3. Within 60 days of receiving the request, the Secretary-General of ICSID shall establish an Arbitral Tribunal composed of three arbitrators. The Secretary-General of ICSID shall appoint one member who is a national of the respondent Party, one member who is a national of the Party of the investors that submitted the claims, and a presiding arbitrator who is not a national of a Party.
4. An Arbitral Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by this Section.
5. If an Arbitral Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 24 (Submission of a Claim to Arbitration) have a question of law or fact in common, the Arbitral Tribunal may, in the interest of fair and efficient resolution of the claims and after hearing the respondent Party and the investors that submitted the claims, by order:
a. assume jurisdiction over, and hear and determine together, all or part of the claims; or
b. assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in resolving the other claims.
6. Where an Arbitral Tribunal has been established under this Article, an investor that has submitted a claim to arbitration under Article 24 (Submission of a Claim to Arbitration) and that has not been named in a request made under paragraph 1 may make a written request to the Arbitral Tribunal that it be included in an order made under paragraph 5, and shall specify in the request:
a. the name and address of the investor;
b. the nature of the order sought; and
c. the grounds for the order is sought.
7. An investor referred to in paragraph 6 shall deliver a copy of its request to the disputing parties named in a request under paragraph 1.
8. An Arbitral Tribunal established under Article 24 (Submission of a Claim to Arbitration) does not have jurisdiction to decide a claim, or a part of a claim, over which an Arbitral Tribunal established under this Article has assumed jurisdiction.
9. On application of a disputing party, an Arbitral Tribunal established under this Article, pending its decision under paragraph 5, may order that the proceedings of an Arbitral Tribunal established under Article 24 (Submission of a Claim to Arbitration) be stayed unless the latter Arbitral Tribunal has already adjourned its proceedings.
Article 29. Documents to, and Participation of, the other Party
1. The respondent Party shall deliver to the other Party a copy of the notice of intent to submit a claim to arbitration and other documents within 30 days of the date those documents have been delivered to the respondent Party. The other Party is entitled, at its cost, to receive from the respondent Party a copy of the evidence that has been tendered to the Arbitral Tribunal, copies of pleadings filed in the arbitration, and the written argument of the disputing parties. The Party receiving such information shall treat the information as if it were a respondent Party.
2. The other Party has the right to attend hearings held under this Section. Upon written notice to the disputing parties, the other Party may make submissions to an Arbitral Tribunal on questions of interpretation of this Agreement.
Article 30. Place of Arbitration
The disputing parties may agree on the place of arbitration under the arbitral rules applicable under Article 24(1) (Submission of a Claim to Arbitration) or 28(4) (Consolidation). If the disputing parties fail to agree, the Arbitral Tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a Party or of a third State that is a party to the New York Convention.
Article 31. Public Access to Hearings and Documents
1. An Arbitral Tribunal award under this Section shall be publicly available, subject to the redaction of confidential information. All other documents submitted to, or issued by, the Arbitral Tribunal shall be publicly available unless the disputing parties otherwise agree, subject to the redaction of confidential information.
2. Hearings held under this Section shall be open to the public. The Arbitral Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information.
3. A disputing party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in those documents.
4. The Parties may share with officials of their respective national and sub-national governments all relevant unredacted documents in the course of dispute settlement under this Section, but they shall ensure that those persons protect the confidential information in those documents.
5. If an Arbitral Tribunal's 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 prevails. However, the Party should try to apply its law on access to information so as to protect information that the Arbitral Tribunal's order has designated as confidential.
Article 32. Submissions by a Non-disputing Party
An Arbitral Tribunal has the authority to consider and accept written submissions from a person or entity that is not a disputing party with a significant interest in the arbitration. The Arbitral Tribunal shall ensure that a non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice a disputing party.
Article 33. Governing Law
1. An Arbitral Tribunal established under this Sectionshall 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 an Arbitral Tribunal established under this Section, and an award under this Section must be consistent with that interpretation.
2. Where a respondent Party 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 17(1) (Reservations and Exceptions), or Annex I or Annex II, on request of the respondent Party, the Arbitral Tribunal shall request the joint interpretation of the Parties on the issue. Within 60 days of the delivery of the request, the Partiesshall submit in writing their joint interpretation to the Arbitral Tribunal. The joint interpretation is binding on the Arbitral Tribunal. If the Parties fail to submit their joint interpretation within 60 days of the Arbitral Tribunal's request, the Arbitral Tribunal shall decide the issue.
Article 34. Expert Reports
1. Subject to paragraph 2, an Arbitral 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 Arbitral Tribunal may not appoint an expert under paragraph 1 if the disputing parties agree that the Arbitral 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 35. Interim Measures of Protection and Final Award
1. An Arbitral Tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the Arbitral 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 Arbitral Tribunal's jurisdiction. An Arbitral Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 21 (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 an Arbitral Tribunal makes a final award against the respondent Party, the Arbitral 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 Arbitral Tribunal may also award costs in accordance with the applicable arbitration rules.
3. Subject to paragraph 2, where a claim is made under Article 21(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 domestic law.
4. An Arbitral Tribunal may not order the respondent Party to pay punitive damages.
Article 36. Finality and Enforcement of an Award
1. An award made by an Arbitral 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,thedisputing parties shall abide by and comply with an award without delay.
3. 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, provided that a disputing party has not requested the award be revised or annulled, or
ii. revision or annulment proceedings have been completed; and
b. in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
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.
4. Each Party shall provide for the enforcement of an award in its territory.
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 37. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a respondent Partymay 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. State-to-state Dispute Settlement Procedures
Article 38. 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 diplomatic 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 third State 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 to make the necessary appointments. If the President is a national of a Party or is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of a Party or is otherwise prevented from discharging this function,
The Member of the International Court of Justice next in seniority, who is not a national of a Party, shall be invited to make the necessary appointments.
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.
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), 18(2) or 18(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. Within 60 days of the decision of an arbitral panel, the Parties shall agree on the manner in which to resolve their dispute. The agreement must normally implement the decision of the arbitral panel. If the Parties fail to agree, the Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel.
Section E. Final Provisions
Article 39. 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 agree, including making and adopting rules supplementing the applicable arbitral rules under Section C (Settlement of Disputes between an Investor and the Host Party) of this Agreement.
Article 40. Extent of Obligations
Each Party shall ensure that it takes all necessary measures to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by its sub-national governments.
Article 41. Exclusions
Sections C (Settlement of Disputes between an Investor and the Host Party) and D (State-to-State Dispute Settlement Procedures) of this Agreement do not apply to the matters set out in Annex III.
Article 42. Application and Entry Into Force
1. All Annexes are an integral part of this Agreement.
2. Each Party shall notify the other in writing of the completion of the procedures required in its territory 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 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 41 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 authorised by their respective governments, have signed this Agreement.
DONE in two originals at, this day of 2015, in the
English and French languages, each version being equally authentic.
For Canada
For the Republic of Guinea
Attachments
Annex B.10. Expropriation
The Parties confirm their shared understanding that:
1. 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;
2. 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:
1. 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 have an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred,
2. the extent to which the measure or the series of measures interferes with distinct, reasonable investment-backed expectations, and
3. the character of the measure or the series of measures;
3. 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.
Attachments
Annex I. Reservations for future measures
Schedule of Canada
In accordance with Article 17(2) (Reservation and Exceptions) of this Agreement, Canada reserves the right to adopt or maintain any measure that does not conform to the obligations set out belowwith respect to the following sectors or matters:
- 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 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
- The rights or preferences provided to aboriginal peoples, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 5 (Most-Favoured-Nation Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
- The rights or preferences provided to socially or economically disadvantaged minorities, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
- Residency requirements for ownership of oceanfront land, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement;
- Government securities (i.e. acquisition, sale or other disposition by nationals 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 (National Treatment) of this Agreement;
- Maritime cabotage where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 5 (Most-Favoured-Nation Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement. "maritime cabotage" means (a) the transportation of either goods or passengers by ship between points in the territory of Canada or above the continental shelf of Canada, 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 territory 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 non-living natural resources of the continental shelf of Canada;
- 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 (National Treatment) or Article 5 (Most-Favoured-Nation Treatment) of this Agreement;
- Telecommunications services, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement 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
- 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 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement, on condition that the measure is consistent with Canada's obligations under Articles II, XVI, XVII and XVIII of the WTO General Agreement on Trade in Services.
Annex II. Exceptions from most-favoured-nation treatment
1. Article 5 (Most-Favoured-Nation Treatment) does 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 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Party under an existing or future bilateral or multilateral agreement:
a. establishing, strengthening or expanding a free trade area or customs union; or
b. relating to:
i. aviation,
ii. fisheries, or
iii. maritime matters, including salvage.
Annex III. Exclusions from dispute settlement
A decision by Canada following a review under the Investment Canada Act, with respect to whether or not to permit aninvestment 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 (State-to-State Dispute Settlement Procedures) of this Agreement.