4. TRANSFERS
4.1 Each Contracting Party shall ensure that all payments relating to an investment, in its territory,
of an investor of another Contracting Party may be freely transferred into and out of its territory
without delay. Such transfer shall include, in particular, though not exclusively:
(a) the initial capital and additional amounts to maintain or increase an investment;
(b) returns;
(c) payments made under a contract, including a loan agreement;
(d) proceeds from the sale or liquidation of all or any part of an investment;
(e) payments of compensation under Articles 2 and 3;
(f) payments arising out of the settlement of a dispute;
(g) earnings and other remuneration of personnel engaged from abroad in connection with an
investment.
4.2 Each Contracting Party shall further ensure that such transfers may be made in a freely
convertible currency. [Freely convertible currency which is widely traded in international foreign
exchange markets and widely used in international transactions.] or [Freely convertible currency
means a currency which is, in fact, widely used to make payments for international transactions and
is widely traded in the principal exchange markets].
4.3 Each Contracting Party shall also further ensure that such transfers may be made at the market
rate of exchange prevailing on the date of transfer.
4.4 In the absence of a market for foreign exchange, the rate to be used shall be the most recent
exchange rate for conversion of currencies into Special Drawing Rights.
4.5 Notwithstanding Article 4.1 (b) above, a Contracting Party may restrict the transfer of a return
in kind in circumstances where the Contracting Party is permitted under the GATT 1994 to restrict
or prohibit the exportation or the sale for export of the product constituting the return in kind.
Nevertheless, a Contracting Party shall ensure that transfers of returns in kind may be effected as
authorised or specified in an investment agreement, investment authorisation, or other written
agreement between the Contracting Party and an investor or investment of another Contracting
Party.
4.6 Notwithstanding Articles 4.1 to 4.5, a Contracting Party may require reports of transfers of
currency or other monetary instruments and ensure the satisfaction of judgements in civil,
administrative and criminal proceedings through the equitable, non-discriminatory, and good faith
application of its laws and regulations. Such requirements shall not unreasonably impair or derogate
from the free and undelayed transfer ensured by this Agreement.
5. SUBROGATION
5.1 If a Contracting Party or its designated agency makes a payment under a indemnity, guarantee
or contract of insurance given in respect of an investment of an investor in the territory of another
Contracting Party, the latter Contracting Party shall recognise the assignment of any right or claim
of such investor to the former Contracting Party or its designated agency and the right of the former
Contracting Party or its designated agency to exercise, by virtue of subrogation, any such right and
claim to the same extent as its predecessor in title.
5.2 A Contracting Party shall not assert as a defence, counterclaim, right of set-off or for any other
reason, that indemnification or other compensation for all part of the alleged damages has been
received or will be received pursuant to an indemnity, guarantee or insurance contract.
6. PROTECTING EXISTING INVESTMENTS
This Agreement shall apply to investments made prior to its entry into force for the Contracting
Parties concerned and would be consistent with the legislation of the Contracting Party in whose
territory it was made as well as investments made thereafter. This Agreement shall not apply to
claim arising out of events which occurred, or to claims which had been settled, prior to its entry
into force. Or this Agreement shall apply to investments existing at the time of entry into force as
well as to those established or acquired thereafter.
7. PROTECTING INVESTOR RIGHTS FROM OTHER AGREEMENTS
Substantive Approach-Inclusive Respect Clause
Each Contracting Party shall observe any obligation it has entered into with regard to a specific
investment of a national of another Contracting Party.
Procedural Approach-Limited Scope Dispute Settlement Clause
An investor of another Contracting Party may submit to arbitration in accordance any investment
dispute arising under the provisions of this Agreement or concerning any obligation which the
Contracting Party has entered into with regard to a specific investment of the investor through:
(a) an investment authorisation granted by its competent authorities specifically to the investor
or investment, or
(b) a written investment agreement or contract granting rights with respect to natural resources
or other assets or economic activities controlled by the national authorities, and on which the
investor has relied in establishing, acquiring, or significantly expanding an investment.
Article 10. DISPUTE SETTLEMENT: STATE-STATE PROCEDURES
A. GENERAL PROVISIONS
1. The rules and procedures set out in Articles A-C shall apply to the avoidance of conflicts
and the resolution of disputes between Contracting Parties regarding the interpretation or
application of the Agreement, unless the disputing parties agree to apply other rules or
procedures. However, the disputing Parties may not depart from any obligation regarding
notification of the Parties Group and the right of Parties to present views, under Article B,
paragraphs [1.a and 3.c], and Article C, paragraphs 1.a, 1c, and 4.e.
2. Contracting Parties and other participants in proceedings shall protect any confidential or
proprietary information which may be revealed in course of proceedings under Articles B
and C and which is designated as such by the Party providing the information. Contracting
Parties and other participants in the proceedings may not reveal such information without
written authorisation from the Party which provided it.
B. CONSULTATION, CONCILIATION AND MEDIATION
1. CONSULTATION
(a) One or more Contracting Parties may request any other Contracting Party to enter into
consultations regarding any dispute about the interpretation or application of the
Agreement.
The request shall be submitted in writing and shall provide sufficient information to
understand the basis for the request, including identification of the measures at issue. The
requesting Party shall promptly enter into consultations. The requesting Contracting Party
[may][shall]notify the Parties Group of the request for consultation.
(b) A Contracting Party may not initiate arbitration against another Contracting Party under
Article C of this Agreement, unless the former Contracting Party has requested consultation
and has afforded that other Contracting Party a consultation period of no less than 60 days
after the date of the receipt of the request.
2. MULTILATERAL CONSULTATIONS
(a) In the event that consultations under paragraph 1 of this Article, have failed to resolve the
dispute within 50 days after the date of receipt of the request for those consultations, [either
Contracting Party in dispute] [the Contracting Parties in dispute, by Agreement] may request
the Parties Group to consider the matter.
(b) Such request shall be submitted in writing and shall give the reason for it, including
identification of the measures at issue, and shall indicate the legal basis for the complaint.
(c) The Parties Group may only adopt clarifications on issues of law and on the provisions of
the agreement that have been raised by [one on the Parties in dispute, in accordance with
Article [Article which will allow the Parties Group to adopt clarifications in accordance with
a procedure to be defined]. The Parties Group shall conclude its deliberations within [60]
days after the date of receipt of the request.
(d) In the event that a dispute is submitted to the Parties Group, none of the Contracting Parties
shall submit the case to the arbitral tribunal before the expiration of the period delay
mentioned in the paragraph C.
3. MEDIATION OR CONCILIATION
If the Parties are unable to reach a mutually satisfactory resolution of a matter through
consultations, they may have recourse to good offices, including those of the Parties Group, or to
mediation or conciliation under such rules and procedures as they may agree.
4. CONFIDENTIALITY OF PROCEEDINGS, NOTIFICATION OF RESULTS
(a) Proceedings involving consultations, mediation or conciliation shall be confidential.
(b) No Contracting Party may, in any binding legal proceedings, invoke or rely upon any
statement made or position taken by another Contracting Party in consultations, conciliation
or mediation proceedings initiated under this Agreement.
(c) The Parties to consultations, mediation, or conciliation under this Agreement shall inform
the Parties Group of any mutually agreed solution.
Article 11. ARBITRATION
1. SCOPE AND INITIATION OF PROCEEDINGS
(a) Any dispute between Contracting Parties concerning [the interpretation or application of]
this Agreement shall, at the request of any Contracting Party that is a Party to the dispute
and has complied with the consultations requirements of Article B, be submitted to an
arbitral tribunal for binding decision. A request, identifying the matters in dispute, shall be
delivered to the other Party through diplomatic channels, [unless a Contracting Party has
designated another channel for notification and so notified the Depositary and a copy of
the request shall be delivered to the Parties Group.
(b) A Contracting Party may not initiate proceedings under this Article for a dispute which its
investor has submitted, or consented to submit, to arbitration under Article D, unless the
other Contracting Party has failed to abide by and comply with the award rendered in that
dispute.
2. FORMATION OF THE TRIBUNAL
(a) Within 30 days after receipt of a request for arbitration, each Party or, in the event there is
more than one requesting Party, each side to the dispute shall appoint one member of that
tribunal. Within 30 days after their appointment, the two members shall, in consultation with
the Parties in dispute, select a national of a third State who will be Chairman of the tribunal.
At the option of any Party or side, two additional members may be appointed, one by each
Party or side.
(b) If the necessary appointments have not been made within the periods specified in
subparagraph (a) above, either Party or side to the dispute may, in the absence of any other
agreement, invite the Secretary General of the Centre of the Settlement of Investment
Disputes to make the necessary appointments. The Secretary General shall do so, as far as
possible, in consultations with the Parties and within thirty days after receipt of the request.
(c) Parties and the [Secretary General] [Parties Group Secretariat] should consider appointment,
to the tribunal, of members of a roster of highly qualified individuals, willing and able to
serve on arbitral tribunals under this Agreement, nominated by the Contracting Parties. If
arbitration of a dispute requires special expertise on the tribunal, rather than solely through
expert advice under the rules governing the arbitration, the appointments of individuals
possessing expertise not found on the roster should be considered. Each Contracting Party
should nominate up to (four) members of the tribunal roster. Nominations are valid for the
renewable terms of five years.
(d) Any vacancies which may arise in a tribunal shall be filled by the procedure by which the
original appointment has been made.