Article 41. Interpretation of Annexes
1 . Where a disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex I, Annex II or Annex III, on request of the disputing Party, the Tribunal shall request the interpretation of the Commission on the issue. The Commission, within 60 days of delivery of the request, shall submit in writing its interpretation to the Tribunal.Annex I, Annex II or Annex III, on request of the disputing Party, the Tribunal shall request the interpretation of the Commission on the issue. The Commission, within 60 days of delivery of the request, shall submit in writing its interpretation to the Tribunal.
2 . Further to Article 40(3) (Governing Law), a Commission interpretation submitted under paragraph 1 shall be binding on the Tribunal. If the Commission fails to submit an interpretation within 60 days, the Tribunal shall decide the issue.Article 40(3) (Governing Law), a Commission interpretation submitted under paragraph 1 shall be binding on the Tribunal. If the Commission fails to submit an interpretation within 60 days, the Tribunal shall decide the issue.
Article 42. 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, 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 environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 43. 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 may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 22 (Claim by an Investor of a Party on Its Own Behalf) or 23 (Claim by an Investor of a Party on Behalf of an Enterprise). For purposes of this paragraph, an order includes a recommendation.
Article 44. Final Award
1 . 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 in accordance with the applicable arbitration rules.
2 . Subject to paragraph 1, where a claim is made under Article 23(1) (Claim by an Investor of a Party on Behalf of an Enterprise):paragraph 1, where a claim is made under Article 23(1) (Claim by an Investor of a Party on Behalf of an Enterprise):
(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.
3 . A Tribunal may not order a disputing Party to pay punitive damages.
Article 45. 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.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: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: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, the Commission, on delivery of a request by the Party of the disputing investor, shall establish an arbitral panel under Section D (State-to-State Dispute Settlement Procedures). The requesting Party may seek in such proceedings:Section D (State-to-State Dispute Settlement Procedures). 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.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 I of the New York Convention and Article I of the Inter-American Convention.
Article 46. General
1 . Time when a Claim is Submitted to Arbitration
A claim is submitted to arbitration under this Section when:
(a) The request for arbitration under paragraph (1) of Article 36 of the ICSID Convention is received by the Secretary-General;paragraph (1) of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) The notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General; orArticle 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General; or
(c) The notice of arbitration given under the UNCITRAL Arbitration Rules is received by the disputing Party.UNCITRAL Arbitration Rules is received by the disputing Party.
2 . Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party below.
For Canada:
Office of the Deputy Attorney General of Canada
Justice Building
239 Wellington Street
Ottawa, Ontario
K1A 0H8, CANADA
For the Republic of Peru:
Dirección General de Asuntos de Economía
Internacional, Competencia e Inversión Privada
Ministerio de Economía y Finanzas
Jirón Lampa ♯ 277 piso 5
Lima 1, PERÚ
Article 47. Disputes between the Parties
1 . Either Party may request consultations on the interpretation or application of this Agreement. The other Party shall give sympathetic consideration to the request. Any dispute between the Parties concerning the interpretation or application of this Agreement shall, whenever possible, be settled amicably through consultations.
2 . If a dispute cannot be settled through consultations, it shall, at the request of either Party, be submitted to an arbitral panel for decision.
3 . An arbitral panel shall be constituted for each dispute. Within two months after receipt through diplomatic channels of the request for arbitration, each Party shall appoint one member to the arbitral panel. The two members shall then select a national of a third State who, upon approval by the two Parties, shall be appointed Chairman of the arbitral panel. The Chairman shall be appointed within two months from the date of appointment of the other two members of the arbitral panel.
4 . If within the periods specified in paragraph (3) of this Article the necessary appointments have not been made, either Party may invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Party or is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of either Party or is prevented from discharging the said function, the Member of the International Court of Justice next in seniority, who is not a national of either Party, shall be invited to make the necessary appointments.paragraph (3) of this Article the necessary appointments have not been made, either Party may invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Party or is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of either Party or is prevented from discharging the said function, the Member of the International Court of Justice next in seniority, who is not a national of either Party, shall be invited to make the necessary appointments.
5 . Arbitrators shall:
(a) Have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements;
(b) Be independent of, and not be affiliated with or take instructions from, either Party; and
(c) Comply with any Code of Conduct for Dispute Settlement as agreed by the Commission.
6 . Where a Party claims that a dispute involves measures relating to financial institutions, or to investors or investments of such investors in financial institutions, then
(a) Where the disputing Parties are in agreement, the arbitrators shall, in addition to the criteria set out in paragraph 5, have expertise or experience in financial services law or practice, which may include the regulation of financial institutions; orparagraph 5, have expertise or experience in financial services law or practice, which may include the regulation of financial institutions; or
(b) Where the disputing Parties are not in agreement,
(i) Each disputing Party may select arbitrators who meet the qualifications set out in subparagraph (a), andsubparagraph (a), and
(ii) If the Party complained against invokes Articles 14(6) or 17, the chair of the panel shall meet the qualifications set out in subparagraph (a).Articles 14(6) or 17, the chair of the panel shall meet the qualifications set out in subparagraph (a).
7 . The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. Such decision shall be binding on both Parties. Unless otherwise agreed, the decision of the arbitral panel shall be rendered within six months of the appointment of the Chairman in accordance with paragraphs (3) or (4) of this Article.paragraphs (3) or (4) of this Article.
8 . Each Party shall bear the costs of its own member of the panel and of its representation in the arbitral proceedings; the costs related to the Chairman and any remaining costs shall be borne equally by the Parties. The arbitral panel may, however, in its decision direct that a higher proportion of costs be borne by one of the two Parties, and this award shall be binding on both Parties.
9 . The Parties shall, within 60 days of the decision of a panel, reach agreement on the manner in which to resolve their dispute. Such agreement shall normally implement the decision of the panel. If the Parties fail to reach agreement, the Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel.
Section E Final Provisions
Article 48. Consultations
A Party may request in writing consultation with the other Party regarding any actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
Article 49. Extent of Obligations
The Parties shall ensure that all necessary measures are taken in order to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by sub-national governments.
Article 50. Commission
1 . The Parties hereby agree to establish a Commission, comprising cabinet-level representatives of the Parties or their designees.
2 . The Commission shall:
(a) Supervise the implementation of this Agreement;
(b) Resolve disputes that may arise regarding its interpretation or application;
(c) Consider any other matter that may affect the operation of this Agreement; and
(d) Adopt a Code of Conduct for Arbitrators.
3 . The Commission may take such other action in the exercise of its functions as the Parties may agree, including amendment of the Code of Conduct for Arbitrators.
4 . The Commission shall establish its rules and procedures.
Article 51. Exclusions
The dispute settlement provisions of Sections C or D of this Agreement shall not apply to the matters referred to in Annex E.51 (Exclusions from Dispute Settlement).
Article 52. Application and Entry Into Force
1 . The Annexes hereto shall form integral parts hereof.
2 . Each Party shall notify the other in writing of the completion of the procedures required in its territory for the entry into force of this Agreement. This Agreement shall enter into force on the date of the latter of the two notifications.
3 . This Agreement shall remain in force unless either Party notifies the other Party in writing of its intention to terminate it. The termination of this Agreement shall become effective one year after notice of termination has been received by the other Party. In respect of investments or commitments to invest11 made prior to the date when the termination of this Agreement becomes effective, the provisions of Articles 1 to 51 inclusive, as well as paragraphs (1) and (2) of this Article, shall remain in force for a period of fifteen years.11 made prior to the date when the termination of this Agreement becomes effective, the provisions of Articles 1 to 51 inclusive, as well as paragraphs (1) and (2) of this Article, shall remain in force for a period of fifteen years.
Conclusion
DONE in duplicate at this day of , 2006 in the English, French and Spanish languages, all texts being equally authentic.
FOR CANADA
FOR THE REPUBLIC OF PERU
Attachments
For greater clarity, treatment "with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments" referred to in paragraphs 1 and 2 of Article 4 does not encompass dispute resolution mechanisms, such as those in Section C, that are provided for in international treaties or trade agreements.
Attachments
The Parties confirm their shared understanding that:
(a) Indirect expropriation results from a measure or series of measures of a Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
(b) The determination of whether a measure or series of measures of a Party constitutes 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 interferes with distinct, reasonable investment-backed expectations; and
(iii) The character of the measure or series of measures;
(c) 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 and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.
Section C Settlement of Disputes between an Investor and the Host Party
Attachments
In the interest of facilitating the filing of waivers as required by Article 26 of this Agreement, and to facilitate the orderly conduct of the dispute resolution procedures set out in Section C, the following standard waiver forms shall be used, depending on the type of claim.
Claims filed under Article 22 (Claim by an investor of a Party on Its Own Behalf) 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.
Where the claim is based on 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, either Form 1 or 2 must be accompanied by Form 3.
Claims made under Article 23 (Claim by an Investor of a Party on Behalf of an Enterprise) 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, and Form 4.
Form 1 Consent and waiver for an investor of a Party bringing a claim under Article 22 or Article 23 (where the investor is a national of a Party) of the Agreement between Canada and the Republic of Peru for the Promotion and Protection of Investments of (date of entry-into-force):
I, (Name of investor) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive my right to initiate or continue before any administrative tribunal or court under the law of any Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged to be a breach referred to in Article 22 or Article 23, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of (Name of disputing Party) .
(To be signed and dated)
Form 2 Consent and waiver for an investor of a Party bringing a claim under Article 22 or Article 23 (where the investor is a Party, a state enterprise thereof, or an enterprise of such Party) of the Agreement between Canada and the Republic of Peru for the Promotion and Protection of Investments of (date of entry-into-force):
I, (Name of declarant) , on behalf of (Name of investor) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive the right of (Name of investor) to initiate or continue before any administrative tribunal or court under the law of any Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged to be a breach referred to in Article 22 or Article 23, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages before an administrative tribunal or court under the law of (Name of disputing Party).
I hereby solemnly declare that I am duly authorised to execute this consent and waiver onbehalf of (Name of investor) .
(To be signed and dated)
Form 3 Waiver of an enterprise that is the subject of a claim by an investor of a Party under Article 22 of the Agreement between Canada and the Republic of Peru for the Promotion and Protection of Investments of (date of entry-into-force):
I, (Name of declarant) , waive the right of (Name of the enterprise) to initiate or continue before any administrative tribunal or court under the law of any Party to this Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged by (Name of investor) to be a breach referred to in Article 22, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of (Name of disputing Party) .
I hereby solemnly declare that I am duly authorised to execute this waiver on behalf of(Name of the enterprise) .
(To be signed and dated)
Form 4 Consent and waiver of an enterprise that is the subject of a claim by an investor of a Party under Article 23 of the Agreement between Canada and the Republic of Peru for the Promotion and Protection of Investments of (date of entry-into-force):
I, (Name of declarant) , on behalf of (Name of enterprise) , consent to arbitration in accordance with the procedures set out in this Agreement, and waive the right of (Name of enterprise) to initiate or continue before any administrative tribunal or court under the law of any Party to the Agreement, or other dispute settlement procedures, any proceedings with respect to the measure of (Name of disputing Party) that is alleged by (Name of investor) to be a breach referred to in Article 23, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages before an administrative tribunal or court under the law of (Name of disputing Party) .
I hereby solemnly declare that I am duly authorised to execute this consent and waiver onbehalf of (Name of the enterprise) .
(To be signed and dated)
Attachments
1 . An investor of Canada may not submit to arbitration under Section C a claim that the Republic of Peru has breached an obligation under Section B:Section C a claim that the Republic of Peru has breached an obligation under Section B:
(a) On its own behalf under Article 22(1)(a), orArticle 22(1)(a), or
(b) On behalf of an enterprise of the Republic of Peru that is a juridical person that the investor owns or controls directly or indirectly under Article 23(1)(a),Article 23(1)(a),
If the investor or the enterprise, respectively, has alleged that breach of an obligation under Section B in proceedings before a court or administrative tribunal of the Republic of Peru.
2 . An investor of Canada may not submit to arbitration under Section C a claim that the Republic of Peru has breached a legal stability agreement referred to in Articles 22(3) and 23(3):Section C a claim that the Republic of Peru has breached a legal stability agreement referred to in Articles 22(3) and 23(3):
(a) On its own behalf under Article 22(1)(b), orArticle 22(1)(b), or
(b) On behalf of an enterprise of the Republic of Peru that is a juridical person that the investor owns or controls directly or indirectly under Article 23(1)(b),Article 23(1)(b),
If the investor or the enterprise, respectively, has alleged that breach in proceedings before a court or administrative tribunal of the Republic of Peru or has submitted that claim to any other binding dispute settlement proceedings.
3 . For greater certainty, if an investor of Canada elects to submit:
(a) A claim described in paragraph 1 to a court or administrative tribunal of the Republic of Peru, orparagraph 1 to a court or administrative tribunal of the Republic of Peru, or
(b) A claim described in paragraph 2 to a court or administrative tribunal of the Republic of Peru or to any other binding dispute settlement proceedings,paragraph 2 to a court or administrative tribunal of the Republic of Peru or to any other binding dispute settlement proceedings,
That election shall be definitive and the investor may not thereafter submit the same claim to arbitration under Section C.
Attachments
1 . The application for leave to file a non-disputing party submission shall:
(a) Be made in writing, dated and signed by the person filing the application, and include the address and other contact details of the applicant;
(b) Be no longer than 5 typed pages;
(c) Describe the applicant, including, where relevant, its membership and legal status (e.g., company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that directly or indirectly controls the applicant);e.g., company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that directly or indirectly controls the applicant);
(d) Disclose whether the applicant has any affiliation, direct or indirect, with any disputing party;
(e) Identify any government, person or organization that has provided any financial or other assistance in preparing the submission;
(f) Specify the nature of the interest that the applicant has in the arbitration;
(g) Identify the specific issues of fact or law in the arbitration that the applicant has addressed in its written submission;
(h) Explain, by reference to the factors specified in Article 39(4), why the Tribunal should accept the submission; andArticle 39(4), why the Tribunal should accept the submission; and
(i) Be made in a language of the arbitration.
2 . The submission filed by a non-disputing party shall: