28.4 Where an investor or its investment has failed to comply with its obligations under Article 18 (Compliance with Domestic Laws and International Obligations) or has violated Article 19 (Anti-Corruption, Anti-Money Laundering and Anti-Terrorist Financing), the Host Party may file a counterclaim in any court established pursuant to this Section.
28.5 In the case of an investment authorization or investment contract between a Party and the investor of the other Party, the provisions of such authorization or contract shall prevail and no arbitration mechanism provided for in this Section may be initiated by such investor to resolve a dispute relating to such investment.
28.6 This section shall not apply to a dispute submitted by an investor if more than three years have elapsed since the date on which such investor knew or should have known of the alleged breach and the loss or damage suffered.
28.7 An investor may use the dispute resolution mechanism under this section at his or her option, either on his or her own behalf or on behalf of the investment, which is a legal entity, if he or she directly or indirectly owns or controls that investment, and his or her choice is irrevocable. For greater certainty, the investor may not submit one complaint in his or her own name and another complaint on behalf of the investment.
28.8 If the investor involved in the dispute is a natural person with dual nationality of the Parties or has the nationality of one Party and permanent resident status of the other, only the courts of the Respondent Party shall have jurisdiction to resolve the dispute.
28.9 A dispute resolution proceeding may not be commenced if it duplicates another dispute resolution proceeding already commenced or if it relates to the same facts constituting a breach covered by paragraph 28.2 that are being addressed in another dispute resolution proceeding, either local or international. An investor of the home Party may not initiate a proceeding to enforce its rights under paragraph 28.2 if its local affiliate is engaged in the same proceeding under that paragraph.
28.10 A Party shall not grant diplomatic protection in respect of a dispute that one of its investors and the other Party has agreed to submit or has submitted to arbitration under this Section. However, such diplomatic protection may be granted in the event that a Party has not complied with the award in that dispute. Diplomatic protection, for purposes of this paragraph, does not include informal diplomatic exchanges for the sole purpose of facilitating the resolution of the dispute.
Article 29. Consultations and Negotiations
29.1 Any dispute between an investor of a Party and the Host Party concerning a breach referred to in Article 28.2 shall be subject to written notification of the dispute, hereinafter referred to as the "Dispute Notification", by such investor to the Host Party together with a detailed aide-mémoire.
29.2 The National Focal Points will coordinate with each other and with the Joint Committee to prevent, manage and amicably resolve investment disputes by exhausting the host Party's domestic administrative remedies.
29.3 The dispute should be settled amicably through consultations and negotiations that are conducted in good faith by the parties to the dispute in the Joint Committee. Such an amicable settlement may be accepted at any time, including after the commencement of the arbitration.
29.4 The Joint Committee shall meet, upon convocation by the Host Party, no later than 30 days after the date of receipt of the notification of the dispute referred to in paragraph 29.1. The consultations and negotiations shall be held in the capital city of the Host Party unless the Parties agree otherwise.
29.5 The Joint Committee shall have a period of 90 days from the date of receipt of the notification of the dispute, which may be extended upon justification, to submit a report, which shall include, inter alia:
i) a description of the measure in dispute and the Joint Committee's proposed solution to the dispute; and
ii) the position of the Parties and the investor regarding the measure and the proposed solution.
29.6 In order to facilitate the search for a solution acceptable to the parties to the dispute, whenever possible, the following representatives shall be invited to participate in the meetings of the Joint Committee
i) the investor's representatives; and ii) representatives of governmental or non-governmental entities involved in the disputed action.
29.7 If the solution referred to in paragraph 29.5 is not agreed to by the parties to the dispute or any of them, the dispute, taking into account the time limit referred to in paragraph 29.5, may be submitted by the parties to the dispute to other non-binding procedures, such as mediation.
Article 30. Mediation
30.1 Mediation may be entrusted to a natural or legal person and the mediator is appointed jointly by the parties to the dispute.
30.2 The mediator can hear the parties to the dispute and compare their points of view to enable them to find a solution to the conflict between them.
30.3 The mediator may, with the agreement of the parties to the dispute, carry out or have carried out any expert appraisal of a nature to clarify the dispute.
30.4 At the end of his mission, the mediator proposes to the parties to the dispute a draft compromise containing the facts of the dispute and the terms of its settlement.
30.5 If the draft agreement is accepted by the parties to the dispute, it will be signed by the mediator and the parties to the dispute and will have the force of res judicata and may be accompanied by the mention of exequatur.
30.6 Unless the parties to the dispute agree on another time limit, if by the end of a period of six (6) months from the date of receipt of the notification of dispute referred to in Article 29.1, no solution has been found under Article 29 and/or Article 30, the dispute shall be submitted to the competent courts of the Host Party.
Article 31. Submission of the Dispute to the Competent Courts of the Host Party
31.1 The dispute may be submitted to the competent courts of the Host Party only after exhaustion of the remedies provided for in Article 29 of this Agreement.
31.2 If, within 30 months from the notification of the commencement of proceedings before the competent courts, the latter have not rendered a final judgment, the dispute may be submitted, at the request of the investor, to arbitration.
31.3 A dispute may not be submitted to arbitration if the competent courts have rendered a final judgment.
Article 32. Prerequisites for Submitting a Dispute to Arbitration
32.1 An investor may not submit a dispute to arbitration under this Section if it is found that his or her investment was made through bribery, money laundering or misrepresentation.
32.2 No dispute may be submitted to arbitration by an investor unless the investor has established that it has exhausted local remedies under Articles 29 and 31 of this Section.
32.3 An arbitral tribunal may not be constituted under this Section if a final judgment has been entered by the competent courts of the Host Party or if the disputing investor pursues the proceedings in any competent court of that Party.
32.4 An investor must serve written notice of its intention to submit a dispute to arbitration on the Host Party at least 90 days prior to the filing of its claim (Notice of Arbitration). This notice should contain the following information:
a) the name and address of the investor and the investor's legal representatives, and where a complaint is submitted on behalf of an investment, the name, address and place of incorporation of the investment;
b) for each complaint, the provision(s) of this Agreement alleged to have been violated and any other relevant provision ;
c) the legal and factual basis for the complaint;
d) the relief sought and the approximate amount of damages claimed ;
e) the written consent of the Investor to arbitration in accordance with the procedures set out in this Agreement; and
f) the name of the arbitration body referred to in section 33 selected for the resolution of the dispute.
32.5 The investor does not mention in its "Notice of Arbitration" any measures that were not specified in its "Notice of Dispute".
32.6 The Notice of Arbitration referred to in paragraph 32.4 shall be accompanied by evidence that it is an investor of the other Party.
Article 33. Referring a Dispute to Arbitration
33.1 An investor, who meets the prerequisites of Article 32, may submit a dispute for arbitration to one of the following dispute resolution forums:
a) ICSID, if both Parties are parties to the Washington Convention;
b) the ICSID Additional Facility Rules; c) an âad hoc" tribunal constituted under the UNCITRAL Arbitration Rules;
d) an Arbitration Centre as may be agreed upon by both parties to the dispute.
33.2 In the event the investor elects to submit the dispute to arbitration in one of the arbitration forums listed in Section 33.1, the choice of such forum shall be irrevocable by the investor.
33.3 The arbitration shall be governed by the applicable arbitration rules, by one of the forums selected pursuant to Section 33.1, in effect at the time the dispute is submitted under this Section, subject to the modifications provided for in this Agreement.
33.4 The Parties in the Joint Committee may adopt additional rules of procedure to supplement the arbitration rules referred to in Section 33.3 and such Parties may amend the rules they themselves have made. The arbitral tribunal established under this Section shall be bound by such rules.
33.5 A dispute shall be deemed to have been submitted to arbitration when the investor's request for arbitration (notice of arbitration) is submitted to, or registered, as the case may be, by the Secretariat of one of the instruments chosen by such investor that are provided for in paragraph 33.1 and to the Responding Party.
33.6 The filing of the Notice of Dispute, the Notice of Arbitration (Notice of Arbitration) and any other document shall also be made with the secretariats of the Parties' focal points.
33.7 If, after submitting a dispute to arbitration under this section, the investor takes no procedural steps for an uninterrupted period of six months, such investor shall be deemed to have withdrawn its claim and to have abandoned the dispute. The authority of the tribunal constituted to adjudicate such dispute shall be deemed to have expired after charging the costs of the arbitration to the withdrawing investor.
Article 34. Consent to Arbitration
34.1 Subject to Article 25 of this Agreement (Denial of Benefits), each Party consents to the submission of each dispute to arbitration under the terms of this Agreement. Failure to comply with a condition precedent set out in Article 32 shall negate such consent.
34.2 The consent referred to in section 34.1 and the submission of a complaint to arbitration by an investor meet the requirements:
a) Chapter II of the Washington Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for the written consent of the parties to the dispute; and
b) Article II of the New York Convention with respect to "written agreementâ.
Article 35. Constitution of the Arbitral Tribunal
35.1 An Aprbitral Tribunal constituted under this Article may not decide disputes that do not fall within the scope of Section VI.
35.2 The Tribunal shall consist of three arbitrators. Each party to the dispute shall appoint, within 30 days after the date of filing or registration, as the case may be, of a notice of arbitration, one arbitrator and the third, who shall be the chairperson of the Tribunal, shall be appointed jointly by the parties to the dispute.
35.3 No member of the arbitral tribunal shall be a national of the Host Party or the Home Party and/or have permanent resident status in either of them.
35.4 Arbitrators shall have, inter alia, a thorough knowledge of the subject matter of the dispute, experience in public international law, international trade or investment rules, or the settlement of disputes arising under international trade or investment agreements. They shall be independent of, and shall not be instructed by or connected with, the Parties and the investor in the dispute.
For greater certainty, no member of the Arbitral Tribunal may serve simultaneously as an arbitrator in a dispute arising under this Agreement and as counsel in another pending or potential arbitration involving a foreign investor and a State.
35.5 A party to the dispute may request the disqualification of an arbitrator for good cause, including a real or apparent conflict of interest. The party requesting the challenge of an arbitrator shall give notice of its request within 15 days after the date on which it was notified of the appointment (or acceptance of appointment, as the case may be) or within 15 days after the date on which it became aware of the information giving rise to the challenge. The request for a challenge shall be communicated to the other party to the dispute, the arbitrator concerned and the other arbitrators. It shall state the reasons for the challenge. Any challenge shall be decided by the other two appointed members. If the two arbitrators disagree or if more than one arbitrator is challenged, the Secretary General of ICSID or the Chairman of the Administrative Council of ICSID, as the case may be, shall decide on the challenge. For all other cases and matters not provided for in this Section, the arbitration rules governing the proceeding shall apply.
35.6 The parties to the dispute may establish rules relating to the expenses incurred by the arbitral tribunal, including the remuneration of the arbitrators.
35.7 If the parties to the dispute do not reach agreement on the remuneration of the arbitrators before the constitution of the arbitral tribunal, the arbitrators shall be remunerated at the current ICSID rate.
35.8 If no Tribunal is constituted within 90 days after the date of filing or registration, as the case may be, of the Notice of Arbitration, a party to the dispute may request the Secretary-General of ICSID to appoint the arbitrator or arbitrators not yet appointed. The Secretary-General of ICSID shall make such appointment at his or her discretion and, to the extent possible, in consultation with the parties to the dispute.
35.9 If the Secretary-General of ICSID is a national of one of the Parties, the appointments referred to in paragraph 35.8 shall be made by the Chairman of the Administrative Council of ICSID or by the person who replaces him or her in case of impediment who is not a national of one of the Parties.
35.10 If an arbitrator appointed pursuant to this section resigns or is unable to serve, a new arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator.
Article 36. Language of Proceedings
36.1 Unless the parties to the dispute agree otherwise, the language of the arbitration proceedings, including hearings, decisions and awards, shall be :
a) where Morocco is the Respondent, Arabic and one of the following two languages: French or English;
b) when........ is the Respondent, on......... and one of the following two languages: French or English.
36.2 Communications, submissions, witness statements and documentary evidence may be submitted in either language of the arbitration.
Article 37. Conduct of the Arbitration
37.1 Unless the parties to the dispute agree otherwise, a court shall hold the arbitration in the territory of a country which is a party to the New York Convention, chosen in accordance with :
a) the ICSID Additional Facility Rules if the arbitration is governed by those Rules;
b) the UNCITRAL Arbitration Rules if the arbitration is governed by those Rules.
37.2 At the request of one of the parties to the dispute, the tribunal may determine a convenient place for meetings and hearings other than the seat of arbitration, taking into account, inter alia, the constraints of the parties to the dispute and the arbitrators, the proximity of the evidence, and paying particular attention to the capital of the responding Party.
37.3 The Party of origin shall have the right to attend hearings held under this Section and may, upon written notice to the parties to the dispute, make oral and written submissions to the Tribunal on a question of interpretation of this Agreement or on other matters relevant to the dispute. Such submissions should not constitute diplomatic protection by the home Party for the benefit of the investor.
37.4 The tribunal shall ensure that the parties to the dispute are given an opportunity to comment on any submission made by the Originating Party.
37.5 At any stage of the proceedings, the court may propose to the parties to the dispute that the dispute be settled amicably.
37.6 The Tribunal shall have the authority to accept and consider written submissions from a party (person or entity) that is not a party to the dispute and that has a significant interest in the arbitration. The tribunal shall ensure that any submissions made by such party do not unduly disrupt or burden the proceedings or cause undue prejudice to any party to the dispute.
37.7 The Tribunal shall provide an opportunity for the disputing parties and the Originating Party to comment on the submissions made by the non- disputing party referred to in paragraph 37.6.
37.8 The court may order an interim measure of protection to preserve the rights of a party to the dispute, including an order to preserve evidence in the possession or control of a party to the dispute. However, the court may not order a seizure or prohibit the enforcement of the measure that is alleged to constitute a breach under Article 28 (Purpose and Scope).
37.9 A request by a party to the dispute to a judicial authority of the Host Party for an interim measure shall not be deemed to be inconsistent with the arbitration agreement or to be a waiver of the right to rely on the arbitration agreement.
37.10 Without prejudice to the appointment of other experts where permitted by the applicable arbitration rules, the Tribunal may, at the request of the parties to the dispute, appoint one or more experts to submit a written report to the Tribunal on any factual matter relating to environmental, health, safety or other issues raised by any party to the dispute in the course of a proceeding, in such manner as may be agreed by such parties.
Article 38. Transparency of the Arbitration Process
38.1 Hearings under this section shall be open to the public. The court may hold part of the hearings in private, to the extent necessary to ensure the protection of confidential information.
38.2 Unless the parties to the dispute agree otherwise, all documents submitted to or emanating from the tribunal shall be made available to the public in a redacted version.
38.3 Where a party to a dispute asserts that information provided to the Tribunal is confidential information, including business information, or is protected from disclosure under the law of a Party, the party shall, at the time of providing the information to the Tribunal, state that the information is confidential.
38.4 The Tribunal may, on its own initiative or at the request of a party to the dispute, take appropriate measures to restrict or delay the release of information where such release would compromise the integrity of the arbitral process by interfering with the collection or production of evidence or by intimidating witnesses, counsel acting for the parties to the dispute or members of the Arbitral Tribunal, or in comparable exceptional circumstances.
38.5 The Parties may, in a dispute resolution proceeding under this Section, make available to officials of their respective national governments any relevant documents in their unredacted form, provided that such officials shall protect the confidential information contained in such documents.
38.6 Any award made by a court under this section shall be made available to the public in a redacted version.
Article 39. Dismissal of Frivolous Complaints
39.1 The Tribunal shall address as a preliminary matter any objection by the Respondent that the dispute submitted to the Tribunal is not subject to an award that could be made in favor of the Investor under Article 42 of this Agreement (Award of the Arbitral Tribunal).
39.2 The objection referred to in paragraph 39.1 shall be submitted to the Tribunal as soon as it is filed and in no event shall it be submitted after the date set by the Tribunal for the filing of the Respondent's first reply brief.
39.3 Following receipt of an objection under this section, the court shall suspend all proceedings on the merits and set a date for consideration of such objection in accordance with any timetable established for consideration of any other preliminary matter.
39.4 The parties to the dispute shall submit their views and observations to the tribunal within a reasonable time. If the tribunal decides that the complaint is manifestly without merit, or that it is not within the tribunal's jurisdiction, the tribunal shall make an award to that effect.
39.5 Before making a final determination on an objection raised under this section, the court shall give the parties to the dispute an opportunity to comment.
39.6 The Tribunal shall make an award under this section no later than 150 days after the date of receipt of the request under Article 39.1. However, if the responding Party requests a hearing, the Tribunal may take an additional 30 days to make the decision or award.
39.7 Where the tribunal rules on such objection and grants the Respondent Party's case, the tribunal shall charge the investor with the costs of the arbitration and the attorneys' fees incurred by the Respondent Party in connection with such objection.
Article 40. Consolidation of Complaints
40.1 In the event that two or more claims separately submitted to arbitration under this Section share a common issue of law or fact and arise out of the same events or circumstances, any party to the dispute may request an order of consolidation.
40.2 The party to the dispute seeking a joinder order under this Article shall deliver a written request to the Secretary-General of ICSID and to all parties that would be affected by the joinder order, containing the following information
a) the names and contact information of all parties to the order sought;
b) the nature of the order sought; and
c) the grounds on which the order is sought.
40.3 If the Secretary-General of ICSID determines that the claim has merit, a Tribunal shall be established under this Article no later than 60 days after the Secretary-General receives the request for the joinder order.
40.4 Unless all parties to the dispute who would be affected by the order agree otherwise, the tribunal established under this section shall consist of three arbitrators:
a) an arbitrator jointly appointed by the investors;
b) an arbitrator appointed by the Respondent;
c) the president of the tribunal appointed by the Secretary General of ICSID, provided that the president is not a national of any of the parties to the dispute.
40.5 If, within 60 days of the date of receipt by the Secretary-General of a request under paragraph 40.2, the Respondent or the Investors fail to appoint an arbitrator in accordance with paragraph 40.4, the Secretary-General shall, at the request of any party to the dispute to whom the order relates, appoint the arbitrator or arbitrators not yet appointed. Such appointment shall be made at the discretion of the Secretary General and, to the extent possible, in consultation with the parties to the dispute.
If the Secretary-General of ICSID is a national of one of the Parties, the appointments referred to in paragraphs 40.4 and 40.5 shall be made by the Chairman of the Administrative Council of ICSID or by the person who replaces him or her in the event of his or her inability to act who is not a national of one of the Parties.
40.6 Unless the parties to the dispute otherwise agree, the Tribunal established under this Article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, subject to the modifications provided for in this Article.
40.7 On application by a party to the dispute, the Tribunal constituted under this section may order a stay of proceedings before a Tribunal constituted under section 35 (Constitution of Arbitral Tribunal) until it makes the decision on consolidation.
40.8 If the tribunal constituted under this section finds that two or more claims submitted to arbitration under this Section involve the same question of law or fact and arise out of the same events or circumstances, it may, in the interest of fair and efficient resolution of the claims and after hearing the parties to the dispute, by order:
a) to take up some or all of these complaints and to investigate and adjudicate them together;
b) take up, investigate and decide upon one or more complaints the resolution of which it believes would facilitate the resolution of the others.
40.9 If a Tribunal has been established under this section, an investor who has submitted a claim to arbitration under this Section and who has not been named in an application under section 40.2 may request in writing that the Tribunal be included in any order made under section 40.8. Such request shall contain the following:
a) the name and address of the investor; b)the nature of the order sought; c) the grounds on which the order is sought.
The applicant shall forward a copy of its request to the Secretary General and all parties to the dispute covered by the joinder order.
40.10 A Tribunal constituted under section 35 (Establishment of Arbitral Tribunal) does not have jurisdiction to determine, in whole or in part, a claim that is before the Tribunal constituted under this section.
Article 41. Applicable Law In Disputes
41.1 A dispute filed with an arbitral tribunal shall be decided in accordance with the provisions of this Agreement, the national law of the Host Party and the applicable rules of international law.
41.2 An interpretation by the Parties in the Joint Committee of any of the provisions of this Agreement shall be binding on any court established under this Agreement and any award shall be consistent with such interpretation.
41.3 The tribunal may request, on the initiative of a party to the dispute or on its own initiative, that the Parties make an interpretation of the provision of this Agreement that is in dispute between the parties to the dispute. The Parties, meeting in the Joint Committee, shall submit their decision declaring their interpretation to the tribunal in writing within 90 days of receiving the request. If the Parties fail to issue such a decision within 90 days, the court will decide the matter itself.
41.4 Where the defending Party asserts in its defense that the measure alleged to be in breach relates to provisions of Section IV of this Agreement (Exceptions), the court shall, upon request of such Party, seek the interpretation of the Joint Committee on this point. The Joint Committee shall, within 90 days of receipt of the request, submit its interpretation to the court in writing.
41.5 In accordance with Section 41.2 of this Article, an interpretation of the Joint Committee submitted under Section 41.4 of this Article shall be binding on the court. If the Joint Committee has not provided an interpretation within 90 days, the court shall decide the matter itself.
41.6 The Explanatory Notes of the Parties set out in this Agreement shall be binding on any Tribunal established under this Section and any award shall be in accordance with such Notes.
Article 42. Award of the Arbitral Tribunal
42.1 The parties to the dispute may agree on an amicable solution to the dispute at any time before the arbitral tribunal renders its award deciding the dispute.
42.2 At the request of any party to the dispute, the arbitral tribunal may, before making its award, communicate its draft award to the parties to the dispute. Within thirty (30) days from the date of communication of the draft award, the parties to the dispute shall have the opportunity to submit written comments to the tribunal on any aspect of the draft award. The tribunal shall consider such comments and render its award within sixty (60) days of the communication of the draft award to the parties to the dispute.
42.3 The arbitral tribunal shall make its award by majority vote.
42.4 In making a final award against one of the parties to the dispute, a court may grant only, separately or in combination:
a) monetary damages, and any applicable interest;
b) restitution of property, in which case the award shall provide that either party to the dispute, as the case may be, may pay monetary damages, and any applicable interest, in lieu of restitution.
The Tribunal may also impose costs in accordance with the applicable arbitration rules.
42.5 Subject to section 42.4, where a claim is submitted to arbitration on behalf of an investment :
a) the award ordering the return of property shall provide that the return is to be made to the investment; and
b) the award for monetary damages and any applicable interest shall provide that the amount due is to be paid to the investment.
42.6 The Court may not order the Respondent to pay punitive damages.
42.7 Each party to the dispute shall bear the costs of the arbitration proceedings and the costs of its arbitrator. The costs of the chairman of the arbitral tribunal and other costs related to the conduct of the arbitration shall be borne equally by the parties to the dispute, unless the arbitral tribunal decides that all or a high proportion of the costs shall be borne by the losing party in the dispute. Such decision of the tribunal shall be final and binding on both parties to the dispute.
Article 43. Finality and Enforceability of the Award Made by the Arbitral Tribunal
43.1 The award rendered by the arbitral tribunal is only binding between the parties to the dispute and in the case that has been decided.
43.2 Subject to subsection 43.3 and the review procedure applicable to interim awards, a party to the dispute shall comply with the award without delay.
43.3 A party to the dispute may seek enforcement of a final award only when the following conditions are met:
(ii) or the revision or cancellation procedure has been completed;