(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 disputing investor shall deliver a copy of its request to the Secretary-General.
8. A Tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A Tribunal established under Articles 822 through 825 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 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 Articles 822 through 825 be stayed, unless the latter Tribunal has already adjourned its proceedings.
Article 827. Documents to, and Participation of, the other Party
1. A disputing Party shall deliver to the other Party a copy of the notice of intent referred in subparagraph 2(c) of Article 821, the notice of arbitration referred in paragraph 4 of Article 822, and any other documents that are appended to such notices, no later than 30 days after the date that such documents have been delivered to the disputing Party. The other Party shall be entitled, at its cost, to receive from the disputing Party:
(a) pleadings, memorials and briefs submitted to the Tribunal by a disputing party and any written submissions submitted pursuant to Article 826 and Article 831;
(b) minutes or transcripts of hearings of the Tribunal, where available; and
(c) orders, awards and decisions of the Tribunal. The Party receiving such information shall treat the information as if it were a disputing Party.
2. The other Party shall have the right to attend any hearings held under this Section. Upon written notice to the disputing parties, the other Party may make oral and written submissions to a Tribunal on a question of interpretation of this Agreement.
Article 828. Place of Arbitration
Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in the territory of a country that is a party to the New York Convention, selected in accordance with:
(a) the ICSID Additional Facility Rules, if the arbitration is under those Rules or the ICSID Convention; or
(b) the UNCITRAL Arbitration Rules, if the arbitration is under those Rules.
Article 829. Preliminary Objections
1. The Tribunal shall have the power to rule on preliminary objections to jurisdiction and admissibility.
2. Any preliminary objection that the dispute should not be admitted or registered, is not within the jurisdiction of the Tribunal or, for other reasons, is not within the competence of the Tribunal, shall be made in accordance with the applicable arbitration rules as early as possible.
Article 830. Public Access to Hearings and Documents
1. Any Tribunal award under this Section shall be publicly available, subject to the deletion of confidential information. All other documents submitted to, or issued by, the Tribunal shall be publicly available, unless the disputing parties otherwise agree, subject to the deletion of confidential information. A disputing party providing information that it claims is confidential has the burden of designating it as confidential.
2. Hearings held under this Section shall be open to the public. The Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information. The Tribunal shall establish procedures for the protection of confidential information and appropriate logistical arrangements for open hearings, in consultation with the disputing parties.
3. A disputing party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in such documents.
4. The Parties may share with officials of their respective national and sub-national governments all relevant unredacted documents in the course of dispute settlement under this Agreement, but they shall ensure that those persons protect any confidential information in such documents.
5. To the extent that a Tribunal's confidentiality order designates information as confidential and a Party's law on access to information requires public access to that information, the Party's law on access to information shall prevail. However, a Party should endeavour to apply its law on access to information so as to protect information designated confidential by the Tribunal.
6. Nothing in this Section requires a disputing Party to disclose, furnish or allow access to information that it may withhold in accordance with Article 2202 (Exceptions – National Security) or Article 2205 (Exceptions – Disclosure of Information).
Article 831. Submissions by a Non-disputing Party
1. A Tribunal shall have the authority to consider and accept written submissions from a person or entity that is not a disputing party and that has a significant interest in the arbitration. The Tribunal shall ensure that any non-disputing party submission does not disrupt the proceedings and that neither disputing party is unduly burdened or unfairly prejudiced by it.
2. An application to the Tribunal for leave to file a non-disputing party submission, and the filing of a submission, if allowed by the Tribunal, shall be made in accordance with Annex 831.
Article 832. Governing Law
1. A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.(10) An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section, and any award or other ruling under this Section shall be consistent with the interpretation.
2. Where a disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation set out in Annex I or Annex II, on request of the disputing Party, the Tribunal shall request the interpretation of the Commission on the issue. The Commission shall submit in writing its interpretation to the Tribunal. Further to paragraph 1, a Commission interpretation shall be binding on the Tribunal. If the Commission fails to submit its interpretation within 60 days of the delivery of the request, the Tribunal shall decide the issue.
Article 833. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal, at the request of a disputing party, or on its own initiative unless the disputing parties disapprove, may appoint experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party, subject to such terms and conditions as the disputing parties may agree.
Article 834. Interim Measures of Protection and Final Award
1. 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 the measure alleged to constitute a breach referred to in Article 819 and Article 820. For purposes of this paragraph, an order includes a recommendation.
2. Where a Tribunal makes a final award against the disputing Party, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest;
(b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution. The Tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
3. Subject to paragraph 2, where a claim is made under Article 820:
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise;
(b) an award of restitution of property shall provide that restitution be made to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic law.
4. A Tribunal may not order a disputing Party to pay punitive damages.
Article 835. Finality and Enforcement of an Award
1. An award made by a Tribunal shall have no binding force except between the disputing parties and in respect of that particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award, or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its territory.
5. If the disputing Party fails to abide by or comply with a final award, on delivery of a request by the Party of the disputing investor a panel shall be established under Article 2106 (Dispute Settlement – Establishment of a Panel). The requesting Party may seek in such proceedings:
(a) a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and
(b) a recommendation that the disputing Party abide by or comply with the final award.
6. A disputing investor may seek enforcement of an arbitration award under the ICSID Convention, the New York Convention or the Inter-American Convention regardless of whether proceedings have been taken under paragraph 5.
7. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention and Article I of the Inter-American Convention.
Article 836. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a disputing Party shall not assert as a defence, counterclaim, right of setoff or for any other reason that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Article 837. Exclusions
The dispute settlement provisions of this Section and of Chapter Twenty-One (Dispute Settlement) shall not apply to the matters referred to in Annex 837.
Section C. Definitions
Article 838. Definitions
For purposes of this Chapter:
administrative recourse means administrative recourse under Colombia's Código Contencioso Administrativo or other similar provisions of Colombian administrative law, including Ley 142 de 1994 and Ley 1150 de 2007;
confidential information means:
(a) confidential business information; and
(b) information that is privileged or otherwise protected from disclosure under the law of a Party;
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party existing on the date of entry into force of this Agreement, as well as investments made or acquired thereafter;
disputing investor means an investor that makes a claim under Section B;
disputing Party means a Party against which a claim is made under Section B;
disputing party means the disputing investor or the disputing Party; enterprise means an enterprise as defined in Article 105 (Initial Provisions and General Definitions – Definitions of General Application), and a branch of any such entity;
enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there;
ICSID means the International Centre for Settlement of Investment Disputes established by the ICSID Convention;
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on 18 March 1965;
intellectual property rights means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders' rights;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, done at Panama on 30 January 1975;
investment means:
(a) an enterprise;
(b) shares, stocks and other forms of equity participation in an enterprise;
(c) bonds, debentures and other debt instruments of an enterprise, but does not include a debt instrument of a state enterprise;
(d) a loan to an enterprise, but does not include a loan to a state enterprise;
(e) an interest in an enterprise that entitles the owner to a share in income or profits of the enterprise;
(f) an interest in an enterprise that entitles the owner to share in the assets of that enterprise on dissolution;
(g) interests arising from the commitment of capital or other resources in the territory of a Party to economic activity in such territory, such as under
(i) contracts involving the presence of an investor's property in the territory of the Party, including turnkey or construction contracts, or concessions, or
(ii) contracts where remuneration depends substantially on the production, revenues or profits of an enterprise;
(h) intellectual property rights; and
(i) any other tangible or intangible property, moveable or immovable property, and related property rights acquired in the expectation or used for the purpose of economic benefit or other business purposes; but investment does not mean, (11)
(j) claims to money arising solely from
(i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to a national or an enterprise in the territory of the other Party, or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing, other than a loan covered by subparagraph (d); or (k) any other claims to money, that do not involve the kinds of interests set out in subparagraphs (a) to (i); investment of an investor of a Party means an investment owned or controlled directly or indirectly by an investor of such Party;
investor of a Party means a Party or state enterprise thereof, or an enterprise or national of a Party, that seeks to make, (12) is making or has made an investment. A natural person who is a dual citizen shall be deemed to be exclusively a citizen of the State of his or her dominant and effective citizenship. A natural person who is a citizen of a Party and a permanent resident of the other Party shall be deemed to be exclusively a national of the Party of which he or she is a citizen.
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
non-disputing Party means the Party that is not a party to an investment dispute under Section B;
Secretary-General means the Secretary-General of ICSID;
Statute of the International Court of Justice means the Statute of the International Court of Justice, done at San Francisco on 26 June 1945;
Tribunal means an arbitration tribunal established under Articles 822 through 825 or Article 826;
TRIPS Agreement means the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights; and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, approved by the United Nations General Assembly on 15 December, 1976.
Section D. Dispute Settlement for Juridical Stability Contracts
Article 839. Dispute Settlement for Juridical Stability Contracts
1. Subject to paragraph 2, a Canadian investor may submit an arbitration claim concerning the interpretation of, or compliance by the Colombian Government with, a Juridical Stability Contract only in accordance with Colombian law and paragraph 3 of this Annex.
2. Paragraph 1 is without prejudice to the right of a Canadian investor to make a claim under Section B of this Chapter that a measure taken by Colombia in connection with a Juridical Stability Contract breaches an obligation under Section A of this Chapter.
3. In the case of an arbitration under Colombian law in accordance with paragraph 1:
(a) the Tribunal shall have its seat in Bogotá, Colombia;
(b) the Tribunal shall consist of three arbitrators, one appointed by each disputing party and the third, who shall be the President of the Tribunal, appointed by the two disputing party-appointed arbitrators;
(c) an arbitrator shall be independent of, and not affiliated with, or take instructions from, either Party or the disputing investor;
(d) an arbitrator may be of any nationality, except the President of the Tribunal who may not be a national of a Party;
(e) unless otherwise agreed by the disputing parties, the Tribunal shall conduct the arbitration in accordance with the UNCITRAL Arbitration Rules, except to the extent modified by this paragraph;
(f) where a Tribunal has not been constituted within 90 days from the date that a claim is submitted to arbitration, the appointing authority under the UNCITRAL Arbitration Rules, on the request of either disputing party, shall appoint, in his or her discretion and, to the extent practicable, in consultation with the disputing parties, the arbitrator or arbitrators not yet appointed, consistent with the criteria set out in this provision; and
(g) the Tribunal shall decide the issues in dispute in accordance with Colombian law and such rules of international law as may be applicable.
4. For the purpose of this Annex, "Juridical Stability Contract" means a contract between the Colombian Government and a Canadian investor in accordance with Ley 963 de 2005, Decreto 2950 de 2005 and their amendments, where the Colombian Government undertakes the obligation to maintain over the length of the contract those provisions and binding administrative interpretations - including tax provisions - which are considered as decisive for the investment. Such contracts may cover laws, decrees, administrative acts of general application and binding administrative interpretations, subject to the limitations of Ley 963 de 2005, Decreto 2950 de 2005 and their amendments.
Annex 810. Capital Controls
1. Colombia reserves the right to maintain or adopt measures to maintain or preserve the stability of its currency, in accordance with Colombian domestic legislation, including Law 9 of 1991 and Law 31 of 1992. These measures shall not affect outward transfers or foreign direct investment transfers. For transparency purposes, Colombia maintains the following measure as of the date of entry into force of this Agreement:
(a) pursuant to Resolution 8 of 2000, a non-interest bearing deposit requirement on foreign credits relating to an investment equivalent to zero per cent of the credit.
Deposits under this paragraph may be reimbursed before the due date subject to a financial penalty.
2. Colombia shall have the right to adopt any reasonable measure that is necessary to prevent the circumvention of measures taken pursuant to paragraph 1.
3. Any measure maintained or adopted by Colombia pursuant to paragraph 1 or 2 shall:
(a) be temporary and be eliminated as soon as the circumstances leading to their imposition no longer exist;
(b) be of general application;
(c) be imposed and be applied in good faith;
(d) be consistent with Articles 803 and 804; and
(e) not impose, with respect to deposits of investors of Canada, any terms or conditions that are more restrictive than those applied at the time such deposits were made.
4. Upon adopting a measure pursuant to paragraph 1 or 2, Colombia shall provide to Canada the reasons for the adoption of the measure as well as any relevant information.
5. For the purposes of this Annex:
foreign credit means any type of foreign debt financing whatever its nature, form or maturity period; and
foreign direct investment means an investment of an investor of Canada, other than a foreign credit, made in order to:
(a) establish a Colombian enterprise or increase the capital of an existing Colombian enterprise; or
(b) acquire equity of an existing Colombian enterprise, but excludes such an investment that is of a purely financial character and is designed only to gain indirect access to the financial market of Colombia.
Annex 811. Indirect Expropriation
The Parties confirm their shared understanding that:
1. Paragraph 1 of Article 811 addresses two situations. The first situation is direct expropriation, where an investment is nationalized or otherwise directly expropriated as provided for under international law.
2. The second situation is indirect expropriation, which results from a measure or series of measures of a Party that have an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether a measure or series of measures of a Party constitute an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred,
(ii) the extent to which the measure or series of measures interfere with distinct, reasonable investment-backed expectations, and
(iii) the character of the measure or series of measures;
(b) Except in rare circumstances, such as when a measure or series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted in good faith, non-discriminatory measures by a Party that are designed and applied to protect legitimate public welfare objectives, for example health, safety and the protection of the environment, do not constitute indirect expropriation.
Annex 821. Standard Waiver and Consent
In Accordance with Article 821 of this Agreement
In the interest of facilitating the filing of waivers as required by Article 821 of this Agreement, and to facilitate the orderly conduct of the dispute resolution procedures set out in Section B, the following standard waiver forms shall be used, depending on the type of claim.
Claims filed under Article 819 must be accompanied by either Form 1, where the investor is a national of a Party, or Form 2, where the investor is a Party, a state enterprise thereof, or an enterprise of such Party.