(c) unless the Parties otherwise agree, conducting the review referred to in Article 9.9.
3. The Committee:
(a) shall establish and maintain a list of arbitrators pursuant to Article 9.15.5 and Article 9.15.6;
(b) may, pursuant to Article 9.18.2 or Article 9.19, adopt a joint decision of the Parties, declaring their interpretation of a provision of this Chapter and Annex 9-A;
(c) may propose amendments to Section B in the light of experience of its operation.
Article 9.8. General Exceptions
1. For the purposes of this Chapter and subject to the requirement that such measures are not applied in a manner which would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures:
(a) necessary to protect human, animal or plant life or health;
(b) necessary to ensure compliance with laws and regulations that are not inconsistent with this Agreement;
(c) imposed for the protection of national treasures of artistic, historic or archaeological value; or
(d) relating to the conservation of living or non-living exhaustible natural resources.
2. The Parties understand that the measures referred to in subparagraph 1(a) include environmental measures to protect human, animal or plant life or health, and that the measures referred to in subparagraph 1(d) include environmental measures relating to the conservation of living or non-living exhaustible natural resources.
Article 9.9. Future Work Program
1. Unless the Parties otherwise agree, the Parties shall conduct a review of the investment legal framework between them no later than three years after the date of entry into force of this Agreement.
2. The review shall include consideration of this Chapter and the Agreement between the Government of Australia and the Government of the People's Republic of China on the Reciprocal Encouragement and Protection of Investments.
3. Unless the Parties otherwise agree, the Parties shall commence negotiations on a comprehensive Investment Chapter, reflecting outcomes of the review referred to in paragraphs 1 and 2, immediately after such review is completed. The negotiations shall include, but are not limited to, the following:
(a) amendments to Articles included in this Chapter;
(b) the inclusion of additional Articles in this Chapter, including Articles addressing:
(i) Minimum Standard of Treatment;
(ii) Expropriation;
(iii) Transfers;
(iv) Performance Requirements;
(v) Senior Management and Board of Directors;
(vi) Investment-specific State to State Dispute Settlement; and
(vii) The application of investment protections and ISDS to services supplied through commercial presence; and
(c) scheduling of investment commitments by China on a negative list basis.
4. Unless the Parties otherwise agree, the negotiations referred to in paragraph 3 shall be concluded and then incorporated into this Agreement in accordance with Article 17.3 (Amendments) of Chapter 17 (Final Provisions).
Section B. Investor-state Dispute Settlement
Article 9. Definitions
For the purposes of this Chapter:
(a) claimant means an investor of a Party that is a party to an investment dispute with the other Party;
(b) disputing parties means the claimant and the respondent;
(c) disputing Party means a Party against which a claim is made under Section B (Investor-State Dispute Settlement);
(d) ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
(e) ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, 18 March 1965;
(f) non-disputing Party means the Party that is not a party to an investment dispute;
(g) protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law;
(h) respondent means the Party that is a party to an investment dispute; Secretary-General means the Secretary-General of ICSID; and
(i) UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law.
Article 9.11. Consultations
1. In the event of an investment dispute, after two months since the occurrence of the measure or event giving rise to the dispute, the claimant may deliver to the respondent a written request for consultations. The request shall:
(a) specify the name and address of the claimant and, where a claim is submitted on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly, the name, address, and place of incorporation of the enterprise;
(b) for each claim, identify the provision of this Chapter alleged to have been breached and any other relevant provisions;
(c) for each claim, identify the measures or events giving rise to the claim;
(d) for each claim, indicate whether the claim is made on its own behalf or on behalf of the enterprise;
(e) for each claim, provide a brief summary of the legal and factual basis sufficient to present the problem clearly; and
ff) specify the relief sought, the approximate amount of damages claimed and its standard or basis for calculation.
2. After a request for consultations is made in accordance with this Section, the claimant and the respondent shall initially seek to resolve the dispute through consultations.
3. If the disputing parties reach a mutually agreed solution to a dispute, or certain claims thereof, formally raised under this Section, they shall abide by and comply with the mutually agreed solution reached under this Article without delay.
4. Measures of a Party that are non-discriminatory and for the legitimate public welfare objectives of public health, safety, the environment, public morals or public order shall not be the subject of a claim under this Section.
5. The respondent may, within 30 days of the date on which it receives a request for consultations (as provided for in paragraph 1), state that it considers that a measure alleged to be in breach of an obligation under Section A is of the kind described in paragraph 4, by delivering to the claimant and to the non-disputing Party a notice specifying the basis for its position (a ‘public welfare notice').
6. The issuance of a public welfare notice shall trigger a 90 day period during which the respondent and the non-disputing Party shall consult. The dispute resolution procedure contemplated by this Section shall be automatically suspended for this 90 day period.
7. The issuance of a public welfare notice is without prejudice to the respondent's right to invoke the procedures described in Article 9.16.5 or Article 9.16.6. The respondent shall promptly inform the claimant, and make available to the public, the outcome of any consultations.
8. In any proceeding brought pursuant to this Section, the tribunal shall not draw any adverse inference from the non-issuance of a public welfare notice by the respondent, or from the absence of any decision between the respondent and the non- disputing Party as to whether a measure is of a kind described in paragraph 4.
Article 9.12. Submission of a Claim to Arbitration
1. This Section applies where there is a dispute between a Party and an investor of the other Party relating to a covered investment made in accordance with the Party's laws, regulations and investment policies. (5)
2. In the event that an investment dispute cannot be settled by consultations under Article 9.11 within 120 days after the date of receipt of the request for consultations,
(a) the claimant, on its own behalf, may submit to arbitration under this Section a claim:
(i) that the respondent has breached an obligation in Article 9.3; and
(ii) that the claimant has incurred loss or damage by reason of, or arising out of, that breach; (6) or
(b) the claimant, on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly, may submit to arbitration under this Section a claim:
(i) that the respondent has breached an obligation under Article 9.3; and
(ii) that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
3. A claimant cannot submit or continue to pursue a claim under this Section where the investment of the claimant in the territory of the respondent is owned or controlled indirectly by an investor of a non-party, and the investor of the non-party submits or has submitted a claim with respect to the same measure or event under any agreement between the respondent and that non-party.
4. A claimant may submit a claim referred to in paragraph 2:
(a) under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the non-disputing Party are parties to the ICSID Convention;
(b) under the ICSID Additional Facility Rules, provided that either the respondent or the non-disputing Party is a party to the ICSID Convention;
(c) under the UNCITRAL Arbitration Rules, except as modified by this Agreement and the Side Letter on Transparency Rules Applicable to ISDS; or
(d) if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.
5. Where a claim is submitted to arbitration under paragraph 4(b), (c) and (d) (except where a claim is submitted to any other arbitration institution under paragraph 4(d)), the disputing parties and the tribunal constituted thereunder shall request ICSID to provide administrative services for the arbitration proceedings. Both Parties shall endeavour to make proper institutional arrangements with ICSID to accommodate such requests following the entry into force of this Agreement.
6. A claim shall be deemed submitted to arbitration under this Section when the claimant's notice of or request for arbitration ("notice of arbitration"):
(a) referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) referred to in Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules, are received by the respondent; or
(d) referred to under any arbitral institution or arbitral rules selected under paragraph 4(d) is received by the respondent,
provided that no claim shall be deemed submitted under this Section if that claim is asserted by the claimant for the first time after such notice of arbitration is submitted.
7. A notice of arbitration shall:
(a) specify the name and address of the claimant and, where a claim is submitted on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly, the name, address, and place of incorporation of the enterprise;
(b) for each claim, identify the provision of this Chapter alleged to have been breached and any other relevant provisions;
(c) for each claim, identify the measure or event giving rise to the claim;
(d) for each claim, indicate whether the claim is made on the claimant's own behalf or on behalf of an enterprise;
(e) for each claim, provide a brief summary of the legal and factual basis sufficient to present the problem clearly; and
(f) specify the relief sought, the approximate amount of damages claimed and its standard or basis for calculation.
8. The claimant shall provide with the notice of arbitration: (a) the name of the arbitrator that the claimant appoints; or (b) the claimant's written consent for the Secretary-General to appoint that arbitrator.
9. The arbitration rules applicable under paragraph 4, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Agreement and the Side Letter on Transparency Rules Applicable to ISDS.
Article 9.13. 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. Failure to meet any of the conditions and limitations provided for in Article 9.12.4 shall nullify that consent.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this Section shall satisfy the requirements of Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute.
Article 9.14. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under Article 9.12.2 and knowledge that the claimant (for claims brought under Article 9.12.2(a)) or the enterprise (for claims brought under Article 9.12.2(b)) has incurred loss or damage. In no event may a claim be submitted to arbitration under this Section after four years since the occurrence of the measures and/or events giving rise to the breach alleged under Article 9.12.2.
2. No claim may be submitted to arbitration under this Section unless:
(a) the claimant has complied with the rules and procedures set forth in Articles 9.12.1 and 9.12.2;
(b) the claim has been explicitly included in the request for consultations submitted by the claimant in accordance with Article 9.11.1;
(c) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement; and,
(d) the notice of arbitration is accompanied,
(i) for claims submitted to arbitration under Article 9.12.2(a), by the claimant's written waiver, and
(ii) for claims submitted to arbitration under Article 9.12.2(b), by the claimant's and the enterprise's written waivers, and written waiver by all persons through which the claimant owns or controls the enterprise,
of any right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceeding with respect to any measure or event alleged to constitute a breach referred to in Article 9.12.2.
3. Notwithstanding paragraph 2(d)(ii), a waiver from the enterprise shall not be required only if the respondent has deprived the claimant of its control of the enterprise and the claimant is unable to provide such a waiver as a result.
4. Notwithstanding paragraph 2(d), the claimant (for claims brought under Article 9.12.2(a)) and the claimant or the enterprise (for claims brought under Article 9.12.2(b)) may, in accordance with the laws of the respondent, initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of preserving the claimant's or the enterprise's rights and interests during the pendency of the arbitration.
Article 9.15. Constitution of the Tribunal
1. Unless the disputing parties have agreed to appoint a sole arbitrator, the tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the chairperson, appointed by agreement of the disputing parties.
2. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
3. If the disputing parties agree to appoint a sole arbitrator, the disputing parties shall seek to agree on the sole arbitrator. If they fail to do so within 90 days of the day on which the respondent gave its agreement to submit the dispute to a sole arbitrator, the sole arbitrator shall be drawn by the appointing authority on the request of a disputing party from the list of chairpersons established pursuant to paragraph 5 below.
4. If a tribunal has not been constituted within 90 days from the date that a claim is submitted to arbitration under this Section, the appointing authority, on the request of a disputing party, shall appoint, in his or her discretion, the remaining arbitrators from the list established pursuant to paragraph 5 below.
5, The Committee on Investment shall, no later than 2 years after the entry into force of this Agreement, establish a list of individuals who are willing and able to serve as arbitrators. The Committee on Investment shall ensure that at all times the list includes at least 20 individuals.
6. For purpose of the list referred to in paragraph 5, each Party shall select at least five individuals to serve as arbitrators. The Parties shall also jointly select at least 10 individuals who are not nationals of either Party to act as chairperson of the tribunals.
7. In the event that the Secretary-General is required to appoint an arbitrator or arbitrators under paragraph 3 or 4, and the list referred to in paragraph 5 has not been established, the Secretary-General shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed. The Secretary-General shall not appoint a national of either Party as the presiding arbitrator unless the disputing parties otherwise agree.
8. All arbitrators appointed pursuant to this Section shall have expertise or experience in public international law, international trade or international investment tules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government with regard to matters related to the dispute, or be affiliated with the government of either Party or any disputing party, and shall comply with Annex 9-A. Arbitrators who serve on the list established pursuant to paragraph 5 shall not, for that reason alone, be deemed to be affiliated with the government of either Party.
9. For purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator on a ground other than nationality:
(a) the respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) a claimant referred to in Article 9.12.2(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 agrees in writing to the appointment of each individual member of the tribunal; and
(c) a claimant referred to in Article 9.12.2(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 agree in writing to the appointment of each individual member of the tribunal.
Article 9.16. Conduct of the Arbitration
1. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under Article 9.12.4. If the disputing parties fail to reach agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules.
2. The non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Chapter.
3. With the written agreement of the disputing parties, the tribunal may allow a party or entity that is not a disputing party to file a written amicus curiae submission with the tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the tribunal shall consider, among other things, the extent to which:
(a) the amicus curiae submission would assist the tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge, or insight that is different from that of the disputing parties;
(b) the amicus curiae submission would address a matter within the scope of the dispute; and
(c) the amicus curiae has a significant interest in the proceeding.
4. Each submission in accordance with paragraph 3 of this Article shall identify the author, disclose any affiliation, direct or indirect, with any disputing party, and identify any person, government, or other entity that has provided, or will provide, any financial or other assistance in preparing the submission. Each submission shall be in a language of the arbitration, and comply with any page limits and deadlines set by the tribunal. The tribunal shall ensure that the amicus curiae submission does not disrupt the proceeding or unduly burden or unfairly prejudice either disputing party, and that the disputing parties are given an opportunity to present their observations on the amicus curiae submission.
5. Without prejudice to a tribunal's authority to address other objections as a preliminary question, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 9.12.
(a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its counter-memorial.
(b) On receipt of an objection under this paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds therefor.
(c) In deciding an objection under this paragraph, the tribunal shall assume to be true claimant's factual allegations in support of any claim in the notice of arbitration and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules. The tribunal may also consider any relevant facts not in dispute.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because the respondent did or did not raise an objection under this paragraph or make use of the expedited procedure set out in paragraph 6.
6. In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under paragraph 5 and any objection that the dispute is not within the tribunal's competence. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds therefor, no 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 is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period, which may not exceed 30 days.
7. When it decides a respondent's objection under paragraph 5 or 6, the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorney's fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claimant's claim or the respondent's objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
8. A respondent may not assert as a defence, counterclaim, right of set-off, or for any other reason that the claimant or the enterprise referred to in Article 9.12.2(b) has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an indemnity, guarantee or insurance contract.
Article 9.17. Transparency of Arbitral Proceedings
1. Subject to paragraphs 3, 4 and 5, the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Party:
(a) the request for consultations; (b) the notice of arbitration;
(c) pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to Article 9.21;
(d) minutes or transcripts of hearings of the tribunal, where available; and (e) orders, awards, and decisions of the tribunal.
2. Subject to paragraphs 3, 4 and 5, the respondent:
(a) shall make the documents referred to in paragraph 1 (a), (b) and (e) available to the public;
(b) may make the documents referred to in paragraph 1(c) and (d) available to the public;
(c) may make any written submissions submitted pursuant to Article 9.16.2 available to the public provided that prior consent is obtained from the non-disputing Party.
3. With the agreement of the respondent, 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 that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
4. Nothing in this Section requires a respondent to disclose protected information or to furnish or allow access to information that it may withhold in accordance with Article 16.1 (Disclosure and Confidentiality of Information) or Article 16.3 (Security Exceptions) of Chapter 16 (General Provisions and Exceptions).
5. Any protected information that is submitted to the tribunal shall be protected from disclosure in accordance with the following procedures:
(a) Neither the disputing parties nor the tribunal shall disclose to the non- disputing Party or to the public any protected information where the disputing party that provided the information clearly designates it in accordance with subparagraph (b);
(b) Any disputing party claiming that certain information constitutes protected information shall clearly designate the information at the time it is submitted to the tribunal;
(c) A disputing party shall, within 7 days after it submits a document containing information claimed to be protected information, submit a redacted version of the document that does not contain the information. Only the redacted version may be provided to the non-disputing Party and made public in accordance with paragraphs 1 and 2.
Article 9.18. Governing Law
1. Subject to paragraphs 2 and 3, when a claim is submitted under Article 9.12, the tribunal shall decide the issues in dispute in accordance with this Agreement as interpreted in accordance with customary rules of treaty interpretation of public international law, as codified in the Vienna Convention on the Law of Treaties done at Vienna on 23 May 1969. Where relevant and appropriate, the tribunal shall also take into consideration the law of the respondent.
2. A joint decision of the Parties, acting through the Committee on Investment, declaring their interpretation of a provision of this Agreement shall be binding on a tribunal of any ongoing or subsequent dispute, and any decision or award issued by such a tribunal must be consistent with that joint decision.
3. A decision between the respondent and the non-disputing Party that a measure is of the kind described in Article 9.11.4 shall be binding on a tribunal and any decision or award issued by a tribunal must be consistent with that decision.