(a) Article 14.10 (Intellectual Property – National Treatment);
(b) the TRIPS Agreement, if the derogation relates to matters not addressed by Chapter 14 (Intellectual Property); or
(c) an amendment of or waiver to the TRIPS Agreement in force for both Parties.
Article 13.19. Review
The Parties shall, three years after the date of entry into force of this Agreement but no later than five years, and every three years thereafter, unless otherwise agreed, hold consultations to review their respective non-conforming measures referred to in paragraphs 1 and 2 of Article 13.18 (Non-Conforming Measures and Exceptions). The Parties shall, without prejudice to the result, hold these consultations with a view to increasing the conformity of these non-conforming measures with this Agreement.
Article 13.20. Committee on Investment
1. The Parties hereby establish a Committee on Investment consisting of government representatives of the Parties.
2. The functions of the Committee on Investment are to:
(a) review the implementation of this Chapter;
(b) recommend to the Joint Committee, established under Article 23.1 (Administrative and Institutional Provisions – Establishment of the Joint Committee), to adopt an interpretation of this Agreement pursuant to Article 13.30 (Applicable Law and Interpretation);
(c) consider any other matters related to this Chapter identified by either Party;
(d) discuss and coordinate with the Committee on Trade in Services, established under Article 8.14.1 (Trade in Services – Committee on Trade in Services), on matters related to this Chapter and to Chapter 8 (Trade in Services) including with respect to non-conforming measures pursuant to Article 13.18 (Non-Conforming Measures and Exceptions); and
(e) report to the Joint Committee as required.
Article 13.21. Exclusions
Section D (Investor-State Dispute Settlement) and Chapter 24 (Dispute Settlement) do not apply to matters set out in Annex 13-A (Exclusions from Dispute Settlement).
Section D. Investor-State Dispute Settlement
Article 13.22. Scope and Purpose
1. Without prejudice to the rights and obligations of the Parties under Chapter 24 (Dispute Settlement), the Parties establish in this Section a mechanism for the settlement of investment disputes.
2. Under this Section, an investor of a Party may submit a claim that the other Party has breached an obligation under Section B (Investment Protections), other than Article 13.5 (Regulatory Objectives), Article 13.12 (Performance Requirements), or Article 13.13 (Senior Management and Boards of Directors).
Article 13.23. Request for Consultations
1. In the event of an investment dispute under this Agreement, an investor of a Party shall seek to resolve the dispute through consultations, with a view towards reaching an amicable settlement. Efforts to reach an amicable settlement may also include the use of non-binding, third party procedures, such as good offices, conciliation, or mediation.
2. An investor of a Party shall deliver to the other Party a written request for consultations, which shall specify:
(a) whether the investor intends to claim under paragraph 1 or 2 of Article 13.25 (Submission of a Claim to Arbitration);
(b) the name and address of the investor and evidence to establish that the investor is an investor of the other Party;
(c) the investment at issue and evidence 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;
(d) for each claim:
(i) the provision of this Agreement alleged to have been breached; and
(ii) the factual basis for the alleged breach, including the measure at issue; and
(e) the relief sought and the approximate amount of damages claimed.
3. An investor of a Party may, when submitting a request for consultations, propose to hold the consultations by videoconference, telephone, or similar means of communication as appropriate. The other Party should give sympathetic consideration to that request.
4. The request for consultations shall be submitted to the other Party under this Article no later than:
(a) three years from the date on which the investor or, as applicable, the enterprise referred to in Article 13.25.2 (Submission of a Claim to Arbitration), first acquired or should have first acquired knowledge of the alleged breach and knowledge that the investor or, as applicable, the enterprise, has incurred loss or damage by reason of, or arising out of, that breach; or
(b) if the investor or, as applicable, the enterprise, has initiated a claim or proceeding before an administrative tribunal or court under the law of a Party with respect to the measure at issue in the investor’s request for consultations delivered pursuant to paragraph 2, two years after:
(i) the investor 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 investor or, as applicable, the enterprise, first acquired or should have first acquired knowledge of the alleged breach and knowledge that the investor 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 may renew or interrupt the periods set out in subparagraphs (a) and (b).
5. Unless otherwise agreed, consultations shall be held within 90 days of the delivery of the request for consultations pursuant to paragraph 2.
6. Unless otherwise agreed, the place of consultations shall be the capital city of the other Party.
7. If the investor has not submitted a claim under Article 13.25 (Submission of a Claim to Arbitration) within one year of the delivery of the request for consultations, the investor is deemed to have withdrawn its request for consultations and shall not submit a claim under this Section with respect to the same measure. This period may be extended by agreement between the investor of a Party and the other Party.
Article 13.24. Mediation
The disputing parties may at any time agree to have recourse to mediation. Recourse to mediation is without prejudice to the legal position or rights of the disputing parties under this Section and is governed by the rules agreed to by the disputing parties, including any applicable rules for mediation adopted by the Joint Committee. If the disputing parties agree to have recourse to mediation, paragraphs 4 and 7 of Article 13.23 (Request for Consultations) and all timelines pursuant to an arbitration under this Section are suspended from the date on which the disputing parties agreed to have recourse to mediation, and shall resume on the date on which either disputing party decides to terminate the mediation. A decision by a disputing party to terminate the mediation shall be transmitted by way of letter to the mediator and the other disputing party. Unless otherwise agreed, expenses incurred in relation to the process under this Article shall be borne equally by the disputing parties. Each disputing party shall bear its own expenses derived from the participation in the process.
Article 13.25. Submission of a Claim to Arbitration
1. An investor of a Party may make aclaim that theother Party has breached an obligation in accordance with Article 13.22 (Scope and Purpose), and that the investor has incurred loss or damage by reason of, or arising out of, that breach, only if:
(a) the investor has fulfilled the requirements of Article 13.23 (Request for Consultations);
(b) 180 days have elapsed since the receipt by the other Party of a request for consultations under Article 13.23 (Request for Consultations);
(c) the claim relates to measures identified in the investor’s request for consultations under Article 13.23 (Request for Consultations);
(d) the investor consents to dispute settlement in accordance with the procedures set out in this Agreement; and
(e) the investor and, if the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise, waives its right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedure, any proceeding with respect to the measure of the other Party that is alleged to be a breach referred to in Article 13.23.2 (Request for Consultations), 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 other Party.
2. An investor of a Party, on behalf ofan enterprise of theotherParty that is a juridical person that the investor owns or controls directly or indirectly, may make a claim that the otherParty has breached an obligation in accordance with Article 13.22 (Scope and Purpose), and that the enterprise has incurred loss or damage by reason of, or arising out of, that breach, only if:
(a) the investor has fulfilled the requirements of Article 13.23 (Request for Consultations);
(b) 180 days have elapsed since the receipt by the other Party of a request for consultations under Article 13.23 (Request for Consultations);
(c) the claim relates to measures identified in the investor’s request for consultations under Article 13.23 (Request for Consultations);
(d) the investor consents to dispute settlement in accordance with the procedures set out in this Agreement; and
(e) both the investor and the enterprise waive their right to initiate or continue before an administrative tribunal or court under the law of either Party, or other dispute settlement procedure, any proceeding with respect to the measure of the other Party that is alleged to be a breach referred to in Article 13.23.2 (Request for Consultations), 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 other Party.
3. A consent and waiver required by this Article shall be in writing, shall be delivered to the respondent Party, and shall be included in the submission of a claim to arbitration.
4. Notwithstanding paragraph 3, a waiver from the enterprise under paragraph 1(e) or 2(e) is not required if the other Party has deprived the investor of control of the enterprise.
5. If an investor of a Party makes a claim under paragraph 2 and the investor 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 13.32 (Consolidation), unless the Tribunal finds that the interests of a disputing party would be prejudiced thereby.
6. An investor of a Party may submit a claim to dispute settlement under:
(a) the ICSID Convention, provided that both Parties are parties to the ICSID Convention;
(b) the ICSID Additional Facility Rules, if only one Party is a party to the ICSID Convention;
(c) the UNCITRAL Arbitration Rules; or
(d) any other rules on agreement of the disputing parties.
7. Except to the extent modified by this Agreement, the arbitration shall be governed by the arbitration rules applicable under paragraph 6 that are in effect on the date that the claim is submitted to dispute settlement under this Article.
8. If the claimant proposes rules pursuant to subparagraph 6(d), therespondent Party shall reply to the claimant’s proposal within 45 days of receipt of the proposal. If the disputing parties have not agreed on those rules within 60 days of receipt, the claimant may submit a claim under the rules provided for in subparagraph 6(a), 6(b), or 6(c).
9. A claim is submitted to arbitration under this Article when:
(a) the request for arbitration under Article 36(1) of the ICSID Convention is received by the Secretary-General of ICSID;
(b) the request for arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretariat of ICSID; or
(c) the notice of arbitration under Article 3 of the UNCITRAL Arbitration Rules is received by the respondent Party.
Article 13.26. Consent to Arbitration
1. Each Party consents to the submission of a claim to arbitration under this Section in accordance with the provisions of this Agreement, including the requirements of Article 13.23 (Request for Consultations) and Article 13.25 (Submission of a Claim to Arbitration).
2. The consent under paragraph 1 and the submission of a claim to arbitration under Article 13.25 (Submission of a Claim to Arbitration) shall satisfy the requirement of:
(a) Chapter II of theICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute;
(b) Article II of the New York Convention for an “agreement in writing”.
Article 13.27. Discontinuance
If the claimant fails to take a step in the proceeding within 180 days of the submission of a claim to arbitration under Article 13.25 (Submission of a Claim to Arbitration), or such other time period as agreed to by the disputing parties, the claimant is deemed to have withdrawn its claim and to have discontinued the proceeding. The Tribunal, if constituted, shall, at the request of the respondent Party, and after notice to the disputing parties, in an order take note of the discontinuance. After the order has been rendered the authority of the Tribunal shall cease.
Article 13.28. Arbitrators
1. Except in respect of a Tribunal established under Article 13.32 (Consolidation), and unless the disputing parties agree otherwise, the Tribunal shall be composed of three arbitrators. Each disputing party shall appoint one arbitrator, and the third arbitrator, who will be the presiding arbitrator, shall be appointed by agreement of, or pursuant to an appointment process agreed to by, the disputing parties. The disputing parties are encouraged to consider greater diversity in arbitrator appointments, including through the appointment of women.
2. Arbitrators should haveexpertise or experience in public international law, international investment law, or international trade law, or dispute resolution arising under international investment or international trade agreements.
3. Arbitrators shall be independent of, and not be affiliated with or take instructions from, a Party or the disputing investor.
4. If the disputing parties do not agree on the remuneration of the arbitrators before the Tribunal is constituted, the prevailing ICSID rate for arbitrators shall apply.
5. If a Tribunal, other than a Tribunal established under Article 13.32 (Consolidation), has not been constituted within 90 days of the submission of a claim to arbitration, a disputing party may ask the Secretary-General of ICSID to appoint the arbitrator or arbitrators not yet appointed. In accordance with this Article, the Secretary-General of ICSID shall make the appointment at his or her own discretion and, to the extent practicable, shall make this appointment in consultation with the disputing parties. The Secretary-General of ICSID shall not appoint as presiding arbitrator a national of a Party.
6. Arbitrators shall abide by the United Nations Commission on International Trade Law (UNCITRAL) Code of Conduct for Arbitrators in International Investment Dispute Resolution adopted on 7 July 2023, as modified by this Article.
7. Upon appointment, an arbitrator shall refrain, for the duration of the proceeding, or any time thereafter to the extent it would amount to a breach of the arbitrator’s duty of independence and impartiality, from acting as counsel or party-appointed expert or witness in any pending or new investment dispute under this Agreement or any other international investment treaty.
Article 13.29. Agreement to Appointment of Arbitrators by ICSID
For the purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator based on a ground other than nationality:
(a) the respondent Party agrees to the appointment of each individual member of a Tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) an investor of a Party referred to in Article 13.25.1(Submission of a Claim to Arbitration) may submit a claim to arbitration or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only if the investor agrees in writing to the appointment of each member of the Tribunal; and
(c) an investor of a Party referred to in Article 13.25.2 (Submission of a Claim to Arbitration) may submit a claim to arbitration or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only if the investor and the enterprise agree in writing to the appointment of each member of the Tribunal.
Article 13.30. Applicable Law and Interpretation
1. A Tribunal constituted under this Section shall apply this Agreement as interpreted in accordance with the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, and other rules and principles of international law applicable between the Parties.
2. If serious concerns ariseas regards matters of interpretation of this Chapter, the Committee on Investment may recommend, pursuant to Article 13.20.2(b) (Committee on Investment), that the Joint Committee may adopt an interpretation of this Agreement which shall be binding on a Tribunal established under this Section.
3. A Tribunal has no jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Chapter, under the domestic law of a Party. In determining the consistency of a measure with this Chapter, the Tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party, and any meaning given to domestic law by the Tribunal is not binding on the courts or authorities of that Party.
4. If an investor of a Party submits a claim to arbitration under Article 13.25 (Submission of a Claim to Arbitration), including a claim that a Party breached Article 13.9 (Minimum Standard of Treatment), the investor has the burden of proving all elements of its claim, consistent with the general principles of international law applicable to international arbitration.
Article 13.31. Preliminary Objections
1. Without prejudice to a Tribunal’s authority to address other questions as a preliminary objection, a Tribunal shall address and decide as a preliminary question an objection by the respondent Party that, as a matter of law, a claim submitted is not a claim for which an award in favour of the investor may be made under this Agreement, including that a dispute is not within the competence of the Tribunal, or that a claim is manifestly without legal merit.
2. An objection under paragraph 1 shall be submitted to the Tribunal within 60 days of constitution of the Tribunal. The Tribunal shall suspend any proceeding on the merits and issue a decision or award on the objection, stating the grounds therefor, within 180 days of the objection. 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 disputing party requests a hearing, a Tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period, which may not exceed 30 days.
3. When deciding an objection under paragraph 1, the Tribunal shall assume to be true the factual allegations in the claim to arbitration under Article 13.25 (Submission of a Claim to Arbitration), or any amendment to that claim. The Tribunal may also consider relevant facts not in dispute.
4. Whether or not a respondent Party raises an objection under paragraph 1 concerning the competence of the Tribunal, the respondent Party shall have the right to raise, and the Tribunal the authority to address and decide, a question pertaining to its competence in the course of the proceedings.
5. The provisions on costs in Article 13.39.3(Final Award) shall apply to decisions or awards issued under this Article.
Article 13.32. Consolidation
1. If two or moreclaims have been submitted separately to arbitration under Article 13.25 (Submission of a Claim to Arbitration) and the claims have a question of law or fact in common and arise out of the same events or circumstances, a 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 paragraphs 2 through 10.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General of ICSID to establish a Tribunal and shall specify in the request:
(a) the name of the respondent Party, or the investors, against which the order is sought;
(b) the nature of the order sought; and
(c) the grounds for the order sought.
3. The disputing party shall deliver a copy of the request to the respondent Party, or the investors, against which the order is sought.
4. Unless the disputing parties sought to be covered by the order agree to a different appointment process, the Secretary-General of ICSID shall, within 60 days of receiving the request, establish a Tribunal composed of three arbitrators. The Secretary-General of ICSID shall appoint one member who is a national of the respondent Party, one member who is a national of the Party of the investors that submitted the claims, and a presiding arbitrator who is not a national of a Party.
5. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
6. If a Tribunal established under this Article is satisfied that the claims submitted to arbitration under Article 13.25 (Submission of a Claim to Arbitration) have a question of law or fact in common, 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; or
(b) assume jurisdiction over, and hear and determineone or more of the claims, the determination of which it believes would assist in resolving the other claims.
7. If a Tribunal has been established under this Article, an investor that has submitted a claim to arbitration under Article 13.25 (Submission of a Claim to Arbitration) 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 an order made under paragraph 6. The request shall specify:
(a) the name and address of the investor;
(b) the nature of the order sought; and
(c) the grounds on which the order is sought.
8. An investor referred to in paragraph 7 shall deliver a copy of its request to the disputing parties named in a request under paragraph 1.
9. A Tribunal established under Article 13.25 (Submission of a Claim to Arbitration) does not have jurisdiction to decide a claim, or a part of a claim, over which a Tribunal established under this Article has assumed jurisdiction.
10. On application of a disputing party, a Tribunal established under this Article, pending its decision under paragraph 6, may order that the proceedings of a Tribunal established under Article 13.25 (Submission of a Claim to Arbitration) be stayed unless the latter Tribunal has already adjourned its proceedings.
Article 13.33. Seat of Arbitration
The disputing parties may agree on the seat of arbitration under the arbitration rules applicable under Article 13.25 (Submission of a Claim to Arbitration) or Article 13.32 (Consolidation). If the disputing parties fail to agree, the Tribunal shall determine the seat of arbitration in accordance with the applicable arbitration rules, provided that the legal seat of arbitration shall be in the territory of a State that is a party to the New York Convention.
Article 13.34. Transparency of Proceedings
1. Subject to paragraphs 2 and 4, the respondent Party shall, after receiving the following documents, promptly transmit them to the non-disputing Party and make them available to the public:
(a) a claim submitted pursuant to Article 13.25 (Submission of a Claim to Arbitration);
(b) pleadings, memorials, briefs, and other submissions made to the Tribunal by a disputing party;
(c) minutes or transcripts of hearings of the Tribunal, if available; and
(d) orders, awards,and decisions of the Tribunal.
2. The Tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. If a disputing party intends to use information in a hearing that is designated as confidential information or otherwise subject to paragraph 3, it shall so advise the Tribunal. The Tribunal shall make appropriate arrangements to protect such information from disclosure which may include closing the hearing for the duration of the discussion of that information.
3. Nothing in this Section, requires a respondent Party to make available to the public or otherwise disclose during or after the arbitral proceedings, including the hearing, confidential information, or to furnish or allow access to information that it may withhold in accordance with Article 25.3 (Exceptions and General Provisions – National Security) or Article 25.8 (Exceptions and General Provisions – Disclosure of Information and Confidentiality).
4. Any confidential information that is submitted to the Tribunal shall be protected from disclosure in accordance with the following procedures:
(a) subject to subparagraph (d), neither the disputing parties nor the Tribunal shall disclose to a non-disputing Party or to the public any confidential information if the disputing party that provided the information clearly designates it in accordance with subparagraph (b);
(b) any disputing party claiming that certain information constitutes confidential information shall clearly designate the information according to any schedule set by the Tribunal;
(c) a disputing party shall, according to any schedule set by the Tribunal, submit a redacted version of the document that does not contain the confidential information. Only the redacted version shall be disclosed in accordance with paragraph 1; and
(d) the Tribunal, subject to paragraph 3, shall decide any objection regarding the designation of information claimed to be confidential information.
5. Nothing in this Section requires a respondent Party to withhold from the public information required to be disclosed by its law. The respondent Party should endeavour to apply those laws in a manner sensitive to protecting from disclosure information that has been designated as confidential information.
6. A disputing party may disclose to other persons in connection with the proceedings, including witnesses and experts, unredacted documents that it considers necessary to disclose in the course of proceedings under this Section. However, the disputing party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
7. A Party may disclose to government officials and officials of a government other than at the central level, if applicable, unredacted documents that it considers necessary to disclose in the course of proceedings under this Section. However, that Party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
Article 13.35. Participation of a Non-Disputing Party
1. TheTribunal shall accept or,after consultation withthedisputing parties, may invite oral or written submissions from thenon-disputing Party regarding the interpretation of this Agreement. The non-disputing Party may attend a hearing held under this Section.
2. TheTribunal shall notdraw any inference from theabsence ofasubmission pursuant to paragraph 1.
3. TheTribunal shall ensure thatthedisputing parties are givenareasonable opportunity to present theirobservations on asubmission by the non-disputing Party.
Article 13.36. Expert Reports
Without prejudice to the appointment of other kinds of experts if authorized by the applicable arbitration rules, the Tribunal may, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, appoint one or more experts to report to it in writing on any factual issue, including the rights of Indigenous Peoples (15) or scientific matters raised by a disputing party in a proceeding, subject to any terms and conditions agreed on by the disputing parties.
Article 13.37. Interim Measures of Protection
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 shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 13.25 (Submission of a Claim to Arbitration). For the purposes of this paragraph, an order includes a recommendation.
Article 13.38. Security for Costs
1. At the request of a disputing party, the Tribunal may order the other disputing party to provide security for all or part of the costs, if there are reasonable grounds to believe that there is a risk the disputing party may not be able to honour a potential costs award against it.
2. In determining whether to order a disputing party to provide security for costs, the Tribunal shall consider all relevant circumstances, including:
(a) that disputing party’s ability tocomply withanadverse decision on costs;
(b) that disputing party’s willingness to comply with an adverse decision on costs;