1. Nothing in Article 14-04 shall be construed to prevent a Party from adopting or maintaining a measure prescribing special formalities in connection with the establishment of investments by investors of another Party, such as that the investments be constituted in accordance with the laws of the Party, provided that such formalities do not substantially impair the protection afforded by a Party under this Chapter.
2. Notwithstanding the provisions of Articles 14-04 and 14-05, each Party may require, in its territory, an investor of another Party to provide routine information concerning its investment solely for informational or statistical purposes. The Party shall protect information that is confidential from any disclosure that could adversely affect the competitive situation of the investment or the investor.
Article 14-13. Relationship with other Chapters.
In case of incompatibility between a provision of this chapter and a provision of another chapter, the provision of the latter shall prevail to the extent of the incompatibility.
Article 14-14. Denial of Benefits.
1. A Party may, after notice to and consultation with another Party, deny the benefits of this Chapter to an investor of that Party that is an enterprise of that Party and to investments of such an investor, if investors of a non-Party majority own or control the enterprise and the enterprise does not have substantial business activities in the territory of the Party under whose law it is incorporated or organized.
2. A Party may deny the benefits of this Chapter to an investor of another Party that is an enterprise of that Party and to investments of such investor, if such enterprise is owned or controlled by investors of a non-Party and:
a) the Party denying benefits does not maintain diplomatic relations with the non-Party; or
b) the Party denying the benefits adopts or maintains measures in relation to the non-Party
that prohibit transactions with that enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to that enterprise or its investments.
Article 14-15. Extraterritorial Application of a Party's Law.
1. The Parties may not, in relation to investments of their investors constituted and organized under the laws of another Party, exercise jurisdiction or take any action that has the effect of extraterritorially applying their laws or hindering trade between the parties, or between a Party and a non-Party.
2. if either Party fails to comply with the provisions of paragraph 1, the Party in which the investment has been constituted may, at its discretion, adopt such measures and take such action as it deems necessary to terminate the legislation or measure in question and the obstacles to trade resulting therefrom.
Article 14.16. Measures Relating to the Environment.
1. nothing in this chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure, consistent with this chapter, that it considers appropriate to ensure that investments in its territory comply with environmental law. 2. the parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. accordingly, no Party should eliminate or undertake to waive the application of such measures to an investor's investment as a means of inducing the establishment, acquisition, expansion or retention of the investment in its territory. if a Party considers that another Party has encouraged an investment in such a manner, it may request consultations with that other Party.
Article 14-17. Investment Promotion and Exchange of Information.
1. With the intention of significantly increasing the reciprocal participation of investments, the parties may promote and support the elaboration of documents promoting investment opportunities and the design of mechanisms for their dissemination. likewise, the parties may create, maintain and improve financial mechanisms that make viable investments of one Party in the territory of another Party.
2. The Parties shall make available information on opportunities for:
a) investment in its territory, which may be developed by investors of another Party;
b) strategic alliances between investors of the Parties, by investigating and matching interests and partnership opportunities; and
c) investment in specific economic sectors of interest to the Parties and their investors, in accordance with the express request made by any Party.
3. The Parties shall keep each other informed and updated with respect to:
a) legislation that directly or indirectly affects foreign investment, including, among others, foreign exchange and tax regimes;
b) the performance of foreign investment in their respective territories; and
c) the investment opportunities referred to in paragraph 2, including the dissemination of available financial instruments that help to increase investment in the territory of the Parties.
Section B. Dispute Settlement between a Party and an Investor of Another Party.
Article 14-18. Objective.
Without prejudice to the provisions of Chapter XIX, this section establishes a mechanism for the settlement of investment disputes arising from the entry into force of this treaty, which ensures both equal treatment between investors of the Parties in accordance with the principle of international reciprocity, as well as the due exercise of the guarantee of hearing and defense within a legal process before an arbitral tribunal.
Article 14-19. Claim by Investor of a Party, on Its Own Account or on Behalf of an Enterprise.
1. Pursuant to this section, an investor of a Party may, on its own account or on behalf of an enterprise of another Party owned or controlled directly or indirectly by it, submit to arbitration a claim that another Party or an enterprise controlled directly or indirectly by that Party has breached an obligation under this chapter, provided that the investor or its investment has suffered loss or damage by reason of, or arising out of, the breach.
2. The investor may not file a claim under this section if more than three years have elapsed from the date on which he knew or should have known of the alleged violation of his investment, as well as of the losses or damages suffered.
3. Where an investor files a claim on behalf of an enterprise owned or controlled directly or indirectly by the investor, and at the same time an investor who does not control an enterprise files a claim on its own account arising out of the same acts that gave rise to the filing of a claim under this article, and two or more claims are submitted to arbitration under the terms of article 14-22, the consolidation tribunal established pursuant to article 14-29 shall consider such claims together, unless that tribunal determines that the interests of a disputing Party would be prejudiced.
4. An investment may not submit a claim to arbitration under this Section.
Article 14-20. Settlement of Disputes Through Consultations and Negotiations.
The disputing parties shall first attempt to settle the dispute through consultation or negotiation.
Article 14-21. Notice of Intention to Submit Claim to Arbitration.
The disputing investor shall notify the disputing Party in writing of its intention to submit a claim to arbitration at least 90 days before the claim is formally submitted. The notice shall state the following:
a) the name and domicile of the disputing investor and, when the claim has been filed on behalf of an enterprise, the name or corporate name and domicile of the enterprise;
b) the facts on which the claim is based;
c) the provisions of this chapter alleged to have been violated and any other applicable provisions; and
d) the repair requested and the approximate amount of damages claimed.
Article 14-22. Submission of the Claim to Arbitration.
1. Except as provided in paragraph 3 and provided that six months have elapsed since the acts giving rise to the claim took place, a disputing investor may submit the claim to arbitration in accordance with:
a) the ICSID Convention, provided that both the disputing Party and the Party of the investor are States parties to the ICSID Convention;
b) The ICSID Additional Facility Rules, where either the disputing Party or the Party of the investor, but not both, is a party to the ICSID Convention; or
c) the UNCITRAL Arbitration Rules.
2. The arbitration rules chosen shall govern the arbitration, except as modified by this section.
3. Where an enterprise of a Party owned or controlled directly or indirectly by an investor of another Party, in proceedings before a judicial or administrative tribunal having jurisdiction under the laws of each Party, alleges that the first Party has allegedly breached an obligation referred to in Section A, the investor or investors may not assert the alleged breach in arbitral proceedings under this Section.
Article 14-23. Conditions Precedent to the Submission of a Claim to Arbitration.
1. An investor disputing on its own account may submit a claim to arbitration under this section only if:
a) consents to submit to arbitration under the terms of the procedures set forth in this section; and
b) the investor and, where the claim is for loss or damage to an interest in an enterprise of the other Party owned or controlled directly or indirectly by the investor, the enterprise waives its right to initiate any proceedings before a competent national tribunal under the law of the disputing Party or other dispute settlement procedures with respect to the measure of the disputing Party alleged to be in violation of the provisions referred to in Article 14-19, except for proceedings in which the application of precautionary measures of a suspensive, declaratory or extraordinary nature, not involving the payment of damages, is requested before the competent national court, in accordance with the law of the disputing Party, such as the exhaustion of administrative remedies before the authorities implementing the allegedly violating measure, as provided for in the law of the disputing Party.
2. A disputing investor, on behalf of an enterprise, may submit a claim to arbitration under this section only if both the investor and the enterprise:
a) consent to submit to arbitration under the terms of the procedures set forth in this section; and
b) waive their right to initiate any proceeding with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 14-19 before any competent national court or tribunal under the law or law of a Party or other dispute settlement procedures, except for proceedings seeking injunctive relief of a suspensive, declaratory or extraordinary nature, not involving the payment of damages before the competent national court or tribunal, such as the exhaustion of administrative remedies before the disputing Party's own enforcement authorities, declaratory or extraordinary measures that do not involve the payment of damages before the competent national court, in accordance with the legislation or law of the disputing Party, such as the exhaustion of administrative remedies before the authorities implementing the allegedly violative measure, as provided for in the legislation of the disputing Party.
3. The consent and waiver required by this Article shall be in writing, delivered to the disputing Party and included in the submission of the claim to arbitration.
4. Only in the event that the disputing Party has deprived the disputing investor of control of an enterprise:
a) no waiver shall be required under paragraph 1 or 2(b); and
b) paragraph 3 of article 14-22 shall not apply.
Article 14-24. Consent to Arbitration.
1. Each Party consents to submit claims to arbitration in accordance with the procedures and requirements set forth in this section.
2. The submission of a claim to arbitration by a disputing investor shall comply with the requirements set forth in:
a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the Additional Facility Rules requiring the written consent of the Parties; b) Article II of the New York Convention, which requires a written agreement; or
c) Article I of the Inter-American Convention, which requires an agreement.
Article 14-25. Number of Arbitrators and Method of Appointment.
Except as provided in Article 14-29, and notwithstanding any agreement of the disputing parties to the contrary, the tribunal shall consist of three arbitrators. Each of the disputing parties shall appoint one arbitrator. The third arbitrator, who shall be the presiding arbitrator of the tribunal, shall be appointed by the disputing parties by mutual agreement.
Article 14-26. Integration of the Tribunal In the Event That a Disputing Party Fails to Appoint an Arbitrator or Fails to Reach Agreement on the Appointment of the Presiding Arbitrator.
In the event that a disputing party fails to appoint an arbitrator or fails to reach agreement on the appointment of the presiding arbitrator:
a) the Secretary General shall appoint arbitrators in arbitration proceedings in accordance with this section;
b) where a tribunal, other than a tribunal established pursuant to article 14-29, is not constituted within 90 days from the date on which the claim is submitted to arbitration, the Secretary-General shall, at the request of any of the disputing parties, appoint, in his discretion, the arbitrator or arbitrators not yet appointed, but not the presiding arbitrator or arbitrators, who shall be appointed in accordance with subparagraph (c); or
c) the Secretary-General shall appoint the president of the tribunal from the list of arbitrators referred to in Article 14-27, ensuring that the president of the tribunal is not a national of the disputing Party or a national of the Party of the disputing investor. In the event that no arbitrator is available on the list to chair the tribunal, the Secretary-General shall appoint, from the ICSID panel of arbitrators, the chair of the tribunal, provided that the chair of the tribunal is not a national of the disputing Party or a national of the Party of the disputing investor.
Article 14-27. List of Arbitrators.
On the date of entry into force of this treaty, the Parties shall establish and maintain a list of 40 arbitrators, as potential presiding arbitrators of the tribunal, or to appoint the arbitrators of a consolidation tribunal pursuant to Article 14-29(4), who possess the same qualifications as those referred to in the ICSID Convention, the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules and who are experienced in international law and investment matters. The members of the roster shall be appointed by consensus regardless of their nationality.
Article 14-28. Consent to the Appointment of Arbitrators.
For the purposes of article 39 of the ICSID convention and article 7 of part c of the ICSID additional facility rules, and without prejudice to objecting to an arbitrator on the basis of article 14-26(c), or on grounds other than nationality:
a) the disputing Party accepts the appointment of each of the members of a tribunal established in accordance with the ICSID convention or the ICSID additional facility rules; and
b) a disputing investor, either on its own behalf or on behalf of an enterprise, may submit a claim to arbitration or continue proceedings under the ICSID Convention, or the ICSID Additional Facility Rules, only on condition that the disputing investor and, if applicable, the enterprise it represents, consent in writing to the appointment of each of the members of the tribunal.
Article 14-29. Consolidation of Proceedings.
1. A consolidation tribunal established under this article shall be established in accordance with the UNCITRAL Arbitration Rules and shall proceed in accordance with the provisions of those rules, except as provided in this section.
2. Where a consolidation tribunal determines that the claims submitted to arbitration under Article 14- 22 raise questions of law and fact in common, the consolidation tribunal, in the interest of their fair and efficient resolution, and having heard the disputing parties, may assume jurisdiction, hear and determine them:
a) all or part of the claims, jointly; or
b) one or more of the claims on the understanding that this will contribute to the resolution of the other claims.
3. A disputing party seeking a consolidation order under paragraph 2 shall request the Secretary-General to establish a consolidation tribunal and shall specify in its request:
a) the name of the disputing Party or the disputing investors against which the order of cumulation is sought;
b) the nature of the requested consolidation order; and
c) the basis on which the request is supported.
4. Within 60 days from the date of receipt of the request, the Secretary-General shall establish a consolidation tribunal composed of three arbitrators. The Secretary-General shall appoint from the list of arbitrators referred to in Article 14-27 the president of the consolidation tribunal, who shall not be a national of the disputing Party or a national of the Party of the disputing investor. In the event that there is no arbitrator on the list available to chair the consolidation tribunal, the Secretary-General shall appoint, from the ICSID panel of arbitrators, the chair of such tribunal, who shall not be a national of the disputing Party or a national of the Party of the disputing investor. The Secretary-General shall appoint the other two members of the consolidation tribunal from the list of arbitrators referred to in Article 14-27 and, where they are not available on that list, shall select them from the ICSID panel of arbitrators. If no arbitrators are available on that panel, the Secretary-General shall make the missing appointments at his discretion. One of the members shall be a national of the disputing Party and the other member of the consolidation tribunal shall be a national of a Party of the disputing investors.
5. Where a consolidation tribunal has been established under this Article, a disputing investor that has submitted a claim to arbitration under Article 14-19, and has not been named in the request for consolidation made pursuant to paragraph 3, may request in writing to the consolidation tribunal to be included in a consolidation order made pursuant to paragraph 2, and shall specify in such request:
a) the name and domicile of the disputing investor and, if applicable, the name or corporate name and domicile of the company;
b) the nature of the requested consolidation order; and
c) the grounds on which the request is based.
6. The consolidation tribunal shall provide, at the expense of the investor concerned, a copy of the petition for consolidation to the disputing investors that would be subject to the consolidation decision.
7. A court shall not have jurisdiction to adjudicate a claim, or part of a claim, over which a consolidation court has assumed jurisdiction.
8. At the request of a disputing party, a consolidation tribunal may, pending its decision under paragraph 2, order that the proceedings of a tribunal be suspended pending a decision on the merits of the consolidation. The order of the consolidation tribunal shall be complied with by the tribunal.
Article 14-30. Notifications
1. Within 15 days from the date of its receipt, the disputing Party shall send to the Secretariat a copy of:
a) a request for arbitration made pursuant to Article 36(1) of the ICSID Convention;
b) a notice of arbitration under Article 2 of Part C of the ICSID Additional Facility Rules; or
c) a notice of arbitration under the terms of the UNCITRAL Arbitration Rules.
2. The disputing Party shall deliver to the Secretariat a copy of the request made pursuant to Article 14-29, paragraph 3:
a) within 15 days after receipt of the request, in the case of a request made by the disputing investor; or
b) within 15 days of the date of the request, in the case of a request made by the disputing Party.
3. The disputing Party shall deliver to the Secretariat a copy of a request made under paragraph 5 of Article 14-29 within 15 days after the date of receipt of the request.
4. The Secretariat shall keep a public register of the documents referred to in paragraphs 1, 2 and 3.
5. The disputing Party shall deliver to the other Parties: a) written notice of a claim that has been submitted to arbitration no later than 30 days after the date of submission of the claim to arbitration; and b) copies of all pleadings filed in the arbitration proceedings.
Article 14-31. Participation of a Party.
Upon written notice to the disputing parties, a Party may submit written submissions to a tribunal established under this section on questions of interpretation of this treaty that are before that tribunal.
Article 14-32. Documentation.
1. A Party shall, at its own expense, be entitled to receive from a disputing party a copy of:
a) evidence offered to a tribunal established under this section, and
b) the written arguments presented by the disputing parties.
2. A Party receiving information pursuant to paragraph 1 shall treat such information as if it were a disputing Party.
Article 14-33. Place of Arbitration Proceedings.
Unless the disputing parties agree otherwise, a tribunal established under this section shall conduct the arbitral proceedings in the territory of a Party that is a member of the New York Convention, which shall be chosen in accordance with:
a) the ICSID Additional Facility Rules, if the arbitration is governed by those rules or by the ICSID Convention; or
b) the UNCITRAL Arbitration Rules, if the arbitration is governed by those rules.
Article 14-34. Applicable Law.
1. A tribunal established under this section shall decide disputes submitted to it in accordance with this treaty and the applicable provisions of international law.
2. An interpretation formulated by the Commission of a provision of this treaty shall be binding on a tribunal established under this section.
Article 14-35. Interpretation of Annexes.
1. Where a Party asserts as a defense that an allegedly violative measure falls within the scope of a reservation or exception set out in any of the Annexes, on request of the disputing Party, a tribunal established under this Section shall request the Commission for an interpretation of that matter. The Commission shall, within 60 days of the delivery of the request, submit its interpretation in writing to such tribunal.
2. The Commission's interpretation submitted under paragraph 1 shall be binding on a tribunal established under this section. If the Commission does not submit an interpretation within 60 days, such tribunal shall decide the matter.
Article 14-36. Expert Opinions.
Without prejudice to the appointment of other types of experts where authorized by the applicable arbitration rules, a tribunal established under this section may, at the request of a disputing party, or on its own initiative unless the disputing parties do not agree, appoint one or more experts to give written advice on any issue raised by a disputing party in a proceeding, on such terms and conditions as the disputing parties may agree.
Article 14-37. Provisional or Precautionary Measures.
A tribunal established under this Section may apply to domestic courts, or order the disputing parties, for provisional or protective measures to preserve the rights of the disputing party or to ensure that the jurisdiction of the tribunal established under this Section is given full effect. Such tribunal may not order compliance with or suspension of the allegedly violative measure referred to in Article 14-19.
Article 14-38. Final Award.
1. Where a tribunal established under this section makes a final award against a Party, such tribunal may only order:
a) the payment of pecuniary damages and related interest; or
b) restitution of the property, in which case the award shall provide that the disputing Party may pay monetary damages, plus interest, in lieu of restitution.
2. A tribunal established under this section may also order the payment of costs in accordance with the applicable arbitration rules.
3. When the claim is made by an investor on behalf of an enterprise on the basis of Article 14-19:
a) the award providing for the restitution of the property shall provide for it to be granted to the company; and
b) the award granting pecuniary damages and interest thereon shall provide that the sum of money be paid to the company.
4. A court established under this section may not order a Party to pay punitive damages.
5. The award shall be made without prejudice to the rights of any person having a legal interest in compensation for damages suffered, in accordance with the applicable law.
Article 14-39. Finality and Enforcement of the Award.
1. An award rendered by a tribunal established under this section shall be binding only upon the disputing parties and only in respect of the particular case.
2. Pursuant to paragraph 3 and to the review procedure applicable to an interim award, a disputing party shall comply with and comply with the award without delay.
3. A disputing party may request enforcement of a final award provided that:
a) in the case of a final award rendered under the ICSID Convention:
i) 120 days have elapsed since the date on which the award was rendered without any disputing party having requested clarification, revision or annulment of the award; or
ii) clarification, review and cancellation procedures have been concluded; or
b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
i) 90 days have elapsed since the date on which the award was rendered without any disputing party having initiated a proceeding for interpretation, rectification, additional award or annulment; or
ii) the proceedings for interpretation, rectification or additional award have been concluded, or an application for annulment has been decided by a court of the disputing Party and this decision is not subject to challenge.
4. Each Party shall provide for the proper enforcement of an award in its territory.
5. Where a disputing Party fails to comply with or abide by a final award, the Commission, upon receipt of a request from a Party whose investor was a party to the arbitration proceeding, shall constitute an arbitral tribunal in accordance with Chapter XIX. The requesting Party may invoke such procedures to obtain: a) a determination that non-compliance or non-observance of the terms of the final award is contrary to the obligations of this treaty; and b) a recommendation that the Party comply with and abide by the final award.
6. The disputing investor may seek enforcement of an arbitral award under the ICSID Convention, the New York Convention or the Inter-American Convention, whether or not proceedings under paragraph 5 have been instituted.
7. For purposes of Article I of the New York Convention and Article I of the Inter-American Convention, a claim submitted to arbitration under this section shall be deemed to arise out of a commercial relationship or transaction.