2. Each Contracting Party shall further ensure that such transfers may be made without delay in freely usable currencies at the market rate of exchange prevailing on the date of the transfer.
3. Notwithstanding paragraphs 1 and 2, a Contracting Party may delay or prevent a transfer through the equitable, non-discriminatory and good-faith application of its laws relating to:
(a) Bankruptcy, insolvency or the protection of the rights of creditors;
(b) Issuing, trading or dealing in securities;
(c) Criminal or penal offences;
(d) Ensuring compliance with orders or judgments in adjudicatory proceedings; or
(e) Reports or record keeping of transfers of currency or other monetary instruments required in accordance with applicable laws and regulations.
Article 17. Settlement of Investment Disputes between the Contracting Parties
1. Each Contracting Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other Contracting Party may make with respect to any matter affecting the operation of this Agreement.
2. Any dispute between the Contracting Parties as to the interpretation or application of this Agreement, not satisfactorily adjusted by diplomacy, shall be referred for decision to an arbitration board. Such arbitration board shall be composed of three arbitrators, with each Contracting Party appointing one arbitrator within a period of 30 days from the date of receipt by either Contracting Party from the other Contracting Party of a note requesting arbitration of the dispute, and the third arbitrator to be agreed upon as President by the two arbitrators so chosen within a further period of 30 days, provided that the third arbitrator shall not be a national of either Contracting Party.
3. If the third arbitrator is not agreed upon between the arbitrators appointed by each Contracting Party within the further period of 30 days referred to in the provisions of paragraph 2, the Contracting Parties shall request the President of the International Court of Justice to appoint the third arbitrator who shall not be a national of either Contracting Party.
4. The arbitration board shall within a reasonable period of time reach its decisions by a majority of votes. Such decisions shall be final and binding.
5. Each Contracting Party shall bear the cost of its own arbitrator and its representation in the arbitral proceedings. The cost of the President of the arbitration board in discharging his or her duties and the remaining costs of the arbitration board shall be borne equally by the Contracting Parties.
Article 18. Settlement of Investment Disputes between a Contracting Party and an Investor of the other Contracting Party
1. For the purposes of this Article, an investment dispute is a dispute between a Contracting Party and an investor of the other Contracting Party that has incurred loss or damage by reason of, or arising out of, an alleged breach of any obligation under this Agreement with respect to the investor of that other Contracting Party or its investments in the Area of the former Contracting Party.
2. Nothing in this Article shall be construed so as to prevent an investor who is a party to an investment dispute (hereinafter referred to in this Article as "disputing investor") from seeking administrative or judicial settlement within the Area of the Contracting Party that is a party to the investment dispute (hereinafter referred to in this Article as "disputing Party"). However, in the event that the disputing investor has submitted the investment dispute for resolution under one of the international conciliations or arbitrations referred to in paragraph 4, the same investment dispute shall not be submitted for resolution under courts of justice, administrative tribunals or agencies or any other binding dispute settlement mechanism established under the national law.
3. An investment dispute shall, as far as possible, be settled amicably through consultation or negotiation between the disputing investor and the disputing Party (hereinafter referred to in this Article as "the disputing parties").
4. If the investment dispute cannot be settled through such consultation or negotiation within six months from the date on which the disputing investor requested for the consultation or negotiation in writing and if the disputing investor has not submitted the investment dispute for resolution under courts of justice, administrative tribunals or agencies or any other binding dispute settlement mechanism established under the national law, if any, the disputing investor may submit the investment dispute to one of the following international conciliations or arbitrations:
(a) Conciliation or arbitration in accordance with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 1965 (hereinafter referred to in this Article as "ICSID Convention"), so long as the ICSID Convention is in force between the Contracting Parties;
(b) Conciliation or arbitration under the Additional Facility Rules of the International Centre for Settlement of Investment Disputes so long as the ICSID Convention is not in force between the Contracting Parties;
(c) Arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law; and
(d) If agreed with the disputing Party, any arbitration in accordance with other arbitration rules.
5. The applicable arbitration rules shall govern the arbitration set forth in paragraph 4 except to the extent modified in this Article.
6. The disputing investor who intends to submit the investment dispute to conciliation or arbitration pursuant to paragraph 4 shall give to the disputing Party written notice of intent to do so at least 90 days before the claim is submitted. The notice of intent shall specify:
(a) The name and address of the disputing investor;
(b) The specific measures of the disputing Party at issue and a brief summary of the factual and legal basis of the investment dispute sufficient to present the problem clearly, including the obligations under this Agreement alleged to have been breached;
(c) Conciliation or arbitration set forth in paragraph 4 which the disputing investor will choose; and
(d) The relief sought and the approximate amount of damages claimed.
7. Consultations and negotiations referred to in paragraph 3 shall be requested and the notice of intent referred to in paragraph 6 shall be given to the following competent authorities of the disputing Party.
(a) In case of Japan, Ministry of Foreign Affairs; and
(b) In case of the Republic of Peru, Ministry of Economy and Finance (Ministerio de EconomÃa y Finanzas).
8.
(a) Each Contracting Party hereby consents to the submission of investment disputes by a disputing investor to conciliation or arbitration set forth in paragraph 4 chosen by the disputing investor.
(b) The consent given by subparagraph (a) and the submission by a disputing investor of a claim to arbitration shall satisfy the requirements of:
(i) Chapter II of the ICSID Convention or the Additional Facility Rules of the International Centre for Settlement of Investment Disputes for written consent of the parties to a dispute; and
(ii) Article II of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as "New York Convention") for an agreement in writing.
9. Notwithstanding paragraph 8, no claim may be submitted to conciliation or arbitration set forth in paragraph 4, if more than three years have elapsed since the date on which the disputing investor acquired or should have first acquired, whichever is the earlier, the knowledge that the disputing investor had incurred loss or damage referred to in paragraph 1.
10. Notwithstanding paragraph 4, the disputing investor may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of damages before an administrative tribunal or agency or a court of justice under the law of the disputing Party.
11. Unless the disputing parties agree otherwise, an arbitral tribunal established under paragraph 4 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. If the disputing investor or the disputing Party fails to appoint an arbitrator or arbitrators within 60 days from the date on which the investment dispute was submitted to arbitration, the Secretary-General of the International Centre for Settlement of Investment Disputes (hereinafter referred to in this Article as "ICSID"), may be requested by either of the disputing parties, to appoint the arbitrator or arbitrators not yet appointed from the ICSID Panel of Arbitrators subject to the requirements of paragraphs 12 and 13.
12. Unless the disputing parties agree otherwise, the third arbitrator shall not be a national of either Contracting Party, nor have his or her usual place of residence in the territory of either Contracting Party, nor be employed by either of the disputing parties, nor have dealt with the investment dispute in any capacity.
13. In the case of arbitration referred to in paragraph 4, each of the disputing parties may indicate up to three nationalities, the appointment of arbitrators of which is unacceptable to it. In this event, the Secretary-General of the ICSID may be requested not to appoint as arbitrator any person whose nationality is indicated by either of the disputing parties.
14. Unless the disputing parties agree otherwise, the arbitration shall be held in a country that is a party to the New York Convention.
15. An arbitral tribunal established under paragraph 4 shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
16. The disputing Party shall deliver to the other Contracting Party:
(a) Written notice of the claim submitted to the arbitration no later than 30 days after the date on which the claim was submitted; and
(b) Copies of all pleadings filed in the arbitration.
17. The Contracting Party which is not the disputing Party may make submissions to the arbitral tribunal on a question of interpretation of this Agreement, upon written notice to the disputing parties.
18. The arbitral tribunal may order an interim measure of protection to preserve the rights of the disputing investor, or to facilitate the conduct of arbitral proceedings, including an order to preserve evidence in the possession or control of either of the disputing parties. The arbitral tribunal shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in paragraph 1.
19. The award rendered by the arbitral tribunal shall include:
(a) A judgment whether or not there has been a breach by the disputing Party of any obligation under this Agreement with respect to the disputing investor and its investments; and
(b) A remedy if there has been such breach. The remedy shall be limited to one or both of the following:
(i) Payment of monetary damages and applicable interest; and
(ii) Restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
20. The award rendered in accordance with paragraph 19 shall be final and binding upon the disputing parties. The disputing Party shall carry out without delay the provisions of the award and provide in its Area for the enforcement of the award in accordance with its relevant laws and regulations.
21. Neither Contracting Party shall give diplomatic protection, or bring an international claim, in respect of an investment dispute which the other Contracting Party and an investor of the former Contracting Party have consented to submit or submitted to arbitration set forth in paragraph 4, unless the other Contracting Party shall have failed to abide by and comply with the award rendered in such investment 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 investment dispute.
22. The assumption of expenses incurred by the disputing parties in the arbitration or conciliation shall be established:
(a) In case of subparagraph 4(a) and (b), by the arbitration or conciliation institution which the dispute has been submitted to, according to its rules of procedure for arbitration or conciliation proceedings;
(b) In case of subparagraph 4(c), in accordance with the rules of procedure for arbitration proceedings chosen by the disputing investor, where applicable; or
(c) In case of subparagraph 4(d), in accordance with any rules of procedure, or in the absence of such rules, in accordance with the agreement of the disputing parties.
Article 19. General and Security Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Contracting Party, or a disguised restriction on investments of investors of the other Contracting Party in the Area of a Contracting Party, nothing in this Agreement other than Article 14 shall be construed to prevent a Contracting Party from adopting or enforcing measures:
(a) Necessary to protect human, animal or plant life or health;
(b) Necessary to protect public morals or to maintain public order;
Note: The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
(c) Necessary to secure compliance with the laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) The prevention of deceptive and fraudulent practices or to deal with the effects of a default on contract;
(ii) The protection of the privacy of the individual in relation to the processing and dissemination of personal data and the protection of confidentiality of personal records and accounts; or
(iii) Safety;
(d) Which it considers necessary for the protection of its essential security interests:
(i) Taken in time of war, or armed conflict, or other emergency in that Contracting Party or in international relations; or
(ii) Relating to the implementation of national policies or international agreements respecting the non-proliferation of weapons;
(e) In pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security; or
(f) Imposed for the protection of national treasures of artistic, historic or archaeological value.
2. In cases where a Contracting Party takes any measure, pursuant to paragraph 1, that does not conform with the obligations under this Agreement other than Article 14, that Contracting Party shall, prior to the entry into force of the measure or as soon thereafter as possible, notify the other Contracting Party of the following elements of the measure: (a) sector and sub-sector or matter; (b) obligation or article in respect of the measure; (c) legal source of the measure; (d) succinct description of the measure; and (e) purpose of the measure.
Article 20. Temporary Safeguard Measures
1. A Contracting Party may adopt or maintain measures not conforming with its obligations under Article 16:
(a) In the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(b) In cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary and exchange rate policies.
2. Measures referred to in paragraph 1:
(a) Shall be consistent with the Articles of Agreement of the International Monetary Fund so long as the Contracting Party taking the measures is a party to the said Articles;
(b) Shall not exceed those necessary to deal with the circumstances set out in paragraph 1;
(c) Shall be temporary and shall be eliminated as soon as conditions permit;
(d) Shall be promptly notified to the other Contracting Party; and
(e) Shall avoid unnecessary damages to the commercial, economic and financial interests of the other Contracting Party.
3. Nothing in this Agreement shall be regarded as altering the rights enjoyed and obligations undertaken by a Contracting Party as a party to the Articles of Agreement of the International Monetary Fund.
Article 21. Prudential Measures
1. Notwithstanding any other provisions of this Agreement, a Contracting Party shall not be prevented from taking measures relating to financial services for prudential reasons, including measures for the protection of investors, depositors, policy holders or persons to whom fiduciary duty is owed by an enterprise supplying financial services or to ensure the integrity and stability of its financial system.
2. In cases where a Contracting Party takes any measure, pursuant to paragraph 1, that does not conform with the obligations of the provisions of this Agreement, that Contracting Party shall not use such measure as a means of avoiding its obligations.
3. Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting non-discriminatory measures of general application in pursuit of monetary, exchange rate and related credit policies such as those aimed to reducing exchange rate volatility, limiting speculative capital inflows or preserving the stability of domestic prices.
Article 22. Intellectual Property Rights
1. Nothing in this Agreement shall be construed so as to derogate from the rights and obligations under multilateral agreements in respect of protection of intellectual property rights to which the Contracting Parties are parties.
2. Nothing in this Agreement shall be construed so as to oblige either Contracting Party to extend to investors of the other Contracting Party and their investments treatment accorded to investors of a non-Contracting Party and their investments by virtue of multilateral agreements in respect of protection of intellectual property rights, to which the former Contracting Party is a party.
3. The Contracting Parties shall give due consideration to the adequate and effective protection of intellectual property rights and shall promptly consult with each other for this purpose at the request of either Contracting Party. Depending on the results of the consultation, each Contracting Party shall, in accordance with its applicable laws and regulations, take appropriate measures to remove the factors which are recognised as having adverse effects to the investments.
Article 23. Taxation
1. Nothing in this Agreement shall apply to taxation measures except as expressly provided for in this Article.
2. Nothing in this Agreement shall affect the rights and obligations of either Contracting Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
3. Paragraphs 1, 2 and 3 of Article 9, and Article 13 shall apply to taxation measures. Non-discriminatory treatment with regard to access to the courts of justice and administrative tribunals shall also apply to taxation measures.
4. Articles 17 and 18 shall apply to disputes under paragraph 3.
5.
(a) No investor may invoke Article 13 as the basis for an investment dispute under Article 18, where it has been determined pursuant to subparagraph (b) that taxation measure is not an expropriation.
(b) The investor shall refer the issue, at the time that it delivers the notice of intent under Article 18, to the competent authorities of both Contracting Parties to determine whether such measure is not an expropriation. If the competent authorities of both Contracting Parties do not consider the issue or, having considered it, fail to determine, within a period of 180 days of such referral, that the measure is not an expropriation, the investor may submit its claim to arbitration under Article 18.
(c) For the purposes of subparagraph (b), the term "competent authorities" means:
(i) With respect to Japan, the Minister of Finance or his or her authorised representatives, who shall consider the issue in consultation with the Minister for Foreign Affairs or his or her authorised representatives; and
(ii) With respect to the Republic of Peru, the Minister of Economy and Finance (el Ministro de EconomÃa y Finanzas), or his or her authorised representatives.
Article 24. Joint Committee
1. The Contracting Parties shall establish a Joint Committee (hereinafter referred to as "the Committee") with a view to accomplishing the objectives of this Agreement. The functions of the Committee shall be:
(a) To discuss and review the implementation and operation of this Agreement;
(b) To review the exceptional measures maintained, amended, modified or adopted pursuant to paragraph 1 of Article 8 for the purpose of contributing to the reduction or elimination of such exceptional measures;
(c) To discuss the exceptional measures adopted or maintained pursuant to paragraph 2 of Article 8 for the purpose of encouraging favourable conditions for investors of the Contracting Parties; and
(d) To discuss any other investment-related matters concerning this Agreement.
2. The Committee may, as necessary, make appropriate recommendations by consensus to the Contracting Parties for the more effective functioning or the attainment of the objectives of this Agreement.
3. The Committee may establish sub-committees and delegate specific tasks to such sub-committees, in addition to the Sub-committee on Improvement of Investment Environment established in accordance with Article 25.
4. The Committee and the sub-committees shall be composed of representatives of the Contracting Parties. The Committee shall determine the rules of procedure of its own and of sub-committees. The Committee and the sub-committees, upon mutual consent of the Contracting Parties, may hold joint meetings with the private sectors.
5. The Committee shall meet upon the request of either Contracting Party.
Article 25. Sub-committee on Improvement of Investment Environment
1. The Sub-committee on Improvement of Investment Environment (hereinafter referred to in this Article as "the Sub-committee") shall be established.
2. The functions of the Sub-committee shall be:
(a) To exchange information on and to discuss investment-related matters within the scope of this Agreement, which relate to improvement of investment environment;
(b) To report the findings and the outcome of discussions of the Sub-committee to the Committee; and
(c) To carry out other functions as may be delegated by the Committee.
Article 26. Health, Safety and Environmental Measures and Labour Standards
The Contracting Parties recognise that it is inappropriate to encourage investment by investors of the other Contracting Party and of a non-Contracting Party by relaxing domestic health, safety or environmental measures, or by lowering its labour standards. To this effect each Contracting Party should not waive or otherwise derogate from such measures and standards as an encouragement for the establishment, acquisition or expansion of investments in its Area by investors of the other Contracting Party and of a non-Contracting Party.
Article 27. Denial of Benefits
1. A Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of the other Contracting Party and to its investments if the enterprise is owned or controlled by an investor of a non-Contracting Party and the denying Contracting Party:
(a) Does not maintain diplomatic relations with the non-Contracting Party; or
(b) Adopts or maintains measures with respect to the non-Contracting Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investments.
2. Subject to prior notification and consultation, a Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of the other Contracting Party and to its investments if the enterprise is owned or controlled by an investor of a non-Contracting Party and the enterprise has no substantial business activities in the Area of the other Contracting Party.
Article 28. Headings
The headings of the Articles of this Agreement are inserted for convenience of reference only and shall not affect the interpretation of this Agreement.
Article 29. Final Provisions
1. This Agreement shall enter into force on the thirtieth day after the date of exchange of diplomatic notes between the Governments of the Contracting Parties informing each other that their respective legal procedures necessary for the entry into force of this Agreement have been completed. It shall remain in force for a period of ten years after its entry into force and shall continue in force unless terminated as provided in paragraph 2.
2. A Contracting Party may, by giving one year's advance notice in writing to the other Contracting Party, terminate this Agreement at the end of the initial ten year period or at any time thereafter.
3. In respect of investments acquired prior to the date of termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten years from the date of termination of this Agreement.
4.
(a) The texts of this Agreement in the Japanese, Spanish and English languages shall be equally authentic. In the event of any divergence among the texts, the English text shall prevail.
(b) Notwithstanding subparagraph 4(a):
(i) Section 1 of Annex I and Section 1 of Annex II are written in the Japanese and English languages, such texts being equally authentic; and
(ii) Section 2 of Annex I and Section 2 of Annex II are written in the Spanish and English languages, such texts being equally authentic.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Lima, on twenty-first day of November, 2008, in duplicate.
FOR JAPAN:
FOR THE REPUBLIC OF PERU:
Attachments
Section 1
Schedule of Japan
1. The Schedule of Japan sets out, pursuant to paragraph 1 of Article 8, the reservations taken by Japan with respect to existing measures that do not conform with obligations imposed by:
(a) Article 3 (National Treatment);
(b) Article 4 (Most Favoured Nation Treatment);
(c) Article 6 (Prohibition of Performance Requirements); or