(e) payments made pursuant to Article 8 (Expropriation and Compensation) and Article 9 (Compensation for Losses);
(f) payments arising out of the settlement of a dispute by any means including adjudication, arbitration or the agreement of the parties to the dispute; and
(g) earnings and other remuneration of personnel employed or engaged on contractual basis from abroad in connection with that investments as referred to in subparagraph 1(b) of Article 1 (Scope).
2. Each Party shall allow such transfers relating to an investment as referred to in subparagraph 1 (b) of Article 1 (Scope) to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.
3. Notwithstanding paragraphs 1 and 2 of this Article, a Party may prevent or delay a transfer through the equitable, non-discriminatory, and good faith application of its laws and regulations relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors:
(b) issuing, trading, or dealing in securities, futures, options, or derivatives;
(c) criminal or penal offences and the recovery of the proceeds of crime;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings;
(f) taxation;
(g) social security, public retirement, or compulsory savings schemes, including provident funds, retirement gratuity programmes and employees insurance programmes;
(h) severance entitlements of employees;
(i) requirement to register and satisfy other formalities imposed by the Central Bank and other relevant authorities of a Party; and
(j) in the case of India, requirements to lock-in initial capital investments, as provided in Indias Foreign Direct Investment (FDI) Policy, where applicable, provided that, any new measure which would require a lock-in period for investments should not apply to existing investments.
4. Nothing in this Agreement shall affect the rights and obligations of the Parties as members of the IMF under the IMF Articles of Agreement, as may be amended, including the use of exchange actions which are in conformity with the IMF Articles of Agreement, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 12 (Temporary Safeguard Measures) or at the request of the IMF.
Article 12. Temporary Safeguard Measures
1. A Party may adopt or maintain measures not conforming with its obligations under Article 3 (National Treatment) relating to cross-border capital transactions or Article 11 (Transfers) in the event of serious balance of payments and external financial difficulties or under threat thereof.
2. A Party may adopt or maintain measures not conforming with its obligations under Article 11 (Transfers) in cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious economic or financial disturbance or serious difficulties for the operation of monetary or exchange rate policies in the Party concerned. (11)
3. The measures referred to in paragraphs 1 and 2 of this Article shall:
(a) be consistent with the IMF Articles of Agreement, as may be amended;
(b) avoid unnecessary damage to the commercial, economic and financial interests of another Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1 or 2;
(d) be temporary and phased out progressively as the situation specified in paragraph 1 improves; and
(e) be applied such that any one of the other Parties is treated no less favourably than any other Party or non-Party.
4. Measures adopted or maintained pursuant to paragraph 2 of this Article shall, in addition to subparagraphs 3{a) to (e) of this Article:
(a) be phased out when conditions would no longer justify their institution or maintenance;
(b) be applied on a national treatment basis; and
(c) avoid unnecessary damage to investors and investments as referred to in subparagraph 1 (b) of Article 1 (Scope) of another Party.
5. Any restrictions adopted or maintained under paragraphs 1 and 2 of this Article or any changes therein, shall be promptly notified to the other Parties.
6. To the extent that it does not duplicate the process under the WTO, IMF, or any other similar processes, the Party adopting any restrictions under paragraph 1 of this Article shall, on the request of another Party, commence consultations in order to review the restrictions adopted by it.
Article 13. Denial of Benefits
1. A Party may deny the benefits of this Agreement to an investor of another Party that is a juridical person of the other Party and to an investment of such investor if an investor of a non-Party owns or controls the juridical person, and the denying Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party that prohibits transactions with the juridical person or that would be violated or circumvented if the benefits of this Agreement were accorded to the juridical person or to its investments.
2. Subject to prior notification and consultation with the other Party, a Party may also deny the benefits of this Agreement to an investor of the other Party that is a juridical person of the other Party and to investments of that juridical person and where the denying Party establishes that:
(a) the juridical person has no substantive business operations in the territory of the other Party; or
(b) the juridical person is owned or controlled by investor(s) of a non-Party or of the denying Party.
3. A juridical person is:
(a) owned by an investor in accordance with the laws, regulations and national policies of each Party;
(b) controlled by an investor if the investor has the power to name a majority of its directors or otherwise to legally direct its actions.
4. Following notification, and without prejudice to paragraph 1 of this Article, in the case of the Republic of the Philippines, the Philippines may deny the benefits of this Agreement to an investor of any other Party and to investments of that investor, where it establishes that such investor has made an investment in breach of the provisions of Commonwealth Act No. 108 (An Act to Punish Acts of Evasion of Laws on the Nationalization of Certain Rights, Franchises or Privileges) as amended by Presidential Decree No. 715, otherwise known as the Anti-Dummy Law, as may be amended.
Article 14. Transparency
1. In order to achieve the objectives of this Agreement, each Party shall:
(a) to the extent possible make available all relevant laws, regulations, policies and administrative guidelines of general application that pertain to, or affect investments in its territory;
(b) establish or designate an enquiry point where, upon request of any natural person, juridical person or any one of the other Parties, all information relating to the measures required to be published or made available under subparagraph (a) may be promptly obtained; and
(c) notify the other Parties through the ASEAN Secretariat at least once annually of any investment-related agreements or arrangements which grants any preferential treatment and to which it is a party.
2. Each Party shall endeavour, upon request by another Party, to respond promptly to specific questions and provide information to that other Party with respect to matters referred to in paragraph 1 of this Article.
3. Nothing in this Agreement shall require a Party to furnish or allow access to confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular juridical persons, public or private.
4. All notifications and communications made pursuant to paragraph 1 of this Article shall be in the English language.
Article 15. Special Formalities and Disclosure of Information
1. Nothing in Article 3 (National Treatment) shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with an investment, including a requirement that such an investment be legally constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the rights afforded by a Party to investors of another Party and their investments pursuant to this Agreement.
2. Notwithstanding Article 3 (National Treatment), a Party may require an investor of another Party, or investment, to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect to the extent possible any confidential information which has been provided from any disclosure that would prejudice legitimate commercial interests of the investor or the investments. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its laws.
Article 16. Special and Differential Treatment for the Newer Asean Member States
In order to increase the benefits of this Agreement for the newer ASEAN Member States, and in accordance with the objectives of and the Preamble to this Agreement and objectives of Article 2 (Measures for Economic Cooperation) of the Framework Agreement, the Parties shall accord, to the extent possible, special and differential treatment to the newer ASEAN Member States under this Agreement, through:
(a) technical assistance to strengthen their capacity in relation to investment policies and promotion, including in areas such as human resource development;
(b) access to information on the investment policies of other Parties, business information, relevant databases and contact points for investment promotion agencies;
(c) commitments in areas of interest to the newer ASEAN Member States; and
(d) recognising that commitments by each newer ASEAN Member State may be made in accordance with its individual stage of development.
Article 17. Promotion of Investment
The Parties shall cooperate in promoting investment activities by building upon existing agreements or arrangements already in place for economic cooperation, with the aim of advancing investment relations between the Parties through, amongst others:
(a) encouraging ASEAN-India investments;
(b) organising investment promotion activities;
(c) promoting business matching events;
(d) organising and supporting the organisation of various briefings and seminars on investment opportunities and on investment laws, regulations and policies; and
(e) conducting information exchanges on other issues of mutual concern relating to investment promotion and facilitation.
Article 18. Facilitation of Investment
Subject to their laws and regulations, the Parties shall cooperate to facilitate investments amongst ASEAN and India through, amongst others:
(a) endeavour to create the necessary environment for all forms of investment;
(b) simplifying procedures for investment applications and approvals;
(c) promoting dissemination of investment information, including investment rules, regulations, policies and procedures; and
(d) establishing one-stop investment centres in the respective host Parties to provide assistance and advisory services to the business sectors including facilitation of operating licences and permits.
Article 19. Dispute between Parties
The provisions of the Agreement on Dispute Settlement Mechanism under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the Republic of India signed in Bangkok, Thailand on 13 August 2009 shall apply to the settlement of disputes between or amongst the Parties under this Agreement.
Article 20. Investment Disputes between a Party and an Investor
Scope
1. This Article shall apply to investment disputes between a Party and an investor of another Party concerning an alleged breach of an obligation of the former Party under Article 3 (National Treatment), Article 7 (Treatment of Investment), Article 8 (Expropriation and Compensation), Article 9 (Compensation for Losses) and Article 1 1 (Transfers), which causes loss or damage to the investor in relation to its investment as referred to in subparagraph 1 (b) of Article 1 (Scope) with respect to the management, conduct, operation, or sale or other disposition of such investment.
2. This Article shall not apply:
(a) to investment disputes arising out of events which occurred or to investment disputes which had been settled or which were already under judicial or arbitral process, prior to the entry into force of this Agreement; or
(b) in cases where the disputing investor holds the nationality or citizenship of the disputing Party.
3. Nothing in this Article shall be construed so as to prevent a disputing investor from seeking administrative or judicial settlement available within the disputing Party.
4. For the purpose of this Article;
(a) disputing Party means a Party against which a claim is made under this Article;
(b) disputing party means a disputing investor or a disputing Party;
(c) disputing parties means a disputing investor and a disputing Party;
(d) disputing investor means an investor of a Party that makes a claim against another Party on its own behalf under this Article, and where relevant includes an investor of a Party that makes a claim on behalf of a juridical person of the disputing Party that the investor owns or controls;
(e) ICSID means the International Centre for Settlement of Investment Disputes;
(f) 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;
(g) 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',
(h) New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 1 0 June 1958;
(i) non-disputing Party means the Party of the disputing investor; and
(j) UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law approved by the United Nations General Assembly on 15 December 1976.
Consultation and Negotiation
5. In the event of an investment dispute referred to in paragraph 1 of this Article, the disputing parties shall as far as possible resolve the dispute through consultations and negotiations, with a view towards reaching an amicable settlement. Such consultations and negotiations, which may include the use of non-binding, third party procedures, shall be initiated by a written request for consultations and negotiations by the disputing investor to the disputing Party.
6. With the objective of resolving an investment dispute through consultations and negotiations, a disputing investor shall provide the disputing Party, prior to the commencement of consultations and negotiations, with information regarding the legal and factual basis for the dispute.
Choice of Forum
7. Where the dispute cannot be resolved as provided for under paragraph 5 of this Article within one hundred eighty (180) days from the date of written request for consultations and negotiations, unless the disputing parties agree otherwise, it may be submitted at the choice of the disputing investor to:
(a) the courts or administrative tribunals of the disputing Party; (12)
(b) conciliation or arbitration in accordance with the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, (13) provided that both the disputing Party and the nondisputing Party are parties to the ICSID Convention;
(c) conciliation or arbitration under the ICSID Additional Facility Rules, provided that either of the disputing Party or the non-disputing Party is a party, but not both, to the ICSID Convention;
(d) an international ad hoc arbitral tribunal established under the UNCITRAL Arbitration Rules; or
(e) any other arbitral institution or in accordance with any other arbitral rules, if the disputing parties agree.
Provided that submission of the dispute by the disputing investor to any courts or administrative tribunals or to any fora or any arbitration rules under subparagraphs 7(a) to (e) shall exclude resort to the other.
Conditions and Limitations on Submission of Claim
8. The submission of a dispute to conciliation or arbitration under subparagraph 7(b), (c), (d) or (e) of this Article in accordance with the provisions of this Article, shall be conditional upon:
(a) the submission of the dispute to such conciliation or arbitration taking place within three (3) years of the time at which the disputing investor became aware, or should reasonably have become aware of an alleged breach of an obligation under this Agreement causing loss or damage to the investor in relation to its investment as referred to in subparagraph 1 (b) of Article 1 (Scope); and
(b) the disputing investor providing to the disputing Party a written notice of intent at least ninety (90) days before the claim is submitted. The notice of intent shall specify:
(i) either subparagraph 7(b), (c), (d) or (e) as the forum for dispute settlement and, in the case of subparagraph 7(b), whether conciliation or arbitration is being sought;
(ii) the name and address of the disputing investor and its legal representative;
(iii) the waiver of the right to initiate or continue any proceedings, excluding proceedings for interim measures of protection referred to in paragraph 30 of this Article, before any other dispute settlement fora referred to in paragraph 7 of this Article in relation to the matter under dispute;
(iv) A brief summary of the factual and legal basis of the dispute sufficient to present the problem clearly, including the provisions of this Agreement alleged to have been breached and the relevant measure at issue, as may be applicable; and
(v) the relief sought, and where appropriate, the approximate amount of damages claimed.
9. The applicable arbitration rules shall govern the arbitration referred to in this Article except to the extent modified by the Parties in this Article.
Selection of Arbitrators
10. Unless the disputing parties agree otherwise, an arbitral tribunal established under subparagraphs 7(b), (c), (d) and (e) of this Article shall comprise three (3) arbitrators, one (1) arbitrator appointed by each of the disputing parties within seventy-five (75) days from the date the investment dispute was submitted for arbitration. The third arbitrator, who shall be the presiding arbitrator, shall be appointed by agreement of the disputing parties. If the disputing investor or the disputing Party fails to appoint their respective arbitrators within seventy-five (75) days from the date on which the investment dispute was submitted to arbitration, the Secretary-General of ICSID in the case of arbitration referred to in subparagraph 7(b) or (c) of this Article, or the Secretary-General of the Permanent Court of Arbitration (PCA) in the case of arbitration referred to in subparagraph 7(d) or (e) of this Article, on the request of either of the disputing parties, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed from the ICSID or PCA Panel of Arbitrators respectively, subject to the requirements of paragraph 11 of this Article.
11. Unless the disputing parties agree otherwise, the third arbitrator shall:
(a) not be of the same nationality as the disputing investor, nor be a national of the disputing Party;
(b) not have his or her usual place of residence in the territory of either disputing Party or nondisputing Party;
(c) not be employed by nor affiliated with the disputing Party, the non-disputing Party, or the disputing investor;
(d) not have dealt with the said investment dispute in any capacity; and
(e) have expertise or experience in public international law, international trade or international investment rules.
Conduct of Arbitration
12. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, the tribunal shall decide the matter before proceeding to the merits.
13. A disputing Party may, no later than three (3) months after the constitution of the tribunal, file an objection that a claim is manifestly without merit or not admissible. A disputing Party may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Party shall specify as precisely as possible the basis for the objection.
14. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal, if the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect.
15. The tribunal may, if warranted, award the prevailing disputing party reasonable costs and fees incurred in submitting or opposing the objection, in determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to submit their comments.
16. Unless the disputing parties otherwise agree, the place of arbitration shall be determined in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
Transparency
17. Subject to paragraph 18 of this Article, the disputing Party may make publicly available final awards and decisions made by the tribunal.
18. Any information specifically designated as confidential that is submitted to the tribunal or the disputing parties shall be protected from disclosure to the public.
Joint Interpretation
19. The tribunal shall, on its own account or at the request of a disputing Party, request a joint interpretation of any provision of this Agreement that is in issue in a dispute. The Parties shall submit in writing any joint decision declaring their interpretation to the tribunal within sixty (60) days of the request. Without prejudice to paragraph 20 of this Article, if the Parties fail to submit such a decision within sixty (60) days, any interpretation submitted by a Party individually shall be forwarded to the disputing parties and the tribunal, which shall decide the issue on its own account.
20. A joint decision of the Parties, declaring their interpretation of a provision of this Agreement shall be binding on the tribunal, and any decision or award issued by the tribunal must be consistent with that joint decision.
Awards
21. The award shall include:
(a) a judgment as to whether or not there has been a breach by the disputing Party of any rights conferred by this Agreement in respect of the disputing investor and its investments; and
(b) a remedy if there has been such breach. The remedy shall be limited to one or both of the following:
(i) payment of monetary damages and applicable interest; and
(ii) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
22. A tribunal may not award punitive damages.
23. An award made by a tribunal shall be final and binding upon the disputing parties. An award shall have no binding force except between the disputing parties and in respect of the particular case.
24. The award rendered in accordance with paragraph 21 of this Article shall be final and binding upon the disputing parties. The disputing Party shall provide for the enforcement of such award and execute it without delay. (14)
25. Subject to paragraph 26 of this Article and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay. (15)
26. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award under the ICSID Convention:
(i) one hundred twenty (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;
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to subparagraph 7(e) of this Article:
(i) ninety (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