A joint decision of the State Parties, each acting through its representative designated for purposes of this Article, declaring their joint interpretation of a provision of this Agreement, shall be binding on any tribunal, and any decision or award issued by a tribunal must apply and be consistent with that joint decision.
This is a highly recommended provision as it is the only effective safety valve to preclude unintended interpretations being binding on the parties over the longer term. Implementing this provision is a much simpler and more direct process than amending the treaty, making it a very functional process.
Article 31. Governing Law In Dispute Settlement
31.1. When a claim is submitted to a tribunal under this Agreement, it shall be decided in accordance with this Agreement. The governing law for the interpretation of this Agreement shall be this Agreement and the general principles of international law relating to the interpretation of treaties, including the presumption of consistency between international treaties to which the State Parties are party. For matters related to domestic law, the national law of the Host State shall be resorted to as the governing law.
31.2. For greater certainty, paragraph 31.1 does not expand or alter the scope of obligations contained in this Agreement or incorporate other standards except where specifically expressed herein.
The text also limits the role of the governing law clause to the interpretation of the treaty and precludes the addition of new obligations from other parts of international law.
Article 32. Service of Documents
Delivery of Notices and other Documents on a State Party Shall Be Made to the Place Named for ThatState Party In Schedule C.
Part 6. Final Provisions
Article 33. Entry Into Force
This Agreement shall be subject to ratification by the State Parties in accordance with their constitutional procedures. It shall enter into force 60 days after the deposit by the last State Party of its instrument of ratification with the other Party.
Article 34. Period In Force and Termination
34.1. the Agreement Shall Remain In Force for Ten Years Following Its Entry Into Force.
34.2. Option 1 This Agreement shall be renewed for further periods of ten years following the exchange of official instruments between each State Party confirming the renewal of the Agreement. The notices of renewal shall be exchanged prior to the expiration of the Agreement. This Agreement shall expire where no such exchange of instruments is completed prior to the expiration of each ten- year period.
34.2. Option 2: This Agreement shall automatically be renewed for an additional period of ten years, unless either State Party has submitted a Notice of Intent to terminate the Agreement at the expiration of the current ten-year period at least six months prior to the renewal date.
34.3. Either State Party may terminate this Agreement by giving an official notice to the other Party twelve months prior to its intended termination date, notwithstanding any prior renewal of this Agreement.
34.4. The rights of Investors and the State Parties shall continue in force for [five][ten] years following the expiration of the period in force for investments made during the period the Agreement was in force.
The initial period for which the treaty would be in force is ten years. Afterwards, two options are set out. One is a requirement for the Parties to exchange letters of intent to renew the treaty. A failure of either Party to do so means the treaty would then lapse. The second option is the opposite: the treaty renews automatically at the end of ten years for a further ten years, indefinitely, unless either Party notifies the other of its wish to not have the treaty renew itself. There is no legal difference in the end result, but Option 1 requires the positive acts of renewal, while Option 2 requires steps to avoid the automatic renewal. The Drafting Committee felt it was prudent to include both of the options.
In addition, the text provides a mechanism for either Party to terminate the treaty upon 12 months notice to the other Party. This provides an additional safety valve for the Parties in the event of significant difficulties being experienced, significant differences in interpretation or application of the treaty, or other policy reasons a State may have to terminate the treaty. This specific rule would replace general rules under the Vienna Convention.
Finally, it is common for investment treaties to provide for a period of continued application of the treaty in favour of investors of the other State Party made prior to the termination of the treaty. In some instances, treaties have extended this period to between 20 and 30 years. In other instances, the period has been 10 years. The shorter period is adopted here, with an additional option to adopt only a 5-year time period. The Drafting Committee was Unanimously of the view that the time period should be kept at the shorter end.
Article 35. Amendment
This Agreement may be amended by the mutual consent of the State Parties through an exchange of notes or signing of an amendment agreement. An amendment shall enter into force 60 days following the deposit by the last State Party of its instrument of ratification of the amendment with the other Party.
Article 36. Schedules and Notes Part of Treaty
The Schedules and Notes to this Agreement Form an Integral Part of this Agreement.Commentary
Article 37. Authentic Text
The Authentic Text of this Agreement Shall Be In [English][and French][and Portuguese].
SPECIAL NOTE: The following are the suggested schedules, based on the text set out above. The content of each would then be proposed by each negotiating party for itself, and adopted as part of the text by agreement. It is possible that a State may object to some of the proposed inclusions, and this could be subject to negotiation. In practice, many developed States do seek to minimize any such schedules proposed by their developing country negotiating partners, while maximizing the use of them themselves. It is important for negotiators to focus on these details, and for early preparation of these schedules by SADC Member States, in order to achieve a balanced result in the negotiations.
1. SCHEDULE 1 - Excluded/Included Sectors for Investment Liberalization
SCHEDULE 1 - Excluded/Included Sectors for Investment Liberalization, If Applicable
- List of included or excluded sectors, depending on model chosen; and excluded subsectors
- List of excluded non-conforming measures
2. SCHEDULE 2 - Excluded/Included Sectors for Post-Establishment Investor Protections
SCHEDULE 2 - Excluded/Included Sectors for Post-Establishment Investor Protections, If Applicable
- List of excluded sectors (if top-down drafting), or subsectors
- List of excluded non-conforming measures
3. SCHEDULE 3 - List on National Authorities and Contact Points
The Official Contact Point for the purposes of this Agreement shall be: State Party A: State Party B:
The contact points shall be responsible for the exchange of information required under this Agreement.
4. SCHEDULE 4 - Procedure for Amicus Curiae Submissions
1. The person or organization seeking amicus curiae status shall serve the tribunal and all disputing parties with a Petition for leave to file an amicus curiae submission and the planned submission.
2. The Petition for leave to file an amicus curiae submission shall:
(a) be made in writing, dated and signed by the person or organization filing the application, and include the address and other contact details of the Petitioner. Counsel may file and represent the person or organization for this purpose;
(b) be no longer than ten typed pages;
(c) describe the Petitioner, 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);
(d) disclose whether or not the Petitioner 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 Petitioner has in the arbitration;
(g) identify the specific issues of fact or law in the arbitration that the Petitioner has addressed in its written submission;
(h) explain, by reference to the factors specified in paragraph 4 below, why the tribunal should accept the submission; and
(i) be made in a language of the arbitration or the primary language of the disputing State Party.
The submission filed by an amicus curiae shall:
(a) be dated and signed by the person filing the submission;
(b) be concise, and in no case longer than [50][40] typed pages, including any appendices;
(c) set out a precise statement supporting the amicus curiae's position on the issues; and
(d) only address matters within the scope of the dispute.
4. The tribunal shall set an appropriate date for the disputing parties to comment on the Petition for leave to file an amicus curiae submission.
5. In determining whether to grant leave to file an amicus curiae submission, the tribunal shall consider, inter alia, the extent to which:
(a) the amicus curiae submission would assist the tribunal in the determination of a factual or legal issue related to the dispute;
(b) the amicus curiae submission would address a matter within the scope of the dispute;
(c) the amicus curiae has a significant interest in the arbitration; and
(d) there is a public interest in the subject-matter of the arbitration.
6. The tribunal shall ensure that:
(a) any amicus curiae submission does not disrupt the proceedings; and
(b) neither disputing party is unduly burdened or unfairly prejudiced by such submissions.
7. The tribunal shall decide whether to grant leave to file an amicus curiae submission. If leave to file is granted, the tribunal shall set an appropriate date for the disputing parties and the non- disputing State Party to respond in writing to the amicus curiae submission.
8. A tribunal that grants leave to file an amicus curiae submission is not required to address the submission at any point in the arbitration. The tribunal may request any person or organization making a submission to appear before the tribunal to reply to specific issues or questions concerning the submission.
9. Access to hearings and documents by persons or organizations that file petitions under these procedures shall be governed by the provisions pertaining to public access to hearings and documents under this Agreement[, unless otherwise determined by the tribunal after consultations with the disputing parties].
Conclusion
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY