Unless the Secretary-General determines, within 30 days after receipt of a request pursuant to paragraph 2, that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless otherwise agreed by all disputing parties in respect of which the order for consolidation is sought, the tribunal to be established under this Article shall consist of three arbitrators:
(a) one arbitrator appointed by agreement of the claimants;
(b) one arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the Secretary-General, who shall not be a national of either Party.
5. If, within 60 days after receipt by the Secretary-General of the request made pursuant to paragraph 2, the respondent or the claimants fail to appoint an arbitrator pursuant to paragraph 4, the Secretary-General shall, at the request of any disputing party in respect of which the consolidation order is sought, appoint the arbitrator or arbitrators not yet appointed. If the respondent fails to appoint an arbitrator, the Secretary-General shall appoint a national of the respondent and, if the claimants fail to appoint an arbitrator, the Secretary-General shall appoint a national of a Party of the claimants.
6. Where the tribunal established under this Article has found that two or more claims under Article 12.17.1 are submitted to arbitration raising a common question of law or fact and arising 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, hear and determine jointly all or part of the claims;
(b) assume jurisdiction over, hear and determine one or more claims, the determination of which it considers would assist in the resolution of the other claims; or
(c) direct a tribunal established under Article 12.21 to assume jurisdiction over, hear and determine jointly all or part of the claims, provided that:
(i) that tribunal, upon the request of any claimant that was not previously a disputing party before that tribunal, is reinstated with its original members, except that the arbitrator on the claimants' side shall be appointed under paragraph 4(a) and paragraph 5; and
(ii) that tribunal decides whether to repeat any previous hearing.
7. Where a tribunal has been established under this Article, a claimant who has submitted a claim to arbitration under Article 12.17.1, and whose name is not mentioned in a request made under paragraph 2, may make a written request to the tribunal to the effect 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 claimant;
(b) the nature of the order sought; and
(c) the grounds on which the application is based.
The applicant shall deliver a copy of its application to the Secretary-General and to the disputing parties named in the application under paragraph 2.
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 Article 12.21 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. On 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 Article 12.21 be adjourned, unless the latter tribunal has already adjourned its proceedings.
Article 12.28. AWARDS
1. Where a tribunal makes a final award against the respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and interest thereon; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages plus interest in lieu of restitution.
The tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
2. Subject to paragraph 1, where a claim under Article 12.17.1(b) is submitted to arbitration:
(a) the award providing for restitution of property shall provide that restitution shall be awarded to the enterprise;
(b) the award providing for monetary damages and interest thereon shall provide that the sum of money be paid to the enterprise; and
(c) the award shall provide that the award is without prejudice to any right that any person may have to relief under applicable domestic law.
3. A tribunal is not authorized to order the payment of damages that are punitive in nature.
4. For greater certainty, a court shall not have jurisdiction to rule on the legality of the measure in respect of domestic law.
Article 12.29. FINALITY AND ENFORCEMENT OF AN AWARD
1. For greater certainty, an award rendered by a tribunal shall have no binding force except upon the disputing parties and then only in respect of the particular case.
2. Subject to paragraph 3 and to the review procedure applicable to an interim award, the disputing party shall promptly comply with and enforce the award.
3. The disputing party may not request enforcement of the final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date on which the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) the revision or annulment proceedings have been completed; and
(b) in the case of a final award made under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules or the rules selected pursuant to Article 12.17.4(d):
(i) 90 days have elapsed from 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 the decision is not subject to appeal.
4. Each Party shall provide for the proper enforcement of an award in its territory.
5. Where the respondent fails to comply with or abide by a final award, upon delivery of a request by the Party of the claimant, a panel shall be established in accordance with Article 18.6 (Establishment of a Panel). The requesting Party may request in such proceedings:
(a) a determination that the failure or disregard of the terms of the final award is contrary to the obligations of this Agreement; and
(b) in accordance with the procedures set forth in Article 18.11 (Panel Report) a recommendation that the respondent abide by or comply with the final award.
6. A disputing party may seek enforcement of an arbitral award under the ICSID Convention, the New York Convention or the Inter-American Convention, whether or not the procedures referred to in paragraph 5 have been initiated.
7. For the purposes of Article I of the New York Convention and Article I of the Inter-American Convention, a claim submitted to arbitration under this Section shall be deemed to arise out of a commercial relationship or transaction.
Article 12.30. SERVICE OF DOCUMENTS
Delivery of the notice and other documents to a Party shall be made at the place designated by it in Annex 12-C.
Section C. DEFINITIONS
Article 12.231. DEFINITIONS
For purposes of this Chapter:
ICSID means the International Centre for Settlement of Investment Disputes;
UNCITRAL means the United Nations Commission on International Trade Law;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on June 10, 1958;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, done at Panama on January 30, 1975;
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;
respondent means the Party that is a party to an investment dispute;
claimant means the investor of a Party that is a party to an investment dispute with the other Party;
enterprise means an enterprise as defined in Article 1.4 (Definitions of General Application) and a branch of an enterprise;
enterprise of a Party means an enterprise incorporated or organized under the domestic law of a Party, and a branch office located in the territory of a Party and carrying on substantial business activities, in that territory;
protected information means:
(a) confidential business information; or
(b) information that is privileged or otherwise protected from disclosure under the Party's domestic law;
investment means any asset owned or controlled by an investor, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. The forms that an investment may take include:
(a) an enterprise;
(b) shares, equity and other forms of participation in the assets of an enterprise;
(c) bonds, debentures, other debt instruments, and loans; (11)
(d) futures, options, and other equity investments.
(d) futures, options and other derivatives;
(e) turnkey, construction, management, production, concession, revenue sharing and other similar contracts;
(f) intellectual property rights;
(g) licenses, authorizations, permits and similar rights granted in accordance with national law (12); and (h) licenses, authorizations, permits and similar rights granted in accordance with national law.
(h) other tangible or intangible, movable or immovable property rights and rights related to property, such as leases, mortgages, liens, and pledges,
but investment does not include:
(i) an order or judgment entered in a judicial or administrative action;
(j) loans granted by a Party to the other Party or to a State enterprise;
(k) loans granted by an enterprise to the other Party or to a State enterprise;
(l) public debt transactions, debt of public institutions or a debt obligation of a Party or a state enterprise;
(m) pecuniary claims arising exclusively from:
(i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to a national or enterprise in the territory of the other Party; or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing, other than a loan covered by the provisions of paragraph (d); or
(n) any other pecuniary claim, not involving the interest rates set out in paragraphs (a) through (i),
a modification in the manner in which the assets have been invested or reinvested does not affect their investment status under this Agreement, provided that such modification falls within the definitions of this Article and is made in accordance with the domestic law of the Party into whose territory the investment has been admitted;
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party existing on the date of entry into force of this Agreement, as well as investments made, acquired or expanded thereafter;
investor of a Party means a Party or an enterprise of the State of the Party, or a national or enterprise of the Party, that intends to make, through specific actions (13), is making or has made an investment in the territory of the other Party; provided, however, that a natural person who has dual nationality shall be deemed to be exclusively a national of the State of his dominant and effective nationality;
measure includes any law, regulation, procedure, requirement, act or practice;
freely usable currency means "freely usable currency" as determined by the International Monetary Fund under the Articles of Agreement of the International Monetary Fund;
national means a natural person who has the nationality of a Party in accordance with Annex 1-A (Party-Specific Definitions);
disputing party means the claimant or the respondent;
disputing party means the claimant and the respondent;
non-disputing party means a person of a Party, or a person of a non-Party with a significant presence in the territory of a Party, that is not a party to an investment dispute under Section B;
UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law;
ICSID Additional Facility Rules means the Additional Facility Rules for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
Secretary-General means the Secretary-General of ICSID; and
tribunal means an arbitral tribunal established under Article 12.21 or 12.27.
Annex 12-A. CUSTOMARY INTERNATIONAL LAW
The Parties confirm their common understanding that customary international law, generally and as specifically referred to in Article 12.4, results from a general and consistent practice of States, followed by them in the sense of a legal obligation. With respect to Article 12.4, the minimum standard of treatment accorded to aliens by customary international law refers to all principles of customary international law that protect the economic rights and interests of aliens.
Annex 12-B. EXPROPRIATION
The Parties confirm their common understanding that:
(a) a measure or series of measures of a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or with the essential attributes or powers of ownership of an investment;
(b) Article 12.11 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through the formal transfer of title or right of ownership;
(c) the second situation addressed by Article 12.11 is indirect expropriation, where a measure or series of measures by a Party has an effect equivalent to that of a direct expropriation without the formal transfer of title or right of ownership;
(d) the determination of whether a measure or series of measures of a Party, in a specific factual situation, constitutes an indirect expropriation requires a factual, case-by-case inquiry that considers among other factors:
(i) the economic impact of a Party's measure or series of measures, although the mere fact that a Party's measure or series of measures has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to which the measure or series of measures of a Party interferes with unambiguous and reasonable expectations of the investment; and
(iii) the character of the measure or series of measures of a Party;
(e) except in exceptional circumstances, such as where a measure or series of measures are disproportionate in light of their objective such that they cannot reasonably be considered to have been adopted and applied in good faith, non-discriminatory regulatory actions of a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, labor, and the environment, do not constitute an indirect expropriation (14).
Annex 12-C. SERVICE OF DOCUMENTS ON A PARTY UNDER SECTION B (INVESTOR-STATE DISPUTE SETTLEMENT)
Notices and other documents in disputes under Section B shall be served by delivery to:
(a) Colombia:
Dirección de Inversión Extranjera y Servicios Ministerio de Comercio, Industria y Turismo Calle 28 No. 13ª-15 piso 3.
Bogotá, Colombia; and
(b) Costa Rica:
Ministry of Foreign Trade
Plaza Tempo Building, adjacent to the CIMA Hospital, on the Próspero Fernández Highway, Escazú
San José, Costa Rica, or their successors.
Annex 12-D. COMMUNICATIONS FROM NON-DISPUTING PARTIES
In determining whether to grant leave to make a non-disputing party's submission, the tribunal should consider, among other things, the extent to which:
(a) the non-disputing party's submission would assist the tribunal in the determination of a legal or factual issue relating to the arbitration by providing a perspective, particular knowledge, understanding that is different from that of the disputing parties;
(b) the non-disputing party's submission would address an issue within the scope of the dispute;
(c) the non-disputing party would have a significant interest in the arbitration; and
(d) there would be a public interest in the subject matter of the arbitration.
2. The tribunal must ensure that:
(a) any submission by a non-disputing party does not disrupt the proceedings; and
(b) no disputing party is unduly burdened or unfairly prejudiced by such submissions.
3. An application for leave to file written submissions by a non-disputing party shall be filed within the time limit set by the tribunal and shall:
(a) be in writing, be dated and signed by the applicant, and include the address and other contact details of the applicant;
(b) be no more than five pages in length;
(c) describe the applicant, including, where relevant, its membership and legal status (e.g., corporation, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that the applicant directly or indirectly controls);
(d) disclose whether the applicant has any affiliation, directly or indirectly, with any disputing party;
(e) identify any government, person or organization that provided financial or other assistance during the preparation of the submission;
(f) specify the nature of the applicant's interest in the arbitration;
(g) identify the specific factual or legal issues in the arbitration to which the applicant will refer in its written submission;
(h) be in the language of the arbitration.
4. A written submission by a non-disputing party shall:
(a) be submitted within the time limit set by the tribunal;
(b) be dated and signed by the applicant;
(c) be concise and in no case exceed 20 pages, including annexes and appendices;
(d) duly substantiate its position; and
(e) refer only to the matters indicated in its application, in accordance with paragraph 3(g).
Chapter 13. CROSS-BORDER TRADE IN SERVICES
Article 13.1. SCOPE OF APPLICATION
1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services supplied by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, marketing, sale and supply of a service;