1. Except as provided in Article 8.31, where a tribunal is not constituted within ninety (90) days from the date on which the claim is submitted to arbitration under this Section, or within such other period as the disputing parties may agree, either disputing party may address a written request to the Chairman of the ICSID Administrative Council or the Secretary-General of the PCA, as appropriate, to appoint the arbitrator or arbitrators not yet appointed and to designate an arbitrator to act as presiding arbitrator of the tribunal. Before the Chairman of the ICSID Administrative Council or the Secretary- General of the PCA, as the case may be, proceeds to make an appointment or designation, he shall consult with both parties to the extent possible.
2. The Chairman of the ICSID Administrative Council or the Secretary-General of the PCA, as the case may be, shall not appoint a national of the respondent or of the Party of the claimant as presiding arbitrator of the tribunal, unless the disputing Parties agree otherwise.
Article 8.30. Consent to the Appointment of Arbitrators
For the purposes of Article 39 of the ICSID Convention, 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 under the ICSID Convention, and
(b) The claimant, in its own name, or on behalf of an enterprise of the respondent that is a legal person owned or controlled directly or indirectly by the claimant, may submit a claim to arbitration under this Section, or pursue a claim under the ICSID Convention, only on the condition that the claimant consents in writing to the appointment of each of the members of the tribunal.
Article 8.31. Consolidation of Proceedings
1. Where two or more separate claims have been submitted to arbitration under Article 8.24.1, and the claims raise a question of law or fact in common and arise out of the same facts or circumstances, a disputing party may seek a consolidation order in accordance with the agreement of the other disputing party 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 ICSID Secretary-General or the Secretary-General of the PCA, as appropriate, and to the other disputing party in respect of the claims for which consolidation is sought and shall specify the following:
(a) The name and address of the disputing party against whom the joinder order is sought;
(b) The nature of the order of accumulation requested, and
(c) The basis on which the request is supported.
3. Unless the Secretary-General of ICSID or the Secretary-General of the PCA, as the case may be, determines, within thirty (30) days after receipt of a request under paragraph 2, that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the disputing parties in respect of which the consolidation order is sought agree otherwise, the tribunal to be established under this Article shall consist of three 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 Chairman of the ICSID Administrative Council or the Secretary-General of the PCA, as the case may be, provided that the presiding arbitrator is not a national of the respondent or of the Party of any of the claimants.
5. If within sixty (60) days after receipt by the Secretary-General of ICSID or the Secretary-General of the PCA, as the case may be, of the request made pursuant to paragraph 2, the respondent or claimants fail to appoint an arbitrator pursuant to paragraph 4, the Chairman of the ICSID Administrative Council or the Secretary-General of the PCA, as the case may be, upon the request of any disputing party in respect of which the order for consolidation is sought, shall, in his or her discretion, appoint the arbitrator or arbitrators not yet appointed.
6. In the event that the tribunal established under this Article has found that two or more claims that have been submitted to arbitration pursuant to Article 8.24.1 raise a common question of law or fact, and arise out of the same facts or circumstances, 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, jointly;
(b) Assume jurisdiction over, hear and determine one or more claims the determination of which it believes will contribute to the resolution of the other claims, or
(c) Instruct a court previously established under Article 8.28 to assume jurisdiction and to hear and determine jointly all or part of the claims, provided that:
(i) that tribunal, at the request of a claimant who was not previously a disputing party before that tribunal, be reinstated with its original members, except that the arbitrator for the claimants shall be appointed pursuant to paragraphs 4(a) and 5, and
(ii) that tribunal decides whether to repeat any previous hearing.
7. In the case where a tribunal has been established under this Article, a claimant who has submitted a claim to arbitration pursuant to Article 8.24.1 and whose name is not mentioned in an application made under paragraph 2, may make a written application to the court to the effect that such claimant be included in any order made under paragraph 6:
(a) The name and address of the plaintiff;
(b) The nature of the order of accumulation requested, and
(c) The grounds on which the request is based.
The claimant shall deliver a copy of its request to the Secretary-General of ICSID or the PCA, as appropriate.
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 8.28 shall not have jurisdiction to decide a claim, or part of a claim, over which a tribunal established or instructed under this Article has assumed jurisdiction, subject to paragraph 6(c).
10. On 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 8.28 be adjourned, unless the latter tribunal has already adjourned its proceedings.
Article 8.32. Transparency of Arbitral Proceedings
1. Subject to paragraphs 4, 5 and 6, the respondent shall deliver to the non-disputing Party and make available to the public, the following documents:
(a) The notice of intent;
(b) The request for arbitration, and
(c) Court orders, awards and decisions.
2. Subject to paragraphs 4, 5 and 6, the disputing parties may agree to deliver to the non-disputing Party and make available to the public the following documents:
(a) The publication of pleadings, briefs and communications submitted to the tribunal by a disputing party and any written communication submitted pursuant to Article 8.31, and
(b) Minutes or transcripts of court hearings, when available.
3. The disputing parties may also agree that hearings shall be open to the public. In such a case, if a disputing party intends to use information at a hearing that is classified as protected information or otherwise subject to paragraph 5, it shall so inform the tribunal. The tribunal shall make appropriate arrangements to protect such information from disclosure, which may include closing the hearing during the discussion of such information.
4. Nothing in this Section, including paragraph 5(d), requires a respondent to make available to the public or otherwise disclose during or after arbitration proceedings, including the hearing, protected information or providing or permitting access to information that it may withhold pursuant to Article 19.2 (Security Exceptions) or Article 19.5 (Disclosure of Information) (12).
5. Any protected information that is submitted to the court shall be protected from disclosure in accordance with the following procedures:
(a) Subject to subparagraph (d), neither the disputing parties nor the tribunal shall disclose to the non-disputing Party or to the public information designated as protected when the disputing party providing the information clearly designates it in accordance with subparagraph (b);
(b) Any disputing party claiming that certain information constitutes protected information shall clearly designate it in accordance with any procedures established by the tribunal;
(c) A disputing party shall, in accordance with any procedures established by the tribunal, submit a redacted version of the document that does not contain the protected information. Only the redacted version shall be disclosed in accordance with paragraph 1; and
(d) Subject to paragraph 4, the tribunal shall decide any objection to the designation of information claimed to be protected information. If the tribunal determines that the information was not properly designated, the disputing party that submitted the information may:
(i) Withdraw all or part of your 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 in which the information removed pursuant to subparagraph (d)(i) by the disputing party that first submitted the information has been removed, or redesignate the information in a manner consistent with the designation made pursuant to subparagraph (d)(ii) of the disputing party that first submitted the information.
6. Nothing in this Section requires the respondent or the non-disputing Party to deny public access to information that, under its laws, must be disclosed. The respondent and the non-disputing Party shall endeavor to apply those laws in a manner that protects from disclosure information that has been designated as protected information.
Article 8.33. Preliminary Objections
1. 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 competence or jurisdiction of the tribunal, the tribunal shall hear and decide as a preliminary question any objection by the respondent that, as a matter of law, states that the claim submitted is not a claim upon which an award may be made under this Chapter or that the claim is manifestly without legal merit:
(a) Such objection shall be submitted to the tribunal as soon as possible after its constitution, 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, the date the tribunal fixes for the respondent to file its answer to the amendment;
(b) Upon receipt of an objection under this paragraph, the tribunal shall suspend any action on the merits of the dispute. The disputing parties and the tribunal shall establish a timetable for consideration of the objection, which shall be consistent with any timetable established for consideration of any preliminary issue. The tribunal shall issue a decision or award on the objection, stating the grounds for the objection;
(c) In deciding an objection under this paragraph that a claim is not a claim upon which an award may be made under this Chapter, the tribunal shall take as true the factual allegations submitted by the claimant in support of any claim. The tribunal may also consider any other relevant fact that is not in dispute and shall hear the disputing parties on that fact.
2. This Article shall be without prejudice to the right of the Respondent to raise any objection to the jurisdiction or venue of the court or to any argument on the merits, whether or not the Respondent has raised an objection under paragraph 1 or made use of the expedited procedure set forth in paragraph 3.
3. If the respondent so requests, the tribunal shall decide, in an expeditious manner, an objection under paragraph 1 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 eighty (180) 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 period not to exceed thirty (30) days.
4. The provisions on costs in Article 8.40 shall apply to decisions and awards rendered under this Article. When the tribunal decides on the respondent's objection under paragraph 1 or 3, it may, if it is justified in finding that the claimant's claim or the respondent's objection was manifestly frivolous, award to the prevailing disputing party reasonable costs and fees incurred in making or opposing the objection. In such a case, the tribunal shall give the disputing parties a reasonable opportunity to comment.
5. If the tribunal decides to reject in whole or in part an objection under paragraph 1 or 3, the disputing parties and the tribunal shall establish a new timetable for consideration of the merits.
6. This Article shall be without prejudice to the authority of the tribunal to address other matters within its competence throughout the proceeding.
Article 8.34. Counterclaims
1. Unless otherwise agreed by the disputing parties, either party may file an incidental or additional claim or counterclaim directly related to the dispute, provided that it is within the limits of the consent of the parties and falls within the jurisdiction of the tribunal.
2. Any incidental or additional claim shall be presented no later than in the reply, and any counterclaim no later than in the answering brief, unless the tribunal, upon justification by the party presenting the subordinate claim and after considering any defenses of the other disputing party, authorizes its presentation at a later stage of the proceeding.
3. The court shall fix a time limit within which the party against whom a subordinate claim is filed may submit its observations thereon.
Article 8.35. Place of Arbitration Proceedings
Unless the disputing parties agree otherwise, a tribunal shall conduct the arbitral proceedings in the territory of a State that is a party to the New York Convention, which shall be chosen in accordance with:
(a) The ICSID Convention, if the arbitration is governed by those rules, or
(b) The UNCITRAL Arbitration Rules, if the arbitration is governed by those rules.
Article 8.36. Applicable Law
1. A tribunal established under this Section shall decide disputes submitted to it in accordance with this Chapter, the applicable rules of international law and, where applicable, the respondent's legal system. For greater certainty, the order of priority shall be as follows: the provisions of this Chapter, the applicable rules of international law and the legal system of the respondent.
2. An interpretation by the Bilateral Administrative Commission of a provision of this Chapter shall be binding on a tribunal established under this Section.
3. For greater certainty, if an investor of a Party submits a claim under this Section, including a claim alleging that the Party breached Article 8.7, the investor has the burden of proof on all elements of its claims, in accordance with the general principles of international law applicable to international arbitration.
Article 8.37. Interpretation of the Annex on Future Actions
1. Where the respondent asserts as a defense that the measure alleged to be in violation is within the scope of Annex 8.11, upon request of the respondent, the tribunal shall request the Bilateral Administrative Commission for an interpretation of the matter. Within ninety (90) days of the delivery of the request, the Bilateral Administrative Commission shall submit in writing to the tribunal any decision stating its interpretation under Article 17.2 (Functions of the Commission).
2. The decision rendered by the Bilateral Administrative 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 Bilateral Administrative Commission fails to issue such a decision within ninety (90) days, the tribunal shall decide the matter.
Article 8.38. Expert Reports
Without prejudice to the appointment of other types of experts where 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 disapprove, appoint one or more experts to report in writing on any factual issue concerning 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. In the absence of agreement between the disputing parties, the tribunal shall establish such terms and conditions.
Article 8.39. Interim Measures of Protection
1. A tribunal may order an interim measure of protection to preserve the rights of a disputing party or to prevent impairment of the exercise of its jurisdiction, including an order to preserve evidence in the possession or control of a disputing party, or orders to prevent impairment of the arbitral proceedings.
2. The request shall specify and substantiate the rights sought to be safeguarded, the measures requested, and the circumstances that make it necessary to order such measures, including the likelihood of any damage not adequately compensable by way of compensation. For greater certainty, the tribunal's determination with respect to the provisional measure shall in no way prejudice any decision it makes on the dispute.
3. The tribunal shall order provisional measures, or modify or revoke those previously granted, only after giving each disputing party an opportunity to present its observations.
4. The arbitral tribunal may require the disputing party requesting an interim measure to provide adequate security for the measure requested.
Article 8.40. Awards
1. When a tribunal makes a final award, the tribunal may award, separately or in combination, only:
(a) Pecuniary damages and interest, and
(b) Restitution of property, in which case the award shall provide that the respondent may pay monetary damages, plus interest in lieu of restitution.
2. The tribunal may also award reasonable costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
3. The tribunal may award to the prevailing disputing party all or part of the reasonable costs and fees incurred by it. If only some parts of the claims have been successful, the costs shall be adjusted in proportion to the number or scope of such parts of the claims. The tribunal may also apportion the costs between the disputing parties if it determines that apportionment is appropriate considering the circumstances of the claim.
4. Pursuant to paragraph 1, when the claim is made by an investor on behalf of an enterprise:
(a) The award providing for restitution of the property shall provide that restitution shall be granted to the company;
(b) The award granting pecuniary damages and interest shall provide that the sum of money be paid to the company, and
(c) The award shall provide that the award is without prejudice to any right that any person may have to the relief provided for in the award under the applicable legal system.
5. A court may not order a Party to pay damages that are punitive in nature.
6. An award rendered by a tribunal shall be binding only on the disputing parties and only in respect of the particular case.
7. Pursuant to paragraph 8 and the review procedure applicable to an interim award, a disputing party shall comply with and comply with the award without delay.
8. A disputing party may not request enforcement of a final award until:
(a) In the case ofa final award rendered under the ICSID Convention:
(i) one hundred and twenty (120) days have elapsed since the date on which the award was rendered and no disputing party has requested the 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 under the UNCITRAL Arbitration Rules:
(i) ninety (90) days have elapsed since the date on which the award was tendered and no disputing party has initiated a proceeding to revise, set aside or annul the award, 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.
9. Each Party shall provide for the proper enforcement of an award in its territory.
10. Where the respondent fails to comply with or abide by a final award, at the request of the Party of the claimant, an arbitral tribunal shall be established in accordance with Chapter 18 (Dispute Settlement) of the Agreement. The requesting Party may invoke such procedures to:
(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) A decision that the Party abide by and comply with the final award.
11. The claimant 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 10 have been instituted.
12. For the purposes of Article I of the New York Convention and Article I 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.
13. If a separate international treaty enters into force between the Parties establishing a rnultilateral investment court or an appellate mechanism, the Parties may adopt a decision providing that investment disputes arising under this Chapter shall be decided, or in the event that an appellate mechanism is established, may be admissible for review, in accordance with this separate treaty, and, where appropriate, shall make the necessary transitional provisions.
Article 8.41. Challenge of Arbitrators
1. An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence.
2. A disputing party may challenge the arbitrator appointed by him only for causes of which he has become aware after his appointment.
3. A disputing party wishing to challenge an arbitrator shall give notice of its decision within fifteen (15) days from the date on which it was notified of the appointment of the arbitrator it intends to challenge, or within fifteen (15) days from the date on which it became aware of any of the circumstances referred to in paragraph 1.
4. Any challenge shall be notified to the other disputing party, as well as to the challenged arbitrator and to the other members of the tribunal. Reasons shall be given for the challenge so notified.
5. When an arbitrator has been challenged by a disputing party, the other disputing party may accept the challenge. The arbitrator may also, after the challenge, resign from the office. In neither case shall this be understood as implying acceptance of the validity of the reasons on which the challenge is based.
6. The challenging disputing party may elect to maintain the challenge if, within fifteen (15) days from the date the challenge is notified, the other disputing party does not agree to the challenge or the challenged arbitrator does not withdraw. In such a case, within thirty (30) days from the date on which the challenge was notified, it may, at its option, request the Chairman of the ICSID Administrative Council or the Secretary of the PCA to make a reasoned decision on the challenge. Such decision shall be notified to the disputing parties, the challenged arbitrator and the other members of the tribunal.
7. In the event that the challenge is upheld, a new arbitrator shall be appointed in accordance with Article 8.29.
Article 8.42. General Provisions
Time at which the claim is considered to be subject to the arbitration procedure
1. A claim is deemed to be submitted to arbitration under the terms of this Section when:
(a) The request for arbitration under Article 36, paragraph 1 of the ICSID Convention has been registered by the Secretary-General in accordance with paragraph 3 of that Article, or
(b) The notice of arbitration under the UNCITRAL Arbitration Rules has been received by the disputing Party.
Delivery of documents
2. Delivery of the notification and other documents to a Party shall be made at the place designated by it in Annex 8.42. A Party shall promptly publicize and notify the other Party of any change to the place designated in that Annex.
Annex 8.2. TERMINATION OF THE TREATY BETWEEN THE REPUBLIC OF ARGENTINA AND THE REPUBLIC OF CHILE FOR THE RECIPROCAL PROMOTION AND PROTECTION OF INVESTMENTS
1. The Parties agree that the Treaty between the Republic of Argentina and the Republic of Chile for the Reciprocal Promotion and Protection of Investments and its Protocol, signed in Buenos Aires, on August 2, 1991 (hereinafter referred to as the Investment Treaty), and the amendments agreed by the Parties on July 13, 1992, as well as all rights and obligations derived therefrom, shall terminate on the date of entry into force of this Agreement.
2. Notwithstanding paragraph 1, the Investment Treaty shall apply to any investment (as defined in the Investment Treaty) that was made prior to the entry into force of this Agreement, with respect to any act or fact that took place or any situation that ceased to exist prior to the entry into force of this Agreement, provided that the investor submits its claim under Article X of the Investment Treaty within three (3) years of the entry into force of this Agreement.
3. The Parties agree that this Annex constitutes an amendment to paragraph 4 of Article XI (Entry into Force, Duration and Termination) of the Investment Treaty and is effective to terminate the latter.
4. For greater certainty, events or acts subsequent to the entry into force of this Agreement shall be governed exclusively by this Agreement.
Annex 8.11. FUTURE NON-CONFORMING MEASURES (13)
List of Argentina (14)
Pursuant to Article 8.11 (Nonconforming Measures), Argentina reserves the right to adopt or maintain any measure not in conformity with the obligations set forth below with respect to the following sectors, subsectors or activities:
1. The acquisition or control of rural lands, coastal lands and real estate located in border areas, when the measure is not in conformity with Article 8.5 (National Treatment) or Article 8.6 (Most-Favored-Nation Treatment);
2. Economic development of the least developed regions; when the measure is inconsistent with Article 8.5 (National Treatment);
3. The transfer or disposition of shareholdings or assets by state-owned enterprises or governmental entities. In addition, Argentina reserves the right to adopt measures to regulate "controlling shareholdings" by foreign investors or their investments that may arise from the performance of such transactions. In connection with such sales or other forms of disposition, Argentina reserves the right to adopt or maintain any measure relating to the nationality of senior executives serving on the boards of such companies; where the measure is inconsistent with Article 8.5 (National Treatment) or Article 8.10 (Senior Executives and Boards of Directors);
4. Granting rights or preferences to social minorities, vulnerable groups or socially or economically disadvantaged groups; when the measure is inconsistent with Article 8.5 (National Treatment), Article 8.6 (Most-Favored-Nation Treatment) or Article 8.10 (Senior Management and Boards of Directors);
5. Granting rights or preferences to indigenous peoples; when the measure is inconsistent with Article 8.5 (National Treatment), Article 8.6 (Most-Favored- Nation Treatment) or Article 8.10 (Senior Management and Boards of Directors);
6. Fishing and aquaculture and related activities, including the establishment of domicile or residence requirements, or nationality requirements for natural persons or juridical persons in relation to the exploitation of living resources in its internal waters, maritime zones under its jurisdiction and its continental shelf when the measure is inconsistent with Article 8.5 (National Treatment) or Article 8.10 (Senior Management and Boards of Directors).
Furthermore, Argentina reserves the right to adopt measures with respect to navigation, crew composition and vessels employed in the fishing industry in maritime areas under its jurisdiction, when the measure is not in accordance with Articlen 8.5 National Treatment) or Article 8.6 (Most-Favored-Nation Treatment);
7. Cultural industries; (15) where the measure is inconsistent with Article 8.5 (National Treatment), Article 8.6 (Most-Favored-Nation Treatment), or Article 8.10 (Senior Management and Boards of Directors);
8. Nuclear energy, including nuclear power generation, the manufacture and supply of nuclear fuel, nuclear materials, treatment and disposal of radioactive waste, radioisotope and radiation generation facilities; where the measure is inconsistent with Article 8.5 (National Treatment), Article 8.6 (Most-Favored-Nation Treatment) or Article 8.10 (Senior Management and Boards of Directors);
9. Granting preferences to domestic manufacturers of motor vehicles, trailers and semi-trailers; when the measure is inconsistent with Article 8.5 (National Treatment) or Article 8.10 (Senior Executives and Boards of Directors);
10. Granting preferences to domestic manufacturers of medical and dental instruments and materials, irradiation equipment and electronic equipment for medical and therapeutic use; when the measure is inconsistent with Article 8.5 (National Treatment) or Article 8.10 (Senior Executives and Boards of Directors);
11. Development of national productive capacities in biotechnology in the areas of human and animal health, agriculture and livestock, and industrial processing (16) , in a manner consistent with its multilateral obligations; where the measure is inconsistent with Article 8.5 (National Treatment) and Article 8.10 (Senior Management and Boards of Directors);
12. Protection of public health in general and, in particular, the access of natural persons to medicines in accordance with their multilateral international obligations; when the measure is inconsistent with Article 8.5 (National Treatment) or Article 8.6 (Most-Favored-Nation Treatment).