6. The respondent does not preclude defence, as a counterclaim or countervailing duty or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
7. The Tribunal may recommend an interim measure of protection to preserve the rights of a combatant or with the aim of ensuring the full exercise of the competence of the Tribunal, including an order to preserve evidence in the possession or control of combatant or a party to protect the Tribunal jurisdiction. The Tribunal may not order attachment or prevent the application of a measure alleged to be a breach referred to in article 12.16. 8. In any arbitration conducted pursuant to this section, at the request of either of the parties - the court before making a decision or award on liability, transmit its proposed decision or award to the parties to the conflict and the Party of the claimant. Within sixty (60) days after such proposed decision or award warring parties may submit written comments to the Tribunal concerning any aspect of its proposed decision or award. The Tribunal shall consider any such comments and issue its decision or award not later than 45
Five (45) days following the expiry of the period of sixty (60) days to submit comments. This paragraph shall not apply in any arbitration in which an available appeal under paragraph 9.
9. If the parties shall enter into force on a multilateral treaty other than that establishes an appellate body for purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment arrangements to hear investment disputes, the Parties shall endeavour to reach an agreement that would make such appellate body review awards rendered under article 12.27 in arbitrations that have been initiated after the Multilateral Agreement enters into force between the parties.
1. Subject to paragraphs 2 and 4, the respondent after receiving the following documents, the Party shall make available to the public not combatants and:
(a) The notice of intent referred to in article 12.16.2;
(b) The notice of arbitration referred to in article 12.16.5;
(c) Written pleadings, demand and explanatory notes to the Tribunal submitted by a Party combatant and any written communication submitted in accordance with article and article 12.21 12.26;
(d) Awards and orders or decisions of the Tribunal; and
(e) The minutes or transcripts of hearings of the Tribunal, when available.
2. The Tribunal shall conduct hearings open to the public and shall, in consultation with the parties - the appropriate logistical arrangements. However, any Party that intends to use in a litigant information designated as protected information in a hearing shall so inform the Tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Nothing in this section requires a respondent to provide or furnish or protected information to allow access to information that it may withhold in accordance with article 18.2 Essential (Security) and Article 18.4 (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 warring parties nor the Tribunal shall disclose to the Party of the claimant or any information to the public
Protected when the opposing side, provided that the information clearly designates it in accordance with subparagraph (b);
(b) Any litigant party claiming that certain information constitutes protected information shall clearly designate at the time it is submitted to the Tribunal;
(c) A combatant Party shall, at the same time that it submits a document containing information claimed as protected information, submit a redacted version of the document that does not contain the information protected. Only the redacted version shall be provided to the parties involved and shall be made public in accordance with paragraph 1; and
(d) The Tribunal shall decide any objection regarding the designation of Information claimed as protected information. If the Tribunal determines that such information was not properly designated litigants, the party submitting the information may:
(i) Withdraw all or part of its submission containing such information; or
(ii) Agree to resubmit with complete and redacted documents corrected designations in accordance with the Tribunal determination and subparagraph (c).
In any case, the other party combatant shall, where necessary, resubmit to complete and redacted documents which omitted information withdrawn in accordance with subparagraph (d) (i) by the Party that submitted the first information litigants or redesignar information consistent with the designation under subparagraph (d) (ii) of the Party that submitted the first information litigants.
5. Nothing in this section requires a respondent to deny public access to information, according to their national legislation, should be disclosed.
1. Subject to paragraph 2, when a claim is submitted under article 12.16.1 12.16.1 (a) or (b), the Tribunal shall decide the issues in dispute in accordance with this Treaty and the rules of international law and many, where applicable, with the national legislation of the Party in whose territory the investment was made.
2. A decision of the Commission declaring its interpretation of a provision of this Treaty, pursuant to article 17.1.3 (c) (the Free Trade Commission) shall be binding on a tribunal established under this section and any decision or award issued by a tribunal must be consistent with that decision.
1. If the respondent raise as a defence that the measure is alleged to be a breach within the scope of Annex I or Annex II, at the request of the defendant, the Tribunal shall request the interpretation of the Commission on the issue. Within sixty (60) days of the delivery of the request, the Commission shall submit in writing to any decision declaring the Tribunal in its interpretation under article 17.1.3 (c) (the Free Trade Commission).
2. A decision issued by the Commission under paragraph 1 shall be binding on the Tribunal and any decision or award issued by the Tribunal must be consistent with that decision. If the Commission fails to issue such a decision within sixty (60) days, the Tribunal shall decide on the matter.
1225:. Expert Reports
Without prejudice to the appointment of other kinds of experts where this is authorized by the applicable arbitration rules, the Tribunal, at the request of a combatant or party on its own initiative unless the parties to the conflict do not accept, may appoint one or more experts to inform in writing on any factual issue concerning environmental affairs, health, safety or other scientific matters raised by a Party in a proceeding litigants, in accordance with the terms and conditions to be agreed upon between the warring parties.
1. In cases in which they have been submitted to arbitration two or more claims separately in accordance with article 12.16.1, and the claims raised in a common question of fact or law and arise out of the same events or circumstances litigants, any Party may seek a consolidation order in accordance with the agreement of all parties involved in respect of which the order is sought or cumulation in accordance with the terms of paragraphs 2 to 10.
2. The opposing side seeking a consolidation order under this article shall deliver a written request to the Secretary-General and to all the warring parties against which the order is sought cumulation and in the request shall specify:
(a) The names and addresses of all the warring parties against which the order is sought cumulation;
(b) The nature of the order sought and cumulation;
(c) The rationale underlying the request.
3. Unless the Secretary-General determines within thirty (30) days after receiving a request under paragraph 2 that it is manifestly unfounded, a Tribunal shall be established under this article.
4. Unless all the warring parties against which the order is sought cumulation agree otherwise, the Tribunal established under this article shall be by three (3) arbitrators.
(a) One arbitrator appointed by agreement of the claimants;
(b) One arbitrator appointed by the respondent; and
(c) The presiding arbitrator appointed by the Secretary-General who shall not be a national of any of the Parties.
5. If within sixty (60) days of receipt by the Secretary-General of the request made in accordance with paragraph 2, the respondent or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, at the request of any party litigants against which the order is sought cumulation, shall 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 is satisfied that have been submitted to arbitration two or more claims under article 12.16.1, which pose a question of fact or law in common and arising out of the same events or circumstances, the Tribunal may in the interest of fair and efficient resolution of the claims and after hearing the parties - by order:
(a) Assume jurisdiction to hear and determine together on all or part of the claims;
(b) Assume jurisdiction and hear and determine one or more of the claims the determination of which it believes would assist in the resolution of the others; or
(c) To instruct a tribunal established under article 12.20 assume jurisdiction to hear and determine jointly, on all or part of the claims, provided that:
(i) The Tribunal, at the request of any claimant previously not opposing side before that Court recover, with its original Members except that the arbitrator shall be appointed for the claimants pursuant to subparagraph 4 (a) and 5; and
(ii) That Tribunal shall decide whether any prior hearing repeat.
7. Where a tribunal has been established under this article, that a claimant has submitted a claim to arbitration under article 12.16.1, and whose name is not mentioned in a request made under paragraph 2 may make a written request to the Tribunal that it be included in any applicant order is made under paragraph 6 and in the request shall specify:
(a) The name and address of the claimant;
(b) The nature of the order sought; and
(c) The reasons for the request.
The claimant shall deliver a copy of its request to the Secretary-General and to the warring parties included in the request pursuant to paragraph 2.
8. A tribunal established under this article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this section.
9. A tribunal established under article 12.20 shall not have jurisdiction to decide a claim. or a part of a claim. over which has assumed jurisdiction instructed or a tribunal established under this article.
10. At the request of a party litigants, a tribunal established under this article may, pending its decision under paragraph 6, provided that the proceedings of a tribunal established under article 12.20 be postponed, unless the latter Tribunal already has adjourned its proceedings.
1. Where a tribunal for a final award unfavourable to the defendant, the Tribunal may award separately or in combination, only:
(a) Monetary damages and interest as appropriate; and
(b) Restitution of property in which case the award shall provide that the respondent may pay pecuniary damage, plus interest that originate in lieu of restitution.
The Tribunal may also award costs and attorney fees in accordance with this section and the applicable arbitration rules.
2. Subject to paragraph 1, when a claim is submitted to arbitration under article 12.16.1 (b):
(a) The award for the restitution of property that shall provide restitution be made to the enterprise;
(b) The award granted monetary damages and interest, shall provide that the sum be paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any right that any person has in the relief under applicable domestic law.
3. A tribunal is not authorized to award punitive damages with.
4. For greater certainty, a Tribunal shall not be competent to rule on the Legality of the measure in respect of national legislation.
1228:. Finality and Enforcement of an Award
1. For greater certainty, the award made by a tribunal shall have no binding force except for opposing parties and only in respect of the particular case.
2. Subject to paragraph 3 and the review procedure applicable for an interim award, the opposing side abide by and comply with an award without delay.
3. The opposing side may not seek enforcement of a final award until:
(a) In the case of a final award made under the ICSID Convention:
(i) Within one hundred and twenty (120) days from the date the award was rendered litigant and no party has requested revision or annulment of the same; or
(ii) Have concluded the revision or annulment proceedings; and
(b) In the case of a final award made under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules or the Rules with achieving selected in Article 12.16.4
(d)
(i) Within ninety (90) days from the date the award was rendered and no party litigant has commenced a proceeding to set aside or revised, annul it; or
(ii) A court has dismissed or allowed an application for revision or annulment of the award, revocation and this decision cannot be appealed.
4. Each Party shall provide for the enforcement of an award in its territory.
5. If the respondent fails to abide by or comply with a final award, on delivery of a request by the Party of the claimant shall establish a Panel under Article 15.5 (establishment of a panel). The requesting party may seek in such proceedings:
(a) A determination that the failure or refusal of the terms of the final award is inconsistent with the obligations of this Treaty; and
(b) In accordance with the procedures laid down in article (15.9) panel report, a recommendation that abide by the respondent or comply with the final award.
6. A Party may resort to litigants enforcement of an arbitration award under the ICSID Convention or the New York Convention or the Inter-American Convention regardless of whether or not commenced the procedures referred to in paragraph 5.
7. For the purposes of article I of the New York Convention and article I of the Inter-American Convention shall be considered a claim that is submitted to arbitration under this section arises out of a commercial relationship or transaction.
1229:. Service of Documents
Delivery of notice and other documents on a party shall be done in the place designated by it in Annex 12.15.
Section C. Definitions
1230:. Definitions
For the purposes of this chapter:
ICSID means the International Centre for Settlement of Investment Disputes;
UNCITRAL means the United Nations Commission on International Trade Law;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, held in Panama; 30 January 1975
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington on 18 March 1965;
Means the respondent party that is a party to a dispute concerning an investment;
Claimant means an investor of a Party that is a party to an investment dispute with the other party;
Enterprise means an enterprise as defined in article 5 (definitions of general application), and a branch of an enterprise;
Enterprise of a party constituted means an enterprise or organized under the law of a Party and a branch located in the territory of a party and carrying out substantial business activities in that Territory;
Protected information means:
(a) Confidential business information; or
(b) Information that is privileged or otherwise protected from disclosure is, according to the national legislation of the Party;
Investment means every asset owned or controlled by an investor of the same, directly or indirectly, that has the characteristics of an investment, including characteristics such as the commitment of capital or other resources, the expectation of gain or profit or the assumption of risk. An investment may take forms that include:
(a) An enterprise;
(b) Actions, capital and other forms of equity participation in an enterprise;
(c) Debt instruments of an enterprise:
(i) Where the enterprise is an affiliate of the investor; or
(ii) Where the original maturity of the debt instrument is at least three (3) years;
But does not include an obligation of a party or a state enterprise, regardless of original maturity date;
(d) A loan to an enterprise:
(i) Where the enterprise is an affiliate of the investor; or
(ii) Where the original maturity of the loan is at least three (3) years;
But does not include a loan to a party or a state enterprise, regardless of original maturity date;
(e) Futures, options and other derivatives;
(f) Turnkey or construction, management, production of participation in the granting of earnings and other similar contracts;
(g) Intellectual Property Rights;
(h) Licences, authorizations, permits and similar rights conferred pursuant to domestic law; and 11
(i) Other property rights tangible or intangible, movable or immovable property and related property rights, such as leases, mortgages, liens, guarantees and pledges
But investment does not include:
(j) An order or judgment in judicial or administrative proceedings;
(k) Loans granted by a party to the other party;
(l) Public debt and debt operations of public institutions;
(m) Monetary claims derived exclusively from:
(i) Commercial contracts for the sale of goods or services by a national or enterprise in the territory of a party to a national or enterprise in the territory of the other party; or
The fact that 11 authorisation, a licence or permit a similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristics of an investment depends such factors as the nature and extent of the Rights of the holder in accordance with the national legislation of the party. Between licences, authorizations, permits or similar instruments that do not have the characteristics of an investment are those that do not create rights protected under domestic law. For greater certainty, this is without prejudice to an asset that associated with such authorisation, licence, permit or similar instrument has the characteristics of an investment.
(ii) The granting of credit in connection with a commercial transaction, such as trade financing, except a loan covered by the provisions of subparagraph (d); or
(n) Any other monetary claim that does not involve the kinds of interests set out in subparagraphs (a) to (i),
A change in the manner in which assets have been invested or reinvested does not affect their status of investment under this treaty, provided that such change falls within the definition of this article and shall be conducted in accordance with the national legislation of the Party in whose territory the investment has been admitted;
Covered investment means a Party with respect to an investment in its territory of an investor of the other party existing on the date of Entry into Force of this Treaty, as well as to investments made or acquired or expanded thereafter;
An investor of a country that is not a party means a Party with respect to an investor that seeks to perform through concrete actions 12, which is making or has made an investment in the territory of that Party that is not an investor of a party;
An investor of a Party means a Party or a state enterprise thereof, or national or a company of a Party that seeks to perform through concrete actions 13, is making or has made an investment in the territory of the other party; whereas, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the state of his or her dominant and effective nationality;
Measure includes any law, regulation, procedural requirement, act or practice;
Currency means a freely use "free" currency as determined by the International Monetary Fund under the Articles of Agreement of the International Monetary Fund;
National means a natural person who has the nationality of a Party according to country-specific definitions (Annex 5);
Disputing party means either the claimant or the respondent;
Parties means the claimant and the respondent;
A non-disputing party means a person of a party or a person of a country that is not a party with a significant presence in the territory of a Party that is not a party to an investment dispute under section B;
UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations International Law Commission on International Trade Law adopted by the United Nations General Assembly on 15 December 1976;
ICSID Additional Facility Rules means the Rules of the additional facility for the administration of proceedings by ICSID of the Secretariat;
Secretary-General means the Secretary-General of ICSID; and
A tribunal means an arbitration tribunal established under article 12.16 or 12.26.
12 means an investor that seeks to make an investment when carried out and essential actions necessary for carrying out the said investment, such as the provision of funds to constitute the capital of the company, permits and licences, among others.
13 means an investor that seeks to make an investment when carried out and essential actions necessary for carrying out the said investment, such as the provision of funds to constitute the capital of the company, permits and licences, among others.
The Parties confirm their mutual understanding that customary international law in general and as is specifically mentioned in Article 12.4, is of a general practice and bottleoperative States, followed by them in the context of a legal obligation. With respect to Article 12.4, the minimum standard of treatment of aliens by customary international law refers to all customary international law principles that protect the economic rights and interests of aliens.
The Parties confirm their mutual understanding that:
(a) An action or series of actions by a party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or with the essential attributes or powers of the domain of an investment;
(b) Article 12.10 addresses two situations. The first is where an expropriation, direct investment is expropriated or nationalized otherwise directly through formal transfer of title or the right of ownership;
(c) The second situation addressed by Article 12.10 is indirect expropriation measure or, where a series of measures of a Party has an effect equivalent to expropriation without direct formal transfer of title or the right of ownership;
(d) The determination of whether a measure or series of measures of a Party in a specific fact situation, constitutes an indirect expropriation requires a case by case factual investigation consider, among other factors:
(i) The economic impact of the measure or series of measures of a party, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment alone does not establish that an indirect expropriation has occurred;
(ii) The extent to which the measure or series of measures of a Party interferes with clear and reasonable expectations of investment; and
(iii) The character of the measure or series of measures of a party;
(e) Except in exceptional circumstances, such as when a measure or series of measures are disproportionate in light of its purpose in such a way that it cannot be reasonably that were adopted and applied in good faith, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and environment do not constitute an indirect expropriation. 14
14 for greater certainty, the list of legitimate public welfare objectives in this subparagraph is not exhaustive.
"delivery of documents on a Party under section B (investor - State dispute settlement)