(g) Payments arising out of the settlement of a dispute under Section 2 of Chapter II.
2. Each Contracting Party shall further permit that such transfers may be made without undue delay in freely usable currencies at the market exchange rate prevailing on the date of the transfer.
3. Notwithstanding paragraphs 1 and 2, a Contracting Party may delay or prevent a transfer through the equitable, non-discriminatory and good-faith application of its laws and regulations relating to:
(a) Bankruptcy, insolvency or the protection of the rights of creditors;
(b) Issuing, trading or dealing in securities, futures, options or derivatives;
(c) Criminal or penal offenses;
(d) Reporting or record keeping of transfers of currency or other monetary instruments when necessary to assist law enforcement or financial regulatory authorities; or
(e) Ensuring compliance with orders or judgements in adjudicatory proceedings.
Article 15. General Exceptions
For the purposes of this Agreement, Article XX of the GATT 1994 and Article XIV of the GATS are incorporated into and form part of this Agreement, mutatis mutandis.
Article 16. Security Measures
Subject to Article 12, nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or enforcing measures:
(a) Which it considers necessary for the protection of its essential security interests:
(i) Taken in time of war, armed conflict, or other emergency situations in that Contracting Party or in international relations; or
(ii) Relating to the implementation of national policies or international agreements respecting the non-proliferation of weapons; or
(b) In pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 17. Corporate Social Responsibility
The Contracting Parties reaffirm the importance that each of them encourages enterprises operating within its Area or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognised standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Contracting Party.
Article 18. Temporary Safeguard Measures
1. A Contracting Party may adopt or maintain restrictive measures with regard to cross-border capital transactions as well as payments or transfers including transfers referred to in Article 14 for transactions related to investments:
(a) In the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(b) In exceptional cases where movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular monetary and exchange rate policies.
2. Restrictive measures referred to in paragraph 1 shall:
(a) Be applied in such manner that the other Contracting Party is treated no less favourably than any non-Contracting Party;
(b) Be consistent with the Articles of Agreement of the Intemational Monetary Fund;
(c) Not exceed those necessary to deal with the circurnstances set out in paragraph 1 ;
(d) Be temporary and be phased out progressively as the situation specified in paragraph 1 improves;
(e) Be promptly notified to the other Contracting Party; and
(f) Avoid unnecessary damages to the commercial, economic and financial interests of the other Contracting Party.
Article 19. Taxation Measures
1. Nothing in this Chapter shall impose obligations with respect to taxation measures except as expressly provided in paragraph 3.
(a) Nothing in this Agreement shall affect the rights and obligations of either Contracting Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
3. Articles 4, 5, 8 and 11 shall apply to taxation measures.
4. Article 11 shall apply to taxation measures, except that a claimant that asserts that a taxation measure involves an expropriation may submit an investment dispute to arbitration only if:
(a) The claimant has first referred to the competent authorities (11) of both Contracting Parties in writing the issue of whether that taxation measure involves an expropriation; and
(b) Within 180 days after the date of such referral, the competent authorities of both Contracting Parties fail to agree that the taxation measure is not an expropriation.
Article 20. Prudential Measures
1. Notwithstanding any other provisions of this Agreement, a Contracting Party shall not be prevented from taking measures relating to financial services for prudential reasons, including measures for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by an enterprise supplying financial services, or to ensure the integrity and stability of its financial system.
2. Where the measures taken by a Contracting Party pursuant to paragraph 1 do not conform with this Agreement, they shall not be used as a means of avoiding the obligations of the Contracting Party under this Agreement.
Article 21. Intellectual Property Rights
1. The Contracting Parties, aiming at further promoting investment activities, shall promote adequate and effective protection of intellectual property rights, and efficiency and transparency in intellectual property protection system, in accordance with the TRIPS Agreement and other international agreements to which both Contracting Parties are parties.
2. Nothing in this Agreement shall affect the rights and obligations of the Contracting Parties under multilateral agreements in respect of protection of intellectual property rights to which both Contracting Parties are parties.
3. Nothing in this Agreement shall be construed so as to oblige either Contracting Party to extend to investors of the other Contracting Party and to their investments treatment accorded to investors of a non-Contracting Party and to their investments by virtue of multilateral agreements in respect of protection of intellectual property rights, to which the former Contracting Party is a party.
Article 22. Health, Safety and Environmental Measures and Labour Standards
Each Contracting Party recognises that it is inappropriate to encourage investment by investors of the other Contracting Party and of a non-Contracting Party by relaxing its health, safety or environmental measures, or by lowering its labour standards. To this effect, each Contracting Party should not waive or otherwise derogate from such measures or standards as an encouragement for the establishment, acquisition or expansion of investments in its Area by investors of the other Contracting Party and of a non-Contracting Party.
Article 23. Denial of Benefits
1. A Contracting Party may den y the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of the other Contracting Party and to its investments if the enterprise is owned or controlled by an investor of a non-Contracting Party and the denying Contracting Party:
(a) Does not maintain diplomatic relations with the non-Contracting Party; or
(b) Adopts or maintains measures with respect to the non-Contracting Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investments.
2. A Contracting Party may den y the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of the other Contracting Party and to its investments if the enterprise is owned or controlled by an investor of a non-Contracting Party and the enterprise has no substantial business activities in the Area of the other Contracting Party.
3. For the purpose of this Article, an enterprise is:
(a) "owned" by an investor if more than 50 percent of the equity interest in it is beneficially owned by the investor; and
(b) "controlled" by an investor if the investor has the power to name a majority of its directors or otherwise to legally direct its actions.
Chapter II. Dispute Settlement
Section 1. Settlement of Disputes between the Contracting Parties
Article 24. Settlement of Disputes between the Contracting Parties
1. Each Contracting Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, any representations that the other Contracting Party may make with respect to any matter affecting the implementation of this Agreement.
2. Any dispute between the Contracting Parties as to the interpretation and application of this Agreement, not satisfactorily adjusted by diplomacy, shall be referred for decision to an arbitration board at the request of either Contracting Party. Such arbitration board shall be constituted for each dispute in the following way. Within 60 days from the date of receipt by either Contracting Party from the other Contracting Party of a note requesting arbitration of the dispute, each Contracting Party shall appoint an arbitrator. The two arbitrators shall select a third arbitrator who, upon approval by both Contracting Parties, shall be appointed as the Chairperson, provided that the third arbitrator shall not be a national of either Contracting Party. The Chairperson shall be appointed within 60 days from the date of appointment of the other two arbitrators.
3. If the necessary appointments referred to in paragraph 2 have not been made within the periods referred to in that paragraph, either Contracting Party may, unless otherwise agreed, request the Secretary-General to make such appointments. The arbitration procedure shall be administered by the PCA unless the Contracting Parties agree otherwise.
4. The arbitration board shall apply the UNCITRAL Arbitration Rules, unless the Contracting Parties otherwise agree. The arbitration board shall decide the dispute in accordance with this Agreement and the rules and principles of international law applicable to the subject matter. The arbitration board shall within a reasonable period of time reach its decision by a majority of votes and shall state the reasons upon which it is based. Such decision shall be final and binding.
5. Each Contracting Party shall bear the cost of its representation in the arbitral proceedings. The Contracting Parties shall bear the remaining costs of arbitration in equal proportions, provided that the arbitrator chosen by each Contracting Party did not unnecessarily increase the costs of arbitration.
Section 2. Settlement of Investment Disputes between a Contracting Party and an Investor of the other Contracting Party
Article 25. General Provisions
1. In the event of an investment dispute between the claimant and the respondent, they should initially seek to resolve the dispute through consultations and negotiations, which may include the use of non-binding, third-party procedures. For greater certainty, the initiation of consultations and negotiations shall not be construed as recognition of the jurisdiction of the tribunal.
2. In the event that a disputing party considers that an investment dispute cannot be settled by consultations and negotiations:
(a) The claimant, on its own behalf, may submit to arbitration under this Section a claim:
(i) That the respondent has breached:
(A) An obligation under Chapter I; or
(B) An investment agreement; and
(ii) That the claimant has incurred loss or damage by reason of, or arising out of, that breach; and
(b) The claimant, on behalf of an enterprise of the respondent that is a legal person that the claimant owns or controls directly or indirectly, may submit to arbitration under this Section a claim:
(i) That the respondent has breached:
(A) An obligation under Chapter I; or
(B) An investment agreement; and
(ii) That the enterprise has incurred loss or damage by reason of, or arising out of, that breach;
Provided that a claimant may submit pursuant to subparagraph (a)(i)(B) or (b)(i)(B) a claim for breach of an investment agreement only if the subject matter of the claim and the claimed damages directly relate to the investment of the claimant that was established or acquired in the Area of the respondent in reliance on the relevant investment agreement.
3. At least 90 days before submitting any claim to arbitration under this Section, a claimant shall deliver to the respondent a written notice of its intention to submit the claim to arbitration (hereinafter referred to as "notice of intent"). The notice of intent shall specify:
(a) The name and address of the claimant and, in the case of subparagraph 2(b), the name, address and place of incorporation of the enterprise;
(b) For each claim, the provision of Chapter I or of the investment agreement alleged to have been breached and any other relevant provisions;
(c) The legal and factual basis for each claim; and
(d) The relief sought and the approximate amount of damages claimed.
4. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to in paragraph 2 to the arbitration:
(a) Under the ICSID Convention, provided that both Contracting Parties are parties to the ICSID Convention;
(b) Under the UNCITRAL Arbitration Rules, which shall be administered by the PCA unless otherwise agreed by the disputing parties; or
(c) If the disputing parties agree, under any other arbitration institution or arbitration rules.
5. A claim shall be deemed submitted to arbitration under this Section when the claimant's written notice of or request for arbitration (hereinafter referred to in this Section as "notice of arbitration"):
(a) Referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General (12)
(b) Referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules, is received by the respondent; or
(c) Under any other arbitration institution or arbitration rules selected under subparagraph 4(c) is received by the respondent, unless otherwise specified by such institution or in such rules.
(12) For the purposes of this subparagraph, the term "Secretary-General" means the Secretary-General of the ICSID.
6. Each Contracting Party hereby consents to the submission of a claim to arbitration under this Section in accordance with this Agreement.
7. Notwithstanding paragraph 6, a claimant may not submit to arbitration under this Section an investment dispute with respect to the establishment, acquisition or expansion of its investment.
8. Notwithstanding paragraph 6, no claim may be submitted to arbitration under this Section if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under paragraph 2 and knowledge that the claimant in the case of subparagraph 2(a) or the enterprise referred to in subparagraph 2(b) in the case of that subparagraph has incurred loss or damage.
9. No claim may be submitted to arbitration under this Section unless:
(a) In the case of subparagraph 2(a):
(i) The claimant consents in writing to arbitration in accordance with the procedures set out in this Section; and
(ii) The claimant waives in writing any right to initiate or continue before any administrative tribunal or court of justice under the law of either Contracting Party, or other dispute settlement procedures, any proceedings with respect to any measure alleged to constitute a breach referred to in subparagraph 2(a)(i); and
(b) In the case of subparagraph 2(b ):
(i) Both the claimant and the enterprise referred to in that subparagraph consent in writing to arbitration in accordance with the procedures set out in this Section;
(ii) Both the claimant and the enterprise referred to in that subparagraph waive in writing any right to initiate or continue before any administrative tribunal or court of justice under the law of either Contracting Party, or other dispute settlement procedures, any proceedings with respect to any measure alleged to constitute a breach referred to in subparagraph 2(b )(i).
10 The waiver provided pursuant to subparagraph 9(a)(ii) or 9(b)(ii) shall cease to apply where the tribunal rejects the claim on the basis of any procedural or jurisdictional grounds.
11. Notwithstanding subparagraphs 9(a)(ii) and 9(b )(ii), the claimant or the enterprise referred to in subparagraph 2(b) may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of monetary damages before an administrative tribunal or court of justice under the law of the respondent.
12. The respondent shall deliver to the non-disputing Party:
(a) Notice of arbitration no later than 30 days after the date on which the claim was submitted; and
(b) Copies of all pleadings filed in the arbitration.
13. The non-disputing Party may, upon written notice to the disputing parties, make submissions to the tribunal on a question of interpretation of this Agreement.
14. In an arbitration under this Section, the respondent shall not assert, as a defence, counterclaim, right of setoff or otherwise, that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
15. The tribunal may award only:
(a) A judgement whether or not there has been a breach of any obligation under Chapter I or under an investment agreement referred to in subparagraph 2(a)(i)(B) or 2(b)(i)(B) with respect to the claimant and its investments; and
(b) One or both of the following remedies, only if there has been such a breach:
(i) Monetary damages and applicable interest; and
(ii) 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. The tribunal may also award cost and attorney's fees in accordance with this Section and applicable arbitration rules.
16. For greater certainty, if an investor of a Contracting Party submits a claim to arbitration under subparagraph 2(a), it may recover only for loss or damage that it has incurred in its capacity as an investor of a Contracting Party.
17. The tribunal may not award punitive damages.
18. Subject to paragraph 15, in the case of subparagraph 2(b):
(a) An award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise referred to in that subparagraph; and
(b) An award of restitution of property shall provide that restitution be made to the enterprise referred to in that subparagraph.
19. The respondent may make available to the public in a timely manner all documents, including an award, submitted to, or issued by, the tribunal, subject to redaction of:
(a) Confidential business information;
(b) Information which is privileged or otherwise protected from disclosure under the laws and regulations of either Contracting Party; and
(c) Information which shall be withheld pursuant to the relevant arbitration rules.
20. The disputing parties may agree on the legal place of any arbitration under the arbitration rules applicable under paragraph 4. If the disputing parties fail to reach an agreement, the tribunal shall determine the place in accordance with the applicable arbitration rules, provided that the place shall be in a country that is a party to the New York Convention.
21. A tribunal shall within a reasonable period of time reach its decision by a majority of votes. The award rendered by the tribunal shall state the reasons upon which it is based and. shall be binding upon the disputing parties and only with respect to the particular case.
22. Subject to paragraph 23 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
23 A disputing party shall 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 the 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 UNCITRAL Arbitration Rules or the rules selected pursuant to subparagraph 4( e);
(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.
24. Each Contracting Party shall provide for the enforcement of an award in its Area. The award shall be executed in accordance with the applicable laws and regulations, as well as relevant international law including the ICSID Convention and the New York Convention, concerning the execution of award in force in the country where such execution is sought.
Article 26. Selection of Arbitrators
1. Unless the disputing parties agree otherwise, 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.
2. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
3. If a tribunal has not been constituted within 75 days after the date that a claim is submitted to arbitration under this Section, the Secretary-General, on the request of a disputing party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed. The Secretary-General shall not appoint a national of either Contracting Party as the presiding arbitrator unless the disputing parties agree otherwise.
4. For the purposes of Article 39 of the ICSID Convention and without prejudice to an objection to an arbitrator on grounds other than nationality:
(a) The respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention;
(b) A claimant referred to in subparagraph 2(a) of Article 25 may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention, only on condition that the claimant agrees in writing to the appointment of each individual member of the tribunal; and
(c) A claimant referred to in subparagraph 2(b) of Article 25 may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention, only on condition that the claimant and the enterprise referred to in the same subparagraph agree in writing to the appointment of each individual member of the tribunal.
5. In the appointment of arbitrators to a tribunal for claims submitted under subparagraph 2(a)(i)(B) or 2(b)(i)(B) of Article 25, each disputing party shall take into account the expertise or relevant experience of particular candidates with respect to the relevant governing law. In case where the Secretary-General makes an appointment under paragraph 3, the Secretary-General shall also take into account the expertise or relevant experience of particular candidates with respect to the relevant governing law.
6. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence.
7. Unless the disputing parties agree otherwise, the disputing party that proposed the challenge may, if the other disputing party has not expressed its consent to the challenge or the challenged arbitrator fails to resign within 15 days after the date of written notice of such challenge, request the Secretary-General to make a founded decision on the challenge after affording the challenged arbitrator and the disputing parties an opportunity to submit their comments.
Article 27. Conduct of Arbitration
1. After consultation with the disputing parties, the tribunal may accept and consider written amicus curiae submissions regarding a matter of fact or law within the scope of the dispute that may assist the tribunal in evaluating the submissions and arguments of the disputing parties from a person or entity that is not a disputing party but has a significant interest in the arbitral proceedings. Each submission shall identify the author; disclose any affiliation, direct or indirect, with any disputing party; and identify any person, government or other entity that has provided, or will provide, any financial or other assistance in the preparation of the submission. Each submission shall be in a language of the arbitration and comply with any page limits and deadlines set by the tribunal. The tribunal shall provide the disputing parties with an opportunity to respond to such submissions. The tribunal shall ensure that the submissions do not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party.
2. Without prejudice to a tribunal 's authority to address as preliminary questions other objections, such as an objection that a dispute is not within the tribunal's competence, including an objection to the tribunal's jurisdiction, a tribunal shall address and decide as a preliminary question any objection by the respondent 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 25 or that a claim is manifestly without legal merit.
(a) An objection under this paragraph shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its countermemorial or, in the case of an amendment to the notice of arbitration, the date the tribunal fixes for the respondent to submit its response to the amendment.
(b) On receipt of an objection under this paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds therefor.
(c) In deciding an objection under this paragraph that a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 25, the tribunal shall assume to be true the claimant's factual allegations in support of any claim in the notice of arbitration (or any amendment thereof) and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in the relevant article of the UNCITRAL Arbitration Rules. The tribunal may also consider any relevant facts not in dispute.