Article 10.10. Treatment In the Event of a Dispute
1. Notwithstanding Article 10.8(5)(a), each Party shall accord to investors of the other Party and to covered investments non-discriminatory treatment with respect to any measures it adopts or maintains relating to losses suffered by investments in its territory as a result of war, armed conflict, or civil strife. For this purpose, the Party shall grant the investor restitution or compensation in accordance with Article 10.11.
2. Paragraph 1 shall not apply to existing measures relating to subsidies or grants that would be inconsistent with Article 10.3, with the exception of Article 10.8(5)(a).
Article 10.11. Expropriation and Compensation (6)
1. No Party shall nationalize or expropriate a covered investment, either directly or indirectly through measures tantamount to expropriation or nationalization, except:
(a) in the public interest or for a public purpose (7);
(b) in a non-discriminatory manner;
(c) in accordance with the principle of due process and Article 10.5; and
(d) by payment of compensation in accordance with paragraphs 2 through 5.
2. The compensation referred to in subparagraph 1(d) shall:
(a) be paid promptly, fully liquidable and freely transferable;
(b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (date of expropriation); and
(c) not reflect any change in value because the intention to expropriate was known prior to the date of expropriation.
3. The valuation criteria shall include current value, asset value (including the stated tax value of tangible property ownership), as well as such criteria as may be appropriate for determining fair market value.
4. If the fair market value is denominated in a freely usable currency, the compensation referred to in subparagraph 1(d) shall not be less than the fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation to the date of payment.
5. If the fair market value is denominated in a currency that is not freely usable, the compensation referred to in subparagraph 1(d) (converted into the currency of payment at the market rate of exchange prevailing on the date of payment) shall not be less than:
(a) the fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing on that date, plus.
(b) interest calculated at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation to the date of payment.
6. The provisions of this Article shall not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with Chapter 15 (Intellectual Property).
Article 10.12. Transfers
1. Each Party shall permit all transfers relating to a covered investment to be made freely and without delay into and within its territory. Such transfers include:
(a) initial capital contributions and additional amounts to maintain or increase the investment;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other charges, returns in kind, and other amounts derived from the investment;
(c) proceeds from the sale or liquidation, in whole or in part, of the covered investment;
(d) payments made pursuant to a contract entered into by the investor, or the covered investment, including a loan agreement;
(e) payments made pursuant to Articles 10.10 and 10.11; and
(f) payments arising from the application of Section C.
2. Each Party shall permit transfers related to a covered investment to be made in freely usable currency at the market rate of exchange prevailing on the date of the transfer.
Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer in currency or in kind through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) bankruptcy, insolvency or protection of creditors' rights, including rights arising under social security, public pension or compulsory savings programs;
(b) issuing, trading or dealing in securities, futures, options or derivatives;
(c) criminal, administrative or judicial violations;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; and
(e) compliance with awards or judgments rendered in contentious proceedings.
4. Neither Party may require its investors to make transfers of their income, earnings or profits or other amounts derived from, or attributable to, investments made in the territory of the other Party, and shall not penalize them for failure to make such transfers.
Article 10.13. Special Formalities and Reporting Requirements
1. Nothing in Article 10.3 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with a covered investment, such as a requirement that investors be residents of the Party or that covered investments be constituted under the domestic law or regulation of the Party, provided that such formalities do not significantly impair the protection afforded by a Party to investors of the other Party and to covered investments under this Agreement.
2. Notwithstanding Articles 10.3 and 10.4, a Party may require an investor of the other Party, or its covered investment, to provide information relating to that investment solely for informational or statistical purposes. The Party shall protect information that is confidential from any disclosure that could adversely affect the competitive position of the investor or the covered investment. Nothing in this paragraph shall be construed to prevent a Party from obtaining or disclosing information relating to the equitable and good faith application of its domestic law.
Article 10.14. Subrogation
1. If a Party or a designated agency of the Party makes a payment to any of its investors under a guarantee, insurance contract, or any other form of compensation provided in respect of an investment of an investor of that Party, the other Party shall recognize the subrogation or transfer of any right or claim to such investment. The subrogated or transferred right or claim shall not be greater than the original right or claim of the investor.
2. Where a Party or a designated agency of the Party has made a payment to an investor of that Party and has acquired the investor's rights and claims, that investor shall not exercise such rights and claims against the other Party unless it has been authorized to act on behalf of the Party or the designated agency of the other Party that has made the payment.
Article 10.15. Denial of Benefits
A Party, after notice to and consultation with the other Party, may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of that Party and to investments of that investor, if investors of a non-Party own or control the enterprise and the enterprise does not have substantial business activities in the territory of the Party under whose domestic law it is incorporated or organized.
Section C. Investor-State Dispute Settlement
Article 10.16. Consultation and Negotiation
1. In the event of a dispute concerning an investment, the disputing parties shall first seek to resolve the dispute through consultation and negotiation with the aim of resolving the dispute amicably, which may include the use of procedures of a non-binding nature, such as good offices, conciliation, and mediation.
2. The consultation and negotiation procedure shall be initiated by a written request which shall be sent to the respondent and shall include the information set forth in Article 10.17 (2) (a) and 2 (b) and a brief description of the facts giving rise to the initiation of the consultations.
3. Consultations shall be held for a minimum period of 6 months and may include face-to-face meetings in the capital city of the Respondent.
4. For greater certainty, the commencement of consultations and negotiations shall not be construed as recognition of the jurisdiction of the Tribunal.
Article 10.17. Submission of a Claim to Arbitration
1. After the minimum period of time referred to in Article 10.16(3), if a disputing party considers that an investment dispute cannot be resolved by consultation and negotiation:
(a) the claimant, at its own expense, may submit to arbitration a claim alleging:
(i) that the respondent has breached an obligation under Section B, other than an obligation under Article 10.8; and
(ii) that the claimant has suffered loss or damage by reason of, or as a result of, such breach.
(b) the claimant, on behalf of an enterprise of the respondent that is a legal person owned or controlled directly or indirectly by the claimant, may, in accordance with this Section, submit to arbitration a claim alleging:
(i) that the respondent has breached an obligation under Section B, other than an obligation under Article 10.8; and
(ii) that the enterprise has suffered loss or damage by reason of, or as a result of, such breach.
For greater certainty, no claim may be submitted to arbitration under this Section alleging a breach of any provision of this Agreement other than an obligation under Section B.
2. At least 90 days before a claim is submitted to arbitration under this Section, the claimant shall deliver to the respondent a written notice of its intention to submit the claim to arbitration (notice of intent). The notice shall specify:
(a) the name and address of the claimant and, if the claim is submitted on behalf of a corporation, the name, address and place of incorporation of the corporation;
(b) for each claim, the provision of Section B alleged to have been violated and any other applicable provision;
(c) the legal and factual issues on which each claim is based;
(d) the relief sought and the approximate amount of damages claimed; and
(e) evidence establishing that it is an investor of the other Party and the existence of a covered investment.
3. Provided that at least 6 months have elapsed since the events giving rise to the claim took place, and provided that the claimant has complied with the conditions set out in Article 10.19, the claimant may submit the claim referred to in paragraph 1:
(a) in accordance with the ICSID Convention and the Rules of Procedure Applicable to ICSID Arbitration Proceedings, provided that both the respondent and the Party of the claimant are parties to the ICSID Convention;
(b) pursuant to the ICSID Additional Facility Rules, provided that either the respondent or the Party of the claimant is a party to the ICSID Convention;
(c) in accordance with the UNCITRAL Arbitration Rules; or
(d) if the disputing parties so agree, before any other arbitration institution or under any other arbitration rules.
4. A claim shall be deemed to be submitted to arbitration under this Section when the claimant's notice or request for arbitration (notice of arbitration) referred to in:
(a) Article 36(1) of the ICSID Convention, is received by the Secretary-General;
(b) Article 2 of Annex C of the ICSID Additional Facility Rules, is received by the Secretary-General;
(c) Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules, is received by the respondent; or
(d) any other arbitration institution or any other arbitration rules selected under subparagraph 3(d) is received by the arbitration institution or the respondent, as applicable.
The Claimant shall deliver with the notice of arbitration the name of the arbitrator appointed by it, or its written consent to the appointment of such arbitrator by the Secretary-General.
5. The arbitration rules applicable pursuant to paragraph 3 and in effect on the date of the claim or claims submitted to arbitration pursuant to this Section shall govern the arbitration, including with respect to the award of costs and, where applicable, the award of costs, except to the extent modified or supplemented by this Agreement.
6. Where, subsequent to the submission of a claim to arbitration, an additional claim is submitted under the same arbitral procedure, it shall be deemed submitted to arbitration under this Section on the date of its receipt, subject to the applicable arbitral rules and the conditions and limitations of Article 10.19.
7. For greater certainty, where a claim is submitted to arbitration under subparagraph (1)(a), only loss or damage suffered by the claimant as an investor in respect of an investment in the territory of the respondent is claimable under that provision.
Article 10.18. Consent of Each Party to Arbitration
1. Each Party consents to the submission of a claim to arbitration under this Section in accordance with this Agreement.
2. The consent referred to in paragraph 1 and the submission of the claim to arbitration under this Section shall comply with the requirements set out in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules, which require the written consent of the parties to the dispute;
(b) Article II of the New York Convention, which requires an "agreement in writing"; and
(c) Article I of the Inter-American Convention, which requires an "agreement".
Article 10.19. Conditions and Limitations on Each Party's Consent
1. No claim may be submitted to arbitration under 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 under Article 10.17(1) and knew that the claimant or the enterprise, as the case may be, suffered loss or damage.
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 provided in this Agreement; and
(b) the notice of arbitration referred to in Article 10.17(4) is accompanied by:
(i) for claims submitted to arbitration pursuant to Article 10.17(1)(a), the claimant's written waiver, and.
(ii) for claims submitted to arbitration pursuant to Article 10.17 (1) (b), the written waivers of the claimant and the enterprise,
of any right to initiate before any judicial or administrative tribunal under the national law of any Party, or any other dispute resolution procedures, or other dispute settlement procedures, any action with respect to any measure alleged to constitute a breach referred to in Article 10.17(1).
3. Notwithstanding subparagraph 2(b), the claimant, for claims brought under Article 10.17(1)(a), and the claimant or the enterprise, for claims brought under Article 10. 17 (1) (b), may initiate or continue a proceeding seeking injunctive relief of any nature whatsoever, provided that it does not involve the payment of monetary damages, before a judicial or administrative tribunal of the respondent, provided that such proceeding is brought for the sole purpose of preserving the rights and interests of the claimant or the enterprise while the arbitration is pending. (8)
4. No claim may be submitted to arbitration under this Section if the claimant or the enterprise, in the case of claims submitted under Article 10.17(1)(a) and (1)(b), as applicable, has previously submitted the same alleged violation to an administrative or judicial tribunal of the respondent, or to any other binding dispute resolution procedure. For greater certainty, the choice thus made by the claimant or the enterprise shall be considered final and may not submit the same claim under this Section.
Article 10.20. Selection of Arbitrators
1. Unless the disputing parties agree otherwise, the Tribunal shall consist of 3 arbitrators, one arbitrator to be appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, to be appointed by agreement of the disputing parties.
2. Unless the disputing parties designate another appointing authority, the Secretary-General shall serve as appointing authority for the arbitrators in arbitration proceedings established pursuant to this Section.
3. In any arbitration conducted pursuant to this Section, the arbitrators shall:
(a) have expertise or specialized knowledge in public international law, international investment rules, or the settlement of disputes arising under international investment agreements, and
(b) not be dependent on any of the Parties or the Claimant, nor be bound by or receive instructions from any of them.
4. Where a Tribunal is not constituted within 90 days from the date on which the claim is submitted to arbitration under this Section, the Secretary-General shall, at the request of either disputing party, appoint, in his discretion, the arbitrator or arbitrators not yet appointed. The President of the Tribunal shall not be a national of either Party, unless otherwise agreed by the Parties.
5. 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 on grounds other than nationality:
(a) the respondent accepts the appointment of each member of the tribunal established in accordance with the ICSID Convention or the ICSID Additional Facility Rules;
(b) the claimant referred to in Article 10.17(1)(a) 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 claimant consents in writing to the appointment of each member of the Tribunal; and
(c) the claimant referred to in Article 10.17(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 claimant and the enterprise consent in writing to the appointment of each of the members of the Tribunal.
Article 10.21. Conduct of the Arbitration
1. The disputing parties may agree on the legal place where any arbitration is to be held in accordance with the arbitration rules applicable under Article 10.17(3). In the absence of agreement between the disputing parties, the Tribunal shall determine such place in accordance with the applicable arbitral rules, provided that the place is in the territory of a State that is a party to the New York Convention.
2. A non-disputing Party may make oral or written submissions to the Tribunal with respect to the interpretation of this Treaty.
3. The Tribunal shall have the authority to accept and consider written amicus curiae briefs, which may assist the Tribunal in determining questions of fact or law relating to the scope of the dispute from a person or entity that is not a disputing party. Any person or entity wishing to make written submissions to a Tribunal may apply to the Tribunal for permission in accordance with Annex 10.21.
4. Where such submissions are admitted by the Tribunal, the Tribunal shall afford disputing parties an opportunity to respond to such written submissions.
5. Without prejudice to the Tribunal's power to hear other objections as preliminary questions, such as an objection that the dispute is not within the jurisdiction of the Tribunal, a Tribunal shall hear and decide as a preliminary question any objection by the Respondent that, as a matter of law, the claim submitted is not a claim in respect of which an award in favor of the Claimant may be made in accordance with Article 10.27. The following rules shall apply:
(a) the objection shall be submitted to the Tribunal as soon as possible after the constitution of the Tribunal, and in no event later than the date the Tribunal fixes for the Respondent to file its Statement of Defense, or in the case of an amendment to the Notice of Arbitration referred to in Article 10.17(4), the date the Tribunal fixes for the Respondent to file its Reply to the amendment;
(b) upon receipt of an objection under this paragraph, the Tribunal shall suspend any proceedings on the merits of the dispute, establish a timetable for consideration of the objection that is consistent with any timetable that has been established for consideration of any other preliminary issue, and issue a decision or award on the objection, setting out the grounds therefor;
(c) in deciding an objection under this paragraph, the Tribunal shall take as true the factual allegations submitted by the claimant in support of any claim contained in the notice of arbitration (or any amendment thereto) and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules. The Tribunal may also consider any other relevant facts not in dispute, and
(d) the Respondent does not waive any objection with respect to jurisdiction or any argument on the merits merely because it has or has not raised an objection under this paragraph, or avails itself of the expedited procedure set forth in paragraph 6.
6. If the Respondent so requests, the Tribunal shall, within 45 days after the date of the constitution of the Tribunal, decide, in an expeditious manner, an objection under paragraph 5 and any other objection that the dispute is not within the jurisdiction of the Tribunal. The Tribunal shall suspend any action on the merits of the dispute and shall render a decision or award on such objection, stating the basis therefor, not later than 150 days after the date of the request. However, if a disputing party requests a hearing, the Tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing has been requested, the Tribunal may, upon a showing of extraordinary cause, delay rendering its decision or award for an additional brief period, which may not exceed 30 days.
7. When the Tribunal decides a respondent's objection under paragraph 5 or 6, it may, if warranted, award to the prevailing disputing party reasonable costs and fees incurred in making or opposing the objection. In determining whether such an award is warranted, the Tribunal shall consider whether the claimant's claim or the respondent's objection was frivolous, and shall give the disputing parties a reasonable opportunity to comment.
8. The Tribunal may order interim measures of protection to preserve the rights of a disputing party, or for the purpose of ensuring the full exercise of the Tribunal's jurisdiction, including an order to preserve evidence in the possession or under the control of a disputing party or to protect the jurisdiction of the Tribunal. The Tribunal may not order the attachment or prevent the enforcement of a measure that is considered a breach referred to in Article 10.17(1). For the purposes of this paragraph, an order includes a recommendation.
9. At the request of any disputing party, the Tribunal shall, before rendering a decision or award on liability, communicate its proposed decision or award to the disputing parties and to the non-disputing Party. Within 60 days after such proposed decision or award is communicated, the disputing parties may submit written comments to the Tribunal concerning any aspect of its proposed decision or award. The Tribunal shall consider such comments and render its decision or award no later than 45 days after the expiration of the 60-day comment period.
Article 10.22. Transparency In Arbitral Proceedings
Subject to paragraphs 2 and 4, the respondent shall, after receiving the following documents, make available to the non-disputing Party and the public:
(a) the notice of intent referred to in Article 10.17(2);
(b) the notice of arbitration referred to in Article 10.17(4);
(c) the pleadings, statements of claim and explanatory notes submitted to the Tribunal by a disputing party and any written communications submitted pursuant to Article 10.21 and Article 10.26;
(d) orders, awards, and decisions of the Tribunal; and
(e) minutes or transcripts of hearings of the Tribunal, when available.
2. The Tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party intending to use information classified as protected information in a hearing shall so inform the Tribunal. The Tribunal shall make appropriate arrangements to protect the information from disclosure, including closing the hearing during any discussion of confidential information.
3. Nothing in this Section requires the Respondent to make available protected information or to provide or permit access to information that it may withhold pursuant to Articles 19.3 (National Security) and 19.4 (Disclosure of Information).
4. Any Protected Information that is submitted to the Tribunal shall be protected from disclosure in accordance with the following procedures:
(a) pursuant to subparagraph (d), neither the disputing parties nor the Tribunal shall disclose to the non-disputing Party or the public any protected information, where the disputing party providing the information clearly so designates it pursuant to subparagraph (b);
(b) any disputing party claiming that particular information constitutes protected information shall clearly designate it at the time it is submitted to the Tribunal;
(c) a disputing party shall, at the same time it submits a document that contains information claimed to be protected information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the non-disputing Parties and shall be made public in accordance with paragraph 1, and
(d) the Tribunal shall rule on any objection to the designation of information claimed to be protected information. If the Tribunal determines that such information was not properly designated, the disputing party that submitted the information may:
(i) withdraw all or part of the submission containing such information, or.
(ii) agree to resubmit complete and redacted documents with corrected designations in accordance with the Tribunal's determination and subparagraph (c).
In either case, the other disputing party shall, where necessary, either resubmit complete and redacted documents, which omit the information withdrawn pursuant to subparagraph (d)(i) by the disputing party that first submitted the information, or redesignate the information in a manner consistent with the designation made pursuant to subparagraph (d)(ii) of the disputing party that first submitted the information.
5. Nothing in this Section requires a respondent to deny the public access to information that, in accordance with its national law, must be disclosed.
Article 10.23. Applicable Law
1. Subject to paragraph 2, where a claim is brought pursuant to Article 10.17, the Tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
2. A decision of the Commission declaring the interpretation of a provision of this Agreement in accordance with Article 17.1(3)(c) (Administrative Commission) shall be binding on a Tribunal established under this Section and any decision or award rendered by a Tribunal shall be consistent with that decision.
Article 10.24. Interpretation of Annexes
1. Where the respondent raises as a defense that the measure alleged to be in violation is within the scope of its Schedules to Annexes I and II, the Tribunal shall, at the request of the respondent, request an interpretation of the matter from the Commission. Within 60 days after delivery of the request, the Commission shall submit in writing to the Tribunal any decision stating its interpretation pursuant to Article 17.1.(3) (c) (Administrative Commission).
2. The decision rendered by the Commission pursuant to paragraph 1 shall be binding on the Tribunal, and any decision or award rendered by the Tribunal shall be consistent with that decision. If the Commission fails to issue such a decision within the 60-day period referred to in paragraph 1, the Tribunal shall decide the matter.
Article 10.25. Expert Reports
Without prejudice to the appointment of other types of experts where authorized by the applicable arbitration rules, the Tribunal may, at the request of a disputing party or, on its own initiative, unless both disputing parties do not agree, appoint one or more experts to report in writing on any factual issue concerning 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 may agree.
Article 10.26. Consolidation of Proceedings
1. Where two or more separate claims have been submitted to arbitration under Article 10.17(1), and the claims raise in common a question of fact or law and arise out of the same facts or circumstances, any disputing party may seek a joinder order, in accordance with the agreement of all disputing parties in respect of which the joinder order is sought or in accordance with paragraphs 2 through 10.