6. Nothing in paragraph 5 shall be construed to prevent a party from conditioning the receipt of an advantage or continued receipt of an advantage in connection with an investment in its territory by an investor of a party or of a country that is not a Party to compliance with a requirement to locate production provides services, train or employ workers, construct or expand particular facilities or carry out research and development in its territory.
7. Paragraphs 1 and 5 shall not apply to any requirement other than the commitment, obligation or requirements set out in those paragraphs.
8. The provisions of:
6 for greater certainty, the reference to the WTO TRIPS Agreement in this paragraph includes as laid down in the Protocol amending the TRIPS Agreement done at Geneva on 6 December 2005.
(a) Subparagraphs 1 (a), (b) and (c), and 5 (a) and (b) do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs; and
(b) Subparagraphs (a) and (b) do not apply to requirements imposed by an importing party relating to the content of goods necessary to qualify for preferential tariffs or fees.
9. Provided that such measures are not applied in an arbitrary or unjustifiable and provided that such measures do not constitute a disguised restriction on international trade or investment, nothing in subparagraphs 1 (b), (c), (f) and 5 (a) and (b) shall be construed to prevent a Party from adopting or maintaining measures including environmental nature:
(a) Necessary to secure compliance with laws and regulations that are not inconsistent with the provisions of this Treaty;
(b) Necessary to protect human life or health, animal or plant; or
(c) Related to the conservation of exhaustible natural living resources whether or not.
10. Subparagraphs 1 (b), (c), (f) and (g), and 5 (a) and (b) do not apply to government procurement.
11. This article does not preclude enforcement of any commitment, obligation or requirement between private parties, when a party did not impose or require the commitment, obligation or requirement.
1. Articles 12.2, 12.3, 12.5 and 12.6 shall not apply to:
(a) Any Non-Conforming Measure existing Non-Conforming Measure maintained by or at a party:
(i) The central or regional level of Government as set out by that party in its schedule to annex I; or
(ii) A local level of government;
(b) The continuation or prompt renewal of any Non-Conforming Measure referred to in subparagraph (a); or
(c) The modification of any Non-Conforming Measure referred to in subparagraph (a), provided that the amendment does not decrease the level of
Conformity of the measure as currently in force immediately before the amendment with Articles 12.2, 12.3, 12.5 and 12.6.
2. Articles 12.2, 12.3, 12.5 and 12.6 shall not apply to any measure that adopts or maintains a Party with respect to the sectors or sub-sectors or activities as set out in annex II to its schedule.
3. Articles 12.2 and 12.3, do not apply to any measure adopted under the exceptions under articles 3, 4 and 5 of the WTO TRIPS Agreement.
4. Neither party may require under any measure adopted after the date of Entry into Force of covered by this Agreement and its schedule to annex II, to an investor of the other party, by reason of their nationality, to sell or otherwise dispose of an existing investment at the time the measure copper.
5. The provisions of Articles 12.2, 12.3 and 12.5 shall not apply to:
(a) Subsidies or grants provided by a party, including loans and government-supported guarantees or insurance;
(b) Government procurement.
1. The Parties recognize that it is inappropriate to encourage investment by weakening or reducing the protections provided for in its domestic environmental laws. Accordingly, each Party shall endeavour to ensure that not extinguish or repeal or offer to waive or derogate from such laws in a manner that reduces or weakens the protections afforded in those laws as an encouragement for the establishment, acquisition, expansion or retention of an investment in its territory.
2. Nothing in this chapter shall be construed as preventing a party from maintaining or enforcing any measure that otherwise consistent with this chapter considers it appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.
1. Without prejudice to article 12.7.5 (a), each Party shall accord to investors of the other party and to covered investments, non-discriminatory treatment with respect to any measure that it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife.
2. Paragraph 1 does not apply to existing measures relating to subsidies or grants that would be inconsistent with Article 12.2, with the exception of article 12.7.5 (a).
7.
7
1. Neither party will nationalize or expropriated a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation), except:
Or
(a) In case of utility collective social interest or public interest, 8 in the case of Guatemala; and
(b) In case of need public or national security, in the case of Peru
In accordance with due process, in a non-discriminatory manner and on payment of prompt, effective and adequate compensation.
2. The compensation shall be paid without delay and shall be fully realized and freely transferable. Such compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (date of expropriation), and shall not reflect any change in value occurring because the intended expropriation had become known earlier date of expropriation.
3. If the fair market value is denominated in a free use of currency, the compensation referred to in paragraph 1 shall be no 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 until the date of payment.
4. If the fair market value is denominated in a currency that is not freely use, the compensation referred to in paragraph 1 - converted into the currency of payment at the market exchange rate prevailing on the date of payment shall be no less than: -
(a) The fair market value on the date of expropriation, in a currency made use of free, at the market exchange rate prevailing on that date; plus
(b) At a commercially reasonable interest rate for that currency free use, accrued from the date of expropriation until the date of payment.
7 for greater certainty, Article 12.10 shall be interpreted in accordance with annex 12.10 on an explanation of the indirect expropriation.
8 for greater certainty, these terms relate to a term of Customary International Law.
5. The Investor affected shall have a right, under the domestic law of the party making the expropriation, to a review by a judicial or other independent authority of that Party and to the valuation of its investment in accordance with the principles set out in this article.
6. The provisions of this article shall not apply to the issuance of Complusory Licenses granted in relation to Intellectual Property Rights, limitation or revocation, or creation of Intellectual Property Rights extent that such issuance, revocation, limitation or creation is consistent with Chapter 9 (intellectual property).
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) Contributions of capital;
(b) Profits, dividends, interests, capital gains, payment of royalties, fees, management technical assistance and other fees; returns and other amounts in kind derived from the investment;
(c) Products derived from the sale or liquidation of all or part of the covered investment;
(d) Payments made under a contract entered into by the investor or investment covered the including a loan agreement;
(e) Payments made pursuant to paragraph 1 of articles 12.9 and 12.10; and
(f) Payments arising out of the application of section B.
2. Each Party shall permit transfers relating to a covered investment to be made in a currency of free use at the rate of exchange prevailing on the date of transfer.
3. Without prejudice to paragraphs 1 and 2, a Party may prevent or delay a transfer of money or in kind through the equitable and non-discriminatory and in good faith to its laws relating to:
(a) Bankruptcy or insolvency or the protection of the rights of creditors; 9
9 for greater certainty, creditors rights include, inter alia, the rights arising from social security and public or compulsory retirement savings schemes.
(b) Issuance, trade or operations of securities and futures, options or derivatives;
(c) Criminal offences;
(d) Financial reports or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; and
(e) To ensure the enforcement of judgements or awards in judicial or administrative proceedings.
1212:. Denial of Benefits
A Party may deny the benefits of this Treaty to:
(a) An investor of the other Party that is an enterprise of investments and other such Party to that of investor if persons of a country that is not a party owns or controls the enterprise and the latter has no substantial business activities in the territory of the other party; or
(b) An investor of the other Party that is an enterprise of investments and other such Party to that of investor if the enterprise has no substantial business activities in the territory of the other party and persons of the party denying owns or controls the enterprise.
1213:.
"special formalities and information requirements
1. Nothing in article 12.2 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities related to a covered investment, such as a requirement that investors be residents of the party or that covered investments be constituted under the laws or regulations of the Party provided that such formalities do not materially impair the protections afforded by a Party to investors of covered investments and the other party pursuant to this Treaty.
2. Notwithstanding articles 12.2 and 12.3, a Party may require an investor of the other party or its covered investment to provide information concerning that investment or informational solely for statistical purposes. The such Party shall protect any confidential information that is from that disclosure would prejudice the competitive position of the covered the investor or investment. Nothing in this paragraph shall be construed as preventing a party from obtaining or disclosing information in connection with the good faith and equitable application of its domestic legislation.
1. If a party or a designated agency of a party makes a payment to any of its investors under a guarantee or a contract of insurance or other form of compensation granted in respect of an investment of an investor of that Party, the other party shall recognise the subrogation or transfer of any right or claim of such investment. The subrogation 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 a Party has made a payment to an investor of that Party and has taken over rights and claims of the investor, the investor may not, unless it has been authorized to act on behalf of the party or the designated agency of the party which has made a payment to those rights and claims against the other party.
Section B. Investor - State Dispute Settlement
1215:. Consultation and Negotiation
1. In the event of a dispute concerning an investment, opposing parties should first seek to resolve the dispute through consultation and negotiation, which may include the use of non-binding third-party. The procedure for consultations and negotiations shall begin with the notice sent to the office designated in annex 12.15. Such request shall be sent to the respondent before the notice of intent referred to in article 12.16, and shall include the information specified in subparagraphs 12.16.2 (a), (b) and (c).
2. The consultations shall take place during a period of at least six (6) months and may include face-to-face encounters in the capital of the respondent.
1216:.
"submission of a claim to arbitration
1. The minimum time period referred to in article 12.15.2, in the event that a Party considers that litigants cannot be resolved a dispute relating to an investment by consultation and negotiation:
(a) The applicant, on their own account, may submit to arbitration a claim alleging:
(i) That the respondent has breached an obligation under section A. other than an obligation under Article 12.8; and
(ii) That the claimant has incurred loss or damage by virtue of such violation or as a result of the latter.
(b) The applicant, on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls may directly or indirectly, in accordance with this section, to submit a claim alleging Arbitration:
(i) That the respondent has breached an obligation under section A. other than an obligation under Article 12.8; and
(ii) That the enterprise has incurred loss or damage by virtue of such violation or as a result of the latter.
2. At least ninety (90) days before submitting any claim to arbitration under this section, the claimant to the respondent shall deliver 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, in the event that the claim is submitted on behalf of an enterprise), the name, address and place of incorporation of the enterprise;
(b) Each claim for the provision of a section which is alleged to have been breached and any other relevant provisions;
(c) The issues of fact and law for each claim, including the measures at issue; and
(d) The relief sought and the approximate amount of damages claimed.
3. The applicant must also deliver, together with its notice of intent, evidence establishing that it is an investor of the other party.
4. Provided that at least six (6) months since the events giving rise to the claim, and provided that the applicant has complied with the terms and conditions set out in article 12.18, the claimant may submit a claim referred to in paragraph 1:
(a) In accordance with the Convention and the ICSID Rules of Procedure for ICSID arbitration proceedings provided that both the respondent and the Party of the claimant are parties to the ICSID Convention;
(b) In accordance with the ICSID Additional Facility Rules, provided that the respondent or the party of the claimant are parties to the ICSID Convention;
(c) In accordance with the UNCITRAL Arbitration Rules; or
(d) If the parties involved so agree, to an ad hoc arbitral institution or to arbitration under any other institution or any other arbitration rules.
5. A claim shall be deemed submitted to arbitration under this section when the notice of or request for arbitration (Notice of Arbitration): the applicant
(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 18 of the UNCITRAL Arbitration Rules is received by the respondent; or
(d) Referred to arbitration under any other institution or any arbitration rules selected under subparagraph 4 (d) is received by the respondent.
If, subsequent to the submission of a claim to arbitration a additional claim under the same arbitral proceedings, it shall be deemed submitted to arbitration under this section on the date of its receipt and under the applicable arbitration rules shall apply the limitation period established in article 12.18.
6. The arbitration rules applicable under paragraph 4, and which are in effect on the date the claim or claims that have been submitted to arbitration under this section shall govern the arbitration except to the extent as may be amended or supplemented by this Treaty.
7. The responsibility among warring parties on the assumption expenses, including, where appropriate, the costs in accordance with article 12.21 arising from their participation in the arbitration shall be established:
(a) The arbitral institution to which it has submitted a claim to arbitration in accordance with its rules of procedure; or
(b) According to the rules of procedure agreed upon by the parties to the conflict, where applicable.
8. The claimant shall provide with the notice of arbitration referred to in paragraph 5:
(a) The name of the arbitrator appointed by the respondent; or
(b) The applicant's written consent for the Secretary-General to appoint that arbitrator.
1217:. 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 Treaty.
2. The consent under paragraph 1 and the submission of a 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 for written consent of the Parties to the dispute;
(b) Article II of the New York Convention for an agreement in writing; and
(c) Article I of the Inter-American Convention, which requires an agreement.
1218:. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this section if more than three (3) years from the date on which the claimant knew or should have had knowledge of the alleged breach under article 12.16.1 and knowledge that the claimant (for claims brought under article 12.16.1 (a)) or the enterprise (for claims brought under article 12.16.1 (b) has suffered losses or damages.
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 laid down in this Treaty; and
(b) The notice of arbitration referred to in article 12.16.5 accompanied is:
(i) For claims submitted to arbitration under article 12.16.1 (a), by the claimant written waiver; and the written waiver of the claimant and the enterprise written waivers, if the claim is for loss or damage to their participation in an enterprise of the respondent that is a juridical person that the investor owns or controls directly or indirectly, at the time of the notification; and
(ii) For claims submitted to arbitration under article 12.16.1 (b), of written waivers of the claimant and the enterprise;
Any right to initiate before any tribunal or administrative court under the law of either party or any other dispute settlement procedures proceedings with respect to any measure alleged to be a breach referred to in article 12.16.
3. Without prejudice to subparagraph 2 (b), the claimant (for claims brought under article 12.16.1. (a)) and the claimant or the enterprise (for claims brought under article 12.16.1 (b)) may initiate or continue an interim measure, that does not involve the payment of monetary damages before a judicial or administrative tribunal of the defendant, provided that the action is brought for the sole purpose of preserving its rights and interests of the claimant or the Enterprise until the processing of 10 arbitration.
4. The waiver of a company established in subparagraph 2 (b) (i) or 2 (b) (ii) shall not be required only when a claim that the respondent deprived the applicant of control of the enterprise.
5. No claim may be submitted to arbitration under this section when the claimant (for claims brought under article 12.16.1. (a)) and the claimant or the enterprise (for claims brought under article 12.16.1 (b)) has previously submitted the same alleged breach before a judicial or administrative tribunal of the defendant, or to any other binding dispute settlement procedure.
6. For greater certainty, if the applicant elects to submit a claim described under this section to a judicial or administrative tribunal of the defendant or any other binding dispute settlement mechanism, that election shall be definitive and the claimant may not submit the same claim under this section.
7. A breach of any of the conditions precedent described in paragraphs 1 to 6 shall quash the consent given by the parties in article 12.17.
1. Where an investor submits a claim to arbitration under this section and the respondent invokes article 12.11.3 as a defense, or article 18.5 (measures to safeguard the balance of payments), the Tribunal established in accordance with article 12.20 shall, at the request of a respondent a written report of the Parties or by each party on the issue of whether the provisions indicated is a valid defence to
10 in an interim measure, including the measures to preserve evidence and property pending the processing of the claim submitted to arbitration, a judicial or administrative tribunal of the defendant in a dispute submitted to arbitration under section B apply national legislation of that Party.
The claim of the investor and the extent. The Tribunal may not proceed pending receipt of reports or the agreement in this paragraph, except as provided in paragraph 2.
2. If within a period of ninety (90) days of the request, the Tribunal has not received or reports, the tribunal may proceed to decide the matter.
1. Unless the parties agree otherwise, the Tribunal shall be composed of three (3) arbitrators, one (1) arbitrator appointed by each of the warring parties and the third, who shall be the chairman shall be appointed by agreement of the parties involved.
2. The Secretary-General shall serve as appointing authority for arbitrators arbitration procedures in accordance with this section.
3. Arbitrators shall:
(a) Have experience or expertise in International Law, international investment rules, or in the settlement of disputes arising under international investment agreements;
(b) Not rely on any of the parties or of the applicant, inked or receive instructions from any of them.
4. Where a tribunal established under article different 12.26 shall not engage in a period of ninety (90) days from the date that the claim is submitted to arbitration under this section, the Secretary-General, upon request of either party, shall, after consultation with the same, the arbitrator or arbitrators not yet appointed. Unless the parties agree otherwise, the President of the Tribunal shall not be a national of any of 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 an objection to an arbitrator on grounds that are not nationals of:
(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) The claimant referred to in article 12.16.1 (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's consent in writing to the appointment of each member of the Tribunal; and
(c) The claimant referred to in article 12.16.1 (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 member of the Tribunal.
1. The parties may agree on the legal place of any arbitration under the applicable arbitral rules under article 12.16.4. In the absence of agreement between the warring parties, the tribunal shall determine the place in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
2. The Tribunal shall have the authority to accept and consider amicus curiae written submissions from a person or entity that is not a party litigants. Any Party not combatant wish to make written submissions to a tribunal (the applicant) may apply for leave from the Tribunal in accordance with annex 12.21.
3. Without prejudice to the power of the Tribunal to hear other objections as a preliminary issues, such as an objection that the dispute is not within the competence of the Tribunal, a Tribunal shall hear and decide any question as a preliminary objection by the respondent that as a matter of law, a claim is not submitted a claim for which an award in favour of could be issued to the applicant in accordance with article 12.27.
(a) Such objection shall be submitted to the Tribunal as soon as possible after the Constitution of the Tribunal, and in no event later than the tribunal fixes the date for the respondent to submit its response to the demand (or in the case of an amendment to the notice of arbitration referred to in article 12.16.5, fixes the date the Tribunal for the respondent to submit its response to the amendment).
(b) Upon receipt of an objection under this paragraph, the Tribunal shall suspend any proceedings on the merits, shall establish a schedule for the objection considering consistent with any schedule it has established for considering preliminary question and any other issue a decision or award on the objection, stating the grounds.
(c) In deciding an objection under this paragraph, the Tribunal shall assume to certain factual arguments submitted by the claimant in support of any claim in the notice of arbitration (or any amendment thereof) and in disputes brought under the UNCITRAL Arbitration Rules;
Notice of claim referred to in article 18 of the UNCITRAL Arbitration Rules. The Tribunal may also consider any relevant fact that is not under dispute.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because it has or has not formulated an objection under this paragraph or make use of the expedited procedure set out in paragraph 4.
4. In the event that the respondent so requests within forty five (45) days from date of the Constitution of the Tribunal, the Tribunal shall decide on an expedited basis an objection under paragraph 3 and any objection that the dispute is not within the competence of the Tribunal. The Tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection, stating the grounds thereof, not later than one hundred and fifty (150) days after the date of the request. However, if a Party requests a litigant, the Tribunal hearing may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, the Tribunal may, demonstrating a special reason, delay issuing its decision or award by an additional brief period which may not exceed thirty (30) days.
5. If the Tribunal decides on the objection of the respondent pursuant to paragraphs 3 or 4, may, if warranted, grant the opposing side winning reasonable costs and attorneys fees incurred in submitting or opposing the objection. In determining whether such an award is justified, the tribunal shall determine whether the claim of the claimant or the objection of the respondent was frivolous and shall accord to the warring parties a reasonable opportunity to present their comments.