b) on request:
(i) pleadings, memorials, briefs, requests and other submissions made to the tribunal by a disputing party;
(ii) written submissions made to the tribunal pursuant to Article 4 (Submission by a third person) of the UNCITRAL Transparency Rules;
(iii) minutes or transcripts of hearings of the tribunal, where available; and
(iv) orders, awards and decisions of the tribunal;
c) on request and at the cost of the non-disputing Party, all or part of the evidence that has been tendered to the Tribunal unless publicly available.
2. The Tribunal shall accept or, after consultation with the disputing parties, may invite, oral or written submissions from the non-disputing Party regarding the interpretation of the Agreement. The non- disputing Party may attend a hearing held under this Chapter.
3. The Tribunal shall not draw any inference from the absence of a submission pursuant to paragraph 2.
4. The Tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on a submission by the non-disputing Party to the Agreement.
Q. FINAL AWARD
1. Where a Tribunal makes a final award against the respondent 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 respondent may pay monetary damages representing the fair market value of the property at the time immediately before the expropriation, or impending expropriation became known, whichever is earlier and any applicable interest in lieu of restitution, determined in a manner consistent with Article 7 (Expropriation);
c) any costs of the arbitration proceedings and attorney's fees in accordance with this Agreement and the applicable arbitration rules.
2. Subject to paragraphs 1 and 5, where a claim is made under paragraph 1(b) of Article 19 (D) (Submission of a Claim to Arbitration):
a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the locally established enterprise;
b) an award of restitution of property shall provide that restitution be made to the locally established enterprise;
c) an award of costs in favor of the investor shall provide that it is to be made to the investor; and
d) the award shall provide that it is made without prejudice to a right that a person, other than a person which has provided a waiver pursuant to Article 19 (D) (Submission of a Claim to Arbitration), may have in monetary damages or property awarded under a Contracting Party's domestic law.
3. Monetary damages shall not be greater than the loss suffered by the investor or, as applicable, the locally established enterprise, reduced by any prior damages or compensation already provided. For the calculation of monetary damages, the Tribunal shall also reduce the damages to take into account any restitution of property or repeal or modification of the measure.
4. A Tribunal may not award punitive or moral damages.
R. INDEMNIFICATION OR OTHER COMPENSATION
A respondent shall not assert, and a Tribunal shall not accept a defense, counterclaim, right of setoff, or similar assertion, that an investor or, as applicable, the locally established enterprise, has received, or shall receive, indemnification or other compensation pursuant to an insurance or guarantee contract in respect of all or part of the compensation sought in a dispute initiated pursuant to this Chapter.
S. FEES AND EXPENSES OF THE ARBITRATORS
The fees and expenses of the arbitrators pursuant to Regulation 14(1) of the Administrative and Financial Regulations of the ICSID Convention in force on the date of initiation of the arbitration shall apply.
T. ENFORCEMENT OF AWARDS
1. An award issued by a Tribunal pursuant to this Chapter shall be binding 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 recognize 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) enforcement of the award has been stayed and revision or annulment proceedings have been completed; and
b) in the case of a final award under the ICSID Additional Facility Rules the UNCITRAL Arbitration Rules, or any other rules applicable pursuant to Article 19 (D) (Submission of a Claim to Arbitration):
(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) enforcement of the award has been stayed and a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Execution of the award shall be governed by the laws concerning the execution of judgments in force where such execution is sought.
5. A claim that is submitted to arbitration under this Chapter shall be deemed to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
U. ROLE OF THE CONTRACTING PARTIES
1. No Contracting Party shall bring an international claim, in respect of a dispute submitted pursuant to Article 19 (D) (Submission of a Claim to Arbitration), unless the other Contracting Party has failed to abide by and comply with the award rendered in such dispute. This shall not exclude the possibility of dispute settlement under Article 19 in respect of a measure of general application even if that measure is alleged to have violated the agreement as regards a specific investment in respect of which a dispute has been initiated pursuant to Article 19 (D) (Submission of a Claim to Arbitration) and is without prejudice to Article 19 (P)(The non-disputing Party to the Agreement).
2. Paragraph 1 does not preclude informal exchanges for the sole purpose of facilitating a settlement of the dispute.
V. CONSOLIDATION
1. When two or more claims that have been submitted separately to arbitration under Article 19 (D) (Submission of a Claim to Arbitration) have a question of law or fact in common and arise out of the same events or circumstances, a disputing party or the disputing parties, jointly, may seek the establishment of a separate Tribunal pursuant to this Article and request that such Tribunal issue a consolidation order.
2. The disputing party seeking a consolidation order shall first deliver a notice to the disputing parties it seeks to be covered by this order.
3. Where the disputing parties which have been notified pursuant to paragraph 2 have reached an agreement on the consolidation order to be sought, they may make a joint request for the establishment of a separate Tribunal and a consolidation order pursuant to this Article. Where the disputing parties which have been notified pursuant to paragraph 2 have not reached agreement on the consolidation order to be sought within 30 days of the notice, a disputing party may make a request for the establishment of a separate Tribunal and a consolidation order pursuant to this Article. The request shall be delivered, in writing, to the Secretary-General of ICSID and to all the disputing parties sought to be covered by the order, and shall specify:
a) the names and addresses of the disputing parties sought to be covered by the order; b) the claims, or parts thereof, sought to be covered by the order; and c) the grounds for the order sought.
4. A request for consolidation involving more than one respondent shall require the agreement of all such respondents.
5. The arbitration rules applicable to the proceedings under this Article shall be determined as follows: a) when all of the claims for which a consolidation order is sought have been submitted to arbitration under the same arbitration rules pursuant to Article 19 (D) (Submission of a Claim to Arbitration), these arbitration rules shall apply; b) when the claims for which a consolidation order is sought have not been submitted to arbitration under the same arbitration rules:
(i) the investors may collectively agree on the arbitration rules pursuant to paragraph 2 of Article 19 (D) (Submission of a Claim to Arbitration); or
(ii) if the investors cannot agree on the arbitration rules within 30 days of the Secretary - General of ICSID receiving the request for consolidation, the UNCITRAL Arbitration Rules shall apply.
6. A Tribunal established under this Article shall comprise three arbitrators: one arbitrator appointed by the respondent, one arbitrator appointed by agreement of the investors, and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties. If the respondent or the investors fail to appoint an arbitrator within 45 days after the Secretary-General of ICSID receives a request for consolidation, or if the disputing parties have not agreed to a presiding arbitrator within 60 days after the Secretary-General of ICSID receives a request for consolidation, a disputing party may request the Secretary-General of ICSID to appoint the arbitrator or arbitrators not yet appointed in accordance with paragraph 3 of Article 19 (C) (Constitution of the Tribunal).
7. If, after hearing the disputing parties, a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 19 (D) (Submission of a Claim to Arbitration) have a question of law or fact in common and arise out of the same events or circumstances, and consolidation would best serve the interests of fair and efficient resolution of the claims including the interest of consistency of arbitral awards, the tribunal may, by order, assume jurisdiction over some or all of the claims, in whole or in part.
8. Where a Tribunal has been established under this Article and has assumed jurisdiction pursuant to paragraph 7, an investor that has submitted a claim to arbitration under Article 19 (D) (Submission of a Claim to Arbitration) and whose claim has not been consolidated may make a written request to the Tribunal that it be included in such order provided that the request complies with the requirements set out in paragraph 3. The Tribunal shall grant such order where it is satisfied that the conditions of paragraph 7 are met and that granting such a request would not unduly burden or unfairly prejudice the disputing parties or unduly disrupt the proceedings. Before a Tribunal issues such an order, it shall consult with the disputing parties.
9. On application of a disputing party, a Tribunal established under this Article, pending its decision under paragraph 7, may order that the proceedings of a Tribunal established under Article 19 (D) (Submission of a Claim to Arbitration) be stayed unless the latter Tribunal has already adjourned its proceedings.
10. A Tribunal established under Article 19 (D) (Submission of a Claim to Arbitration) shall cede jurisdiction in relation to the claims, or parts thereof, over which a tribunal established under this Article has assumed jurisdiction.
11. The award of the Tribunal established under this Article in relation to those claims, or parts thereof, over which it has assumed jurisdiction shall become binding on the tribunals established pursuant to Article 19 (D) (Submission of a Claim to Arbitration) as regards those claims, or parts thereof, once the conditions of Article 19 (T) (Enforcement of Awards) have been fulfilled.
12. An investor may withdraw a claim from arbitration under this Chapter that is subject to consolidation and such claim may not be resubmitted to arbitration under Article 19 (D) (Submission of a Claim to Arbitration). If it does so no later than 15 days after receipt of the notice of consolidation, its earlier submission of the claim to arbitration shall not prevent the investor's recourse to dispute settlement other than under this Chapter.
13. At the request of an investor, the Tribunal established under this Article may take such measures as it sees fit in order to preserve the confidential or protected information of that investor vis-a-vis other investors. Such measures may include the submission of redacted versions of documents containing confidential or protected information to the other investors or arrangements to hold parts of the hearing in private.
Article 20. CODE OF CONDUCT
The Contracting Parties adopt a code of conduct (see Annex I) for the Members of the Tribunal to be applied in disputes arising out of this Agreement, which may replace or supplement the rules in application.
Article 21. ESTABLISHMENT OF a MULTILATERAL INVESTMENT COURT AND APPELLATE MECHANISM
1. The Contracting Parties recognize the need of a broad reform of the investor-state dispute settlement mechanism in line with international evolutions, in particular in the context of the ongoing discussions in the relevant working group of UNCITRAL.
2. Upon the establishment of such a Multilateral Investment Court and an appellate mechanism applicable to disputes under this agreement, the relevant parts of this agreement will cease to apply.
Chapter V. GENERAL AND FINAL PROVISIONS
Article 22. TRANSPARENCY
1. Each Contracting Party shall publish, or otherwise make publicly available, its laws and regulations of general application as well as international agreements which may affect the investments of investors of the other Contracting Party in the territory of the former Contracting Party.
2. Nothing in this Article shall require the Contracting Party to furnish or allow access to any confidential or proprietary information, including information concerning particular investors or investments, the disclosure of which would impede law enforcement or be contrary to domestic laws protecting confidentiality, or would prejudice legitimate commercial interests of particular investors.
3. The provisions of Article 1 of this Agreement do not apply to this Article.
Article 23. DISPUTES BETWEEN THE CONTRACTING PARTIES RELATING TO THE INTERPRETATION OR APPLICATION OF THIS AGREEMENT
1. Any dispute relating to the interpretation or application of this Agreement shall be settled as far as possible through diplomatic channels within a reasonable lapse of time.
2. In the absence of a settlement through diplomatic channels, the dispute shall be submitted to a joint commission consisting of representatives of the Contracting Parties; this commission shall convene without undue delay at the written request of the first party to take action.
3. If the joint commission cannot settle the dispute, the latter shall be submitted, at the request of either Contracting Party, to an arbitration tribunal set up as follows for each individual case:
a) Each Contracting Party shall appoint one arbitrator (who may or may not be a national of either Contracting Party) within a period of two months from the date on which either Contracting Party has informed the other Party of its intention to submit the dispute to arbitration. Within a period of two months following their appointment, these two arbitrators shall appoint by mutual agreement a national of a third State as chairman of the arbitration tribunal;
b) If these time limits have not been complied with, either Contracting Party shall request the President of the International Court of Justice to make the necessary appointment(s);
c) If the President of the International Court of Justice is a national of either Contracting Party or of a State with which one of the Contracting Parties has no diplomatic relations or if, for any other reason, he cannot exercise this function, the Vice-President of the International Court of Justice shall be requested to make the appointment(s).
d) If the Vice-President of the International Court of Justice is a national of either Contracting Party or of a State with which one of the Contracting Parties has no diplomatic relations or if, for any other reason, he cannot exercise this function, the member of the International Court of Justice next in seniority shall be requested to make the appointment(s).
4. The tribunal thus constituted shall determine its own rules of procedure. Its decisions shall be taken by a majority of the votes; they shall be final and binding on the Contracting Parties.
5. Each Contracting Party shall bear the costs resulting from the appointment of its arbitrator. The expenses in connection with the appointment of the third arbitrator and the administrative costs of the tribunal shall be borne equally by the Contracting Parties.
Article 24. CONSULTATIONS
1. The Contracting Parties will meet for consultations when needed inter alia to monitor and evaluate the implementation of this Agreement, including on :
(a) difficulties which may arise in the implementation of this Agreement;
(b) possible improvements of this Agreement, in particular in the light of experience and developments in other international fora and under the Contracting Parties' other agreements.
2. The Contracting Parties, after completion of their respective internal requirements and procedures, during these consultations may agree to:
(a) recommend to adopt interpretations of this Agreement pursuant to Article 19 (1);
(b) recommend to adopt and amend rules supplementing the applicable dispute settlement rules, and amend the applicable rules on transparency;
(c) recommend to adopt rules for mediation for use by disputing parties as referred to in Article 19 (©);
(d) recommend to the Contracting Parties the adoption of any further elements of the fair and equitable treatment obligation pursuant to Article 4;
3. Consultations shall be held by officials representing the Contracting Parties, upon the request of a Contracting Party delivered via diplomatic channel to the other Party. The Party shall present the matter clearly in its request. Consultations shall be held promptly after a Contracting Party delivers a request for consultations.
Article 24. ENTRY INTO FORCE AND DURATION
1. This Agreement shall enter into force on the first day of the month following the date of receipt of the note through which the last of both Contracting Parties will have given notice by diplomatic channel to the other contracting Party that all required internal legal formalities have been accomplished. The Agreement shall remain in force for a period of ten years.
2. Unless notice of termination is given by either Contracting Party at least six months before the expiry of its period of validity, this Agreement shall be tacitly extended each time for a further period of ten years, it being understood that each Contracting Party reserves the right to terminate the Agreement by notification (through diplomatic channels) given at least six months before the date of expiry of the current period of validity.
3. Investments made prior to the date of termination of this Agreement shall be covered by the provisions of this Agreement for a period of twenty years from the date of termination.
Conclusion
IN WITNESS WHEREOF, the undersigned representatives, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE at ...., on ......, in two original copies, each in the French, Dutch and ......... languages, all texts being equally authentic. The text in the ....... language shall prevail in case of difference of interpretation.
FOR THE BELGIUM-LUXEMBOURG ECONOMIC UNION:
The Kingdom of Belgium,
The Grand Duchy of Luxembourg,
The Federal Government
The Walloon Region
The Flemish Region
The Brussels-Capital Region
FOR THE GOVERNMENT OF ......
Attachments
Annex I. CODE OF CONDUCT FOR MEMBERS OF A TRIBUNAL AND MEDIATORS
1. For this Agreement and under this Code of Conduct:
a) assistant means a person who, under the terms of appointment of an arbitrator, conducts, researches or provides assistance to the arbitrator;
b) mediator means a person who conducts a mediation in accordance with Article 19 (C);
c) arbitrator means a member ofa Tribunal established under Article 19 (G);
d) proceeding, unless otherwise specified, means an arbitration proceeding;
e) staff, in respect of an arbitrator, means persons under the direction and control of the arbitrator, other than assistants.
RESPONSIBILITIES TO THE PROCESS
2. Every candidate and member shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved. Former members must comply with the obligations established in paragraphs 16, 17, 18 and 19 of this Code of Conduct.
DISCLOSURE OBLIGATIONS
3. Prior to confirmation of her or his selection as a member of the Tribunal under Chapter IV, a candidate shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
4. Without limiting the generality of the foregoing, candidates shall disclose the following interests, relationships and matters:
a) any financial interest of the candidate:
i. in the proceeding or in its outcome, and
ii. in an administrative proceeding, a domestic court proceeding or another panel or committee proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;
b) any financial interest of the candidate's employer, partner, business associate or family member
i. in the proceeding or in its outcome, and
ii. in an administrative proceeding, a domestic court proceeding or another panel or committee proceeding that involves issues that may be decided in the proceeding for which the candidate is under consideration;
c) any past or existing financial, business, professional, family or social relationship with any interested parties in the proceeding, or their counsel, or any such relationship involving a candidate's employer, partner, business associate or family member; and
d) public advocacy or legal or other representation concerning an issue in dispute in the proceeding or involving the same goods.
5. A candidate or member shall communicate matters concerning actual or potential violations of this Code of Conduct only to the Investment Committee for consideration by the Contracting Parties.
6. Once selected, a member shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in paragraph 3 of this Code of Conduct and shall disclose them. The disclosure obligation is a continuing duty which requires a member to disclose any such interests, relationships or matters that may arise during any stage of the proceeding. The member shall disclose such interests, relationships or matters by informing the Investment Committee in writing, for consideration by the Contracting Parties.
DUTIES OF MEMBERS
7. Upon selection a member shall be available to perform and shall perform her or his duties thoroughly and expeditiously throughout the course of the proceeding, and with fairness and diligence.
8. A member shall consider only those issues raised in the proceeding and necessary for a ruling and shall not delegate this duty to any other person.
9. Amember shall take all appropriate steps to ensure that his or her assistant and staff are aware of, and comply with paragraphs 2, 3, 4, 5, 6, 17, 18 and 19 of this Code of Conduct.
10. A member shall not engage in ex parte contacts concerning the proceeding.
INDEPENDENCE AND IMPARTIALITY OF MEMBERS
11. Amember must be independent and impartial and avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamour, and loyalty to a Contracting Party or fear of criticism.
12. A member shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of her or his duties.
13. A member may not use her or his position on the arbitration panel to advance any personal or private interests and shall avoid actions that may create the impression that others are in a special position to influence her or him.
14. A member may not allow financial, business, professional, family or social relationships or responsibilities to influence her or his conduct or judgement.
15. A member must avoid entering into any relationship or acquiring any financial interest that is likely to affect her or his impartiality or that might reasonably create an appearance of impropriety or bias.
OBLIGATIONS OF FORMER MEMBERS
16. All former members must avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decision or ruling of the Tribunal.
CONFIDENTIALITY
17. No member or former member shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
18. A member shall not disclose ruling of a Tribunal or parts thereof prior to its publication in accordance with Chapter IV.
19. A member or former member shall not at any time disclose the deliberations of a Tribunal, or any member's view.
EXPENSES
20. Each member shall keep a record and render a final account of the time devoted to the procedure and of her or his expenses as well as the time and expenses of his or her assistant.
MEDIATORS
21. This Code of Conduct applies, mutatis mutandis, to mediators.