Article 3.27. Constitution of the Tribunal
1. Unless the disputing parties otherwise agree, the tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
2. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
3. If a tribunal has not been constituted within 90 days from the date that a claim is submitted to arbitration under this Section, the appointing authority, on the request of a disputing party, shall appoint, in his or her discretion and after consulting with the disputing parties, the arbitrator or arbitrators not yet appointed.
4. The appointing authority may not appoint a presiding arbitrator who is a national of a Party, unless both Parties to the dispute otherwise agree.
5. In the event that the appointing authority appoints a presiding arbitrator in accordance with relevant arbitration rules, the presiding arbitrator being appointed should be a recognized expert in public international law, and should be experienced in investor-state dispute settlement.
Article 3.28. Conduct of the Arbitration
1. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under paragraph 3 of Article 3.24 (Submission of a Claim to Arbitration). If the disputing parties fail to reach agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
2. The non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Chapter.
3. After consulting the disputing parties, the tribunal may allow a person or entity that is not a disputing party to file a written amicus curiae submission with the tribunal regarding a matter within the scope of the dispute. Such a submission shall provide the identity of such person or entity (including any controlling entity and any source of substantial financial assistance in either of the two years preceding the submission, e.g. funding around 20% of an entity's overall operations annually), disclose any connection with any disputing party, and identify any person, government or other entity that has provided or will provide any financial or other assistance in preparing the submission. In determining whether to allow such a filing, the tribunal shall consider, among other things, the extent to which:
(a) the amicus curiae submission would assist the tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge, or insight that is different from that of the disputing parties;
(b) the amicus curiae submission would address a matter within the scope of the dispute; and
(c) the amicus curiae has a significant interest in the proceeding.
4. The tribunal shall ensure that the amicus curiae submission does not disrupt the proceeding or unduly burden or unfairly prejudice either disputing party, and that the disputing parties are given an opportunity to present their observations on the amicus curiae submission.
5. Without prejudice to a tribunal's authority to address other objections as a preliminary question, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made under this Section.
6. In deciding an objection under paragraph 5 of this Article, the tribunal shall assume to be true claimantâs factual allegations. The tribunal may also consider any relevant facts not in dispute. The tribunal shall decide on the objection on an expedited basis, and issue a decision or award on the objection(s) no later than 150 days after the date of the request.
7. In any arbitration conducted under this Section, at the request of a disputing party, a tribunal shall, before issuing a decision or award on liability, transmit its proposed decision or award to the disputing parties and to the non-disputing Party. Within 60 days after the tribunal transmits its proposed decision or award, the disputing parties may submit written comments to the tribunal conceming any aspect of its proposed decision or award. The tribunal shall consider any such comments and issue its decision or award not later than 45 days after the expiration of the 60-day comment period.
8. In the event that an appellate mechanism for reviewing awards rendered by investor-State dispute settlement tribunals is developed in the future under other institutional arrangements, the Parties shall consider whether awards rendered under Article 3.31 (Awards) should be subject to that appellate mechanism.
Article 3.29. Governing Law
1. Subject to paragraph 3 of this Article, when a claimis submittedunderparagraph 1(a)(i)(A), paragraph 1(a)(i)(B), paragraph 1(b)(i)(A) orparagraph 1(b)(i)(B) of Article 3.24 (Submission of a Claimto Arbitration), the tribunal shall decide the issues in dispute in accordance withthisChapter and applicable rules of international law (47).
2. Subject to paragraph 3 of this Article and the other terms of this Section, when a claim is submitted under paragraph 1(a)(i)(C) or paragraph 1(b)(i)(C) of Article 3.24 (Submission of a Claim to Arbitration), the tribunal shall apply:
(a) the rules of law specified in the pertinent investment agreement, or as the disputing parties may otherwise agree; or
(b) if the rules of law have not been specified or otherwise agreed:
(i) the law of the respondent, including its rules on the conflict of laws (48); and
(ii) such rules of customary international law as may be applicable.
3. A joint decision of the Parties declaring their interpretation of a provision of this Agreement shall be binding on a tribunal of any ongoing or subsequent dispute, and any decision or award issued by such a tribunal must be consistent with that joint decision.
Article 3.30. Discontinuance
If, following the submission of a claim under this Section, the claimant fails to take any steps in the proceeding 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. In case that a Tribunal has been established according to this Section, it shall, at the request of the respondent, and after notice to the disputing parties, take note of the discontinuance 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. This Article is without prejudice to the Tribunal's authority to discontinue the proceedings in according with the applicable arbitrations rules.
Article 3.31. Awards
1. Where a tribunal makes an award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
2. Subject to paragraph 1 of this Article, where a claim is submitted to arbitration under subparagraph (b) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration):
(a) an award of restitution of property shall provide that restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic laws.
3. A tribunal may not award punitive damages.
4. The award shall be made available to the public promptly (49).
5. A disputing party shall 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 and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to Article 3.24 (Submission of a Claim to Arbitration):
(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.
6. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
Article 3.32. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a tribunal, at the request of a disputing party or, unless the disputing parties disapprove, 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 scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 3.33. Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex 3-4 (Service of Documents on a Party).
Annex 3-1. Customary International Law
The Parties confirm their shared understanding that "customary international law" generally and as specifically referenced in Article 3.5 (Minimum Standard of Treatment) results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 3.5 (Minimum Standard of Treatment), the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.
Annex 3-2. Expropriation
The Parties confirm their shared understanding that:
1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Paragraph 1 of Article 3.7 (Expropriation and Compensation) addresses two situations:
(1) Direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure;
(2) Indirect expropriation addressed by paragraph 1 of Article 3.7 (Expropriation and Compensation), where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure:
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case- by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of an action or series of actions by a Party, although the fact that such an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to which an action or series of actions by a Party interferes with distinct, reasonable investment-backed expectations; and
(iii) the character and objective of an action or series of actions by a Party;
(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public moral, public health, safety, and the environment, do not constitute indirect expropriations.
Annex 3-3. Temporary Safeguard Measures
1. In the event of serious balance-of-payments difficulties, external financial difficulties, or threat thereof, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers relating to the movements of capital.
2. Any measures adopted or maintained under paragraph 1 of this Annex shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
(b) be temporary and be phased out progressively as the situation specified in paragraph 1 of this Annex improves, and shall not exceed eighteen (18) months in duration; however, if extremely exceptional circumstances arise, a Party may extend such measures for one twelve-month period after advance notice and consultations with the other Party;
(c) not be inconsistent with Article 3.3 (National Treatment) and Article 3.4 (Most-Favored-Nation Treatment);
(d) not be inconsistent with Article 3.7 (Expropriation and Compensation);
(e) not result in multiple exchange rates; and
(f) be promptly notified to the other Party and published as soon as practicable.
Annex 3-4. Service of Documents on a Party
The People's Republic of China
Notices and other documents shall be served on the People's Republic of China by delivery to:
Ministry of Commerce of the People's Republic of China 2 Dong Chang'an Avenue
Beijing, 100731
People's Republic of China
The Republic of Belarus
Notices and other documents shall be served on the Republic of Belarus by delivery to:
Ministry of Economy of the Republic of Belarus 14 Bersona Street Minsk, 220030
Republic of Belarus
Chapter IV. TEMPORARY MOVEMENT OF NATURAL PERSONS
Article 4.1. Definitions
For the purposes of this Chapter:
"application" means the completed application and the package of documents attached to it in accordance with the legislation of the Party;
"immigration formality" means a visa, permit (50), pass, or electronic authority, granting temporary entry and stay (51), if envisaged by the national legislation of a Party;
"natural person of the other Party" means a natural person of that other Party in accordance with the relevant legislation; and
"temporary entry" means entry by a natural person of a Party as covered by this Chapter without the intent to establish permanent residence.
Article 4.2. Scope
1. This Chapter shall apply, as set out in each Party's Schedule in Annex III (Schedule of Specific Commitments for the Temporary Movement of Natural Persons), to measures of that Party affecting temporary entry and temporary stay of natural persons of the other Party into the territory of the Party where such persons are engaged in the supply of services, or the conduct of investment. Such persons shall include one or more of the following:
(a) business visitors;
(b) intra-corporate transferees; or
(c) other categories as may be specified in each Party's Schedule in Annex III (Schedules of Specific Commitments on Temporary Movement of Natural Persons).
2. The provisions of this Chapter provide the transparency and procedural disciplines related to temporary entry and temporary stay of natural persons of a Party, specified in the Party's Schedule in Annex III (Schedule of Specific Commitments on Temporary Movement of Natural Persons), and do not include any obligations of a Party to guarantee temporary entry and temporary stay for categories of natural persons of the other Party, except for cases provided for in Article 4.3 (Grant of Temporary Entry and Temporary Stay).
3. This Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
4. The Agreement shall not prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this chapter.
5. The sole fact that a Party requires natural persons of the other Party to obtain an immigration formality shall not be regarded as nullifying or impairing the benefits accruing to any Party under this Chapter.
Article 4.3. Grant of Temporary Entry and Temporary Stay
1. Each Party shall, in accordance with its Schedule in Annex III (Schedules of Specific Commitments on Temporary Movement of Natural Persons), grant temporary entry or temporary stay for the period in accordance with this Chapter to natural persons of the other Party, provided that those natural persons:
(a) follow application procedures prescribed by national legislation for the immigration formality sought; and
(b) meet all relevant eligibility requirements for granting temporary entry or temporary stay for the period, set in the Schedule of Specific commitments in Annex I and Annex Ill (Schedules of Specific Commitments on Temporary Movement of Natural Persons).
2. In accordance with its laws and regulations, any fees imposed by a Party in respect of the processing of an immigration formality shall be reasonable and determined with regards to administrative costs involved (52) in that they do not, in themselves, represent an unjustifiable impediment to the movement of natural persons of the other Party under this Chapter.
3. A Party may deny temporary entry or temporary stay for the period, set in its Schedule in Annex III (Schedules of Specific Commitments on Temporary Movement of Natural Persons) to any natural person of the other Party who does not comply with subparagraph (a) or (b) of paragraph 1 of this Article (53).
4. The sole fact that a Party grants temporary entry to a natural person of the other Party pursuant to this Chapter shall not be construed to exempt that natural person from meeting any applicable licensing or other requirements, including any mandatory codes of conduct, to practice a profession or otherwise engage in business activities.
Article 4.4. Schedules of Specific Commitments on Temporary Movement of Natural Persons
Each Party shall set out in its Schedule in Annex III (Schedules of Specific Commitments on Temporary Movement of Natural Persons) its commitments for the temporary entry into and temporary stay in its territory of natural persons of the other Party covered by Article 4.2 (Scope). These Schedules shall specify the conditions and limitations governing those commitments, including the length of stay, for each category of natural persons included therein (54).
Article 4.5. Transparency
1. For the purposes of this Chapter, each Party shall ensure that its competent authorities make publicly available the information necessary to apply for granting of temporary entry and temporary stay in its territory. Such information shall be made electronically available and kept updated.
2. Information referred to in paragraph 1 of this Article shall include, inter alia:
(a) categories of immigration formalities;
(b) documentation and evidence required and conditions to be met;
(c) method of filing and options on where to file, such as consular offices or online;
(d) processing time;
(e) application fees;
(f) period of validity of immigration formalities;
(g) conditions for renewals or extension in accordance with national legislation of a Party;
(h) available review and/or appeal procedures;
(i) reference to relevant laws of general application; and
(j) relevant requirements referred to in Article 4.5 (Transparency).
3. Each Party shall provide the other Party with details of relevant publications or websites where information referred to in paragraph 2 of this Article is made available.
Article 4.6. Requirements and Procedures Related to Temporary Entry and Temporary Stay
1. Documents required for processing an application for temporary entry and temporary stay of natural persons shall be relevant.
2. After the submission of an application is considered completed in accordance with the laws and regulations of that Party, competent authorities of that Party shall process the application within the time limits established by its laws and regulations. The competent authorities of each Party shall notify the applicant of the outcome of the application promptly after the decision has been taken. The notification shall include, if applicable, the period of stay and any other terms and conditions.
3. Upon the applicant's request, the competent authorities of the Party concerned shall, without undue delay and to the extent possible, provide information concerning the status of the applicant's application. This information shall normally be provided free of charge.
4. In case of incomplete application, the authority shall notify the applicant about the missing information and provide the applicant an opportunity to submit a new application.
This paragraph does not apply to visa applications.
5. If a Party requires separate applications for temporary entry and temporary stay, it shall ensure that the respective time periods for temporary entry and temporary stay, if granted, are compatible.
6. Applicants shall be given the opportunity to apply for renewal or extension in accordance with national legislation of a Party, which shall be granted under the terms of the Party's Schedule in Annex III (Schedule of Specific Commitments for the Temporary Movement of Natural Persons).
7. Each Party shall ensure that the procedures for application for the renewal or extension in accordance with national legislation of a Party are pre-established and are clearly specified.
Article 4.7. Spouses and Dependents
Each Party may grant the right of temporary entry and temporary stay to spouses and dependents of the natural persons of the other Party, specified in the Party's Schedule in Annex III (Schedule of Specific Commitments for the Temporary Movement of Natural Persons), in accordance with the legislation of the Party.
Article 4.8. Cooperation
The Parties may discuss mutually agreed areas of cooperation to further facilitate temporary entry and temporary stay of natural persons of the other Parties, which shall take into consideration areas proposed by the Parties during the course of negotiations or other areas as may be identified by the Parties.
Article 4.9. Dispute Settlement
1. Parties shall endeavour to settle any differences arising out of the implementation of this Chapter through consultations.
2. No Party shall have recourse to dispute settlement under Chapter IX (Dispute Settlement) regarding a refusal to grant temporary entry and temporary stay.
Chapter V. ELECTRONIC COMMERCE
Article 5.1. Definition
For the purposes of this Chapter:
"electronic authentication" means the process of verifying or testing an electronic statement or claim, in order to establish a level of confidence in the statement's or claim's reliability;