v) to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effec- tive imposition or collection of taxes (as permitted by Article XIV(d) of GATS); or
vi) to aprovision that conditions the receipt, or continued receipt, of an advantage relating to the con- tributions to, or income of, pension trusts or pension plans on a requirement that the Party main- tain continuous jurisdiction over the pension trust or pension plan.
(D) Article 8 shall apply to a taxation measure alleged to be an expropriation. However, no investor may invoke Article 8 as the basis of a claim where it has been determined pursuant to this Paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 8 with respect to a taxation measure must refer to the Executive Director of the Secretariat at the time that it gives its notice of inten- tion to arbitrate under Article 42 the issue of whether that taxation measure involves an expropriation. The Executive Director shall ask the competent authorities of the host state and home state whether they do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of such referral, in which case the investor may submit its claim to arbitration, if the other conditions of Article 45 have been fulfilled as well.
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<b>Part 10: General Exceptions Article 51: General reservations and exceptions </b>
(A) The provisions of this Agreement, except Article 8, do not apply to any law or other measure of a host state the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, or categories of persons, disadvantaged by long-term historic discrimina- tion in its territory, provided that such law or other measure is compatible with the requirements of Article 19.
(B) State Parties may take such measures as are necessary to avoid or abate a balance of payments emer- gency. Such measures shall be kept in force for as short as possible to address the emergency situation. Such measures shall not be subject to this Agreement.
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<b>Part 11: Final Provisions </b>
<b>PART 11: FINAL PROVISIONS </b>
Article 52. Regional Cooperation
Where appropriate, the Parties shall cooperate in the negotiation of regional cooperation agreements on matters covered by this agreement, and the development of regional capacity in this field.
Article 53. Amendment
(A) The Parties may agree on any modification of, or addition to, this Agreement, through the Conference of the Parties.
(B) When so agreed, and approved in accordance with the applicable legal procedures of each Party, and the provisions on entry into force with the amendment, a modification or addition shall constitute an integral part of this Agreement for those Parties that become Party to the amendment.
Article 54. Annexes, Appendices and Notes
(A) The Annexes and footnotes to this Agreement constitute an integral part of this Agreement. (B) The national lists in Annex E may be amended by each Party at their discretion.
Article 55. Protocols
The Parties may, at a Conference of the Parties, adopt a Protocol to this Agreement.
Article 56. Entry Into Force
This Agreement shall enter into force 90 days after the receipt by the depository of the 40th instrument of ratification or accession to this Agreement.
Article 57. Withdrawal
(A) Any Party may withdraw from this Agreement by written notification to the other Parties. This Agreement shall expire for that Party 180 days after the date of such notification.
(B) Notwithstanding Paragraph (A), the rights and obligations of investors and investments and host and home states in relation to that investment or investor, where an investment is substantially in progress of being established or has been established shall survive for a period of five years from such a with- drawal. The five-year period shall be extended to the full period of any investment contract, agreement or authorization if one is in existence at the time of the withdrawal.
Article 58. Authentic Texts
The English language text of this Agreement shall be its authentic language.
Article 59. Depositary
The Depositary of this Agreement shall be the Secretary-General of the United Nations.
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<b>Annexes </b>
<b>ANNEX A: INVESTOR-STATE DISPUTE SETTLEMENT </b>
Article 1. Consultation and Negotiation
In the event of a dispute under this Agreement, the claimant (investor/investment/State Party) and the respondent (investor/investment/State Party) shall seek to resolve the dispute in accordance with Article 42. The claimant and respondent constitute the disputing parties.
Article 2. Submission of a Claim to Arbitration
(1) In the event that a disputing party considers that a dispute cannot be settled by alternative means, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled:
a) the investment, on its own behalf, may submit to arbitration under this Agreement a claim that the respondent host State has breached an obligation under this Agreement and that the invest- ment has incurred loss or damage by reason of, or arising out of, that breach;
b) the investor, on its own or on behalf of the investment if it is the controlling investor, may submit to arbitration under this Agreement a claim that the respondent has breached an obligation under this Agreement, and that the claimant has incurred loss or damage by reason of, or arising out of, that breach;
c) a State Party may submit a claim to arbitration under this Agreement as claimant against another State party; and
d) a State Party may submit a claim to arbitration as claimant against an investor or investment.
(2) For greater certainty, an investor or investment claimant may submit to arbitration a claim referred to in Paragraph (1) that the respondent has breached an obligation through the actions of a designated monopoly or a state enterprise exercising delegated government authority.
(3) At least 180 days before submitting any claim to arbitration, a potential claimant shall deliver to the potential respondent a written notice of its intention to submit the claim to arbitration (ânotice of intentionâ). The notice shall specify:
a) the name and address of the claimant and its legal representative and, where a claim is submitted on behalf of an investment, the name, address and place of incorporation of the investment;
b) for each claim, the provision(s) of this Agreement alleged to have been breached and any other relevant provisions;
c) the legal and factual basis for each claim; and d) the relief sought and, where appropriate, the approximate amount of damages claimed.
The Council may establish a specific form for this purpose and make it available through the Internet and other means, and through the National Authorities.
(4) Provided that at least six months have elapsed since the events giving rise to the claim, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled, a claimant may for- mally submit a Notice of Arbitration to the Dispute Settlement Body, panel division, established by this Agreement.
(5) A-claim shall be deemed submitted to arbitration when the claimant's Notice of Arbitration is submitted to the Secretariat of the Dispute Settlement Body and to the respondent at its designated place of busi- ness or to its National Authority. The Council may establish a specific form for this purpose and make it available through the internet and other means, and through the National Authorities. The Notice of Arbitration shall include, at a minimum, the information required in Paragraph (3).
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<b>Annexes Article 3: Rules of Arbitration </b>
The Council of the Dispute Settlement Body shall establish Rules of Arbitration consistent with the provisions of this Agreement. Until the adoption of such Rules, the Rules of Arbitration of the Centre in effect on the date the claim or claims were submitted to arbitration under this Agreement, shall govern the arbitration except to the extent modified by this Agreement, irrespective of whether the host and home states are par- ties to the ICSID Convention.
Article 4. Consent of Each Party to Arbitration
Each State Party consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions. Each investor and investment, by virtue of establishing or continuing to operate or own an investment subject to this Agreement, consents to the submission of a claim to arbitration under this Agreement.
Article 5. Conditions and Limitations on Consent of Each Party
(1) No claim may be submitted to arbitration 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 in the Notice of Arbitration. This Article does not apply in the case of Article 13 of this Agreement.
(2) No claim may be submitted to arbitration by an investor or investment unless the claimant has demon- strated that the requirement for the exhaustion of local remedies has been complied with or the claimant has been granted a request to a panel for a finding that it is not in a viable position to exhaust local remedies. In the event of the latter case, the Notice of Arbitration shall be accompanied by an express written waiver of any such rights conditional on the initiation of an arbitration.
Article 6. Selection of Arbitrators
(1) The Director shall, within 30 days of the filing of a notice of arbitration, appoint the panel members from the standing roster of panelists. No panel member shall be from the host or home state.
(2) A panel shall be composed of three members, with one designated as President of the panel.
(3) A disputing party may contest the nomination of an arbitrator for good cause, including real or appar- ent conflict of interest. Any challenges shall be decided by the remaining two designated arbitrators. Such a challenge must be brought as soon as practicable after information leading to the challenge is made known to the challenging party.
Article 7. Conduct of the Arbitration
(1) Unless otherwise agreed, the place of arbitration shall be at the Secretariat to the Dispute Settlement Body or a regional affiliate in the region of the disputing party. The disputing parties may agree on anoth- er place of arbitration within 30 days of the notice of arbitration being filed.
(2) Any non-disputing party may make oral and written submissions to the tribunal regarding the inter- pretation of this Agreement.
(3) Without prejudice to a tribunal's authority to address other objections as a preliminary question, such as an objection that a dispute is not within a tribunalâs competence, 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. This includes an objection pur- suant to Article 18(1) of the Agreement.
a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its first counter memorial.
b) On receipt of an objection under this Paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has estab-
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<b>Annexes </b>
lished for considering any other preliminary question, and issue a decision or award on the objec- tion, stating the grounds therefore.
c) In deciding an objection under this Paragraph, the tribunal shall assume to be true claimant's fac- tual allegations in support of any claim in the notice of arbitration, except in so far as it may relate to a breach of Article 13 issue. The tribunal may also consider any relevant facts not in dispute.
d) The respondent does not waive any objection as to competence or any argument on the merits merely because the respondent did or did not raise an objection under this Paragraph or make use of the expedited procedure set out in the following Paragraph.
In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under Paragraph (3) or any objection that the dispute is not within the tribunalâs competence. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds therefore, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period of time, which may not exceed 30 days.
A claim to loss of jurisdiction due to a breach of Article 13 shall be decided by the tribunal on the basis of a balance of probabilities on the facts adduced in evidence before it. A tribunal does not have to wait for a determination by a domestic court in the host or home state.
When it decides a respondent's objection under Paragraph (3) or (4), the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorneysâ fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consid- er inter alia whether either the claimant's claim or the respondent's objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
A respondent may not assert as a defense, counterclaim, right of set-off, or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
A 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. A tribunal may not order attachment or enjoin the application of a measure alleged to constitute a breach of the rel- evant parts of this Agreement. The protection of the public welfare and public interests shall be con- sidered when any interim measures are requested.
Article 8. Amicus Curiae
<b>(1) </b>
<b>(2) </b>
<b>(3) </b>
<b>(4) </b>
The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party (the âsubmitterâ).
The submissions shall be provided in English or in the principal language of the host state, and shall identify the submitter and any Party, other government, person, or organization, other than the sub- mitter, that has provided, or will provide, any financial or other assistance in preparing the submission.
The Council may establish and make available to the public a standard form for applying for status as amicus curiae. This may include specific criteria which will help guide a tribunal in determining whether to accept a submission in any given instance.
Amicus curiae submissions may relate to any matter covered by this Agreement.
Article 9. Transparency of Arbitral Proceedings
<b>(1) </b>
Subject to Paragraphs (2) and (4), the claimant and respondent shall, after sending the following doc- uments to the other disputing party, promptly transmit them to the Secretariat of the Dispute Settlement Body which shall make them available to the public, including by Internet:
a) the notice of intention;
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<b>(6) </b>
<b>Annexes </b>
b) any settlement agreement resulting from alternative dispute resolution processes; ©) the notice of arbitration;
d) pleadings, memorials and briefs submitted to the tribunal by a disputing party and any written sub- missions submitted pursuant to this Annex or the Rules of Arbitration;
e) minutes or transcripts of hearings of the tribunal, where available; and f) all orders, awards, and decisions of the tribunal.
The tribunal shall conduct all hearings open to the public and shall determine, in consultation with the disputing parties and the dispute settlement Secretariat the appropriate logistical arrangements. However, any disputing party that intends to use information designated as confidential business infor- mation or information that is privileged or otherwise protected from disclosure under a partyâs law in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
Nothing in this section requires a respondent to disclose confidential business information or informa- tion that is privileged or otherwise protected from disclosure under a Party's law or to furnish or allow access to information that it may withhold in accordance with this Agreement.
Confidential business information or information that is privileged or otherwise protected from disclo- sure under a Party's law shall, if such information is submitted to the tribunal, be protected from dis- closure in accordance with the following procedures:
a) subject to Sub-paragraph (d), neither the disputing parties nor the tribunal shall disclose to the non-disputing party or to the public any confidential business information or information that is privileged or otherwise protected from disclosure under a Partyâs law where the disputing party that provided the information clearly designates it in accordance with Sub-paragraph (b);
b) any disputing party claiming that certain information constitutes confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law shall clearly designate the information at the time it is submitted to the tribunal;
c) a disputing party shall, at the same time that it submits a document containing information claimed to be confidential business information or information that is privileged or otherwise pro- tected from disclosure under a Party's law, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the non-disputing party and made public in accordance with Paragraph (1); and
d) the tribunal shall decide any objection regarding the designation of information claimed to be con- fidential business information or information that is privileged or otherwise protected from disclo- sure under a Party's law. If the tribunal determines that such information was not properly desig- nated, the disputing party that submitted the information may:
i) withdraw all or part of its submission containing such information; or
ii) agree to resubmit complete and redacted documents with corrected designations in accor- dance with the tribunalâs determination and Sub-paragraph (c).
In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents which either remove the information withdrawn under Sub-paragraph (d)(i) by the dis- puting party that first submitted the information or redesignate the information consistent with the designation under Sub-paragraph (d)(ii) of the disputing party that first submitted the infor- mation.
Nothing in this Agreement authorizes a respondent to withhold from the public information required to be disclosed by its laws.
Article 10. Interpretation of Annexes
<b>(1) </b>
Where a respondent asserts as a defense that the measure alleged to be a breach is within the scope of an excluded sector in Annex C or is a non-conforming measure set out in Annex D, the tribunal shall, on request of a State Party that is a disputing party request the interpretation of the home and host
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<b>(2) </b>
<b>Annexes </b>
state on the issue. The home and host state shall submit in writing any decision declaring its interpre- tation under this Article the tribunal within 60 days of delivery of the request.
A decision issued under Paragraph (A) shall be binding on the tribunal, and any award must be con- sistent with that decision. If the home and host state fails to issue such a decision within 60 days, the tribunal shall decide the issue.
Article 11. Expert Reports
A tribunal, at the request of a disputing party or 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 in a proceeding. The tribunal shall consider any terms or conditions relating to such appointments that the disputing parties may suggest.
Article 12. Consolidation
<b>(1) </b>
<b>(2) </b>
Where two or more claims have been submitted separately to arbitration under this Agreement and the claims have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order.
A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Director and to all the disputing parties sought to be covered by the order and shall specify in the request:
a) the names and addresses of all the disputing parties sought to be covered by the order; b) the nature of the order sought; and c) the grounds on which the order is sought.
Unless the Director finds within 30 days after receiving a request under Paragraph (2) that the request is manifestly unfounded, a separate tribunal shall be established under this Article by the Director solely to consider the issue of consolidation.
Where a tribunal established under this Article is satisfied that two or more claims that have been sub- mitted to arbitration have a question of law or fact in common, and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
a) assume jurisdiction over, and hear and determine together, all or part of the claims;
b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others; or
c) instruct a tribunal previously established to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that that tribunal shall decide whether any prior hearing shall be repeated.
Where a tribunal has been established under this Article, a claimant that has submitted a claim to arbi- tration and that has not been named in a request made under Paragraph (2) may make a written request to the tribunal that it be included in any order made under Paragraph (4), and shall specify in the request:
a) the name and address of the claimant; b) the nature of the order sought; and c) the grounds on which the order is sought.
On application of a disputing party, a tribunal established under this Article, pending its decision under Paragraph (4), may order that the proceedings of another tribunal be stayed, unless the latter tribunal has already adjourned its proceedings.
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<b>Annexes Article 13: Awards </b>
(1) Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
a) the specific remedies allowed for in Articles 18 and 44 of this Agreement in relation to an investor or investment;
b) monetary damages and any applicable interest against a State Party; and
c) restitution of property from a State Party, in which case the award shall provide that the respon- dent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorneysâ fees in accordance with the applicable arbitration rules. (2) Subject to Paragraph (1), where a claim is submitted to arbitration on behalf of an investment:
a) an award of restitution of property shall provide that restitution be made to the investment; and
b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the investment.
(3) A tribunal may not award punitive damages.
(4) An award made by a panel tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
(5) Subject to Paragraph (6) and the applicable appeal procedure, a disputing party shall abide by and com- ply with an award without delay.
(6) A disputing party may not seek enforcement of a final award until:
a) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to appeal the award; or
b) the appellate division has rejected an appeal.
(7) Each Party shall provide for the enforcement of an award in its territory and make the appropriate legal proceedings available for this purpose.
Article 14. Appellate Process
(1) A disputing investor/investment or party may appeal, within 60 days, a panel decision on the basis of an error of law or a material and manifest error of fact. Such appeals shall proceed in accordance with Annex A. No other appeal or arbitration review process shall be applicable to arbitrations under this Agreement.
(2) The appellate process shall apply, mutatis mutandis, the rules of procedure for the panel division, sub- ject to such mediations as required by this Agreement.
(3) The appeal must be filed within 60 days of the decision being appealed.
(4) The Council of the Dispute Settlement Body shall establish, at it first meeting, the timelines for the appellate process.