(b) the nature of the order sought; and
(c) the grounds for the order sought.
2. The disputing party shall deliver a copy of the request to the respondent Contracting Party or investors against which the order is sought.
3. Within 60 days of receiving the request, the Secretary-General of ICSID shall establish a Tribunal composed of three arbitrators. The Secretary-General of ICSID shall appoint one member who is a national of the respondent Contracting Party, one member who is a national of the Contracting Party of the investors that submitted the claims, and a presiding arbitrator who is not a national of a Contracting Party.
4. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by this Chapter.
5. If a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 26 (Submission of a Claim to Arbitration) have a question of law or fact in common, the Tribunal may, in the interest of fair and efficient resolution of the claims and after hearing the respondent Contracting Party and the disputing investors, by order:
(a) assume jurisdiction over, and hear and determine together, all or part of the claims; or
(b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in resolving the other claims.
6. Where a Tribunal has been established under this Article, an investor that has submitted a claim to arbitration under Article 26 (Submission of a Claim to Arbitration) and that has not been named in a request made under paragraph 1 may make a written request to the Tribunal that it be included in an order made under paragraph 5, and shall specify in the request:
(a) the name and address of the investor;
(b) the nature of the order sought; and
(c) the grounds for the order sought.
7. An investor referred to in paragraph 6 shall deliver a copy of its request to the disputing parties named in a request under paragraph 1.
8. A Tribunal established under Article 26 (Submission of a Claim to Arbitration) does not have jurisdiction to decide a claim, or a part of a claim, over which a Tribunal established under this Article has assumed jurisdiction.
9. On application of a disputing party, a Tribunal established under this Article, pending its decision under paragraph 5, may order that the proceedings of a Tribunal established under Article 26 (Submission of a Claim to Arbitration) be stayed unless the latter Tribunal has already adjourned its proceedings.
Article 31. Access of Coniracting Parties to Documents and Hearings
1. The respondent Contracting Party shall deliver to the other Contracting Party a copy of the notice of intent to submit a claim to arbitration and of any other document within 30 days of the date those documents have been delivered to the respondent Contracting Party. The other Contracting Party is entitled, at its cost, to receive from the respondent Contracting Party a copy of the evidence that has been tendered to the Tribunal, copies of pleadings filed in the arbitration, and the written argument of the disputing parties. The Contracting Party receiving such information shall treat the information as if it were a respondent Contracting Party.
2. The other Contracting Party has the right to attend hearings held under this Chapter. Upon written notice to the disputing parties, the other Contracting Party may make submissions to a Tribunal on questions of interpretation of this Agreement.
Article 32. Place of Arbitration
The disputing parties may agree on the place of arbitration under the arbitration rules applicable under paragraph 1 of Article 26 (Submission of a Claim to Arbitration) or paragraph 4 of Article 30 (Consolidation). If the disputing parties fail to agree, the Tribunal shall determine the place in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a Contracting Party or of a third State that is a party to the New York Convention.
Article 33. Public Access to Hearings and Documents
1. A Tribunal award under this Chapter shall be publicly available, subject to the redaction of confidential information. All other documents submitted to, or issued by, the Tribunal shall be publicly available unless the disputing parties otherwise agree, subject to the redaction of confidential information.
2. Hearings held under this Chapter shall be open to the public. The Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information.
3. A disputing party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in those documents.
4. The Contracting Parties may share with officials of their respective national and sub-national governments all relevant unredacted documents in the course of dispute settlement under this Chapter, but they shall ensure that those persons protect the confidential information in those documents.
5. If a Tribunal's order designates information as confidential and a Contracting Party's law on access to information requires public access to that information, the Contracting Party's law on access to information prevails. However, the Contracting Party should try to apply its law on access to information so as to protect information that the Tribunal's order has designated as confidential.
Article 34. Submissions by a Non-disputing Party
A Tribunal has the authority to consider and accept written submissions from a person or entity that is not a disputing party with a significant interest in the arbitration. The Tribunal shall ensure that a non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice a disputing party.
Article 35. Governing Law
1. A Tribunal established under this Chapter shall decide the issues in dispute consistently with this Agreement and applicable rules of international law. A joint interpretation by the Contracting Parties of a provision of this Agreement shall bind a Tribunal established under this Chapter, and an award under this Chapter must be consistent with that interpretation.
2. Where a respondent Contracting 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 paragraph 1 of Article 18 (Reservations) or in Annex II or Annex III, on request of the respondent Contracting Party, the Tribunal shall request the joint interpretation of the Contracting Parties on the issue. Within 60 days of the delivery of the request, the Contracting Parties shall submit in writing their joint interpretation to the Tribunal. If the Contracting Parties fail to submit their joint interpretation within 60 days of the Tribunal's request, the Tribunal shall decide the issue. The joint interpretation of the Contracting Parties is binding on the Tribunal.
Article 36. Expert Reports
1. Subject to paragraph 2, a Tribunal may appoint an expert to report to it in writing on a factual issue concerning environmental, health, safety or other scientific matter raised by a disputing party, subject to such terms and conditions as the disputing parties may decide.
2. The Tribunal may not appoint an expert under paragraph 1 if the disputing parties agree that the Tribunal may not do so.
3. Paragraph 1 does not affect the appointment of other kinds of experts where the appointment is authorized by the applicable arbitration rules.
Article 37. Interim Measures of Protection and Final Award
1. 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 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise). For the purposes of this paragraph, an order includes a recommendation.
2. Where a Tribunal makes a final award against the respondent Contracting Party, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent Contracting 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.
3. Subject to paragraph 2, 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):
(a) an award of monetary damages shall provide that the sum and any applicable interest 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 a right that a person may have, under a Contracting Party's domestic law, in monetary damages or property awarded under subparagraphs (a) or (b).
4. A Tribunal may not order the respondent Contracting Party to pay punitive damages.
Article 38. Finality and Enforcement of an Award
1. An award made by a Tribunal has 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, provided that a disputing party has not requested the award be revised or annulled, 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 Contracting Party shall provide for the enforcement of an award in its territory.
5. A claim that is submitted to arbitration under this Chapter shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 39. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Chapter, a respondent Contracting Party may not assert as a defence, counterclaim, right of setoff, or otherwise that the investor has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Chapter IV. Dispute Settlement Procedure between Contracting Parties
Article 40. Amicable Settlements
All disputes between the Contracting Parties relating to the interpretation or application of this Agreement shall be, whenever possible, settled amicably by consultations within the Joint Commission.
Article 41. Submission to a Special Arbitral Group
1. If a dispute cannot be settled by consultation within the Joint Commission, it shall, at the request of one of the Contracting Parties, be submitted to a special arbitral group for decision.
2. A special arbitral group shall be constituted for each dispute. Within two months after receipt through diplomatic channels of the request for arbitration, each Contracting Party shall appoint one member to the special arbitral group. The two members shall then select a national of a third State who, upon approval by the two Contracting Parties, shall be appointed Chair of the special arbitral group. The Chair shall be appointed within 60 days from the date of appointment of the other two members of the special arbitral group.
Article 42. Referral to the International Court of Justice for Appointments
1. In the case where the Contracting Parties have not proceeded with the appointments within the time limits set out in Article 41 (Submission to a Special Arbitral Group), each Contracting Party may invite the President of the International Court of Justice to proceed with the appointments.
2. If the President of the International Court of Justice is a national of one of the Contracting Parties or if he or she cannot fulfil this function for another reason, the Vice President shall be invited to proceed with the required appointments.
3. If the Vice-President is a national of one of the Contracting Parties, or if he or she cannot fulfil this function for another reason, the member of the International Court of Justice who is next in rank and who is not a national of one of the Contracting Parties shall be invited to proceed with the appointments.
Article 43. Profile of Arbitrators
1. Arbitrators shall have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent of, and not be affiliated with or take instructions from, a Contracting Party.
2. When a Contracting Party determines that a dispute involves measures adopted relating to financial institutions or to investors or their investments in those institutions or when a 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 1, have expertise or experience in financial services or practice, which may include the regulation of financial institutions.
Article 44. Decision of the Special Arbitral Group
The special arbitral group shall determine its own procedures and shall render its decision by a majority of votes. The decision of the special arbitral group is binding on the two Contracting Parties. Unless otherwise agreed, the decision of the special arbitral group shall be rendered within the six months of the appointment of the Chair.
Article 45. Costs of the Procedure
1. Each of the Contracting Parties shall bear the costs of the member of the special arbitral group that it appointed as well as the costs of its representation in the arbitral proceedings. The costs related to the Chair and any remaining costs shall be borne equally by the Contracting Parties.
2. The special arbitral group may, however, order that a higher percentage of costs be supported by one of the Contracting Parties, and this decision is binding on the Contracting Parties.
Article 46. Implementation of the Decision of the Special Arbitral Group
Within 60 days of the decision of a special arbitral group, the Contracting Parties shall reach an understanding regarding the manner in which to resolve their dispute. The understanding shall normally implement the decision of the special arbitral group. If the Contracting Parties fail to reach an understanding, the Contracting Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the special arbitral group.
Chapter V. Joint Commission
Article 47. Creation of the Joint Commission
The Contracting Parties hereby create a Joint Commission composed of their representatives.
Article 48. Mission of the Joint Commission
1. The meetings of the Joint Commission may cover the following issues:
(a) the implementation of this Agreement;
(b) the interpretation or application of this Agreement;
(c) the consultation on any measure that is adopted, proposed or about any other question that, in the opinion of one of the Contracting Parties, would be likely to affect the operation of this Agreement;
(d) the proposition of amendments to this Agreement.
2. In the application of this Chapter, each Contracting Party shall give sympathetic consideration to the requests of the other Contracting Party.
3. Following the meetings described in this Article, the Contracting Parties may implement all measures that they decide on, including elaborate and adopt rules that complement the arbitration regulations applicable under Chapter III of this Agreement.
Article 49. Operation of the Joint Commission
The Joint Commission generally meets once every two years for an ordinary session. Extraordinary sessions meet at the request of a Contracting Party. The sessions shall take place alternately on the territory of each Contracting Party or by way of any technical means.
Chapter VI. Final Provisions
Article 50. Scope of Obligations
Each of the Contracting Parties shall undertake all measures necessary to put into effect this Agreement including, unless otherwise provided, to ensure compliance with this Agreement, in the case of Canada, by its sub national governments, and, in the case of Benin, by its territorial communities.
Article 51. Exclusions
Chapters III and IV of this Agreement do not apply to questions covered in Annex IV.
Article 52. Application and Entry Into Force
1. Annexes I (Expropriation), II (Reservations for Future Measures), III (Exceptions from Most-Favoured-Nation Treatment), and IV (Exclusions from Dispute Settlement) are an integral part of this Agreement.
2. Each of the Contracting Parties shall notify by writing the other Contracting Party of the completion of procedures required in its territory for the entry into force of this Agreement. The Agreement shall enter into force on the date of the last notification.
3. This Agreement may be amended by agreement of the Contracting Parties, that is through their written mutual consent.
4. This Agreement shall remain in force unless a Contracting Party notifies the other Contracting Party in writing of its intention to terminate it. The termination of this Agreement shall be effective one year after notice of termination has been received by the other Contracting Party.
5. Articles 1 to 51 inclusively of this Agreement and paragraphs 1 and 2 of this Article remain in force for a period of 15 years in respect of investments or commitments to invest made prior to the date when the termination of this Agreement becomes effective.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at , this day of. 20 __, in the English and French languages, each version being equally authentic.
FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE REPUBLIC OF BENIN
Attachments
Annex i: expropriation
The Contracting Parties confirm their shared understanding that:
(a) indirect expropriation results from a measure or a series of measures of a Contracting Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
(b) the determination of whether a measure or a series of measures of a Contracting 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 the series of measures, although the sole fact that a measure or a series of measures of a Contracting 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 the series of measures interferes with distinct, reasonable investment-backed expectations, and
(iii) the character of the measure or the series of measures;
(c) except in rare circumstances, such as when a measure or a 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, a non-discriminatory measure of a Contracting Party that is designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, does not constitute indirect expropriation.
Annex ii: reservations for future measures
Schedule of Canada
In accordance with paragraph 2 of Article 18 (Reservations) of this Agreement, Canada reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:
(a) social services (i.e.: public law enforcement; correctional services, income security or insurance; social security or insurance; social welfare; public education; public training; health and child care), where the measure does not conform with the obligations imposed by Article 5 (National Treatment) or Article 9 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
(b) the rights or preferences provided to aboriginal peoples, where the measure does not conform with the obligations imposed by Article 5 (National Treatment), Article 6 (Most-Favoured-Nation Treatment), Article 9 (Senior Management, Boards of Directors and Entry of Personnel) or Article 10 (Performance Requirements) of this Agreement;
(c) the rights or preferences provided to socially or economically disadvantaged minorities, where the measure does not conform with the obligations imposed by Article 5 (National Treatment), Article 9 (Senior Management, Boards of Directors and Entry of Personnel) or Article 10 (Performance Requirements) of this Agreement;
(d) residency requirements for ownership of oceanfront land, where the measure does not conform with the obligations imposed by Article 5 (National Treatment) of this Agreement;
(e) government securities (i.e. acquisition, sale or other disposition by nationals of the other Contracting Party of bonds, treasury bills or other kinds of debt securities issued by the Government of Canada, or a provincial or local government), where the measure does not conform with the obligations imposed by Article 5 (National Treatment) of this Agreement;
(f) maritime cabotage, which means (a) the transportation of either goods or passengers by ship between points in the territory of Canada or above the continental shelf of Canada, either directly or by way of a place outside Canada; but with respect to waters above the continental shelf of Canada, the transportation of either goods or passengers only in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; and (b) the engaging by ship in any other marine activity of a commercial nature in the territory of Canada and, with respect to waters above the continental shelf, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; where the measure does not conform with the obligations imposed by Article 5 (National Treatment), Article 6 (Most Favoured-Nation Treatment), Article 9 (Senior Management, Boards of Directors and Entry of Personnel) or Article 10 (Performance Requirements) of this Agreement;
(g) licensing fishing or fishing related activities, including entry of foreign fishing vessels to Canada's exclusive economic zone, territorial sea, internal waters or ports and use of any services therein, where the measure does not conform with the obligations imposed by Article 5 (National Treatment) or Article 6 (Most Favoured Nation Treatment) of this Agreement;
(h) telecommunications services, where the measure does not conform with the obligations imposed by Article 5 (National Treatment) or Article 9 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement by limiting foreign investment in facilities-based telecommunications service suppliers, requiring that such service suppliers be controlled in fact by a Canadian, requiring that at least 80 percent of the members of the board of directors of such suppliers be Canadian, and imposing cumulative foreign investment level restrictions; and
(i) the establishment or acquisition in Canada of an investment in the services sector, where the measure does not conform with the obligations imposed by Article 5 (National Treatment), Article 9 (Senior Management, Boards of Directors and Entry of Personnel) or Article 10 (Performance Requirements) of this Agreement, provided that the measure is consistent with Canada's obligations under Articles II, XVI, XVII and XVIII of the WTO General Agreement on Trade in Services.
Schedule of the Republic of Benin
In accordance with paragraph 2 of Article 18 (Reservations) of this Agreement, Benin reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:
(a) the maintenince of public order, where the measure does not conform with the obligations imposed by Articles 5 (National Treatment) or 9 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
(b) the establishment or acquisition in Benin of an investment in the service sector, where the measure does not conform with the obligations imposed by Articles 5 (National Treatment), 9 (Senior Management, Boards of Directors and Entry of Personnel) or 10 (Performance Requirements), provided that the measure is consistent with Benin's obligations under Articles II, XVI, XVII and XVIII of the WTO General Agreement on Trade in Services;
(c) the residency requirements applicable to landowners, where the measure does not conform with the obligations imposed by Article 5 (National Treatment) of this Agreement;
(d) the investments concerning national heritage objects having artistic, historic or archaeological value, where the measure does not conform with the obligations imposed by Article 5 (National Treatment) of this Agreement.
Annex ill: exceptions from most-favoured-nation treatment
Schedule of Canada
1. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Canada under a bilateral or multilateral international agreement in force or signed prior to January 1, 1994.
2. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded
by Canada under an existing or future bilateral or multilateral agreement:
e¢ (a) establishing, strengthening or expanding a free trade area or customs union; or e (b) relating to:
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o (i) aviation, o (ii) fisheries, or o (iii) maritime matters, including salvage.
Schedule of the Republic of Benin
1. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Benin under a bilateral or multilateral international agreement in force or signed prior to January 1, 1994.
2. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Benin under an existing or future bilateral or multilateral agreement that, as the case may be:
¢ (a) grants advantages to bordering countries to facilitate border traffic;
e (b) establishes, strengthens or expands a free-trade zone or a customs union;
by Canada under an existing or future bilateral or multilateral agreement: