4. A tribunal established under this Article, after hearing the disputing parties, may:
(a) Assume jurisdiction over, and hear and determine together, all or part of the claims;
(b) Assume jurisdiction over, and hear and determine one or more of the claims, provided that in doing so it would contribute to the settlement of the other claims.
5. A tribunal established under Article 14 of this Agreement shall lack jurisdiction to hear and determine a claim, or a part thereof, over which a consolidation tribunal has assumed jurisdiction.
6. A disputing party that intends consolidation of a claim under this Article, may request the President, the Vice-President or the next senior Judge of the International Court of Justice the establishment of a tribunal, and shall specify in its request:
(a) The name and address of the disputing Contracting Party or the disputing investors to be included in the consolidation process;
(b) The nature of the consolidation request sought; and
(c) The grounds on which the request is sought.
7. A disputing party shall deliver a copy of its request to the other disputing party or to any other disputing investor to the proceedings sought to be consolidated.
8. Within the sixty days after receipt of the request, the President, the Vice-President or the next senior Judge of the International Court of Justice shall establish a tribunal after having heard the views of the disputing parties. The tribunal shall be composed of three arbitrators. One arbitrator shall be a national of the disputing Contracting Party; the other arbitrator shall be a national of the Contracting Party whose investors are parties to the dispute. The third arbitrator, who shall be the Chairman of the arbitral tribunal, shall be a national of neither of the Contracting Parties.
9. Where a disputing investor has submitted a claim to arbitration under Article 12 of this Agreement but has not been mentioned in the consolidation request, the disputing investor or the disputing Contracting Party may request in writing the consolidation tribunal that the disputing investor be included in any order made under paragraph 2 above, and shall specify in the referred request:
(a) The name and address of the disputing investors;
(b) The nature of the consolidation request sought; and
(c) The grounds on which the request is sought.
10. A disputing investor referred to in paragraph 9 above shall deliver a copy of its request to the other disputing parties with a request pursuant to paragraph 6 above.
Article 16. Place of Arbitration
Unless the disputing parties have agreed upon the place of arbitration, such place shall be determined by the tribunal. Any arbitration under this Section shall be held in a State that is party to the New York Convention. For the purposes of Article 1 of the New York Convention, claims submitted to arbitration under this Agreement shall be considered to have arisen out of a commercial relationship or transaction.
Article 17. Indemnification
In an arbitration under this Section, a disputing Contracting Party shall not assert as a defence, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Article 18. Applicable Law
1. A tribunal established in accordance with this Section shall decide the submitted issues in a dispute in accordance with this Agreement and other applicable rules and principles of international law.
2. An interpretation jointly formulated and agreed upon by the Contracting Parties with regard to any provision of this Agreement shall be binding on any tribunal established under this Section.
Article 19. Awards and Enforcement of Awards
1. Unless the disputing parties agree otherwise, an award which provides that a Contracting Party has breached its obligations pursuant to this Agreement may only award, separately or in combination:
(a) Monetary damages and any applicable interest; or
(b) Restitution in kind, provided that the Contracting Party may pay pecuniary compensation in lieu of restitution.
2. When a claim is submitted to arbitration on behalf of an enterprise:
(a) An award of restitution in kind shall provide that restitution be made to the enterprise;
(b) An award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic law.
3. Arbitral awards shall be final and binding solely between the disputing parties and with respect to the particular case.
4. The arbitral award shall be made public, unless the disputing parties agree otherwise.
5. A tribunal may not award punitive damages.
6. Each Contracting Party shall, within its territory, adopt all necessary measures for the effective enforcement of awards issued under this Section, and shall facilitate the enforcement of any award rendered within a proceeding to which it is a party.
7. A disputing investor may seek enforcement of an arbitral award under the ICSID Convention or the New York Convention if both Contracting Parties are parties to such treaties.
8. A disputing party may not seek enforcement of a final award until:
(a) In the case of a final award rendered under the ICSID Convention:
(i) 120 days have elapsed from the date in which the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) Revision or annulment proceedings have been completed; and
(b) In the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or any other Arbitration Rules:
(i) Three months have elapsed from the date on which the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award, or
(ii) A court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
9. A Contracting Party may not initiate proceedings in accordance with Section Two with regard to a dispute under this Section, unless the other Contracting Party fails to abide by or comply with a final award rendered in a dispute submitted pursuant to this Section.Section Two with regard to a dispute under this Section, unless the other Contracting Party fails to abide by or comply with a final award rendered in a dispute submitted pursuant to this Section.
Article 20. Interim Measures of Protection
An arbitral tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the arbitral tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the arbitral tribunal's jurisdiction. An arbitral tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 12 of this Agreement. For purposes of this paragraph, an order includes a recommendation.
Section 2. Settlement of Disputes between the Contracting Parties
Article 21. Scope
This Section applies to the settlement of disputes between the Contracting Parties arising from the interpretation or application of the provisions of this Agreement.
Article 22. Consultations and Negotiations
1. Either Contracting Party may request consultations on the interpretation or application of this Agreement. The other Contracting Party shall give due consideration to the request.
2. If a dispute arises between the Contracting Parties on the interpretation or application of this Agreement, it shall, to the extent possible, be settled amicably through consultations and negotiation.
3. In the event the dispute is not settled through the means mentioned above within six months from the date such negotiations or consultations were requested in writing, either Contracting Party may submit such dispute to an arbitral tribunal established in accordance with the provisions of this Section or, by agreement of both Contracting Parties, to any other international tribunal.
Article 23. Establishment of the Arbitral Tribunal
1. Arbitration proceedings shall initiate upon written notice delivered by one Contracting Party (the requesting Contracting Party) to the other Contracting Party (the respondent Contracting Party) through diplomatic channels. Such notice shall contain a statement setting forth the legal and factual grounds of the claim, the requesting Contracting Party's intention to initiate proceedings under this Section of the Agreement, and the name of the arbitrator appointed by such requesting Contracting Party.
2. Within thirty days after the delivery of such notice, the respondent Contracting Party shall notify to the requesting Contracting Party the name of its appointed arbitrator.
3. Within thirty days following the date on which the second arbitrator was appointed, the arbitrators so appointed by the Contracting Parties shall appoint, by mutual agreement, a third arbitrator, who shall be the Chairman of the arbitral tribunal upon approval of the Contracting Parties.
4. If within the time limits set in paragraph 2 and 3 above, the required appointments have not been made or the required approvals have not been given, either Contracting Party may invite the President of the International Court of Justice to appoint the arbitrator or arbitrators not yet appointed. If the President is a citizen or a permanent resident of either Contracting Party, or he or she is otherwise unable to act, the Vice-President shall be invited to make the said appointments. If the Vice-President too is a citizen or a permanent resident of either Contracting Party, or he or she is unable to act, the member of the International Court of Justice next in seniority who is not a citizen nor a permanent resident of either Contracting Party shall be invited to make the necessary appointments.
5. In case an arbitrator appointed under this Article resigns or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and he or she shall have all the powers and duties of the original arbitrator.
Article 24. Proceedings
1. Unless the Contracting Parties agree otherwise, the place of arbitration shall be determined by the tribunal.
2. The arbitral tribunal shall decide all questions relating to its competence and, subject to any agreement between the Contracting Parties, determine its own procedure, taking into account the PCA Optional Rules.
3. At any stage of the proceedings but before issuing any award or decision, the arbitral tribunal may propose to the Contracting Parties that the dispute be settled amicably.
4. At all times, the arbitral tribunal shall afford a fair hearing to the Contracting Parties.
Article 25. Award
1. The arbitral tribunal shall reach its decision by majority vote. The award shall be issued in writing and shall contain the applicable factual and legal findings. A signed award shall be delivered to each Contracting Party.
2. The award shall be final and binding on the Contracting Parties.
Article 26. Applicable Law
A tribunal established under this Section shall decide the issues in a dispute in accordance with this Agreement and other applicable rules and principles of international law.
Article 27. Costs
Each Contracting Party shall bear the costs of its appointed arbitrator and of any legal representation in the proceedings. The costs of the Chairman of the arbitral tribunal and of other expenses associated with the conduct of the arbitration shall be borne equally by the Contracting Parties, unless the arbitral tribunal decides that a higher proportion of costs be borne by one of the Contracting Parties.
Chapter IV. Final Provisions
Article 28. Application of the Agreement
The provisions of this Agreement shall apply to all investments made by investors of one Contracting Party in the territory of the other Contracting Party, whether made before or after the date of entry into force of this Agreement.
Article 29. Consultations
1. A Contracting Party may propose to the other Contracting Party to carry out consultations on any matter relating to this Agreement. These consultations shall be held at a place and at a time agreed by the Contracting Parties.
2. The Contracting Parties agree to consult each other on having a joint interpretation on Article 7 in accordance with paragraph 2 of Article 18 of this Agreement at any time after the entry into force of this Agreement.
Article 30. Entry and Sojourn of Personnel
Subject to its applicable laws relating to the entry and sojourn of non-citizens, a Contracting Party shall permit natural persons of the other Contracting Party and personnel employed by enterprises of the other Contracting Party to enter and remain in its territory for the purpose of engaging in activities connected with investments.
Article 31. Security Exceptions
Nothing in this Agreement precludes the host Contracting Party from taking action for the protection of its essential security interests or in circumstances of extreme emergency in accordance with its laws normally and reasonably applied on a non discriminatory basis.
Article 32. Entry Into Force, Duration and Termination
1. The Contracting Parties shall notify each other in writing the fulfilment of their constitutional requirements in relation to the approval and entry into force of this Agreement.
2. This Agreement shall enter into force thirty days after the date of the final notification was communicated through the diplomatic channels.
3. This Agreement may be modified by mutual consent of the Contracting Parties, and the agreed modification shall come into effect pursuant to the procedures set forth in paragraphs 1 and 2 above.
4. This Agreement shall remain in force for a period of ten years. Thereafter it shall continue in force until the expiration of twelve months from the date on which either Contracting Party shall have given written notice of termination to the other.
5. With respect to investments made prior to the termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten years from the date of termination.
Conclusion
For the Government of the United Mexican States
Eduardo Sojo Garza Aldape
Minister of Economy
For the Government of the Republic of India
Palaniappan Chidambaram
Minister of Finances
Attachments
Annex to article 12
1. The notice of intent referred to in Article 12 of this Agreement shall be delivered:
In the case of Mexico, at the Directorate General for Foreign Investment of the Ministry of Economy; and
In the case of India, at the Office of the Secretary, Department of Economic Affairs, Ministry of Finance.
Any change in the above mentioned addresses shall be published, in the case of Mexico, in the Official Gazette, and in the case of India, by a Press Release. Likewise, in case such a modification occurs, it shall be notified by the relevant Contracting Party to the other Contracting Party by means of a diplomatic note.
2. The disputing investor shall submit the written notice of intent referred to in Article 12.2 of this Agreement in Spanish or in English, as applicable, depending on the Contracting Party against which the claim is made. The corresponding translation, made by an expert, shall be included in case such notice of intent is submitted in any language other than the aforementioned.
3. In order to facilitate the process of consultation, the investor shall provide along with the notice of intent, copy of the following documentation:
(a) Passport or any other official document of nationality, where the investor is a natural person, or act of incorporation or document of incorporation or organization under the law of the non-disputing Contracting Party, where the investor is an enterprise of such Contracting Party;
(b) Where an investor of a Contracting Party intends to submit a claim to arbitration on behalf of an enterprise of the other Contracting Party that is a legal person that the investor owns or controls:
(i) Act of incorporation or any other document of incorporation or organization, under the law of the disputing Contracting Party; and
(ii) Document proving that the disputing investor owns or controls the enterprise.
(c) Where applicable, power of attorney or the document proving that a person is duly authorized to act on behalf of the disputing investor.
In the case of Mexico, at the Directorate General for Foreign Investment of the Ministry of Economy; and
In the case of India, at the Office of the Secretary, Department of Economic Affairs, Ministry of Finance.