b) Products derived from the sale or the total or partial liquidation of the investment;
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) Resulting payments of compensation for expropriation; and
e) Payments arising out of the implementation of the provisions on dispute settlement contained in section B of this chapter.
2. For purposes of this chapter, a transfer is made without delay when it has been made within the period normally necessary for the completion of the formalities of transfer.
3. No 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 another party, nor shall in no case the transfer.
4. 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.
5. Notwithstanding paragraphs 1 and 4, each party may prevent a transfer through the equitable and non-discriminatory application in good faith of measures:
a) In order to protect the rights of creditors;
b) Relating to ensure compliance with laws and regulations:
i) For the issuance, transfer and securities and futures and derivatives; or
ii) Concerning reports or records of transfers; or
c) In connection with criminal offences or judgments in judicial or administrative proceedings.
6. Notwithstanding the provisions of this article, each party may establish temporary controls on currency transactions, provided that the balance of payments of the Party concerned, present a serious imbalance or exceptional difficulties or serious and incorporate a programme in accordance with internationally accepted standards.
Article 311. Expropriation and Compensation
1. No party may expropriate or nationalize directly or indirectly an investment of an investor of a party in its territory or take any measure equivalent to expropriation or nationalization of such investment, unless:
a) For a public purpose in accordance with annex 3.11;
b) On a non-discriminatory basis;
c) In accordance with due process of law; and
d) On payment of compensation in accordance with paragraphs 2 to 4.
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 been known prior to the date of expropriation. Valuation criteria shall include tax declared going concern 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. The amount paid shall be no less than the amount of compensation to be paid in a freely convertible currency at the international financial market, on the date of expropriation and this had been converted at the currency market rate of exchange prevailing on the date of valuation, plus the interest generated a bank or commercial rate until the date of payment.
Article 312. Special Formalities and Information Requirements
1. Nothing in Article 3.04 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 under the law of the Party provided that such formalities do not materially impair the protections afforded by a Party pursuant to this chapter.
2. Notwithstanding articles 3.04 and 3.05 on single stream comprehensive each party may require, in its territory of an investor of the other party to provide routine information concerning its informational investments or solely for statistical purposes. The such Party shall protect any confidential information that is from that disclosure would prejudice the competitive position of the investor or the investment.
Article 313. Relationship to other Chapters
In the event of incompatibility between any provision of this chapter and the provisions of another chapter of this treaty the provisions of the latter shall prevail to the extent of the inconsistency.
Article 314. Denial of Benefits
A Party, subject to prior notification and consultation with the other Party may deny the benefits of this chapter to an investor of that Party that is an enterprise of the same and to investments of investors of such investor if a non-party own or control the majority and the enterprise has no substantial business activities in the territory of the party under whose law it is constituted or organized.
Article 315. Extraterritorial Application of the Legislation of a Party
1. The parties, in relation to investments of investors constituted its, or organized under the law of the other party may not exercise jurisdiction, or take any measure which would cause the extraterritorial application of its laws or blocking of trade between the parties, or between a party and a non- party.
2. If any of the Parties to fulfil the provisions of paragraph 1, the Party where the investment is incorporated may, at its discretion, take the measures and bring an action that it considers necessary in order to rescind legislation or the measure concerned and barriers to trade resulting therefrom.
Article 316. Measures Related to the Environment
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 environmental legislation.
2. The Parties recognize that it is inappropriate to encourage domestic investment by relaxing measures applicable to the health, safety or relating to the environment. Accordingly, no party shall commit to eliminate or 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 in its territory. If a Party considers that another Party has fostered an investment in such a manner, it may request consultations with the other party.
Article 317. Investment Promotion and Exchange of Information
1. With the intention to significantly increase the participation of reciprocal investments, the Parties shall promote and support the development of documents for the promotion of investment opportunities and the development of mechanisms for dissemination. The Parties may establish, maintain and enhance financial mechanisms for investments of a Party in the territory of the other party.
2. The Parties shall make available information on available opportunities for:
a) Investment in its territory, which may be developed by investors of the other party;
b) Strategic alliances between investors of the Parties through research and convergence of interests and partnership opportunities; and
c) Investments in specific economic sectors which are of interest to the parties and to their investors, according to the application is made by any party.
3. In order to remain informed and updated, the Parties shall exchange information on:
a) The legislation which directly or indirectly affect foreign investment including, inter alia, exchange rate regimes and of a fiscal nature;
b) The conduct of foreign investment in their respective territories; and
c) Investment opportunities referred to in paragraph 2 of this article, including the dissemination of financial instruments available to contribute to the expansion of the investment in the territory of the Parties.
This section provides a mechanism for the settlement of disputes of a legal nature investment arising from the Entry into Force Treaty, as a result of the breach of an obligation under section A of this chapter and ensuring the equal treatment between investors of the Parties in accordance with the principle of reciprocity, as the proper performance of the security and defence within a legal proceedings before an arbitral tribunal.
Article 319. Demand of the Investor of a Party on Its Own Behalf or on Behalf of an Enterprise
1. In accordance with this section, the investor of a Party may, on their own account or on behalf of an enterprise of the other Party that is owned or controlled, directly or indirectly, to submit a claim arbitration founded on the other party or an enterprise controlled directly or indirectly by that party has breached an obligation under this chapter, if the investor or its investment has suffered losses or damages under the violation or as a result of it.
2. An investor may not make a claim under this section if more than three (3) years from the date on which it had knowledge or should have had knowledge of the alleged breach of his investment as well as the loss or damage.
3. Where an investor submits a claim on behalf of an enterprise that is owned or controlled, directly or indirectly, or parallel an investor that does not have control of an undertaking to submit a claim for own account as a result of the same events that gave rise to the submission of a claim under this article (2), and two or more claims submitted to arbitration under article 3.22 cumulation, the Tribunal established in accordance with article 3.29 shall jointly such claims, unless the Tribunal finds that the interests of a party litigants.
4. An investment may not submit a claim to arbitration under this section.
Article 320. Dispute Resolution Through Consultations and Negotiations
The parties to the conflict first attempt to resolve the dispute through negotiation or consultation.
Article 321. 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 is formally submitted. The notice shall specify:
a) The name and address of the investor combatant and, when the claim is submitted on behalf of an enterprise), the name and address of the enterprise;
b) The facts relied upon demand;
c) The provisions of this chapter alleged to have been breached and any other relevant provisions; and
d) The relief sought and the approximate amount of damages claimed in the currency in which the investment has been made.
Article 322. Submission of a Claim to Arbitration
1. Except as provided in annex 3.22 and paragraph 3 of this article 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 selected arbitration rules, shall govern the arbitration except to the extent modified by this section.
3. A claim by an investor of a party:
a) Self-employment may be submitted to arbitration under this section, provided that both the investor and the enterprise that is a juridical person that is owned or
Controlled, directly or indirectly, have not submitted the same claim to a court of competent national of the opposing side;
b) On behalf of an enterprise may be submitted to arbitration under this section, provided that both the investor and the enterprise that is a juridical person that is owned or controlled, directly or indirectly, have not submitted the same claim to a court of competent national of the opposing side;
Accordingly, once the investor or the enterprise has submitted a claim to the Tribunal
The competent national of the opposing side, the choice of the procedure shall be final and only
Excluding the possibility of submitting the claim to arbitration under this
Section.
Article 323. 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 combatant self-employed may submit a claim to arbitration under this section only if:
a) 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 the investor owns or controls directly or indirectly, the enterprise waive their right to initiate any proceedings before a competent national court under the law of the opposing side or other dispute settlement procedures with respect to the measure of the opposing side alleged breach of the provisions referred to in article 3.19 except procedures requesting the application of precautionary measures of suspensive effect, declaratory or special, not involving the payment of damages before the competent national court, according to the Law of the opposing side, such as the exhaustion of local administrative remedies before the authorities responsible for implementing the measure alleged violation, as specified in the legislation of the opposing side.
4. An investor litigants, on behalf of an enterprise) may submit a claim to arbitration under this section only if both the investor and the Enterprise:
a) Consent to arbitration in accordance with the procedures set out in this section; and
b) Waive their right to initiate any proceedings with respect to the measure of the opposing side alleged to be a breach referred to in article 3.19 before any competent national court under the law or the law of a party or other dispute settlement procedures, except procedures requesting the application of precautionary measures of suspensive effect, declaratory or special, not involving the payment of damages before the competent national court pursuant to legislation or right of the opposing side, such as the exhaustion of local administrative remedies before the authorities responsible for implementing the measure alleged violation, as specified in the legislation of the opposing side.
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 opposing side litigant has deprived the investor of control of an enterprise:
a) There shall be a waiver from the enterprise under subparagraphs (b), paragraphs 3 and 4; or
b) It shall not apply article 3 of paragraph 3.22.
Article 324. Consent to Arbitration
1. Each party consents to submit claims to arbitration in accordance with the procedures and requirements set out in this section.
2. The submission of a claim to arbitration by an investor combatant shall comply 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; or
c) Article I of the Inter-American Convention, which requires an agreement.
Article 325. Number and Method of Appointment of Arbitrators
Except as provided for in article 3.29, and without prejudice to the warring parties agree otherwise, the Tribunal shall be composed of three arbitrators (3). Each of the Parties involved shall appoint an arbitrator. The third arbitrator who shall be the Chairman of the Tribunal shall be appointed by mutual agreement of the Parties to the conflict but shall not be a national of one of the parties involved.
Article 326. Integration of the Tribunal In the Event That a Party Fails to Appoint an Arbitrator or Litigant Does Not Reach an Agreement on the Designation of the Chairman of the Tribunal
In the event that a Party fails to appoint an arbitrator or litigant does not reach an agreement on the designation of the Chairman of the Tribunal
a) The Secretary-General shall appoint the arbitrator in the arbitration proceedings under this section;
b) Where a tribunal, which is not established in accordance with article 3.29, 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, at its discretion, shall appoint the arbitrator or arbitrators not yet appointed, but not to the Chairman of the Tribunal who shall be appointed pursuant to subparagraph (c). In any case, the majority of the arbitrators shall not be nationals of the opposing side or a national of the Party of litigants; or the investor.
c) The Secretary-General shall appoint the presiding arbitrator from the roster referred to in article 3.27, 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.
Article 327. List of Arbitrators
From the date of Entry into Force of this Treaty, the Parties shall establish and maintain a list of arbitrators as possible, or presiding judge to appoint the arbitrators of a court of cumulation, according to paragraph 4 of article 3.29, having the same qualities referred to the ICSID Convention, the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules and with experience in International Law and investment matters. For this purpose, roster members shall be appointed by consensus regardless of their nationality and each Party shall propose up to five (5) arbitrators for a period of two 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 328. Agreement to Appointment of Arbitrators
For purposes of article 39 of the ICSID Convention and article 7 of part C of the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator based on the literal c) of article 3.26, or on the basis of nationality:
a) The opposing side agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules; and
b) An investor litigants, either on its own behalf or on behalf of an enterprise) may submit a claim to arbitration or continue the procedure under the ICSID Convention or the ICSID Additional Facility Rules only if the investor combatant and, where appropriate, the enterprise to express their consent in writing to the appointment of each member of the Tribunal.
Article 329. Cumulation of Procedures
1. A tribunal established under this article cumulation will be in accordance with the UNCITRAL Arbitration Rules and shall act in accordance with such rules, except as provided in this section.
2. Where a tribunal of cumulation determines that claims submitted to arbitration under article 3.22, raise issues of fact and law together, the Tribunal cumulation, in the interest of fair and efficient resolution, and having listened warring parties may assume jurisdiction, processing and resolve:
a) All or part of the claims; jointly; or
b) One or more of the claims in the understanding that this will 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:
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. Within a period of sixty (60) days from the date of receipt of the request, the Secretary-General shall establish a tribunal composed of three arbitrators cumulation (3). The Secretary-General shall appoint the list of arbitrators referred to in article 3.27 The President of the Court of cumulation, who shall not be 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 to chair the cumulation Tribunal, the Secretary-General shall appoint the arbitrators of the ICSID List of the Chairman of the Tribunal who shall not be a national of the opposing side or a national of the Party of the investor litigants. The Secretary-General shall appoint the other two members of the Tribunal (2) cumulation of the list of arbitrators referred to in article 3.27 and, where not available in that list the ICSID, selected from the Panel of Arbitrators. If there is no availability of arbitrators in that list, the Secretary-General shall make the appointment at its discretion missing. One member shall be a national of the opposing side and the accumulation of another member of the Tribunal shall be a national of a party of the disputants investors.
5. Where a tribunal has been established under this article, the cumulation investor litigant who has submitted a claim to arbitration under article 3.19 and that has not been named in a request for cumulation made under paragraph 3 may apply in writing to the consolidation tribunal that it be included in an order of cumulation made under paragraph 2. and in the request shall specify:
a) The name and address and, where appropriate, the name and address of the enterprise;
b) The nature of the order sought and cumulation;
c) The reasons for the request.
6. The cumulation provided for by the investor concerned, a copy of the request to investors of cumulation contending that would be subject to avoidance of cumulation.
7. A Tribunal shall not have jurisdiction to decide a claim or part thereof, in respect of which it has assumed jurisdiction a court of cumulation.
8. At the request of a party, a litigant cumulation tribunal may, pending its decision under paragraph 2, provided that the proceedings of a tribunal shall be suspended until it is resolved on cumulation of origin. Ordered by the court of cumulation should be accepted by the Tribunal.
Article 330. Notifications
1. Within fifteen (15) days from the date of its receipt, the opposing side to the Secretariat shall transmit 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.
2. The opposing side shall deliver to the Secretariat a copy of a request made under paragraph 3 of article 3.29:
a) Within a period of fifteen (15) days of receipt of the request, in the case of a request made by the investor combatant; or
b) Within a period of fifteen (15) days from the date of the request, in the case of a request made by the opposing side.
3. The opposing side shall deliver to the Secretariat a copy of a request made under paragraph 5 of article 3.29 within fifteen (15) days from the date of receipt of the request.
4. The secretariat shall maintain a public register of the documents referred to in paragraphs 2 and 3.
5. The opposing side shall provide to the other parties:
a) Written notice of a claim that has been submitted to arbitration no later than thirty (30) days after the date of submission of the claim to arbitration; and
b) Copies of all pleadings filed in the arbitration proceedings.
Article 331. A Party
Upon written notice to the parties to the conflict, a Party may make submissions to a tribunal established under this section on questions of interpretation of this Treaty, being discussed before the Tribunal.
Article 332. The Arbitral Proceedings
The headquarters of the arbitral proceedings shall be located in the territory of the party opposing combatants unless the parties otherwise agree, in any case, a tribunal established under this section shall conduct the arbitration proceedings in the territory of a Party that is a member of 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 333. 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 and in the legislation of the opposing side.
2. An interpretation by the Council on a provision of this Treaty shall be binding on a tribunal established under this section.
Article 334. 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, a tribunal established under this section shall apply to the Council an interpretation on this matter. The Council shall, within a period of sixty (60) days of the delivery of the request in writing and shall submit its interpretation to the Tribunal.
2. Interpretation of the Council referred to in paragraph 1 shall be binding on a tribunal established under this section. If the Council fails to submit an interpretation within the time-limit, the Tribunal shall decide on the matter.
Article 335. Expert Opinions
Without prejudice to the appointment of other kinds of experts where this is authorized by the applicable arbitration rules, the Tribunal established under this section, at the request of a litigant or party on its own initiative unless the parties to the conflict do not accept, may appoint one or more experts to rule in writing any issue that a party combatant in a proceeding, in accordance with the terms and conditions to be agreed upon between the warring parties.