1. Where a disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex I or Annex II, on request of the disputing Party, the Tribunal shall request the interpretation of the Commission on the issue. The Commission, within 60 days of delivery of the request, shall submit in writing its interpretation to the Tribunal.
2. Further to paragraph 3 of Article 837, a Commission interpretation submitted under paragraph 1 shall be binding on the Tribunal. If the Commission fails to submit an interpretation within 60 days, the Tribunal shall decide the issue.
Article 839. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal, at the request of a disputing party, or on its own initiative unless the disputing parties disapprove, may appoint experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party, subject to such terms and conditions as the disputing parties may agree.
Article 840. Interim Measures of Protection
A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal's jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 819 or 820. For purposes of this paragraph, an order includes a recommendation.
Article 841. Final Award
1. Where a Tribunal makes a final award against the disputing Party, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest;
(b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution. The Tribunal may also award costs in accordance with the applicable arbitration rules.
2. Subject to paragraph 1, where a claim is made under paragraph 1 of Article 820:
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise;
(b) an award of restitution of property shall provide that restitution be made to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic law.
3. A Tribunal may not order a disputing Party to pay punitive damages.
Article 842. Finality and Enforcement of an Award
1. An award made by a Tribunal shall have no binding force except between the disputing parties and in respect of that particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award, or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its territory.
5. If the disputing Party fails to abide by or comply with a final award, the Commission, on delivery of a request by the Party of the disputing investor, shall establish an arbitral panel under Chapter Twenty-One (Dispute Settlement). The requesting Party may seek in such proceedings:
(a) a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and
(b) a recommendation that the disputing Party abide by or comply with the final award.
6. A disputing investor may seek enforcement of an arbitration award under the ICSID Convention, the New York Convention or the Inter-American Convention regardless of whether proceedings have been taken under paragraph 5.
7. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention and Article I of the Inter-American Convention.
Article 843. General
Time when a Claim is Submitted to Arbitration
1. A claim is submitted to arbitration under this Section when:
(a) the request for arbitration under paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) the notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General; or
(c) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the disputing Party.
Service of Documents
2. Delivery of notice and other documents on a Party shall be made to:
For Canada: Office of the Deputy Attorney General of Canada
For Peru: Ministerio de Economía y Finanzas
3. In an arbitration under this Section, a disputing Party shall not assert as a defence, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages. Receipts under Insurance or Guarantee Contracts
Article 844. Exclusions
The dispute settlement provisions of this Section and of Chapter Twenty-One (Disputes Settlement) shall not apply to the matters in Annex 844.1.
Article 845. Suspension of other Agreements
1. The Agreement Between Canada and the Republic of Peru for the Promotion and Protection of Investments done in Hanoi on 14 November 2006 (the "FIPA") shall be suspended from the date of entry into force of this Agreement and until such time as this Agreement is no longer in force.
2. Notwithstanding paragraph 1, the FIPA shall remain operative for a period of fifteen years after the entry into force of this Agreement for the purpose of any breach of the obligations of the FIPA that occurred before the entry into force of this Agreement. During this period the right of an investor of a Party to submit a claim to arbitration concerning such a breach shall be governed by the relevant provisions of the FIPA.
Article 846. Termination
Notwithstanding the termination of this Agreement pursuant to Article 2305 (Final Provisions - Termination), this Agreement shall remain in force for a period of fifteen years after the termination for the purpose of any breach of the obligations of this Chapter or subparagraph 3(a) of Article 1305 (Competition Policy, Monopolies and State Enterprises - Designated Monopolies) or paragraph 2 of Article 1306 (Competition Policy, Monopolies and State Enterprises - State Enterprises) that occurred prior to the termination of this Agreement. During this period the right of an investor of a Party to submit a claim to arbitration concerning such a breach shall be governed by the relevant provisions of this Agreement.
Section C. Definitions
Article 847. Definitions
For the purpose of this Chapter: affiliate: a person is an affiliate of another person when:
(a) directly or indirectly, it controls or is controlled by that other person; or
(b) it and the other person are both controlled, directly or indirectly, by the same person;
confidential information means business confidential information and information that is privileged or otherwise protected from disclosure;
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party existing on the date of entry into force of this Agreement, as well as investments made or acquired thereafter;
disputing investor means an investor that makes a claim under Section B;
disputing Party means a Party against which a claim is made under Section B;
disputing party means the disputing investor or the disputing Party;
enterprise means an enterprise as defined in Article 105 of Chapter One (Initial Provisions and General Definitions – Definitions of General Application) and a branch of any such entity;
enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there;
equity or debt securities include voting and non-voting shares, bonds, convertible debentures, stock options and warrants;
ICSID means the International Centre for Settlement of Investment Disputes;
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;
intellectual property rights means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders' rights;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, done at Panama on 30 January 1975;
investment means:
(a) an enterprise;
(b) an equity security of an enterprise;
(c) a debt security of an enterprise:
(i) where the enterprise is an affiliate of the investor, or
(ii) where the original maturity of the debt security is at least three years, but does not include a debt security, regardless of original maturity, of a state enterprise;
(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 years, but does not include a loan, regardless of original maturity, to a state enterprise;
(e) an interest in an enterprise that entitles the owner to share in income or profits of the enterprise;
(f) an interest in an enterprise that entitles the owner to share in the assets of that enterprise on dissolution, other than a debt security or a loan excluded from subparagraphs (c) or (d);
(g) real estate or other property, tangible or intangible, acquired in the expectation or used for the purpose of economic benefit or other business purposes; and
(h) interests arising from the commitment of capital or other resources in the territory of a Party to economic activity in such territory, such as under:
(i) contracts involving the presence of an investor's property in the territory of the Party, including turnkey or construction contracts, or concessions, or
(ii) contracts where remuneration depends substantially on the production, revenues or profits of an enterprise;
but investment does not mean,
(i) claims to money that arise solely from:
(i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party, or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing, other than a loan covered by subparagraph (d); and
(j) any other claims to money, that do not involve the kinds of interests set out in subparagraphs (a) through (h);
investment of an investor of a Party means an investment owned or controlled directly or indirectly by an investor of such Party;
investor of a Party (6) means:
(a) in the case of Canada:
(i) Canada or a state enterprise of Canada, or
(ii) a national or an enterprise of Canada,
that seeks to make, is making or has made an investment; a natural person who is a dual citizen shall be deemed to be exclusively a citizen of the State of his or her dominant and effective citizenship; and
(b) in the case of Peru:
(i) a state enterprise of Peru, or
(ii) a national or enterprise of Peru, that seeks to make, is making or has made an investment;
a natural person who is a dual citizen shall be deemed to be exclusively a citizen of the State of his or her dominant and effective citizenship;
investor of a non-Party (7) means an investor other than an investor of a Party, that seeks to make, is making, or has made an investment;
legal stability agreement means an agreement entered into by a national government authority of a Party and an investor of the other Party or a covered investment of such investor that accords certain benefits, including, but not limited to, a commitment to maintain the existing income tax regime during a specified time;
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;
non-disputing Party means a Party that is not a party to an investment dispute under Section B;
non-disputing party means a person of a Party, or a person of a non-Party with a significant presence in the territory of a Party, that is not a party to an investment dispute under Section B;
Secretary-General means the Secretary-General of ICSID;
taxation authorities means the following until notice in writing to the contrary is provided to the other Party:
(a) for Canada: the Assistant Deputy Minister, Tax Policy, of the Department of Finance Canada; and
(b) for Peru: the Vice Minister of Economy, the Ministry of Economy and Finance;
Tribunal means an arbitration tribunal established under Article 824 or Article 829; and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, approved by the United Nations General Assembly on 15 December 1976.
Annex 804.1. Most-Favoured-Nation Treatment
For greater clarity, treatment “with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments” referred to in paragraphs 1 and 2 of Article 804 does not encompass dispute resolution mechanisms, such as those in Section B, that are provided for in international treaties or trade agreements.
Annex 812.1. Indirect Expropriation
The Parties confirm their shared understanding that:
(a) Indirect expropriation results from a measure or series of measures of a Party that have an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
(b) The determination of whether a measure or series of measures of a Party constitutes an indirect expropriation requires a case-by-case, fact based inquiry that considers, among other factors:
(i) the economic impact of the measure or series of measures, 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 does not establish that an indirect expropriation has occurred,
(ii) the extent to which the measure or series of measures interferes with distinct, reasonable investment-backed expectations, and
(iii) the character of the measure or series of measures;
(c) Except in rare circumstances, such as when a measure or series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, nondiscriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.
Annex 823.1. Standard Waiver and Consent in Accordance with Article 823 of this Agreement (8)
In the interest of facilitating the filing of waivers as required by Article 824 of this Agreement, and to facilitate the orderly conduct of the dispute resolution procedures set out in Section B, the following standard waiver forms shall be used, depending on the type of claim.
Claims filed under Article 819 must be accompanied by either Form 1, where the investor is a national of a Party, or Form 2, where the investor is a Party, a state enterprise thereof, or an enterprise of such Party.
Where the claim is based on loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, either Form 1 or 2 must be accompanied by Form 3.
Claims made under Article 820 must be accompanied by either Form 1, where the investor is a national of a Party, or Form 2, where the investor is a Party, a state enterprise thereof, or an enterprise of such Party, and Form 4.
Form 1. Consent and waiver for an investor of a Party bringing a claim under Article 819 or Article 820 (where the investor is a national of a Party) of the Free Trade Agreement between Canada and the Republic of Peru:
I, (Name of investor) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive my right to initiate or continue before any administrative tribunal or court under the law of either Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged to be a breach referred to in Article 819 or Article 820, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of (Name of disputing Party) .
(To be signed and dated.)
Form 2. Consent and waiver for an investor of a Party bringing a claim under Article 819 or Article 820 (where the investor is a Party, a state enterprise thereof, or an enterprise of such Party) of the Free Trade Agreement between Canada and the Republic of Peru:
I, (Name of declarant) , on behalf of (Name of investor) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive the right of (Name of investor) to initiate or continue before any administrative tribunal or court under the law of either Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged to be a breach referred to in Article 819 or Article 820, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages before an administrative tribunal or court under the law of (Name of disputing Party).
I hereby solemnly declare that I am duly authorised to execute this consent and waiver on behalf of (Name of investor) .
(To be signed and dated.)
Form 2. Waiver of an enterprise that is the subject of a claim by an investor of a Party under Article 819 of the Free Trade Agreement between Canada and the Republic of Peru:
I, (Name of declarant) , waive the right of (Name of the enterprise) to initiate or continue before any administrative tribunal or court under the law of either Party to this Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged by (Name of investor) to be a breach referred to in Article 819, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of (Name of disputing Party) .
I hereby solemnly declare that I am duly authorised to execute this waiver on behalf of Name of the enterprise) .
(To be signed and dated.)
Form 4. Consent and waiver of an enterprise that is the subject of a claim by an investor of a Party under Article 820 of the Free Trade Agreement between Canada and the Republic of Peru:
I, (Name of declarant) , on behalf of (Name of enterprise) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive the right of (Name of enterprise) to initiate or continue before any administrative tribunal or court under the law of either Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged by (Name of investor) to be a breach referred to in Article 820, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages before an administrative tribunal or court under the law of (Name of disputing Party) .
I hereby solemnly declare that I am duly authorised to execute this consent and waiver on behalf of (Name of the enterprise) .
(To be signed and dated.)
Annex 824.1. Submission of a Claim to Arbitration
1. An investor of Canada may not submit to arbitration under Section B a claim that Peru has breached an obligation under Section A:
(a) on its own behalf under subparagraphs 1(a) or (b) of Article 819; or
(b) on behalf of an enterprise of Peru that is a juridical person that the investor owns or controls directly or indirectly under subparagraphs 1(a) or (b) of Article 820,
if the investor or the enterprise, respectively, has alleged the breach of the obligation under Section A in proceedings before a court or administrative tribunal of Peru.
2. An investor of Canada may not submit to arbitration under Section B a claim that Peru has breached a legal stability agreement referred to in paragraph 3 of Article 819 and paragraph 3 of Article 820:
(a) on its own behalf under subparagraph 1(c) of Article 820; or
(b) on behalf of an enterprise of Peru that is a juridical person that the investor owns or controls directly or indirectly under subparagraph 1(c) of Article 820,
if the investor or the enterprise, respectively, has alleged that breach in proceedings before a court or administrative tribunal of Peru or has submitted that claim to any other binding dispute settlement proceedings.
3. For greater certainty, if an investor of Canada elects to submit:
(a) a claim described in paragraph 1 to a court or administrative tribunal of the Republic of Peru; or
(b) a claim described in paragraph 2 to a court or administrative tribunal of the Republic of Peru or to any other binding dispute settlement proceedings,