16. The disputing Party shall deliver to the other Contracting Party:
(a) written notice of the claim submitted to the arbitration no later than thirty days after the date on which the claim was submitted; and
(b) copies of all pleadings filed in the arbitration.
17. The Contracting Party which is not the disputing Party may make submissions to the arbitral tribunal on a question of interpretation of this Agreement, upon written notice to the disputing parties.
18. The arbitral tribunal may order an interim measure of protection to preserve the rights of the disputing investor, or to facilitate the conduct of arbitral proceedings, including an order to preserve evidence in the possession or control of either of the disputing parties. The arbitral tribunal shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in paragraph 1(a) of this Article.
19. The award rendered by the arbitral tribunal shall include:
(a) a judgement whether or not there has been a breach by the disputing Party of any obligation under this Agreement with respect to the disputing investor and its investments; and
(b) a remedy if there has been such breach. The remedy shall be limited to one or both of the following:
(i) payment of monetary damages and applicable interest; and
(ii) restitution of property, in which case the
Award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
Costs may also be awarded in accordance with the applicable arbitration rules.
20. The award rendered in accordance with paragraph 19 above shall be final and binding upon the disputing parties. The disputing Party shall carry out without delay the provisions of the award and provide in its Area for the enforcement of the award in accordance with its relevant laws and regulations.
21. Neither Contracting Party shall give diplomatic protection, or bring an international claim, in respect of an investment dispute which the other Contracting Party and an investor of the former Contracting Party have consented to submit or submitted to arbitration set forth in paragraph 4 of this Article, unless the other Contracting Party shall have failed to abide by and comply with the award rendered in such investment dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the investment dispute.
Article 18.
1. Notwithstanding any other provisions in this Agreement other than the provisions of Article 13 of this Agreement, each Contracting Party may take any measure:
(a) which it considers necessary for the protection of its essential security interests;
(i) taken in time of war, or armed conflict, or other emergency 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.
2. In cases where a Contracting Party takes any measure, pursuant to paragraph 1 above, that does not conform with the obligations of the provisions of this Agreement other than the provisions of Article 13 of this Agreement, that Contracting Party shall not use such measure as a means of avoiding its obligations.
Article 19.
1. A Contracting Party may adopt or maintain measures not conforming with its obligations under Article 3 of this Agreement relating to cross-border capital transactions and Article 15 of this Agreement:
(a) in the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(b) in cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary and exchange rate policies.
2. Measures referred to in paragraph 1 above:
(a) shall be consistent with the Articles of Agreement of the International Monetary Fund, so long as the Contracting Party taking the measures is a party to the said Articles;
(b) shall not exceed those necessary to deal with the circumstances set out in paragraph 1 above;
(c) shall be temporary and shall be eliminated as soon as conditions permit;
(d) shall be promptly notified to the other Contracting Party; and
(e) shall avoid unnecessary damages to the commercial, economic and financial interests of the other Contracting Party.
3. Nothing in this Agreement shall be regarded as altering the rights enjoyed and obligations undertaken by a Contracting Party as a party to the Articles of Agreement of the International Monetary Fund.
Article 20.
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. In cases where a Contracting Party takes any measure pursuant to paragraph 1 above, that does not conform with the provisions of this Agreement, that Contracting Party shall not use such measure as a means of avoiding its obligations under this Agreement.
Article 21.
1. Nothing in this Agreement shall be construed so as to derogate from the rights and obligations under multilateral agreements in respect of protection of intellectual property rights to which the Contracting Parties are parties.
2. Nothing in this Agreement shall be construed so as to oblige either Contracting Party to extend to investors of the other Contracting Party and their investments treatment accorded to investors of a non-Contracting Party and their investments by virtue of multilateral agreements in respect of protection of intellectual property rights, to which the former Contracting Party is a party.
3. The Contracting Parties shall give due consideration to the adequate and effective protection of intellectual property rights and shall promptly consult with each other for this purpose at the request of either Contracting Party. Depending on the results of the consultation, each Contracting Party shall, in accordance with its applicable laws and regulations, take appropriate measures to remove the factors which are recognised as having adverse effects to the investments.
Article 22.
1. Nothing in this Agreement shall apply to taxation measures except as expressly provided for in paragraphs 3, 4 and 5 of this Article.
2. 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 1, 5, 6, 8 and 12 of this Agreement shall apply to taxation measures.
4. Articles 16 and 17 of this Agreement shall apply to disputes regarding taxation measures to the extent covered by paragraph 3 of this Article.
5. (a) No investor may invoke Article 12 of this Agreement as the basis for an investment dispute under Article 17 of this Agreement, where it has been determined pursuant to subparagraph (b) below that the taxation measure in question is not an expropriation.
(b) The investor shall refer the issue, at the time that it delivers the notice of intent under paragraph 6 of Article 17 of this Agreement, to the competent authorities of both Contracting Parties to determine whether such measure is not an expropriation. If the competent authorities of both Contracting Parties do not consider the issue or, having considered it, fail to determine, within a period of one hundred and eighty-three days of such referral, that the measure is not an expropriation, the investor may submit its claim to arbitration under Article 17 of this Agreement.
(c) For the purposes of subparagraph (b) above, the term "competent authorities" means:
(i) with respect to Japan, the Minister of Finance or his or her authorised representatives, who shall consider the issue in consultation with the Minister for Foreign Affairs or his or her authorised representatives; and
(ii) with respect to the Republic of Kazakhstan, the Minister of Finance or his or her authorised representative.
Article 23.
1. The Contracting Parties shall establish a Joint Committee (hereinafter referred to as "the Committee") with a view to accomplishing the objectives of this Agreement. The functions of the Committee shall be:
(a) to discuss and review the implementation and operation of this Agreement; and
(b) to share information on and to discuss any other investment-related matters concerning this Agreement, for the purpose of encouraging favourable conditions for investors of the Contracting Parties.
2. The Committee may, as necessary, make appropriate recommendations by consensus to the Contracting Parties for the more effective functioning or the attainment of the objectives of this Agreement.
3. The Committee shall be composed of representatives of the Contracting Parties. The Committee shall determine its own rules of procedure to carry out its functions.
4. The Committee may establish sub-committees and delegate specific tasks to such sub-committees. The Committee, upon mutual consent of the Contracting Parties, may hold joint meetings with the private sectors.
5. The Committee shall meet upon the request of either Contracting Party.
Article 24.
The Contracting Parties recognise that it is inappropriate for a Contracting Party 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 and standards as an encouragement for the establishment, acquisition or expansion in its Area of investments by investors of the other Contracting Party and of a nonContracting Party.
Article 25.
1. A Contracting Party may deny 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. Subject to prior notification and consultation, a Contracting Party may deny 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 purposes of this Article, an enterprise is:
(a) "owned" by an investor if more than fifty percent of the equity interest in it is 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.
Article 26.
1. Each Contracting Party shall send through diplomatic channels to the other the notification confirming that its internal procedures necessary for the entry into force of this Agreement have been completed. This Agreement shall enter into force on the thirtieth day after the date of receipt of the latter notification. It shall remain in force for a period of ten years after its entry into force and shall automatically continue in force unless terminated as provided for in paragraph 2 below.
2. A Contracting Party may, by giving one year's advance notice through diplomatic channels in writing to the other Contracting Party, terminate this Agreement at the end of the initial ten year period or at any time thereafter.
3. This Agreement may be amended by mutual consent of the Contracting Parties at any time after its entry into force.
4. This Agreement shall also apply to all investments of investors of either Contracting Party acquired in the Area of the other Contracting Party in accordance with the applicable laws and regulations of that other Contracting Party prior to the entry into force of this Agreement.
5. In respect of investments acquired prior to the date of termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten years from the date of termination of this Agreement.
6. This Agreement shall not apply to claims arising out of events which occurred, or to claims which had been settled, prior to its entry into force.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised, have signed this Agreement.
Done at Astana on this twenty-third day of October, 2014 in duplicate in the English language.
For Japan:
For the Republic of Kazakhstan:
A. Isek