4. A claim shall be deemed submitted to arbitration under this Section when the claimant’s notice of or request for arbitration (“notice of arbitration”):
(a) referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) referred to in Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules, are received by the respondent; or
(d) referred to under any arbitral institution or arbitral rules selected under paragraph 3(d) is received by the respondent.
A claim asserted by the claimant for the first time after such notice of arbitration is submitted shall be deemed submitted to arbitration under this Section on the date of its receipt under the applicable arbitral rules.
5. In addition to any other information required by the applicable arbitral rules, the notice of arbitration shall also include information addressing each of the categories in Article 112.1(a) through 112.1(e). The claimant shall provide with the notice of arbitration:
(a) the name of the arbitrator that the claimant appoints; or
(b) the claimant’s written consent for the Secretary-General to appoint that arbitrator.
6. The arbitration rules applicable under paragraph 3, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Agreement.
Article 114. Consent of Each Party to Arbitration
1. Each Party consents to the submission of a claim to arbitration under this Section in accordance with this Chapter.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this Section shall satisfy the requirements of:
(a) Chapter II (Jurisdiction of the Centre) of the ICSID Convention and the ICSID Additional Facility Rules for written consent of the parties to the dispute; and
(b) Article II of the New York Convention for an “agreement in writing.”
Article 115. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than 3 years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under Article 113.1 and knowledge that the claimant (for claims brought under Article 113.1(a)) or the enterprise (for claims brought under Article 113.1(b)) has incurred loss or damage.
2. No claim may be submitted to arbitration under this Section unless:
(a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement;
(b) the claim arises from measures included in the request for consultations submitted by the claimant in accordance with Article 112; and
(c) the notice of arbitration is accompanied:
(i) for claims submitted to arbitration under Article 113.1(a), by the claimant’s written waiver, and
(ii) for claims submitted to arbitration under Article 113.1(b), by the claimant’s and the enterprise’s written waivers,
of any right to initiate or continue before any administrative tribunal or court under the law of a Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 113.
3. Notwithstanding paragraph 2(c), the claimant (for claims brought under Article 113.1(a)) and the claimant or the enterprise (for claims brought under Article 113.1(b)) may initiate or continue an action that seeks interim injunctive relief under the law of the respondent and does not involve the payment of monetary damages before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of preserving the claimant’s or the enterprise’s rights and interests during the pendency of the arbitration.
4. Notwithstanding paragraph 2(c)(ii), a waiver from the enterprise shall not be required if the respondent has deprived the claimant of its ownership or control of the enterprise.
Article 116. Constitution of the Tribunal
1. Unless the disputing parties otherwise agree, the tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
2. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
3. If a tribunal has not been constituted within 90 days from the date that a claim is submitted to arbitration under this Section, the appointing authority, on the request of a disputing party, shall appoint, in his or her discretion and after consulting with the disputing parties, the arbitrator or arbitrators not yet appointed.
4. Unless a disputing party disagrees, the appointing authority may appoint a presiding arbitrator who is a national of a Party.
5. 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 on a ground other than nationality:
(a) the respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) a claimant referred to in Article 113.1(a) may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant agrees in writing to the appointment of each individual member of the tribunal; and
(c) a claimant referred to in Article 113.1(b) may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant and the enterprise agree in writing to the appointment of each individual member of the tribunal.
Article 117. Governing Law
1. Subject to paragraph 3, when a claim is submitted under Article 113.1(a)(i)(A), or Article 113.1(b)(i)(A), the tribunal shall decide the issues in dispute in accordance with this Agreement and the applicable rules of international law (22).
2. Subject to paragraph 3 and the other terms of this Section, when a claim is submitted under Article 113.1(a)(i)(B), or Article 113.1(b)(i)(B), the tribunal shall apply:
(a) the rules of law specified in the pertinent investment agreement, or as the disputing parties may otherwise agree; or
(b) if the rules of law have not been specified or otherwise agreed:
(i) the law of the respondent, including its rules on the conflict of laws; (23) and
(ii) such rules of customary international law as may be applicable.
3. A joint decision of the Parties, acting through the Committee on Investment, 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 118. 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 113.1(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. (24)
5. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
Article 119. Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 8.
Section C. Definitions
Article 120. Definitions
For the purposes of this Chapter:
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. If that investor is a natural person, who is a permanent resident of a Party and a national of the other Party, that natural person may not submit a claim to arbitration against that latter 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 mean 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 mean the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Dispute;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 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; (25)
(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; (26), (27) 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 (28) between a national authority (29) 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 a 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 Maldives, a natural person who is a national of the Republic of Maldives as defined in the Constitution of Maldives.
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 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;
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is part of the WTO Agreement; and
UNCITRAL Arbitration Rules mean the arbitration rules of the United Nations Commission on International Trade Law.
Chapter 10. ECONOMIC AND TECHNICAL COOPERATION
Section A. General Provisions
Article 121. Objectives
1. The Parties agree to strengthen economic cooperation with the aim to enhance the mutual benefits of this Agreement in accordance with their national strategies and policy objectives. This Chapter shall build upon and complement existing or already planned bilateral cooperation initiatives and activities.
2. The objective of this Chapter is to establish a framework and mechanisms for present and future development of cooperative relations between the Parties.
3. The cooperation under this Chapter shall pursue the following objectives:
(a) facilitating the implementation of this Agreement with a view to promoting economic and social development of the Parties; and
(b) creating and enhancing sustainable trade and investment opportunities by facilitating trade and investment between the Parties and by strengthening competitiveness and capacities, with a view to promoting sustainable economic growth and development.
Article 122. Scope
1. Cooperation between the Parties under this Chapter will supplement the cooperation and cooperative activities between the Parties set out in other Chapters of this Agreement.
2. The Parties affirm the importance of all forms of cooperation, with particular attention to economic, trade, financial, technical, educational and cultural cooperation, as means to contribute to implementing the objectives and principles derived from this Agreement.
3. Cooperation may cover any area jointly identified by the Parties that may serve the Parties in attaining the objectives of this Chapter. Cooperation may include, but are not limited to the areas listed in Section B.
Article 123. Mechanisms for Cooperation
1. The Parties shall cooperate with the objective of identifying and employing effective methods and means for the implementation of this Chapter. To this end the Parties shall coordinate efforts with relevant international organizations and develop, where applicable, synergies with other forms of bilateral cooperation existing between the Parties.
2. In order to administrate this Chapter and to facilitate the management of cooperation activities, the Parties hereby establish a Committee on Economic and Technical Cooperation, under the FTA Joint Commission.
3. The Committee shall have the following functions:
(a) to oversee the implementation of this Chapter;
(b) to encourage the Parties to undertake cooperation activities under the cooperation framework established in this Chapter;
(c) to make recommendations on the cooperation modalities and activities under this Chapter, in accordance with the strategic priorities of the Parties; and
(d) to review the operation of this Chapter and the application and fulfillment of its objectives between the relevant authorities, including but not limited to the relevant government agencies, research institutes, and universities in order to foster closer cooperation in thematic areas; the review may be carried out through periodic reports from the Parties.
4. In order to implement cooperation activities, the Committee may suggest to conduct cooperation through appropriate means in accordance with each Party’s capabilities and available resources.
Article 124. Non-Application of Dispute Settlement
1. No Party shall have recourse to any dispute settlement procedures under this Agreement in respect of the provisions of this Chapter. For this purpose, Chapter 13 (Dispute Settlement) shall not apply to this Chapter.
2. Any dispute between the Parties concerning the interpretation or application of this Chapter shall, as far as possible, be settled through consultations between the Parties. Consultations shall take place in the FTA Joint Commission.
Section B. Areas of Cooperation
Article 125. Trade and Investment Promotion
Recognizing that strong trade and investment flows are important for the development of the respective economies, the Parties agree to explore cooperation in trade and investment promotion through, inter alia:
(a) enhancing the availability and transparency of information on investing and doing business in the Parties;
(b) enhancing the trade and investment environment by sharing best practices;
(c) encouraging the utilization of promotional forums for exports and investment opportunities in the Parties, and facilitating dialogue between firms and industry groups of the Parties; and
(d) enhancing maritime and aviation connections between the Parties to reduce the cost of trade and investment.
Article 126. Tourism Cooperation
The Parties, recognizing that strong tourism industry and people-to-people flows are important for the development of their respective economies, will endeavor to further cooperation in the field of tourism and tourism related service through, inter alia:
(a) strengthening the communications and exchanges between tourism authorities of the Parties;
(b) promoting information sharing on relevant statistics, promotional materials, policies, and laws and regulations in tourism and related sectors;
(c) enhancing the cooperation on research related to the development of tourism in form of seminars and joint studies;
(d) encouraging mutual investment in the tourism industry of each Party;
(e) strengthening cooperation on travellers protections and providing greater convenience and high quality services to the travellers;
(f) exploring possibility of tourism related human resources development cooperation; and
(g) facilitating tourism destination promotion.
Article 127. Fisheries and Agriculture Cooperation
The Parties, recognizing the importance of fisheries and agriculture sectors for their respective economies, will consider to seek greater cooperation in areas of mutual interests in fisheries and agriculture sectors under the current bilateral cooperation frameworks between their competent authorities.
Article 128. Industry Cooperation
The Parties, recognizing that there are opportunities for sharing knowledge and experiences in the development of industrial activities and in enhancing the competitiveness and trade of manufactured goods, will endeavor to explore cooperation through, among others: