2. A disputing party seeking a consolidation order pursuant to this Article shall deliver a written request to the Secretary-General, with a copy to all other disputing parties in respect of which the consolidation order is sought. The request shall specify the following:
(a) the name and address of all disputing parties in respect of which the order of joinder is sought;
(b) the nature of the order of joinder sought; and
(c) the basis on which the request is made.
3. Unless the Secretary-General determines, within 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 otherwise agreed by all disputing parties in respect of which the order for consolidation is sought, the Tribunal to be established pursuant to this Article shall consist of 3 arbitrators:
(a) one arbitrator appointed by agreement of the claimants;
(b) an arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the Secretary-General, who shall not be a national of either Party.
5. If, within 60 days after receipt by the Secretary-General of the request made pursuant to paragraph 2, the respondent or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General shall, at the request of any disputing party in respect of which the consolidation order is sought, appoint the arbitrator or arbitrators not yet appointed. If the respondent fails to appoint an arbitrator, the Secretary-General shall appoint a national of the respondent and, if the claimants fail to appoint an arbitrator, the Secretary-General shall appoint a national of a Party of the claimants.
6. In the event that the Tribunal established under this Article has found that two or more claims have been submitted to arbitration under Article 10.17(1), raising a common question of law or fact, and arising out of the same facts or circumstances, the Tribunal may, in the interest of reaching a fair and efficient resolution of the claims and after hearing the disputing parties, by procedural order:
(a) assume jurisdiction, hear and determine jointly all or part of the claims;
(b) assume jurisdiction over, hear and determine one or more claims, the determination of which it considers would contribute to the resolution of the other claims; or
(c) direct a Tribunal established under Article 10.20 to assume jurisdiction over, hear and determine jointly all or part of the claims, provided that:
(i) that Tribunal, upon the request of any claimant that was not previously a disputing party before that Tribunal, is reinstated with its original members, except that the arbitrator by the claimant parties is appointed pursuant to subparagraph 4(a) and paragraph 5; and
(ii) that Tribunal decides whether to repeat any previous hearing.
7. Where a Tribunal has been established pursuant to this Article, a claimant who has submitted a claim to arbitration pursuant to Article 10.17(1), and whose name is not mentioned in a request made pursuant to paragraph 2, may make a written request to the Tribunal that such claimant be included in any procedural order to be made pursuant to paragraph 6 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 application is based.
The claimant shall deliver a copy of its application to the Secretary-General and to the disputing parties in accordance with paragraph 2.
8. A Tribunal established under Article 10.20 shall not have jurisdiction to decide a claim, or part of a claim, over which a Tribunal established or instructed under this Article has assumed jurisdiction.
9. On the request of a disputing party, a Tribunal established under this Article may, pending its decision under paragraph 6, order that the proceedings of a Tribunal established under Article 10.20 be adjourned, unless the latter Tribunal has already adjourned its proceedings.
10. A Tribunal established under this Article shall conduct the proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
Article 10.27. Awards
1. Where a Tribunal makes a final award against the Respondent, the Tribunal may award, separately or in combination, only:
(a) monetary damages and interest, if any; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages plus interest in lieu of restitution.
The Tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
2. Subject to paragraph 1, where a claim is submitted to arbitration under Article 10.17(1)(b):
(a) the award providing for restitution of property shall provide that restitution shall be awarded to the enterprise;
(b) the award providing for monetary damages and interest thereon shall provide that the sum of money be paid to the enterprise; and
(c) the award shall provide that the award is without prejudice to any right of any person to relief under applicable domestic law.
3. For greater certainty, the Tribunal is not authorized to order the payment of punitive damages, nor shall it have jurisdiction to rule on the legality of the measure under domestic law.
Article 10.28. Finality and Enforcement of an Award
1. An award rendered by a Tribunal shall be binding only on the disputing parties and only in respect of the particular case.
2. Subject to paragraph 3 and to the review procedure applicable to a final award, the disputing party shall comply with and enforce the award without delay.
3. The disputing party may not request enforcement of the final award 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 rendered and no disputing party has requested revision or annulment of the award; or
(ii) the revision or annulment proceedings have been completed; and
(b) in the case of a final award made under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected under Article 10.17(3)(d):
(i) 90 days have elapsed from the date on which the award was rendered and no disputing party has commenced proceedings to revise, set aside or annul the award; or
(ii) a Tribunal has dismissed or allowed an application for revision, setting aside or annulment of the award and this decision is not subject to appeal, in accordance with applicable law.
4. Each Party shall provide for the proper enforcement of an award in its territory.
5. Where the respondent fails to comply with or abide by a final award, upon delivery of a request by the Party of the claimant, an Arbitral Panel shall be established in accordance with Article 18.8 (Request for Establishment of Arbitral Panel). The requesting Party may invoke Chapter 18 (Dispute Settlement) for:
(a) a determination that the failure or disregard of the terms of the final award is contrary to the obligations of this Agreement; and
(b) a recommendation that the Respondent abide by or comply with the Final Award pursuant to Article 18.15 (Final Report).
6. A disputing party may seek enforcement of an arbitral award under the ICSID Convention, the New York Convention, if both Parties are parties to those treaties, or the Inter-American Convention, as applicable, whether or not the procedures referred to in paragraph 5 have been initiated.
7. For the purposes of Article I of the New York Convention and Article I of the Inter-American Convention, a claim submitted to arbitration under this Section shall be deemed to arise out of a commercial relationship or transaction.
Article 10.29. Service of Documents
Delivery of notice and other documents to a Party shall be made at the place designated by it in Annex 10.29 in accordance with Section C.
Annex 10.5. CUSTOMARY INTERNATIONAL LAW
1. The Parties confirm their common understanding that customary international law, generally and as specifically referred to in Article 10.5, results from a general and consistent practice of States, followed by them in the sense of a legal obligation.
2. With respect to Article 10.5, the minimum standard of treatment accorded to aliens by customary international law refers to all principles of customary international law that protect the economic rights of aliens.
Annex 10.11. EXPROPRIATION AND COMPENSATION
The Parties confirm their common understanding that:
(a) Article 10.11 addresses two situations:
(i) the first, is direct expropriation, where an investment is nationalized or otherwise directly expropriated through the formal transfer of title or right of ownership; and
(ii) the second is indirect expropriation, where a measure or series of measures of a Party has an effect equivalent to a direct expropriation without the formal transfer of title or right of ownership;
(b) a measure or series of measures of a Party may not constitute an expropriation unless it interferes with a tangible or intangible property right or with the essential attributes or powers of ownership of an investment;
(c) the determination of whether a measure or series of measures of a Party, in a specific factual situation, constitutes an indirect expropriation requires a factual, case-by-case inquiry that considers among other factors:
(i) the economic impact of a Party's measure or series of measures, although the mere fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred; and
(ii) the extent to which the measure or series of measures of a Party interferes with unambiguous and reasonable expectations of the investment; and (iii) the extent to which the measure or series of measures of a Party interferes with unambiguous and reasonable expectations of the investment.
(d) except in exceptional circumstances, such as where a measure or series of measures are disproportionate in light of their objective such that they cannot reasonably be considered to have been adopted and applied in good faith, non-discriminatory regulatory actions of a Party that are designed and applied to protect legitimate public welfare objectives (9), such as, the public health, safety, and the environment, among others, do not constitute an indirect expropriation.
Annex 10.21. SUBMISSIONS BY PERSONS OR ENTITIES THAT ARE NOT DISPUTING PARTIES
1. An application for leave to file written submissions by persons or entities that are not disputing parties shall be submitted within the time limit established by the Tribunal and:
(a) be in writing, be dated and signed by the applicant, and include the address as well as other contact details of the applicant;
(b) be no longer than 5 pages in length;
(c) describe the applicant, including, where relevant, its membership and legal status (e.g., company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that the applicant directly or indirectly controls);
(d) disclose whether the applicant has any affiliation, directly or indirectly, with any disputing Party;
(e) identify any government, person or organization that has provided financial or other assistance during the preparation of the submission;
(f) specify the nature of the applicant's interest in the arbitration;
(g) identify the specific factual or legal issues in the arbitration to which the applicant will refer in its written submission; and
(h) be in the language of the arbitration.
2. A written submission by a person or entity that is not a disputing party shall:
(a) be submitted within the time limit set by the Tribunal;
(b) be dated and signed by the applicant;
(c) be concise and in no case exceed 20 pages, including annexes and appendices;
(d) duly substantiate its position; and
(e) refer only to the matters indicated in its application, pursuant to subparagraph 1(g).
Annex 10.29. SERVICE OF DOCUMENTS
Notices and other documents in disputes between a Party and an investor of the other Party arising out of an alleged breach of an obligation under Section B shall be served by delivery to:
(a) in the case of Mexico, the Dirección General de Consultoría Jurídica de Comercio Internacional (DGCJCI) of the Secretaria de Economía of Mexico, located at Alfonso Reyes No. 30, Piso 17 Delegación Cuauhtémoc, Mexico, Distrito Federal, and
(b) in the case of Panama, the Dirección Nacional de Administración de Tratados Comerciales Internacionales y de Defensa Comercial (DINATRADEC) of the Ministry of Commerce and Industries of Panama, located at Edificio Plaza Edison, Second Floor, Avenida El Paical, Panama, Republic of Panama;
or its successors.
Chapter 11. FINANCIAL SERVICES
Article 11.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
cross-border trade or supply of financial services: the supply of a financial service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party;
but does not include the supply of a financial service in the territory of a Party by an investment in that territory;
public entity: a central bank, a monetary authority of a Party or any financial institution owned or controlled by a Party;
financial institution: a financial intermediary or other enterprise that is authorized to do business and that is regulated or supervised as a financial institution under the domestic law of the Party in whose territory it is located;
financial institution of the other Party: a financial institution, including a branch or subsidiary, that is located in the territory of a Party and that is controlled by a person of the other Party;
investment: as defined in Article 10.1 (Definitions), except that:
(a) a loan to, or debt instrument issued by, a financial institution is an investment only when it is treated as capital for regulatory purposes by the Party in whose territory the financial institution is located; and
(b) a loan made by a financial institution, or a debt instrument owned by a financial institution, is not an investment unless it is covered by subparagraph (a);
for greater certainty:
(a) a loan made to a Party, or a debt instrument issued by a Party or a State enterprise of that Party, is not an investment; and
(b) a loan made by, or a debt instrument owned by, a cross-border financial service supplier, other than a loan to, or a debt instrument issued by, a financial institution, is an investment if such loan or debt instrument meets the criteria for investments set out in Article 10.1 (Definitions).
investor of a Party: as defined in Article 10.1 (Definitions);
new financial service: a financial service not supplied in the territory of the Party, but that is supplied in the territory of the other Party, and includes a new form of supply of a financial service or the sale of a financial product that is not sold in the territory of the Party;
self-regulatory organization: a non-governmental entity, including any exchange or stock exchange or any financial derivatives market, clearing house or other body or association that exercises proprietary or delegated regulatory or supervisory authority over financial service suppliers or financial institutions;
person of a Party: a national or company of a Party. For greater certainty, does not include a branch of an enterprise of a non-Party;
financial service supplier: includes a service supplier of a Party and a cross-border financial service supplier;
financial service supplier of a Party: a person of a Party engaged in the business of supplying a financial service in the territory of that Party;
cross-border financial service supplier of a Party: a person of a Party that is engaged in the business of supplying a financial service in the territory of the Party and that seeks to supply or does supply a financial service through the cross-border supply of such service; and
financial service: a service of a financial nature. Financial services include insurance and insurance-related services, and banking and other financial services (except insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:
Insurance and insurance-related services.
(a) direct insurance (including coinsurance):
(i) life insurance
(ii) non-life insurance;
(b) reinsurance and retrocession;
(c) insurance intermediation activities, such as those of insurance brokers and agents; and
(d) services auxiliary to insurance, such as consulting, actuarial, risk assessment and claim settlement services;
Banking and other financial services (excluding insurance); (e) acceptance of deposits and other financial services (excluding insurance); and
(e) acceptance of deposits and other repayable funds from the public;
(f) lending of all types, including personal loans, mortgage loans, factoring and financing of commercial transactions;
(g) leasing services;
(h) all payment and money transfer services, including credit, charge and debit cards, traveler's checks and bank drafts;
(i) guarantees and commitments;
(j) trading for its own account or for the account of customers, whether on an exchange, in an over-the-counter market or otherwise, of the following:
(i) money market instruments (including checks, bills and certificates of deposit);
(ii) foreign currencies;
(iii) derivative products, including, but not limited to, futures and options;
(iv) interest rate and foreign exchange market instruments, including products such as swaps and forward rate agreements;
(v) transferable securities;
(vi) other negotiable instruments and financial assets, including metal;
(k) participation in issues of all kinds of securities, including underwriting and placement as agents (publicly or privately), and the provision of services related to such issues;
(l) foreign exchange brokerage;
(m) asset management, such as cash or portfolio management, collective investment management in all its forms, pension fund management, depository and custodial services, and trust services;
(n) payment and clearing services in respect of financial assets, including securities, derivatives and other negotiable instruments;
(o) provision and transfer of financial information, and financial data processing and related software, by suppliers of other financial services; and
(p) advisory, intermediation and other auxiliary financial services in respect of any of the activities referred to in subparagraphs (e) through (o), including credit reporting and analysis, investment and portfolio research and advice, and advice on acquisitions and on corporate restructuring and strategy.
Article 11.2. Scope of Application
1. This Chapter shall apply to a measure adopted or maintained by a Party relating to:
(a) a financial institution of the other Party;
(b) an investor of the other Party, or an investment of such investor, in a financial institution in the territory of the Party; and
(c) cross-border trade in financial services.
2. In the event of any inconsistency between the provisions of this Chapter and any other provision of this Agreement, the provisions of this Chapter shall prevail to the extent of the inconsistency.
3. Chapters 9 (Cross-Border Trade in Services) and 10 (Investment) shall apply to the measures described in paragraph 1 only to the extent that those Chapters are incorporated into this Chapter:
(a) Articles 10.9 (Environmental Measures), 10.11 (Expropriation and Compensation), 10.12 (Transfers (1)), 10.13 (Special Formalities and Information Requirements), and 10.15 (Denial of Benefits) are incorporated into and made an integral part of this Chapter, mutatis mutandis (2);
(b) Section C (Investor-State Dispute Settlement) of Chapter 10 (Investment) is incorporated into and made a part of this Chapter only for cases alleging a Party's breach of Articles 10.11 (Expropriation and Compensation), 10.12 (Transfers), 10.13 (Special Formalities and Disclosure Requirements), and 10.15 (Denial of Benefits), as incorporated into this Chapter; and
(c) Articles 9.10 (Denial of Benefits) and 9.11 (Transfers and Payments) are incorporated into and made part of this Chapter, mutatis mutandis, to the extent that cross-border trade in financial services is subject to the obligations under Article 11.7 (Cross-Border Trade).
(a) activities or services that are part of public retirement or pension plans, or social security systems established by law, nor.