(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or
(e) ensuring compliance with an order or judgment rendered in judicial or administrative proceedings.
4. A Contracting Party may not require one of its investors to transfer, or penalize one of its investors for failing to transfer, the income, earnings, profits or other amounts derived from, or attributable to, an investment in the territory of the other Contracting Party.
5. Paragraph 4 does not prevent a Contracting Party from imposing a measure through the equitable, non discriminatory and good faith application of its domestic law relating to the matters in subparagraphs 3(a) through 3(e).
6. Notwithstanding the provisions of paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 5, a Contracting Party may prevent or limit transfers by a financial institution to, or for the benefit of, an affiliate of or person related to that institution, through the equitable, non-discriminatory and good faith application of a measure relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions.
7. Notwithstanding paragraph 1, a Contracting Party may restrict transfers of returns in kind in circumstances where it could otherwise restrict those transfers under the WTO Agreement and as set out in paragraph 3.
Article 13. Transparency:
1. Each Contracting Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Contracting Party to become acquainted with them.
2. To the extent possible, each Contracting Party shall:
(a) publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
(b) provide interested persons and the other Contracting Party a reasonable opportunity to comment on that proposed measure.
3. Upon request by a Contracting Party, the other Contracting Party shall provide information on a measure that may have an impact on a covered investment.
Article 14. Subrogation:
1. If a Contracting Party or an agency of a Contracting Party makes a payment to one of its investors under a guarantee or a contract of insurance it has entered into in respect of an investment, the other Contracting Party shall recognize the validity of the subrogation in favour of the first-mentioned Contracting Party or agency to a right or title held by the investor.
2. A Contracting Party or an agency of a Contracting Party, that is subrogated to a right of an investor in accordance with paragraph 1, is entitled to the same rights as those of the investor regarding the investment. Those rights may be exercised by the Contracting Party or an agency of the Contracting Party or by the investor if the Contracting Party or its agency so authorizes.
Article 15. Health, Safety and Environmental Measures:
The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Contracting Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, those measures to encourage the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Contracting Party considers that the other Contracting Party has offered such an encouragement, it may request consultations with the other Contracting Party and the two Contracting Parties shall consult with a view to avoiding the encouragement.
Article 16. Corporate Social Responsibility:
Each Contracting Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Contracting Parties. These principles address issues such as labour, the environment, human rights, community relations and anti-corruption.
Article 17. Taxation Measures:
1. Except as set out in this Article, this Agreement does not apply to a taxation measure.
2. This Agreement does not affect the rights and obligations of a Contracting Party under a tax convention. In the event of inconsistency between this Agreement and a tax convention, that convention prevails.
3. This Agreement does not require a Contracting Party to furnish or allow access to information, which if disclosed, would be contrary to the Contracting Party's law protecting information concerning the taxation affairs of a taxpayer.
4. Subject to paragraph 2, the provisions of Articles 5 (National Treatment) and 6 (Most-Favoured-Nation Treatment) apply to all taxation measures, other than those on income, capital gains or on the taxable capital of corporations, except that nothing in those Articles shall apply:
(a) to a non-conforming provision of an existing taxation measure;
(b) to the continuation or prompt renewal of a non-conforming provision of an existing taxation measure;
(c) to an amendment to a non-conforming provision of an existing taxation measure to the extent that the amendment does not decrease its conformity at the time of the amendment with those Articles; or
(d) to a new taxation measure that is aimed at ensuring the equitable and effective imposition or collection of taxes (including, for greater certainty, a measure that is taken by a Contracting Party to ensure compliance with the Contracting Party's taxation system or to prevent the avoidance or evasion of taxes) and that does not arbitrarily discriminate between persons, goods or services of the Contracting Parties.
5. Provided that the conditions in paragraph 6 are met:
(a) a claim by an investor that a taxation measure of a Contracting Party is in breach of an agreement between a national government authority of that Contracting Party and the investor concerning an investment shall be considered a claim for breach of this Agreement; and
(b) the provisions of Article 11 (Expropriation) apply to taxation measures.
6. An investor may not make a claim with respect to a matter covered under paragraph 5 unless:
(a) the investor provides a copy of the notice of claim to the taxation authorities of the Contracting Parties; and
(b) six months after receiving notification of the claim by the investor, the taxation authorities of the Contracting Parties fail to reach a joint determination that, in the case of subparagraph 5(a), the measure does not contravene that agreement, or in the case of subparagraph 5(b), the measure in question is not an expropriation.
7. If, in connection with a claim by an investor of a Contracting Party or a dispute between the Contracting Parties, an issue arises as to whether a measure of a Contracting Party is a taxation measure, a Contracting Party may refer the issue to the taxation authorities of the Contracting Parties. A decision of the taxation authorities shall bind a Tribunal formed pursuant to Chapter III or special arbitral group formed pursuant to Chapter IV. A Tribunal or special arbitral group seized of a claim or a dispute in which the issue arises may not proceed until it receives the decision of the taxation authorities. If the taxation authorities have not decided the issue within six months of the referral, the Tribunal or special arbitral group shall decide the issue.
8. Each Contracting Party shall notify the other Contracting Party by diplomatic note of the identity and of the coordinates of the taxation authorities referred to in this Article.
Article 18. Reservations:
1. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 9 (Senior Management, Boards of Directors and Entry of Personnel) and 10 (Performance Requirements) shall not apply to:
(a) (i) any existing non-conforming measure, maintained by a Contracting Party in its territory,
(ii) any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition of a government's equity interests in, or the assets of, an existing state enterprise or an existing governmental entity:
- prohibits or imposes limitations on the ownership or control of equity interests or assets, or
- imposes nationality requirements relating to senior management or members of the board of directors;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to a non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 9 (Senior Management, Board of Directors and Entry of Personnel) and 10 (Performance Requirements).
2. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 9 (Senior Management, Board of Directors and Entry of Personnel) and 10 (Performance Requirements) do not apply to a measure that a Contracting Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
3. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Contracting Party under an agreement as set out in Annex III.
Article 19. Specific Exceptions:
1. In respect of intellectual property rights, a Contracting Party may derogate from Article 5 (National Treatment), Article 6 (Most-Favoured-Nation Treatment) and subparagraph (1)(f) of Article 10 (Performance Requirements) in a manner that is consistent with:
(a) the TRIPS Agreement;
(b) an amendment to the TRIPS Agreement in force for both Contracting Parties; and
(c) a waiver to the TRIPS Agreement granted pursuant to Article IX of the WTO Agreement.
2. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment) and 9 (Senior Management, Boards of Directors and Entry of Personnel) do not apply to:
(a) procurement by a Party or a State enterprise; or e (b) a subsidy or grant provided by a Contracting Party or a State enterprise, including a government-supported loan, a guarantee or insurance.
3. Article 6 (Most-Favoured-Nation Treatment) of this Agreement does not apply to financial services.
Article 20. General Exceptions:
1. For the purpose of this Agreement:
(a) a Contracting Party may adopt or enforce a measure necessary:
(i) to protect human, animal or plant life or health,
(ii) to ensure compliance with domestic law that is not inconsistent with this Agreement, or
(iii) for the conservation of living or non-living exhaustible natural resources;
(b) provided that the measure referred to in subparagraph (a) is not:
(i) applied in a manner that constitutes arbitrary or unjustifiable discrimination between investments or between investors, or
(ii) a disguised restriction on international trade or investment.
2. This Agreement does not prevent a Contracting Party from adopting or maintaining reasonable measures for prudential reasons, such as:
(a) protecting investors, depositors, financial market participants, policy holders, policy-claimants, or persons to whom a fiduciary duty is owed by a financial institution;
(b) maintaining the safety, soundness, integrity or financial responsibility of financial institutions; or
(c) ensuring the integrity and stability of a Contracting Party's financial system.
3. This Agreement does not apply to non-discriminatory measures of general application taken by a public entity in pursuit of monetary and related credit or exchange rate policies. This paragraph shall not affect a Contracting Party's obligations under Article 10 (Performance Requirements) or Article 12 (Transfers).
4. This Agreement does not:
(a) require a Contracting Party to furnish or allow access to information if that Party determines that the disclosure of this information would be contrary to its essential security interests;
(b) prevent a Contracting Party from taking an action that it considers necessary to protect its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment,
(ii) taken in time of war or other emergency in international relations, or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) prevent a Contracting Party from fulfilling its obligations under the United Nations Charter for the maintenance of international peace and security.
5. This Agreement does not require a Contracting Party to furnish or allow access to information which if disclosed would impede law enforcement or would be contrary to the Contracting Party's law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy or the confidentiality of the financial affairs and accounts of individual customers of financial institutions.
6. In the course of a dispute settlement procedure under this Agreement:
(a) a Contracting Party is not required to furnish or allow access to information protected under its competition law;
(b) a competition authority of a Contracting Party is not required to furnish or allow access to information that is privileged or otherwise protected from disclosure.
7. This Agreement does not apply to a measure adopted or maintained by a Contracting Party with respect to a person engaged in a cultural industry.
8. If a right or obligation in this Agreement duplicates one under the WTO Agreement, the Contracting Parties agree that a measure adopted by a Contracting Party in conformity with a waiver decision granted by the WTO pursuant to Article IX of the WTO Agreement is deemed to be also in conformity with this Agreement. Such conforming measure may not give rise to a claim by an investor of one Contracting Party against the other Contracting Party under Chapter III of this Agreement.
Article 21. Denial of Benefits:
A Contracting Party may deny the benefits of this Chapter to an investor of the other Contracting Party that is an enterprise of that Contracting Party and to investments of that investor if investors of a non-Party or of the denying Contracting Party own or control the enterprise and:
(a) the denying Contracting Party adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to its investments; or
(b) the enterprise has no substantial business activities in the territory of the Contracting Party under whose domestic law it is constituted or organized.
Chapter III. Settlement of Disputes between an Investor and the Host Party
Article 22. Establishment of a Dispute Settlement Mechanism:
Without prejudice to the rights and obligations of the Contracting Parties under Chapter IV, the Contracting Parties hereby establish a mechanism for the settlement of investment disputes.
Article 23. Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise:
1. An investor of a Contracting Party may submit to arbitration under this Chapter a claim that:
(a) the respondent Contracting Party has breached an obligation under Chapter II, other than an obligation under paragraph 3 of Article 9 (Senior Management, Boards of Directors and Entry of Personnel), Article 13 (Transparency), Article 15 (Health, Safety and Environmental Measures) or Article 16 (Corporate Social Responsibility); and
(b) the investor has incurred loss or damage by reason of, or arising out of, that breach.
2. An investor of a Contracting Party, on behalf of an enterprise of the respondent Contracting Party that is a juridical person that the investor owns or controls directly or indirectly, may submit to arbitration under this Chapter a claim that:
(a) the respondent Contracting Party has breached an obligation under Chapter II, other than an obligation under paragraph 3 of Article 9 (Senior Management, Boards of Directors and Entry of Personnel), Article 13 (Transparency), Article 15 (Health, Safety and Environmental Measures) or Article 16 (Corporate Social Responsibility); and
(b) the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
Article 24. Conditions Precedent to Submission of a Claim to Arbitration
1. The disputing parties shall hold consultations and attempt to settle a claim amicably before an investor may submit a claim to arbitration. Unless the disputing parties agree to a longer period, consultations shall be held within 60 days of the submission of the notice of intent to submit a claim to arbitration under subparagraph 2(c). The place of consultation shall be the capital of the respondent Contracting Party, unless the disputing parties otherwise agree.
2. An investor may submit a claim to arbitration under Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise) only if:
(a) the investor and, where a claim is made under paragraph 2 of Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise), the enterprise, consent to arbitration in accordance with the procedures set out in this Agreement;
(b) at least six months have elapsed since the events giving rise to the claim;
(c) the investor has delivered to the respondent Contracting Party a written notice of its intent to submit a claim to arbitration at least 90 days prior to submitting the claim, which notice shall specify:
(i) the name and address of the investor and, where a claim is made under paragraph 2 of Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise), the name and address of the enterprise,
(ii) the provisions of this Agreement alleged to have been breached and any other relevant provisions,
(iii) the legal and the factual basis for the claim, including the measures at issue, and
(iv) the relief sought and the approximate amount of damages claimed;
(d) the investor has delivered evidence establishing that it is an investor of the other Contracting Party with its notice of intent to submit a claim to arbitration under subparagraph 2(c);
(e) in the case of a claim submitted under paragraph 1 of Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise):
(i) not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage thereby,
(ii) the investor waives its right to initiate or continue before an administrative tribunal or court under the domestic law of a Contracting Party, or other dispute settlement procedures, proceedings with respect to the measure of the respondent Contracting Party that is alleged to be a breach referred to in Article 23 (Claim by an Investor of a Contracting Party on its Own Behalf or on Behalf of an Enterprise), and
(iii) if the claim is for loss or damage to an interest in an enterprise of the respondent Contracting Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise waives the right referred to under subparagraph (ii);
(f) in the case of a claim submitted under paragraph 2 of Article 23 (Claim by an Investor of a Contracting Party on its Own Behalf or on Behalf of an Enterprise):
(i) not more than three years have elapsed from the date on which the enterprise first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the enterprise has incurred loss or damage thereby, and
(ii) both the investor and the enterprise waive their right to initiate or continue before an administrative tribunal or court under the domestic law of a Party, or other dispute settlement procedures, proceedings with respect to the measure of the respondent Contracting Party that is alleged to be a breach referred to in Article 23 (Claim by an Investor of a Contracting Party on its Own Behalf or on Behalf of an Enterprise).
3. Subparagraphs 2(e)(ii), (iii) and 2(f)(ii) do not apply to proceedings before a judicial or administrative tribunal or court under the domestic law of the respondent Contracting Party for injunctive, declaratory or other extraordinary relief, not involving the payment of damages.
4. The disputing investor or the enterprise shall deliver the consent and waiver required under paragraph 2 to the respondent Contracting Party and the investor shall include them in the submission of a claim to arbitration. A waiver from the enterprise under subparagraphs 2(e)(iii) or 2(f)(ii) is not required if the respondent Contracting Party has deprived the investor of control of the enterprise.
Article 25. Special Rules Regarding Financial Services
1. For all claims in respect of financial services concerning a financial institution of a Contracting Party or an investor of a Contracting Party, and investments of that investor, in a financial institution in the respondent Contracting Party's territory, this Chapter applies only in respect of claims that the respondent Contracting Party has breached an obligation under Article 11 (Expropriation), Article 12 (Transfers) or Article 21 (Denial of Benefits).
2. Where an investor or respondent Contracting Party claims that a dispute involves measures adopted or maintained by the respondent Contracting Party relating to financial institutions of the other Contracting Party or investors of the other Contracting Party and their investments in financial institutions in the respondent Contracting Party's territory, or where the respondent Contracting Party invokes paragraph 6 of Article 12 (Transfers) or paragraph 2 or 3 of Article 20 (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 2 of Article 28 (Arbitrators), have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
3. Where an investor submits a claim to arbitration under this Chapter, and the respondent Contracting Party invokes paragraph 6 of Article 12 (Transfers), paragraph 2 or 3 of Article 20 (General Exceptions), at the request of that Contracting Party, the Tribunal shall request a report in writing from the Contracting Parties on the issue of whether and to what extent the invoked paragraph is a valid defence to the claim of the investor. The Tribunal may not proceed pending receipt of a report under this Article.
4. Where the Tribunal requests a report under paragraph 3, the Contracting Parties shall prepare a written report. If the Contracting Parties disagree, they shall submit the issue to a special arbitral group established in accordance with Chapter IV that shall prepare the written report. The report shall be transmitted to the Tribunal and be binding on it.
5. The Tribunal may decide the matter where, within 70 days of the referral by the Tribunal, no request for the establishment of a special arbitral group pursuant to paragraph 4 has been made and no report has been received by the Tribunal.
Article 26. Submission of a Claim to Arbitration
1. An investor that meets the conditions precedent in Article 24 (Conditions Precedent to Submission of a Claim to Arbitration) may submit a claim to arbitration under:
(a) the ICSID Convention, provided that both Contracting Parties are parties to the ICSID Convention;
(b) the Additional Facility Rules of ICSID, if only one Contracting Party is a party to the ICSID Convention; or
(c) the UNCITRAL Arbitration Rules.
2. Except to the extent modified by this Agreement, the arbitration is governed by the arbitration rules applicable under paragraph 1 that are in effect on the date that the claim is submitted to arbitration under this Chapter.
3. The Contracting Parties may adopt supplemental rules of procedure that complement the arbitration rules listed in paragraph 1 and these rules apply to the arbitration. The Contracting Parties shall promptly publish the supplemental rules of procedure that they adopt or otherwise make them available in such a manner as to enable interested persons to become acquainted with them.
4. A claim is submitted to arbitration under this Chapter when:
(a) the request for arbitration under Article 36(1) of the ICSID Convention is received by the Secretary-General of ICSID;
(b) the request for arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretariat of ICSID; or
(c) the notice of arbitration under Article 3 of the UNCITRAL Arbitration Rules is received by the respondent Contracting Party.
5. Each Contracting Party shall notify the other Contracting Party by diplomatic note of the place of delivery of notices and other documents.
Article 27. Consent to Arbitration
1. Each Contracting Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Agreement. Failure to meet a condition precedent listed in Article 24 (Conditions Precedent to Submission of a Claim to Arbitration) nullifies that consent.
2. The consent given in paragraph 1 and the submission by an investor of a claim to arbitration satisfy the requirement of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the disputing parties; and e = (b) Article II of the New York Convention for an agreement in writing.
Article 28. Arbitrators
1. Except in respect of a Tribunal established under Article 30 (Consolidation), and unless the disputing parties agree otherwise, the Tribunal shall be composed of 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.
2. Arbitrators shall have expertise or experience in public international law, international investment or international trade rules, or the resolution of disputes arising under international investment or international trade agreements. Arbitrators shall be independent of, and not be affiliated with or take instructions from, a disputing party.
3. If the disputing parties do not agree on the remuneration of the arbitrators before the Tribunal is constituted, the prevailing ICSID rate for arbitrators shall apply.
4. If a Tribunal, other than a Tribunal established under Article 30 (Consolidation), has not been constituted within 90 days from the date that a claim is submitted to arbitration, a disputing party may ask the Secretary-General of ICSID to appoint the arbitrator or arbitrators not yet appointed. The Secretary-General of ICSID shall make the appointment at his or her own discretion and, to the extent practicable, this appointment shall be made in consultation with the disputing parties. The Secretary- General of ICSID may not appoint as presiding arbitrator a national of a Contracting Party.
Article 29. Agreement to Appointment of Arbitrators
For the 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 Contracting Party agrees to the appointment of each individual member of a Tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) an investor referred to in paragraph 1 of Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise) may submit a claim to arbitration or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only if the investor agrees in writing to the appointment of each member of the Tribunal; and
(c) an investor referred to in paragraph 2 of Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise) may submit a claim to arbitration or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only if the investor and the enterprise agree in writing to the appointment of each member of the Tribunal.
Article 30. Consolidation
1. A disputing party that seeks a consolidation order under this Article shall request that the Secretary-General of ICSID establish a Tribunal and shall specify in the request:
(a) the name of the respondent Contracting Party or investors against which the order is sought;