e. ensuring compliance with an order or judgment in judicial or administrative proceedings.
4. A Party may not require one of its investors to transfer, or penalize one of its investors for failing to transfer, the income, earnings, profits or other amounts derived from, or attributable to, an investment in the territory of the other Party.
5. Paragraph 4 does not prevent a Party from imposing a measure through the equitable, non-discriminatory and good faith application of its domestic law relating to the matters in subparagraphs 3(a) through 3(e).
6. Notwithstanding the provisions of paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 5, a Party may prevent or limit transfers by a financial institution to, or for the benefit of, an affiliate of or person related to that institution, through the equitable, non-discriminatory and good faith application of a measure relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions.
7. Notwithstanding paragraph 1, a Party may restrict transfers of returns in kind in circumstances where it could otherwise restrict those transfers under the WTO Agreement and as set out in paragraph 3.
Article 12. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall:
a. publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
b. provide interested persons and the other Party a reasonable opportunity to comment on that proposed measure.
3. Upon request by a Party, the other Party shall provide information on a measure that may have an impact on a covered investment.
Article 13. Subrogation
1. If a Party or an agency of a Party makes a payment to one of its investors under a guarantee or a contract of insurance it has entered into in respect of an investment, the other Party shall recognize the validity of the subrogation in favour of the first-mentioned Party or agency to a right or title held by the investor.
2. A Party or an agency of a Party, that is subrogated to a right of an investor in accordance with paragraph 1, is entitled to the same rights as those of the investor regarding the investment. Those rights may be exercised by the Party or an agency of the Party or by the investor if the Party or its agency so authorizes.
Article 14. Taxation Measures
1. Except as set out in this Article, this Agreement does not apply to a taxation measure.
2. This Agreement does not affect the rights and obligations of a Party under a tax convention. In the event of inconsistency between this Agreement and a tax convention, that convention prevails.
3. This Agreement does not require a Party to furnish or allow access to information, which if disclosed, would be contrary to the Party's law protecting information concerning the taxation affairs of a taxpayer.
4. Subject to paragraph 2, Articles 4 (National Treatment) and 5 (Most-FavouredNation Treatment) apply to all taxation measures, other than those on income, capital gains or on the taxable capital of corporations, except that nothing in those Articles shall apply:
a. to a non-conforming provision of an existing taxation measure;
b. to the continuation or prompt renewal of a non-conforming provision of an existing taxation measure;
c. to an amendment to a non-conforming provision of an existing taxation measure to the extent that the amendment does not decrease its conformity with those Articles at the time when the amendment is introduced; or
d. to new taxation measures that are aimed at ensuring the equitable and effective imposition or collection of taxes (including, for greater certainty, a measure that is taken by a Party to ensure compliance with the Party's taxation system or to prevent the avoidance or evasion of taxes) and that does not arbitrarily discriminate between persons, goods or services of the Parties.
5. Provided that the conditions in paragraph 6 are met:
a. a claim by an investor that a taxation measure of a Party is in breach of an agreement between a national government authority of that Party and the investor concerning an investment shall be considered a claim for breach of this Agreement; and
b. the provisions of Article 10 (Expropriation) apply to taxation measures.
6. An investor may not make a claim under paragraph 5 unless:
a. the investor provides a copy of the notice of claim to the taxation authorities of the Parties; and
b. six months after receiving notification of the claim by the investor, the taxation authorities of the Parties fail to reach a joint determination that, in the case of subparagraph 5(a), the measure does not contravene that agreement, or in the case of subparagraph 5(b), the measure in question is not an expropriation.
7. If, in connection with a claim by an investor of a Party or a dispute between the Parties, an issue arises as to whether a measure of a Party is a taxation measure, a Party may refer the issue to the taxation authorities of the Parties. A decision of the taxation authorities shall bind a Tribunal formed pursuant to Section C (Settlement of Disputes between an Investor and the Host Party) or arbitral panel formed pursuant to Section D (State-to-State Dispute Settlement Procedures). A Tribunal or arbitral panel seized of a claim or a dispute in which the issue arises may not proceed until it receives the decision of the taxation authorities. If the taxation authorities have not decided the issue within six months of the referral, the Tribunal or arbitral panel shall decide the issue.
8. Each Party shall notify the other Party by diplomatic note of the identity of the taxation authorities referred to in this Article.
Article 15. Health, Safety and Environmental Measures and Corporate Social Responsibility Standards
1. The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, those measures to encourage the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding the encouragement.
2. Each Party shall encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Parties. These principles address issues such as labour, the environment, human rights, community relations and anti-corruption.
Article 16. Reservations and Exceptions
1. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors and Entry of Personnel) and 9 (Performance Requirements) do not apply to:
a.
i. any measure existing and non-conforming, maintained in the territory of a Party;
ii. any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition of a government's equity interests in, or the assets of, an existing State enterprise or an existing governmental entity:
- Prohibits or imposes limitations on the ownership or control of equity interests or assets; or
- Imposes nationality requirements relating to senior management or members of the board of directors;
b. the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a);
c. an amendment to a non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors and Entry of Personnel) and 9 (Performance Requirements).
2. For illustrative purposes only and without prejudice to paragraph 1, each Party shall, to the extent possible, set out in its Schedule to Annex 1 any existing non-conforming measure it maintains at the national level.
3. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment), 8 (Senior Management, Boards of Directors and Entry of Personnel) and 9 (Performance Requirements) shall not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
4. Article 5 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Party pursuant to agreements set out in Annex III.
5. In respect of intellectual property rights, a Party may derogate from Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment) and 9(1)(f) (Performance Requirements) in a manner that is consistent with:
a. the TRIPS Agreement;
b. an amendment to the TRIPS Agreement in force for both Parties; and
c. a waiver to the TRIPS Agreement granted pursuant to Article IX of the WTO Agreement.
6. Articles 4 (National Treatment), 5 (Most-Favoured-Nation Treatment) and 8 (Senior Management and Board of Directors) do not apply to:
a. procurement by a Party or a State enterprise; or
b. a subsidy or grant provided by a Party or a State enterprise, including a government-supported loan, a guarantee or insurance.
7. Article 5 (Most-Favoured-Nation Treatment) of this Agreement does not apply to financial services.
Article 17. General Exceptions
1. For the purpose of this Agreement:
a. a Party may adopt or enforce a measure necessary:
i. to protect human, animal or plant life or health,
ii. to ensure compliance with domestic law that is not inconsistent with this Agreement, or
iii. for the conservation of living or non-living exhaustible natural resources;
b. provided that the measure referred to in subparagraph (a) is not:
i. applied in a manner that constitutes arbitrary or unjustifiable discrimination between investments or between investors, or
ii. a disguised restriction on international trade or investment.
2. This Agreement does not prevent a Party from adopting or maintaining reasonable measures for prudential reasons, such as:
a. protecting investors, depositors, financial market participants, policy-holders, policy-claimants, or persons to whom a fiduciary duty is owed by a financial institution;
b. maintaining the safety, soundness, integrity or financial responsibility of financial institutions; and
c. ensuring the integrity and stability of a Party's financial system.
3. This Agreement does not apply to non-discriminatory measures of general application taken by a public entity in pursuit of monetary and related credit or exchange rate policies. This paragraph shall not affect a Party's obligations under Article 9 (Performance Requirements) or Article 11 (Transfers).
4. This Agreement does not:
a. require a Party to furnish or allow access to information if that Party determines that the disclosure of this information would be contrary to its essential security interests;
b. prevent a Party from taking an action that it considers necessary to protect its essential security interests:
i. relating to the traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods, materials, services and technology undertaken directly or indirectly for the purpose of supplying a military or other security establishment,
ii. taken in time of war or other emergency in international relations, or
iii. relating to the implementation of national policies or international agreements respecting the non-proliferation of nuclear weapons or other nuclear explosive devices; or
c. prevent a Party from fulfilling its obligations under the United Nations Charter for the maintenance of international peace and security.
5. This Agreement does not require a Party to furnish or allow access to information which if disclosed would impede law enforcement or would be contrary to the Party's law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy or the confidentiality of the financial affairs and accounts of individual customers of financial institutions.
6. In the course of a dispute settlement procedure under this Agreement:
a. a Party is not required to furnish or allow access to information protected under its competition law;
b. a competition authority of a Party is not required to furnish or allow access to information that is privileged or otherwise protected from disclosure.
7. This Agreement does not apply to measures adopted or maintained by a Party with respect to a person engaged in a cultural industry. "Person engaged in a cultural industry" means a person engaged in the following activities:
a. the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine-readable form, except when printing or typesetting any of the foregoing is the only activity;
b. the production, distribution, sale or exhibition of film or video recordings;
c. the production, distribution, sale or exhibition of audio or video music recordings;
d. the publication, distribution or sale of music in print or machine-readable form; or
e. radiocommunications in which the transmissions are intended for direct reception by the general public, and all radio, television or cable broadcasting undertakings and all satellite programming and broadcast network services.
8. If a right or obligation in this Agreement duplicates one under the WTO Agreement, the Parties agree that a measure adopted by a Party in conformity with a waiver decision granted by the WTO pursuant to Article IX of the WTO Agreement is deemed to be also in conformity with the present Agreement. Such conforming measure of either Party may not give rise to a claim by an investor of one Party against the other under Section C (Settlement of Disputes between an Investor and the Host Party) of this Agreement.
Article 18. Denial of Benefits
1. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of that Party and to investments of that investor if investors of a non-Party,or of the denying Party own or control the enterprise and:
a. the denying Party adopts or maintains measures with respect to the nonParty that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investments; or
b. the enterprise has no substantial business activities in the territory of the Party under whose domestic law it is constituted or organized.
Section C. Settlement of Disputes between an Investor and the Host Party
Article 19. Purpose
Without prejudice to the rights and obligations of the Parties under Section D (State-to-State Dispute Settlement Procedures), the Parties establish in this Section a mechanism for the settlement of investment disputes.
Article 20. Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise
1. An investor of a Party may submit to arbitration under this Section a claim that:
a. the respondent Party has breached an obligation under Section B (Substantive Obligations), other than an obligation under Articles 8(3) (Senior Management, Boards of Directors and Entry of Personnel), 12 (Transparency) or 15 (Health, Safety and Environmental Measures and Corporate Social Responsibility Standards); and
b. the investor has incurred loss or damage by reason of, or arising out of, that breach.
2. An investor of a Party, on behalf of an enterprise of the respondent Party that is a juridical person that the investor owns or controls directly or indirectly, may submit to arbitration under this Section a claim that:
a. the respondent Party has breached an obligation under Section B (Substantive Obligations), other than an obligation under Articles 8(3) (Senior Management, Boards of Directors and Entry of Personnel), 12 (Transparency) or 15 (Health, Safety and Environmental Measures and Corporate Social Responsibility Standards); and
b. the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
Article 21. Conditions Precedent to Submission of a Claim to Arbitration
1. The disputing parties shall hold consultations and attempt to settle a claim amicably before an investor may submit a claim to arbitration. Unless the disputing parties agree to a longer period, consultations shall be held within 60 days of the submission of the notice of intent to submit a claim to arbitration under subparagraph 2(c). The place of consultation shall be the capital of the respondent Party, unless the disputing parties otherwise agree.
2. Subject to the requirements of a Party as set out in Annex C.21, An investor may submit a claim to arbitration under Article 20 (Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise) only if:
a. the investor and, where a claim is made under Article 20(2) (Claim by an Investor of a Party on Its Own Behalf or on Behalf of anEnterprise), the enterprise, consent to arbitration in accordance with the procedures set out in this Agreement;
b. at least six months have elapsed since the events giving rise to the claim;
c. the investor has delivered to the respondent Party a written notice of its intent to submit a claim to arbitration at least 90 days prior to submitting the claim, which notice shall specify:
i. the name and address of the investor and, where a claim is made under Article 20(2) (Claim by an Investor of a Party on Its Own Behalf or on Behalf of anEnterprise), the name and address of the enterprise,
ii. the provisions of this Agreement alleged to have been breached and any other relevant provisions,
iii. the legal and the factual basis for the claim, including the measures at issue, and
Iv. the relief sought and the approximate amount of damages claimed;
d. the investor has delivered evidence establishing that it is an investor of the other Party with its notice of intent to submit a claim to arbitration under subparagraph 2(c);
e. in the case of a claim submitted under Article 20(1) (Claim by an Investor of a Party on Its Own Behalf or on Behalf of anEnterprise):
i. not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage thereby,
ii. the investor waives its right to initiate or continue before an administrative tribunal or court under the domestic law of a Party, or other dispute settlement procedures, proceedings with respect to the measure of the respondent Party that is alleged to be a breach referred to in Article 20 (Claim by an Investor of a Party on its Own Behalf or on Behalf of anEnterprise), and
iii. if the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise waives the right referred to under subparagraph (ii);
f. in the case of a claim submitted under Article 20(2) (Claim by an Investor of a Party on its Own Behalf or on Behalf of anEnterprise):
i. not more than three years have elapsed from the date on which the enterprise first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the enterprise has incurred loss or damage thereby, and
ii. both the investor and the enterprise waive their right to initiate or continue before an administrative tribunal or court under the domestic law of a Party, or other dispute settlement procedures, proceedings with respect to the measure of the respondent Party that is alleged to be a breach referred to in Article 20 (Claim by an Investor of a Party on its Own Behalf or on Behalf of anEnterprise).
3. Subparagraphs 2(e)(ii), (iii) and 2(f)(ii) do not apply to proceedings before a judicial or administrative tribunal or court under the domestic law of the respondent Party for injunctive, declaratory or other extraordinary relief, not involving the payment of damages.
4. The disputing investor or the enterprise shall deliver the consent and waiver required under paragraph 2 to the respondent Party and the investor shall include them in the submission of a claim to arbitration. A waiver from the enterprise under subparagraphs 2(e)(iii) or 2(f)(ii) is not required if the respondent Party has deprived the investor of control of the enterprise.
Article 22. Special Rules Regarding Financial Services
1. With respect to:
a. financial institutions of a Party; and
b. investors of a Party, and investments of those investors, in financial institutions in the respondent Party's territory,
This Section applies only in respect of claims that the respondent Party has breached an obligation under Article 10 (Expropriation), 11 (Transfers) or 18 (Denial of Benefits).
2. Where an investor or respondent Party claims that a dispute involves measures adopted or maintained by the respondent Party relating to financial institutions of the other Party or investors of the other Party and their investments in financial institutions in the respondent Party's territory, or where the respondent Party invokes Articles 11(6) (Transfers), 17(2) or 17(3) (General Exceptions), the arbitrators shall, in addition to the criteria set out in Article 25(2) (Arbitrators), have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
3. Where an investor submits a claim to arbitration under this Section, and the respondent Party invokes Article 11(6) (Transfers), 17(2) or 17(3) (General Exceptions), at the request of that Party, the Tribunal shall request a report in writing from the Parties on the issue of whether and to what extent the invoked paragraph is a valid defence to the claim of the investor. The Tribunal may not proceed pending receipt of a report under this Article.
4. Where the Tribunal requests a report under paragraph 3, the Parties shall prepare a written report. If the Parties cannot agree on the report, they shall submit the issue to an arbitral panel established in accordance with Section D (State-to-State Dispute Settlement Procedures) that shall prepare the written report. The report shall be transmitted to the Tribunal and be binding on it.
5. The Tribunal may decide the matter where, within 70 days of the referral by the Tribunal, no request for the establishment of a panel pursuant to paragraph 4 has been made and no report has been received by the Tribunal.
Article 23. Submission of a Claim to Arbitration
1. An investor that meets the conditions precedent in Article 21 (Conditions Precedent to Submission of a Claim to Arbitration) may submit a claim to arbitration under:
a. the ICSID Convention, provided that both Parties are parties to the ICSID Convention;
b. the Additional Facility Rules of ICSID, if only one Party is a party to the ICSID Convention;
c. the UNCITRAL Arbitration Rules; or
d. any other instrument proposed by the investor that allows the conduct of the arbitration procedure in accordance with the provisions of this Agreement, provided that the disputing parties so agree. If the disputing parties cannot reach an agreement in this regard within 60 days following the investor's proposal, the investor may submit a claim under the instruments in subparagraphs (a), (b) or (c) of this paragraph.
2. Except to the extent modified by this Agreement, the arbitration is governed by the arbitration rules applicable under paragraph 1 that are in effect on the date that the claim is submitted to arbitration under this Section.
3. The Parties may adopt supplemental rules of procedure that complement the arbitration rules listed in paragraph 1 and these rules apply to the arbitration. The Parties shall promptly publish the supplemental rules of procedure that they adopt or otherwise make them available in such a manner as to enable interested persons to become acquainted with them.
4. A claim is submitted to arbitration under this Section when:
a. the request for arbitration under Article 36(1) of the ICSID Convention is received by the Secretary-General of ICSID;
b. the request for arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretariat of ICSID; or
c. the notice of arbitration under Article 3 of the UNCITRAL Arbitration Rules is received by the respondent Party.
5. Each Party shall notify the other Party by diplomatic note of the place of delivery of notices and other documents.
6. If, the investor fails to take any steps in the proceeding during 18 consecutive months following the submission of a claim to arbitration under this Section, except in cases of force majeure and subject to both disputing parties agreeing otherwise, the investor shall be deemed to have withdrawn its claim and to have discontinued the proceedings. The claim of the investor shall be deemed not to have been filed under this Section and the authority of any tribunal established to hear the claim has lapsed.
Article 24. Consent to Arbitration
1. Each Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Agreement. Failure to meet a condition precedent listed in Article 21 (Conditions Precedent to Submission of a Claim to Arbitration) nullifies that consent.
2. The consent given in paragraph 1 and the submission by an investor of a claim to arbitration satisfies the requirement of:
a. Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the disputing parties; and
b. Article II of the New York Convention for an agreement in writing.
Article 25. Arbitrators
1. Except in respect of a Tribunal established under Article 27 (Consolidation), and unless the disputing parties agree otherwise, the Tribunal shall be composed of three arbitrators. One arbitrator shall be appointed by each of the disputing parties and the third, who will be the presiding arbitrator, shall be appointed by agreement of the disputing parties.