(e) Members of a particular arbitral tribunal shall be independent and impartial.
3. JOINDER/CONSOLIDATION
(a) Contracting Parties in dispute with the same Contracting Party over the same matter should
act together, as far as practicable, for purposes of dispute settlement under this Article.
Where more than one Contracting Party requests the submission to an arbitral tribunal of a
dispute with the same Contracting Party relating to the same measure, the disputes shall, if
feasible, be considered by a single arbitral tribunal.
(b) To the extent feasible, if more than one arbitral tribunal is formed, the same persons shall be
appointed as members of both and the time tables of the proceedings shall be harmonised.
4. THIRD PARTIES
Any Contracting Party wishing to do so shall be given an opportunity to present its views to the
arbitral tribunal on the issues in dispute. The tribunal shall establish the deadlines for such
submissions in light of the schedule of the proceedings and shall notify such deadlines, at least
thirty days in advance thereof, to the Parties Group.
5. PROCEEDINGS AND AWARDS
(a) The arbitral tribunal shall decide disputes in accordance with this Agreement, or interpreted
and applied in accordance with the applicable rules of international law.
(b) The tribunal may, at the request of a Party, recommend provisional measures which either
Party should take to avoid serious prejudice to the other pending its final award.
(c) The tribunal shall render an award, setting out its findings of law and fact and its decision on
the question whether the relevant measures are inconsistent with the agreement together
with its reasons therefor, and may, at the request of a Party, award the following forms of
relief :
(i) a declaration that a measure of a Party is incompatible or a Party has failed to
comply with its obligations under this Agreement;
(ii) a recommendation that a Party should bring its measures into conformity with the
Agreement:
(iii) pecuniary compensation; and
(iv) any other form of relief to which the Party against whom the award is made
consents, including restitution in kind.
(d) The tribunal shall draft its award consistently with the requirement of confidentiality set out
in Article A, paragraph 2 and the requirements of subparagraph (e), below. It shall issue its
award in provisional form to the Parties to the dispute, as a general rule within [180] days
after the date of formation of the tribunal. The Parties to the dispute may, within [15] [30]
days thereafter, submit written comment upon any portion of it. The tribunal shall consider
such submissions, may solicit additional written comments of the Parties, and shall issue its
final award within [15] days after closure of the comment period.
(e) The tribunal shall promptly transmit a copy of its final award to the Parties Group, as a
publicly available document.
(f) Tribunal awards shall be final and binding between the Parties to the dispute unless the
Parties Group, otherwise decides within thirty days after receipt of a copy of the award].
(g) Each Party shall pay the cost of its representation in the proceedings. The costs of the
tribunal shall be paid for, equally by the Parties unless the tribunal directs that they be
shared differently. Fees and expenses payable to tribunal members will be subject to
schedules established by the Parties Group and in force at the time of the constitution of the
tribunal.
6. DEFAULT RULES
The [UNCITRAL arbitration rules] shall apply to supplement provisions of these Articles.
7. ENFORCEMENT OF AWARDS
(a) In the event of non-compliance with an award of an arbitral tribunal, the Contracting Party
in whose favour it was issued may raise the matter in the Parties Group. The Parties Group
shall endeavour to bring about compliance. It may, by consensus minus the defaulting Party,
suspend the non-complying Party's right to participate in decisions of the Parties Group.
(b) Possible exhaustive list of permitted countermeasures-no draft provided.
(c) Possible procedural safeguards on resort to countermeasures-no draft provided.
Article 12. DISPUTE SETTLEMENT INVESTOR-STATE AND STATE-INVESTOR PROCEDURES
DISPUTES BETWEEN AN INVESTOR AND A CONTRACTING PARTY
1. SCOPE AND STANDING
(a) This article applies to disputes between a Contracting Party and an investor of another
Contracting Party, concerning an alleged breach of an obligation of the former under this
Agreement which causes, or is likely to cause loss or damage to the investor or- his
investment.
(b) It also applies to disputes between a Contracting Party and an investor of an another
Contracting Party, concerning an alleged breach of any obligations of such investor under
this Agreement or under legislation enacted by the first mentioned Contracting Party, on a
subject matter covered by this Agreement, which causes or is likely to cause loss or damage
to the interests of the first mentioned Contracting Party.
2. MEANS OF SETTLEMENT
Such a dispute should, if possible, be settled by negotiation or consultation. If it is not so settled, the
Claimant may choose to submit it for resolution:
(a) to the Competent Courts or administrative tribunals of a Contracting Party to the dispute [or
of the investor, as the case may be];
(b) in accordance with any applicable previously agreed dispute settlement procedure; or
(c) by arbitration in accordance with this Article, under:
(i) the Convention on the Settlement of Investment Disputes between States and
Nationals of other States (the "ICSID Convention"), if the ICSID Convention is
applicable;
(ii) the Additional Facility Rules of the Centre of Settlement of Investment Disputes
("ICSID Additional Facility"), if the ICSID Additional Facility is applicable;
(iii) the Arbitration Rules of the United Nations Commission on International Trade Law
(UNCITRAL), [if neither the ICSID Convention nor the ICSID Additional Facility is
applicable] [Provided that the venue of arbitration under paragraph 2 (c) shall be
in the Contracting State in every case].
By submitting a dispute to arbitration in accordance with this Article under paragraph 2 (c), the
investor consents to the application of all provisions of this Article,
3. CONTRACTING PARTY CONSENT
(a) Subject only to paragraph 3 (b), each Contracting Party hereby gives its unconditional
consent to the submission of a dispute to international arbitration in accordance with the
provisions of this Article.
(b) A Contracting Party may, by notifying the Depository upon deposit of its instrument of
ratification or accession, provide that its consent given under paragraph 3 (a) applies only on
the condition that the investor and the investment waive the right to initiate any other
dispute settlement procedure with respect to the same dispute and withdraw from any such
procedure in progress before its conclusion. A Contracting Party may, at any time, reduce
the scope of that limitation by notifying the Depositary.
4. TIME PERIODS AND NOTIFICATION
A claimant may submit a dispute for resolution, pursuant to paragraph 2(c) of this Article, after
(ninety) days following the date on which notice of intent to do so was received by the opposite
party, but no later than (six) years from the date the claimant first acquired (or should have
acquired) knowledge of the events which give rise to the dispute. Notice of intent, a copy of which
shall be delivered to the Parties Group, shall specify:
(a) the name and address of the claimant;
(b) the name and address, if any, of the investment;
(c) the provisions of this Agreement alleged to have been breached and any other relevant
provisions;
(d) the issues and the factual basis for the claim; and
(e) the relief sought, including the approximate amount of any damages claimed.
5. WRITTEN AGREEMENT OF THE PARTIES
The consent given by the Contracting Party in subparagraph 3 (a), together with either the written
submission of the dispute to resolution by the investor pursuant to subparagraph 2 (c) or the
investor's advance written consent to such submission, shall constitute the written consent and the
written agreement, of the Parties to the dispute, to its submission for settlement for the purposes of
Chapter II of the ICSID Convention, the ICSID Additional Facility Rules, Article 1 of the
UNCITRAL Arbitration Rules and Article II of the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the "New York Convention").
6. APPOINTMENTS TO ARBITRAL TRIBUNALS
(a) Unless the Parties to the dispute otherwise agree, the arbitral tribunal shall comprise three
arbitrators, one appointed by each of the disputing Parties and the third, who shall be the
presiding arbitrator, appointed by agreement of the disputing Parties.
(b) If a tribunal has not been constituted within 90 days after the date that a claim is submitted
to arbitration, the arbitrator or arbitrators not yet appointed shall, on the request of either
disputing party, be appointed by the appointing authority. For arbitration under paragraph 2,
subparagraphs C(i), C(ii), and C(iii), and paragraph 8, the appointing authority shall be the
Secretary General of ICSID.
(c) The parties to a dispute submitted to arbitration under this article and the appointing
authority should consider the appointment of:
(i) members of the roster maintained by the Contracting parties pursuant to Article C,
paragraph 2 (c), and
(ii) individuals possessing expertise not found on the roster, if arbitration of a dispute
requires special expertise on the Tribunal, rather than solely through expert advice
under the rules governing the arbitration.
(d) The appointing authority shall, as far as possible, carry out its function in consultation with
the Parties to the dispute.
(e) In order to facilitate the appointment of arbitrators of the Parties' nationality on three
member ICSID Tribunals under Article 39 of the ICSID Convention and Article 7 of
Schedule C of the ICSID Additional Facility Rules, and without prejudice to each party's
right independently to select an individual for appointment as arbitrator or to object to an
arbitrator on ground other than nationality:
(i) the disputing Contracting Party agrees to the appointment of each individual member
of a tribunal under paragraph 2 (c)(i) or (ii) of this Article; and
(ii) a disputing investor may initiate or continue a proceeding under paragraph 2 (c)(i) or
(ii) only on condition that the investor agrees in writing to the appointment of each
individual member of the tribunal.
7. STANDING OF THE INVESTMENT
An enterprise which is constituted or organised under the law of a Contracting party but which,
from the time of the events giving rise to the dispute until its submission for resolution under
paragraph 2 (c), was an investment of an investor of another Contracting Party, shall not, for the
purposes of disputes concerning that investment, be considered "an investor of another Contracting
Party" under this Article or "a national of another Contracting Party State" for purposes of Article
25 (2)(b) of the ICSID Convention.