1. A permanent Appeal Tribunal is hereby established to hear appeals from awards issued by the Tribunal.
2. The Appeal Tribunal shall be composed of six Members, of whom two shall be nationals of a Member State of the Union, two shall be nationals of Viet Nam and two shall be nationals of third countries.
3. Pursuant to subparagraph 5(a) of Article 4.1 (Committee), the Committee shall, upon entry into force of this Agreement, appoint the six Members of the Appeal Tribunal.â
4. The Committee may decide to increase or decrease the number of the Members of the Appeal Tribunal by multiples of three. Additional appointments shall be made on the same basis as provided for in paragraphs 2 and 3.
5. The Appeal Tribunal Members shall be appointed for a four-year term, renewable once. However, the terms of three of the six persons appointed immediately after the entry into force of this Agreement, to be determined by lot, shall extend to six years. Vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessor's term.
Instead of proposing the appointment of two Members who have its nationality or citizenship, either Party may propose to appoint up to two Members who have other nationalities or citizenship. In this case, such Members shall be considered to be nationals or citizens of the Party that proposed his or her appointment for the purposes of this Article.
6. The Appeal Tribunal shall have a President and Vice-President who shall be selected by lot for a two-year term from the Members who are nationals of third countries. They shall serve on the basis of a rotation drawn by lot by the Chair of the Committee. The Vice-President shall replace the President when the President is unavailable.
7. The Members of the Appeal Tribunal shall have demonstrated expertise in public international law, and possess the qualifications required in their respective countries for appointment to the highest judicial offices or be jurists of recognised competence. It is desirable that they have expertise in international investment law, international trade law and the resolution of disputes arising under international investment or international trade agreements.
8. The Appeal Tribunal shall hear appeals in divisions consisting of three Members of whom one shall be a national of a Member State of the Union, one a national of Viet Nam and one a national of a third country. The division shall be chaired by the Member who is a national of a third country.
9. The composition of the division hearing each appeal shall be established in each case by the President of the Appeal Tribunal on a rotation basis, ensuring that the composition of each division is random and unpredictable, while giving equal opportunity to all Members to serve. A person who is serving on a division of the Appeal Tribunal when his or her term expires may, with the authorisation of the President of the Appeal Tribunal, continue to serve on the division until the closure of the proceedings of that division and shall, for that purpose only, be deemed to continue to be a Member of the Appeal Tribunal.
10. The Appeal Tribunal shall draw up its own working procedures. The working procedures shall be compatible with this Section and the instructions provided in Annex 13 (Working Procedures for the Appeal Tribunal). The President of the Appeal Tribunal shall draw up draft working procedures in consultation with the other Members of the Appeal Tribunal and present the draft working procedures to the Committee within one year of the date of the entry into force of this Agreement. The draft working procedures shall be adopted by the Committee. If the draft working procedures are not adopted by the Committee within three months of their presentation, the President of the Appeal Tribunal shall make the necessary revision to the draft working procedures, taking into consideration the views expressed by the Parties. The President of the Appeal Tribunal shall subsequently present the revised draft working procedures to the Committee. The revised draft working procedures shall be considered adopted, unless the Committee decides to reject the revised draft working procedures within three months of their presentation.
11. When a procedural question arises that is not covered by this Section, by any supplementing tules adopted by the Committee or by working procedures adopted pursuant to paragraph 10, the relevant division of the Appeal Tribunal may adopt an appropriate procedure that is compatible with those provisions.
12. A division of the Appeal Tribunal shall make every effort to take any decision by consensus. In case that a decision cannot be reached by consensus, the division of the Appeal Tribunal shall render its decision by a majority of votes of all its Members. Opinions expressed by individual Members of a division of Appeal Tribunal shall be anonymous.
13. The Members of the Appeal Tribunal shall be available at all times and at short notice and shall stay abreast of other dispute settlement activities under this Agreement.
14. The Members of the Appeal Tribunal shall be paid a monthly retainer fee to be determined by decision of the Committee. In addition, the President of the Appeal Tribunal and the Vice-President, where applicable, shall receive a daily fee equivalent to the fee determined pursuant to paragraph 16 for each day worked in fulfilling the functions of President of the Appeal Tribunal pursuant to this Section.
15. The retainer fee and the daily fee referred to in paragraph 14 shall be paid by both Parties taking into account their respective level of development into an account managed by the Secretariat of ICSID. In the event that one Party fails to pay the retainer fee or the daily fee, the other Party may elect to pay instead. Any such arrears will remain payable, with appropriate interests.
16. Upon entry into force of this Agreement, the Committee shall adopt a decision determining the amount of the other fees and expenses of the Members of a division of the Appeal Tribunal. Such fees and expenses shall be allocated by the Tribunal, or where applicable by the Appeal Tribunal, among the disputing parties in accordance with paragraph 4 of Article 3.53 (Provisional Award).
17. Upon decision by the Committee, the retainer fee, the daily fee and the other fees and expenses may be permanently transformed into a regular salary. In such a case, the Members of the Appeal Tribunal shall serve on a full-time basis and they shall not be permitted to engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the President of the Appeal Tribunal. The Committee shall fix their remuneration and related organisational matters.
18. The Secretariat of ICSID shall act as Secretariat for the Appeal Tribunal and provide it with appropriate support. The expenses for such support shall be allocated by the Appeal Tribunal among the disputing parties in accordance with paragraph 4 of Article 3.53 (Provisional Award).
Article 3.40. Ethics
1. The Members of the Tribunal and of the Appeal Tribunal shall be chosen from persons whose independence is beyond doubt. They shall not be affiliated with any government. (1) They shall not take instructions from any government or organisation with regard to matters relating to the dispute. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest. In doing so, they shall comply with Annex 11 (Code of Conduct for Members of the Tribunal, Members of the Appeal Tribunal and Mediators). In addition, upon appointment, they shall refrain from acting as counsel or as party-appointed experts or witnesses in any pending or new investment protection dispute under this or any other agreement or under domestic laws and regulations.
2. If a disputing party considers that a Member has a conflict of interest, it shall send a notice of challenge to the appointment to the President of the Tribunal or to the President of the Appeal Tribunal, accordingly. The notice of challenge shall be sent within 15 days of the date on which the composition of the division of the Tribunal or of the Appeal Tribunal has been communicated to the disputing party, or within 15 days of the date on which the relevant facts came to its knowledge if they could not have reasonably been known at the time of composition of the division. The notice of challenge shall state the grounds for the challenge.
3. If, within 15 days of the date of the notice of challenge, the challenged Member has elected not to resign from that division, the President of the Tribunal or the President of the Appeal Tribunal, accordingly, shall, after hearing the disputing parties and after providing the Member an opportunity to submit any observations, issue a decision within 45 days of the receipt of the notice of challenge and notify forthwith the disputing parties and other Members of the division.
4. Challenges against the appointment of the President of the Tribunal to a division shall be decided by the President of the Appeal Tribunal and vice versa.
5. Upon a reasoned recommendation from the President of the Appeal Tribunal, or on their joint initiative, the Parties may by decision of the Committee decide to remove a Member from the Tribunal or a Member from the Appeal Tribunal where the behaviour of this Member is inconsistent with the obligations set out in paragraph 1 and incompatible with his continued membership of the Tribunal or the Appeal Tribunal. If the President of the Appeal Tribunal is alleged of such behaviour, the President of the Tribunal shall submit the reasoned recommendation. Paragraph 2 of Article 3.38 (Tribunal) and paragraph 3 of Article 3.39 (Appeal Tribunal) shall apply mutatis mutandis for filling vacancies that may arise pursuant to this paragraph.
Article 3.41. Multilateral Dispute Settlement
The Parties shall enter into negotiations for an international agreement providing for a multilateral investment tribunal in combination with, or separate from, a multilateral appellate mechanism applicable to disputes under this Agreement. The Parties may consequently agree on the non-application of relevant parts of this Section. The Committee may adopt a decision specifying any necessary transitional arrangements.
Subsection 5. CONDUCT OF PROCEEDINGS
Article 3.42. Applicable Law and Rules of Interpretation
1. The Tribunal and the Appeal Tribunal shall decide whether the measures subject to the claim are in breach of with the provisions of Chapter 2 (Investment Protection) as alleged by the claimant.
2. When rendering its decisions, the Tribunal and the Appeal Tribunal shall apply the provisions of Chapter 2 (Investment Protection) and other provisions of this Agreement, as applicable, as well as other rules or principles of international law applicable between the Parties, and take into consideration, as matter of fact, any relevant domestic law of the disputing Party.
3. For greater certainty, the Tribunal and the Appeal Tribunal shall be bound by the interpretation given to the domestic law by the courts or authorities which are competent to interpret the relevant domestic law, and any meaning given to the relevant domestic law made by the Tribunal and the Appeal Tribunal shall not be binding upon the courts and the authorities of either Party. The Tribunal and the Appeal Tribunal does not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic laws and regulations of the disputing Party.
4. The Tribunal and the Appeal Tribunal shall interpret this Agreement in accordance with customary rules of interpretation of public international law, as codified in the Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969.
5. When serious concerns arise as regards issues of interpretation which may affect matters relating to this Section, the Committee may adopt interpretations of provisions of this Agreement. Any such interpretation shall be binding upon the Tribunal and the Appeal Tribunal. The Committee may decide that an interpretation shall have binding effect from a specific date.
Article 3.43. Anti-Circumvention
For greater certainty, the Tribunal shall decline jurisdiction where the dispute had arisen, or was foreseeable on the basis of a high degree of probability, at the time when the claimant acquired ownership or control of the investment subject to the dispute and the Tribunal determines, on the basis of the facts of the case, that the claimant has acquired ownership or control of the investment for the main purpose of submitting the claim under this Section. The possibility to decline jurisdiction in such circumstances is without prejudice to other jurisdictional objections which could be entertained by the Tribunal.
Article 3.44. Preliminary Objections
1. The respondent may file an objection that a claim is manifestly without legal merit, no later than 30 days after the constitution of the division of the Tribunal pursuant to paragraph 7 of Article 3.38 (Tribunal), and in any event before the first session of the division of the Tribunal, or 30 days after the respondent became aware of the facts on which the objection is based.
2. The respondent shall specify as precisely as possible the basis for the objection.
3. The Tribunal, after giving the disputing parties an opportunity to present their observations on the objection, shall, at the first meeting of the division of the Tribunal or promptly thereafter, issue a decision or provisional award on the objection, stating the grounds therefor. If the objection is received after the first meeting of the division of the Tribunal, the Tribunal shall issue such decision or provisional award as soon as possible, and no later than 120 days after the objection was filed. When issuing the decision the Tribunal shall assume the alleged facts to be true, and may also consider any relevant facts not in dispute.
4. The decision of the Tribunal shall be without prejudice to the right of a disputing party to object, pursuant to Article 3.45 (Claims Unfounded as a Matter of Law) or in the course of the proceedings, to the legal merits of a claim and without prejudice to a Tribunal's authority to address other objections as a preliminary question. For greater certainty, such objection may include an objection that the dispute or any ancillary claim is not within the jurisdiction of the Tribunal or, for other reasons, is not within the competence of the Tribunal.
Article 3.45. Claims Unfounded as a Matter of Law
1. Without prejudice to the Tribunal's authority to address other objections as a preliminary question, such as an objection that the dispute or any ancillary claim is not within the jurisdiction of the Tribunal or, for other reasons, is not within the competence of the Tribunal, and without prejudice to a respondent's right to raise any such objections at any appropriate time, the Tribunal shall decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, submitted under this Section is not a claim for which an award in favour of the claimant may be made under Article 3.53 (Provisional Award), even if the facts alleged were assumed to be true. The Tribunal may also consider any relevant facts not in dispute.
2. An objection under paragraph 1 shall be submitted to the Tribunal as soon as possible after the division of the Tribunal is constituted, and in no event later than the date the Tribunal fixes for the respondent to submit its counter-memorial or statement of defence or, in the case of an amendment to the claim, the date the Tribunal fixes for the respondent to submit its response to the amendment. This objection shall not be submitted as long as proceedings under Article 3.44 (Preliminary Objections) are pending, unless the Tribunal grants leave to file an objection under this Article, after having taken due account of the circumstances of the case.
3. Upon receipt of an objection under paragraph 1, and unless it considers the objection manifestly unfounded, the Tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or provisional award on the objection, stating the grounds therefore.
Article 3.46. Transparency of Proceedings
1. The UNCITRAL Transparency Rules apply to disputes under this Section, subject to paragraphs 2 to 8.
2. The request for consultations under Article 3.30 (Consultations), the notice of intent under paragraph 1 of Article 3.32 (Notice of Intent to Submit a Claim), the determination under paragraph 2 of Article 3.32 (Notice of Intent to Submit a Claim), the notice of challenge and the decision on this challenge under Article 3.40 (Ethics) and the request for consolidation under Article 3.59 (Consolidation) shall be included in the list of documents referred to in Article 3(1) of the UNCITRAL Transparency Rules.
3. Subject to Article 7 of the UNCITRAL Transparency Rules, the Tribunal may decide, on its own initiative or upon request from any person, and after consultation with the disputing parties, whether and how to make available any other documents provided to, or issued by, the Tribunal not falling within Article 3(1) and 3(2) of the UNCITRAL Transparency Rules. This may include exhibits when the respondent so agrees.
4. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, the Union or Viet Nam, as the case may be, shall, after receiving the relevant documents pursuant to paragraph 2 of this Article, promptly transmit those documents to the non-disputing Party and make them publicly available, subject to the redaction of confidential or protected information. (1)
5. Documents referred to in paragraphs 2, 3 and 4 may be made publicly available by communication to the repository referred to in the UNCITRAL Transparency Rules or otherwise.
6. No later than three years after the date of entry into force of this Agreement, the Committee shall review the operation of paragraph 3. Upon request of either Party, the Committee may adopt a decision pursuant to subparagraph 5(c) of Article 4.1 (Committee) stipulating of Article 3(3) of the UNCITRAL Transparency Rules shall apply instead of paragraph 3 of this Article.
7. Subject to any decision by the Tribunal on an objection regarding the designation of information claimed to be confidential or protected information, neither the disputing parties nor the Tribunal shall disclose to any non-disputing Party or to the public any protected information where the disputing party that provided the information clearly designates it as such. (1)
8. A disputing party may disclose to other persons in connection with proceedings, including witnesses and experts, such unredacted documents as it considers necessary in the course of proceedings under this Section. However, the disputing party shall ensure that those persons protect the confidential or protected information in those documents.
Article 3.47. Interim Decisions
The 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. The Tribunal may neither order the seizure of assets nor prevent the application of the treatment alleged to constitute a breach. For the purposes of this paragraph, an order includes a recommendation.
Article 3.48. Security for Costs
1. For greater certainty, the Tribunal may, upon request, order the claimant to provide security for all or a part of the costs if there are reasonable grounds to believe that the claimant risks not being able to honour a possible decision on costs issued against the claimant.
2. If the security for costs is not provided in full within 30 days of the Tribunals order, or within any other time period set by the Tribunal, the Tribunal shall so inform the disputing parties. The Tribunal may order the suspension or termination of the proceedings.
Article 3.49. Discontinuance
If the claimant, following the submission of a claim under this Section, fails to take any steps in the proceedings during 180 consecutive days or such periods as the disputing parties may agree, the claimant shall be deemed to have withdrawn its claim and to have discontinued the proceedings. The Tribunal shall, at the request of the respondent and after notice to the disputing parties, take note of the discontinuance of the proceedings in an order and issue an award on costs. After such an order has been rendered the authority of the Tribunal shall lapse. The claimant may not subsequently submit a claim on the same matter.
Article 3.50. Language of the Proceedings
1. The disputing parties shall agree on the language to be used in the proceedings.
2. If the disputing parties have not reached an agreement pursuant to paragraph 1 within 30 days of the constitution of the division of the Tribunal pursuant to paragraph 7 of Article 3.38 (Tribunal), the Tribunal shall determine the language to be used in the proceedings. The Tribunal shall make its determination after consulting the disputing parties with a view to ensuring the economic efficiency of the proceedings and ensuring that the determination does not impose any unnecessary burden on the resources of the disputing parties and of the Tribunal. (1)
Article 3.51. The Non-Disputing Party
1. The respondent shall, within 30 days of the receipt of any documents referred in subparagraphs (a) and (b) or promptly after any dispute concerning confidential or protected information has been resolved, provide the non-disputing Party:
(a) the request for consultations referred to in Article 3.30 (Consultations), the notice of intent under paragraph 1 of Article 3.32 (Notice of Intent to Submit a Claim), the determination under paragraph 2 of Article 3.32 (Notice of Intent to Submit a Claim) and the claim referred to in Article 3.33 (Submission of a Claim); and
(b) upon request, any documents that are made available to the public in accordance with Article 3.46 (Transparency of Proceedings).
2. The non-disputing Party has the right to attend hearings held under this Section and to make oral representations relating to the interpretation of this Agreement
Article 3.52. Expert Reports
The Tribunal, at the request of a disputing party or, after consulting the disputing parties, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety, or other matters raised by a disputing party in the proceedings.
Article 3.53. Provisional Award
1. Where the Tribunal concludes that a measure in dispute breaches any of the provisions of Chapter 2 (Investment Protection), the Tribunal may, on the basis of a request from the claimant and after hearing the disputing parties, 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, determined in a manner consistent with the relevant provisions of Chapter 2 (Investment Protection).
Where the claim was submitted on behalf of a locally-established company, any award under this paragraph shall provide that:
(a) monetary damages and any applicable interest shall be paid to the locally established company; and
(b) any restitution shall be made to the locally established company. The Tribunal may not order the repeal of the treatment concerned.
2. Monetary damages shall not be greater than the loss suffered by the claimant or, as applicable, by its locally established company, as a result of the breach of any of the provisions of Chapter 2 (Investment Protection), reduced by any prior damages or compensation already provided by the Party concerned. For greater certainty, when an investor submits a claim on its own behalf, the investor may recover only loss or damage that the investor has incurred with regards to the covered investment of that investor.
3. The Tribunal may not award punitive damages.
4. The Tribunal shall order that the costs of the proceedings (1) be borne by the unsuccessful disputing party. In exceptional circumstances, the Tribunal may apportion costs between the disputing parties if it determines that apportionment is appropriate in the circumstances of the case. Other reasonable costs, including reasonable costs of legal representation and assistance, shall be borne by the unsuccessful disputing party, unless the Tribunal determines that such apportionment is unreasonable in the circumstances of the case. Where only some parts of the claims have been successful the costs shall be adjusted, proportionately, to the number or extent of the successful parts of the claims. The Appeal Tribunal shall deal with costs in accordance with this Article.
5. The Committee may adopt supplementing rules on fees for the purposes of determining the maximum amount of costs of legal representation and assistance that may be borne by specific categories of unsuccessful disputing parties. Such supplementing rules shall take into account the financial resources of a claimant who is a natural person or a small or medium-sized enterprise. The Committee shall endeavour to adopt such supplementing rules no later than one year after the date of entry into force of this Agreement.
6. The Tribunal shall issue a provisional award within 18 months of the date of submission of the claim. If that deadline cannot be respected, the Tribunal shall adopt a decision to that effect, which shall specify the reasons for such delay.
Article 3.54. Appeal Procedure
1. Either disputing party may appeal a provisional award before the Appeal Tribunal, within 90 days of its issuance. The grounds for appeal are:
(a) that the Tribunal has erred in the interpretation or application of the applicable law;
(b) that the Tribunal has manifestly erred in the appreciation of the facts, including the appreciation of relevant domestic law; or
(c) those provided for in Article 52 of the ICSID Convention, in so far as they are not covered by subparagraphs (a) and (b).
2. The Appeal Tribunal shall dismiss the appeal where it finds that the appeal is unfounded. It may also dismiss the appeal on an expedited basis where it is clear that the appeal is manifestly unfounded.
3. If the Appeal Tribunal finds that the appeal is well founded, the decision of the Appeal Tribunal shall modify or reverse the legal findings and conclusions in the provisional award in whole or part. Its decision shall specify precisely how it has modified or reversed the relevant findings and conclusions of the Tribunal.
4. Where the facts established by the Tribunal so permit, the Appeal Tribunal shall apply its own legal findings and conclusions to such facts and render a final decision. If that is not possible, it shall refer the matter back to the Tribunal.
5. Asa general rule, the appeal proceedings shall not exceed 180 days calculated from the date on which a party to the dispute formally notifies its decision to appeal to the date on which the Appeal Tribunal issues its decision. When the Appeal Tribunal considers that it cannot issue its decision within 180 days, it shall inform the disputing parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its decision. Unless exceptional circumstances so require, the proceedings shall in no case exceed 270 days.
6. A disputing party lodging an appeal shall provide security, including the costs of appeal, as well as a reasonable amount to be determined by the Appeal Tribunal in light of the circumstances of the case.
7. Articles 3.37 (Third-Party Funding), 3.46 (Transparency of Proceedings), 3.47 (Interim Decisions), 3.49 (Discontinuance), 3.51 (The Non-Disputing Party), Article 3.53 (Provisional Award) and 3.56 (Indemnification or Other Compensation) apply in respect of the appeal procedure, mutatis mutandis.
Article 3.55. Final Award
1. A provisional award issued pursuant to this Section shall become final if neither disputing party has appealed the provisional award pursuant to paragraph 1 of Article 3.54 (Appeal Procedure).
2. When a provisional award has been appealed and the Appeal Tribunal has dismissed the appeal pursuant to paragraph 2 of Article 3.54 (Appeal Procedure), the provisional award shall become final on the date of dismissal of the appeal by the Appeal Tribunal.
3. When a provisional award has been appealed and the Appeal Tribunal has rendered a final decision, the provisional award as modified or reversed by the Appeal Tribunal shall become final on the date of the issuance of the final decision of the Appeal Tribunal.
4. When a provisional award has been appealed and the Appeal Tribunal has modified or reversed the legal findings and conclusions of the provisional award and referred the matter back to the Tribunal, the Tribunal shall, after hearing the disputing parties if appropriate, revise its provisional award to reflect the findings and conclusions of the Appeal Tribunal. The Tribunal shall be bound by the findings made by the Appeal Tribunal. The Tribunal shall seek to issue its revised award within 90 days of receiving the decision of the Appeal Tribunal. The revised provisional award will become final 90 days after its issuance.
5. For the purposes of this Section, the term "final award" includes any final decision of the Appeal Tribunal rendered pursuant to paragraph 4 of Article 3.54 (Appeal Procedure).
Article 3.56. Indemnification or other Compensation
The Tribunal shall not accept as a valid defence, counterclaim, set-off or similar claim the fact that the investor has received or will receive indemnification or other compensation pursuant to an insurance or a guarantee contract in respect of all or part of the compensation sought in a dispute initiated pursuant to this Section.
Article 3.57. Enforcement of Final Awards
1. Final awards issued pursuant to this Section:
(a) shall be binding between the disputing parties and in respect of that particular case; and
(b) shall not be subject to appeal, review, set aside, annulment or any other remedy.
2. Each Party shall recognise a final award rendered pursuant to this Section as binding and enforce the pecuniary obligation within its territory as if it were a final judgment of a court in that Party.
3. Notwithstanding paragraphs 1 and 2, during the period referred to in paragraph 4, the recognition and enforcement of a final award in respect of a dispute where Viet Nam is the respondent shall be conducted pursuant to the New York Convention of 1958. During that time, subparagraph 1(b) of this Article and subparagraph 3(b) of Article 3.36 (Consent) do not apply to disputes where Viet Nam is the respondent.
4. In respect of a final award where Viet Nam is the respondent, subparagraph 1(b) and paragraph 2 apply after a period of five years following the date of entry into force of this Agreement, or a longer period determined by the Committee should the conditions warrant it.
5. The execution of the award shall be governed by the laws concerning the execution of judgments or awards in force where such execution is sought.
6. For greater certainty, Article 4.14 (No Direct Effect) shall not prevent the recognition, execution and enforcement of awards rendered pursuant to this Section.
7. For the purposes of Article 1 of the New York Convention of 1958, final awards issued pursuant to this Section shall be deemed to be arbitral awards and to relate to claims arising out of a commercial relationship or transaction.
8. For greater certainty and subject to subparagraph 1(b), where a claim has been submitted to dispute settlement pursuant to subparagraph 2(a) of Article 3.33 (Submission of a Claim), a final award issued pursuant to this Section shall qualify as an award under Section 6 of Chapter IV of the ICSID Convention.
Article 3.58. Role of the Parties to the Agreement
1. The Parties shall not give diplomatic protection, or bring an international claim, in respect of a dispute submitted under this Section, unless the other Party has failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
2. Paragraph 1 shall not exclude the possibility of dispute settlement under Section A (Resolution of Disputes between Parties) in respect of a measure of general application if that measure is alleged to have breached the Agreement and in respect of which a dispute has been initiated with regard to a specific investment pursuant to Article 3.33 (Submission of a Claim). This is without prejudice to Article 3.51 (The Non-Disputing Party) or Article 5 of the UNCITRAL Transparency Rules.
Article 3.59. Consolidation
1. In case that two or more claims submitted under this Section have a question of law or fact in common and arise out of the same events and circumstances, the respondent may submit to the President of the Tribunal a request for the consolidation of such claims or part thereof. The request shall stipulate:
(a) the names and addresses of the disputing parties to the claims sought to be consolidated;
(b) the scope of the consolidation sought; and
(c) the grounds for the request.
The respondent shall deliver the request to each claimant in a claim which the respondent seeks to consolidate.
2. Ifall disputing parties to the claims sought to be consolidated agree to the consolidation of the claims, the disputing parties shall submit a joint request to the President of the Tribunal pursuant to paragraph 1. The President of the Tribunal shall, after receipt of such joint request, constitute a new division of the Tribunal pursuant to Article 3.38 (Tribunal) (hereinafter referred to as the "consolidating division") which shall have jurisdiction over all or part of the claims which are subject to the joint consolidation request.
3. If the disputing parties referred to in paragraph 2 have not reached an agreement on consolidation within 30 days of the receipt of the request for consolidation referred to in paragraph 1 by the last claimant to receive it, the President of the Tribunal shall constitute a consolidating division pursuant to Article 3.38 (Tribunal). The consolidating division shall assume jurisdiction over all or part of the claims if, after considering the views of the disputing parties, it decides that doing so would best serve the interest of a fair and efficient resolution of the claims, including the interest of consistency of awards.
4. The consolidating division shall conduct its proceedings under the dispute settlement rules chosen by agreement of the claimants from those referred to in paragraph 2 of Article 3.33 (Submission of a Claim).
5. If the claimants have not agreed upon the dispute settlement rules within 30 days of the date of receipt of the request for consolidation by the last claimant to receive it, the consolidating division shall conduct its proceedings in accordance with the arbitration rules of UNCITRAL.
6. Divisions of the Tribunal constituted under Article 3.38 (Tribunal) shall cede jurisdiction in relation to the claims, or parts thereof, over which the consolidating division has jurisdiction and the proceedings of such divisions shall be stayed or adjourned, as appropriate. The award of the consolidating division in relation to the parts of the claims over which it has assumed jurisdiction shall be binding on the divisions which have jurisdiction over the remainder of the claims, as of the date the award becomes final pursuant to Article 3.55 (Final Award).
7. Acilaimant may withdraw the claim or a part thereof subject to consolidation from dispute settlement proceedings under this Article and such claim or part thereof may not be resubmitted under Article 3.33 (Submission of a Claim).
8. At the request of the respondent, the consolidating division, on the same basis and with the same effect as set out in paragraphs 3 and 6, may decide whether to assume jurisdiction over all or part of a claim falling within the scope of paragraph 1 which is submitted after the initiation of consolidation proceedings.
9. At the request of one of the claimants, the consolidating division may take appropriate measures in order to preserve the confidentiality of protected information of that claimant vis-d-vis other claimants. Such measures may include the submission of redacted versions of documents containing protected information to the other claimants or arrangements to hold parts of the hearing in private.
Chapter 4. INSTITUTIONAL, GENERAL AND FINAL PROVISIONS
Article 4.1. Committee
1. The Parties hereby establish a Committee comprising representatives of the EU Party and Viet Nam.
2. The Committee shall meet once a year, unless otherwise decided by the Committee, or in urgent cases at the request of either Party. The meetings of the Committee shall take place alternately in the Union and Viet Nam, unless otherwise agreed by the Parties. The Committee shall be co-chaired by the Minister of Planning and Investment of Viet Nam and the Member of the European Commission responsible for trade, or their respective delegates. The Committee shall agree on its meeting schedule and set its agenda.
3. The Committee shall:
(a) ensure the proper operation of this Agreement;
(b) supervise and facilitate the implementation and application of this Agreement, and further its general aims;
(c) consider issues regarding this Chapter that are referred to it by a Party;
(d) examine difficulties which may arise in the implementation of Section B (Resolution of Disputes between Investors and Parties) of Chapter 3 (Dispute Settlement);
(e) consider possible improvements of Section B (Resolution of Disputes between Investors and Parties) of Chapter 3 (Dispute Settlement), in particular in the light of experience and developments in other international fora;
(f) upon request of either Party, examine the implementation of any mutually agreed solution as regards a dispute under Section B (Resolution of Disputes between Investors and Parties) of Chapter 3 (Dispute Settlement);
(g) examine draft working procedures drawn up by the President of the Tribunal or of the Appeal Tribunal pursuant to paragraph 10 of Article 3.38 (Tribunal) and paragraph 10 of Article 3.39 (Appeal Tribunal);
(h) without prejudice to Chapter 3 (Dispute Settlement), seek to solve problems which might arise in areas covered by this Agreement, or resolve disputes that may arise regarding the interpretation or application of this Agreement; and
(i) consider any other matter of interest relating to areas covered by this Agreement.
4. The Committee may, in accordance with the relevant provisions of this Agreement: