Without prejudice to Part F (Consultations between the Participants), an investor of the territory of a Participant may notify the other Participant of a difference of application regarding a commitment under Part B (Investment Protections), other than Paragraph 3, Paragraph 11, Paragraph 12(3), Paragraph 12(4), Paragraph 14, or Paragraph 15.
Article 24. Request for Consultations
1. In the event that an investor of the territory of a Participant considers that a measure of an authority of the territory of the other Participant is inconsistent with the dispositions of this Arrangement, that investor will seek to resolve the difference through consultations, which may include the use of non-binding, third party procedures, such as good offices, conciliation, or mediation.
2. The investor will deliver to that Participant a written request for consultations, which will specify:
(a) the name and address of the investor and material to establish that the investor is an investor of the territory of the other Participant;
(b) the investment at issue and material to establish that the investor owns or controls the investment, including, if the investment is an enterprise, the name, address, and place of incorporation of the enterprise;
(c) for each difference of application of this Arrangement:
(i) the disposition of this Arrangement with which a measure is alleged to be inconsistent, and
(ii) the factual basis for the alleged inconsistency, including the measure at issue; and
(d) the outcome sought.
3. The investor may, when submitting a request for consultations, propose to hold the consultations by videoconference, telephone, or similar means of communication as appropriate. The other Participant will give sympathetic consideration to that request, in particular if the investor is a micro, small, or medium-sized enterprise.
4. Unless the investor and the Participant decide otherwise, consultations will be held within 90 days of the delivery of the request for consultations pursuant to subparagraph 2.
5. Unless the investor and the Participant decide otherwise, the place of consultations will be Ottawa, if the Participant is the CTOT, or Taipei, if the Participant is the TECO.
Article 25. Mediation
The investor and the Participant referred to in Paragraph 24(1) may at any time decide to have recourse to mediation. Recourse to mediation will be without prejudice to the positions of the investor and the Participant and will be governed by the rules decided by the investor and the Participant, including the appointment of the mediator.
Article 26. Request to Consent to Arbitration
1. If consultations under Paragraph 24 fail to resolve the difference of application of certain dispositions of this Arrangement, an investor of the territory of a Participant may file a notice of claim with an authority of the territory of the other Participant requesting an authority of the territory of that Participant to consent to submit the difference to arbitration. Annex III (Model Arbitration Agreement) contains a model arbitration agreement that an authority of the territory of a Participant may, in the future, choose to enter with an investor of the territory of the other Participant in order to resolve such a difference.
2. Each Participant will promptly make publicly available, and notify the other Participant, the location for delivery of notice and other documents, including any subsequent change to the location for delivery.
3. If a dispute settlement mechanism, consisting of a first instance investment tribunal or an appellate mechanism, is developed under other institutional arrangements and is open to the authorities of the territories of the Participants for acceptance, the investor and the authorities of the territory of the other Participant may consider whether to submit the difference to that dispute settlement mechanism pursuant to its rules.
4. A Participant may request to review and amend the Arbitrator Code of Conduct for Investment Dispute Settlement contained in Annex III (Model Arbitration Agreement) in order to take into account, as appropriate, relevant developments in that area.
Part F. Consultations between the Participants
Article 27. Consultations between the Participants
The Participants will, whenever possible, settle amicably through consultations any difference of interpretation or application of this Arrangement. A Participant may request consultations on the interpretation or application of this Arrangement by delivering a notice to the other Participant. Unless the Participants decide on a longer period, the Participants will, within 15 days of the notice, meet to consider the matter with a view to reaching a mutually satisfactory resolution. During those consultations, each Participant will endeavour to provide sufficient information to enable a full examination of the matter, while maintaining the confidentiality of the information provided by the other Participant in the course of consultations.
Part G. Administration of the Arrangement
Article 28. Discussions and other Actions
1. A Participant may request in writing discussions with the other Participant regarding an actual or proposed measure or any other matter that it considers might affect the operation of this Arrangement, including its implementation, interpretation, or application.
2. Further to discussions under this Paragraph, the Participants may take action as they may decide, including on the proper interpretation of this Arrangement. If concerns arise as regards matters of interpretation of this Arrangement, the Participants may come to a joint interpretation of this Arrangement.
Article 29. Extent of Commitments
All necessary measures will be taken to give effect to this Arrangement, including by the authorities of the territory of the Participants, except as otherwise provided in this Arrangement.
Article 30. Application and Coming Into Effect
1. Each Participant will notify the other Participant, in writing, upon completion of the internal procedures required for this Arrangement to come into effect. This Arrangement will come into effect the day following the date of the last notification.
2. The Participants may amend this Arrangement upon mutual consent in writing, specifying the starting date of amendments. Any amendment may be attached to this Arrangement as an annex.
3. A Participant may terminate this Arrangement by giving written notice of at least one year to the other Participant. In respect of investments or commitments to invest made prior to the date of termination of this Arrangement, each Participant will continue to apply subparagraph 1, as well as Paragraphs 1 through 29 of this Arrangement, for 15 years after the date on which this Arrangement ceases to be in effect.
Conclusion
Signed in duplicate at Taipei on this 22nd day of December 2023, in the English, French, and Chinese languages, each version being equally valid.
FOR THE CANADIAN TRADE OFFICE IN TAIPEI
____________________________________
FOR THE TAIPEI ECONOMIC AND CULTURAL OFFICE IN CANADA
_________________________________
Attachments
Part H. Annexes
Annex I. Reservations for Future Measures
1. In accordance with Paragraph 20, an authority of the territory of the CTOT may adopt or maintain any measure that does not conform with the commitments in this Arrangement that are set out below with respect to the following sectors or matters:
(a) social services (that is: public law enforcement; correctional services, income security, or insurance; social security or insurance; social welfare; public education; public training; and health and child care), if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 5, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(b) the rights or preferences provided to Aboriginal peoples, including those recognized and affirmed by section 35 of the Constitution Act, 1982 or those set out in self-government agreements between the authorities at the federal, provincial, or territorial level of the territory of the CTOT and Indigenous Peoples (8), if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 5, Paragraph 11, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(c) the rights or preferences provided to socially or economically disadvantaged minorities, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 11, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(d) residency requirements for ownership of oceanfront land, if the measure does not conform with the commitments provided in Paragraph 4 of this Arrangement;
(e) securities issued by authorities (that is acquisition, sale, or other disposition by natural persons of the territory of other Participant of bonds, treasury bills, or other kinds of debt securities issued by an authority of the territory of the CTOT), if the measure does not conform with the commitments provided in Paragraph 4 of this Arrangement;
(f) maritime cabotage, which means:
(i) the transportation of either goods or passengers by ship between points in the territory of the CTOT or above the continental shelf of Canada, either directly or by way of a place outside the territory of the CTOT; but, with respect to waters above the continental shelf of Canada, the transportation of either goods or passengers only in relation to the exploration, exploitation, or transportation of the mineral or non-living natural resources of the continental shelf of Canada; and
(ii) the engaging by ship in any other marine activity of a commercial nature in the territory of the CTOT and, with respect to waters above the continental shelf, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation, or transportation of the mineral or non-living natural resources of the continental shelf of Canada;
if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 5, Paragraph 11, or Paragraph 12 of this Arrangement;
(g) licensing or otherwise authorizing fishing or fishing-related activities, including entry of foreign fishing vessels to the exclusive economic zone, territorial sea, internal waters, or ports of the territory of the CTOT, and use of any services therein, if the measure does not conform with the commitments provided in Paragraph 4 or Paragraph 5 of this Arrangement;
(h) the establishment or acquisition in the territory of the CTOT of an investment in the services sector, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 11, or Paragraph 12 of this Arrangement, provided that the measure is consistent with Canada’s obligations under Articles II, XVI, XVII, and XVIII of the WTO General Agreement on Trade in Services; and
(i) granting advantages to the Canada Mortgage and Housing Corporation, Canada Housing Trust, and any new, reorganized, or transferee entities having similar functions and objectives with respect to housing finance, if the measure does not conform with the commitments provided in Paragraph 4 of this Arrangement.
2. In accordance with Paragraph 20, an authority of the territory of the TECO may adopt or maintain any measure that does not conform with the commitments in this Arrangement that are set out below with respect to the following sectors or matters:
(a) the provision of law enforcement and correctional services, and the following services to the extent they are social services established or maintained for a public purpose: income security or insurance, social security or insurance, social welfare, public education, public training, health, child care, or public sewage services, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 5, Paragraph 11, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(b) the rights or preferences granted to Indigenous Peoples of the territory of the TECO (9), including those recognized and affirmed by the Indigenous Peoples Basic Law(2005), as amended, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 5, Paragraph 11, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(c) the operation of games of luck and chance, and of activities involving bets including but not limited to the issuance and operation of lottery, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 11, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(d) broadcasting services in the territory of the TECO, international broadcasting services originating from the territory of the TECO, and the allocation of spectrum in relation to broadcasting services, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 5, Paragraph 11, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(e) the rights or preferences granted to minorities with social or economic disadvantages, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 11, or Part C (Investment Promotion and Facilitation) of this Arrangement;
(f) the establishment or acquisition in the territory of the TECO of an investment in the services sector, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 11, or Paragraph 12 of this Arrangement, provided that the measure is consistent with obligations of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu under Articles II, XVI, XVII, and XVIII of the WTO General Agreement on Trade in Services;
(g) licensing or otherwise authorizing fishing or fishing-related activities, including entry of foreign fishing vessels to the exclusive economic zone, territorial sea, internal waters, or ports of the territory of the TECO, and use of any services therein, if the measure does not conform with the commitments provided in Paragraph 4 or Paragraph 5 of this Arrangement; and
(h) museum services, if the measure does not conform with the commitments provided in Paragraph 4, Paragraph 11, Paragraph 12, or Part C (Investment Promotion and Facilitation) of this Arrangement.
Annex II. Exceptions from Most-Favoured-Nation Treatment
1. Paragraph 5 will not apply to treatment accorded by an authority of the territory of a Participant under an international agreement in force or investment arrangement in effect, or signed prior to the coming into effect of this Arrangement.
2. Paragraph 5 will not apply to treatment accorded by an authority of the territory of a Participant under an existing or future international agreement or arrangement:
(a) establishing, strengthening or expanding a free trade area or customs union; or
(b) relating to:
(i) aviation;
(ii) fisheries; or
(iii) maritime matters, including salvage.
Annex III. Model Arbitration Agreement
IN THE MATTER OF AN ARBITRATION
-between-
[Investor of the territory of a Participant]
(the “Claimant”)
-and-
[Authority of the territory of the other Participant]
(the “Respondent” and together with the Claimant, the “Disputing Parties”)
ARBITRATION AGREEMENT
[Date]
WHEREAS:
A. The Arrangement Between the Canadian Trade Office in Taipei and the Taipei Economic and Cultural Office in Canada for the Promotion and Protection of Investments (the “Arrangement”) contains certain dispositions regarding investment protection for covered investors and covered investments of investors;
B. A difference has arisen between the Claimant and the Respondent with respect to a measure that the Claimant maintains is within the scope of Paragraph 2 of the Arrangement, and consultations between the Disputing Parties pursuant to Paragraph 24 of the Arrangement have not resolved the difference (the “Investment Dispute”);
C. The Claimant and the Respondent wish to resolve the Investment Dispute through binding arbitration, and they have agreed to do so in accordance with the terms of this Arbitration Agreement (the “Agreement”);
D. Now, therefore, with consideration duly acknowledged, the Disputing Parties agree as follows:
Section A: Definitions
Article 1: Definitions
1. For the purpose of this Agreement:
“appointing authority” means the Secretary General of the Permanent Court of Arbitration or any person as agreed by the Disputing Parties;
“Disputing Party” means either the Claimant or the Respondent;
“New York Convention” means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on June 10, 1958;
“non-disputing Participant” means the Participant to the Arrangement that is not of the territory of the Respondent under this Agreement;
“third-party funding” means any funding or other equivalent support provided by a person who is not a Disputing Party in order to finance part or all of the cost of the proceedings including through a donation or grant, or in return for remuneration dependent on the outcome of the Investment Dispute;
“Tribunal” means the arbitration tribunal established under this Agreement;
“UNCITRAL Arbitration Rules” means the arbitration rules of the United Nations Commission on International Trade Law, in their most recent form; and
“UNCITRAL Transparency Rules” means the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, in their most recent form.
2. All other terms in this Agreement that are defined terms in the Arrangement have the meaning set out in Paragraph 1 of the Arrangement.
Section B: Objective and Relation with the Arrangement
Article 2: Objective
This Agreement establishes a procedural mechanism for the resolution of the Investment Dispute by arbitration.
Article 3: Relation with the Arrangement
1. The Disputing Parties have agreed to incorporate Part A (Definitions), Part B (Investment Protections), Part D (Reservations, Exceptions, Exclusions), Part E (Differences between an Investor and a Participant), Annex I (Reservations for Future Measures), and Annex II (Exceptions from Most-Favoured-Nation Treatment) of the Arrangement into this Agreement as binding rules of law under this Agreement.
2. This Agreement does not modify the Arrangement and has no bearing upon its interpretation. This Agreement extends only to the Investment Dispute between the Disputing Parties. Nothing in this Agreement is intended to have, nor shall it have, the effect of creating any substantive rights or obligations under the Arrangement.
3. Any determination by the Tribunal of a breach concerns the investment protections of the Arrangement as incorporated into this Agreement, rather than of the Arrangement itself.
Article 4: Denial of Benefits
The Respondent may, within a reasonable time and no later than its principal submission on the merits, such as the counter-memorial, in an arbitration under this Agreement, deny the benefits of this Agreement to the Claimant if the Claimant fits within the conditions set out in Paragraph 16 of the Arrangement.
Section C: Claimant-Respondent Investment Dispute Settlement
Article 5: Scope and Purpose
1. The Disputing Parties establish in this Section a mechanism for the settlement of the Investment Dispute.
2. Under this Section, the Disputing Parties authorize the Tribunal to determine if the measure of the Respondent challenged by the Claimant is consistent with the investment protections under Part B (Investment Protections) of the Arrangement, as incorporated into this Agreement, other than Paragraph 3, Paragraph 11, Paragraph 12(3), Paragraph 12(4), Paragraph 14, or Paragraph 15 of the Arrangement.
Article 6: Taxation Measures
1. Provided that the conditions in paragraph 2 of this Article are met, a claim by an investor that a taxation measure of the Respondent is in breach of an agreement between [the federal government of Canada / Taiwan] and the investor concerning an investment shall be considered a claim for breach of the investment protections of the Arrangement as incorporated into this Agreement for resolution under this Agreement.
2. The Claimant may not make a claim under paragraph 1 of this Article or Paragraph 10(4) of the Arrangement unless:
(a) the Claimant provides a copy of the notice of claim to the taxation authorities of the territory of each Participant, in which case, the taxation authority of the territory of a Participant may submit in writing a request to the taxation authority of the territory of the other Participant for a joint determination that, in the case of paragraph 1 of this Article, the measure does not contravene an agreement between [Taiwan / the federal government of Canada] and the Claimant concerning an investment, or, in the case of Paragraph 10(4) of the Arrangement, the measure in question is not an expropriation; and
(b) six months after receiving notification of the claim by the Claimant, the taxation authorities of the territories of the Participants fail to reach a joint determination that, in the case of paragraph 1 of this Article, the measure does not contravene an agreement between [the federal government of Canada / Taiwan] and the Claimant concerning an investment, or in the case of Paragraph 10(4) of the Arrangement, the measure in question is not an expropriation.
Article 7: Mediation
The Disputing Parties may at any time decide to have recourse to mediation pursuant to Paragraph 25 of the Arrangement. If the investor and the Participant decide to have recourse to mediation, Article 8 of this Agreement will be suspended from the date on which the investor and the Participant decided to have recourse to mediation, and will resume on the date on which either the investor or the Participant decides to end the mediation. A decision by the investor or the Participant to end the mediation will be transmitted by way of letter to the mediator and the other side to the mediation.
Article 8: Limitation Period
1. The Claimant must have submitted a claim under Article 9 of this Agreement no later than:
(a) three years from the date on which the Claimant or, as applicable, the enterprise referred to in Article 9(2), first acquired or should have first acquired knowledge of the alleged breach and knowledge that the Claimant or, as applicable, the enterprise, has incurred loss or damage by reason of, or arising out of, that breach; or
(b) if the Claimant or, as applicable, the enterprise, has initiated a claim or proceeding before an administrative tribunal or court under the law of the Respondent with respect to the measure at issue in the Claimant’s claim under Article 9, two years after:
(i) the Claimant or, as applicable, the enterprise, ceases to pursue that claim; or
(ii) when that proceeding has otherwise ended;
provided that it is no later than seven years after the date on which the Claimant or, as applicable, the enterprise, first acquired or should have first acquired knowledge of the alleged breach and knowledge that the Claimant or, as applicable, the enterprise, has incurred loss or damage by reason of, or arising out of, that breach.
Neither a continuing breach nor the occurrence of similar or related acts or omissions will renew or interrupt the periods set out in subparagraphs (a) and (b).
2. If the Claimant has not submitted a claim under Article 9 of this Agreement within one year of the delivery of the request for consultations under Paragraph 24 of the Arrangement, the Claimant is deemed to have withdrawn its request for consultations and cannot advance a claim under this Section with respect to the same measure. This period may be extended by agreement between the Claimant and the Respondent.
3. Following the Claimant’s submission of a claim under Article 9 of this Agreement, the length of time the Disputing Parties took to negotiate the terms of this Agreement shall not affect the Tribunal’s determination of whether the Claimant satisfied the time requirements in paragraphs 1 and 2 of this Article.
Article 9: Submission of a Claim to Arbitration
1. The Claimant may submit a claim that the Respondent has adopted or maintained a measure that breaches certain investment protections of the Arrangement as incorporated into this Agreement in accordance with Article 5 of this Agreement, and that the Claimant as an investor of the territory of a Participant has incurred loss or damage by reason of, or arising out of, that breach, requesting the Respondent to consent to submit the Investment Dispute to arbitration, only if:
(a) the Claimant has fulfilled the requirements of Paragraph 24 of the Arrangement as incorporated into this Agreement;
(b) 180 days have elapsed since the receipt by the Respondent of a request for consultations under Paragraph 24 of the Arrangement;
(c) the claim relates to measures identified in the Claimant’s request for consultations under Paragraph 24 of the Arrangement;
(d) the Claimant consents to dispute settlement in accordance with the procedures set out in this Agreement; and
(e) the Claimant and, if the claim is for loss or damage to an interest in an enterprise of the territory of the Respondent that is a juridical person that the Claimant owns or controls directly or indirectly, the enterprise, waives its right to initiate or continue before any administrative tribunal or court under domestic law, or other dispute settlement procedure, any proceeding with respect to the measure of the Respondent referred to in Paragraph 24(2) of the Arrangement that is alleged to be a breach of certain investment protections of the Arrangement as incorporated into this Agreement, except for a proceeding for injunctive, declaratory, or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the Respondent.
2. The Claimant as an investor of the territory of a Participant on behalf of an enterprise of the territory of the Respondent that is a juridical person that the Claimant owns or controls directly or indirectly, may make a claim that the Respondent has adopted or maintained a measure that breaches certain investment protections of the Arrangement as incorporated into this Agreement in accordance with Article 5 of this Agreement, and that the enterprise has incurred loss or damage by reason of, or arising out of, that breach, only if:
(a) the Claimant has fulfilled the requirements of Paragraph 24 of the Arrangement as incorporated into this Agreement;
(b) 180 days have elapsed since the receipt by the Respondent of a request for consultations under Paragraph 24 of the Arrangement;
(c) the claim relates to measures identified in the Claimant’s request for consultations under Paragraph 24 of the Arrangement;
(d) the Claimant consents to dispute settlement in accordance with the procedures set out in this Agreement; and
(e) both the Claimant and the enterprise waive their right to initiate or continue before an administrative tribunal or court under domestic law, or other dispute settlement procedure, any proceeding with respect to the measure of the Respondent referred to in Paragraph 24(2) of the Arrangement that is alleged to be a breach of certain investment protections of the Arrangement as incorporated into this Agreement, except for a proceeding for injunctive, declaratory, or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the Respondent.
3. A consent and waiver required by this Article shall be in writing, shall be delivered to the Respondent, and shall be included in the submission of a claim to arbitration.
4. Notwithstanding paragraph 3 of this Article, a waiver from the enterprise under paragraph 1(e) or 2(e) of this Article is not required if the Respondent has deprived the Claimant of control of the enterprise.
5. If the Claimant makes a claim under paragraph 2 of this Article and the Claimant or a non-controlling investor in the enterprise makes a claim under paragraph 1 arising out of the same events or circumstances, and two or more of the claims are submitted to dispute settlement under this Article, the claims should be heard together by a Tribunal constituted under Article 15 of this Agreement, unless the Tribunal finds that the interests of a Disputing Party would be prejudiced thereby.
6. The Claimant may submit a claim to dispute settlement under:
(a) the UNCITRAL Arbitration Rules; or
(b) any other rules on agreement of the Disputing Parties.