Article 28. Place of Arbitration
The disputing parties may agree on the place of arbitration under the arbitration rules applicable under Article 23(1) (Submission of a Claim to Arbitration) or 26(4) (Consolidation). If the disputing parties fail to agree, the Tribunal shall determine the place in accordance with the applicable arbitration rules, provided that the place shall be in the area of a Party or in the area of a non-Party that is a party to the New York Convention.
Article 29. Transparency of Proceedings
1. The UNCTIRAL Transparency Rules shall apply in connection with proceedings under this Section except as modified by this Agreement.
2. Subject to Article 7 of the UNCITRAL Transparency Rules:
(a) the notice of intent and the decision on arbitrator challenge shall be included in the list of documents referred to in Article 3(1) of the UNCITRAL Transparency Rules; and
(b) exhibits shall be included in the list of documents referred to in Article 3(2) of the UNCITRAL Transparency Rules.
3. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, prior to the constitution of the Tribunal, the respondent Party shall make publicly available in a timely manner relevant documents pursuant to paragraph 2, subject to the redaction of confidential information. Such documentation may be made publicly available by communication to the repository referred to in Article 8 of the UNCITRAL Transparency Rules.
4. A disputing party may disclose to other persons in connection with the arbitral proceedings, including witnesses and experts, such unredacted documents as it considers necessary in the course of proceedings under this Section. However, the disputing party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
5. A Party may share with government officials and sub-national government officials, if applicable, such unredacted documents as it considers necessary in the course of proceedings under this Section. However, such Party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
6. To the extent that a Tribunal's confidentiality order designates information as confidential and a Party's law on access to information requires public access to that information, the Party's law on access to information shall prevail. However, a Party shall endeavour to apply its law on access to information so as to protect information designated confidential by the Tribunal.
Article 30. Governing Law
1. A Tribunal constituted under this Section shall decide the issues in dispute consistently with this Agreement and applicable rules of international law. A joint interpretation by the Parties of a provision of this Agreement shall bind a Tribunal constituted under this Section, and an award under this Section must be consistent with that interpretation.
2. On the request of a respondent Party that asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in Article 16(1) (Reservations and Exceptions), or Annex II or Annex III, the Tribunal shall request the joint interpretation of the Parties on the issue. Within 60 days of the delivery of the request, the Parties shall submit in writing their joint interpretation to the Tribunal. The joint interpretation is binding on the Tribunal. If the Parties fail to submit their joint interpretation within 60 days of the Tribunal's request, the Tribunal shall decide the issue.
Article 31. Expert Reports
1. Subject to paragraph 2, a Tribunal may appoint an expert to report to it in writing on a factual issue concerning environmental, health, safety or other scientific matter raised by a disputing party, subject to such terms and conditions as the disputing parties may decide.
2. The Tribunal may not appoint an expert under paragraph 1 if the disputing parties agree that the Tribunal may not do so.
3. Paragraph 1 does not affect the appointment of other kinds of experts where the appointment is authorized by the applicable arbitration rules.
Article 32. Interim Measures of Protection and Final Award
1. A Tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal's jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 20 (Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise). For the purposes of this paragraph, an order includes a recommendation.
2. Where a Tribunal makes a final award against the respondent Party, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent Party may pay monetary damages and any applicable interest in lieu of restitution.
The Tribunal may also award costs in accordance with the applicable arbitration rules.
3. Subject to paragraph 2, where a claim is made under Article 20(2) (Claim by an Investor of a Party on its Own Behalf or on Behalf of an Enterprise):
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise;
(b) an award of restitution of property shall provide that restitution be made to the enterprise; and
(c) the award shall provide that it is made without prejudice to a right that a person may have in monetary damages or property awarded under paragraphs (a) or (b) under a Party's law.
4. A Tribunal may not order the respondent Party to pay punitive damages.
Article 33. Finality and Enforcement of an Award
1. An award made by a Tribunal has no binding force except between the disputing parties and in respect of that particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party may not seek enforcement of a final award until:
(a) 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
(b) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its area.
5. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 34. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a respondent Party may not assert as a defence, counterclaim, right of setoff, or otherwise that the investor has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Section D. Settlement of Disputes between the Parties
Article 35. Settlement of Disputes between the Parties
1. A Party may request consultations on the interpretation or application of this Agreement. The other Party shall give sympathetic consideration to the request. A dispute between the Parties concerning the interpretation or application of this Agreement shall, whenever possible, be settled amicably through consultations.
2. If a dispute cannot be settled through consultations, it shall, at the request of a Party, be submitted to an arbitral panel for decision.
3. An arbitral panel shall be constituted for each dispute. Within two months after receipt through formal channels of the request for arbitration, each Party shall appoint one member to the arbitral panel. The two members shall then select a national of a State which can be regarded as neutral in relation to the dispute who, upon approval by the two Parties, shall be appointed Chair of the arbitral panel. The Chair shall be appointed within two months from the date of appointment of the other two members of the arbitral panel.
4. If within the periods specified in paragraph 3 the necessary appointments have not been made, a Party may invite the President of the International Court of Justice, in a personal and individual capacity, to make the necessary appointments. If the President is a national of a State which cannot be regarded as neutral in relation to the dispute, or is otherwise prevented from discharging the said function, the Vice-President or the next most senior Member who is not disqualified on that ground or otherwise prevented from discharging the said function, shall make the appointment.
5. Arbitrators shall have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent of, and not be affiliated with or take instructions from, a Party.instructions from, a Party.
6. Where a Party determines that the dispute involves measures relating to financial institutions, or to investors or investments of such investors in financial institutions, or where a Party invokes Article 11(6) (Transfers), 17(2) or 17(3) (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 5, have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
7. The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. The decision is binding on both Parties. Unless otherwise agreed, the decision of the arbitral panel shall be rendered within six months of the appointment of the Chair.
8. Each Party shall bear the costs of its own member of the arbitral panel and of its representation in the arbitral proceedings. The costs related to the Chair and any remaining costs shall be borne equally by the Parties. The arbitral panel may, however, award that a higher proportion of costs be borne by one of the two Parties, and this award shall be binding on both Parties.
9. The Parties may submit requests for clarification of the decision within thirty days after it is received and the arbitral panel shall endeavour to issue such clarification within thirty days of such request.
10. Within 60 days of the decision of an arbitral panel or the issuance of a clarification of such decision, the Parties shall jointly decide on the manner in which to resolve their dispute. That decision must normally implement the decision of the arbitral panel. If the Parties fail to reach a decision, the Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the arbitral panel.
Section E. Final Provisions
Article 36. Consultations and other Actions
1. A Party may request in writing consultations with the other Party regarding an actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
2. The consultations under paragraph 1 may address, inter alia, matters relating to:
(a) the implementation of this Agreement; or
(b) the interpretation or application of this Agreement.
3. Further to consultations under this Article, the Parties may take an action as they may jointly decide, including making and adopting rules supplementing the applicable arbitration rules under Section C (Settlement of Disputes between an Investor and the Host Party).
Article 37. Exclusions
Sections C (Settlement of Disputes between an Investor and the Host Party) and D (Settlement of Disputes between the Parties) shall not apply to the matters set out in Annex IV.
Article 38. Application and Entry Into Force
1. All Annexes are an integral part of this Agreement.
2. Each Party shall notify the other Party in writing of the completion of the procedures required in its area for the entry into force of this Agreement. This Agreement enters into force on the date of the later of these notifications.
3. This Agreement may be amended by mutual written consent of the Parties. All amendments enter into force in the same manner as stated in paragraph 2.
4. This Agreement shall remain in force unless a Party notifies the other Party in writing of its intention to terminate it. The termination of this Agreement will be effective one year after notice of termination has been received by the other Party. In respect of investments or commitments to invest made prior to the date when the termination of this Agreement becomes effective,
Articles 1 to 37 inclusive, as well as paragraphs 1 and 2 of this Article, shall remain in force for a period of 15 years.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorized thereto by their respective Governments, have signed this Agreement.
DONE in two originals at on this day of 2016, in the English, French and Chinese languages, each version being equally authentic.
FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA
Attachments
Annex I . Expropriation
The Parties confirm their shared understanding that:
(a) indirect expropriation results from a measure or a series of measures of a Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
(b) the determination of whether a measure or a series of measures of a Party constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the measure or the series of measures, although the sole fact that a measure or a series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred,
(ii) the extent to which the measure or the series of measures interferes with distinct, reasonable investment-backed expectations, and
(iii) the character of the measure or the series of measures;
(c) except in rare circumstances, such as when a measure or a series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, a non-discriminatory measure of a Party that is designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, does not constitute indirect expropriation.
Annex II . Reservations for Future Measures
Schedule of Canada
In accordance with Article 16(2) (Reservations and Exceptions), Canada reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:
(a) social services (i.e. public law enforcement; correctional services; income security or insurance; social security or insurance; social welfare; public education; public training; health and child care), where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel);
(b) the rights or preferences provided to aboriginal peoples, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements);
(c) the rights or preferences provided to socially or economically disadvantaged minorities, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements);
(d) residency requirements for ownership of oceanfront land, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors);
(e) government securities (i.e. acquisition, sale or other disposition by natural persons of the other Party of bonds, treasury bills or other kinds of debt securities issued by the Government of Canada, a province or local government), where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors);
(f) maritime cabotage, which means (a) the transportation of either goods or passengers by ship between points in the area of Canada or above the continental shelf of Canada, either directly or by way of a place outside Canada; but with respect to waters above the continental shelf of Canada, the transportation of either goods or passengers only in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; and (b) the engaging by ship in any other marine activity of a commercial nature in the area of Canada and, with respect to waters above the continental shelf, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or nonliving natural resources of the continental shelf of Canada; where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements);
(g) licensing fishing or fishing related activities, including entry of foreign fishing vessels to Canada's exclusive economic zone, territorial sea, internal waters or ports and use of any services therein, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors) or Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors);
(h) telecommunications services, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) by limiting foreign investment in facilities-based telecommunications service suppliers, requiring that such service suppliers be controlled in fact by a Canadian, requiring that at least 80 percent of the members of the board of directors of such suppliers be Canadian, and imposing cumulative foreign investment level restrictions; and
(i) the establishment or acquisition in Canada of an investment in the services sector, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements), provided that the measure is consistent with Canada's obligations under Articles II, XVI, XVII and XVIII of the General Agreement on Trade in Services, contained in Annex 1B to the WTO Agreement.
Schedule of the Hong Kong Special Administrative Region
In accordance with Article 16(2) (Reservations and Exceptions), the Hong Kong Special Administrative Region reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:
(a) the acquisition or ownership of land and properties in the Hong Kong Special Administrative Region, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors);
(b) (i) public law enforcement, ambulance services, correctional services, and
(ii) fire-fighting and rescue services, and health, education, housing, training, transport, public utilities (i.e. supply of water, electricity and gas), social security and social welfare, to the extent that they are social services established for a public purpose,
Where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 5 (Non discriminatory Treatment as Compared with a Non-Party's Investors), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements);
(c) the acquisition, sale or other disposition by natural persons of the other Party of bonds, treasury bills or other kinds of debt securities issued by the Government of the Hong Kong Special Administrative Region, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors); and
(d) the establishment or acquisition in the Hong Kong Special Administrative Region of an investment in services sectors, where the measure does not conform with the obligations imposed by Article 4 (Non-discriminatory Treatment as Compared with a Party's Own Investors), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements), provided that the measure is consistent with the Hong Kong Special Administrative Region's obligations under Articles II, XVI, XVII and XVIII of the General Agreement on Trade in Services, contained in Annex 1B to the WTO Agreement.
Annex III . Exceptions from Non-discriminatory Treatment as Compared with a Non-Party’s Investors
1. Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors) shall not apply to treatment accorded by a Party under a bilateral or multilateral international agreement in force or signed prior to 1 January 1994.
2. Article 5 (Non-discriminatory Treatment as Compared with a Non-Party's Investors) shall not apply to treatment accorded by a Party under an existing or future bilateral or multilateral agreement or arrangement:
(a) establishing, strengthening or expanding a free trade area, a customs union, a common market, an economic union or a similar institution; or
(b) relating to:
(i) aviation,
(ii) fisheries, or
(iii) maritime matters, including salvage.
Annex IV . Exclusions from Dispute Settlement
A decision by Canada following a review under the Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.), with respect to whether or not to permit an investment that is subject to review, is not subject to the dispute settlement provisions under Sections C (Settlement of Disputes between an Investor and the Host Party) or D (Settlement of Disputes between the Parties).