Article 13. Taxation Measures
1. Except where explicitly refer, nothing in this Agreement shall apply to Taxation Measures. For greater certainty, nothing in this Agreement shall affect the rights and obligations of any tax punes under the Convention. In the event of any inconsistency between the provisions of this Agreement and any tax convention, the provisions of this Convention applies in the extent of the inconsistency.
2. Nothing in this Agreement shall be construed as requiring a party to furnish or allow access to information the disclosure of which would be contrary to the party law protecting information concerning the taxation affairs of a taxpayer wooden.
3. Article 11 (expropriation and compensation) and article 20 (submission of a claim to arbitration) shall apply to a taxation measure allegedly expropriatory.
Article 14. Denial of Benefits
Subject to Article 15.3 (transparency), a Party could deny the benefits of this Agreement to;
(a) An investor of the other Party that is an enterprise of that Party and the investments of such investor if a person of a country that is not a party owns or controls the enterprise and the latter has no substantial business activities in the territory of the other party; or
(b) An investor of the other Party that is an enterprise of such other and the investments of that investor if the enterprise has no substantial business activities in the territory of any party other than the party , or denying a person of the party denying owns or controls the Enterprise.
Article 15. Transparency
1. Each Party shall, as far as possible, to ensure that its laws, regulations, procedures and administrative rulings of general application relating to any matter covered by this Agreement are promptly published or otherwise made available in such a manner that allow the interested persons and the other party have knowledge of the same.
2. In the extent of possible, each Party shall:
(a) Pre-publish any measure that it proposes to adopt; and
(b) Provide interested persons and the other party a reasonable opportunity to comment on the proposed measures.
3. At the request of a Party, shall exchange information on the measures of the other party that may have an impact on covered investments.
Article 16. Special Formalities and Information Requirements
1. Nothing in article 2 (National Treatment) shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities related to a covered investment, such as a requirement that investors be residents of the party or that covered investments be constituted under the laws or regulations of the Party provided that such formalities do not materially impair the protections afforded by a Party to investors of the other Party and to the investments covered pursuant this Agreement.
2. Notwithstanding articles 2 (National Treatment) and 3 (most-favoured-nation treatment), a Party may require an investor of the other party or its covered investment to provide information concerning that investment or informational solely for statistical purposes. The party shall protect any confidential information that is from that disclosure would prejudice the competitive position of the investor or the investment covered. Nothing in this paragraph shall be construed as a obstacle for a Party to get or disclose information concerning the good faith and equitable application of its law.
Article 17. Implementation
1. The Parties shall consult annually, or otherwise agreed to revise the implementación of this Agreement and consider matters of mutual interest, including the development of procedures that could contribute to greater transparency of measures described in article 7.1 (c) (non-conforming measures).
Section B. Investor - State Dispute Ssttlement
Article 18. Limitation of Claims In Respect of Financial Institutions
In respect of:
(a) Financial institutions of a party; and
(b) Investors of a Party, and investments of investors, in such financial institutions in the territory of the other party,
This section applies only in respect of claims in the other party for breaches of obligations of the article 11 (Expropriation and Compensation), 12 (transfers) and 14 (denial of benefits),
Article 19. Consultation and Negotiation
1 In case of a dispute relating to an investment, opposing parties should first seek to resolve the dispute through consultation and negotiation, which may include the use of non-binding third-party consultations and negotiations. The consultation and negotiation process shall begin with the request which have to be sent to the office designated in Annex F (Deliver of documents of a Party under Section B). Such request shall be sent to the respondent prior notification of intent, referred to in article 20.4 (submission of a claim to arbitration), and shall include the information specified in Article 20.4 (a), (b) and (c) (submission of a claim to arbitration),
2, The consultations shall be carried out for a minimum period of six (6) months and may include face-to-face meetings in the capital of the respondent.
Article 20. Submission of a Claim to Arbitration
1 In respect to administrative acts, for a claim to arbitration under this article, or before a judicial or administrative tribunal, will be essential previously exhaust local remedies when the administrative legislation of a Party so require. The exhaustion shall in no case exceed six (6) months from the date of its initiation by the investor and shall not prevent the investor to request the consultations referred to in article 19 (Consultations and negotiations).
2, In the case that a Party considers that a dispute concerning an investment cannot be resolved by consultation and negotiation:
(a) The applicant, on their own account, may submit a claim to arbitration in which it alleges:
(i) That the respondent has breached an obligation pursuant to section (a) (substantive obligations;) and
(ii) That the claimant has incurred losses or damages by virtue of such violation or as a result of this.
(b) The applicant, on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or is under direct or indirect control, may in accordance with this section, submit a claim alleging
(i) That the respondent has breached an obligation pursuant to section (a) (substantive obligations); and
(ii) That the enterprise has incurred losses or damages by virtue of such violation or as a result of the latter.
3 Only the breach of an obligation under section 3 (substantive obligations) may set a claim to arbitration under this Section. An investor may not submit a claim under this section related to the breach of the obligations under Articles 5.3 (senior executives, executive boards and temporary entry), 9 (healthy, safety and environmental measures), 15 (transparency) and 17 (implementation).
4. At least six months before the submission of the reclamation to arbitration under this section, the claimant to the respondent shall deliver a written notice of its claim to submit the dispute to arbitration (Notification of intent). The notification of intent shall specify
(a) The name and address of the claimant and, in the event that the reclamation is submitted on behalf of an enterprise, the name, address and place of incorporation of the enterprise;
(b) For each redamación, suction (a) substantive obligations which is alleged to have been breached and any other relevant provisions;
(c) The facts and the law under which each claim is based, including the measures at issue; and
(d) The relief sought and the approximate amount of damages claimed
5. The applicant must deliver, together with its modification of intent, evidence establishing that it is an investor of the other Party.
6. Provided that six (6) months has elapsed since the events giving rise to the claim and provided that the Claimant has fulfilled with the conditions specified in article 22 (conditions and limitations of the consent of each party), the claimant may submit the claim referred to in paragraph 2:
(a) In accordance with the ICSID Convention and ICSID Rules of Procedure for Arbitration Proceedings, provided that the respondent as Party of the claimant are parties of the ICSID Convention;
(b) In accordance with the ICSID Additional Facility Rules DD, provided that the respondent or the party of the claimant are parties of the ICSID Convention;
(c) In accordance with the UNCITRAL arbitration rules, or
(d) If the disputed parties agree to an ad hoc arbitral institution or any other arbitral institution or any other arbitration rules.
7. A claim shall be deemed submitted to arbitration under this section when the notice of or request for arbitration (Notice of Arbitration) of the applicant:
(a) Referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) Referred to in article 2 of Schedule C of the ICSID Additional Facility Rules, is received by the Secretary-General;
c) Referred to in article 3 of the Rules of Arbitration of the UNCITRAL, together with the statement of claim referred to in article 18 of the Arbitration Rules of the UNCITRAL, is received by the respondent; or
(d) Referred to arbitration under any other institution or any arbitration rules selected under paragraph 6 (d) is received by the respondent.
8, The arbitration rules applicable under paragraph 1 that are in effect on the date the claim or claims which have undergone to arbitration under this section, shall govern the arbitration except in the extent this is amended or supplemented by this Agreement.
9. The responsibility among the disputed parties in respect of the assumption expenses, including, where appropriate, the cost pursuant article 25.12 (conduct of the arbitration), derived from their participation in the arbitration shall be established;
(a) By the arbitral institution to which a claim has been submitted to arbitration in accordance with its rules of procedure; or
(b) According to the rules of procedure agreed by the disputed parties, when applicable.
10. The Commission established under article 37 (Commission) shall have the power to make rules supplementing the applicable arbitral rules and may amend its own rules of any establishment. Such rules could be binding for a tribunal established under this section and on individual arbitrators serving on such courts,
11. The claimant shall provide with the notice of arbitration referred to in paragraph 7:
(a) the name of the arbitrator appointed by the respondent; or
(b) The written consent of the claimant for the Secretary-General to appoint that arbitrator.
Article 21. Consent to Arbitration of Each Party
1. Each party consents to submit a claim to arbitration under this section in accordance with this Agreement.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this section shall comply with the requirements set out in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the rules of the ICSID Complementary Mechanism which require written consent of the Parties to the dispute;
(b) Article II of the New York Convention requests a "written agreement"; and
(c) Article I of the Inter-American Convention which requires an "agreement".
Article 22. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this section if more than thirty nine months (39) has elapsed from the date on which the claimant knew or should have had knowledge of the alleged breach under article 20.2 (submission of a claim to arbitration) and knowledge that the claimant, by the claims filed under article 20.2(a) (submission of a claim to arbitration) or the enterprise (for claims brought under article 20.2(b) (submission of a claim to arbitration), has suffered losses or damages.
2. No claim may be submitted to arbitration under this section unless:
(a) The claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement; and
(b) The notice of arbitration referred to in article 20.7 (submission of a claim to arbitration) is annexed,
(i) For claims submitted to arbitration under article 20.2 (a) (Submission of a claim to arbitration), of the claimant written waiver; and, where 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 written waiver of the claimant and the enterprise, written waivers
(ii) For reclamations submitted to arbitration under article 20.2 (b) (submission of a claim to arbitration), written waivers of claimant and the enterprise;
Any right to initiate before any tribunal or administrative court under the law of any Party, or any other dispute settlement procedures proceedings with respect to any measure alleged to be a breach referred to in article 20 (submission of a claim to arbitration).
3. In the case of a claim relating to a taxation measure in accordance with article 13.3 (Tax Measures), no investor may invoke article 11 (expropriation and indemnisation) as the basis of a claim where it has been determined pursuant to this paragraph that the measure is not an expropriation. An investor that seeks to invoke article 11 (expropriation and compensation) with respect to a taxation measure must first refer the matter to the competent authorities of the Parties(9) at the time of delivery the notice of intent under article 20 (submission of a claim to arbitration), so that such authorities determine whether the taxation measure is an expropriation. The authorities of the two Parties shall, as far as possible, be available, if within six (6) months after the referral of the matter to the competent authorities of the parties do not reach an agreement as to whether the measure is not an expropriation, the investor may proceed with the procedure under article 20 (submission of a claim to arbitration).
4. Without prejudice to paragraph 2 (b), the claimant, who started reclamations under article 20.2 (Submission of a claim to arbitration), and the claimant or the enterprise for claims brought under article 20.2 (b) (submission to arbitration of a reclamation), may initiate or continue an interim measure, that does not involve the payment of monetary damages before a judicial or administrative tribunal the respondent, provided that such action is filed with the sole purpose of preserving its rights and interests of the claimant or the enterprise while the proceedings of the arbitration continue(10).
5. The consent and the waiver required by this article shall be in the format was foiled in Annex E (standard format consent and waiver under Article 22), shall be delivered to the respondent and shall be included in the notice of arbitration.
6. A waiver from the enterprise under paragraph 2 (bxi) or 2 (b) (ii) shall not be required only when a claim that the respondent deprived the applicant of control of the Enterprise
7. No claim may be submitted to arbitration under article 20.2 (a) (submission of a claim to arbitration) or article 20.2 (b) (submission of a claim to arbitration) if the applicant has previously submitted the same alleged breach before a judicial or administrative tribunal of the defendant, or to any other binding dispute settlement procedure.
8. For greater certainty, if the applicant chooses to submit a claim described under this section to a court or administrative tribunal of the defendant or any other binding dispute settlement mechanism, that election shall be definitive and the claimant may not submit the same claim under this section.
9. A breach of any of the conditions precedent described in paragraphs 1 to 8 shall squash the consent given by the parties in article 21 (consent of each party to arbitration).
(9) For the case of Colombia, the Department of taxes and tariffs - DIAN - or its successor. For the case of Peru, the Ministry of Finance and Economy - MEF- or its successor.
(10) In the provisional measure, including the measures to preserve evidence and property pending the processing of the claim submitted to arbitration, an administrative court is the respondent to any dispute referred to arbitration under section B (Settlement of Investor - State disputes), will apply the legislation of that Party.
Article 23. Procedure for Prudential Measures
1. Where an investor submits a claim to arbitration under this section and the opposing side invokes as defence article 8.2 or 8.3 (general exceptions) or article 12.4 (transfers) and Annex D (transfers), the Tribunal established pursuant to article 20.2 (a) (submission of a claim to arbitration) or article 20.2 (b) (submission of a claim to arbitration) shall ask , at the request of that Party, a report in writing from the parties on the issue of whether the provisions indicated is a valid defence to the claim of the investor and the extent. The Tribunal may not proceed until the receipt of a report referred to in this paragraph, except as provided in paragraph 3.
2. Pursuant to a request received in accordance with paragraph 1, the Parties shall proceed under section C (Settlement of State - State Disputes) to prepare a written report, either on the basis of the Agreement under the consultations, or by means of an arbitral tribunal. The consultations shall be held between the authorities of financial services of the Parties, the report shall be delivered to the Tribunal and shall be binding on the Tribunal.
3. If within seventy (70) days of the request, the Tribunal has not received the report and none of the parties has requested the establishment of a panel in accordance with article 34 (settlement of disputes between the parties), the tribunal may proceed to decide the matter.
Article 24. Selection of Arbitrators
1. Unless the parties agree otherwise, the Tribunal shall comprise three arbitrators: one arbitrator appointed by each of the contending parties and the third, who shall be the President, shall be appointed by agreement of the contending parties.
2. The Secretary-General shall serve as appointing authority in the arbitration procedures under this section.
3. The arbitrators shall;
(a) Have experience or expertise in International Law, International Investment Rules or in the settlement of disputes arising under international investment agreements;
(b) Not rely on any of the parties or of the applicant, not being involved or receive instructions from either of them;
(c) Comply with any a code of conduct for dispute settlement as agreed by the Commission.
4. When a different Tribunal established under article 31 (Consolidation) not be integrated in a period of ninety (90) days from the date that the claim is submitted to arbitration under this section, the Secretary-General, upon request of either party, shall, after consultation designate the arbitrator or arbitrators not yet appointed. Unless otherwise agreed before, the president of the Tribunal shall not be a national of any of the Parties.
5. For the purposes of article 39 of the ICSID Convention and article 7 of part C of the rules of the additional facility of ICSID, and without prejudice to an arbitrator to objection on grounds that are not nationals:
(a) The respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or with the rules of the additional facility of the ICSID;
(b) The claimant referred to article 20.2 (a) (submission of a arbitration request) may submit a claim to arbitration under this section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only on condition that the claimant's consent in writing to the appointment of each member of the Tribunal; and
(c) The claimant referred to in article 20.2(a) (Submission of a claim to arbitration) may submit a claim to arbitration under this section, or continue a claim under the ICSID Convention or ICSID Additional Facility Rules only under the condition that the claimant and the company manifest its consent in writing to the appointment of each member of the Tribunal.
6. The parties may agree on the fees of arbitrators. If the disputed parties do not reach an agreement on the fees of the arbitros before the constitution of the tribunal shall apply the fees established by the ICSID.
7. If a party considers that a dispute involves measures adopted or maintained by a Party relating to financial institutions of the other party of investments or investors of the other party in financial institutions, then:
(a) Where the contending parties agree, the arbitrators shall, aditionally to the criteria set out in paragraph 3, have expertise or experience in financial system, which may include the regulation of financial institutions; or
(b) Where the parties do not agree,
(i) Each Party shall select the arbitrators who meet the qualifications set out in subparagraph (a), and
(ii) If the respondent invokes articles 8.2 or 8.3 (general exceptions) or article 12.4 (transfers) and Annex D (transfers), the President of the Court shall meet the qualifications set out in subparagraph (a).
Article 25. Implementation of the Arbitration
1. The contending parties may agree on the legal place of any arbitration under the applicable arbitral rules under article 20.6 (b), (c) or (d) (submission of a claim to arbitration), in the absence of agreement between the contending parties, the tribunal shall determine the place in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the Convention of Nueva York.
2. Any non-contending party (amicus curiae) wishes to make written submissions to a tribunal (the "applicant") may request permission to the tribunal, submitted it in accordance with Annex G (submissions by Parties which are not in dispute). It may attach the submission to the request.
3 The requesting party may refer the request for permission to make the submission of a Party not litigants, together with the submission to all the non-contending parties and the Tribunal.
4. The Tribunal may establish an appropriate date for opposing parties to comment on the application to submit a presentation of a non-contending party.
5. In determining whether to grant permission to formulate a presentation by a non-contending Party, the Tribunal shall consider, inter alia, the extent to which:
(a) The presentation of a non-contending party will assist the Tribunal in the determination of a law or a factual question relating to arbitration providing a perspective, particular knowledge and understanding that is different from the contending parties;
(b) The presentation of a non-contending Party would cover a matter within the scope of the dispute;
(c) The non-contending party would have a significant interest in the arbitration; and
(d) There would be a public interest in the subject-matter of the arbitration.
6. The tribunal shall ensure that:
(a) Any submission of a non-contending Party would not disrupt the proceedings; and
(b) None contending party is unduly burdened or unfairly prejudiced by such submissions.
7. The Tribunal shall decide whether gives permission to make a submission to a non-contending party. If such permission for the presentation of a non-contending Party is granted, the tribunal shall determine the appropriate date for the opposing parties to respond in writing to the submission of the Party not litigants. To this date the non-contending party could observe any issue of interpretation of this Agreement in the non-contending party's submission.
8. The Tribunal that grants leave to the submission of a Party does not require litigants refer to the submission to the arbitration at any time, either non-contending party that made the submission is not entitled to make further submissions in the arbitration.
9. The access to documents and hearings by non-contending parties who submit applications under this procedure shall be governed by the provisions contained in article 26 (transparency in the arbitral proceedings).
10. Without prejudice to the discretion of the Tribunal to know other objections as a preliminary issues, such as an objection that the dispute is not within the competence of the Tribunal, a tribunal shall decide any question as a preliminary objection by the respondent that, as a matter of law, a claim submitted is not a claim for which it may make a favourable award to the applicant in accordance with article 31 (awards).
(a) Such objection shall be submitted to the Tribunal as soon as possible after the Constitution of the Tribunal, and in no event later than the date fixed by the Tribunal for which the respondent will submit its reply to the notice of arbitration (or in the case of an amendment to the notice of arbitration referred to in article 20.7 (submission of a claim to arbitration), the Tribunal fixes the date for the respondent to submit its response to the amendment).
(b) Upon receipt of an objection in accordance with this paragraph, the Tribunal shall suspend any proceedings on the merits, shall establish a schedule for the objection consistent with any schedule it has established for the consideration of any preliminary objection and it will issue a decision or award on the objection, stating the grounds thereof.
(c) On deciding an objection under this paragraph, the tribunal assume certain factual arguments submitted by the claimant in support of any claim in the notice of arbitration (or any amendment thereof) and in disputes brought under the UNCITRAL Arbitration Rules of the statement of claim referred to in article 18 of the UNCITRAL Arbitration Rules, the Tribunal may also consider any other relevant fact that is not under dispute.
(d) The respondent does not waive to the right to make any objection with respect to the competition or any argument merits merely because it has or has not formulated an objection under this paragraph or make use of the expedited procedure set in paragraph 11.
11. Ln the event that the respondent so requests, within forty five (45) days following the date of the Constitution of the Tribunal, the Tribunal shall decide on an expedited basis an objection under paragraph 10 and any objection that the dispute is not within the competence of the Tribunal. The Tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection, stating the grounds thereof, not later than one hundred and fifty (150) days after the date of the request. However, if a opposing side requests a hearing, the Tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, the Tribunal can demonstrate a special reason, delay issuing its decision or award by an additional brief period, which may not exceed thirty (30) days.
12. If the Tribunal decides on the objection of the respondent in accordance with paragraphs 10 or 11 may, if warranted, grant the opposing side winning reasonable costs and attorneys fees incurred in submitting the objection or opposing to it. In determining whether such an award is justified, the Tribunal shall consider whether the claim of the claimant or the objection of the respondent were irrelevants, and shall accord to the contending parties a reasonable opportunity to present their comments.
13. A tribunal may order an interim measure of protection to preserve the rights of a combatant or with the aim of ensuring the full exercise of the competence of the Tribunal, including an order to preserve evidence in the possession or control of the combatant party or to protect the Tribunal jurisdiction. The Tribunal may not order the foreclosure or prevent the application of a measure that is deemed to be a breach referred to in article 20 (the submission of a claim to arbitration).
14. (a) In any arbitration conducted pursuant to this section; the request of any of the parties, the court before making a decision or award on liability, will transmit its proposed decision or award to the disputed parties and non-contending Party . Within sixty (60) days after communicated the proposed decision or award, the contending parties may submit written comments to the Tribunal concerning any aspect of its proposed decision or award. The Tribunal shall consider any such comments and issue its decision or award later than forty-five (45) days following the expiry of the period of sixty (60) days to submit comments.
(b) Subparagraph (a) shall not be applied in any arbitration in which an appeal ressource is avaible under parragraph 15.
15. If the parties shall enter into force on a separate multilateral treaty that establishes an appellate body for purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment arrangements to hear investment disputes, the Parties shall endeavour to reach an agreement that would make such appellate body review awards rendered under article 31 (awards) in arbitrations commenced after the Multilateral Agreement enters into force between the parties;
Article 26. Transparency of Arbitral Proceedings
1. The respondent shall deliver to the non-disputing party a copy of the notice of intent to submit a claim to arbitration and other documents such as the notice of arbitration, not more later than thirty (30) days after the date that such documents have been delivered to the respondent.
2. The non-disputing Party shall be entitled to receive from the respondent a copy of:
(a) The evidence that has been submitted to the Tribunal;
(b) Copies of all pleadings filed in the arbitration; and
(c) The written argument of the parties involved.
3. The non-disputing Party shall have the right to attend any hearings held under this section, regardless of whether it makes a submission to the Tribunal or not.
4. Subject to paragraphs 6 and 8, the respondent after receiving the following documents, shall promptly notify the non-disputing Party and make them available to the public:
(a) The notice of intent referred to in article 20.4 (Submission of a reclamation to arbitration) (11);
b) The notice of arbitration referred to in article 20.7 (submission of a claim to arbitration);
(c) The pleadings, written submissions and explanatory notes to the Tribunal submitted by a contending Party; any written communication submitted in accordance with article 25.2 and 3 (conduct of the arbitration) and article 30 (Consolidation);
(d) The minutes or transcripts of the hearings of the Tribunal, when available; and
(e) Orders, awards and decisions of the Tribunal
5, The Tribunal shall conduct hearings open to the public and shall, in consultation with the relevant parties, the pending logistic arrangements. However, any Party that intends to use confidential information in a hearing shall so inform to the tribunal .The tribunal shall make appropriate arrangements to protect the information from disclosure.
6, Nothing in this section requires a respondent to provide protected information or to allow the access to information that could be retained in accordance with the following paragraph.
7. Any confidential information that is submitted to the Tribunal shall be protected from disclosure in accordance with the following procedures: