-discriminatory regulatory measures designed and implemented to protect legitimate public welfare objectives, such as morals, public health and safety, and the environment, do not constitute indirect expropriation.
Annex C. Temporary Safeguard Measures
1. In the event of serious balance of payments difficulties, external financial difficulties or threats thereof, nothing in this Agreement shall be construed as preventing a Party from adopting or maintaining restrictive measures with respect to payments or transfers related to capital movements.
2. Any measures adopted or maintained under paragraph 1 of this Article shall:
a) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
b) be temporary and phased out as the situation specified in paragraph 1 of this Article improves, and shall not exceed 18 months in duration: however, in extremely exceptional circumstances, a Party may extend such measures for a period of twelve months, subject to prior notice and consultation with the other Party;
c) not be incompatible with the provisions of Article 3 (national treatment) and Article 4 (most favoured nation treatment);
d) not be incompatible with the provisions of Article 7 (expropriation and compensation);
e) not result in multiple exchange rates:
f) be promptly notified to the other Party and published as soon as possible.
Annex D. Notification of Documents to a Party
Angola
Notifications and other documents shall be served on the Republic of Angola by delivery to:
Ministry of Foreign Affairs; Directorate of Legal Affairs, Treaties and Litigation; Avenida Comandante Gika, n.º 98; Luanda, Largo António Jacinto, Edifício 1 do MIREX.
China
Notifications and other documents will be served on the People's Republic of China by delivery to:
Department of Treaty and Law; Ministry of Commerce of the People's Republic of China; 2 Dong Chang'an Avenue; Beijing, 10073; People's Republic of China.