4. The award shall be final and binding. Each Contracting Party shall ensure the recognition and enforcement of the arbitral award in accordance with its laws and regulations, the norms and principles of international law.
5. Disputes arising out of any contract concluded between the investor and any designated entity of a Contracting Party or its local government concerning the investment of those investors shall be settled according to the dispute settlement procedure stipulated therein.
6. In the event that an investment dispute has been submitted for resolution under one of the forums provided for in paragraph 3 of this Article, the same investment dispute shall not be submitted for resolution under any other available forums as provided for in paragraph 3 of this Article.
7. No investment dispute may be submitted for resolution by arbitration under paragraph 3 of this Article if more than three years have elapsed from the date on which the investor first acquired or should have acquired knowledge of the alleged breach and loss or damage that the latter has allegedly incurred.
Article 18. Settlement of Disputes between the Contracting Parties
1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall, as far as possible, be settled through consultations and/or other diplomatic channels.
2. lf the Contracting Parties cannot reach an agreement within six months following the date on which the consultations were requested and/or other diplomatic channels were initiated by either Contracting Party, the dispute shall, upon the request of the Contracting Party, be submitted to an arbitral tribunal. In the absence of an agreement by the Contracting Parties to the contrary, arbitration proceedings shall be conducted in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States, except as modified by the Contracting Parties or this Agreement.
3. Unless the Parties otherwise agree, the dispute shall be resolved by a three member arbitration tribunal. Each Contracting Party shall appoint one arbitrator within two months from the date on which either Contracting Party receives from the other Contracting Party a request for arbitration. The two arbitrators thus selected shall together within a further two months period, select a third arbitrator who is a national of a third State. The third arbitrator once approved by the two Contracting Parties, shall act as Chairman of the arbitral tribunal.
4. If any member of the arbitral tribunal is not selected within the time frames defined in paragraph 3 of this Article, the Secretary-General of the Permanent Court of Arbitration, upon the request of either Contracting Party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed.
5. The place of the arbitration proceedings shall be The Hague, The Netherlands.
6. The arbitral tribunal shall reach its decisions by a majority of votes. The decisions shall be final and binding upon each Contracting Party.
7.Expenses incurred by the arbitrators, and other costs of the proceedings, shall be borne equally by the Parties. The arbitral tribunal may, however, in its discretion, decide that a higher proportion of costs shall be paid by one of the Contracting Parties.
Article 19. Balance of Payments Measures
1. A Contracting Party may, in a non-discriminatory manner adopt or maintain restrictions on payments or transfers related to investments in like situations:
a. in the event of a serious balance of payments and external financial difficulties or threat thereof; or
b. in cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary and exchange rate policies.
2. The restrictions referred to in paragraph 1 shall:
a. be consistent with the Articles of Agreement of the IMF;
b. avoid unnecessary damage to the commercial, economic, and financial interests of the other Contracting Party;
c. not exceed those necessary to deal with the circumstances described in paragraph 1;
d. be temporary and be phased out progressively as the situation specified in paragraph 1 improves;
e. not treat the other Contracting Party less favourably than a non-Contracting Party in like situations;
3. Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to the other Contracting Party.
Article 26. Prudential Measures
1. Notwithstanding any other provisions of this Agreement, a Contracting Party shall not be prevented from taking measures, in a non-discriminatory manner, relating to financial services for prudential reasons, including measures for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by an enterprise supplying financial services, or to ensure the integrity and stability of its financial system.
2. Where the measures taken by a Contracting Party pursuant to paragraph 1 do not conform with this Agreement, they shall not be used as a means of avoiding the commitments or obligations of the Contracting Party under this Agreement.
Nothing in this Agreement shall be construed to require a Contracting Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 21. Amendments
As agreed between the Contracting Parties. the amendments and additions may be made to this Agreement, which shall be concluded in the form of a protocol to this Agreement and shall enter into force according to the paragraph 1 of Article 22 of this Agreement This protocol shall constitute an integral part of this Agreement.
Article 22. Entry Into Force, Duration and Termination
1. This Agreement shall enter into force thirty days after the date of the exchange of instruments of ratification by the Contracting Parties.
2. This Agreement shall remain in force for a period of ten years and shall continue to be in force thereafter unless terminated in accordance with paragraph 3.
3. Either Contracting Party may terminate this Agreement at the end of the initial ten- year period or at any time thereafter by sending to the other Contracting Party a one year prior written notice through the diplomatic channels.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorized to that effect, have signed this Agreement.
DONE at Bogor, Indonesia as of the Twenty-Fourth day of July in the year Two Thousand and Nineteen in duplicate each in the Indonesian, Arabic, and English languages. All texts are equally authentic. In case of divergence in interpretations of provisions of this Agreement by the Contracting Parties, the English text shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
RETNO L.P. MARSUD
MINISTER FOR FOREIGN AFFAIRS
FOR THE GOVERNMENT OF THE UNITED ARAB EMIRATES
SULTAN BIN AHMED ALJABER
MINISTER OF STATE
PROTOCOL
At the time of signing of the Agreement between the Government of the Republic of Indonesia and the United Arab Emirates for the Promotion and Protection of Investment (hereinafter referred to as "the Agreement"), both Governments have agreed upon the following provisions which shall form an integral part of the Agreement.
1. With reference to paragraph 1 of Article 1 (Definitions) and paragraph 2 of Article 2 (Scope) of the Agreement:
For greater certainty, it is understood that investments made by investors of a Contracting Party in the territory of the other Contracting Party, "laws and regulations" shall refer to the Investment Law of that Contracting Party .
2. With reference to paragraph 1 of Article 1 (Definitions) of the Agreement:
For greater certainty, it is understood that for the purposes of the Agreement, goodwill, market share or other similar intangible rights shall not be considered as an investment.
3. With reference to paragraph 1(1)(b) of Article 1 (Definitions) of the Agreement:
For greater certainty, it is understood that for the purposes of the Agreement, the term company shall be limited to a company of an investor established under the laws of the host State and located in the territory of the host State.
4. With reference to paragraph 2(a) of Article 1 (Definitions) of the Agreement:
In the case of Indonesia, it is understood that if a natural person possesses dual nationality, she or he shall be deemed to be exclusively a national of the country where she or he ordinarily resides. And in addition, if a natural person is a national of both Contracting Parties, she or he will be deemed to be the national of the Contracting Party where her or his investment is located.
5. With reference to paragraph 6 (a) of Article 2 (Scope) of the Agreement:
For greater certainty, it is understood that "government procurement" means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale.
6. With reference to paragraph 6 (b) of Article 2 (Scope) of the Agreement:
For greater certainty, it is understood that a "service supplied in the exercise of governmental authority" means any service, which is supplied neither on a commercial basis nor in competition with one or more service suppliers.
7. With reference to paragraph 6 (d) of Article 2 (Scope) of the Agreement:
For greater certainty, it is understood that the Agreement shall not affect the rights and obligations of any Contracting Party under any tax convention.
8. With reference to Article 5 (Promotion of investment) of the Agreement:
For greater certainty, it is understood that a breach of a contract shall not be considered as a breach of this Agreement.
9. With reference to Article 7 (Most-Favoured-Nation Treatment) and Article 8 (National Treatment) of the Agreement:
For greater certainty, it is understood that whether treatment is accorded in "like circumstances" under Articles 7 (Most Favoured Nation) and 8 (National Treatment) of the Agreement depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.
10. With reference to paragraph 1 (Chapeau) of Article 9 (Expropriation) of the Agreement:
For greater certainty, it is understood as follows: .
a. An action or a series of actions by a Contracting Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or in an investment.
b. Article 9 (Expropriation) of the Agreement addresses two situations. The first is direct expropriation, in which an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure.
c. The second situation addressed by Article 9 (Expropriation) of the Agreement is indirect expropriation, in which an action or series of actions by a Contracting Party is carried out without formal transfer of title or outright seizure.
(1) The determination of whether an action or series of actions by a Contracting Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
a. the economic impact of the government action, although the fact that an action or series of actions by a Contracting Party has an adverse effect on the economic value of an investment, standing alone. does not establish that an indirect expropriation has occurred;
b. the extent to which the government action interferes with distinct, reasonable investment backed expectations arising out of the Contracting Party's prior binding written commitment to the investor; and
c. the character of the government action.
11. With reference to paragraph 1(c) of Article 9 (Expropriation):
For greater certainty, it is understood that where there is a dispute about whether a government conduct amounts to indirect expropriation within the meaning of Article 9 (Expropriation) of the Agreement, the fact that compensation has not been paid while that dispute remains unresolved does not render that conduct inherently unlawful if it is subsequently found to constitute indirect expropriation within the meaning of that Article.
12. With reference to paragraph 6 of Article 9 (Expropriation) of the Agreement:
For greater certainty, it is understood that the term "revocation" of intellectual property rights includes the cancellation or nullification of those rights, and the term "limitation" of intellectual property rights includes exceptions to those rights.
13. With reference to subparagraphs (g) and (h) of paragraph 4 of Article 11 (Transfers) of the Agreement:
For greater certainty, it is understood that situations under subparagraphs (g) and (h) refers to, or derives from, a situation where an investment is terminated by investor and the investors fails to fulfil its obligation in relation to those subparagraphs.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by the respective Governments, have signed this Protocol.
DONE IN Bogor, Indonesia on the Twenty-fourth day of July in the year Two Thousand and Nineteen in duplicate in the English, Indonesia and Arabic languages, both texts being equally authentic. In case of any divergence of interpretation of this Protocol, the English text shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
RETNO L.P. MARSUD
MINISTER FOR FOREIGN AFFAIRS
FOR THE GOVERNMENT IOF THE UNITED ARAB EMIRATES
SULTAN BIN AHMED ALJABER
MINISTER OF STATE