1. The disputing parties may at any time, be it after notice of intent to submit a claim to arbitration has been given or after a claim has been submitted to arbitration, agree to mediation.
2. Mediation is voluntary and does not prejudice the position of each disputing party.
3. Mediation is governed by the rules jointly determined by the disputing parties.
Article 24. Special Rules Regarding Financial Services
1. With respect to:
(a) financial institutions of a Party; and
(b) investors of a Party, and investments of those investors, in financial institutions in the respondent Party's territory,
this Section applies only in respect of claims that the respondent Party has breached an obligation under Article 10 (Expropriation), 11 (Transfers) or 19 (Denial of Benefits).
2. Where an investor or respondent Party claims that a dispute involves measures adopted or maintained by the respondent Party relating to financial institutions of the other Party or investors of the other Party and their investments in financial institutions in the respondent Party's territory, or where the respondent Party invokes Article 11(6) (Transfers), 18(2) or 18(3) (General Exceptions), the arbitrators shall, in addition to the criteria set out in Article 27(2) (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 Section, and the respondent Party invokes Article 11(6) (Transfers), 18(2) or 18(3) (General Exceptions), at the request of that Party, the Tribunal shall request a report in writing from the 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 Parties shall prepare a written report. If the Parties cannot agree on the content of the report, they shall submit the issue to an arbitral panel established in accordance with Section D (State-to-State Dispute Settlement Procedures) 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 panel pursuant to paragraph 4 has been made and no report has been received by the Tribunal.
Article 25. Submission of a Claim to Arbitration
1. An investor that meets the conditions precedent in Article 22 (Conditions Precedent to Submission of a Claim to Arbitration) may submit a claim to arbitration under:
(a) the ICSID Convention, provided that both Parties are parties to the ICSID Convention;
(b) the Additional Facility Rules of ICSID, if only one Party is a party to the ICSID Convention;
(c) the UNCITRAL Arbitration Rules; or
(d) any other instrument that allows the arbitration procedure to be conducted in accordance with the provisions of this Agreement and that is adopted or applied by the national or regional arbitration centre proposed by the investor, provided that the disputing parties so agree. If the disputing parties cannot reach an agreement in this regard within 30 days following the investor's proposal, the investor may submit a claim under the instruments in paragraphs (a), (b) or (c).
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 Section.
3. The Parties may adopt supplemental rules of procedure that complement the arbitration rules listed in paragraph 1 and that apply to the arbitration. The 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 Section 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 Party.
5. Each Party shall notify the other Party by diplomatic note of the place of delivery of notices and other documents.
Article 26. Consent to Arbitration
1. Each 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 22 (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 satisfies 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
(b) Article II of the New York Convention for an agreement in writing.
Article 27. Arbitrators
1. Except in respect of a Tribunal established under Article 29 (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 will 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 the disputing parties, impartial, free of any real or perceived conflicts of interest, and not be affiliated with or take instructions from either of the disputing parties.
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 29 (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, in consultation with the disputing parties. The Secretary-General of ICSID may not appoint as presiding arbitrator a national of a Party.
Article 28. 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 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 Article 21(1) (Claim by an Investor of a 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 Article 21(2) (Claim by an Investor of a 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 29. 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 Party or investors against which the order is sought;
(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 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 Party, one member who is a national of the Party of the investors that submitted the claims, and a presiding arbitrator who is not a national of a 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 Section.
5. If a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 25 (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 disputing parties, 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 25 (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 25 (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 25 (Submission of a Claim to Arbitration) be stayed unless the latter Tribunal has already adjourned its proceedings.
Article 30. Documents to, and Participation of, the other Party
1. The respondent Party shall deliver to the other Party a copy of the notice of intent to submit a claim to arbitration and other documents within 30 days of the date those documents have been delivered to the respondent Party. The other Party is entitled, at its expense, to receive from the respondent 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 Party receiving such information shall treat the information as if it were a respondent Party.
2. The other Party has the right to attend hearings held under this Section. Upon written notice to the disputing parties, the other Party may make submissions to the Tribunal on questions of interpretation of this Agreement.
Article 31. Place of Arbitration
The disputing parties may agree on the place of arbitration under the arbitral rules applicable under Article 25(1) (Submission of a Claim to Arbitration) or 29(4) (Consolidation). If the disputing parties fail to agree, the Tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a Party or of a third State that is a party to the New York Convention.
Article 32. Public Access to Hearings and Documents
1. A Tribunal award under this Section shall be publicly available, including via the internet, 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 Section 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 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 Section, 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 Party's law on access to information requires public access to that information, the Party's law on access to information prevails. However, the 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 33. 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. The procedures set out in Annex IV (Procedural Rules for Submissions by Amicus Curiae) apply.
Article 34. Governing Law
1. A Tribunal established under this Section shall decide the issues in dispute consistently with this Agreement and applicable rules of international law. A joint interpretation by the Parties of a provision of this Agreement shall bind a Tribunal established under this Section, and an award under this Section must be consistent with that interpretation.
2. When the respondent 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 Article 17(1) (Reservations and Exceptions), or Annexe II (Reservations for Future Measures) or III (Exceptions from Most-Favoured-Nation Treatment), the Tribunal shall, at the request of that Party, request the joint interpretation of the Parties on the issue. Within 60 days of the delivery of the request, the Parties shall submit in writing their joint interpretation to the Tribunal. If the Parties fail to submit their joint interpretation within 60 days of the Tribunal's request, the Tribunal shall decide the issue. The joint interpretation is binding on the Tribunal.
Article 35. Expert Reports
1. Subject to paragraph 2, a Tribunal may appoint an expert to submit a written report to it on any factual element that relates to an issue involving the environment, health, safety, security, or another scientific field that is raised by a disputing party, subject to any terms that are determined by the disputing parties.
2. The Tribunal may not appoint an expert under paragraph 1 if the disputing parties agree that the Tribunal may not do so. The disputing parties are encouraged to provide the Tribunal with the reasons for such an agreement.
3. Paragraph 1 does not affect the appointment of other kinds of experts where the appointment is authorized by the applicable arbitration rules.
Article 36. 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 21 (Claim by an Investor of a 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 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 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 Article 21(2) (Claim by an Investor of a Party on Behalf of an Enterprise):
(a) an award of monetary damages and any applicable interest shall provide that the sum 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 in monetary damages or property awarded under paragraph (a) or (b) under a Party's domestic law.
4. A Tribunal may not order the respondent Party to pay punitive damages. Article 37
Article 37. 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 Party shall provide for the enforcement of an award in its territory.
5. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 38. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a respondent 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.
Section D. State-to-state Dispute Settlement Procedures
Article 39. Disputes between the Parties
1. A dispute between the Parties concerning the interpretation or application of this Agreement shall be settled, if possible, through diplomatic channels.
2. If a dispute cannot be settled through diplomatic channels, the dispute is submitted to a joint commission composed of the representatives of each Party. The joint commission shall meet without delay, by any technological means available, at the request of one of the Parties. If the joint commission is unable to settle the dispute within six months of the date that the Parties request a joint commission, the dispute shall, at the request of a Party, be submitted to an arbitral panel for decision.
3. Within two months after receipt through diplomatic channels of the request for arbitration, each Party shall appoint one member to the arbitral panel. The two members shall then select a national of a third State, who, upon approval by the two Parties, shall be appointed Chair of the arbitral panel. The Chair shall be appointed within two months from the date of appointment of the other two members of the arbitral panel.
4. If within the periods specified in paragraph 3 the necessary appointments have not been made, a Party may invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of a Party or is prevented from discharging that function for another reason, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of a Party or is prevented from discharging this function for another reason, the Member of the International Court of Justice next in seniority who is not a national of a Party shall be invited to make the necessary appointments.
5. 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 Party.
6. Where a Party determines that the dispute involves measures relating to financial institutions, or to investors or investments of such investors in financial institutions, or where a Party invokes Article 11(6) (Transfers), 18(2) or 18(3) (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 5, have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
7. The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. The decision is binding on both Parties. Unless otherwise agreed, the decision of the arbitral panel shall be rendered within six months of the appointment of the Chair.
8. Each Party shall bear the costs of its own member of the panel and of its representation in the arbitral proceedings. The costs related to the Chair and any remaining costs shall be borne equally by the Parties. The arbitral panel may, however, award that a higher proportion of costs be borne by one of the two Parties, and this award shall be binding on both Parties.
9. Within 60 days of the decision of an arbitral panel, the Parties shall agree on the manner in which to resolve their dispute. The agreement must normally implement the decision of the arbitral panel. If the Parties fail to agree, the Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel.
Section E. Final Provisions
Article 40. Consultations, Amendments and other Actions
1. A Party may request in writing consultations with the other Party regarding an actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
2. The consultations under paragraph 1 may address, inter alia, matters relating to:
(a) the implementation of this Agreement;
(b) the interpretation or application of this Agreement; or
(c) the proposed amendments to this Agreement.
3. Further to consultations under this Article, the Parties may take an action as they may agree, including making and adopting rules supplementing the applicable arbitral rules under Section C (Settlement of Disputes between an Investor and the Host Party) of this Agreement.
4. The Parties generally meet once every five years, or by any technological means available, after the entry into force of this Agreement, in order to examine the application and effectiveness of this Agreement.
5. Each Party shall notify the other Party in writing of the completion of the formalities required in its territory for the entry into force of any amendment to this Agreement. The amendment shall come into force on the date of the last of these notifications and shall constitute an integral part of this Agreement.
Article 41. Extent of Obligations
Each Party shall ensure that it takes all necessary measures to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by its sub-national governments.
Article 42. Exclusions
Sections C (Settlement of Disputes between an Investor and the Host Party) and D (State- to-State Dispute Settlement Procedures) of this Agreement do not apply to the matters set out in Annex V (Exclusions from Dispute Settlement).
Article 43. Application and Entry Into Force
1. All Annexes are an integral part of this Agreement.
2. Each Party shall notify the other in writing of the completion of the procedures required in its territory for the entry into force of this Agreement. This Agreement enters into force on the date of the later of these notifications.
3. This agreement may be amended by mutual written consent of the Parties.
4. This Agreement shall remain in force unless a Party notifies the other Party in writing of its intention to terminate it. The termination of this Agreement will be effective one year after notice of termination has been received by the other Party. In respect of investments or commitments to invest made prior to the date when the termination of this Agreement becomes effective, Articles 1 to 42 inclusive, as well as paragraphs 1, 2 and 3 of this Article, shall remain in force for a period of 15 years.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorised, have signed this Agreement.
DONE in two originals at on this 20th day of April 2015, in the English and French languages, each version being equally authentic.
FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF BURKINA FASO
Attachments
Annex I. Expropriation
The Parties confirm their shared understanding that:
(a) indirect expropriation results from a measure or a series of measures of a 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 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 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) a non-discriminatory measure or series of measures of a Party designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, does not constitute indirect expropriation, 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 considered as having been adopted and applied in good faith.
Annex II. Reservations for Future Measures
Schedule of Burkina Faso
In accordance with Article 17(2) (Reservations and Exceptions) of this Agreement, Burkina Faso 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: