4. If the fair market value is denominated in a currency that is not freely usable, the indemnity paid - converted into the currency of payment at the exchange rate prevailing in the market on the date of payment - shall not be less than:
(a) the fair market value at the date of the expropriation converted into a freely usable currency at the exchange rate prevailing on the market at that date; plus
(b) interest, at a commercially reasonable rate for that freely usable currency, accumulated from the date of expropriation to the date of payment.
5. This Article does not apply to the delivery of compulsory licenses or to the revocation or limitation or creation of intellectual property rights, to the extent that such revocation or limitation or creation is compatible with the TRIPS Agreement or other agreement on Intellectual property rights of which they are both Parties.
Article 12. Special Formalities and Information Requirements
1. Nothing in Article 3 shall be construed to prevent a Party from adopting or maintaining a measure which prescribes special formalities in connection with a covered investment such as a requirement that investors be residents of the Party or that covered investments be constituted pursuant to the laws or regulations of the Party, provided that such formalities do not significantly impair the protections afforded by a Party to an investor of the other Party and to covered investments pursuant to this Agreement.
2. Notwithstanding the provisions of Articles 3 and 4, a Party may require an investor of the other Party or a covered investment to provide information relating to such investment solely for informational or statistical purposes. The Party shall protect from any disclosure information that is confidential, which could adversely affect the competitive situation of the investor or the covered investment. Nothing in this paragraph shall be construed as an impediment for a Party to obtain or disclose information concerning the equitable and good faith application of its domestic law.
Article 13. Denial of Benefits
Subject to notice and prior consultation, a Party may deny the benefits of this Agreement to an investor of the other Party and to that investor's investments if the investor is a company:
(a) owned or controlled by persons of a non-Party or by an investor of the Party denying the benefits; and
(b) has no substantial business activities in the territory of the other Party.
Article 14. Investment and Environment
Nothing in this Agreement shall be construed as an impediment for a Party to adopt, maintain or enforce any measure consistent with this Agreement which it deems appropriate to ensure that investment activities in its territory are carried out taking into account its environmental powers.
Article 15. Taxation
1. Except as provided in this Article, nothing in this Agreement shall impose obligations with respect to tax measures.
2. Nothing in this Agreement shall affect the rights and obligations of any Party deriving from any tax convention. In the event of any inconsistency between this Agreement and any of these Conventions, the provisions of such agreement shall prevail to the extent of the inconsistency. In the case of a tax agreement concluded between the Parties, the competent agreement, shall be solely responsible for determining whether there is any inconsistency between this Agreement and that agreement.
3. Article 11 shall apply to all taxation measures except that a claimant claiming that a tax measure involves an expropriation may file a claim for arbitration under Section B only if:
(a) the claimant has first referred in writing to the competent tax authorities of both Parties the question of whether such tax measure involves expropriation; and
(b) within one hundred and eighty (180) days after such referral, the competent tax authorities of both Parties do not agree that the tax measure is not an expropriation.
4. For the purposes of this Article:
(a) "competent tax authorities" means:
(i) with respect to Chile, the Director of the Internal Revenue Service; Y
(ii) with respect to Uruguay, the Director of the Tax Adviser of the General Secretariat Directorate of the Ministry of Economy and Finance; Y
(b) "tax agreement" means an agreement, or any other international tax agreement to avoid double taxation.
Section B. Investor-state Dispute Settlement
Article 16. Consultations and Negotiations
1. In the event of a dispute concerning an investment, the plaintiff and the respondent must first try to settle the dispute through consultations and negotiations, which may include the use of non-binding third party procedures. Such consultations should be initiated by a written request for consultation, sent by the complainant to the respondent.
2. The disputing parties shall endeavour to begin consultations within 60 days of the respondent's receipt of the request for consultations unless otherwise agreed by the disputing parties.
3. In order to resolve a dispute concerning an investment through consultations, the claimant shall make every reasonable effort to provide the respondent, prior to the commencement of the consultations, with information concerning the factual and legal grounds of the dispute. The aforementioned controversy.
4. For greater certainty, the initiation of consultations and negotiations should not be considered as an acknowledgement of the court's jurisdiction.
Article 17. Submission of a Claim to Arbitration
1. If a dispute concerning an investment has not been settled within six (6) months following the receipt by the respondent of the request for consultations:
(a) the claimant, in his own name, may submit to arbitration a claim, in accordance with this Section, alleging:
(i) that the defendant has violated an obligation under Section A; and
(ii) that the plaintiff has suffered losses or damages by virtue of or as a result of said breach;
(b) the claimant, on behalf of an enterprise of the defendant that is a legal person owned by the plaintiff or under its direct or indirect control, may, in accordance with this Section, submit to arbitration a claim alleging:
(i) that the defendant has violated an obligation under Section A; and
(ii) that the company has suffered losses or damages by virtue of said violation
Or as a result of this.
2. At least ninety (90) days before a claim is submitted to arbitration under this Section, the claimant shall deliver to the defendant written notice of his intention to submit the claim to arbitration ("notice of intent"). The notification shall specify:
(a) the name and address of the claimant and, where the claim is submitted on behalf of an undertaking, the name, address and place of incorporation of the undertaking;
(b) for each claim, the provision of this Agreement alleged to have been breached and any other relevant provision;
(c) the issues of fact and law on which each claim is based; and
(d) the repair requested and the approximate amount of damages claimed.
3. The claimant may submit the claim referred to in paragraph 1:
(a) in accordance with the ICSID Convention, provided that both the non-disputing and the respondent are parties to the ICSID Convention;
(b) in accordance with the ICSID Additional Facility Rules, provided that the non-disputing Party or the respondent, but not both, are parties to the ICSID Convention;
(c) in accordance with the UNCITRAL Arbitration Rules; or
(d) if the disputing parties so agree, to any other arbitration institution or in accordance with any other arbitration regulation.
4. A claim shall be deemed to be submitted to arbitration under this Section when the notice or request for arbitration ("notice of arbitration"):
(a) referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) referred to in Article 2 of Annex C of the ICSID Supplementary Mechanism Rules is received by the Secretary-General;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the writ of claim referred to in Article 18 of the UNCITRAL Arbitration Rules, is received by the defendant; or
(d) to which any arbitral institution or any other arbitration rules chosen pursuant to paragraph 3 (d) refer, is received by the respondent.
5. The arbitration rules applicable in accordance with paragraph 3, and which are in force on the date the claim or claims have been submitted to arbitration under this Section, shall govern the arbitration except to the extent that it is modified by this arbitration Agreement.
6. The claimant shall deliver in the notice of arbitration referred to in paragraph 4:
(a) the name of the arbitrator appointed by the complainant; or
(b) the plaintiff's written consent for the Secretary-General to name the plaintiff's arbitrator.
Article 18. Consent of Each Party to Arbitration
1. Each Party consents to submit a claim to arbitration under this Section and in accordance with this Agreement.
2. The consent referred to in paragraph 1 and the submission of the claim to arbitration under this Section shall comply with the requirements indicated in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Center) and the Rules of the ICSID Additional Facility for the written consent of the parties to the dispute; or
(b) Article II of the New York Convention for a "written agreement".
Article 19. Conditions and Limitations on the Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than three (3) years have elapsed from the date on which the claimant had or should have been aware of the alleged violation, in accordance with Article 17.1 and on the knowledge that the claimant (for claims under Article 17.1 (a)), or the company (for claims under Article 17.1 (b)) suffered loss or damage.
2. No claim may be submitted to arbitration under this Section unless:
(a) the complainant consents in writing to submit to arbitration, in accordance with the procedures set forth in this Agreement; and
(b) the notice of arbitration is attached:
(i) the complainant's written waiver, for claims submitted to arbitration under Article 17.1 (a),
(ii) the written resignations of the claimant and the company, for claims submitted to arbitration under Article 17.1 (b);
of any right to initiate before a court, tribunal or administrative tribunal subject to the law of any Party, or other dispute settlement procedures, any action with respect to measures alleged to constitute a breach under Article 17.1.
3. No claim may be submitted to arbitration if the claimant, under Article 17.1(a) or 17.1(b), has alleged a breach of an obligation under Section A in a proceeding before a court, tribunal, or administrative tribunal of a Party, or in any other binding dispute settlement proceeding. For greater certainty, if an investor chooses to file a claim for type described above before a court of law, tribunal or administrative proceeding of a Party, or in another dispute settlement disputes, that choice will be final and the investor may not subsequently submit the claim to arbitration under with this Section.
4. Notwithstanding paragraph 2(b), the claimant (for claims Article 17.1(a)) and the claimant or the company (for claims brought under Article 17.1(b)) may initiate or continue an action in which the application of interim relief, and not involving payment of damages monetary matters before a court of law, tribunal or administrative tribunal of the defendant, provided that the action is brought solely for the purpose of preserve the rights and interests of the claimant or the company as long as the arbitration is pending.
Article 20. Selection of Arbitrators
1. Unless the disputing parties otherwise agree, the tribunal shall consist of three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties, and who must be a national of a third country.
2. The arbitrators shall have expertise in investment and experience in public international law or international trade, and be independent and not be bound or instructed by either Party or the claimant.
3. Where a tribunal does not form part of a period of seventy-five (75) days from the date on which the claim is submitted to arbitration, the Secretary-General, in accordance with this Section and at the request of a disputing party, shall designate, At its discretion, the arbitrator or arbitrators who have not yet been appointed. The Secretary-General may not designate a national of any of the Parties as an arbitrator unless the disputing parties so agree.
4. For the purposes of Article 39 of the ICSID Convention and Article 7 of Annex C of the ICSID Additional Facility Rules and without prejudice to objecting to an arbitrator for reasons beyond nationality:
(a) the defendant accepts the appointment of each member of the tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) the claimant referred to in Article 17.1 (a) may submit a claim under this Section to arbitration only on the condition that the claimant gives written consent to the appointment of each member of the tribunal; and
(c) the claimant referred to in Article 17.1 (b) may submit a claim to arbitration under this Section only on the condition that the claimant and the enterprise express their written consent to the designation of each of the Members of the court.
5. The disputing parties may establish rules regarding the expenses incurred by the court, including the remuneration of the arbitrators.
6. Without prejudice to paragraph 5:
(a) the costs of arbitration shall be borne in equal parts by the disputing parties, unless the tribunal decides otherwise; and
(b) the current ICSID rate for arbitrators shall apply.
7. When an arbitrator appointed under this Section waives, dies, is refused or becomes unable to serve as such, even without the consent of the court of which he was a member, a successor shall be appointed in the same manner as for appointment of the Original arbitrator and shall have all authority and obligations as the original arbitrator.
Article 21. Conduct of Arbitration
1. The disputing parties may agree on the legal seat in which any arbitration is to be held in accordance with the applicable arbitration rules in accordance with Article 17.3 (b), (c) or (d). In the absence of agreement between the disputing parties, the tribunal shall determine that place in accordance with the applicable arbitration rules, provided that the place is in the territory of a State which is a party to the New York Convention.
2. Unless the disputing parties agree otherwise, Spanish must be the official language to be used in all arbitration proceedings, including all hearings, submissions, decisions and awards.
3. After consultation with the disputing parties, the court may allow a person or entity that is not a disputing party to make written submissions of amicus curiae in connection with a matter within the scope of the dispute. In determining whether or not to accept such submissions, the court shall consider, inter alia, the extent to which:
(a) the presentation of amicus curiae assists the court in determining a fact or law related to the proceeding by providing a perspective, particular knowledge or reasoning different from that of the disputing parties;
(b) the presentation of amicus curiae refers to an issue within the scope of the dispute;
(c) the holder of the amicus curiae filing is identified and any party, government, person or organization other than the holder of the presentation who has provided or will provide any financial or other assistance in the preparation of the presentation; and
(d) the amicus curiae has a relevant interest in the proceeding.
The court shall ensure that the filing of an amicus curiae shall not disrupt the proceedings or unduly encumber or injure any disputing party. The court shall ensure that the disputing parties are given an opportunity to present their observations to the amicus curiae submissions.
4. A court shall hear and decide as a preliminary question any objection of the respondent that the claim filed has no legal merit, without prejudice to the faculty of the court to hear other objections as preliminary issues, such as an objection that the dispute is not found Within the jurisdiction or jurisdiction of the court. For this purpose:
(a) the objection shall be submitted to the court as soon as possible after its constitution, and in no case after the date fixed by the court for the respondent to submit his response to the application (or in the case of a change of The notice of arbitration referred to in Article 17.4, the date that the court determines for the respondent to submit its response to the amendment);
(b) at the time of receipt of an objection under this paragraph, the court shall suspend any action on the merits of the litigation, establish a timetable for consideration of the objection that will be compatible with any schedule that has been established for consideration Of any other preliminary question, and shall issue a decision or award on said objection, stating the grounds thereof;
(c) when deciding on an objection under this paragraph, the court
Shall assume as factual the factual arguments presented by the claimant in support of any claim included in the notice of arbitration (or any modification thereof) and, in disputes submitted under the UNCITRAL Arbitration Rules, As referred to in Article 18 of the UNCITRAL Arbitration Rules. The court may also consider any other material fact that is not the subject of controversy; Y
(d) the defendant does not waive any objection to the jurisdiction or jurisdiction of the court or any substantive argument, simply because it has made an objection under this paragraph or makes use of the expedited procedure established in the following paragraph.
5. In the event that the defendant so requests within forty-five (45) days following the constitution of the court, the court shall decide, on an expedited basis, on an objection in accordance with paragraph 4 or any other Objection that the dispute is not within the jurisdiction or jurisdiction of the court. The court shall suspend any action on the merits of the litigation, and shall issue, not later than one hundred and fifty (150) days after the date of the request, a decision or award on said objection (s), stating the bases of these. However, if a disputing party requests a hearing, the court may take thirty (30) additional days to issue the decision or award. Regardless of whether a hearing has been requested, the court may, by demonstrating an extraordinary reason, delay the issuance of its decision or award for a brief additional period of time, which may not exceed thirty (30) days.
6. Where the court decides on a respondent's objection under paragraphs 4 or 5, it may, if warranted, grant the winning disputing party costs and reasonable attorneys' fees incurred in filing the objection or To oppose it. In determining whether such award is warranted, the court shall consider whether the plaintiff's claim or the respondent's objections were frivolous, and shall afford the disputing parties reasonable opportunity to submit their comments.
7. The defendant may not claim as a defence, counterclaim or any other claim that the claimant has received or will receive compensation or other compensation for all or part of the alleged damages, under an insurance or guarantee contract.
8. The court may order an interim measure of protection to preserve the rights of a disputing party, or for the purpose of ensuring or protecting the full exercise of jurisdiction or jurisdiction of the court, including an order to preserve evidence Held by or under the control of a disputing party. The court may not order the attachment or prevent the application of a measure that is considered a violation referred to in Article 17. For the purposes of this paragraph, the order includes a recommendation.
9. At the request of any of the disputing parties, the court, before issuing the award of liability, shall communicate its proposed award to the disputing parties and to the non-disputing party. Within a period of sixty (60) days from the announcement of the said proposal of an award, only the disputing parties may submit written comments to the court in relation to any aspect of its proposal of the award. The tribunal shall consider such comments and render its award no later than forty-five (45) days after the expiration of the sixty (60) day period for comment.
10. Upon written notice to the disputing parties, the non-disputing Party may make a submission to the tribunal on any question of interpretation of this Agreement.
11. The non-disputing Party receiving confidential information under Article 22.1 shall treat the information as if it were a disputing party.
Article 22. Transparency of Arbitration Proceedings
1. In accordance with paragraphs 2 and 4, the respondent shall, upon receipt of the following documents, promptly transmit them to the non-disputing Party and make them available to the public at their cost:
(a) the notification of intent referred to in Article 17.2;
(b) the notice of arbitration referred to in Article 17.4; and
(c) awards, preliminary objections and precautionary measures.
2. The tribunal shall conduct open hearings to the public and shall determine, in consultation with the disputing parties, the relevant logistical arrangements. However, any disputing party intending to use information classified as confidential business information or privileged information or otherwise protected from disclosure in accordance with the law of a Party shall, at a hearing, inform the court. The court will make appropriate arrangements to protect disclosure information, including closing the hearing during any discussion of confidential information.
3. Nothing in this Section requires the respondent to disclose information that impedes law enforcement or insider information or otherwise is protected from disclosure in accordance with the law of a Party or that provides or permits access To information which it may retain in accordance with Article 30.
4. Information that is designated as confidential information shall be limited to any sensitive factual information that is not available to the public.
5. Confidential commercial information or privileged information or otherwise protected from disclosure in accordance with the law of a Party shall, if such information is presented to the court, be protected from disclosure in accordance with the following procedures:
(a) subject to subparagraph (d), neither the disputing parties nor the court shall disclose to the non-disputing Party or to the public any confidential business information or privileged information or otherwise protected from disclosure under the law of a Party, where the disputing party providing the information so clearly designates it in accordance with subparagraph (b);
(b) any disputing party claiming that certain information constitutes confidential business information or privileged information or is otherwise protected from disclosure in accordance with the law of a Party shall clearly designate it at the time of its submission to the court;
(c) a disputing party shall at the same time present a document containing information alleged to be confidential business information or privileged information or otherwise protected from disclosure in accordance with the law of a Party, submit an edited version Of the document that does not contain the information. Only the edited version shall be made available to the public and in accordance with paragraph 1; and
(d) the court shall rule on any objection in relation to the designation of information determined as confidential business information or privileged information or otherwise protected from disclosure in accordance with the law of a Party. If the court determines that such information was not properly designated, the disputing party submitting the information may:
(i) withdraw all or part of the presentation containing such information; or
(ii) agree to re-submit full and drafted documents with designations corrected in accordance with the court's determination and sub-paragraph (c).
In any event, the other disputing party shall, as appropriate, resubmit complete and redacted documents, either by omitting or redesignating the information withdrawn in accordance with sub-paragraph (d) (i) and sub-paragraph (d) (ii)) Respectively, of the disputing party who first submitted the information.
6. A disputing party may disclose to other persons related to the arbitral procedure such confidential documents as it deems necessary for the preparation of the case, but will require that any confidential information contained in these documents be protected.
7. Nothing in this Section shall authorize the respondent to deny access to the public to information that, according to its law, must be disclosed.
Article 23. Applicable Law
1. Subject to paragraph 2, where a claim is made in accordance with Article 17.1 (a) or Article 17.1 (b), the tribunal shall decide the issues in dispute in accordance with this Agreement and the applicable rules of international law.
2. A joint decision by the Parties in which they declare their interpretation of a provision of this Agreement shall be binding on the court and any decision or award rendered by a court shall be consistent with that joint decision.
Article 24. Interpretation of Annexes
1. Where the defendant submits as a defense that the measure alleged to be in breach is within the scope of a non-conforming measure set out in Annexes I, II or III, the court shall, at the request of the defendant, request the interpretation of The Parties on the matter. The Parties shall submit to the court in writing a joint decision to include their interpretation, within sixty (60) days of delivery of the request.
2. The decision issued by the Parties under paragraph 1 shall be binding upon the court and any award shall be consistent with that joint decision. If the Parties do not issue such a decision within a period of sixty (60) days, the court shall decide on the matter.
Article 25. Expert Reports
Without prejudice to the designation of other experts when authorized by the applicable arbitration rules, the tribunal may, at the request of a disputing party or on its own initiative, unless the disputing parties do not accept it, may designate one or more experts to Inform in writing any questions of fact relating to environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, in accordance with such terms and conditions as the disputing parties agree.
Article 26. Consolidations of Procedures
1. In cases where two or more separate claims under Article 17.1 have been submitted to arbitration and the claims raise a question of fact or law in common and arise from the same facts or circumstances, any disputing party may treat to obtain an order of consolidation in accordance with the agreement of all the disputing parties in respect of which the order of consolidation is sought or with the terms of paragraphs 2 to 10.
2. The disputing party intending to obtain a consolidation order in accordance with this Article shall deliver a written request to the Secretary-General and to all the disputing parties in respect of which the consolidation order is sought and shall specify in that request the following:
(a) the name and address of all disputing parties in respect of which the order of consolidation is sought;
(b) the nature of the requested consolidation order; and
(c) the basis on which the application is supported.
3. Unless the Secretary-General determines, within thirty (30) days of receipt of a request pursuant to paragraph 2, that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Subject to paragraph 5, unless all the disputing parties in respect of which the arrest warrant is sought agree otherwise, the court established pursuant to this Article shall be composed of three (3) arbitrators:
(a) an arbitrator appointed by mutual agreement of the claimants;
(b) an arbitrator appointed by the defendant; and
(c) the presiding arbitrator appointed by the Secretary-General, considering, without
However, the presiding arbitrator shall not be a national of either Party.
5. If, within sixty (60) days of receipt by the Secretary-General of the request made pursuant to paragraph 2, the respondent or the complainants do not appoint an arbitrator under paragraph 4, the Secretary-General, at the request of any disputing party in respect of which the order of consolidation is sought, shall designate the arbitrator or arbitrators who have not yet been appointed. If the Defendant fails to appoint an arbitrator, the arbitrator appointed by the Secretary-General may be a national of the Defendant, and if the Defendants do not designate an arbitrator, the arbitrator appointed by the Secretary-General may be a national of the non-disputing Party.
6. Where a tribunal established under this Article has found that two or more claims under Article 17.1 that raise a question of law or fact in common and arise out of the same events or circumstances have been submitted to arbitration, 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, hear and decide all or part of the claims together;