Notwithstanding the previous paragraph, the claim may proceed if the respondent agrees that the claim may proceed, or if the investor of a Party and the enterprise of a non-Party agree to consolidate the claims under the respective agreements before a tribunal constituted under this Section.
3. A claimant may submit a claim referred to in paragraph 1 of this Article:
(a) under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the non-disputing Party are parties to the ICSID Convention;
(b) under the ICSID Additional Facility Rules, provided that either the respondent or the non-disputing Party is a party to the ICSID Convention;
(c) under the UNCITRAL Arbitration Rulesâ; or
(d) if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.
4. A claim shall be deemed submitted to arbitration under this Section when the claimantâs notice of or request for arbitration
4 In the case of arbitration under Section B pursuant to the UNCITRAL Arbitration Rules, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration shall not be applicable unless the disputing parties otherwise agree.
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(hereinafter referred as ânotice of arbitrationâ):
(a) referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) referred to in Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary- General;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules, are received by the respondent; or
(d) referred to under any arbitral institution or arbitral rules selected under subparagraph (d) of paragraph 3 of this Article is received by the respondent;
When the claimant submits a claim pursuant to subparagraphs 1(a)G@)(C) or 1(b)G)(C) of this Article, the respondent may make a counterclaim in connection with the factual and legal basis of the claim or rely on a claim for the purpose of a set off against the claimant.
5. In addition to any other information required by the applicable arbitral rules, the notice of arbitration shall also include information addressing each of the categories in Article 3.23 (Consultations).
6. The arbitration rules applicable under paragraph 3 of this Article, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Chapter.
Article 3.25. Consent of Each Party to Arbitration
1. Each Party consents to the submission of a claim to arbitration under this Section in accordance with this Chapter.
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2. The consent under paragraph 1 of this Article and the submission of a claim to arbitration under this Section shall satisfy the requirements of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute; and
(b) Article II of the New York Convention for an âagreement in writingâ.
Article 3.26. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration) and knowledge that the claimant (for claims brought under subparagraph (a) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration)) or the enterprise (for claims brought under subparagraph (b) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration)) has incurred loss or damage.
2. No claim may be submitted to arbitration under this Section by national who had the nationality of the Party to the dispute on the date on which the parties consented to submit such dispute to arbitration pursuant to Article 3.24 (Submission of a Claim to Arbitration).
3. No claim may be submitted to arbitration under this Section unless:
(a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement;
(b) the claim arises from measures included in the request for consultations submitted by the claimant in accordance with Article 3.23 (Consultation); and
(c) the notice of arbitration is accompanied: 98
(i) for claims submitted to arbitration under subparagraph (a) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration), by the claimantâs written waiver; and
(ii) for claims submitted to arbitration under subparagraph (b) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration), by the claimantâs and the enterpriseâs written waivers;
of any right to initiate or continue before any administrative tribunal or court under the law of a Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 3.24 (Submission of a Claim to Arbitration).
4. Notwithstanding paragraph 3(c)(ii) of this Article, a waiver from the enterprise shall not be required if the respondent has deprived the claimant of its ownership or control of the enterprise.
5. Notwithstanding subparagraph (c) of paragraph 3 of this Article, the claimant (for claims brought under subparagraph (a) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration)) and the claimant or the enterprise (for claims brought under subparagraph (b) of paragraph 1 of Article 3.24 (Submission of a Claim to Arbitration)) may, in accordance with the laws of the respondent, initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of preserving the claimantâs or the enterpriseâs rights and interests during the pendency of the arbitration.
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 99
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 100
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 entityâs 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 tribunalâs 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
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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 claim is submitted under paragraph 1(a)()(A), paragraph 1(a)(i)(B), paragraph 1(b)@)(A) or paragraph 1(b)(i)(B) of Article 3.24 (Submission of a Claim to Arbitration), the tribunal shall decide the issues in dispute in accordance with this Chapter and applicable rules of international law*â.
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;
47 For greater certainty, this provision is without prejudice to any consideration of the domestic law of the respondent where it is relevant to the claim as a matter of fact.
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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**; 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 Tribunalâs 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
48 The âlaw of the respondentâ means the law that a domestic court or tribunal of proper jurisdiction would apply in the same case.
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(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 attorneyâs 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 promptlyâ.
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
49 For greater certainty, nothing in this Section requires a respondent to disclose protected information or to furnish or allow access to information that it may withhold in accordance with Article 3.20 (Essential Security) or Article 3.19 (Disclosure of Information).
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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).
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Annex 3-1 Customary International Law
The Parties confirm their shared understanding that âcustomary international lawâ 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.
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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
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(b)
(iii) the character and objective of an action or series of actions by a Party;
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.
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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.
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Annex 3-4 Service of Documents on a Party The Peopleâs Republic of China
Notices and other documents shall be served on the Peopleâs Republic of China by delivery to:
Ministry of Commerce of the Peopleâs Republic of China 2 Dong Changâan Avenue
Beijing, 100731
Peopleâs 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
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Chapter CHAPTER IV TEMPORARY MOVEMENT OF NATURAL PERSONS
Article 4.1. Definitions for the Purposes of this Chapter:
âapplicationâ means the completed application and the package of documents attached to it in accordance with the legislation of the
Party;
âimmigration formalityâ means a visa, permitâ, pass, or electronic authority, granting temporary entry and stay*!, if envisaged by the national legislation of a Party;
ânatural person of the other Partyâ means a natural person of that other Party in accordance with the relevant legislation; and
âtemporary entryâ 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