6. A dispute may be submitted to arbitration ninety (90) days after the date on which notice of intent to do so was received by the Contracting Party which is party to the dispute, but no later than three (3) years from the date the investor first acquired or should have acquired knowledge of the events which gave rise to the dispute. Notice of intent shall specify:
(a) the name and address of the disputing investor and the investment;
(b) the provisions of this Agreement alleged to have been breached and any other related provisions;
(c) the issues and the factual basis for the claim; and
(d) the relief sought, including the approximate amount of any damages claimed.
7. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under paragraph 2(b) of this Article. If the disputing parties fail to reach an agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
8. A Contracting Party shall not assert as a defence, counter-claim, right of setoff or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received pursuant to an indemnity, guarantee or insurance contract.
9. The arbitral tribunal, in its award, shall set out its findings of law and fact, together with the reasons for its ruling and may, at the request of a party, provide the following forms of relief:
(a) a declaration that the Contracting Party has failed to comply with its obligations under this Agreement;
(b) pecuniary compensation, which shall include interest from the time the loss or damage was incurred until the payment was made;
(c) restitution in kind in appropriate cases, provided that the Contracting Party may pay pecuniary compensation in lieu thereof where restitution is not practicable; and
(d) with the agreement of the parties to the dispute, any other form of relief.
10. Arbitration awards shall be final and binding upon the parties to the dispute. Each Contracting Party shall, in its territory, make provision for the effective enforcement of awards made pursuant to this Article and shall carry out without delay any such award issued in a proceeding to which it is a party.
Article 12. Application of other Rules
If the laws and regulations of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to this Agreement contain provisions, whether general or specific, entitling investments by investors of the other Contracting Party to a treatment more favourable than is provided for by this Agreement, such provisions shall, to the extent they are more favourable, prevail over this Agreement.
Article 13. Application of the Agreement
1. This Agreement applies to the existing investments at the date of the entry into force of this Agreement, as well as to the investments made or acquired after this date.
2. The Agreement shall not apply to claims arising out of events which occurred, or to claims which had been settled, prior to its entry into force.
Article 14. Denial of Benefits
1. A Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is a juridical person of such other Contracting Party and to investments of such investor if persons of a non-Contracting Party own or control the juridical person and the denying Contracting Party adopts or maintains measures with respect to the non-Contracting Party or a person of the non-Contracting Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Agreement were accorded to the juridical person or its investments.
2. Subject to prior notification and consultation, a Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is a juridical person of such other Contracting Party and to investments of such investor if the juridical person has no substantial business activities in the territory of the other Contracting Party and persons of a non-Contracting Party, or of the denying Contracting Party, own or control the juridical person.
N
Article 15. Security Exception
Nothing in this Agreement shall be construed:
(a) to require a Contracting Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) to prevent a Contracting Party from taking any actions which it considers necessary for the protection of its essential security interests; or
(c) to prevent a Contracting Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 16. Entry Into Force, Duration and Termination
1. This Agreement shall enter into force thirty (30) days after the date on which the Contracting Parties have notified each other in writing that their respective legal requirements for the entry into force of this Agreement have been fulfilled.
2. This Agreement shall remain in force for a period often (10) years and shall remain in force thereafter indefinitely unless either Contracting Party notifies the other Contracting Party in writing one year in advance of its intention to terminate this Agreement.
3. In respect of investments made prior to the termination of this Agreement, the provisions of Articles 1 to 15 of this Agreement shall remain in force for a further period of ten (10) years from the date of the termination.
4. The Agreement may be revised by mutual written consent of the Contracting Parties. Any revision or termination of this Agreement shall be effected without prejudice to any rights or obligations accruing or incurred under this Agreement prior to the effective date of such revision or termination.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their
Done in duplicate at Nay Pyi Taw on 5 ih June 2014, in the Myanmar, Korean and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
For the Government of the Republic of Korea
For the Government of the Republic of the Union of Myanmar
Wunna Maung Lwin Union Minister Ministry of Foreign Affairs
Mr. Yun Byung-se Minister
Ministry of Foreign Affairs
Annex
Expropriation
The Contracting Parties confirm their shared understanding that:
1. An action or a series of actions by a Contracting Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right in an investment.
2. Article 5 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure.
3. The second situation addressed by Article 5 is indirect expropriation, where an action or a series of actions by a Contracting Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or a series of actions by a Contracting Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers all relevant factors relating to the investment, including:
i. the economic impact of the government action, although the fact that an action or a series of actions by a Contracting Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
ii. the extent to which the government action interferes with distinct, reasonable investment-backed expectations; 6 7 and
iii. the character of the government action, including its objectives and context. Relevant considerations could include whether the government action imposes a special sacrifice on the particular investor or investment that exceeds what the investor or investment should be expected to endure for the public interest.
(b) Except in rare circumstances, such as, for example, when an action or a series of actions is extremely severe or disproportionate in light of its purpose or effect, non-discriminatory regulatory actions by a Contracting Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, the environment, and real estate price stabilization (through, for example, measures to improve the housing conditions for low-income households), do not constitute indirect expropriations.
6 For greater certainty, whether an investor's investment-backed expectations are reasonable depends in part on the nature and extent of governmental regulation in the relevant sector. For example, an investor's expectations that regulations will not change are less likely to be reasonable in a heavily regulated sector than in a less heavily regulated sector.
7 For greater certainty, the list of "legitimate public welfare objectives" in subparagraph (b) is not exhaustive.