4. Without prejudice to a tribunal's authority to address other objections as a preliminary question, such as an objection that an investment dispute is not within the competence of the tribunal, including an objection to the tribunal's jurisdiction, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 35 or that a claim is manifestly without legal merit. For the purposes of this paragraph:
(a) An objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its counter-memorial or, in the case of an amendment to the notice of arbitration, the date the tribunal fixes for the respondent to submit its response to the amendment.
(b) On receipt of an objection, 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 that a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 35, 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 investment 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 does not waive any objection as to competence, including an objection to jurisdiction, or any argument on the merits merely because the respondent did or did not raise an objection or make use of the expedited procedure set out in paragraph 5.
5. In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under paragraph 4 or any objection that the investment dispute is not within the tribunal's competence, including an objection that the investment 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, stating the grounds therefor, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional period, which may not exceed 30 days.
6. When the tribunal decides a respondent's objection under paragraph 4 or paragraph 5, it 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 with a reasonable opportunity to comment.
7. For greater certainty, the claimant has the burden of proving all elements of its claims, including a claim alleging that a Party breached Article 8, consistent with general principles of international law applicable to international arbitration.
8. A respondent may not assert as a defence, counterclaim, right of set-off or for any other reason, that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
9. A tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the tribunal's jurisdiction. A tribunal may not order attachment or enjoin the application of a measure alleged to constitute a breach referred to in Article 24. For the purposes of this paragraph, an order includes a recommendation.
10. In any arbitration conducted under this Section, on request of a disputing party, a tribunal shall, before issuing a decision or award on liability, transmit its proposed decision or award to the disputing parties and to the non-disputing Party. Within 60 days after the tribunal transmits its proposed decision or award, the disputing parties may submit written comments to the tribunal concerning any aspect of its proposed decision or award. The tribunal shall consider any such comments and issue its decision or award no later than 45 days after the expiration of the 60-day comment period.
Article 30. Transparency of Arbitral Proceedings
1. Subject to paragraph 2 and paragraph 4, the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Party and make them available to the public:
(a) The notice of intent;
(b) The notice of arbitration;
(c) Pleadings, memorials and briefs submitted to the tribunal by a disputing party and any written submissions submitted in accordance with Articles 29.2, 29.3 and 34;
(d) Minutes or transcripts of hearings of the tribunal, if available; and
(e) 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 designated as protected information or otherwise subject to paragraph 3 in a hearing, 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 such information.
3. Nothing in this Section shall require a respondent to make available to the public or otherwise disclose during or after the arbitral proceedings, including the hearing, protected information, or to furnish or allow access to information that it may withhold in accordance with Article 1916.
4. Any protected 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 the non-disputing Party or to the public any protected 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 protected information shall clearly designate the information at the time it is submitted to the tribunal;
(c) A disputing party shall, at the time it submits a document containing information claimed to be protected information, submit a redacted version of the document that does not contain the protected information. Only the redacted version shall be disclosed in accordance with paragraph 1; and
(d) The tribunal shall, subject to paragraph 3, decide any objection regarding the designation of information claimed to be protected information. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may:
(i) Withdraw all or part of its submission containing that information; or
(ii) Agree to resubmit complete and redacted documents with corrected designations in accordance with the tribunal's determination and subparagraph (c).
In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents which either remove the information withdrawn under subparagraph (d)(i) by the disputing party that first submitted the information or redesignate the information consistent with the designation under subparagraph (d)(ii) of the disputing party that first submitted the information.
5. A disputing party may disclose to other persons in connection with the arbitral proceedings such documents as it considers necessary for the preparation of its case, but it shall require that any protected information in such documents be protected.
6. Nothing in this Section requires a respondent to withhold from the public information required to be disclosed by its laws and regulations.
Article 31. Governing Law
1. Subject to paragraph 2, when a claim is submitted under Article 24.1(a) or 24.1(b), the tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law (17).
2. A joint interpretation of the Parties of a provision of this Agreement shall be binding on a tribunal, and any decision or award issued by a tribunal shall be consistent with that joint interpretation.
Article 32. Interpretation of the Annex on Non-conforming Measures
If a respondent asserts as a defence that the measure alleged to be a breach is within the scope of a non-conforming measure set out in a Party's Schedule to Annex I, the tribunal shall, on request of the respondent, request the joint interpretation of the Parties on the issue. The Parties shall submit in writing their joint interpretation to the tribunal within 90 days of delivery of the request. If the Parties fail to do so, the tribunal shall decide the issue.
Article 33. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorised by the applicable arbitration rules, a tribunal, on request of a disputing party or, unless the disputing parties disapprove, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning scientific matters raised by a disputing party in a proceeding, subject to any terms and conditions that the disputing parties may agree.
Article 34. Consolidation
1. If two or more claims have been submitted separately to arbitration under Article 24.1 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 in accordance with this Article.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General and to all the disputing parties sought to be covered by the order and shall specify in the request:
(a) The names and addresses of all the disputing parties sought to be covered by the order;
(b) The nature of the order sought; and
(c) The grounds on which the order is sought.
3. Unless the Secretary-General finds within 30 days after the date of receiving a request under 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 order otherwise agree, a tribunal established under this Article shall comprise three arbitrators:
(a) One arbitrator appointed by agreement of the claimants;
(b) One arbitrator appointed by the respondent; and
(c) The presiding arbitrator appointed by the Secretary-General, provided that the presiding arbitrator is not a natural person of the respondent or of the non-disputing Party.
5. If, within 60 days after the date when the Secretary-General receives a request made in accordance with paragraph 2, the respondent fails or the claimants 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, in his or her discretion, the arbitrator or arbitrators not yet appointed.
6. If a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration under Article 24.1 have a question of law or fact in common, and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
(a) Assume jurisdiction over, and hear and determine together, all or part of the claims;
(b) Assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others; or
(c) Instruct a tribunal previously established under Article 28 to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that:
(i) That tribunal, on request of a claimant that was not previously a disputing party before that tribunal, shall be reconstituted with its original members, except that the arbitrator for the claimants shall be appointed in accordance with paragraph 4(a) and paragraph 5; and
(ii) That tribunal shall decide whether a prior hearing shall be repeated.
7. If a tribunal has been established under this Article, a claimant that has submitted a claim to arbitration under Article 24.1 and that has not been named in a request made in accordance with paragraph 2 may make a written request to the tribunal that it be included in any order made under paragraph 6. The request shall specify:
(a) The name and address of the claimant;
(b) The nature of the order sought; and
(c) The grounds on which the order is sought.
The claimant 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 Article 28 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 in accordance with this Article, pending its decision under paragraph 6, may order that the proceedings of a tribunal established under Article 28 be stayed, unless the latter tribunal has already adjourned its proceedings.
Article 35. Awards
1. When a tribunal makes a final award, 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.
2. For greater certainty, if an investor of a Party submits a claim to arbitration under Article 24.1(a), it may recover only loss or damage that it has incurred in its capacity as an investor of a Party.
3. A tribunal may also award costs and attorney's fees incurred by the disputing parties in connection with the arbitral proceeding, and shall determine how and by whom those costs and attorney's fees shall be paid, in accordance with this Section and the applicable arbitration rules.
4. Subject to paragraph 1, if a claim is submitted to arbitration under Article 24.1(b):
(a) An award of restitution of property shall provide that restitution be made to the enterprise;
(b) An award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any right that any person may have under applicable laws with respect to the relief provided in the award.
5. A tribunal shall not award punitive damages.
6. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
7. Subject to paragraph 8 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
8. A disputing party shall not seek enforcement of a final award until:
(a) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award; or
(b) A court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
9. Each Party shall provide for the enforcement of an award in its Area.
10. If the respondent fails to abide by or comply with a final award, on delivery of a written request by the non-disputing Party, Section B (Settlement of Disputes between the Parties) shall apply to this matter. If a panel is established pursuant to such application, the requesting Party may seek in those proceedings:
(a) A finding that the failure to abide by or comply with the final award is inconsistent with the obligations under this Agreement; and
(b) In addition to Section B (Settlement of Disputes between the Parties), a recommendation that the respondent abide by or comply with the final award.
11. A disputing party may seek enforcement of an award under the New York Convention, regardless of whether proceedings have been initiated under paragraph 10.
12. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 36. Service of Documents
Delivery of notice and other documents to a Party shall be made in accordance with Annex IV. A Party shall promptly make publicly available and notify the other Party of any change to the place referred to in that Annex.
Section D. Final Provisions
Article 37. Annexes and Footnotes
The Annexes and footnotes to this Agreement shall constitute an integral part of this Agreement.
Article 38. Amendments
1. The Parties may agree, in writing, to amend this Agreement. Such amendments shall enter into force in accordance with the procedures required for the entry into force of this Agreement or as otherwise agreed by the Parties.
2. If the WTO Agreement or any other international agreement, or a provision therein, that has been referred to in this Agreement or incorporated into this Agreement is amended, the Parties shall consult each other on whether to amend this Agreement, unless this Agreement otherwise provides.
Article 39. Entry Into Force
This Agreement shall enter into force 30 days after the date on which the Parties exchange written notifications that they have completed their respective necessary internal procedures for the entry into force of this Agreement, or on such other date as the Parties may agree.
Article 40. Termination
1. This Agreement shall remain in force unless either Party notifies the other Party in writing to terminate this Agreement. Such termination shall take effect 180 days after the date of receipt of the notification, or on such other date as the Parties may agree. In respect of covered investments made before the date on which the termination of this Agreement becomes effective (date of termination), Article 1 through Article 37 inclusive and Annexes I through IV inclusive shall continue to be effective for a further period of 10 years from the date of termination.
2. The Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments, done at Hong Kong on September 15, 1993 (IPPA) shall terminate on the date of entry into force of this Agreement. From that date, all provisions of the IPPA, including the provisions for termination contained in Article 14 (Entry into Force and Duration and Termination), and any rights or obligations arising from those provisions, shall cease to have effect.
3. Notwithstanding paragraph 2, the termination of the IPPA shall not in any way affect any claims (including any proceedings related to such claims) that have been submitted under Article 10 (Settlement of Investment Disputes) or Article 11 (Disputes between the Contracting Parties) of the IPPA before such termination. For the purposes of this Article, a claim is deemed to have been submitted under the IPPA when:
(a) With respect to a claim under Article 10 of the IPPA, an investor of a Contracting Party to the IPPA files the written notification of such claim to the other Contracting Party to the IPPA; and
(b) With respect to a claim under Article 11 of the IPPA, a Contracting Party to the IPPA files a written request for negotiation to the other Contracting Party to the IPPA under Article 11.1 of the IPPA.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
Done at Sydney, Australia, on March 26, 2019, in duplicate, in the English language.
FOR THE GOVERNMENT OF AUSTRALIA
FOR THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA
Attachments
Annex I. Explanatory Notes
1. The Schedule of a Party to this Annex sets out, pursuant to Article 7.2 (Non-Conforming Measures), the specific sectors, subsectors or activities for which that Party may maintain existing, or adopt new or more restrictive, measures that do not conform with the following obligations:
(a) Article 4 (Non-Discriminatory Treatment as Compared with a Party's Own Investors); or
(b) Article 5 (Non-Discriminatory Treatment as Compared with a Non-Party's Investors).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Industry Classification, where referenced, refers to the activity covered by the entry, according to:
(i) The provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);
(ii) The Services Sectoral Classification List published by the WTO (WTO document MTN.GNS/W/120 of July 10, 1991); or
(iii) The Maritime Model Schedule appended as Appendix 2 to the WTO document JOB/SERV/137 of March 7, 2013,
Where appropriate;
(c) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 7.2 (Non-Conforming Measures), do not apply to the sectors, subsectors or activities covered by the entry;
(d) Description sets out the scope or nature of the sectors, subsectors or activities covered by the entry to which the reservation applies; and
(e) Existing Measures where specified, identifies, for transparency purposes, a non-exhaustive list of existing measures that apply to the sectors, subsectors or activities covered by the entry.
3. In this Annex, "Mode 3" means the supply of a service by a service supplier of a Party, through commercial presence in the Area of the other Party.
4. For the purposes of paragraph 3, "commercial presence" means any type of business or professional establishment including through:
(a) The constitution, acquisition or maintenance of an enterprise; or
(b) The creation or maintenance of a branch or a representative office,
Within the Area of a Party for the purposes of supplying a service.
5. In accordance with Article 7.2 (Non-Conforming Measures), the obligations of this Agreement specified in the Obligations Concerned element of an entry do not apply to the sectors, subsectors or activities set out in the Description element of that entry.
Annex I. Schedule of Australia
INTRODUCTORY NOTES
1. For the avoidance of doubt, in relation to education services, nothing in this Agreement shall interfere with:
(a) The ability of individual education and training institutions to maintain autonomy in admissions policies (including in relation to considerations of equal opportunity for students and recognition of credits and degrees), in setting tuition rates and in the development of curricula or course content;
(b) Non-discriminatory accreditation and quality assurance procedures for education and training institutions and their programmes, including the standards that must be met;
(c) Government funding, subsidies or grants, such as land grants, preferential tax treatment and other public benefits, provided to education and training institutions; or
(d) The need for education and training institutions to comply with non-discriminatory requirements related to the establishment and operation of a facility in a particular jurisdiction.
2. For greater certainty, where Australia has more than one entry in its Schedule to Annex I that could apply to a measure, each entry is to be read independently, and is without prejudice to the application of any other entry to the measure.
AU-1
Sector: All Sectors
Obligations Concerned: Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description:
Australia reserves the right to adopt or maintain any measure according preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation in relation to acquisition, establishment or operation of any commercial or industrial undertaking in the service sector.
Australia reserves the right to adopt or maintain any measure with respect to investment that accords preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation.
For the purpose of this entry, an Indigenous person means a person of the Aboriginal and Torres Strait Islander peoples.
Existing Measures: Legislation and Ministerial Statements at all levels of government including Australia's Foreign Investment Policy, and the Native Title Act 1993 (Cth).
AU-2
Sector : All Sectors
Obligations Concerned : Non-Discriminatory Treatment as Compared with a Party's Own Investors (Article 4)
Description (18)
Australia reserves the right to adopt or maintain any measure with respect to a proposed acquisition by a foreign person (19) of an interest in Australian land (20), other than developed commercial land or land that is used wholly and exclusively for a primary production business.