Mexico - Turkey BIT (2013) - Electronic Database of Investment Treaties (EDIT)

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Mexico - Turkey BIT (2013)

8. The applicable arbitration rules will govern the arbitration, except to the extent modified by this Section.

9. A dispute may be submitted to arbitration provided that no more than four (4) years have elapsed. counted from the date on which the investor or the company of the other disputing Contracting Party that is a legal entity owned by or under the control of the investor, had for the first time or should have known for the first time the facts that gave rise to the controversy.

10. If the investor or a company owned or controlled by the investor submits the dispute referred to in paragraphs 1 or 2 above before a competent administrative or judicial court of the Contracting Party, the same dispute may not be submitted to arbitration in accordance with the provisions in this section.

(1) For greater certainty, when a claim is submitted to arbitration in accordance with Article 14.1, only losses or damages incurred by the claimant in his capacity as an investor of a Contracting Party under Article 14.1 shall be recoverable. Losses incurred by the claimant in any other capacity are not recoverable in accordance with Article 14.1.

Article 15. Consent of the Contracting Party

1. Each Contracting Party agrees to submit a dispute to international arbitration in accordance with this Section.

2. The consent and submission of a claim to arbitration by the disputing investor will comply with the requirements indicated in:

(a) Chapter Two of the ICSID Convention (Jurisdiction of the Center) and the Regulations of the Additional Facility of ICSID, regarding the written consent of the disputing parties, and

(b) Article 2 of the New York Convention, regarding the " written agreement " .

Article 16. Constitution of the Arbitral Tribunal

1. Unless the disputing parties agree otherwise, the arbitral tribunal shall consist of three arbitrators. Each disputing party shall appoint an arbitrator, and the disputing parties shall appoint by common agreement the third arbitrator, who shall be the president of the arbitral tribunal.

2. If an arbitral tribunal has not been integrated within ninety (90) days from the date on which the claim was submitted to arbitration, either because one of the disputing parties did not appoint an arbitrator or because the disputing parties did not they would have reached an agreement on the appointment of the president of the court; The President, Vice-President or the next highest judge of the International Court of Justice, who is not a national of either Contracting Party, at the request of any of the disputing parties, shall be invited to designate at his discretion the arbitrator or arbitrators. not yet designated. However, the President, the Vice-President, or the next highest judge of the International Court of Justice, when appointing the president of the court, shall ensure that he is not a national of either of the Contracting Parties.

Article 17. Accumulation

1. When two or more claims have been submitted separately to arbitration under Article 14 and the claims contain common aspects of fact or law and are derived from the same events or circumstances, any of the disputing parties may request an accumulation order with the agreement of all disputing parties that have requested to be bound by the order or terms of this Article.

2. The disputing party requesting an accumulation order pursuant to this Article shall submit a written request to the President of the International Court of Justice and to all disputing parties in respect of which the accumulation order is sought and shall specify in the application:

(a) The names and addresses of all disputing parties in respect of which the accumulation order is sought;

(b) The nature of the requested order; and

3. Unless the President of the International Court of Justice determines within a term of thirty (30) days following the date of receipt of an application pursuant to paragraph 2 that the request is manifestly unfounded, a tribunal shall be established pursuant to this Article.

4. Unless all disputing parties in respect of which the accumulation order is sought are otherwise agreed, the tribunal established under this Article shall be composed of three arbitrators:

(a) An arbitrator appointed by the plaintiffs' agreement;

(b) An arbitrator appointed by the defendant; and

(c) The presiding arbitrator appointed by the President of the International Court of Justice, provided that he is not a national of either of the Contracting Parties.

5. If, within sixty (60) days after the date of receipt by the President of the International Court of Justice of a request made pursuant to paragraph 2, the defendant or the plaintiffs do not designate an arbitrator pursuant to paragraph 4, the President of the International Court of Justice, at the request of any of the disputing parties in respect of which the order is sought, shall appoint the arbitrator or arbitrators who have not yet been appointed. In the event that the respondent does not appoint an arbitrator, the President of the International Court of Justice shall appoint a national of the disputing Party, and in the event that the plaintiffs do not designate an arbitrator, the President of the International Court of Justice shall designate a national of the non-contending party.

6. When a court established under this Article finds that two or more claims that have been submitted to arbitration under Article 14, raise in common a matter of fact or law, and derive from the same facts or circumstances, the court may, in the interest of reaching a fair and efficient resolution of the claims, and after listening to the disputing parties, may:

(a) Assume jurisdiction over all or part of the claims, in order to answer and resolve them jointly;

(b) Assume jurisdiction over one or more of the claims, as well as unburden and resolve them, if it considers that their resolution would contribute to the resolution of the others; or

(c) Instruct a court previously established pursuant to Article 16 to assume jurisdiction over all or part of the claims, to address and resolve them jointly, provided that:

(i) That tribunal, at the request of any claimant who has not previously been a disputing party before that tribunal, reconstitutes with its original members, except that the plaintiff's arbitrator will be appointed in accordance with paragraphs 4 (a) and 5 ; and

(ii) That court decides whether any previous hearing will be repeated.

7. When a tribunal has been established under this Article, the claimant who has submitted a claim to arbitration under Article 14 and who has not been mentioned in the request made under paragraph 2 may request in writing to the court, be included in any order formulated in accordance with paragraph 6, and shall specify in the request:

(a) The name and address of the applicant;

(b) The nature of the requested order; and

The plaintiff will deliver a copy of his petition to the President of the International Court of Justice.

8. A tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.

9. A tribunal established under Article 16 shall not have jurisdiction to settle a claim, or a part thereof, in respect of which a court established or instructed pursuant to this Article has assumed jurisdiction.

10. At the request of a disputing party, a court established under this Article, pending its decision under paragraph 6, may order the suspension of the proceedings of a tribunal established in accordance with Article 16, unless the latter court had already suspended them.

Article 18. Seat of the Arbitration Procedure

At the request of any of the disputing parties, an arbitration under this Section shall be conducted in a State that is a party to the New York Convention. For the purposes of Article 1 of the New York Convention only, claims submitted to arbitration under this Section shall be deemed to derive from a commercial relationship or operation.

Article 19. Applicable Law

1. A tribunal established under this Section shall decide disputes submitted for its consideration in accordance with this Agreement and with the applicable rules and principles of international law.

2. An arbitral tribunal established under this Section shall take into account the national legislation of the disputing Contracting Party when it is relevant to the facts of the claim.

3. An interpretation jointly formulated and agreed upon by the Contracting Parties on a provision of this Agreement shall be binding upon any tribunal established pursuant to this Section.

Article 20. Definitive Awards and Its Execution

1. Unless the disputing parties agree otherwise, an arbitral award that determines that a Contracting Party has failed to comply with its obligations under this Agreement may only grant, separately or in combination:

(a) Pecuniary damages and any applicable interest; or

(b) Restitution in kind, taking into account that the Contracting Party may pay pecuniary compensation instead.

2. When a claim is submitted to arbitration on behalf of a company:

(a) An award granting restitution in kind shall provide that the restitution be granted to the company;

(b) An award that awards pecuniary damages and any applicable interest, shall order that the total amount be paid to the company; and

(c) The award shall provide that it be issued without prejudice to any right that any person has over the reparation granted, in accordance with the applicable domestic law.

3. A court can not order the payment of punitive damages.

4. A disputing investor may resort to the enforcement of an arbitral award under the ICSID Convention or the New York Convention, if both Contracting Parties are parties to those treaties.

5. A disputing party may not require compliance with a final award until:

(a) In the case of a final award issued under the ICSID Convention:

(i) One hundred twenty (120) days have elapsed since the date on which the award was rendered, and none of the disputing parties has requested the revision or annulment thereof, or

(ii) The review or cancellation procedures have been completed; and

(b) In the case of a final award issued in accordance with the Rules of the ICSID Supplementary Mechanism, the UNCITRAL Arbitration Rules or any other arbitration rules agreed to by the disputing parties:

(i)

Three (3) months have elapsed from the date on which the award was rendered, and none of the disputing parties has begun a procedure for reviewing, rejecting or annulling the award, or

(ii)

A court has authorized or dismissed an application to review, discard or annul the award and there is no further appeal.

6. In accordance with paragraph 5 of this Article, arbitral awards shall be final and binding. Each Contracting Party shall recognize and execute the arbitration award in accordance with its respective laws and regulations.

7. A Contracting Party may not initiate proceedings in accordance with Section Two for an alleged violation under this Section, unless the other Contracting Party fails or fails to comply with the award rendered in a dispute that an investor of the Contracting Party has submitted pursuant to this Section.

Article 21. Provisional Protection Measures

1. An arbitral tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the jurisdiction of the arbitral tribunal has full effect, including an order to preserve evidence in the possession or control of a disputing party, or to protect the jurisdiction of the arbitral tribunal.

2. An arbitral tribunal may not order the seizure or suspension of the application of the allegedly violative measure referred to in Article 14. For purposes of this paragraph, an order includes a recommendation.

Article 22. Transparency

1. The written communications submitted (2) by the disputing parties to the court and the procedural orders, decisions and award (s) of the court shall be public after the court issues its final award, except as regards the protected information that these contain, consisting of:

(a) Confidential business information that is not in the public domain that describes, contains or discloses trade secrets, or financial, commercial, scientific or technical information that has been treated consistently as confidential information by the party to whom it relates, including but not limited to information on prices, costs, strategic and marketing plans, market share data, and financial or accounting records; and

(b) Privileged information that is protected from disclosure by law.

2. Within thirty (30) days following the delivery of the final award, the disputing party that considers that any written communication submitted to the court, procedural order, decision or award of the court contains protected information, that you wish to keep confidential, shall consult the other disputing party, in order to reach an agreement on the information that will be protected before making it available to the public.

3. If the disputing parties do not reach an agreement on the information that will be protected, within thirty (30) days, they will submit to the president of the court the points in which an agreement has not been reached, who will decide immediately in this regard.

4. If one of the disputing parties fails to notify the other disputing party of its interest in keeping the protected information contained in any written communication filed with the court, procedural order, decision or award of the court confidential within thirty (30) days following the delivery of the final award, it will be considered that said disputing party has consented to put said written communication presented before the court, procedural order, decision or award, available to the public.

(2) The briefs submitted include the application, the answer to the complaint, the reply, the rejoinder and any other written document made by a disputing party during the arbitration.

Section Two. Settlement of Disputes between the Contracting Parties

Article 23. Scope of Application

This Section shall apply to the settlement of disputes between the Contracting Parties, arising from the interpretation or application of the provisions of this Agreement.

Article 24. Consultations and Negotiations

1. Either Contracting Party may request written consultations on the interpretation or application of this Agreement.

2. To the extent possible, the Contracting Parties will try to resolve amicably any dispute that may arise between them regarding the interpretation or application of this Agreement, through consultations and negotiations.

3. In the event that a dispute can not be resolved by such means within a period of six (6) months from the time the negotiations or consultations were requested in writing, either of the Contracting Parties may submit the dispute to an arbitral tribunal. established in accordance with this Section or, by mutual agreement between the Contracting Parties, to any other international tribunal.

Article 25. Constitution of the Arbitral Tribunal

1. The arbitral proceedings shall commence by written notification delivered by one Contracting Party (the complaining Contracting Party) to the other Contracting Party (the responding Contracting Party) through diplomatic channels. Such notice shall contain a statement of the considerations of fact and law on which the claim is based, a summary of the development and results of the consultations and negotiations held in accordance with Article 24, the intention of the Contracting Party to initiate the procedure. under this Section, as well as the name of the arbitrator appointed by that applicant Contracting Party.

2. Within thirty (30) days after the date of delivery of such notification, the responding Contracting Party shall notify the complaining Contracting Party of the name of the arbitrator it has designated.

3. Within thirty (30) days following the date of appointment of the second arbitrator, the arbitrators appointed by the Contracting Parties shall appoint, by mutual agreement, a third arbitrator, who shall serve as president of the arbitral tribunal once approved by the Contracting Parties.

4. If, within the periods referred to in paragraphs 2 and 3 above, the required designations have not been made or the required approvals have not taken place, either of the Contracting Parties may invite the President of the International Court of Justice to appoint the arbitrator or arbitrators not yet appointed. If the President is a national or permanent resident of either of the Contracting Parties or is unable to act, the Vice President will be invited to make the aforementioned designations. If the Vice-President is a national or permanent resident of one of the Contracting Parties or is unable to act, the member of the International Court of Justice who follows in hierarchical order and who is not a national or permanent resident of either of the Contracting Parties, will be invited to make the referred designations.

5. In the event that any arbitrator appointed in accordance with this Article resigns or is unable to act, a successor arbitrator shall be appointed in accordance with the same procedure prescribed for the appointment of the original arbitrator, and the arbitrator shall have the same powers and obligations as the original referee.

Article 26. Procedure

1. Unless the Contracting Parties agree otherwise, the seat of arbitration shall be determined by the court.

2. The arbitral tribunal shall decide all matters relating to its jurisdiction and, subject to any agreement between the Contracting Parties, shall determine its own procedure.

3 At any stage of the procedure, the arbitral tribunal may propose to the Contracting Parties that the dispute be resolved amicably.

4. At all times, the arbitral tribunal shall ensure a fair hearing for the Contracting Parties.

5. Unless otherwise agreed, the submission of all writs and the holding of all hearings shall be concluded within twelve (12) months from the date of approval of the President of the court, and the court shall render its decision within the three (3) months counted from the date of the presentation of the last written or of the last hearing, whichever occurs last.

Article 27. Award

1. The arbitral tribunal will take its decision by majority vote. The award shall be issued in writing and shall contain all considerations of fact and law that may be appropriate. A signed copy of the award shall be delivered to each Contracting Party.

2. The arbitral award shall be final and binding on the Contracting Parties.

Article 28. Applicable Law

A tribunal established under this Section shall decide disputes submitted for its consideration in accordance with this Agreement and with the applicable rules and principles of international law.

Article 29. Costs

Each Contracting Party shall bear the costs of its appointed arbitrator and the cost of its legal representation in the proceedings. The costs of the chairman of the arbitral tribunal and other expenses related to the arbitration shall be borne equally by the Contracting Parties, unless the arbitral tribunal decides that a greater proportion of the costs shall be borne by either Contracting Party.

Chapter Four. Final Provisions

Article 30. Application of the Agreement

This Agreement shall apply to investments made in the territory of a Contracting Party, in accordance with its laws and regulations, by investors of the other Contracting Party, either before or after the entry into force of this Agreement. However, this Agreement does not apply to claims or disputes arising from events that occurred, or to claims that have been resolved, prior to that date.

Article 31. Annexes

The Annexes to this Agreement constitute an integral part of it (Annex to Article 5 " National Treatment and Most Favored Nation Treatment " , Annex to Article 13 " Notification of Intent and Consultations " , Annex to Article 22 " Transparency " ).

Article 32. Consultations

A Contracting Party may propose to the other Contracting Party to hold consultations on any matter related to this Agreement. Said consultations shall be carried out on the date and place agreed by the Contracting Parties.

Article 33. Entry Into Force, Duration and Termination

1. Each Contracting Party shall notify the other in writing, through diplomatic channels, of compliance with its constitutional requirements in its territory for the entry into force of this Agreement. This Agreement will become effective thirty (30) days after the date of the last of the two notifications. This Agreement will be valid for ten (10) years and will continue in force, unless one of the Parties decides to terminate it in accordance with paragraph 2 of this Article.

2. Either Contracting Party may, by written notice addressed to the other Contracting Party one year in advance, terminate this Agreement at the end of the initial period of ten (10) years or at any time thereafter.

3. This Agreement may be modified by written agreement between the Contracting Parties. Any amendment shall enter into force thirty (30) days after the date of the last notification through which the Contracting Parties have notified each other of the completion of all their internal requirements necessary for the entry into force of the aforementioned amendment.

4. With respect to investments made or acquired prior to the date of termination of this Agreement and to which this Agreement applies, the provisions of all Articles of this Agreement shall continue in effect for an additional period of ten (10) years from of its termination date.

Conclusion

IN FAITH WHEREOF, the undersigned, duly authorized by their respective governments, have signed this Agreement.

Done at Ankara on the seventeenth day of December of two thousand and thirteen, in two originals, in the Spanish, Turkish and English languages, each of the texts being equally authentic. In case of divergence in the interpretation of this Agreement, the English text shall prevail.

For the Government of the United Mexican States : the Secretary of Economy , Ildefonso Guajardo Villarreal .- Signature.

For the Government of the Republic of Turkey : the Deputy Prime Minister , Ali Babacan . - Signature .

Attachments

To article 5 (national treatment and most-favored-nation treatment)

The National Treatment provisions of Article 5 of this Agreement shall not be construed as preventing the Republic of Turkey from adopting, maintaining or enforcing any non-discriminatory law with respect to the acquisition of property and real estate, as well as the rights real in respect of these by investors of the other Contracting Party.

To article 13 (notice of intent and consultation)

1. In the event of a dispute filed against the United Mexican States, the notification of intent referred to in Article 13, paragraph 2 shall be delivered:

Dirección General de Consultoría Jurídica de Comercio Internacional, Alfonso Reyes # 30, piso 17, Col. Hipódromo Condesa, Del. Cuauhtémoc, México D.F., C.P. 06140.

2. The United Mexican States shall notify the Republic of Turkey of any change in the place for delivery of the notification of intention referred to in this Annex.

3. The disputing investor must submit the written notice of intention in Spanish or in Turkish, as applicable. In case the notification of intention is presented in any language other than the one mentioned above, the corresponding translation by an expert must be included.