Each Party shall accord to investors of the other party and to investments of investors of the other party the better of the treatment required by articles 10.02 and 10.03.
Article 10.05. Treatment In Case of Loss
Each Party shall accord to investors of the other party, in respect of investments suffer losses in its territory owing to armed conflict or civil strife, non-discriminatory treatment with respect to any measure that it adopts or maintains in relation to such losses.
Article 10.06. Minimum Standard of Treatment
A Party shall accord to investments of investors of the other party treatment in accordance with international law, including fair and equitable treatment and full protection and security.
Article 10.07. Performance Requirements
1. Neither party may impose or enforce any of the following requirements or enforce any commitment or obligation with regard to the establishment, expansion and acquisition, administration, operation or conduct of an investment of an investor of a Party on its territory to:
a) Export a given level or percentage of goods or services;
b) To achieve a given level or percentage of domestic content;
c) Purchase or use a or accord preference to produced goods or services provided in its territory or to purchase goods or services from persons in its territory;
d) In any way relate to the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
This paragraph does not apply to any requirement other than those specified therein.
2. Neither party may condition the receipt of an advantage or which shall continue to receive the same in connection with an investment in its territory by an investor of a Party on compliance with any of the following requirements:
a) To achieve a given level or percentage of domestic content;
b) To purchase or use a accord preference to goods produced in its territory or to purchase goods from producers in its territory; or
c) In any way relate to the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; this paragraph does not apply to any requirement other than those specified therein.
3. The provisions of:
a) Paragraph 1 (a), (b) and (c) and paragraph 2 (a) and (b) do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid;
b) Paragraph 1 (b) and (c) and paragraph 2 (a) and (b) do not apply to procurement by a party or a state enterprise;
c) Paragraph 2 (a) and (b) do not apply to requirements imposed by an importing party relating to the content of goods necessary to qualify for preferential tariffs or fees.
4. Nothing in paragraph 2 shall be construed to prevent a party from conditioning the receipt of an advantage or continued receipt in connection with an investment in its territory by an investor of a Party on compliance with a requirement to locate production; provide a service train or employ workers, construct or expand certain facilities, or carry out research and development in its territory.
5. Provided that such measures are not applied in an arbitrary or unjustified or do not constitute a disguised restriction on international trade or investment, nothing in paragraphs 1 (b) or (c) or 2 (a) or (b) shall be construed to prevent a Party from adopting or maintaining environmental nature, including measures necessary to:
a) To ensure compliance with laws and regulations that are not inconsistent with the provisions of this Treaty;
b) Protect human life or health, animal or plant; or
c) Preservation of non-renewable natural resources, living or not.
6. In the event that a party, the imposition by the other party of any of the following requirements adversely affect the flow of trade or constitutes a significant barrier to investment by an investor of a party, the matter shall be considered by the Commission:
a) To restrict sales of goods in its territory that such investment produces, by such sales in any way relating to the volume or value of its exports or to generate foreign exchange earnings;
b) Transfer to a person in its territory, technology, knowledge production process or other reserved except when the requirement is imposed by a judicial or administrative tribunal or competent authority to remedy an alleged violation of competition laws or to act in a manner not inconsistent with other provisions of this treaty; or
c) To act as the exclusive supplier of the goods it produces to a specific regional market or to the world.
7. A measure that requires an investment to use a technology to meet requirements of health, safety or environmental of general application shall not be considered inconsistent with paragraph 6 (b). For greater certainty, and articles 10.02 10.03 apply to the measure.
8. If the Commission finds that the requirement in question adversely affects the trade or constitutes a significant barrier to investment by an investor of the other party, recommend arrangements to eliminate the practice in question. The Parties shall consider these provisions as incorporated into this Treaty.
Article 10.08. Senior Executives and Boards of Directors or Boards of Executive Officers
1. Neither party may require that an enterprise of that Party that is an investment of an investor appoint individuals of the other party of any particular nationality to senior management positions in that enterprise.
2. A Party may require that a majority of the members of the governing bodies or boards of directors of an enterprise of that Party that is an investment of an investor of the other party be of a particular nationality, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
Article 10.09. Reservations and Exceptions
1. Articles 10.02, 10.03, 10.07 10.08 hours and do not apply to:
a) Any Non-Conforming Measure existing Non-Conforming Measure that is maintained by:
i) A Party at the national level as set out in its schedule to Annex I or ill; or
ii) A local or municipal government;
b) The continuation or prompt renewal of any Non-Conforming Measure referred to in subparagraph (a); or (c) an amendment to any Non-Conforming Measure referred to in subparagraph (a), provided that the amendment does not decrease the level of conformity of the measure as it was in force before the amendment, with articles 10.02 10.03, 10.07 and 10.08 hours.
2. Articles 10.02, 10.03, 10.07 10.08 hours and do not apply to any measure that adopts or maintains a Party with respect to the sectors or sub-sectors or activities as set out in its schedule to annex Il.
3. Neither party may require under any measure adopted after the date of entry into force of this Agreement and covered by its schedule to annex LI, to an investor of the other party, by reason of their nationality, to sell or otherwise dispose of an existing investment at the time the measure copper.
4. Article 10.03 does not apply to treatment accorded by a Party pursuant to the treaties, or with respect to the sectors, as set out in annex IV to its schedule.
5. Articles 10.02 10.03 10.08, and do not apply to:
a) Procurement by a party or a state enterprise; or
b) Subsidies or grants or inputs, including loans, guarantees and insurance supported by the Government issued by a party or a State enterprise.
Article 10.10. Transfers
1. Each Party shall permit all transfers relating to an investment of an investor of the other party in the territory of the Party to be made freely and without delay. Such transfers include:
a) Profits, dividends, interests, capital gains, royalties, fees payments for administration, technical assistance and other fees; returns and other amounts in kind derived from the investment;
b) Products derived from the sale or the total or partial liquidation of the investment; 10 - 7
c) Payments made under a contract of which is a party to an investor or investment including its payments made pursuant to a loan agreement;
d) Payments made pursuant to article 10.11; and
e) Payments arising out of the implementation of the provisions on dispute settlement contained in section B of this chapter.
2. Each Party shall permit transfers to be made in a freely convertible currency at the market rate of exchange prevailing on the date of transfer.
3. Neither party may require its investors to transfers carried out their income, profits, or other profits or amounts derived from or attributable to investments in the territory of the other party, nor shall not make the transfer.
4. Notwithstanding paragraphs 1 and 2, a Party may establish mechanisms to prevent a transfer through the equitable and non-discriminatory application of its laws in the following cases:
a) Bankruptcy or insolvency or the protection of the rights of creditors;
b) Criminal or administrative rulings in strong;
c) Failure to submit reports of transfers of currency or other monetary instruments;
d) Ensuring compliance with orders or awards rendered in contentious proceedings; or
e) Relating to ensure compliance with laws and regulations for the issuance of securities, and trade operations.
5. Paragraph 3 shall not be interpreted as an impediment to a party through the application of their laws on an equitable, non-discriminatory, impose any action under paragraph 4 (a) to (e).
Article 10.11. Expropriation and Compensation
1. Neither party may expropriate or nationalize directly or indirectly an investment of an investor of the other party in its territory or take any measure equivalent to expropriation or nationalization of such investment (expropriation), except:
a) For reasons of public purpose or social interest or public order, in accordance with annex 10.11 (1);
b) On a non-discriminatory basis;
c) In accordance with the principles of due process of law and article 10.06; and
d) On payment of compensation in accordance with the provisions of this article.
2. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (date of expropriation), and shall not reflect any change in value occurring because the intended expropriation had become known earlier date of expropriation. Valuation criteria shall include the asset value, including tax value declared value of tangible property as well as other criteria that are relevant to determine fair market value.
3. The compensation shall be paid without delay and shall be fully realized.
4. Without prejudice to paragraph 5, the amount of compensation shall be not less than the equivalent that according to the rate of exchange prevailing on the date of the determination of the fair market value is paid on that date the expropriated investor in a freely convertible currency at the international financial market. The compensation shall include interest calculated from the date of dispossession of the expropriated investment until the date of payment, which shall be calculated on the basis of a passive or catchment average rate for that currency from the national banking system of the Party where the expropriation.
5. In the event that the compensation shall be paid in a freely convertible currency, compensation shall include interest calculated from the date of dispossession of the expropriated investment until the date of payment, which shall be calculated on the basis of a passive or catchment average rate for that currency from the national banking system of the Party where the expropriation.
6. Once the compensation paid, shall be freely transferable in accordance with article 10.10.
7. This article does not apply to the Issuance of Licenses Complusory in relation to Intellectual Property Rights, limitation or revocation, or creation of Intellectual Property Rights to the extent that such issuance, revocation, limitation or creation is consistent with the TRIPS Agreement.
8. For the purposes of this article and for greater certainty shall not be considered as a measure of non-discriminatory general application is a measure tantamount to an expropriation of a debt or a loan covered by this chapter solely because the Measure imposes costs on the debtor that cause the non-payment of debt.
Article 10.12. Special Formalities and Information Requirements
1. Nothing in Article 10.02 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities connected with the establishment of investments by investors of the other party, such as that investments be constituted in accordance with the laws and regulations of the Party provided that such formalities do not materially impair the protections afforded by a Party pursuant to this chapter.
2. Notwithstanding articles 10.02 and 10.03, a Party may require an investor of the other party or its investment in its territory to provide routine information concerning that investment or informational solely for statistical purposes. The Party shall protect any disclosure of confidential business information that is, which could prejudice the competitive position of the investor or the investment.
Article 10.13. Relationship with other Chapters
1. In the event of incompatibility between any provision of this chapter and the provision of another, the latter shall prevail to the extent of the inconsistency.
2. If a Party to requires a service provider of the other party post a bond or other form of financial security as a condition of providing a service into its territory does not of itself make this chapter applicable to the provision of cross-border that service. This chapter applies to that party to the treatment accorded posted bond or financial security.
Article 10.14. Denial of Benefits
Subject to prior notification and consultation in accordance with articles 18.04 (provision of information) and 20.06 (consultations), a Party may deny the benefits of this chapter to an investor of the other Party that is of such an enterprise and party to such investments of investor if investors of a non-party own or control the enterprise in the terms listed in the definition of "investment of an investor of a Party" Article 40 and that has no substantial business activities in the territory of the party under whose law it is constituted or organized.
Article 10.15. Environmental Measures
1. Nothing in this chapter shall be construed as preventing a party from maintaining or implement any measure consistent with this chapter that it considers appropriate to ensure that investment activity in its territory observe the environmental legislation or the environment in that party.
2. The Parties recognize that it is inappropriate to encourage domestic investment by relaxing measures applicable to the safety or health or on the environment or the environment. Accordingly, no party shall eliminate or undertakes to exempt from the application of such measures of an investor to investment, as a means to induce the establishment, acquisition, expansion or retention of an investment of an investor in its territory. If a Party considers that the other party has encouraged an investment in such a manner, it may request consultations with the other party.
Section B. Settlement of Disputes between an Investor of One Party and the other Party
Article 10.16. Objective
Without prejudice to the rights and obligations of the Parties under chapter 20) (dispute settlement, this section establishes a mechanism for the Settlement of Investment Disputes arising as a result of the breach of an obligation under section A of this chapter; and ensures equal treatment between both investors of the Parties in accordance with the principle of reciprocity, as the proper performance of the security and defence within a due process before an arbitral tribunal.
Article 10.17. Claim by an Investor of a Party on Its Own Behalf
1. In accordance with this section, an investor of a Party may submit to arbitration a claim which founded on the other party or an enterprise controlled directly or indirectly by that party has breached an obligation under this chapter, provided
If the investor has suffered losses or damages under that breach or as a result of it.
2. An investor may not make a claim if more than three (3) years from the date on which the first knew or should have had knowledge of the alleged breach and knowledge that has suffered losses or damages.
Article 10.18. Claim by an Investor of a Party on Behalf of an Enterprise
1. An investor of a Party on behalf of an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, may submit to arbitration under this section a claim which founded on the other party or an enterprise controlled directly or indirectly by that party has breached an obligation under this chapter, provided that the enterprise has incurred loss or damage by virtue of such violation or as a result of it.
2. An investor may not make a claim on behalf of the enterprise referred to in paragraph 1 if more than three (3) years from the date on which the first enterprise knew or should have had knowledge of the alleged breach and knowledge that has suffered losses or damages.
3. Where an investor makes a claim under this article and, in parallel an investor that does not have control of an enterprise, submit a claim under article 10.17 as a result of the same events that gave rise to the submission of a claim under this article or two or more claims submitted to arbitration under article 10.21, the Tribunal established under article 10.27 shall jointly such claims, unless the Tribunal finds that the interests of cumulation of a Party combatant be prejudiced thereby.
4. An investment may not make a claim to arbitration under this section.
Article 10.19. Dispute Settlement Through Consultation and Negotiation
First warring parties shall endeavour to resolve the dispute through negotiation or consultation.
Article 10.20. Notification of Its Intention to Submit the Claim to Arbitration
The Investor combatant shall notify in writing the opposing side of its intention to submit a claim to arbitration at least ninety (90) days before the claim and the notice shall specify:
a) The name and address of the investor combatant and where a claim is made under article 10.18, shall include the name and address of the enterprise;
b) The provisions of this chapter alleged to have been breached and any other relevant provisions;
c) The issues of fact and law to substantiate the claim; and
d) The relief sought and the approximate amount of damages claimed.
Article 10.21. Submission of a Claim to Arbitration
1. Except as provided in annex 10.21 and provided that six (6) months since the events giving rise to the claim, an investor litigants may submit the claim to arbitration under:
a) The ICSID Convention provided that both the opposing side as the party of the investor are parties to the Convention;
b) The ICSID Additional Facility Rules, when the opposing side or the party of the investor, but not both, is a party to the ICSID Convention; or
c) The UNCITRAL Arbitration Rules.
2. The rules pertaining to each of the arbitral proceedings established in this chapter shall govern the arbitration except to the extent modified by this section.
Article 10.22. Conditions Precedent to Submission of a Claim to Arbitration Proceedings
1. The consent of the Parties to the conflict to arbitration under this Chapter shall be regarded as consent to such arbitration to the exclusion of any other mechanism.
2. Each Party may require the exhaustion of local administrative remedies as a condition of its consent to arbitration under this chapter. However, if within six (6) months from the date on which they were administrative remedies for administrative authorities have not delivered its final decision, the investor may submit to arbitration under this section.
3. An investor litigants may submit a claim to arbitration under article 10.17 only if:
a) Subject to the consent to arbitration in accordance with the procedures set out in this section; and
b) The investor and where the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise waive their right to initiate or continue any proceedings before any court under the law of either party or other dispute settlement procedures with respect to the measure of the opposing side alleged breach of the provisions referred to in article 10.17 except procedures that are not intended to the payment of damages which may be requested precautionary measures of suspensive effect,
Declaratory or special before an administrative tribunal or court under the law of the opposing side.
Accordingly, once the investor or the enterprise has submitted a claim to arbitration under this section, the choice of the procedure shall be final and only exclude the possibility of submitting the claim before the competent national court of the opposing side or other dispute settlement procedures, without prejudice to the exceptions referred to above regarding precautionary measures.
4. An investor litigants may submit a claim to arbitration under article 10.18 only if both the investor and the Enterprise:
a) Consent to be submitted to arbitration in accordance with the procedures set out in this section; and
b) Waive their right to initiate or continue any proceedings with respect to the measure of the opposing side alleged to be a breach referred to in article 10.18 before any court under the law of a party or other dispute settlement procedures, except that procedures are not intended to the payment of damages which may be requested precautionary measures of suspensive effect, declaratory or special before an administrative tribunal or court under the law of the opposing side.
Accordingly, once the investor or the enterprise has submitted a claim to arbitration under this section, the choice of the procedure shall be final and only exclude the possibility of submitting the claim before the competent national court of the opposing side or other dispute settlement procedures, without prejudice to the exceptions referred to above regarding precautionary measures.
5. The consent and waiver required by this article would result in writing, shall be delivered to the opposing side and included in the submission of a claim to arbitration.
6. In the event that the Challenger party has deprived the investor of control of an enterprise litigants, shall not require a waiver from the enterprise under paragraphs 3 (b) and 4 (b).
Article 10.23. Consent to Arbitration
1. Each party consents to submit a claim to arbitration in accordance with the procedures and requirements set out in this section.
2. The consent under paragraph 1 and the submission of a claim to arbitration by an investor combatant shall have complied with the requirements set out in:
a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the Additional Facility Rules for written consent of the Parties;
b) Article II of the New York Convention for an agreement in writing; and
c) Article I of the Inter-American Convention, which requires an agreement.
Article 10.24. Number and Method of Appointment of Arbitrators
Except as regards the Tribunal established under article 10.27 and unless the parties agree otherwise, the Tribunal shall be composed of three arbitrators (3). Each of the Parties involved shall appoint one (1). The third arbitrator who shall be the Chairman of the Tribunal shall be appointed by agreement of the parties involved.
Article 10.25. Integration of the Tribunal If a Party Fails to Appoint an Arbitrator or Combatant Warring Parties Fail to Agree on the Designation of the Chairman of the Tribunal
1. If a Party fails to appoint an arbitrator or litigant does not reach an agreement on the designation of the Chairman of the Tribunal, the Secretary-General shall appoint the arbitrator in the arbitration proceedings under this section.
2. Where a tribunal, which is not established in accordance with article 10.27, are not engage in a period of ninety (90) days from the date that the claim is submitted to arbitration, the Secretary General at the request of any of the Parties to the conflict and, where possible, after consultation, shall appoint the arbitrator or arbitrators not yet appointed, but not to the Chairman of the Tribunal who shall be appointed pursuant to paragraph 3. In any case, the majority of the arbitrators shall not be nationals of the opposing side or a national of the Party of the investor litigants.
3. The Secretary-General shall appoint the presiding judge of the list of arbitrators referred to in paragraph 4, ensuring that the President of the Court is not a national of the opposing side or a national of the Party of the investor litigants. In the event that is not available in the list an arbitrator as Chairman of the Tribunal, the Secretary-General shall appoint the arbitrators of the ICSID List of the President of the Court, wherever nationality different from the opposing side or the party of the investor litigants.
4. From the date of entry into force of this Treaty, the Parties shall establish and maintain a list of eighteen (18) as arbitrators possible Presiding Judge, none of whom shall be a national of a party who meet the requirements established by the ICSID Convention and the rules referred to in article 10.21 and with experience in International Law and investment. Roster members shall be appointed by mutual agreement regardless of nationality for a period of two (2) years, renewable by consensus if the parties so agree. In the event of the death or the resignation of a member of the list, the parties agree to designate another person to replace in its functions for the remainder of the period for which it was appointed.
Article 10.26. Agreement to Appointment of Arbitrators
For the purposes of article 39 of the ICSID Convention and article 7 of part C of the rules of the additional facility, and without prejudice to an objection to an arbitrator in accordance with article 10.25 (3) or on a basis other than the nationality:
a) The opposing side agrees to the appointment of each individual member of a tribunal established under the Convention or the ICSID Additional Facility Rules;
b) An investor combatant referred to in article 10.17 may submit a claim to arbitration or continue the procedure under the Convention or the ICSID Additional Facility Rules only if the investor combatant expresses its consent in writing to the appointment of each member of the Tribunal;
c) The Investor combatant referred to in article 10.18 (1) may submit a claim to arbitration or continue the procedure under the Convention or the ICSID Additional Facility Rules only if the investor and the enterprise that is litigants express their consent in writing to the appointment of each member of the Tribunal.
Article 10.27. Accumulation of Procedures
1. A tribunal established under this article cumulation will be in accordance with the UNCITRAL Arbitration Rules and shall conduct as laid down in these rules, except as provided in this section.
2. Where a tribunal established under this article cumulation determines that claims submitted to arbitration under article 10.21 raises a question of law or fact, the Tribunal cumulation, in the interest of fair and efficient resolution, and having listened warring parties may order that:
a) Assume jurisdiction, known and resolve all or part of the claims; jointly; or
b) Assume jurisdiction, known and resolution of one or more of the claims on the basis of which would contribute to the resolution of the others.
3. A party seeking a litigant cumulation order under paragraph 2 shall request the Secretary-General to establish a tribunal of cumulation and in the request shall specify: