a) On behalf of the party or parties litigant investors against which the order is sought to obtain cumulation;
b) The nature of the order sought and cumulation;
c) The rationale underlying the request.
4. The opposing side shall deliver a copy of its request to the party opposing combatants or to investors against which the order is sought.
5. Within a period of sixty (60) days from the date of receipt of the request, the General Secretary shall install an Accumulation Court composed of three (3) arbitrators. The Secretary General shall appoint the president of the Accumulation Court from the list of arbitrators referred to in Article 10.25 (4). In the event that one (1) arbitrator available to preside over the Accumulation Court is not on the list, the Secretary General shall designate, from the ICSID Arbitrators List, the president of the Accumulation Court who shall not be a national of any of the Parties. The Secretary General shall designate the other two (2) members of the Accumulation Court of the list referred to in Article 10.25 (4) and, when they are not available in said list, shall select them from the ICSID Arbitrators List; if there are no arbitrators available on this List, the Secretary General will make the missing appointments at his discretion. One (1) of the members shall be a national of the disputing Party and the other member of the Accumulation Court shall be a national of the Party of the contending investors.
6. Where a tribunal has been established under this article, the cumulation investor litigant who has submitted a claim to arbitration under article 10.17 or 10.18 and that has not been named in a request for cumulation made under paragraph 3 may submit a written request to the Tribunal that it be included in a request for cumulation cumulation in accordance with paragraph 2. and in the request shall specify:
a) The name and address of the investor and Challenger where the name and address of the enterprise;
b) The nature of the order sought and cumulation;
c) The reasons for the request.
7. An investor combatant referred to in paragraph 6 shall deliver a copy of its request to the parties to the conflict identified in a request made under paragraph 3.
8. A tribunal established under article 10.21 shall not have jurisdiction to decide a claim. or a part thereof, which has assumed jurisdiction cumulation A Tribunal established under this article.
9. At the request of a party, a litigant cumulation tribunal established under this article may, pending its decision under paragraph 2, provided that the proceedings of a tribunal established under article 10.21 be postponed unless the latter Tribunal has suspended its proceedings pending the resolution on the cumulation of origin.
10. A Party to the secretariat shall deliver a litigant within fifteen (15) days from the date of receipt by the opposing side, a copy of:
a) A request for arbitration made under paragraph 1 of Article 36 of the ICSID Convention;
b) A notice of arbitration under article 2 of part C of the ICSID Additional Facility Rules; or
c) A notice of arbitration in accordance with the UNCITRAL Arbitration Rules.
11. A Party combatant shall deliver to the Secretariat a copy of a request made under paragraph 3:
a) Within a period of fifteen (15) days of receipt of the request in the case of a request made by the investor combatant;
b) Within a period of fifteen (15) days from the date on which the request was made in the case of a request made by the opposing side.
12. A Party combatant shall deliver to the Secretariat a copy of a request made under paragraph 6 within fifteen (15) days from the date of receipt of the request.
13. The secretariat shall maintain a public register of the documents referred to in paragraphs 10, 11 1 and 2.
Article 10.28. Notification
The opposing side shall deliver to the other party:
a) Written notice of a claim that has been submitted to arbitration no later than thirty (30) days after the date of submission of a claim to arbitration; and
b) Copies of all pleadings of pleadings filed in the arbitration proceedings.
Article 10.29. A Party
Upon written notice to the parties to the conflict, a Party may raise a tribunal established under this section their views on a question of interpretation of this Treaty.
1. A Party shall, at its own expense, entitled to receive a copy of the opposing side:
a) The evidence provided to any tribunal established pursuant to this section; and
b) The arguments written submissions by the parties to the conflict.
2. A Party receiving information pursuant to paragraph 1 shall treat the confidential information as if it were a party litigants.
Article 10.30 . Documentation
A Party shall, at its own expense, be entitled to receive from the disputing Party a copy of:
(a) evidence offered to any Tribunal established under this Section; and.
b) the written arguments submitted by the disputing Parties.
2. A Party that receives information pursuant to paragraph 1 shall treat the information as confidential as if it were a disputing Party.
Article 10.31. The Arbitral Proceedings
Unless otherwise agreed by the parties to the conflict, a tribunal established under this section shall conduct the arbitration proceedings in the territory of a Party that is a party to the New York Convention, which shall be elected in accordance with:
a) The ICSID Additional Facility Rules if the arbitration rules or those is under the ICSID Convention; or
b) The UNCITRAL Arbitration Rules if the arbitration is under those rules.
Article 10.32. Applicable Law
1. A tribunal established under this section shall decide the dispute to be submitted to it in accordance with this Treaty and applicable rules of international law.
2. An interpretation by the commission of a provision of this Treaty shall be binding on a tribunal established under this section.
Article 10.33. Interpretation of Annexes
1. When a party claims that the measure as a defence alleged to be a breach is within the scope of a reservation or exception set out in annexes at the request of the opposing side, any tribunal established under this section shall request the Commission interpretation on this matter. The Commission shall, within sixty (60) days of the delivery of the request in writing and shall submit its interpretation to the Tribunal.
2. Pursuant to article 10.32 (2), a commission interpretation submitted under paragraph 1 shall be binding on a tribunal established under this section. If the Commission fails to submit an interpretation within a period of sixty (60) days, the Tribunal shall decide on the matter.
Article 10.34. Expert Opinions
Without prejudice to the appointment of other kinds of experts where this is authorized by the applicable arbitration rules, the Tribunal, at the request of a party or on its own initiative, litigants may appoint one or more experts to rule in writing any matter related to the dispute.
Article 10.35. Interim Measures of Protection
A tribunal established under this section shall apply to national courts or warring parties an interim measure of protection to preserve the rights of the opposing side or to ensure that the jurisdiction or competence of the Tribunal takes full effects. A tribunal may not order attachment or freezing or adherence to, or the suspension of the application of the measure alleged to have been breached or referred to in article 10.17 10.18.
Article 10.36. Final Award
1. Where a tribunal established under this section to obtain a final award against a party, the Tribunal shall decide on:
a) Monetary damages and interest as appropriate; or
b) Restitution of property in which case the award shall provide that the opposing side may pay pecuniary damage, plus interest, in lieu of restitution.
A tribunal may also award costs in accordance with the applicable arbitration rules.
2. Pursuant to paragraph 1. where a claim is made under article 10.18 (1):
a) The award for the restitution of property that shall provide restitution be made to the enterprise;
b) The award granted monetary damages and interest, shall provide that the sum be paid to the enterprise.
3. For purposes of paragraphs 1 and 2, the damage was determined in the currency in which the investment has been made.
4. The award shall be made without prejudice the rights that a Party has a legal interest on compensation for the damage suffered, in accordance with the applicable legislation.
Article 10.37. Finality and Enforcement of the Award
1. An award made by a tribunal established under this section shall be binding only for opposing parties and only in respect of the particular case.
2. Subject to paragraph 3 and the procedure for revision or clarification annulment, applicable to an award under the mechanism which is appropriate in the opinion of the Secretary-General, a Party combatant abide by and comply with an award without delay.
3. A party litigants may seek enforcement of a final award until:
a) In the case of a final award made under the ICSID Convention:
i) Within one hundred and twenty (120) days from the date the award was rendered and without any opposing side has requested revision or annulment of the same; or
ii) Have concluded the procedures for clarification, revision or annulment; and
b) In the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
i) Within three (3) months from the date the award was rendered and without any opposing side has commenced a proceeding to set aside or revised, annul it; or
ii) A tribunal of the opposing side has dismissed or allowed an application for reconsideration, revocation or cancellation of the award to the parties to the conflict resolution that has been submitted and may not be used.
4. Each Party shall provide for the enforcement of an award in its territory.
5. Where a Party combatant fails to comply with the final award, the Commission, on delivery of a request by a Party whose investor was a party to the arbitration procedure will Arbitral Panel under Article 2008 (Request for the integration of the arbitral group). The requesting party may invoke the procedures for:
a) A determination that the failure or refusal of the terms of the final award is inconsistent with the obligations of this Treaty; and
b) A recommendation that abide by the Party or comply with the final award.
6. The Investor litigants may seek enforcement of an arbitration award under the ICSID Convention or the New York Convention or the Inter-American Convention regardless of whether or not commenced the procedures referred to in paragraph 5.
7. For the purposes of article 1 of the New York Convention and article I of the Inter-American Convention shall be considered a claim that is submitted to arbitration under this section, arises out of a commercial relationship or transaction.
Article 10.38. General Provisions
When a claim is submitted to the arbitral proceedings
1. A claim shall be deemed submitted to arbitration under this section when:
a) The request for arbitration under paragraph 1 of Article 36 of the ICSID Convention has been received by the Secretary-General;
b) The notice of arbitration under article 2 of part C of the ICSID Additional Facility Rules has been received by the Secretary-General; or
c) The notice of arbitration under the UNCITRAL Arbitration Rules has been received by the opposing side.
Delivery of notice and other documents
2. Delivery of notice and other documents on a party shall be done in the place designated by it in Annex 10.38 (2).
Payments under a contract of insurance or guarantee
3. In an arbitration under this section a Party not used as a counterclaim, defence, right of set-off or other litigant, that the investor has received or will receive pursuant to a contract of insurance or guarantee, indemnification or other compensation for all or part of the alleged damages whose refund sought.
Publication of an award
4. The awards will be issued only in the event that a written agreement between the parties to the conflict.
Article 10.39. Exclusions
The dispute settlement provisions of this section or chapter of dispute settlement (20) shall not apply to cases contained in annex 10.39.
Article 10.40. Definitions
For purposes of this chapter:
ICSID means the International Centre for Settlement of Investment Disputes;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958;
Inter-American Convention: the Inter-American Convention on International Commercial Arbitration, held in Panama; 30 January 1975
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington on 18 March 1965;
Enterprise: "enterprise" as defined in Chapter 2 (General definitions);
Enterprise of a party constituted means an enterprise or organized under the law of a party; and a branch located in the territory of a party and carrying out business activities there;
Investment means every kind of assets or rights of any kind, acquired or used for the purpose of obtaining an economic benefit or other business purposes, with resources transferred or acquired by an investor reinvested and includes:
a) A company, shares of a company or interests in the capital of an enterprise that allow the owner to participate in its income or profits. Debt instruments of an enterprise and loans to an enterprise where:
i) The enterprise is an affiliate of the investor, or
ii) The original maturity of the debt instrument or loan is at least three (3) years;
b) An interest in an enterprise that grants to the owner the right to participate in the assets of that enterprise in liquidation, provided that it does not result in a debt instrument or a loan excluded under subparagraph (a);
c) Real estate or other property, tangible or intangible rights, including in the field of intellectual property as well as any other proprietary right (such as mortgages, pledge, usufruct and similar rights), acquired with the expectation of used or with the purpose of obtaining an economic benefit or other business purposes; and
d) Participation or benefit resulting of capital or other resources committed for the development of an economic activity in the territory of a party, inter alia, under:
i) Contracts involving the presence of an investor property in the territory of the party, including concessions and contracts for construction and turnkey; or
ii) Contracts where remuneration depends substantially on the production, income or profits of an enterprise;
But investment does not mean,
- A payment obligation or a credit granted to the State or a state enterprise;
- Monetary claims derived exclusively from:
i) Commercial contracts for the sale of goods or services by a national or enterprise in the territory of a party to an enterprise in the territory of the other party; or
ii) The granting of credit in connection with a commercial transaction, the expiry date is less than three (3) years, such as trade financing; except a loan covered by the provisions of a loan to an enterprise as defined in subparagraph (a); or
- Any other monetary claim that does not involve the kinds of interests set out in subparagraphs (a) to (d);
Claimant investor: an investor that makes a claim under section B of this chapter;
Investment of an investor Party a means of an investment owned or controlled directly or indirectly by an investor of that Party.
In case of a company, an investment is owned by an investor if the investor of a Party has an ownership of more than fifty percent (50%) of its equity capital.
An investment is controlled by an investor of a party if the investor has the power to:
i) Designate a majority of its directors; or
ii) Otherwise legally direct its operations;
An investor of a Party means a Party or a company of the same or a national of that Party or an enterprise that seeks to perform or performs or has made an investment in the territory of the other party. The intention to make an investment may occur, inter alia, through legal acts aimed at achieving the investment, or are in the process of committing resources required therefor;
Opposing side: the party against which a claim is made under the terms of section B of this chapter;
The opposing side: investor combatant or the opposing side;
"disputants combatant: the investor and the opposing side;
Claim: the request made by the investor litigants against a Party under the terms of section B of this chapter;
UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) adopted by the United Nations General Assembly on 15 December 1976;
Secretary-General: the Secretary-General of ICSID;
transfers: international transfers and payments;
Tribunal: an arbitral tribunal established under Article 10.21; and
Consolidation tribunal: an arbitral tribunal established under Article 10.27.
Chapter 11. Cross-border Trade In Services
Article 11.01. Definition
For purposes of this chapter:
Cross-border trade in services or service: the Cross-Border Supply of a service:
a) The territory of a party into the territory of the other party;
b) In the territory of one party to the service consumer of the other party; or
c) By a service provider of a party through the presence of natural persons of a Party in the territory of the other party;
But does not include the provision of a service in the territory of a party by an investment as defined in article 1 (Definitions), in that Territory;
Enterprise: "enterprise" as defined in Chapter 2 (General definitions);
Enterprise of a party constituted means an enterprise or organized under the law of a party; and a branch located in the territory of a party and carrying out business activities there;
Service provider of a Party means a person of a Party that seeks to provide or provides a service transfronterizamente;
A quantitative restriction: non-discriminatory measure which imposes limitations on:
a) The number of service suppliers whether in the form of a quota monopoly or an economic needs test or by any quantitative or other means;
b) The operations of any service provider, either through a quota or an economic needs test; or by any other quantitative means;
Specialty Air Services: cross-border air services, surveying, mapping aerial photography, control of forest fires, aerial firefighting, advertising, towing services, cross-border planeadores parachutists, cross-border air services for construction, air transport logs, sawn wood or flights overview, training, inspection and monitoring and aerial spraying Air; and
Services supplied in the exercise of governmental functions: any cross-border service provided by a public institution, which are not paid on a commercial basis nor in competition with one or more service suppliers.
Article 11.02. Scope of Application
1. This chapter applies to measures that a party adopts or maintains relating to cross-border services by service providers of the other party, including those relating to:
a) The production, distribution, marketing, sale and the provision of a cross-border service;
b) The purchase, use or the payment of a cross-border service;
c) Access to and use of distribution and transportation systems in connection with the provision of a cross-border service;