(b) assume jurisdiction, hear and decide one or more claims, the determination of which it considers would contribute to the resolution of the others; or
(c) instruct a previously established tribunal under Article 19 to assume jurisdiction and to hear and decide jointly on all or part of the claims provided that:
(i) that court, at the request of any plaintiff who has not previously been a disputing party to that court, is reinstated with its original members, unless the arbitrators are named by the claimants under paragraphs 4 and 5; and
(ii) that court decides whether to repeat any prior hearing.
7. Where a tribunal has been established under this Article, a claimant who has submitted a claim to arbitration under Article 17.1 and whose name is not mentioned in a request made under paragraph 2 may make a written request to the tribunal that the claimant is included in any order made under paragraph 6, and shall specify in the request:
(a) the name and address of the claimant;
(b) the nature of the requested accumulation order; and
(c) the grounds on which the application is based.
The complainant shall deliver a copy of his application to the Secretary-General.
8. The tribunal established under this Article shall direct the proceedings in accordance with the provisions of the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A tribunal established under Article 18 shall not have jurisdiction to settle a claim, or part thereof, in respect of which a tribunal established or instructed in accordance with this Article has assumed jurisdiction.
10. At the request of a disputing party, a tribunal established in accordance with this Article may, pending its decision under paragraph 6, order that proceedings of a tribunal established under Article 20 be deferred, unless the latter Court has suspended its proceedings.
Article 27. Awards
1. Where a court makes a final award that is unfavourable to the defendant, the court may award, separately or in combination, only:
(a) pecuniary damages and interest thereon; and
(b) restitution of property, in which case the award will provide that the defendant may pay pecuniary damages, plus interest that proceeds instead of restitution.
The court may award attorneys' fees and costs in accordance with this Section and with applicable arbitration rules.
2. Subject to paragraph 1, when a claim under Article 17.1 (b) is submitted to arbitration:
(a) the award that provides for the restitution of property shall provide that restitution be granted to the company;
(b) the award that grants pecuniary damage and interest that proceeds, shall provide that the sum of money be paid to the company; and
(c) the award shall provide that it is issued without prejudice to any right that any person has on the repair under the applicable domestic law.
3. A court may not order a disputing party to pay punitive damages.
4. The award rendered by a court shall be binding only on the disputing parties and only on the specific case.
5. Subject to paragraph 6 and the review procedure applicable to a provisional award, the disputing party shall abide by and comply with the award without delay.
6. The disputing party may not request the execution of the final award until:
(a) in the case of a final award rendered in accordance with the ICSID Convention:
(i) one hundred and twenty (120) days have passed since the date on which the award was rendered and no disputing party has requested a review or annulment thereof; or
(ii) have completed the review or annulment proceedings; and
(b) in the case of a final award rendered in accordance with the ICSID Additional Facility Rules, UNCITRAL Arbitration Rules and standards chosen pursuant to Article 17.3 (d):
(i) ninety (90) days have elapsed since the date on which the award was rendered and no disputing party has commenced a proceeding to review, revoke or annul it; or
(ii) a court has dismissed or admitted a request for review, revocation or annulment of the award and this ruling can not be appealed.
7. Each Party shall provide for the due enforcement of an award within its territory without delay.
8. If the defendant breaches or fails to abide by a final award, once a petition has been submitted by the non-disputing Party, a court shall be established under Article 3 of Schedule F. Notwithstanding other remedies available under the applicable rules of International law, the requesting Party may request in such proceedings:
(a) a determination that non-compliance or non-compliance with the final award is inconsistent with the obligations of this Agreement; or
(b) a recommendation that the respondent comply with or abide by the final award.
9. A disputing party may resort to the enforcement of an arbitral award in accordance with the ICSID Convention or the New York Convention, whether or not the proceedings referred to in the preceding paragraph have been initiated.
10. For the purposes of Article 1 of the New York Convention, the claim submitted to arbitration under this Section shall be deemed to arise from a trade relationship or transaction.
Article 28. Submission of Documents
The delivery of the notification and other documents to a Party shall be made at the place designated by the Party in Annex E.
Article 29. Transparency
1. Each Party shall ensure that its laws and regulations relating to any matter covered by this Agreement are published without delay and, where possible, electronically.
2. To the extent possible, each Party shall:
(a) publish in advance the measures referred to in paragraph 1 that it proposes to adopt; and
(b) provide the persons concerned and the other Party with a reasonable opportunity to comment on the proposed measures.
3. At the request of the other Party, a Party shall provide information and promptly respond, through the contact points, with questions regarding any existing or planned measures that the requesting Party considers to be likely to materially affect the operation of this Agreement or Otherwise substantially affect its interests under this Agreement, without prejudice to whether the requesting Party has been notified in advance of such action.
4. For the purposes of this Article, the following points of contact are designated:
(a) in the case of Chile, the Department of Services, Investments and Air Transport of the General Directorate of International Economic Relations, Ministry of Foreign Affairs, or its successor; and
(b) in the case of Uruguay, the Commercial Policy Adviser of the General Secretariat Directorate of the Ministry of Economy and Finance, or his successor.
5. Each Party shall maintain, in accordance with its laws and regulations, the confidentiality of the information provided confidentially by the other Party in accordance with this Article.
6. Nothing in this Article shall be construed to require a Party to provide or permit access to information the disclosure of which would prevent law enforcement or would otherwise be contrary to the public interest or would prejudice legitimate business interests of companies Public or private.
Article 30. Security Exceptions
Nothing in this Agreement shall be construed as:
(a) require a Party to provide the disclosure of information which it considers to be contrary to its essential security interests;
(b) prevent a Party from taking any action it deems necessary for the protection of its essential security interests:
(i) relating to fissionable and fissile materials or to those from which they are derived;
(ii) relating to the traffic in arms, ammunition and warlike instruments and to the traffic in other goods and materials of this type, or relating to the provision of services, carried out directly or indirectly for the purpose of supplying or supplying a military establishment; or
(iii) taken in time of war or other emergencies in international relations; or
(c) prevent a Party from taking action in fulfilment of its obligations under the Charter of the United Nations for the maintenance of international peace and security.
Article 31. Measures to Safeguard the Balance of Payments
1. If a Party experiences or threatens serious external balance of payments and financial difficulties, it may adopt or maintain restrictive measures in respect of payments and transfers.
2. Restrictive measures taken or maintained under paragraph 1 shall:
(a) be applied on a non-discriminatory basis;
(b) be applied in accordance with Articles of Agreement (or Agreement) of the International Monetary Fund;
(c) avoid unnecessarily injuring the commercial, economic and financial interests of the other Party;
(d) not to exceed what is necessary to meet the circumstances referred to in paragraph 1; and
(e) be temporary and phase out as the situation referred to in paragraph 1 improves.
3. In determining the impact of such restrictions, the Parties may give priority to those economic sectors which are most necessary for their economic development, but such restrictions shall not be adopted or maintained in order to protect a particular sector.
4. Restrictive measures taken or maintained by a Party under paragraph 1 or modifications thereto may be promptly notified to the other Party.
5. A Party which applies or maintains any restrictive measure in accordance with paragraph 1 shall promptly consult with the other Party in order to review the restrictions adopted or maintained by the other Party.
Article 32. Future Negotiations
1. The Parties understand that no commitments have been made in respect of investors of the other Party and investments of such investors in financial institutions in the territory of the Party.
2. Except as otherwise agreed by the Parties, not later than two (2) years after the entry into force of this Agreement, the Parties shall enter into negotiations to include an Annex to regulate investments in paragraph 1.
Article 33. Settlement of Disputes between States
Disputes arising between the Parties with respect to the interpretation, application or implementation of the provisions contained in this Agreement shall be submitted to the dispute settlement mechanism set out in Annex F.
Article 34. Attachments and Footnotes
The Annexes and footnotes to this Agreement form an integral part of this Agreement.
Article 35. Entry Into Force
1. The entry into force of this Agreement is subject to the completion of the necessary domestic legal procedures of each Party.
2. This Agreement shall enter into force sixty (60) days after the date on which the Parties exchange written notifications indicating that the above procedures have been completed or at such other time as the Parties may agree.
Article 36. Termination
1. Any Party may terminate this Agreement by giving written notice to the other Party. The denunciation of this Agreement shall take effect one hundred and eighty (180) days after the date of said notification.
2. Notwithstanding paragraph 1, with respect to investments made prior to the date on which the denunciation becomes effective, the provisions of this Agreement shall remain in force for a period of ten (10) years Of that date.
Article 37. Accession
1. In compliance with the provisions of the Montevideo Treaty of 1980, this Agreement is open to accession by prior negotiation of the other member countries of the Latin American Integration Association (ALADI).
2. The adhesion will be formalized once its terms have been negotiated between the Parties and the acceding country, by means of the conclusion of an Additional Protocol to this Agreement that will come into force thirty (30) days after being deposited in the General Secretariat of ALADI.
Article 38. Modifications
1. The Parties may agree in writing to modify or add to this Agreement.
2. Amendments and additions agreed upon and approved in advance in accordance with the necessary domestic legal procedures of each Party shall constitute an integral part of this Agreement. Such modifications shall enter into force forty-five (45) days after the date on which the Parties exchange written notifications indicating that the above procedures have been completed or such other period as the Parties may agree.
Conclusion
In witness whereof, the undersigned, being duly authorized by their respective Governments, sign this Agreement in two equally authentic copies, in the city of Montevideo, on the twentieth day of March of the year two thousand and ten.
FOR THE REPUBLIC OF CHILE
FOR THE EASTERN REPUBLIC OF URUGUAY
Attachments
Annex A. Expropriation
The Parties confirm their common understanding that:
1. An act or series of acts of a Party may not constitute an expropriation unless it interferes with a tangible or intangible right of ownership or with the essential attributes or faculties of the domain of an investment.
2. Article 11 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise expropriated directly through the formal transfer of the title or the right of dominion.
3. The second situation addressed by Article 11.1 is indirect expropriation, where an act or a series of acts of a Party have an effect equivalent to that of a direct expropriation without the formal transfer of the title or the right of dominion. For this purpose:
(a) the determination of whether an act or a series of acts of a Party, in a specific situation, constitutes an indirect expropriation, requires a factual investigation, on a case-by-case basis, to consider inter alia:
(i) the economic impact of the governmental act, although the fact that an act or series of acts of a Party has an adverse effect on the economic value of an investment does not, on its own, provide that an indirect expropriation has occurred;
(ii) the extent to which government action interferes with unequivocal and reasonable investment expectations; and
(iii) the nature of government action.
(b) except in exceptional circumstances, non-discriminatory regulatory acts of a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriation.
Annex B. Transfers
Chile
1. Chile reserves the right of the Central Bank of Chile to maintain or adopt measures in accordance with its Constitutional Organic Law (Law 18.840) or other legal norms to ensure the stability of the currency and the normal functioning of internal and external payments The regulation of the amount of money and credit in circulation, the execution of credit operations and international changes, as well as the issuance of standards in monetary financial credit and international changes. These measures include, inter alia, the establishment of requirements that restrict or limit current payments and transfers from or to Chile, as well as transactions related to them, such as establishing that deposits, investments or credits Come or are destined to the outside are subject to the obligation to maintain a reserve.
2. Notwithstanding paragraph 1, the requirement to maintain a reserve in accordance with Article 49 No. 2 of Law 18,840 may not exceed thirty percent (30%) of the amount transferred and may not be imposed for a longer period To two years.
3. In applying the measures under this Annex, Chile, as provided for in its legislation, shall not discriminate between Uruguay and any third country in respect of operations of the same nature.
Annex C. Termination of the bilateral investment treaty
1. Without prejudice to Article 11.3 of the Agreement between the Republic of Chile and the Oriental Republic of Uruguay for the Reciprocal Promotion and Protection of Investments and the provisions of paragraph 2 of this Annex, the Parties agree that the " Agreement between the Republic of Chile and the Oriental Republic of Uruguay for the Reciprocal Promotion and Protection of Investments "and its Protocol, hereinafter" APPI ", signed in Santiago, Chile, on October 26, 1995, will terminate in The date of entry into force of this Agreement, as well as all rights and obligations derived from APPI.
2. Any investment made in accordance with the provisions of the APPI, in a period prior to the entry into force of this Agreement, shall be governed by the rules of that agreement in respect of any act, fact or situation arising during the validity of this Agreement. An investor may only submit a claim to arbitration in accordance with Article 8 of the APPI, for acts, facts or situations originated during the validity of said agreement, in accordance with the rules and procedures established in the APPI and provided that no more than Three (3) years from the date of entry into force of this Agreement.
Annex D. Decree law 600
Chile
1. Decree Law 600 (1974), the Statute of Foreign Investment, is a voluntary and special investment regime for Chile.
2. Alternatively to the ordinary regime of capital inflows to Chile, to invest in Chile, potential investors may request the Foreign Investment Committee to be subject to the regime established by Decree Law 600.
3. The obligations and commitments contained in this Agreement do not apply to Decree Law 600, Foreign Investment Statute, Law 18,657 on Foreign Capital Investment Funds, to the continuation or prompt renewal of such laws and amendments thereto Or any special and / or voluntary investment regime that may be adopted in the future by Chile.
4. For greater certainty, the Foreign Investment Committee of Chile has the right to reject investment requests through Decree Law 600 and Law 18,657. In addition, the Foreign Investment Committee of Chile has the right to regulate the terms and conditions to which foreign investment will be subject that are made according to Decree Law 600 and Law 18,657.
Annex E. Filing of documentation
Chile
The notifications and other documents will be delivered to:
Directorate General of International Economic Relations of the Ministry of Foreign Affairs of the Republic of Chile Teatinos 180 Santiago, Chile
Uruguay
The notifications and other documents will be delivered to:
General Directorate for International Economic Affairs, Mercosur and Integration of the Ministry of Foreign Affairs of the Oriental Republic of Uruguay Colonia 1206 Montevideo, Uruguay
Annex F. Settlement of disputes between the parties
1. Scope
Disputes arising between the Parties with respect to the interpretation, application or implementation of the provisions contained in this Agreement shall be subject to the dispute settlement procedure set forth in this Annex.
2. Direct Negotiations
1. The Parties shall seek to resolve disputes by conducting direct negotiations, which will lead to a mutually satisfactory solution.
2. In order to initiate the procedure, either Party shall request in writing, through diplomatic channels to the other Party, direct negotiations. The request shall include the reasons on which it is based, the identification of the measure in question and the legal basis of the claim.
3. The Party receiving the request for direct negotiations shall respond to the request within ten (10) days after the date of its receipt.
4. The Parties shall exchange the information necessary to facilitate direct negotiations.
5. These negotiations may not be extended for more than thirty (30) days, counted from the date of receipt of the formal request to initiate them, unless the parties agree to extend that term.
6. Direct negotiations under this Article shall be confidential.
7. The Parties shall make every effort to reach a mutually satisfactory resolution of the matter through direct negotiations under this Article.
3. Establishment of Arbitral Tribunals
1. If the Parties fail to resolve the matter within the time limit set forth in Article 2.5, the complaining Party that requested the direct negotiations may request in writing the establishment of an arbitral tribunal.
2. The request for the establishment of an arbitral tribunal shall identify the specific measure in question and the factual and legal grounds of the claim.
3. The arbitral tribunal shall be established and shall perform its functions in accordance with the provisions of this Annex.
4. The date of establishment of the arbitral tribunal shall be the date on which the president is appointed.
4. Terms of Reference of Arbitral Tribunals
Unless the parties otherwise agree within twenty (20) days following the date of receipt of the request for the establishment of the arbitral tribunal, the terms of reference of the arbitral tribunal shall be:
"To examine, in the light of the relevant provisions of this Agreement, the matter indicated in the request for the establishment of an arbitral tribunal under Article 3; Make findings of fact and of law, determining in a sound manner whether or not the measure is in conformity with the Agreement, and issue an award to resolve the dispute. "
5. Composition of Arbitral Tribunals and Selection of Arbitrators
1. The arbitral tribunal shall be composed of three (3) arbitrators.
2. Each Party shall designate, within thirty (30) days following the date of receipt of the request for the establishment of the arbitral tribunal, an arbitrator who may be of its own nationality and shall propose up to three (3) candidates to act as Third arbitrator, who shall be the president of the arbitral tribunal. The third arbitrator may not be a national of any of the Parties, nor have his habitual residence in any of the Parties, nor be dependent on any of the Parties, nor have participated in any way in the dispute.
3. The Parties shall agree and designate the third arbitrator within forty-five (45) days from the date of receipt of the request for the establishment of the arbitral tribunal, taking into consideration the candidates proposed in accordance with paragraph 2.
4. If a Party has not designated an arbitrator in accordance with paragraph 2, or if the Parties fail to agree to appoint the third arbitrator in accordance with paragraph 3, that arbitrator or arbitrators shall be selected by lot by the Secretary-General of ALADI within seven (7) days following the expiration of the established deadlines, among the candidates proposed in accordance with paragraph 2.
5. All arbitrators shall:
(a) have expertise in investment and experience in international law or commerce;