2. No claim may be submitted to arbitration under this Section unless:
a) the applicant consents in writing to submit to arbitration, in accordance with the procedures provided for in this Treaty; and
b) the notice of arbitration is accompanied,
(i) the complainant's written waiver of claims submitted to arbitration under Article 3.17.1 (a); and
(ii) the written resignations of the claimant and the company to claims submitted to arbitration under Article 3.17.1 (b)
Of any right to initiate or continue before any judicial or administrative tribunal under the law of either Party, or other dispute settlement procedures, 5 any action in respect of any measure alleged to have constituted a violation to which it refers Article 3.17.
3. Notwithstanding paragraph 2 (b), the complainant (for claims under Article 3.17.1 (a)) and the plaintiff or the enterprise (for claims under Article 3.17.1 (b)) may initiate Or continue with an action requesting the application of precautionary measures of a suspensive, declaratory or extraordinary nature, and not involving the payment of monetary damages before a judicial or administrative court of the defendant, provided that the action is brought only for the purpose of Preserve the rights and interests of the plaintiff or the company during the waiting period of the arbitration. (5)
3.20. Selection of Arbitrators
1. Unless otherwise agreed by the disputing parties, the tribunal shall consist of three (3) arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, shall be appointed by agreement of the disputing parties.
2. The Secretary-General shall serve as the authority to designate arbitrators in arbitration proceedings under this Section.
3. Where a tribunal does not form part of the tribunal within seventy-five (75) days from the date on which the claim is submitted to arbitration in accordance with this Section, the Secretary-General, at the request of a disputing party, Shall designate, at its discretion, the arbitrator or arbitrators who have not yet been appointed.
4. For the purposes of Article 39 of the ICSID Convention and Article 7 of Part C of the ICSID Additional Facility Rules and without prejudice to objecting to an arbitrator for reasons other than nationality:
a) the defendant accepts the appointment of each member of the tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
b) the claimant referred to in Article 3.17.1 a) may submit a claim under this Section to arbitration, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that The complainant gives written consent to the appointment of each member of the court; and
c) the claimant referred to in Article 3.17.1 (b) may submit a claim to arbitration under this Section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that The plaintiff and the company state their written consent to the appointment of each member of the court.
3.21. Conduct of Arbitration
1. The disputing parties may agree in the legal seat where any arbitration is to be held in accordance with the applicable arbitration rules in accordance with Article 3.17.3. In the absence of agreement between the disputing parties, the tribunal shall determine that place in accordance with the applicable arbitration rules, provided that the place is in the territory of a State which is a party to the New York Convention.
2. A non-disputing Party may submit oral or written submissions to the court with respect to the interpretation of this Agreement.
3. The court shall be empowered to accept and consider amicus curiae communications that come from a person or entity that is not a disputing party.
4. Without prejudice to the power of the court to hear other objections as preliminary questions, a court shall hear and decide as a preliminary question any objection of the respondent that, as a matter of law, the complaint submitted is not a claim in respect of which To issue an award favorable to the claimant in accordance with Article 3.27.
a) Such objection shall be submitted to the court as soon as possible after the constitution of the court, and in no case later than the date fixed by the court for the defendant to present his answer to the application (or in the case of a Modification of the notice of arbitration, the date set by the court for the respondent to submit its response to the amendment).
b) Upon receiving an objection under this paragraph, the court shall suspend any action on the merits of the litigation, establish a timetable for the consideration of the objection that will be compatible with any schedule that has been established for the consideration of Any other preliminary question, and shall issue a decision or award on the objection, setting out the grounds of the objection.
c) In adjudicating on an objection under this paragraph, the court shall assume as factual the allegations of fact presented by the claimant for the purpose of supporting any claim appearing in the notice of arbitration (or any amendment thereto) In disputes submitted in accordance with the UNCITRAL Arbitration Rules, the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules. The court may also consider any other relevant facts that are not controversial.
d) The defendant does not waive any objection in respect of jurisdiction or any substantive argument, simply because it has made an objection under this paragraph or makes use of the expedited procedure established in paragraph 5.
5. In the event that the defendant so requests, within forty-five (45) days following the constitution of the court, the court shall decide, expeditiously, on an objection in accordance with paragraph 4 and any Another objection in the sense that the dispute is not within the jurisdiction of the court. The court shall suspend any action on the merits of the litigation and shall issue, not later than one hundred and fifty (150) days after the date of the request, a decision or award on said objection, stating the basis thereof. However, if a disputing party requests a hearing, the court may take thirty (30) additional days to issue the decision or award. Regardless of whether a hearing has been requested, the court may, by demonstrating an extraordinary reason, delay the issuance of its decision or award for a short additional period, which may not exceed thirty (30) days.
6. When the court decides on a respondent's objection in accordance with paragraphs 4 or 5, it may, if warranted, grant the winning disputing party reasonable costs and attorneys' fees incurred in filing the objection or To oppose it. In determining whether such award is warranted, the court shall consider whether the claimant's claim or the respondent's objection were frivolous, and shall afford the disputing parties reasonable opportunity to submit their comments.
7. The defendant shall not oppose as a defense, counterclaim or countervailing duty or for any other reason that, under an insurance or guarantee contract, the claimant has received or will receive compensation or other compensation for all or part of the alleged damages.
8. The court may order an interim measure of protection to preserve the rights of a disputing party, or for the purpose of ensuring the full exercise of the court's jurisdiction, including an order to preserve evidence in or Control of a disputing party or to protect the jurisdiction of the court. The court may not order the attachment or prevent the application of a measure that is considered a violation referred to in Article 3.17. For purposes of this paragraph, an order includes a recommendation.
9. a) In any arbitration under this Section, at the request of any of the disputing parties, the tribunal shall, prior to rendering a decision or award of liability, communicate its proposed decision or award to the disputing parties and the Parties Not contenders. Within sixty (60) days after such proposed decision or award is communicated, the disputing parties may submit written comments to the court regarding any aspect of their proposed decision or award. The court shall consider such comments and render its decision or award no later than forty-five (45) days after the expiration of the sixty (60) day deadline for comment.
b) Subparagraph (a) shall not apply to any arbitration conducted pursuant to this Section in which an appeal is available under paragraph 10.
10. If a separate multilateral treaty establishing an appellate body enters into force for the purpose of reviewing awards rendered by tribunals constituted under international trade or investment agreements to deal with investment disputes, the Parties shall seek To reach an agreement that would cause such appellate body to review awards rendered pursuant to Article 3.27 of this Section in arbitrations that have begun after the multilateral agreement enters into force between the Parties.
3.22. Transparency of Arbitration Proceedings
1. Subject to paragraphs 2 and 4, the respondent, after receiving the following documents, shall promptly deliver them to the non-disputing Parties and make them available to the public:
a) notification of intent;
b) the notice of arbitration;
c) the allegations, briefs and explanatory notes submitted to the court by a disputing party and any written submissions submitted in accordance with Articles 3.21.2 and 3.21.3 and Article 3.26;
d) the minutes or transcripts of the court hearings, when available; and
e) orders, awards and decisions of the court.
2. The tribunal shall conduct open hearings to the public and shall determine, in consultation with the disputing parties, the relevant logistical arrangements. However, any disputing party seeking to use information classified as protected information at a hearing must so inform the court. The court will make appropriate arrangements to protect the information from its disclosure.
3. Nothing in this Section requires the respondent to make available protected information or to provide or allow access to information that he may retain pursuant to Article 8.03 (National Security) or Article 8.05 (Exceptions to Disclosure of information).
4. Any protected information submitted to the court shall be protected from disclosure in accordance with the following procedures:
a) Subject to sub-paragraph (d), neither the disputing parties nor the court shall disclose to any non-disputing Party or to the public any protected information where the disputing party providing the information clearly so designates it in accordance with sub-paragraph (b);
b) Any disputing party claiming that certain information constitutes protected information shall clearly designate it at the time of its submission to the court;
c) A disputing party shall, at the same time as submitting a document containing information alleged to be protected information, submit a redacted version of the document that does not contain the information. Only the drafted version shall be provided to the non-disputing Parties and shall be made public in accordance with paragraph 1; and
d) The court shall rule on any objection in relation to the designation of information alleged as protected information. If the court determines that such information was not properly designated, the disputing party submitting the information may: (i) withdraw all or part of the submission containing such information, or (ii) agree to re-submit full and redacted documents with corrected designations In accordance with the court's determination and subparagraph (c). In all cases, the other disputing party shall, when necessary, resubmit complete and redacted documents, which omit the information withdrawn in accordance with (i) by the disputing party who first submitted the information or who re-designate the information on a consistent basis With the designation made in accordance with ii) of the disputing party that first submitted the information.
5. Nothing in this Section requires the respondent to deny the public access to information that, according to its law, must be disclosed.
3.23. Applicable Law
1. Subject to paragraph 2, a tribunal established under this Section shall decide the disputes that are submitted for its consideration in accordance with this Treaty and with the applicable provisions of international law and, where applicable, the law of the defendant.
2. A decision of the Council declaring the interpretation of a provision of this Agreement, pursuant to Article 9.02 (Functions of the Council), shall be binding upon a court established pursuant to this Section, and any decision or award rendered By the court shall be compatible with that decision.
3.24. Interpretation of Annexes
1. Where the defendant submits as a defense that the measure alleged to be in breach is within the scope of Annex I (Non-Conforming Measures) or Annex II (Measures to the Future), at the request of the defendant, the court shall request the Council An interpretation on the subject. Within sixty (60) days of delivery of the request, the Council shall submit to the court in writing any decision declaring its interpretation, in accordance with Article 9.02 (Functions of the Council).
2. The decision issued by the Council under paragraph 1 shall be binding on the court and any decision or award rendered by the court shall be consistent with that decision. If the Board does not issue such a decision within a period of sixty (60) days, the court shall decide on the matter.
3.25. Expert Reports
Without prejudice to the designation of other experts when authorized by the applicable arbitration rules, the tribunal, at the request of a disputing party or on its own initiative unless the disputing parties do not accept it, may designate one or more experts to inform In writing, any question of fact relating to environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, in accordance with such terms and conditions as the disputing parties agree.
3.26. Accumulation of Procedures
1. In cases where two or more separate claims under Article 3.17.1 have been submitted to arbitration and the claims contain a common issue of fact or law and arise from the same facts or circumstances, any disputing party may Seek an order of accumulation in accordance with the agreement of all disputing parties in respect of which the order of accumulation is sought or in accordance with the terms of paragraphs 2 to 10.
2. The disputing party seeking an accumulation order in accordance with this Article shall deliver a written request to the Secretary-General and all disputing parties in respect of which the accumulation order is sought and shall specify in the request following:
a) the name and address of all the disputing parties in respect of which the order of accumulation is sought;
b) the nature of the order of accumulation requested; and
c) the basis on which the application is supported.
3. Unless the Secretary-General determines, within thirty (30) days after receipt of a request pursuant to paragraph 2, that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the disputing parties in respect of which the order of accumulation is sought agree otherwise, the tribunal established in accordance with this Article shall be composed of three (3) arbitrators:
a) an arbitrator appointed by agreement of the plaintiffs;
b) an arbitrator appointed by the defendant; and
c) the presiding arbitrator appointed by the Secretary-General, who shall not be a national of either Party.
5. If, within a period of sixty (60) days following the receipt by the Secretary-General of the request made pursuant to paragraph 2, the respondent or the complainants do not appoint an arbitrator under paragraph 4, the Secretary General, at the request of any disputing party in respect of which the accumulation order is sought, shall appoint the arbitrator or arbitrators who have not yet been appointed. If the respondent fails to appoint an arbitrator, the Secretary-General shall designate a national of the disputing Party and, in the event that the claimants do not designate an arbitrator, the Secretary-General shall designate a national of a Party of the claimants.
6. In the event that the tribunal established pursuant to this Article has established that two or more claims under Article 3.17.1 have arisen to arbitration, that they raise a common issue of fact or law, and arise from them Facts or circumstances, the court may, in order to reach a fair and efficient resolution of the claims and after hearing the disputing parties, in order:
a) assume jurisdiction and jointly determine and determine all or part of the claims;
b) assume jurisdiction and know and determine one or more claims, the determination of which it considers would contribute to the resolution of the others; or
c) instruct a court previously established under Article 3.20 to assume jurisdiction and to know and jointly determine, on all or part of the claims, provided that:
(i) that court, at the request of any plaintiff who has not previously been a disputing party before that court, is reintegrated with its
Original members, except that the arbitrator by the plaintiffs shall be appointed in accordance with paragraphs 4 (a) and 5; and
(ii) that court decides whether to repeat any prior hearing.
7. In the case where a court has been established under this Article, a claimant who has submitted a claim to arbitration under Article 3.17.1, and whose name is not mentioned in a request under paragraph 2, may make A written request to the court to the effect that such claimant is included in any order made under paragraph 6, and shall specify in the request:
a) the name and address of the claimant;
b) the nature of the order of accumulation requested; and
c) the grounds on which the application is based.
The complainant shall deliver a copy of his application to the Secretary-General.
8. A tribunal established pursuant to this Article shall conduct the proceedings in accordance with the provisions of the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A tribunal established under Article 3.20 shall not have jurisdiction to settle a claim, or part thereof, in respect of which a court established or instructed in accordance with this Article has assumed jurisdiction.
10. At the request of a disputing party, a tribunal established under this Article may, pending its decision under paragraph 6, order that proceedings of a tribunal established under Article 3.20 be deferred, unless the latter Court has already suspended its proceedings.
3.27. Reports
1. Where a court makes a final award that is unfavorable to the defendant, the court may award, separately or in combination, only:
a) pecuniary damages and interest thereon;
b) restitution of property, in which case the award will provide that the defendant can pay pecuniary damages, plus interest that comes instead of restitution.
A court may also award costs and attorney's fees in accordance with this Section and with applicable arbitration rules.
2. Subject to paragraph 1, where a claim under Article 3.17.1 (b) is submitted to arbitration:
a) the award providing for the return of the property shall provide that the restitution be granted to the enterprise;
b) the award that grants pecuniary damages and interests that proceeds will provide that the sum of money is paid to the company; and
c) the award will provide that it is issued without prejudice to any right that any person has on the repair under the applicable domestic law.
3. A court is not authorized to order the payment of punitive damages.
4. The award rendered by a court shall be binding only on the disputing parties and only on the specific case.
5. Subject to paragraph 6 and the review procedure applicable to a provisional award, the disputing party shall abide by and comply with the award without delay.
6. A disputing party may not request execution of the final award until:
a) in the case of a final award rendered in accordance with the ICSID Convention:
(i) one hundred and twenty (120) days have elapsed from the date on which the award was rendered and no disputing party has requested revision or annulment thereof; or
(ii) have completed the review or annulment procedures; and
(b) in the case of a final award rendered in accordance with the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
(i) ninety (90) days have elapsed since the date on which the award was rendered and no disputing party has initiated a procedure to review, revoke or annul it; or
(ii) a court has dismissed or admitted a request for review, revocation or annulment of the award and this decision can not be appealed.
7. Each Party shall provide for the due enforcement of an award in its territory.
8. Where the defendant breaches or fails to comply with a final award, upon the lodging of an application by the Claimant's Party, the establishment of an arbitral tribunal shall be requested in accordance with the dispute settlement mechanism in force between the Parties.
The requesting Party may invoke such procedures for a determination to the effect that failure to comply or disregard the terms of the final award is contrary to the obligations of this Agreement.
9. A disputing party may resort to the enforcement of an arbitral award in accordance with the ICSID Convention, the New York Convention or the Inter-American Convention, regardless of whether the mechanism contemplated in paragraph 8 has been applied.
10. For the purposes of Article I of the New York Convention and Article I of the Inter-American Convention, the claim submitted to arbitration under this Section shall be deemed to arise from a trade relationship or operation.
3.28. Delivery of Documents
The delivery of the notification and other documents to a Party shall be made at the place designated by it in Annex 3.28.
Annex 3.11.
1. For purposes of Article 3.11.1 a) are understood to fall within the term of public purpose:
a) for the case of Costa Rica: public utility or public interest;
b) in the case of El Salvador: public utility or social interest;
c) in the case of Guatemala: collective utility, social benefit or public interest;
d) in the case of Honduras: need or public interest; and
e) in the case of Nicaragua: public utility or social interest.
2. The term public purpose refers to a concept of customary international law
3. For the purposes of Article 3.11, the Parties confirm their common understanding that:
a) Article 3.11.1 attempts to reflect customary international law concerning the obligation of States with respect to expropriation.
b) An act or series of acts of a Party may not constitute an expropriation unless it interferes with a tangible or intangible property right or with the essential attributes or faculties of the domain of an investment.
c) Article 3.11.1 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise expropriated directly through the formal transfer of the title or the right of dominion.
d) The second situation addressed by Article 3.11.1 is indirect expropriation, where an act or a series of acts of a Party have an equivalent effect to a direct expropriation without the formal transfer of the title or the right of dominion.
(i) Whether or not an act or series of acts of a Party, in a specific situation, constitutes an indirect expropriation, requires a factual investigation, on a case-by-case basis, to consider inter alia:
(1) the economic impact of the governmental act, although the fact that an act or series of acts of a Party has an adverse effect on the economic value of an investment does not, on its own, provide that an indirect expropriation has occurred;
2) the extent to which government action interferes with unequivocal and reasonable investment expectations; and
3) the nature of government action.
(ii) Except in exceptional circumstances, non-discriminatory regulatory acts of a Party which are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations.
Annex 3.28.
1. For purposes of Article 3.28, the place for delivery of notifications and other documents under Section B will be:
a) in the case of Costa Rica, the General Directorate of Foreign Trade, Ministry of Foreign Trade, Avenues 1 and 3, Calle 40, San José, Costa Rica;
b) in the case of El Salvador, the Department of Administration of Commercial Treaties, Ministry of Economy, Alameda Juan Pablo II and Calle Guadalupe, Master Plan, Edificio "C-2", San Salvador, El Salvador;
c) in the case of Guatemala, the Directorate of Foreign Trade Administration, Ministry of Economy, 8 a 10-43 zone 1, Guatemala, Guatemala;
d) in the case of Honduras, the General Directorate of Economic Integration and Trade Policy, Secretary of State in the Offices of Industry and Commerce, Boulevard José Cecilio del Valle, San José Building, former Fenaduanah building, Tegucigalpa, Honduras;
e) in the case of Nicaragua, the Directorate General of Foreign Trade, Ministry of Industry and Commerce Development, Km. 6, Carretera a Masaya, Managua, Nicaragua;
Or their successors.
2. For the modification of the information contained in the previous paragraph, it will suffice the notification of the Party concerned to the Depositary, who shall notify the other Parties.
Chapter 4. Cross-border Trade In Services
4.01. Definitions
For the purposes of this Chapter, the following definitions shall apply:
Cross-border trade in services: the provision of a service:
a) from the territory of one Party to the territory of another Party;
b) in the territory of a Party, by a person of that Party, to a person of another Party; or
c) by a national of a Party in the territory of another Party;
Enterprise: an "enterprise", as defined in Article 2.01 (Definitions of general application), and the branch of an enterprise;
Service provider: any person intending to provide or provide a service;
Service provider of another Party: a person from another Party who intends to provide or provide a service;
Service provided in the exercise of governmental authority: any service which is not provided on a commercial basis or in competition with one or more service providers;
Specialized air services: any non-transport air service, such as fire suppression, spraying, panoramic flights, aerial surveying, aerial mapping, aerial photography, skydiving service, towing of gliders, air transport services for log transport and Construction and other air services linked to agriculture, industry and inspection;
Professional services: the services, which require specialized higher education or equivalent training or experience, and whose exercise is authorized or restricted by a Party, but does not include services rendered by persons practicing a trade or to crew members of merchant ships and aircraft.
4.02. Scope of Application
1. This Chapter applies to measures that a Party adopts or maintains on cross-border trade in services by service providers of another Party, including those relating to: