3. A joint decision of the Parties declaring their interpretation of a provision of this Agreement shall be binding on a tribunal of any ongoing or subsequent dispute, and any decision or award issued by such a tribunal must be consistent with that joint decision.
Article 11.24. Discontinuance
If, following the submission of a claim under this Section, the claimant fails to take any steps in the proceeding during 180 consecutive days or such periods as the disputing parties may agree, the claimant shall be deemed to have withdrawn its claim and to have discontinued the proceedings. In case that a Tribunal has been established according to this Section, it shall, at the request of the respondent, and after notice to the disputing parties, take note of the discontinuance in an order and issue an award on costs. After such an order has been rendered, the authority of the Tribunal shall lapse. The claimant may not subsequently submit a claim on the same matter. This Article is without prejudice to the Tribunal’s authority to discontinue the proceedings in according with the applicable arbitrations rules.
Article 11.25. Awards
1. Where a tribunal makes an award against a respondent, 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 may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorney’s fees in accordance with this Section and the applicable arbitration rules.
2. Subject to paragraph 1, where a claim is submitted to arbitration under Article 11.18.1(b):
(a) an award of restitution of property shall provide that restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic laws.
3. A tribunal may not award punitive damages.
4. The award shall be made available to the public promptly. (41)
5. A disputing party shall not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to Article 11.18.4(d) :
(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.
6. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
Article 11.26. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a tribunal, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety, or other scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 11.27. Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 11-D.
Article 11.28. Definitions
For purposes of this Chapter:
central level of government means:
(a) for China, the central level of government; and
(b) for Nicaragua, the central level of government;
Centre means the International Centre for Settlement of Investment Disputes (“ICSID”) established by the ICSID Convention;
claimant means an investor of a Party that is a party to an investment dispute with the other Party;
covered investment means, with respect to a Party, an investment in its territory of an
investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired, or expanded thereafter;
disputing parties means the claimant and the respondent;
disputing party means either the claimant or the respondent;
enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization; and a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the law of a Party and a branch located in the territory of a Party and carrying out business activities there;
freely usable currency means “freely usable currency” as determined by the International Monetary Fund under its Articles of Agreement;
government procurement means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale;
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on 18 March, 1965;
investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise;
(c) bonds, debentures, loans, and other debt instruments, including debt instruments issued by a Party or an enterprise; (42)
(d) futures, options and other derivatives;
(e) turnkey, construction, management, production, concession, revenue-sharing and other similar contracts;
(f) intellectual property rights;
(g) licenses, authorizations, permits, and similar rights conferred pursuant to domestic law; (43), (44) and
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges;
investment agreement means a written agreement (45) between a national authority (46) of a Party and a covered investment or an investor of the other Party, on which the covered investment or the investor relies in establishing or acquiring a covered investment other than the written agreement itself, that grants rights to the covered investment or investor:
(a) with respect to natural resources that a national authority controls, such as for their exploration, extraction, refining, transportation, distribution, or sale;
(b) to supply services to the public on behalf of the Party, such as power generation or distribution, water treatment or distribution, or telecommunications; or
(c) to undertake infrastructure projects, such as the construction of roads, bridges, canals, dams, or pipelines, that are not for the exclusive or predominant use and benefit of the government;
investor of a non-Party means, with respect to a Party, an investor that attempts to make, is making, or has made an investment in the territory of that Party, that is not an investor of either Party;
investor of a Party means a Party, a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party;
national means:
(a) for China, a natural person who is a national of the People's Republic of China as defined in the Nationality Law of the People's Republic of China; and
(b) for Nicaragua, a Nicaraguan (nicaragüense) as defined in Article 15 of the Political Constitution of the Republic of Nicaragua.
For the purposes of this Chapter, a natural person who is a dual national shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality.
New York Convention means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June, 1958;
non-disputing Party means the Party that is not a party to an investment dispute;
person means a natural person or an enterprise;
person of a Party means a national or an enterprise of a Party;
protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party’s law;
respondent means the Party that is a party to an investment dispute;
Secretary-General means the Secretary-General of ICSID;
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law.
Annex 11-A. CUSTOMARY INTERNATIONAL LAW
The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Article 11.4 and Annex 11-B results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 11.4, the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.
Annex 11-B. EXPROPRIATION
The Parties confirm their shared understanding that:
1. Article 11.6.1 is intended to reflect customary international law concerning the obligation of States with respect to expropriation.
2. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
3. Article 11.6.1 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure.
The second situation addressed by Article 11.6.1 is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and
(iii) the character and objective of the government action.
(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public moral, public health, safety, and the environment, do not constitute indirect expropriations.
Annex 11-C. TEMPORARY SAFEGUARD MEASURES
1. In the event of serious balance-of-payments difficulties, external financial difficulties, or threat thereof, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers relating to the movements of capital.
2. Any measures adopted or maintained under paragraph 1 shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
(b) be temporary and be phased out progressively as the situation specified in paragraph 1 improves, and shall not exceed 18 months in duration; however, if extremely exceptional circumstances arise, a Party may extend such measures for one 12-month period after advance notice and consultations with the other Party;
(c) not be inconsistent with Articles 11.2 and 11.3;
(d) not be inconsistent with Article 11.6;
(e) not result in multiple exchange rates; and
(f) be promptly notified to the other Party and published as soon as practicable.
Annex 11-D. SERVICE OF DOCUMENTS ON A PARTY
China
Notices and other documents in disputes under Section B shall be served on China by delivery to:
Department of Treaty and Law
Ministry of Commerce of the People’s Republic of China 2 Dong Chang’an Avenue
Beijing, 100731
People’s Republic of China
Nicaragua
Notices and other documents in disputes under Section B shall be served on Nicaragua by delivery to:
General Directorate of Foreign Trade (Dirección General de Comercio Exterior) Ministry of Development, Industry and Trade (Ministerio de Fomento, Industria y Comercio (MIFIC))
Km. 6, Carretera a Masaya, Managua, Nicaragua.
Chapter 12. DIGITAL ECONOMY
Article 12.1. General Provisions
1. The Parties recognize the pivotal role of the digital economy for the modernization and transformation of the industry, promotion of inclusive economic growth, facilitation of decision-making process and stimulation of the national economies to meet the UN 2030 Agenda for Sustainable Development Goals.
2. The objective of this Chapter is to build a forward-looking, inclusive and open digital economy partnership framework, to explore ways to leverage digital opportunities, accelerate digital transformation and create new drivers for sustainable development.
3. The Parties shall, in principle, endeavour to ensure that bilateral trade in electronic commerce shall be no more restricted than comparable non-electronic bilateral trade.
Article 12.2. Domestic Electronic Transactions Framework
1. The Parties shall adopt or maintain measures regulating electronic transactions based on the following principles:
(a) a transaction including a contract shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of an electronic communication; and
(b) Parties should not arbitrarily discriminate between different forms of electronic transactions.
2. Nothing in paragraph 1 prevents a Party from making exceptions in its domestic law to the general principles outlined in paragraph 1.
3. The Parties shall:
(a) minimise the regulatory burden on electronic commerce; and
(b) ensure that regulatory frameworks support development of electronic commerce.
Article 12.3. Electronic Signatures
1. No Party may adopt or maintain legislation for electronic signature that would deny the legal validity of a signature solely on the basis that the signature is in electronic form.
2. The Parties shall maintain domestic legislation for electronic signature that permits parties to electronic transaction to mutually determine the appropriate electronic signature unless there is a domestic or international legal requirement to the contrary.
3. The Parties shall work towards the mutual recognition of digital certificates and electronic signatures.
4. The Parties shall encourage the use of digital certificates in the business sector.
Article 12.4. Online Consumer Protection
The Parties shall, to the extent possible and in a manner considered appropriate, adopt or maintain measures which provide protection for consumers using electronic commerce that is at least equivalent to measures which provide protection for consumers of other forms of commerce.
Article 12.5. Online Personal Data Protection
Recognizing the importance of protecting personal information in electronic commerce, the Parties shall adopt or maintain domestic laws and other measures which ensure the protection of the personal information of the users of electronic commerce.
Article 12.6. Paperless Trading
1. A Party shall endeavour to accept electronic versions of trade administration documents used by the other Party as the legal equivalent of paper documents, except where:
(a) there is a domestic or international legal requirement to the contrary; or
(b) doing so would reduce the effectiveness of the trade administration process.
2. The Parties shall work towards developing a single window to government incorporating relevant international standards for the conduct of trade administration, recognizing that the Parties will have their own unique requirements and conditions.
3. Subject to domestic laws and regulations and taking into account capacity constraints, the Parties encourage the use of electronic means to promote trade facilitation, such as paperless customs clearance, use of electronic documents, mutual recognition of electronic signature, and use of electronic payment.
4. The Parties encourage cooperation in the field of Information and Communications Technology (ICT), including exchange of experiences and good practices on managing E-ports, national single windows and port community system, to improve port management, logistics, supply chain and trade facilitation work.
Article 12.7. Medium, Small and Micro Enterprises
1. The Parties encourage cooperation to support the increased participation of Medium, Small and Micro Enterprises (hereinafter referred to as “MSMEs”) in the digital economy by building a conducive policy environment and enhancing MSMEs’ digital capacities.
2. The Parties shall consider exchanging good practices in leveraging digital tools including digital platform for supporting entrepreneurs and technologies to improve MSME’s’ access to capital and credit, and non-financial support measures.
3. The Parties shall consider fostering close cooperation on the digital economy between MSMEs of the Parties by holding relevant events and activities among the government officials, business communities, academia and other stakeholders.
Article 12.8. Cooperation on Digital Economy
1. The Parties shall encourage cooperation in research and training activities that would enhance the development of electronic commerce, including by sharing best practices on electronic commerce development.
2. The Parties shall encourage cooperative activities to promote electronic commerce, including those that would improve the effectiveness and efficiency of electronic commerce.
3. The cooperative activities referred to in paragraphs 1 and 2 may include, but are not limited to:
(a) sharing best practices about regulatory frameworks;
(b) sharing best practices about on-line consumer protection, including unsolicited commercial electronic messages;