For greater certainty, the claimant's choice of one forum shall be definitive and exclusive.
3. Notwithstanding paragraph 2(b)(ii), the claimant may initiate an action that seeks interim injunctive relief and does not involve the payment of monetary damages before any court under the law of the respondent, provided that the action is brought for the sole purpose of preserving the claimant's rights and interests during the pendency of the arbitration.
Article 17. Selection of Arbitrators
1. Unless the disputing parties otherwise agree, the tribunal shall comprise 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 shall be a national of a third country.
2. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
3. Even without the consent of the tribunal that he or she was a member, where any arbitrator appointed as provided for in this Section resigns or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator.
Article 18. Preliminary Objections
1. The respondent may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit or is otherwise outside the jurisdiction or competence of the tribunal or that, as a matter of law, a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 21 (Awards). The respondent shall specify as precisely as possible the basis for the objection.
2. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. For this purpose, the tribunal shall suspend any proceedings on the merits. The parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render a decision to that effect.
3. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the parties a reasonable opportunity to comment.
Article 19. Governing Law
1. Subject to paragraph 2 of this Article, an arbitral tribunal established under Article 17 (Selection of Arbitrators) or Article 20 (Consolidation of Claims) shall decide the issues in dispute in accordance with this Agreement, the applicable rules of international law and the law of the respondent (including its rules on the conflict of laws).
2 The Committee may issue an interpretation of a provision of this Agreement. This joint interpretation shall be binding on a tribunal established under this Section, and any award must be consistent with that joint interpretation.
Article 20. Consolidation of Claims
Where two or more investors notify an intention to submit claims to arbitration which have a question of law or fact in common and arise out of the same events or circumstances, the disputing parties shall consult with a view to consolidate the claims, including the procedures to apply and the forum chosen to hear the dispute.
Article 21. Awards
1. Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and/or
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorneys' fees in accordance with this Section and the applicable arbitration rules.
2. A tribunal may not award punitive damages.
3. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
4. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNC1TRAL Arbitration Rules, or the rules selected pursuant to Article 14.3(d):
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
5. Subject to paragraph 4, a disputing party shall abide by and comply with an award without undue delay. Both Parties shall commit themselves to the enforcement of the award.
Section D. Exceptions
Article 22. Essential Security
For the purposes of this Agreement, Article 100 (Essential Security) of the Free Trade Agreement is incorporated into and made part of this Agreement.
Article 23. Taxation
1. For the purposes of this Article, tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement in force between the Parties.
2. Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.
3. Nothing in this Agreement shall affect the rights and obligations of the Parties under any tax convention in force between the Parties. In the event of any inconsistency relating to a taxation measure between this Agreement and such tax convention, the latter shall prevail to the extent of the inconsistency. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
Article 24. Measures to Safeguard the Balance of Payments
1. Where a Party is in serious balance-of-payments and external financial difficulties or threat thereof, it may adopt or maintain restrictive measures with regard to payments and transfers.
2. Restrictions adopted»or maintained under paragraph 1 shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves; and
(e) be applied on a non-discriminatory basis.
3. In determining the incidence of such restrictions, the Parties may give priority to economic sectors which are more essential to their economic development. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular sector.
4. Any restrictions adopted or maintained by a Party under paragraph 1, or any changes therein, shall be promptly notified to the other Party.
5. The Party adopting or maintaining any restrictions under paragraph 1 shall promptly commence consultations with the other Party in order to review the measures adopted or maintained by it.
Section E. Final Provisions
Article 25. Transparency
1. Notwithstanding Article 73 (Publication) of the Free Trade Agreement, each Party shall promptly publish, or otherwise make publicly available, its laws, regulations, procedures and administrative rulings and judicial decisions of general application as well as international agreements which may affect the investments of investors of one Party in the territory of the other Party.
2. Notwithstanding Article 103 (Disclosure of Information) of the Free Trade Agreement, nothing in this Agreement shall require a Party to furnish or allow access to any confidential or proprietary information, including information concerning particular investors of investments, the disclosure of which would impede law enforcement or be contrary to its laws protecting confidentiality or prejudice legitimate commercial interests of particular investor.
Article 26. State-state Dispute Settlement
Chapter X (Dispute Settlement) of the Free Trade Agreement shall apply to this Agreement
Article 27. Committee on Investments
1. The Parties hereby establish a Committee on Investments, comprising representatives of each Party.
2. The Committee shall meet on the request of either Party or the Commission to consider any matter arising under this Agreement.
3. The Committee's functions shall include:
(a) to exchange legal information and investment opportunities;
(b) to review the implementation of this Agreement;
(c) to issue interpretations of any provisions of this Agreement, in accordance with Article 19.2; and
(d) to consider any other issues in connection with this Agreement.
Article 28. Annexes and Footnotes
The annexes and footnotes to this Agreement constitute an integral part of this Agreement.
Article 29. Relation between this Agreement and the Free Trade Agreement
This Agreement and the Annexes and footnotes to this Agreement constitute an integral part of the Free Trade Agreement.
Article 30. Amendments
1. The Parties may agree on any modification or addition to this Agreement.
2. When so agreed, and entered into force according to Article 31 (Entry into Force), any modification or addition shall constitute an integral part of this Agreement.
3. If any provision of the Free Trade Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult on whether to amend this Agreement.
Article 31. Entry Into Force
1. The entry into force of this Agreement is subject to the completion of necessary domestic legal procedures by each Party.
2. This Agreement shall enter into force 60 days after the date of the last written notification by which the parties communicate that such procedures have been completed or after such other period as the Parties may agree.
Article 32. Duration and Termination
1. The Agreement shall remain in force for a period of 5 years.
2. After the expiration of the initial 5-year-period, this Agreement shall continue to be in force until either Party terminates this Agreement at any time thereafter. The termination will be effective 6 months after a written notice of termination has been received by the other Party.
3. With respect to the investment made prior to the date of termination of this Agreement, the Agreement shall continue to be effective for a further period of 10 years from such date of termination.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE in triplicate at Vladivostok, Russian Federation on September ^, 2012 in Chinese, Spanish and English languages. The three texts of this Agreement are equally authentic. In the event of divergence, the English text shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF CHILE
FOR THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
Attachments
ANNEX A. EXPROPRIATION
The Parties confirm their shared understanding that:
1. A measure or a series of measures by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Article 8.1 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 8.1 is indirect expropriation, where a measure or series of measures by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether a measure or series of measures by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the measure, although the fact that a measure or series of measures by a 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 measure interferes with distinct, reasonable investment-backed expectations; and
(iii) the character of the measure.
(b) Except in rare circumstances, non-discriminatory regulatory actions by 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 expropriations.
ANNEX B. TRANSFERS
1. For greater certainty, regarding transfers covered by this Agreement, the Republic of Chile states that in order to ensure currency stability and the normal operation of domestic and foreign payments, the Central Bank of Chile is empowered to maintain or adopt measures in conformity with the Constitutional Organic Law of the Central Bank of Chile (Ley Organica Constitucional del Banco Central de Chile, Law 18.840) or other legislation. For this purpose, the Central Bank of Chile is empowered to regulate the supply of money and credit in circulation and international credit and foreign exchange operations. The Central Bank of Chile is empowered as well to issue regulations governing monetary, credit, financial, and foreign exchange matters. Such measures include, inter alia, the establishment of restrictions or limitations on current payments and transfers (capital movements) to or from Chile, as well as transactions related to them, such as requiring that deposits, investments or credits from or to a foreign country, be subject to a reserve requirement (" encaje ").
2. Notwithstanding paragraph 1, the reserve requirement that the Central Bank of Chile can apply pursuant to Article 49 N° 2 of Law 18.840, shall not exceed 30 percent of the amount transferred and shall not be imposed for a period which exceeds 2 years.
3. When applying measures under this Annex, Chile, as established in its legislation, shall not discriminate between China and any third country with respect to transaction of the same nature.
4. In the case of China, the obligation in Article 9.1 shall apply provided that the transfer shall comply with the relevant formalities stipulated by the present laws and regulations of China relating to exchange control provided that:
(a) these formalities shall not be used as a means of avoiding China's commitments or obligations under this Agreement;
(b) in this respect, China shall accord to investors of Chile treatment no less favourable than it accords to investors of any third country;
(c) the formalities shall be effected within such period as is normally required for the completion of transfer formalities. The said period shall commence on the day on which the relevant request has been submitted to the relevant foreign exchange administration with full and authentic documentation and information and may on no account exceed 60 days; and
(d) transfer formalities relating to an investment shall in no case be made more restrictive than formalities required at the time when the original investment was made.
ANNEX C. PUBLIC DEBT CHILE
The rescheduling of the debts of Chile, or of its appropriate institutions owned or controlled through ownership interests by Chile, owed to the People's Republic of China and the rescheduling of its debts owed to creditors in general are not subject to any provision of Section B (Investment) other than Article 3 (National Treatment) and Article 5 (Most-Favoured-Nation Treatment).
ANNEX D. END OF THE BILATERAL INVESTMENT AGREEMENT
1. Both Parties agree that "Agreement between the Government of the People's Republic of China and the Government of the Republic of Chile concerning the Encouragement and the Reciprocal Protection of Investment", hereinafter referred to as "BIT", done in Santiago on March 23, 1994, shall no longer be in effect upon the entry into force of this Agreement, as well as all the rights and obligations derived from the BIT.
2. Notwithstanding paragraph 1, the BIT shall continue to apply to any investment (as defined in the BIT) which was made before the entry into force of this Agreement with respect to any act, fact that took place or situation that ceased to exist or any dispute or any claim which originated before the entry into force of this Agreement.
3. Notwithstanding paragraph 2, an investor may only submit a claim under Article 9 (Settlement of Disputes between an Investor and a Host State) of the BIT within one year from the date of entry into force of this Agreement.