(b) the written consent of the disputing Party to the appointment of such arbitrator by the Secretary-General.
Article 14.22. CONSENT TO ARBITRATION
1. Each Party consents to submit a claim to arbitration in accordance with the procedures set out in this Section. Failure to comply with any of the conditions precedent listed in Article 14.20 shall nullify such consent.
2. The consent referred to in paragraph 1 and the submission of a claim to arbitration by a disputing investor under this Section shall comply with the requirements of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules, which require the written consent of the parties;
(b) Article Il of the New York Convention, which requires a written agreement; and
(c) Article I of the Inter-American Convention, which requires a written agreement.
Article 14.23. ARBITRATORS
1. Except that the Tribunal established pursuant to Article 14.25 and unless the disputing parties agree otherwise, the Tribunal shall be composed of three arbitrators. One arbitrator shall be appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, shall be appointed by agreement of the disputing parties.
2. The arbitrators shall:
(a) have experience in public international law, international investment rules, or dispute resolution arising from international investment agreements; and
(b) be independent of the disputing parties and not affiliated with or instructed by any of them.
3. If the disputing parties fail to agree on the remuneration of the arbitrators prior to the constitution of the Tribunal, the prevailing ICSID rate for arbitrators shall apply.
4. Ifa Tribunal, other than the Tribunal established pursuant to Article 14.25, has not been constituted within 90 days from the date on which the claim was submitted to arbitration under this Section, the Secretary-General shall, at the request of any disputing party, appoint the arbitrator or arbitrators who have not been appointed. The Secretary-General shall make the appointment at his discretion and, to the extent possible, in consultation with the disputing parties. The Secretary-General may not appoint a national of either party as President of the Tribunal.
Article 14.24. AGREEMENT ON APPOINTMENT OF ARBITRATORS
For the purposes of Article 39 of the ICSID Convention and Article 7 of Annex C of the ICSID Additional Facility Rules, and without prejudice to objecting to an arbitrator on grounds other than citizenship or permanent residence or failure to comply with the requirements set forth in Article 14.23.2:
(a) the disputing Party shall accept the appointment of each of the members of a Tribunal established in accordance with the ICSID Convention or the ICSID Additional Facility Rules;
(b) a disputing investor referred to in Article 14.18 may submit a claim to arbitration or pursue a claim under the ICSID Convention or the ICSID Additional Facility Rules only if the disputing investor consents in writing to the appointment of each member of the Tribunal; and
(c) a disputing investor referred to in Article 14.19 may submit a claim to arbitration, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules only if the disputing investor and the enterprise consent in writing to the appointment of each of the members of the Tribunal.
Article 14.25. ACCUMULATION
1, Where two or more claims have been submitted to arbitration, pursuant to Article 14.18 or 14.19 and the claims raise in common a question of law or fact and arise out of the same facts or circumstances, any disputing party may seek a consolidation order, in accordance with the agreement of all disputing parties in respect of which the consolidation order is sought or in accordance with the terms of paragraphs 2 to 10.
2. A disputing party seeking a consolidation order pursuant to this Article shall deliver a request, in writing, to the Secretary-General and to all disputing parties in respect of which the consolidation order is sought and shall specify in the request the following:
(a) the name and address of all disputing parties in respect of whom the joinder order is sought;
(b) the nature of the requested consolidation order; and (c) the basis on which the request is supported.
3. Unless the Secretary-General determines, within 30 days after receipt of an application under paragraph 2, that the application is manifestly unfounded, a Tribunal shall be established under this Article.
4. Unless otherwise agreed by all the disputing parties in respect of which the consolidation order is sought, the Tribunal to be established pursuant to this Article shall consist of three arbitrators:
(a) an arbitrator appointed by agreement of the disputing investors;
(b) an arbitrator appointed by the disputing Party; and
(c) the presiding arbitrator appointed by the Secretary General, provided, however, that the presiding arbitrator shall not be a national of any of the Parties.
5. If, within 60 days after receipt by the Secretary-General of the request made pursuant to paragraph 2, the disputing Party or the disputing investor fails to appoint an arbitrator pursuant to paragraph 4, the Secretary-General shall, at the request of any disputing party in respect of which the order for consolidation is sought, appoint the arbitrator or arbitrators not yet appointed. If the disputing Party fails to appoint an arbitrator, the Secretary-General shall appoint a national of the disputing Party and, if the disputing investors fail to appoint an arbitrator, the Secretary-General shall appoint a national of the non-disputing Party.
6. In the event that the Tribunal established in accordance with this Article has found that two or more claims have been submitted to arbitration pursuant to Article 14.18 or 14.19, which raise a common question of law or fact, and which arise out of the same facts or circumstances, the Tribunal may, in the interest of reaching a fair and efficient resolution of the claims and after hearing the disputing parties, by order:
(a) assume jurisdiction and jointly hear and determine all or part of the claims;
(b) assume jurisdiction over and hear and determine one or more claims, the determination of which it believes would contribute to the resolution of the other claims; or
(c) to instruct a Tribunal previously established pursuant to Article 14.21 to 14.24 to assume jurisdiction over, and hear and determine jointly, all or part of the claims, provided that:
(i) that Tribunal, at the request of any disputing investor who was not previously a disputing party before that Tribunal, shall be reinstated with its original members, except that the arbitrator for the disputing investor party shall be appointed pursuant to paragraphs 4(a) and 5; and
(ii) that Tribunal shall decide whether to repeat any previous hearing.
7. Where a Tribunal has been established under this Article, a disputing investor who has submitted a claim to arbitration under Article 14.18 or 14.19, and whose name is not mentioned in a request made under paragraph 2, may make a written request to the Tribunal that such claimant be included in any order made under paragraph 6 and shall specify in the request:
(a) the name and address of the disputing investor;
(b) the nature of the order requested; and
(c) the grounds on which the request is based.
The disputing investor shall deliver a copy of its application to the Secretary General.
8. A Tribunal established under this Article shall conduct the proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A Tribunal established under Articles 14.21 to 14.24 shall not have jurisdiction to decide a claim, or part of a claim, in respect of which a Tribunal established or instructed under this Article has assumed jurisdiction.
10. At the request of a disputing party, a Tribunal established under this Article may, pending its decision under paragraph 6, order that the proceedings of a Tribunal established under Articles 14.21 to 14.24 be adjourned, unless the latter Tribunal has already adjourned its proceedings.
Article 14.26. DOCUMENTS SENT TO THE OTHER PARTY AND PARTICIPATION OF THE OTHER PARTY
1. A disputing Party shall deliver to the other Party copies of the notice of Dispute referred to in Article 14.17.1, the notice of its intention to submit a claim to arbitration referred to in Article 14.20.2(d) as well as the proof of its status as an investor referred to in Article 14.20.2(e) and the "Notice of Arbitration" referred to in Article 14.21.6 and other documents within 30 days of the date on which those documents are delivered to the disputing Party. The other Party is entitled to receive, at its own expense, from the disputing Party copies of:
(a) the exhibits and memorials that have been delivered to the Tribunal, copies and any other deliverables that have been submitted pursuant to Article 14.25; and
(b) of all pleadings filed in the arbitration and the written argument of the disputing parties.
The Party receiving such information shall treat it as if it were a disputing Party.
2. The non-disputing Party has the right to attend any hearing held pursuant to this Section. Upon agreement between the disputing Parties, the other Party may make oral or written submissions to a Tribunal on a matter relating to the interpretation of this Agreement.
Article 14.27. PLACE OF ARBITRATION
The disputing parties may agree on the legal place where any arbitration is to be held in accordance with the applicable arbitral rules pursuant to Article 14.2.1. In the absence of agreement between the disputing parties, the tribunal shall determine such place in accordance with the applicable arbitral rules, provided that the place is in the territory of a State that is a party to the New York Convention.
Article 14.28. PRELIMINARY OBJECTIONS
1. The court shall decide preliminary objections on jurisdiction or admissibility before deciding on the merits of the case. For the purposes of this Chapter, verification of the conditions set out in Article 14.13 constitutes a preliminary objection on admissibility.
2. When deciding on the objection of the disputing Party, the tribunal may award costs and expenses of the proceeding, taking into account whether or not the objection was successful.
3. The Tribunal shall consider whether the claim or objection is frivolous, and shall give the disputing parties a reasonable opportunity to comment.
Article 14.29. PUBLIC ACCESS TO HEARINGS AND DOCUMENTS
1. The Parties may agree that the award of a Tribunal established pursuant to this Chapter shall be made available to the public, subject to the deletion of confidential information. Likewise, all other documents submitted to or issued by the Tribunal may be made available to the public, ifthe disputing parties so agree, after deletion of confidential information. (10)
2. The Parties may agree that hearings held under this Chapter shall be open to the public. In any event, the Tribunal may hold closed sessions of hearings to the extent necessary to ensure the protection of confidential information, including business confidential information.
3. A disputing party may disclose to other persons involved in the arbitral proceedings, on its own responsibility, documents whose confidential information has not been redacted, if it considers it necessary for the preparation of its case, but shall ensure that such persons will protect the confidential information contained in such documents.
4. The Parties may share with representatives of their respective national and municipal governments all documents without information deleted in the course of the settlement of a dispute pursuant to this Chapter, but shall ensure that such persons protect the confidential information contained in such documents.
5. To the extent that an order of a Tribunal designates information as confidential and a Party's access to information law requires public access to such information, the Party's access to information law shall prevail. However, a Party shall make efforts to apply its access to information legislation in such a way as to protect information designated as confidential by the Tribunal.
6. Nothing in this Section requires a disputing Party to make public, provide or allow access to information that it is required to withhold pursuant to Article 24.02 (Essential Security) or Article 24.05 (Disclosure of Information).
Article 14.30. SUBMISSIONS BY a PERSON OR ENTITY THAT IS NOT a DISPUTING PARTY
1. A Tribunal has the authority to consider and accept submissions from a person or entity that is not a disputing party with a significant interest in the arbitration. The Tribunal shall ensure that submissions by a person or entity that is not a disputing party do not impede the proceedings and do not unduly burden or unfairly prejudice any disputing party.
2. Any application to the Tribunal to authorize a non-disputing party to file pleadings, and the filing of such pleadings, if authorized by the Tribunal, shall be made in accordance with Exhibit 14-C.
Article 14.31. APPLICABLE LAW
1. A Tribunal established in accordance with this Section shall decide the matters in dispute in accordance with this Agreement and the applicable rules of international law. An interpretation by the Commission of this Agreement is binding on the Tribunal established in accordance with this Section, and any award or other decision subject to this Section shall be consistent with that interpretation.
2. Where a disputing Party asserts as a defense that the allegedly violative measure is within the scope of a Non-Conforming Measure set out in Annex I or II, upon request of the disputing Party, the Tribunal shall request an interpretation of the matter from the Commission. The Commission shall submit its interpretation in writing to the Tribunal within 60 days of the delivery of the request. The interpretation is binding on the Tribunal. If the Commission does not submit its interpretation within 60 days, the Tribunal shall decide on the matter.
Article 14.32. EXPERT REPORTS
Without prejudice to the appointment of other types of experts where authorized by the applicable arbitration rules, the Tribunal, at the request of a disputing party or, unless the disputing parties do not agree, on its own initiative, may appoint one or more experts to report in writing on any factual issue concerning environmental, health, safety, labor, or other scientific matters raised by a disputing party in a proceeding, on such terms and conditions as the disputing parties may agree.
Article 14.33. INTERIM MEASURES OF PROTECTION AND FINAL AWARD
1. A Tribunal may order interim measures of protection to preserve the rights of a disputing party, or to ensure the full effectiveness of the Tribunal's jurisdiction, including the issuance of an order to preserve evidence in the possession or control of a disputing party or to protect the jurisdiction of the Tribunal. A Tribunal may not order the attachment or prohibit the enforcement of the allegedly violative measure referred to in Articles 14.18 and 14.19. For purposes of this paragraph, an order includes a recommendation.
2. When a Tribunal renders a final award unfavorable to the disputing Party, the Tribunal may award only:
(a) monetary damages and any applicable interest; or
(b) restitution of the property, in which case the award shall provide that the disputing Party may pay monetary damages, plus interest, in lieu of restitution.
The Tribunal may also award costs or expenses of the proceeding in accordance with this Section and the applicable arbitration rules.
3. Subject to paragraph 2, if claim is submitted to arbitration under Article 14.19:
(a) the award of pecuniary damages and interest thereon shall provide that the sum of money be paid to the company;
(b) the award providing for restitution of the property shall provide that restitution be granted to the enterprise; and
(c) the award shall provide that the award is without prejudice to any right that any person may have to reparation under national law.
4. A Tribunal may not order a disputing Party to pay punitive damages.
Article 14.34. FINAL AWARD AND ITS ENFORCEMENT
1, An award rendered by a Tribunal has no binding force except between the disputing parties and only with respect to the particular case.
2. Subject to paragraph 3 and the review procedure applicable to an interim award, a disputing party shall abide by and comply with the award without delay.
3. A disputing party may not request enforcement of the final award until:
(a) in the case of a final award rendered under the ICSID Convention:
(i) 120 days have elapsed from the date on which the award was rendered, provided that a disputing party has not requested the revision or annulment of the award; or
(ii) the review or annulment proceedings have been concluded; or
(b) in the case of a final award rendered under the ICSID Additional Facility Rules or the UNCITRAL Apbitration Rules:
(i) 90 days have elapsed since the date on which the award was rendered and no disputing party has commenced proceedings to revise, set aside or annul the award, or
(ii) a Tribunal has dismissed or allowed an application for revision, setting aside or annulment of the award and this decision is not subject to appeal.
4. Each Party shall ensure the proper enforcement of an award in its territory.
5. For the purposes of Article I of the New York Convention, a claim submitted to arbitration under this Chapter shall be deemed to arise out of a commercial relationship or transaction.
6. Where the disputing Party fails to comply with or abide by a final award, upon the delivery of the a request by the Party of the disputing investor, a panel shall be established in accordance with Chapter 21 (Dispute Settlement). The complaining Party may request in such proceedings:
(a) a determination that non-compliance or non-observance of the terms of the final award is contrary to the obligations of this Agreement; and
(b) a recommendation that the respondent abide by or comply with the final award.
7. A disputing investor may seek enforcement of an arbitral award under the ICSID Convention or the New York Convention, whether or not proceedings under paragraph 6 have been instituted.
Article 14.35. PAYMENTS RECEIVED UNDER INSURANCE OR GUARANTEE CONTRACTS
In an arbitration conducted pursuant to this Section, a disputing Party may not assert as a defense, counterclaim, right of set-off or otherwise claim that the disputing investor has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Article 14.36. EXCLUSIONS
The dispute settlement provisions of this Section and Chapter 21 (Dispute Settlement) do not apply to the matters referred to in Annex 14-D.
Section C. DEFINITIONS
Article 14.37. DEFINITIONS
For the purposes of this Chapter:
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on March 18, 1965;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on June 10, 1958;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, concluded in Panama on January 30, 1975;
intellectual property rights means copyrights and related rights, trademark rights, geographical indication rights, industrial design rights, patent rights, integrated circuit layout- design rights, industrial property rights, industrial design rights, patent rights, integrated circuit layout-design rights, intellectual property rights, intellectual property rights and related rights, concerning the protection of undisclosed information, and plant breeders' rights, among others;
company means a company as defined in Article 1.6 (Definitions of General Application) and a branch of that company;
enterprise of a Party means an enterprise or a branch incorporated or organized under the laws of a Party owned or controlled directly by natural or juridical persons of that Party, located in the territory of a Party and carrying on substantial economic activities in that territory;
confidential information means confidential business information or information that is confidential or privileged or otherwise protected from disclosure under the laws of the Party;
investment means (11):
(a) a company;
(b) shares, capital or other form of equity interest in a company;
(c) bonds, debentures or other debt instruments of an enterprise; but does not include debt instruments of a government enterprise;
(d) a loan to a company; but does not include a loan to a state-owned company;
(e) an interest in a company that gives its holder the right to participate in the company's income or profits;
(f) an interest in a company that entitles its holder to a portion of the assets of that company upon dissolution;
(g) commitments of capital, or other resources, in the territory of a Party for an economic activity in that territory, such as those arising from:
(i) a contract involving the presence of an investor's property in the territory of the Party, including a turnkey or construction contract, or a concession; or
(ii) a contract where the remuneration is substantially dependent on the production, revenues or profits of an enterprise;
(h) intellectual property rights; and
(i) any other property right over tangible or intangible assets, real or personal property, and other related property rights acquired with the expectation of obtaining an economic benefit or other commercial purpose, or used for such purpose;
but investment does not mean (12):
(j) a pecuniary claim arising exclusively from:
(i) a commercial contract for the sale of a good or service by a national or an enterprise in the territory of a Party to an enterprise in the territory of the other Party, or
(ii) the extension of credit in comnection with a commercial transaction, such as trade financing, other than a loan under subparagraph (d); or
(k) any other pecuniary claim, which does not involve the types of participations provided for in subparagraphs (a) through (i);
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party existing at the date of entry into force of this Agreement, or investments made or acquired thereafter;
investment of an investor of a Party means an investment owned or controlled directly or indirectly by an investor of that Party;
disputing investor means an investor bringing a claim under Section B of this Chapter;
investor of a Party means a Party or a State enterprise, or a national or an enterprise of a Party, that proposes to make, is making, or has made an investment; for greater certainty, an investor is understood to "propose to make an investment" only when the investor has taken concrete and necessary steps to make such investment, such as when the investor submits or has duly submitted an application for a permit or license authorizing the establishment of an investment and has obtained financing by providing it with the funds necessary to install such investment.
This Chapter shall not apply to investments made by natural persons who are nationals of both Parties. A natural person who is a citizen of one Party and a permanent resident of the other Party shall be considered a national exclusively of the Party of which he is a citizen;
Disputing Party means a Party against which a claim is brought pursuant to Section B of this Chapter;
disputing party means the disputing investor or the disputing Party; 12¥er sreater certainty, investment does not mean: a) an order or judgment obtained by judicial or administrative action; b) a loan granted by one Party to another Party; ¢) public debt operations of a Party or State Enterprise.
Non-disputing Party means the Party that is not a party to an investment dispute under Section B;
ICSID Additional Facility Rules means the Rules under the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law; and
Secretary-General means the Secretary-General of ICSID.
Annex 14-A . PAYMENTS AND CAPITAL MOVEMENTS
Referred to in Article 15.10 (Transfers and Payments) and Article 14.9 (Transfers).
1. Colombia may adopt or maintain measures that are inconsistent with its obligations under Article 15.10 (Transfers and Payments) and Article 14.9, in cases where, due to special circumstances, capital movements generate or threaten to generate serious complications for macroeconomic management, in particular for monetary and related credit or exchange rate policies;
2. The measures indicated in the immediately preceding paragraph:
(a) may not exceed what is necessary to handle the circumstances mentioned in paragraph 1,
(b) will be temporary and should be removed as soon as conditions permit; (c) shall be imposed and enforced in good faith; (d) shall be of a general and non-discriminatory nature; and
(e) will be notified to Panama.