(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 established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds therefor.
(c) In deciding an objection under this paragraph, the tribunal shall assume to be true the claimant's factual allegations in support of any claim in the notice of arbitration (or any amendment thereof) and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in the relevant article of the UNCITRAL Arbitration Rules. The tribunal may also consider any relevant facts not in dispute.
(d) The respondent shall 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 paragraph 3.
3. In the event that the respondent so requests within forty-five (45) days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under paragraph 2 or any objection that the dispute is not within the tribunal's competence, including an objection that the dispute is not within the tribunal's jurisdiction. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds therefor, no later than one hundred and fifty (150) days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional thirty (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, which may not exceed thirty (30) days.
4. When it decides a respondent's objection under paragraph 2 or 3, the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorney's fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claimant's claim or the respondent's objection was frivolous and shall provide the disputing parties a reasonable opportunity to comment.
Article 3.20. Interim Measures of Protection and Diplomatic Protection
1. Subparagraph 4(d)(iii) of Article 3.15 (Institution of Arbitral Proceedings) shall not prevent the claimant from seeking interim measures of protection, not involving the payment of damages or resolution of the substance of the matter in dispute before the courts or administrative tribunals of the respondent, prior to the institution of proceedings before any of the dispute settlement fora referred to in paragraph 3 of Article 3.15 (Institution of Arbitral Proceedings), for the preservation of its rights and interests.
2. Neither Party shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its investors and the other Party shall have consented to submit or have submitted to arbitration under this Section, unless such other Party has failed to abide by and comply with the award rendered in such 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 dispute.
Article 3.21. Award
1. Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
2. Any arbitral award shall be final and binding upon the disputing parties. Each Party shall ensure the recognition and enforcement of the award in accordance with its relevant laws and regulations.
3. Where a claim is submitted on behalf of a juridical person of the respondent, the arbitral award shall be made to the juridical person.
Article 3.22. Costs
1. The tribunal shall order that the costs of the proceedings be borne by the unsuccessful disputing party. In exceptional circumstances, the tribunal may apportion costs between the disputing parties if it determines that apportionment is appropriate in the circumstances of the case.
2. Other reasonable costs, including costs of legal representation and assistance, shall be borne by the unsuccessful disputing party, unless the tribunal determines that such apportionment is unreasonable in the circumstances of the case.
3. If only parts of the claims have been successful, the costs awarded shall be adjusted, proportionately, to the number or extent of the successful parts of the claims.
4. Upon request, the tribunal may order the claimant to post security for all or a part of the costs, if there are reasonable grounds to believe that the claimant risks not being able to honour a possible decision on costs issued against it.
5. If the security for costs is not posted in full within thirty (30) days after the tribunal?s order or within any other time period set by the tribunal, the tribunal shall so inform the disputing parties. The tribunal may order the suspension or termination of the proceedings.
Article 3.23. Consolidation
1. Where two or more claims have been submitted separately to arbitration under this Section, 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, in accordance with the agreement of all the disputing parties sought to be covered by the order or the terms of this Article.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General of ICSID and to all the disputing parties sought to be covered by the order, specifying the name and address of all the disputing parties sought to be covered by the order; the nature of the order sought; and the grounds on which the order is sought.
3. Unless the Secretary-General of ICSID finds within thirty (30) days after receiving a request in conformity with paragraph 2 that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the disputing parties sought to be covered by the consolidation order otherwise agree, the tribunal established under this Article shall comprise three arbitrators:
(a) one arbitrator appointed by agreement of the disputing investors;
(b) one arbitrator appointed by the respondent; and
(c) the chairman of the tribunal appointed by the Secretary-General of ICSID.
5. If, within the sixty (60) days after the Secretary-General receives a request made under paragraph 2, the respondent Party fails or the disputing investors fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, on request of any disputing party sought to be covered by the order, shall appoint the arbitrator or arbitrators not yet appointed.
6. Where a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration in accordance with Article 3.15 (Institution of Arbitral Proceedings), 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 claims whose determination it considers would assist in the resolution of the other claims; or
(c) instruct a tribunal previously established under Article 3.16 (Constitution of the Arbitral Tribunal) to assume jurisdiction over and to hear and determine together all or part of the claims, provided that:
(i) that tribunal, at the request of any disputing investor, not previously a disputing party before that tribunal, shall be reconstituted with its original members, except that the arbitrator for the disputing investors shall be appointed pursuant to subparagraph 4(a) and paragraph 5; and
(ii) that tribunal shall decide whether any previous hearing must be repeated.
7. Where a tribunal has been established under this Article, a disputing investor that has submitted a claim to arbitration pursuant to Article 3.15 (Institution of Arbitral Proceedings) 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 issued under paragraph 6, specifying:
(a) the name and address of the disputing investor;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
The claimant shall provide the Secretary-General with a copy of his request.
8. A tribunal established pursuant to this Article shall conduct the proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A tribunal established under Article 3.16 (Constitution of the Arbitral Tribunal) shall not have jurisdiction to decide a claim or a part of a claim over which a tribunal established or instructed under this Article has assumed jurisdiction.
10. On the application of a disputing party, a tribunal established pursuant to this Article may, pending its decision under paragraph 6, order that the proceedings of a tribunal established under Article 3.16 (Constitution of the Arbitral Tribunal) be stayed, unless the latter tribunal has already adjourned its proceedings.
Article 3.24. Third-Party Funding
1. In the case of third-party funding, the disputing party benefiting from it shall notify the other disputing party and the Tribunal of the name and address and, where applicable, the ultimate beneficial owner and corporate structure of the third-party funder.
2. Such notification shall be made at the time of submission of a claim, or, when the financing agreement is concluded or the donation or grant is made after the submission of a claim, immediately after the agreement is concluded or the donation or grant is made.
3. In apportioning the cost of the proceedings pursuant to Article 3.22 (Costs), the Tribunal may take into account any third-party funding arrangements, including whether the requirements provided for in paragraphs 1 and 2 of this Article have been respected.
Section C. Final Provisions
Article 3.25. Publication of International Agreements
1. Each Party shall ensure that international agreements pertaining to or affecting investors or investment activities to which it is a signatory shall be promptly published or otherwise made available in such a manner as to enable interested persons or Parties to become acquainted with them.
2. To the extent possible, each Party shall make the international agreements of the kind referred to in paragraph 1 available on the Internet. Each Party shall, upon request by the other Party, promptly respond to specific questions from and provide information to the other Party with respect to the international agreements referred to in paragraph 1.
ANNEX 3-1. NON-CONFORMING MEASURES. SCHEDULE OF KAZAKHSTAN
1. Sector: All
Sub-Sector: -
Obligations Concerned:
National Treatment (Article 3.5)
Most-Favoured-Nation Treatment (Article 3.6)
Existing Measures:
Entrepreneurship Code of the Republic of Kazakhstan No. 375-V dated 29 October 2015
Description
The following natural persons can engage in business activity as individual entrepreneurs (i.e. non-juridical persons) and be accorded preferences as provided in laws and regulations, including exemption from taxes, pension schemes and certain registration procedures:
(a) citizens of Kazakhstan;
(b) qandas; (1) and
(c) foreigners permanently based in Kazakhstan.
2. Sector: All
Sub-Sector: -
Obligations Concerned:
National Treatment (Article 3.5)
Existing Measures:
Law of the Republic of Kazakhstan No. 527-IV "On National Security of the Republic of Kazakhstan" dated 6 January 2012;
Law of the Republic of Kazakhstan No. 461 "On Securities Market" dated 2 July 2003
Description:
The State body has the right to refuse to issue a permit to the applicant to conclude transactions on the use of strategic resources and (or) use, acquisition of strategic facilities (2) of Kazakhstan, if this may lead to concentration of rights in one person or a group of persons from one country. Compliance with this condition is mandatory in relation to transactions with affiliates. For greater certainty, an affiliate is an individual or legal entity capable of influencing the activities of legal entities and / or individuals carrying out entrepreneurial activities (with the exception of state bodies exercising control and supervisory functions within the authority given to them).
3. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.5)
Existing Measures: Law of the Republic of Kazakhstan No. 167 "On Concessions" dated 7 July 2006
Description:
The procedure of selection of a concessionaire and the list of essential terms of the concession agreement are established in accordance with the laws and regulations of Kazakhstan.
4. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.5)
Existing Measures: The Law of the Republic of Kazakhstan No. 593 "On Protection, Reproduction and Use of Animal Life" dated 9 July 2004
Description:
Priority in usage of wildlife in a particular territory or water area is given to legal persons and citizens of Kazakhstan.
Priority in usage of wildlife includes: granting priority choice of fishing grounds to the citizens of Kazakhstan; benefits in relation to the timing and areas of extraction of objects of the animal world, sex, age composition and quantity of extracted objects of the animal world, as well as products of their vital activity; exclusive right to the extraction of certain objects of the animal world and products of their vital activity.
5. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.5)
Existing Measures: Law of the Republic of Kazakhstan No. 532-IV "On Gas and Gas Supply" dated 9 January 2012
Description:
1. The State shall have a priority right over other persons to purchase alienated objects (3) of the unified commercial gas supply system, shares in the right of common ownership of objects of the unified commercial gas supply system and controlling shares (participation shares) of juridical persons that are owners of objects of the unified commercial gas supply system. Such objects include but are not limited to main gas pipelines, commercial gas storage facilities, gas distribution and gas-consuming systems or gas filling stations.
The State shall have a preferential right over other persons to purchase alienated raw gas belonging to subsoil users, as well as commercial gas produced by subsoil users in the process of processing the raw gas produced by them and owned by them.
2. The State exercises its priority right as it is provided for by the laws and regulations of Kazakhstan.
6. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.5)
Existing Measures: Law of the Republic of Kazakhstan No. 444-V "On precious metals and precious stones" dated 14 January 2016
Description:
The State shall have a priority right to purchase refined gold to replenish assets in precious metals. The priority right of the State is implemented by the National Bank of Kazakhstan.
7. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.5)
Existing Measures:
Law of the Republic of Kazakhstan No. 444-V "On precious metals and precious stones" dated 14 January 2016
Code of the Republic of Kazakhstan No. 125-VI "On Subsoil and Subsoil Use" dated 27 December 2017
Decision No.112 of the Supreme Eurasian Economic Council dated 23 December 2014
Description:
The list of organisations authorised to carry out refining of precious metals (4) are established by regulatory legal acts of Kazakhstan.
8. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.5)
Existing Measures:
Law of the Republic of Kazakhstan No. 279 "On Narcotic Drugs, Psychotropic Substances, their Analogues and Precursors and Measures to Counteract their Illicit Trafficking and Abuse" dated 10 July 1998
Description:
Activities related to the trafficking of narcotic drugs and psychotropic substances and their precursors can only be carried out by state-owned enterprises.
9. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.4)
Existing Measures: Law of the Republic of Kazakhstan No. 429 "On the State Regulation of the Production and Trafficking of ethyl alcohol and alcoholic beverages" dated 16 July 1999
Description:
The import and export of ethyl alcohol and alcoholic beverages to the territory (from the territory) of Kazakhstan may be carried out only by juridical persons registered in the territory of Kazakhstan.
10. Sector: All
Sub-Sector: -
Obligations Concerned: National Treatment (Article 3.4)
Existing Measures: The Law of the Republic of Kazakhstan No. 202-V "On Permits and Notifications" dated 16 May 2014
Description:
The activity for which a license is required can be carried out only by juridical persons of Kazakhstan or individual entrepreneurs registered under the established procedure in Kazakhstan.
The types of activities (5) for which a license is required, as well as the determination of the organisational and legal form of the licensee, are established by the laws and regulations of Kazakhstan.
ANNEX 3-1. NON-CONFORMING MEASURES. SCHEDULE OF SINGAPORE
Explanatory Note
1. The Schedule of Singapore to this Annex sets out, pursuant to Article 3.9 (Non-Conforming Measures) of Chapter 3 (Investment), Singapore's existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 3.5 (National Treatment);
(b) Article 3.6 (Most-Favoured-Nation Treatment); or
(c) Article 3.8 (Performance Requirements).