5. Notwithstanding the above paragraphs of this article, nothing in this Article shall be construed to prevent the Contracting Party from applying in an equitable and non-discriminatory manner its laws relating to:
- bankruptcy, insolvency or the protection of the rights of creditors;
- issuing, trading or dealing in securities;
- criminal or penal offences;
- financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
- social security, public retirement and compulsory savings programs; or
- ensuring the satisfaction of judgments in adjudicatory proceedings.
Article 11. SUBROGATION
1. If one Contracting Party or any public institution of this Contracting Party pays compensation to its own investors pursuant to a guarantee providing coverage for an investment, the other Contracting Party shall recognise that the former Contracting Party or the public institution concerned is subrogated into the rights of the investors.
2. As far as the transferred rights are concerned, the other Contracting Party shall be entitled to invoke against the insurer who is subrogated into the rights of the indemnified investors the obligations of the latter under law or contract.
Article 12. OBSERVANCE OF WRITTEN COMMITMENTS
1. Where a Contracting Party, either itself or through any entity mentioned in Article 2 (10) has entered into any contractual written commitment with investors of the other Contracting Party or with their covered investments, that Contracting Party shall not, either itself or through any such entity, breach the said commitment through the exercise of governmental authority.
2. For the purposes if this paragraph, a "contractual written commitment" means an agreement in writing, entered into by a Contracting Party, itself or through any entity mentioned in Article 2 (10), with an investor or a covered investment, whether in a single instrument or multiple instruments, that creates an exchange of rights and obligations, binding on both Contracting Parties.
Article 13. DENIAL OF BENEFITS
1. A Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of that Contracting Party and to investments of that investor if:
(a) the investors of a non- Contracting Party own or controls the enterprise; and
(b) the denying Contracting Party adopts or maintains a measure with respect to the non- Contracting Party, or a natural person, or an enterprise of the non-Contracting Party that:
a. are related to the maintenance of international peace and security;
b. prohibit transactions with such natural person or enterprise or would be violated or circumvented if the benefits of this Chapter were accorded to the investor or to its investments.
2. For avoidance of any doubt, the benefits of this Agreement shall be denied if the preconditions set down in paragraph 1 are fulfilled at time when the claim is submitted pursuant to Article 19 (D).
Chapter III. INVESTMENT AND SUSTAINABLE DEVELOPMENT
Article 14. CONTEXT AND OBJECTIVES
1. The Contracting Parties recognise the value of international cooperation to achieve the goal of sustainable development and the integration at the international level of economic, social and environmental development initiatives, actions and measures.
2. The Contracting Parties affirm that investments should contribute to supporting the promotion of sustainable development objectives. Accordingly, each Contracting Party shall strive to promote investment flows and practices that contribute to enhancing sustainable development goals.
3. The Contracting Parties are committed to pursue sustainable development, whose pillars - economic development, social development and environmental protection - are inter-dependent and mutually reinforcing. Therefore, the Contracting Parties agree to dialogue and consult with each other with regard to investment-related sustainable development issues of common interest. In this context, the Contracting Parties are encouraged to conduct a dialogue on these issues with civil society organisations established in their territories.
Article 15. RIGHT TO REGULATE AND LEVELS OF PROTECTION
1. Nothing in this Agreement shall in any way be construed as limiting the right of a Contracting Party or any of their competent authorities to determine its sustainable development policies and priorities, to establish its own levels of domestic environmental and labour protection, and to adopt or modify its relevant laws and policies accordingly, consistently with the internationally recognised standards and agreements.
2. Each Contracting Party shall ensure that its laws and policies provide for and encourage high levels of environmental and labour protection and shall strive to continue to improve those laws and policies and their underlying levels of protection.
3. The Contracting Parties recognise that it is inappropriate to lower the levels of protection afforded in domestic environmental or labour laws in order to encourage investment.
4. A Contracting Party shall not waive or derogate from, or offer to waive or derogate from, its environmental or labour laws as an encouragement for the establishment, acquisition, expansion or retention of an investment or an investor in its territory.
5. A Contracting Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental and labour laws, as an encouragement for investment.
6. A Contracting Party shall not apply labour and environmental domestic laws in a manner that would constitute a disguised restriction of investment or an unjustified discrimination between Contracting Parties.
Article 16. LABOUR STANDARDS
1. The Contracting Parties, in accordance with their obligations under relevant ILO instruments, recognise that the violation of fundamental principles and rights at work cannot be used as an encouragement for the establishment, acquisition, expansion and retention in their territories, of an investment.
Each Contracting Party reaffirms its commitment to respect, promote and implement in its law and practices in its whole territory core labour standards as embodied in the fundamental ILO Conventions that it has ratified. The Parties shall make continued and sustained efforts to ratify the fundamental ILO Conventions if they have not yet done so.
Article 17. ENVIRONMENTAL STANDARDS
The Contracting Parties reaffirm their commitments under the multilateral environmental agreements. They shall strive to ensure that such commitments are fully recognised and implemented by their domestic legislation and shall strive to continue to improve those laws and regulations.
The Contracting Parties recognise the importance of pursuing the objectives of the United Nations Framework Convention on Climate Change (UNFCCC) in order to address the threat of climate change.
Article 18. CORPORATE SOCIAL RESPONSIBILITY
Investors of one Contracting Party in the Territory of the other Contracting Party shall abide by its national laws, regulations, administrative guidelines and policies and act in accordance with internationally accepted standards applicable to foreign investors to which the Contracting Parties are a party. Investors and their investments should strive to make the maximum feasible contributions to the sustainable development of the Host State and local community through socially responsible practices.
The Contracting Parties agree to promote CSR and RBC in line with international guidelines and principles, by companies, investors and governments, including through exchange of information and best practices.
The Contracting Parties shall make continued and sustained efforts towards adhering to internationally recognised guidelines and principles on CSR and RBC.
Chapter IV. INVESTOR-STATE DISPUTE SETTLEMENT
Article 19. INVESTOR-STATE DISPUTE SETTLEMENT
A. SCOPE OF A CLAIM TO ARBITRATION
1. An investor of a Contracting Party may submit to the Tribunal constituted under this Chapter a claim that the other Contracting Party has breached an obligation under Chapter II, where the investor claims to have suffered loss or damage as a result of the alleged breach.
2. For greater certainty, an investor may not submit a claim to arbitration under this Agreement where the investment has been made through fraudulent misrepresentation, concealment, corruption, or conduct amounting to an abuse of process.
3. A Tribunal constituted under this Chapter may not decide claims that fall outside of the scope of this Article.
B. CONSULTATIONS
1. In the event of an investment dispute, the claimant and the respondent should initially seek to resolve the dispute through consultations. Unless the disputing parties agree to a longer period, consultations shall be held within 60 days of the submission of the request for consultations pursuant to paragraph 3.
2. Unless the disputing parties agree otherwise, the place of consultation shall be:
a) Brussels, if the measures challenged are measures of the Kingdom of Belgium
b) Luxembourg, if the measures challenged are measures of the Grand Duchy of Luxembourg
c) Xxx, if the measures challenged are measures of the other Contracting Party.
3. The disputing parties may hold the consultations through videoconference or other means where appropriate, such as in the case where the investor is a small or medium-sized enterprise.
4. The investor shall submit to the other Contracting Party a request for consultations containing the following information:
a) the name and address of the investor and, where such request is submitted on behalf of a locally established enterprise, the name, address and place of incorporation of the locally established enterprise;
b) where there is more than one investor, the name and address of each investor and, where there is more than one locally established enterprise, the name, address and place of incorporation of each locally established enterprise;
c) the provisions of this Agreement alleged to have been breached;
d) the legal and the factual basis for the claim, including the measures at issue; and
e) the relief sought and the estimated amount of damages claimed; and
f) evidence establishing that the investor is an investor of the other Contracting Party and that it owns or controls the investment, including the locally established enterprise where applicable, in respect of which it has submitted a request.
5. The requirements of the request for consultations set out in paragraph 4 shall be met in a manner that does not materially affect the ability of the respondent to effectively engage in consultations or to prepare its defense.
6. A request for consultations must be submitted within:
a) 3 years after the date on which the investor or, as applicable, the locally established enterprise, first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor or, as applicable, the locally established enterprise, has incurred loss or damage thereby; or
b) two years after the investor or, as applicable, the locally established enterprise, exhausts or ceases to pursue claims or proceedings before a tribunal or court under the law of a Contracting Party and, in any event, no later than 10 years after the date on which the investor or, as applicable, the locally established enterprise, first acquired, or should have first acquired knowledge of the alleged breach and knowledge that the investor has incurred loss or damage thereby.
7. In the event that the investor has not submitted a claim pursuant to Article 19 (D) within 18 months of submitting the request for consultations, the investor is deemed to have withdrawn its request for consultations and, if applicable, its notice requesting a determination of the respondent, and shall not submit a claim under this Chapter with respect to the same measures. This period may be extended by agreement of the disputing parties.
C. MEDIATION
1. The disputing parties may at any time agree to have recourse to mediation.
2. Recourse to mediation is without prejudice to the legal position or rights of either disputing party under this Chapter and shall be governed by the rules agreed to by the disputing parties.
3. The mediator is appointed by agreement of the disputing parties. The disputing parties may also request that the Secretary-General of ICSID appoint the mediator.
4. Disputing parties shall endeavor to reach a resolution to the dispute within 60 days from the appointment of the mediator.
D. SUBMISSION OF A CLAIM TO ARBITRATION
1. If a dispute has not been resolved through consultations or mediation, a claim may be submitted to arbitration under this Chapter by:
a) an investor of the other Contracting Party on its own behalf; or
b) an investor of the other Contracting Party, on behalf of a locally established enterprise which it owns or controls directly or indirectly.
2. The claimant may submit the claim to arbitration if, cumulatively:
a) the claimant gives express and written consent:
i. to pursue its claim in arbitration under this Article; and
ii. that the Host State may pursue any defense, counterclaim, right of set off or other similar claim pursuant to Article 19 of this Agreement in arbitration under this Section;
c) the claimant submitted a request for consultations pursuant to Article 19 (B) of this Agreement and a minimum of 6 months has elapsed after submission of the request for consultations and the dispute was not settled amicably within this period;
d) the claimant or the claimant's investment, as the case may be, has withdrawn pending claims from
(i) domestic court or administrative proceedings in the Host State, or
(ii) proceedings pursuant to any applicable contractual arbitration clause agreed between the claimant and the Host State or the relevant Host State entity; or
(iii) any investment arbitration proceedings in which the claimant or the claimant's investment has brought a claim relating to the measure underlying the claim under this Agreement if such proceedings continued after submission of the request for consultation; and
e) the claimant and the claimant's investment has provided a waiver of its right to initiate any other legal measures or legal proceedings or any investment arbitration proceedings relating to the measure underlying the claim under this Agreement.
Letters(c) and (d) above do not apply for injunctive, declaratory or other non-pecuniary remedy 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.
3. The claim to arbitration must be submitted within 18 months after the submission of the request for consultation. If the claimant fails to submit a claim within this period the claimant shall be deemed to have waived its rights to bring a claim and may not submit a claim to arbitration under Article 19 of this Agreement.
4. A claim may be submitted under the following arbitration rules:
a) the ICSID Convention;
b) the ICSID Additional Facility Rules where the conditions for proceedings pursuant to paragraph (a) do not apply;
c) the UNCITRAL Arbitration Rules; or
d) any other arbitration rules on agreement of the disputing parties.
5. For greater certainty, a claim submitted under subparagraph 1(b) shall satisfy the requirements of Article 25(1) of the ICSID Convention.
6. The investor may, when submitting its claim, propose that a sole arbitrator should hear the claim. The respondent shall give sympathetic consideration to such a request, in particular where the investor is a small or medium-sized enterprise or the compensation or damages claimed are relatively low.
E. PROCEEDINGS UNDER DIFFERENT INTERNATIONAL AGREEMENTS
Where claims are brought both pursuant to this Chapter and another international agreement and:
a) there is a potential for overlapping compensation; or
b) the other international claim could have a significant impact on the resolution of the claim brought pursuant to this Chapter,
a Tribunal constituted under this Chapter shall, as soon as possible after hearing the disputing parties, stay its proceedings or otherwise ensure that proceedings pursuant to another international agreement are taken into account in its decision, order or award.
F. CONSENT TO ARBITRATION
a) The respondent consents to the submission of a claim to arbitration under this Chapter in accordance with the procedures set out under this Agreement.
b) The consent under paragraph | and the submission of a claim to arbitration under this Chapter shall satisfy the requirements of:
a) Article 25 of the ICSID Convention and Chapter II (Institution of Proceedings) of the ICSID Additional Facility Rules for written consent of the disputing parties; and,
b) Article II of the New York Convention for an agreement in writing.
G. CONSTITUTION OF THE TRIBUNAL
1. Unless the disputing parties have agreed to appoint a sole arbitrator, the Tribunal shall comprise three arbitrators. One arbitrator shall be appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, shall be appointed by agreement of the disputing parties. If the disputing parties agree to appoint a sole arbitrator, the disputing parties shall seek to agree on the sole arbitrator.
2. If a Tribunal has not been constituted within 90 days from the date that a claim is submitted to arbitration, or where the disputing parties have agreed to appoint a sole arbitrator and have failed to do so within 90 days from the date the respondent agreed to submit the dispute to a sole arbitrator, the Secretary-General of ICSID shall appoint the arbitrator or arbitrators not yet appointed in accordance with paragraph 3.
3. The Secretary-General of ICSID shall, upon request of a disputing party, appoint the remaining arbitrators from the list established pursuant to paragraph 4. In the event that such list has not been established on the date a claim is submitted to arbitration, the Secretary-General of ICSID shall make the appointment at his or her discretion taking into consideration nominations made by either Contracting Party and, to the extent practicable, in consultation with the disputing parties. The Secretary-General of ICSID may not appoint as presiding arbitrator a national of either Contracting Party unless all disputing parties agree otherwise.
4. Arbitrators appointed pursuant to this Chapter shall have expertise or experience in public international law, in particular international investment law. It is desirable that they have expertise or experience in international trade law and the resolution of disputes arising under international investment or international trade agreements.
5. Arbitrators shall be independent of, and not be affiliated with or take instructions from, a disputing party or the government of a Contracting Party with regard to trade and investment matters. Arbitrators shall not take instructions from any organization, government or disputing party with regard to matters related to the dispute. Arbitrators shall comply with the International Bar Association Guidelines on Conflicts of Interest in International Arbitration. Arbitrators who serve on the list established pursuant to paragraph 3 shall not, for that reason alone, be deemed to be affiliated with the government of a Contracting Party.
6. If a disputing party considers that an arbitrator does not meet the requirements set out in paragraph 5, it shall send a notice of its intent to challenge the arbitrator within 15 days after:
a) the appointment of the arbitrator has been notified to the challenging party; or,
b) the disputing party became aware of the facts giving rise to the alleged failure to meet such requirements.
7. The notice of an intention to challenge shall be promptly communicated to the other disputing party, to the arbitrator or arbitrators, as applicable, and to the Secretary-General of ICSID. The notice of challenge shall state the reasons for the challenge.
8. When an arbitrator has been challenged by a disputing party, the disputing parties may agree to the challenge, in which case the disputing parties may request the challenged arbitrator to resign. The arbitrator may, after the challenge, elect to resign. A decision to resign does not imply acceptance of the validity of the grounds for the challenge.
9. If, within 15 days from the date of the notice of challenge, the challenged arbitrator has elected not to resign, the Secretary-General of ICSID shall, after hearing the disputing parties and after providing the arbitrator an opportunity to submit any observations, issue a decision within 45 days of receipt of the notice of challenge and forthwith notify the disputing parties and other arbitrators, as applicable.
10. A vacancy resulting from the disqualification or resignation of an arbitrator shall be filled promptly pursuant to the procedure provided for in this Article.
H. AGREEMENT TO THE APPOINTMENT OF THE ARBITRATORS
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 based 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; and
b) an investor may submit a claim to arbitration or continue a claim under the ICSID Convention or, as the case may be, the ICSID Additional Facility Rules only if the investor agrees in writing to the appointment of each member of the Tribunal.
I. APPLICABLE LAW AND INTERPRETATION
1. A Tribunal established under this Chapter shall render its decision consistent with this Agreement as interpreted in accordance with the Vienna Convention on the Law of Treaties, and other rules and principles of international law applicable between the Contracting Parties.
2. Where serious concerns arise as regards issues of interpretation which may affect matters relating this chapter, the Contracting parties may adopt interpretations of provisions of this Agreement. Any such interpretation shall be binding upon the Tribunal.
J. PLACE OF ARBITRATION
The disputing parties may agree on the place of arbitration under the applicable arbitration rules provided it is in the territory of a party to the New York Convention. If the disputing parties fail to agree on the place of arbitration, the Tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that it shall be in the territory of either Contracting Party or of a third state that is a party to the New York Convention.
K. CLAIMS MANIFESTLY WITHOUT LEGAL MERIT
1. The respondent may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit.
2. An objection may not be submitted under paragraph | if the respondent has filed an objection pursuant to Article 19 (L).
3. The respondent shall specify as precisely as possible the basis for the objection.
4. On receipt of an objection pursuant to this Article, the Tribunal shall suspend the proceedings on the merits and establish a schedule for considering any objections consistent with its schedule for considering any other preliminary question.
5. The Tribunal, after giving the disputing parties an opportunity to present their observations, shall at its first session or promptly thereafter, issue a decision or award, stating the grounds therefor. In doing so, the Tribunal shall assume the alleged facts to be true.
6. This Article shall be without prejudice to the Tribunalâs authority to address other objections as a preliminary question or to the right of the respondent to object, in the course of the proceeding, that a claim lacks legal merit.
L. CLAIMS UNFOUNDED AS A MATTER OF LAW
1. Without prejudice to a tribunal's authority to address other objections as a preliminary question or to a respondent's right to raise any such objections at any appropriate time, the Tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, submitted pursuant to Article 19 (D) is not a claim for which an award in favor of the claimant may be made under this Chapter, even if the facts alleged were assumed to be true.
2. An objection under paragraph | shall be submitted to the Tribunal no later than the date the Tribunal fixes for the respondent to submit its counter-memorial.
3. If.an objection has been submitted pursuant to Article 19 (K), the Tribunal may, taking into account the circumstances of that objection, decline to address, under the procedures set out in this Article, an objection submitted pursuant to paragraph 1.
4. On receipt of an objection under paragraph 1, and, where appropriate, after having taken a decision pursuant to paragraph 3, 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.
M. 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 nor may it enjoin the application of the measure alleged to constitute a breach referred to in Article 19 (D). For the purposes of this Article, an order includes a recommendation.
N. DISCONTINUANCE
If, following the submission of a claim to arbitration under this Chapter, the investor fails to take any steps in the proceeding during 180 consecutive days or such periods as the disputing parties may agree, the investor shall be deemed to have withdrawn its claim and to have discontinued the proceedings. The Tribunal, or if no Tribunal has been established, the Secretary-General of ICSID shall, at the request of the respondent, and after notice to the disputing parties, in an order take note of the discontinuance. After such an order has been rendered the authority of the Tribunal shall lapse.
O. TRANSPARENCY OF THE PROCEEDINGS
1. The UNCITRAL Transparency Rules shall apply to the disclosure of information to the public concerning disputes.
2. Hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to such hearings. Where the Tribunal determines that there is a need to protect confidential or protected information, it shall make the appropriate arrangements to hold in private that part of the hearing requiring such protection.
3. Nothing in this Chapter requires a respondent to withhold from the public information required to be disclosed by its laws. The respondent should endeavor to apply such laws in a manner sensitive to protecting from disclosure information that has been designated as confidential or protected information.
P. THE NON-DISPUTING PARTY TO THE AGREEMENT
1. The respondent shall, within 30 days after receipt or promptly after any dispute concerning confidential or protected information has been resolved, deliver to the non-disputing Party:
a) a request for consultations, a notice requesting a determination of the respondent, a notice of determination of the respondent, a claim to arbitration, a request for consolidation, and any other documents that are appended to such documents;