Where, subsequent to the submission of a claim to arbitration, an additional claim is submitted under the same arbitration procedure, it shall be deemed submitted to arbitration under this Section on the date of its receipt under the applicable arbitration rules and the time limitation set forth in Article 12.18 shall apply.
6. The arbitration rules applicable pursuant to paragraph 4, and in effect on the date of the claim or claims submitted to arbitration under this Section, shall gover the arbitration except to the extent modified or supplemented by this Agreement
7. Liability between the disputing parties for the bearing of expenses, including, where appropriate, the award of costs pursuant fo Article 12.21, arising out of their participation in the arbitration shall be established:
(a) by the arbitration institution before which the claim has been submitted to arbitration, in accordance with its rules of procedure; or
(b) according to the rules of procedure agreed upon by the disputing parties, when applicable.
8. The claimant shall deliver together with the notice of arbitration referred to in paragraph 5:
(a) the name of the arbitrator appointed by the claimant, or
(b) the written consent of the claimant to the appointment of such arbitrator by the Secretary General.
Article 12.17. Consent of Each Party to Arbitration
1. Each Party consents to submit a claim to arbitration under this Section in accordance with this Agreement.
2. The consent referred to in paragraph 1 and the submission of the claim to arbitration under this Section shall comply with the requirements set forth in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules, which require the written consent of the parties to the dispute;
(b) Article II of the New York Convention, which requires an "agreement in writing"; and (c) Article | of the Inter-American Convention, which requires an "agreement".
Article 12.18. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than three (3) years have elapsed since the date on which the claimant knew or should have known of the alleged breach under Article 12.16.1, and knowledge that the claimant, for claims brought under Article 12.16.1(a), or the enterprise, for claims brought under Article 12.16.1(b), suffered loss or damage.
2. No claim may be submitted to arbitration under this Section unless:
(a) the claimant consents in writing to submit to arbitration, in accordance with the procedures set forth below in this Treaty; and
(b) the notice of arbitration referred to in Article 12.16.5 is accompanied:
(i) for claims submitted to arbitration under Article 12.16.1(a), of the claimant's written waiver; and of the claimant's written waiver and the enterprise's written waiver where the claim is made for loss or damage to its interest in an enterprise of the respondent Party that is a legal person that the investor owns or controls directly or indirectly, at the time notice is given; and
(ii) for claims submitted to arbitration under Article 12.16.1(b), of written waivers by the claimant and the enterprise,
of any right to initiate before any judicial or administrative tribunal under the law of any Party, or other dispute settlement procedures, any action with respect to any measure alleged to constitute a breach referred to in Article 12.16.
3. Notwithstanding subparagraph 2(b), the claimant, for claims brought under Article 12.16.1(a), and the claimant or the enterprise, for claims brought under Article 12.16.1(b), may initiate or continue an interim measure of protection, not involving the payment of monetary damages, before a judicial or administrative tribunal of the respondent, provided that such measure is brought for the sole purpose of preserving the rights and interests of the claimant or the enterprise while the arbitration is pending (10).
4. The waiver of an enterprise set forth in subparagraph 2(b){i) or 2(b)(ii) shall not be required only when it is alleged that the defendant deprived the plaintiff of control of the enterprise.
5. No claim may be submitted to arbitration under this Section if the claimant (in the case of claims submitted under Article 12.16.1(a)) or the claimant or the enterprise (in the case of claims submitted under Article 12.16.1(b)) has previously submitted the same alleged violation to an administrative or judicial tribunal of the respondent, or to any other binding dispute resolution procedure.
6. For greater certainty, if the claimant elects to submit a claim described under this Section to an administrative or judicial tribunal of the respondent or to any other binding dispute resolution mechanism, that election shall be final and the claimant may not submit the same claim under this Section.
7. Failure to comply with any of the conditions precedent described in paragraphs 1 through 6 shall nullify the consent given by the Parties in Article 12.17.
Article 12.19. Procedure Regarding Prudential Measures
1. Where an investor submits a claim to arbitration under this Section and the respondent invokes as a defense Article 12.11.3, or Article 18.5 (Measures to Safeguard the Balance of Payments), the tribunal established under Article 12.20 shall, at the request of the respondent, request a written report from the Parties, or from each Party, on the issue of whether and to what extent the provisions indicated are a valid defense to the investor's claim. The tribunal may not proceed until it receives the report or reports pursuant to this paragraph, except as provided in paragraph 2.
2. When within ninety (90) days of the request, the court has not received the report(s), the court may proceed to resolve the matter.
Article 12.20. Selection of Arbitrators
1. Unless otherwise agreed by the disputing parties, the tribunal shall be composed of three (3) arbitrators, one (1) arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, shall be appointed by agreement of the disputing parties.
2. The Secretary General shall serve as appointing authority for arbitrators in arbitration proceedings pursuant to this Section.
3. The arbitrators shall:
(a) have experience or specialized knowledge in public intemational law, international investment rules, or in the resolution of disputes arising from intemational investment agreements;
(b) not be dependent on any of the Parties or the Claimant, nor be bound by or receive instructions from any of them.
4. Where a tribunal other than the tribunal established under Article 12.26 is not constituted within ninety (90) days from the date on which the claim is submitted to arbitration pursuant to this Section, the Secretary- General shall, at the request of either disputing party, appoint, after consultation with the disputing parties, the arbitrator or arbitrators not yet appointed. Unless otherwise agreed by the Parties, the presiding arbitrator or arbitrators shall not be a national of either Party.
5. For the purposes of Article 39 of the ICSID Convention and Article 7 of Part C of the ICSID Additional Facility Rules, and without prejudice to objecting to an arbitrator on grounds other than nationality:
(a) the respondent accepts the appointment of each of the members of the tribunal established in accordance with the ICSID Convention or the ICSID Additional Facility Rules;
(b) the claimant referred to in Article 12.16.1(a) may submit a claim to arbitration under this Section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant consents in writing to the appointment of each member of the tribunal; and
(c) the claimant referred to in Article 12.16.1(b) may submit a claim to arbitration under this Section, or pursue a claim under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant and the company express their written consent to the appointment of each of the members of the tribunal.
Article 12.21. Conduct of the Arbitration
1. The disputing parties may agree on the legal place where any arbitration is to be held in accordance with the applicable arbitral rules pursuant to Article 12.16.4. In the absence of agreement between the disputing parties, the tribunal shall determine such place in accordance with the applicable arbitral rules, provided that the place is in the territory of a State that is a party to the New York Convention.
2. The tribunal shall have the authority to accept and consider amicus curiae written submissions from a person or entity that is a non-disputing party. Any non-disputing party that wishes to make written submissions to a tribunal (the applicant) may apply to the tribunal for permission in accordance with Annex 12.21.
3. Without prejudice to the tribunal's power to hear other objections as preliminary questions, such as an objection that the dispute is not within the tribunal's jurisdiction, a tribunal shall hear and decide as a preliminary question any objection by the respondent that, as a matter of law, the claim submitted is nota claim upon which an award in favor of the claimant may be made under Article 12.27.
(a) Such objection shall be submitted to the tribunal as soon as possible after the constitution of the tribunal, and in no event later than the date the tribunal fixes for the respondent to file its statement of defense (or in the case of an amendment to the notice of arbitration referred to in Article 12.16.5, the date the tribunal fixes for the respondent to file its response to the amendment).
(b) Upon receipt of an objection under this paragraph, the tribunal shall suspend any action on the merits of the dispute, establish a timetable for consideration of the objection that is consistent with any timetable that has been established for consideration of any other preliminary issue, and issue a decision or award on the objection, setting forth the grounds therefor.
(c) In deciding on an objection under this paragraph, the tribunal shall assume as true the factual allegations submitted by the claimantin support of any claim contained in the notice of arbitration (or any amendment thereto) and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules. The tribunal may also consider any other relevant facts notin dispute.
(d) The respondent does not waive any objection with respect to jurisdiction or any substantive argument, merely because it has or has not raised an objection under this paragraph, or avails itself of the expedited procedure set forth in paragraph 4.
4. If the respondent so requests, the tribunal shall, within forty-five (45) days after the date of the constitution of the tribunal, decide, in an expeditious manner, an objection under paragraph 3 and any other objection that the dispute is not within the tribunal's jurisdiction. The tribunal shall suspend any action on the merits of the dispute and shall issue a decision or award on such objection, stating the basis therefor, not later than one hundred and fifty (150) days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional thirty (30) days to issue the decision or award. Regardless of whether a hearing has been requested, the tribunal may, upon a showing of extraordinary cause, delay issuing its decision or award for an additional brief period, which may not exceed thirty (30) days.
5. When the tribunal decides a respondent's objection under paragraph 3 or 4, it may, if warranted, award to the prevailing disputing party reasonable costs and attomey's fees incurred in raising or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether the claimant's claim or the respondent's objection was frivolous, and shall give the disputing parties a reasonable opportunity to comment.
6. The defendant shall not assert as a defense, counterclaim or right of set-off or for any other reason that the plaintiff has received or will receive indemnity or other compensation for all or any part of the alleged damages pursuant to an insurance or surety agreement.
7. The tribunal may recommend an interim measure of protection to preserve the rights of a disputing party, or for the purpose of ensuring the full exercise of the tribunal's jurisdiction, including an order to preserve evidence in the possession or under the control of a disputing party or to protect the tribunal's jurisdiction. The tribunal may not order the attachment or prevent the enforcement of a measure that is alleged to be a breach referred to in Article 12.16.
8. In any arbitration conducted pursuant to this Section, at the request of any disputing party, the tribunal shall, before rendering a decision or award on liability, communicate its proposed decision or award to the disputing parties and to the Party of the claimant. Within sixty (60) days after such proposed decision or award is communicated, the disputing parties may submit written comments to the tribunal conceming any aspect of its proposed decision or award. The tribunal shall consider such comments and render its decision or award not later than forty-five (45) days after the expiration of the sixty (60) day comment period. This paragraph shall not apply to any arbitration in which an appeal is available under paragraph 9.
9. If a separate multilateral treaty enters into force between the Parties establishing an appellate body for the purpose of reviewing awards rendered by tribunals constituted under intemational trade or investment agreements to hear investment disputes, the Parties shall endeavor to reach an agreement that would cause such an appellate body to review awards rendered pursuant to Article 12.27 in arbitrations commenced after the multilateral treaty enters into force between the Parties.
Article 12.22. Transparency In Arbitration Proceedings
1. Subject to paragraphs 2 and 4, the respondent shall, after receiving the following documents, make them available to the non-disputing party and the public:
{a) the notice of intent referred to in Article 12.16.2;
(b) the notice of arbitration referred to in Article 12.16.5;
(c) the pleadings, statements of claim and explanatory notes submitted to the tribunal by a disputing party and any written communications submitted pursuant to Article 12.21 and Article 12.26;
(d) orders, awards and decisions of the court and (e) minutes or transcripts of court hearings, when available.
2. The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information classified as protected information in a hearing shall so inform the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Nothing in this Section requires the Respondent to make available protected information or to provide or permit access to information that it may withhold pursuant to Article 18.2 (Essential Security) and Article 18.4 (Disclosure of Information).
4. Any protected information that is submitted to the court will be protected from disclosure in accordance with the following procedures:
(a) pursuant to subparagraph (d), neither the disputing parties nor the tribunal shall disclose to the Party of the claimant or to the public any protected information, where the disputing party providing the information clearly designates it as such in accordance with subparagraph (b);
(b) any disputing party claiming that certain information constitutes protected information shall clearly designate it at the time it is submitted to the tribunal;
(c) a disputing party shall, at the same time it submits a document containing information claimed to be protected information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to non-disputing parties and shall be made public in accordance with paragraph 1; and
(d) the tribunal shall decide any objection to the designation of information claimed to be protected information. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may:
(i) remove all or part of the presentation containing such information, or
(ii) agree to resubmit complete and redacted documents with corrected designations in accordance with the court's determination and subparagraph (c).
In any event, the other disputing party shall, where necessary, resubmit complete and redacted documents, which either omit the information withdrawn pursuant to subparagraph (d){i) by the disputing party that first submitted the information or redesignate the information in a manner consistent with the designation made pursuant to subparagraph (q)(ii) of the disputing party that first submitted the information.
5. Nothing in this Section requires a respondent to deny the public access to information that, under its national law, must be disclosed.
Article 12.23. Applicable Law
1. Subject to paragraph 2, where a claim is brought under Article 12.16.1(a) or 12.16.1(b), the tribunal shall decide the issues in dispute in accordance with this Agreement and the prevailing rules of intemational law and, where applicable, the national law of the Party in whose territory the investment was made.
2. A decision of the Commission declaring the interpretation of a provision of this Agreement under Article 17.1.3(c) (The Free Trade Commission) shall be binding on a tribunal established under this Section and any decision or award rendered by a tribunal shall be consistent with that decision.
Article 12.24. Interpretation of Annexes
1. Where the respondent raises as a defense that the measure alleged to be in violation falls within the scope of Annex I or Annex II, upon request of the respondent, the court shall request the Commission an interpretation of the matter. Within sixty (60) days after delivery of the request, the Commission shall submit in writing to the tribunal any decision stating its interpretation under Article 17.1.3(c) (The Free Trade Commission).
2. The decision rendered by the Commission under paragraph 1 shall be binding on the tribunal, and any decision or award rendered by the tribunal shall be consistent with that decision. If the Commission fails to issue such a decision within sixty (60) days, the tribunal shall decide the matter.
Article 12.25. Expert Reports
Without prejudice to the appointment of other types of experts where authorized by the applicable arbitration rules, the tribunal, at the request of a disputing party or, on its own initiative, unless the disputing parties do not agree, may appoint one or more experts to report in writing on any factual issue conceming environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, on such terms and conditions as the disputing parties may agree.
Article 12.26. Consolidation of Proceedings
1. Where two or more separate claims have been submitted to arbitration under Article 12.16.1, and the claims raise in common a question of law or fact and arise out of the same facts or circumstances, any disputing party may seek a consolidation order, pursuant to the agreement of all disputing parties in respect of which the consolidation order is sought or in accordance with the terms of paragraphs 2 through 10.
2. A disputing party seeking a joinder order pursuant to this Article shall deliver a written request to the Secretary-General and to all disputing parties in respect of which the joinder order is sought and shall specify in the request the following:
{a) the name and address of all disputing parties in respect of whom the joinder order is sought,
(b) the nature of the requested consolidation order; and
(c) the basis on which the request is supported.
3. Unless the Secretary-General determines, within thirty (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 the disputing parties in respect of which the consolidation order is sought, the tribunal to be established pursuant to this Article shall consist of three (3) arbitrators:
(a) an arbitrator appointed by agreement of the claimants;
(b) an 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 sixty (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 order for consolidation 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 12.16.1, raising a common question of law or fact, and arising out of the same facts or circumstances, have been submitted to arbitration, 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 believes would contribute to the resolution of the other claims; or
(c) instruct a court established under Article 12.20 to assume jurisdiction over, hear and determine jointly, all or part of the claims, provided that:
(i) that tribunal, at the request of any claimant who was not previously a disputing party before that tribunal, be reinstated with its original members, except that the arbitrator on the claimantsâ side shall be appointed pursuant to subparagraph 4{a) and paragraph 5; and
(ii) that court 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 12.16.1, 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 plaintiff,
(b) the nature of the order requested; and (c) the grounds on which the request is based.
The claimant shall deliver a copy of its request to the Secretary General and to the disputing parties listed in the request in accordance with 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 12.20 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. At 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 12.20 be adjourned, unless the latter tribunal has already adjoumed its proceedings.
Article 12.27. Awards
1. When a court makes a final award unfavorable to the defendant, the court may award, separately or in combination, only:
(a) pecuniary damages and interest, and
(b) restitution of the 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 attomeyâs fees in accordance with this Section and the applicable arbitration rules.
2. Subject to paragraph 1, where a claim is submitted to arbitration under Article 12.16.1(b):
(a) the award providing for restitution of the property shall provide that restitution shall be granted to the enterprise;
(b) the award of pecuniary damages and interest, if any, shall provide that the amount of money shall be pay the company, and
(c) the award shall provide that the award is without prejudice to any right of any person to relief under applicable domestic law.
3. A court is not authorized to order the payment of punitive damages.
4. For greater certainty, a court shall not have jurisdiction to rule on the legality of the measure under domestic law.
Article 12.28. Finality and Enforcement of an Award
1. For greater certainty, an award rendered by a tribunal shall not be binding 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 comply with and carry out the award without delay.
3. The disputing party may not request enforcement of the final award until: (a) in the case of a final award rendered under the ICSID Convention:
(i) one hundred and twenty (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 review or annulment proceedings have been concluded; and
(b) in the case of a final award rendered under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules or the rules selected pursuant to Article 12.16.4(d):
(i) ninety (90) days have elapsed since the date on which the award was rendered and no proceeding to revise, set aside or annul the award has been instituted by any disputing party; or
(ii) a court has dismissed or allowed an application for revision, setting aside or annulment of the award and this decision cannot be appealed.
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 15.5 (Establishment of a Panel). The requesting Party may request in such proceedings:
(a) a determination that non-compliance 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 15.9 (Report of the Panel) 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 proceedings under paragraph 5 have been instituted.
7. For the purposes of Article | of the New York Convention and Article | 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 12.29. Delivery of Documents
Delivery of the notification and other documents to a Party shall be made at the place designated by the Party in Annex 12.15.
Section C. Definitions
Article 12.30. Definitions
For the purposes of this Chapter:
ICSID means the International Centre for Settiement of Investment Disputes;
UNCITRAL means the United Nations Commission on Intemational Trade Law;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on June 10, 1958;
Inter-American Convention means the /nter-American Convention on International Commercial Arbitration, held in 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;
company means a company as defined in Article 1.5 (Definitions of General Application) and a branch of a company;
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 characteristics such 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) a company,
(b) shares, capital and other forms of participation in the equity of a company;