6. The defendant shall not oppose as a defense, counterclaim or countervailing duty or for any other reason that the claimant has received or will receive compensation or other compensation for all or part of the alleged damages, under an insurance or guarantee contract.
7. The court 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 jurisdiction of the court, including an order to preserve evidence in or under the jurisdiction of the disputing party. Control of a disputing party or to protect the jurisdiction of the court. The court can not order the embargo or prevent the application of a measure that is alleged as a violation mentioned in Article 12.16.
8. In any arbitration conducted pursuant to this Section, at the request of any of the disputing parties, the court, prior to rendering a decision or award of liability, shall communicate its proposed decision or award to the Parties and 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 court regarding any aspect of their proposed decision or award. The court shall consider such comments and render its decision or award no later than forty-five (45) days after the expiration of the sixty (60) day deadline for comment. This paragraph shall not apply to any arbitration in which an appeal is available under paragraph
9. If a separate multilateral treaty establishing an appellate body for the purpose of reviewing awards rendered by courts established under international trade or investment agreements to entertain investment disputes shall enter into force between the Parties, the Parties shall seek Reach an agreement that would cause such an appellate body to review awards rendered pursuant to Article 12.27 in arbitrations initiated after the multilateral agreement enters into force between the Parties.
1222:. Transparency In Arbitral Proceedings
1. Subject to paragraphs 2 and 4, the defendant, after receiving the following documents, shall place them at the disposal of the non-disputing party and the public:
(A) the notification of intent mentioned in Article 12.16.2;
(B) the notice of arbitration referred to in Article 12.16.5;
(C) the allegations, briefs and explanatory notes submitted to the court by a disputing party and any written submissions submitted in accordance with Article 12.21 and Article 12.26;
(D) orders, awards and decisions of the court; Y
(E) the minutes or transcripts of court hearings, when available.
2. The tribunal shall conduct open hearings to the public and shall determine, in consultation with the disputing parties, the relevant logistical arrangements. However, any disputing party who intends to use information classified as protected information at a hearing must so inform the court. The court will make appropriate arrangements to protect the information from its disclosure.
3. Nothing in this Section requires the respondent to make available protected information or to provide or allow access to information that he may retain 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) in accordance with sub-paragraph (d), neither the disputing parties nor the court shall disclose to the complaining Party or the public any protected information, where the disputing party providing the information clearly so designates it in accordance with sub-paragraph (B);
(B) any disputing party claiming that certain information constitutes protected information shall clearly designate it at the time of its submission to the court;
(C) a disputing party shall, at the same time as submitting a document containing information alleged to be protected information, submit a redacted version of the document that does not contain the information. Only the drafted version shall be provided to the non-disputing Parties and shall be made public in accordance with paragraph 1; Y
(D) the court shall rule on any objection to the designation of information alleged as protected information. If the court determines that such information was not properly designated, the disputing party submitting the information may:
(I) withdraw all or part of the presentation containing such information; or
(II) agree to re-submit full and drafted documents with designations corrected in accordance with the court's determination and sub-paragraph (c).
In any event, the other disputing party shall, where necessary, re-submit complete and redacted documents which omit the information withdrawn in accordance with sub-paragraph (d) (i) by the disputing party who first submitted the information or re-designate The information in a manner consistent with the designation made in accordance with sub-paragraph (d) (ii) of the disputing party which first submitted the information.
5. Nothing in this Section requires the respondent to deny access to the public to information that, according to its national law, must be disclosed.
1223:. Applicable Law
1. Subject to paragraph 2, where a claim is made in accordance with Article 12.16.1 (a) or 12.16.1 (b), the tribunal shall decide the issues in dispute in accordance with this Treaty and with the main rules of international law ; and, where applicable, the national legislation of the Party in whose territory the investment was made.
2. A Commission decision declaring an interpretation of a provision of this Agreement under Article 17.1.3 (c) (the Free Trade Commission) shall be binding upon a tribunal established under this Section and any decision Or award rendered by a court shall be consistent with that decision.
1224:. Interpretation of the Annexes
1. Where the defendant submits as a defense that the measure alleged to be in breach falls within the scope of Annex I or Annex II, at the request of the defendant, the court shall request the Commission to interpret the case. Within sixty (60) days from the date of delivery of the request, the Commission shall submit to the court in writing any decision declaring its interpretation in accordance with Article 17.1.3 (c) (The Free Trade Commission).
2. The decision issued by the Commission under paragraph 1 shall be binding on the court and any decision or award rendered by the court shall be consistent with that decision. If the Commission does not issue such a decision within a period of sixty (60) days, the court shall decide on the matter.
1225:. Reports of Experts
Without prejudice to the designation of other experts when authorized by the applicable arbitration rules, the tribunal may, at the request of a disputing party or, on its own initiative, unless the disputing parties do not accept it, may designate one or more experts to Inform in writing any questions of fact relating to environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, in accordance with such terms and conditions as the disputing parties agree.
1226:. Accumulation of Procedures
1. In cases where two (2) or more separate claims under Article 12.16.1 have been submitted to arbitration and the claims jointly raise a question of fact or law and arise from the same facts or circumstances, Any disputing party may seek an order of accumulation in accordance with the agreement of all disputing parties in respect of which the order of accumulation is sought or in accordance with the terms of paragraphs 2 to 10.
2. The disputing party seeking an accumulation order in accordance with this Article shall deliver a request in writing to the Secretary-General and all disputing parties for which the order of accumulation is sought and shall specify in the request following:
(A) The name and address of all the disputing parties in respect of which the order of accumulation is sought;
(B) the nature of the requested accumulation order; and
(C) the basis on which the application is supported.
3. Unless the Secretary-General determines, within thirty (30) days after receipt of a request pursuant to paragraph 2, that it is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the disputing parties in respect of which the order of accumulation is sought agree otherwise, the tribunal established in accordance with this Article shall be composed of three (3) arbitrators:
(A) an arbitrator appointed by agreement of the plaintiffs;
(B) an arbitrator appointed by the defendant; and
(C) the presiding arbitrator appointed by the Secretary-General, who shall not be a national of either Party.
5. If, within a period of sixty (60) days following the receipt by the Secretary-General of the request made pursuant to paragraph 2, the respondent or the complainants do not appoint an arbitrator under paragraph 4, the Secretary General, at the request of any disputing party in respect of which the accumulation order is sought, shall appoint the arbitrator or arbitrators who have not yet been appointed. If the respondent fails to appoint an arbitrator, the Secretary-General shall designate a national of the respondent and, in the event that the complainants do not designate an arbitrator, the Secretary-General shall designate a national of a party to the claimants.
6. In the event that the tribunal established pursuant to this Article has established that two (2) or more claims under Article 12.16.1 have been brought to arbitration, that they raise a common issue of fact or of law, arising from The same facts or circumstances, the court may, in order to reach a fair and efficient resolution of the claims and after hearing the disputing parties, in order:
(A) assume jurisdiction and jointly determine and determine all or part of the claims;
(B) assume jurisdiction and hear and determine one or more claims, the determination of which it considers would contribute to the resolution of the others; or
(C) instruct a tribunal established under Article 12.20 to assume jurisdiction and to know and jointly determine, on all or part of the claims, provided that
(I) that court, at the request of any plaintiff who has not previously been a disputing party to that court, is reinstated with its original members, except that the arbitrator on the plaintiffs' part is designated in accordance with sub-paragraph 4 (a) and Paragraph 5; and
(II) that court decides whether to repeat any prior hearing.
7. In the event that a court under this Article has been established, a claimant who has submitted a claim to arbitration under Article 12.16.1, and whose name is not mentioned in a request under paragraph 2, may file an application In writing to the court so that that claimant is 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 requested; and
(C) the grounds on which the application is based.
The complainant shall deliver a copy of his request to the Secretary-General and to the disputing parties listed in the request under paragraph 2.
8. A tribunal established pursuant to this Article shall conduct the proceedings in accordance with the provisions of the UNCITRAL Arbitration Rules, except as modified by this Section.
9. A court established pursuant to Article 12.20 shall not have jurisdiction to resolve a claim, or part of a claim, in respect of which a court established or instructed in accordance with 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 proceedings of a Tribunal established under Article 12.20 be deferred, unless the latter Court has already suspended its proceedings.
1227:. Reports
1. When a court makes a definitive award unfavorable to the defendant, the court may award, separately or in combination, only:
(A) pecuniary damages and interest thereon; and
(B) restitution of property, in which case the award will provide that the defendant can pay pecuniary damages, plus interest that proceeds instead of restitution.
The court may also award costs and attorney fees in accordance with this Section and with applicable arbitration rules.
2. Subject to paragraph 1, when a claim under Article 12.16.1 (b) is submitted to arbitration:
(A) the award that provides for the restitution of property, shall provide that restitution be granted to the company;
(B) the award that grants pecuniary damage and interest that proceeds, shall provide that the sum of money be paid to the company; and
(C) the award shall provide that the same is issued without prejudice to any right that any person has on the repair under the 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 in respect of domestic law.
1228:. Purpose and Execution of a Report
1. For greater certainty, the award rendered by a court shall not have binding force except for the disputing parties and only in the concrete case.
2. Subject to paragraph 3 and to the review procedure applicable to a provisional award, the disputing party shall abide by and comply with the award without delay.
3. The disputing party may not request execution of the final award until:
(A) in the case of a final award rendered in accordance with the ICSID Convention:
(I) one hundred and twenty (120) days have passed since the date on which the award was rendered and no disputing party has requested a review or annulment thereof; or
(Ii) have completed the review or annulment proceedings; and
(B) in the case of a final award rendered in accordance with the Additional ICSID Mechanism Rules or 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 disputing party has commenced a proceeding to review, revoke or annul it; or
(Ii) a court has dismissed or admitted a request for review, revocation or annulment of the award and this ruling can not be appealed.
4. Each Party shall provide for the due enforcement of an award in its territory.
5. Where a defendant defaults or fails to comply with a final award, a panel shall be established pursuant to Article 15.5 (Establishment of a Panel) upon submission of an application by the complaining Party. The requesting Party may request in such proceedings:
(A) a determination that failure to comply with or disregard the terms of the final award is contrary to the obligations of this Agreement; Y
(B) in accordance with the procedures established in Article 15.9 (Panel Report), a recommendation that the respondent abide by or comply with the final award.
6. A disputing party may resort to the enforcement of an arbitral award in accordance with the ICSID Convention, the New York Convention or the Inter-American Convention, whether or not the proceedings 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, the claim submitted to arbitration pursuant to this Section shall be deemed to arise from a commercial relationship or operation.
1229:. Submission of Documents
The delivery of the notification and other documents to a Party shall be made at the place designated by it in Annex 12.15.
Section C. Definitions
1230:. Definitions
For the purposes of this Chapter:
ICSID means the International Center 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, held at New York on 10 June 1958;
Inter-American Convention means the Inter-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 18 March 1965;
Respondent means the Party that is party to a dispute relating to an investment;
Claimant means the investor of a Party that is party to a dispute relating to investments with the other Party;
Enterprise means a business as defined in Article 1.5 (Definitions of General Application) and a branch of an enterprise;
Enterprise of a Party means a business incorporated or organized in accordance with the national law of a Party and a branch located in the territory of a Party and engaged in substantial business activities in that territory;
Protected information means:
(A) confidential business information; and
(B) privileged information or otherwise protected from disclosure, in accordance with the national legislation of the Party;
Investment means any asset owned or controlled by an investor, directly or indirectly, that has the characteristics of an investment, including such features as the commitment of capital or other resources, the expectation of profit or profit, or the assumption risky. The forms that an investment can take include:
(A) a company;
(B) shares, capital and other forms of equity participation in a company;
(C) debt instruments of a company
(I) when the company is a subsidiary of the investor, or
(II) when the original maturity date of the debt instrument is at least three (3) years,
But does not include an obligation of a Party or a State enterprise, regardless of the original date of maturity;
(D) a loan to a company
(I) when the company is a subsidiary of the investor, or
(II) when the original maturity date of the loan is at least three (3) years,
But does not include a loan to a Party or to a State enterprise, regardless of the original date of maturity;
(E) futures, options and other derivatives;
(F) turnkey contracts, construction, management, production, concession, revenue sharing and other similar contracts;
(G) intellectual property rights;
(H) licenses, authorizations, permits and similar rights granted in accordance with national legislation; (11) and
(I) other tangible or intangible, movable or immovable property rights and property rights, such as leases, mortgages, liens and pledges,
But investment does not include:
(J) an order or judgment presented in a judicial or administrative action.
(K) loans granted by one Party to the other Party.
(L) operations of public debt and debt of public institutions.
(M) pecuniary claims derived exclusively from:
(I) commercial contracts for the sale of goods or services by a national or business in the territory of one Party to a national or enterprise in the territory of the other Party; or
(Ii) the granting of credit in connection with a commercial transaction, such as trade financing, except for a loan covered by the provisions of sub-paragraph (d); or
(N) any other monetary claim, which does not involve the interest rates set out in subparagraphs (a) to (i),
A change 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 carried out in accordance with the domestic law of the Party in question. Whose territory the investment has been admitted.
Covered investment means, in respect of one Party, an investment in the territory of an investor of the other Party existing at the date of entry into force of this Agreement, as well as investments made, acquired or expanded thereafter;
Investor of a non-Party means, in respect of a Party, an investor who is attempting, through specific actions, (12) to carry out or has made an investment in the territory of that Party, which is not an investor of a part;
Investor of a Party means a Party or an enterprise of the Party's State, or a national or enterprise of the Party, which is attempting, through specific actions, (13) to undertake or has made an investment in the Party.
Territory of the other Party; Whereas, however, a natural person who has dual nationality will be considered exclusively a national of the State of his dominant and effective nationality;
Freely usable currency means freely usable currency as determined by the International Monetary Fund under the Agreement Establishing the International Monetary Fund;
National means a natural person having the nationality of a Party in accordance with Annex 1.5 (Country Specific Definitions);
Disputing party means the plaintiff or the defendant;
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 who is not party to an investment dispute under Section B;
Disputing parties means the plaintiff and the defendant;
UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law, adopted by the General Assembly of the United Nations on 15 December 1976;
ICSID Additional Facility Rules means the Regulation of the Supplementary Mechanism for Procedural Administration by the ICSID Secretariat;
Secretary-General means the Secretary-General of ICSID; and
Court means an arbitral tribunal established under Article 12.20 or Article 12.26.
(11) The fact that a type of license, authorization, permit or similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristics of an investment, depends on factors such as nature And the extent of the rights of the holder in accordance with the national law of the Party. Among licenses, authorizations, permits or similar instruments that do not have the characteristics of an investment are those that do not generate rights protected by national legislation. For greater certainty, the foregoing is without prejudice to the fact that an asset associated with such license, authorization, permit or similar instrument has the characteristics of an investment.
(12) It is understood that an investor intends to make an investment when he has carried out the essential and necessary actions to carry out such investment, such as the provision of funds to constitute the company's capital, obtaining permits and licenses, among others.
(13) It is understood that an investor intends to make an investment when he has carried out the essential and necessary actions to carry out such investment, such as the provision of funds to constitute the company's capital, obtaining permits and licenses, among others.
The Parties confirm their common understanding that customary international law, in a general manner 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 which protect the economic rights and interests of aliens.
The Parties confirm their common understanding that:
(A) a measure or series of measures of a Party may not constitute expropriation unless it interferes with a tangible or intangible property right or with the essential attributes or faculties of the domain of an investment;
(B) Article 12.10 addresses two (2) situations. The first is direct expropriation, where an investment is nationalized or otherwise expropriated directly through the formal transfer of the title or the right of dominion;
(C) the second situation addressed by Article 12.10 is indirect expropriation, where a measure or series of measures of a Party have an effect equivalent to that of direct expropriation without the formal transfer of the title or the right of dominion;
(D) the determination of whether a measure or series of measures of a Party, in a specific situation, constitutes an indirect expropriation, requires a factual investigation, on a case-by-case basis, to consider inter alia:
(I) the economic impact of a Party's measure or series of measures, although the mere fact that a measure or series of measures by a Party has an adverse effect on the economic value of an investment does not, in itself, That an indirect expropriation has occurred;
(II) the extent to which the measure or series of measures of a Party interferes with unequivocal and reasonable expectations of the investment; and
(III) the nature of the measure or series of measures of a Party;