(a) publish in advance any such measure that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on that measure.
3. Upon request by a Party, information is exchanged on any of the measures of the other Party that may have an impact on covered investments.
Article 13. Subrogation
1. If a Party or any agency of a Party makes a payment to any of its investors under a guarantee or a contract of insurance it has entered into in respect of an investment, the other Party shall recognize the validity of the subrogation in favour of the Party or agency to any right or title held by the investor.
2. A Party or any agency of a Party that is subrogated to the rights of an investor in accordance with paragraph 1 is entitled, in all circumstances, to the same rights as the investor in respect of the investment. Those rights may be exercised by the Party or any agency of the Party or by the investor if the Party or its agency authorizes it.
Article 14. Taxation Measures
1. Except as set out in this Article, the provisions of this Agreement do not apply to taxation measures.
2. The provisions of this Agreement do not affect the rights and obligations of the Parties under a tax convention. In the event of an inconsistency between this Agreement and a tax convention, the tax convention applies to the extent of the inconsistency.
3. The provisions of this Agreement do not require a Party to furnish or allow access to information that, if disclosed, would be contrary to the Party's law protecting information concerning the taxation affairs of a taxpayer.
4. Subject to paragraph 2, the provisions of Articles 4 (National Treatment) and 5 (Most Favoured Nation Treatment) apply to all taxation measures, other than those that relate to income, capital gains, or the taxable capital of corporations. However, the provisions of these Articles do not apply to:
(a) a non-conforming provision of any existing taxation measure;
(b) the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
(c) an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity at the time of the amendment with those Articles; or
(d) any new taxation measure that is aimed at ensuring the equitable and effective imposition or collection of taxes (including, for greater certainty, any measure that is taken by a Party to ensure compliance with the Party's taxation system or to prevent the avoidance or evasion of taxes) and that does not arbitrarily discriminate between persons, goods or services of the Parties.
5. If the conditions in paragraph 6 are met:
(a) a claim by an investor that a taxation measure of a Party is in breach of an agreement between a central government authority of a Party and the investor concerning an investment is considered a claim for breach of this Agreement; and
(b) the provisions of Article 10 (Expropriation) apply to taxation measures.
6. An investor may not make a claim under paragraph 5 unless:
(a) the investor provides a copy of the notice of claim to the taxation authorities of the Parties; and
(b) six months after receiving notification of the claim by the investor, the taxation authorities of the Parties fail to reach a joint determination that, in the case of subparagraph 5(a), the measure does not contravene that agreement, or in the case of subparagraph 5(b), the measure in question is not an expropriation.
7. If, in connection with a claim by an investor of a Party or a dispute between the Parties, an issue arises as to whether a measure of a Party is a taxation measure, a Party may refer the issue to the taxation authorities of the Parties. A decision of the taxation authorities shall bind any Tribunal formed pursuant to Section C (Settlement of Disputes between an Investor and the Host Party) or arbitral panel formed pursuant to Section D (State-to-State Dispute Settlement Procedures). A Tribunal or arbitral panel seized of a claim or a dispute in which the issue arises may not proceed until it receives the decision of the taxation authorities. If the taxation authorities have not decided the issue within six months of the referral, the Tribunal or arbitral panel shall decide the issue.
8. Unless otherwise notified by a Party, the taxation authorities referred to in this Article are as follows:
(a) for Canada, the Assistant Deputy Minister, Tax Policy, Department of Finance Canada;
(b) for Mali, the Secretary General of the Ministry of Finance.
Article 15. Health, Safety, Environmental Measures and Corporate Social Responsibility
1. The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety, or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, those measures to encourage the establishment, acquisition, expansion, or retention in its territory of an investment of an investor.
2. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the Parties shall consult with a view to avoiding any such encouragement. During these consultations, the Parties undertake to make best efforts in good faith to resolve any dispute regarding the application of paragraph 1.
3. Each Party should encourage enterprises operating within its territory or subject to its jurisdiction to incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Parties. These principles address issues such as labour, the environment, human rights, community relations, and anti-corruption.
Article 16. Reservations and Exceptions
1. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors and Entry of Personnel) and 9 (Performance Requirements) do not apply to:
(a) (i) any existing and non-conforming measure, maintained in the territory of a Party;
(ii) any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition of a government's equity interests in, or the assets of, an existing State enterprise or an existing governmental entity:
- Prohibits or imposes limitations on the ownership or control of equity interests or assets, or
- Imposes nationality requirements relating to senior management or members of the board of directors;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 4 (National Treatment), 5 (Most-FavouredNation Treatment), 8 (Senior Management, Boards of Directors and Entry of Personnel) and 9 (Performance Requirements).
2. Each Party shall, to the extent possible, set out in its schedule to Annex I any existing non-conforming measures maintained by it at the national level.
This schedule is for information purposes and without prejudice to paragraph 1.
3. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Board of Directors and Entry of Personnel) and 9 (Performance Requirements) do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its schedule to Annex II.
4. Article 5 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Party under agreements as set out in Annex III.
5. In respect of intellectual property rights, a Party may derogate from Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), and 9(2)(c) (Performance Requirements) in a manner that is consistent with:
(a) the TRIPS Agreement;
(b) an amendment to the TRIPS Agreement in force for both Parties; and
(c) a waiver to the TRIPS Agreement granted pursuant to Article IX of the WTO Agreement.
6. The provisions of Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment) and 8 (Senior Management and Board of Directors) of this Agreement do not apply to procurement by a Party of a State enterprise.
7. The provisions of Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment) and 8 (Senior Management and Board of Directors) of this Agreement do not apply to a subsidy or grant provided by a Party or a State enterprise, including a government-supported loan, a guarantee or insurance.
8. The provisions of Article 5 (Most-Favoured-Nation Treatment) of this Agreement do not apply to financial services.
Article 17. General Exceptions
1. Subject to the requirement that measures are not applied in a manner that would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, this Agreement does not prevent a Party from adopting or enforcing measures necessary:
(a) to protect human, animal, or plant life or health;
(b) to ensure compliance with domestic law that are not inconsistent with the provisions of this Agreement; or
(c) to conserve living or non-living exhaustible natural resources.
2. The provisions of this Agreement do not prevent a Party from adopting or maintaining reasonable measures for prudential reasons, such as:
(a) the protection of investors, depositors, financial market participants, policy-holders, policy-claimants, or persons to whom a fiduciary duty is owed by a financial institution;
(b) the maintenance of the safety, soundness, integrity or financial responsibility of financial institutions; and
(c) ensuring the integrity and stability of a Party's financial system.
3. The provisions of this Agreement do not apply to non-discriminatory measures of general application taken by a public entity in pursuit of monetary and related credit or exchange rate policies. This paragraph does not affect a Party's obligations under Article 9 (Performance Requirements) or 11 (Transfers).
4. The provisions of this Agreement do not:
(a) require a Party to furnish or allow access to information if that Party determines that the disclosure of this information would becontrary to its essential security interests;
(b) prevent a Party from taking any actions that it considers necessary to protect its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment;
(ii) taken in time of war or other emergency in international relations; or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
(c) prevent a Party from taking measures to fulfill its obligations under the United Nations Charter to maintain international peace and security.
5. The provisions of this Agreement do not require a Party to furnish or allow access to information that, if disclosed, would impede law enforcement or would be contrary to the Party's law protecting the deliberative and policymaking processes of the executive branch of government at the cabinet level, personal privacy or the confidentiality of the financial affairs and accounts of individual customers of financial institutions.
6. In the course of a dispute settlement procedure under this Agreement:
(a) a Party is not required to furnish or allow access to information protected under its competition law;
(b) a competition authority of a Party is not required to furnish or allow access to information that is privileged or otherwise protected from disclosure.
7. The provisions of this Agreement do not apply to investments in cultural industries. "Cultural industries" means persons engaged in any of the following activities:
(a) the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine-readable form, but not including the sole activity of printing or typesetting any of the foregoing;
(b) the production, distribution, sale or exhibition of film or video recordings;
(c) the production, distribution, sale or exhibition of audio or video music recordings;
(d) the publication, distribution, sale or exhibition of music in print or machine-readable form; or
(e) radiocommunications in which the transmissions are intended for direct reception by the general public, and all radio, television, or cable broadcasting undertakings and all satellite programming and broadcast network services.
8. Any measure adopted by a Party in conformity with a decision adopted, extended, or modified by the World Trade Organization pursuant to Article IX:3 and IX:4 of the WTO Agreement are deemed also to conform with this Agreement. An investor that intends to act pursuant to Section C (Settlement of Disputes between an Investor and the Host Party) of this Agreement cannot claim that the conforming measure breaches this Agreement.
Article 18. Denial of Benefits
1. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of that Party and to investments of that investor if investors of a non-Party own or control the enterprise and the denying Party adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprises or to its investments.
2. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of that Party and to investments of that investors if investors of a non-Party or of the denying Party own or control the enterprise and the enterprise has no substantial business activities in the territory of the Party under whose law it is constituted or organized.
Section C. Settlement of Disputes between an Investor and the Host Party
Article 19. Purpose
Without prejudice to the rights and obligations of the Parties under Section D (State-to-State Dispute Settlement Procedures), this Section establishes a mechanism for the settlement of investment disputes.
Article 20. Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise
1. A disputing investor may submit to arbitration under this Section a claim that:
(a) the respondent Party has breached an obligation under Section B (Substantive Obligations), other than an obligation under Article 8(3) (Senior Management, Boards of Directors and Entry of Personnel), 12 (Transparency), or 15 (Health, Safety, Environmental Measures and Corporate Social Responsibility); and
(b) the disputing investor has incurred loss or damage by reason of, or arising out of, that breach.
2. A disputing investor, on behalf of an enterprise of the respondent Party that is a juridical person that the disputing investor owns or controls directly or indirectly, may submit to arbitration under this Section a claim that:
(a) the respondent Party has breached an obligation under Section B (Substantive Obligations), other than an obligation under Article 8 (3) (Senior Management, Boards of Directors and Entry of Personnel), 12 (Transparency), or 15 (Health, Safety, Environmental Measures, and Corporate Social Responsibility); and
(b) the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
Article 21. Conditions Precedent to Submission of a Claim to Arbitration
1. The disputing parties shall hold consultations in an attempt to settle a claim amicably before a disputing investor may submit a claim to arbitration. Unless the disputing parties agree to otherwise in accordance with paragraph 2(c), consultations shall be held within 60 days of the submission of the notice of intent to submit a claim to arbitration. The place of consultation shall be the capital of the respondent Party, unless the disputing parties otherwise agree.
2. A disputing investor may submit a claim to arbitration under Article 20 (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise) only if:
(a) the disputing investor and, where a claim is made under Article 20(2) (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise), the enterprise consent to arbitration in accordance with the procedures set out in this Agreement;
(b) at least six months have elapsed since the events giving rise to the claim;
(c) the disputing investor has delivered to the respondent Party written notice of its intent to submit a claim to arbitration at least 90 days prior to submitting the claim, which notice shall specify:
(i) the name and address of the disputing investor and, where a claim is made under Article 20(2) (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise), the name and address of the enterprise;
(ii) the provisions of this Agreement alleged to have been breached and any other relevant provisions; o (iii) the legal and factual basis for the claim, including the measures at issue; and
(iv) the relief sought and the approximate amount of damages claimed;
(d) the disputing investor has delivered evidence establishing that it is an investor of the other Party with its notice of intent to submit a claim to arbitration under paragraph 2(c);
(e) in the case of a claim submitted under Article 20(1) (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise):
(i) not more than three years have elapsed from the date on which the disputing investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the disputing investor has incurred loss or damage; and
(ii) the disputing investor and, where the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the disputing investor owns or controls directly or indirectly, the enterprise waive its right to initiate or continue before a court or any administrative tribunal or court of a Party, or other dispute settlement procedures, proceedings with respect to the measure of the respondent Party that is alleged to be a breach referred to in Article 20 (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise), except for a proceeding for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court of the respondent Party;
(f) in the case of a claim submitted under Article 20(2) (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise):
(i) not more than three years have elapsed from the date on which the enterprise first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the enterprise has incurred loss or damage; and
(ii) both the disputing investor and the enterprise waive their right to initiate or continue before an administrative tribunal or court of a Party, or other dispute settlement procedures, proceedings with respect to the measure of the respondent Party that is alleged to be a breach referred to in Article 20 (Claims by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise), except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court of the respondent Party.
3. A consent and waiver required under paragraph 2 is delivered to the respondent Party and is included in the submission of a claim to arbitration. A waiver from the enterprise under paragraph 2(e)(ii) or 2(f)(ii) is not required if a respondent Party has deprived the investor of control of an enterprise.
Article 22. Special Rules Regarding Financial Services
1. With respect to:
a) financial institutions of a Party; and
b) investors of a Party, and investments of those investors, in financial institutions in the other Party's territory;
This Section applies only in respect of claims that the other Party has breached an obligation under Article 10 (Expropriation), 11 (Transfers) or 18 (Denial of Benefits).
2. Where a disputing investor or respondent Party claims that a dispute involves measures adopted or maintained by a Party relating to financial institutions of the other Party or investors of the other Party and their investments in financial institutions in the respondent Party's territory, or where the respondent Party invokes Article 11(6) (Transfers), 17(2), or 17(3) (General Exceptions), the arbitrators, in addition to the criteria set out in Article 25(2) (Arbitrators), must have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
3. Where a disputing investor submits a claim to arbitration under this Section, and the respondent Party invokes Article 11(6) (Transfers), 17(2), or 17(3) (General Exceptions), at the request of that Party, the Tribunal must request a report in writing from the Parties on the issue of whether and to what extent the invoked paragraphs are a valid defence to the claim of the disputing investor. The Tribunal may not proceed pending receipt of a report under this Article.
4. If the Tribunal requests a report under paragraph 3, the Parties shall, under Section D (State-to-State Dispute Settlement Procedures), prepare a written report, either on the basis of agreement following consultations, or by means of an arbitral panel in accordance with Section D (State-to-State Dispute Settlement Procedures). The report shall be transmitted to the Tribunal and be binding on it.
5. The Tribunal may decide the matter where, within 70 days of the referral by the Tribunal, no request for the establishment of a panel pursuant to paragraph 4 has been made and no report has been received by the Tribunal.
Article 23. Submission of a Claim to Arbitration
1. A disputing investor that meets the conditions precedent in Article 21 (Conditions Precedent to Submission of a Claim to Arbitration) may submit the claim to arbitration under:
(a) the ICSID Convention, provided that both the respondent Party and the Party of the disputing investor are parties to the ICSID Convention;
(b) the Additional Facility Rules of ICSID, provided that either the respondent Party or the Party of the disputing investor, but not both, is a party to the ICSID Convention; or
(c) the UNCITRAL Arbitration Rules.
2. The applicable arbitration rules govern the arbitration, except to the extent modified by this Section, and are supplemented by the rules adopted by the Parties.
3. The Parties may adopt supplemental rules of procedure that complement the arbitration rules listed in paragraph 1 and these rules apply to the arbitration. The Parties shall promptly publish the supplemental rules of procedure that they adopt or otherwise make them available in a manner as to enable interested persons to become acquainted with them.
4. A claim is submitted to arbitration under this Section when:
(a) the request for arbitration under Article 36(1) of the ICSID Convention is received by the Secretary-General of ICSID;
(b) the request for arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General of ICSID; or
(c) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the respondent Party.
5. The delivery of notice and other documents on a Party must be made to the following place:
- For Canada, the Deputy Minister of Justice
- For Mali, the General Director of the State Litigation
Article 24. Consent to Arbitration
1. Each Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Agreement. Failure to meet any of the conditions precedent listed in Article 21 (Conditions Precedent to Submission of a Claim to Arbitration) nullifies that consent.
2. The consent given in paragraph 1 and the submission by a disputing investor of a claim to arbitration satisfies the following requirements:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the Additional Facility Rules for written consent of the parties; and
(b) Article II of the New York Convention for an agreement in writing.
Article 25. Arbitrators
1. Except in respect of a Tribunal established under Article 27 (Consolidation), and unless the disputing parties agree otherwise, the Tribunal shall be composed of three arbitrators, one arbitrator will be appointed by each of the disputing parties and the third, who will be the presiding arbitrator, will be appointed by agreement of the disputing parties.
2. Arbitrators shall 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. The arbitrators shall be independent of, and not be affiliated with or take instructions from, either Party or the disputing investor.
3. If the disputing parties do not agree on the remuneration of the arbitrators before the Tribunal is constituted, the prevailing ICSID rate for arbitrators shall apply.
4. If a Tribunal, other than a Tribunal established under Article 27 (Consolidation), has not been constituted within 90 days from the date that a claim is submitted to arbitration, a disputing party may ask the Secretary-General of ICSID to appoint the arbitrator or arbitrators not yet appointed. The Secretary-General of ICSID makes the appointment at the Secretary General's own discretion. The Secretary-General of ICSID may not appoint a national of a Party as presiding arbitrator.
Article 26. Agreement to Appointment of Arbitrators
For purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator based on a ground other than citizenship or permanent residence:
(a) the respondent Party agrees to the appointment of each individual member of a Tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) a disputing investor referred to in Article 20(1) (Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise) may submit a claim to arbitration, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only if the disputing investor agrees in writing to the appointment of each member of the Tribunal; and
(c) a disputing investor referred to in Article 20(2) (Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise) may submit a claim to arbitration, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only if the disputing investor and the enterprise agree in writing to the appointment of each member of the Tribunal.
Article 27. Consolidation
1. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by this Section.
2. If a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 23 (Submission of a Claim to Arbitration) have a question of law or fact in common, 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; or
(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.
3. A disputing party that seeks an order under paragraph 2 shall request that the Secretary-General of ICSID establish a Tribunal and shall specify in the request: