(a) Under subparagraph (d), neither warring parties; or the court will disclose to any non-contending party or the public any confidential information, when the opposing side that provided the information clearly designates it in accordance with the subparagraph (b);
(b) Any contending party requests that certain information is designated as confidential information will do it when it submits it to the Tribunal;
(c) An opposing side shall, at the same time that it submits a document containing information claimed as confidential information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the non-contending parties and shall be made public in accordance with paragraph 1; and
(d) The Tribunal shall decide any objection regarding the qualification of the information as confidential information. If the Tribunal determines that such information was not properly designated the opposing side submitted the information may (i) withdraw all or part of the submission containing such information; or (ii) agree to resubmit with complete and redacted documents corrected designations in accordance with the determination of the Tribunal and subparagraph (c). In any case, the other contending party shall, where necessary, resubmit complete and redacted documents, which shall omit the information withdrawn in accordance with the (i) by the disputing Party that submitted first the information or redesign the information in accordance with the designation made under (ii) of the contending Party that first submitted the information.
8. Nothing in this section allows the respondent to deny public access to the information that, in accordance with its legislation, should be disclosed,
(11) The respondent may disclose to the public the notice of intent in conjunction with the notice of arbitration in order to facilitate the consultations of the contending parties with a view to resolve the dispute so friendly.
Article 27. Applicable Law
1. Subject to paragraph 2, when a claim is submitted under article 20.2 (a) (submission of a claim to arbitration) or article 20.2 (b) (Submission of a claim to arbitration), the Tribunal shall decide the issues in dispute in accordance with this Agreement and the rules of international law; and, where applicable, the national law of the Party in whose territory the investment was made, including the rules relating to conflicts of law
2. A decision of the Commission declaring its interpretation of a provision of this Agreement under article 37 (Committee), shall be compulsory for a Tribunal established under this section and any decision or award issued by a tribunal must be consistent with that decision / interpretation.
Article 28. Interpretation of Annexes
1. When the respondent raises as a defence that the measure is alleged to be a breach within the scope of Annex I or Annex II, at the request of the defendant, the Tribunal shall request the interpretation of the Commission on the issue. Within sixty (60) days after the delivery of the request, the Commission shall submit in writing to any decision declaring its interpretation pursuant article 37 (Committee).
2. In accordance with article 27.2 (Applicable law), the decision issued by the Commission under paragraph 1 shall be binding on the tribunal and any decision or award issued by the Tribunal must be consistent with that decision. If the Commission fails to issue such a decision within sixty (60) days, the Tribunal shall decide on the matter.
Article 29. Expert Reports
Without prejudice to the designation of other kinds of experts where this is authorized by the applicable arbitration rules, the Tribunal, at the request of a contending party or unless the contending parties do not agree on it, on its own initiative, may appoint one or more experts to inform in writing on any factual issue concerning environmental affairs, health, safety or other scientific matters raised by a Party in a proceeding litigants, upon the terms and conditions to be agreed between the contending parties.
Article 30. Accumulation of Procedures
1. Ln cases in which they have been submitted to arbitration two or more claims separately, pursuant to article 20.2 (submission of a claim to arbitration), and the claims arising within the question of law or fact and arise out of the same events or circumstances litigants, any Party may seek a consolidation order in accordance with the agreement of all the contending parties regarding to which the order of accumulation is sought or in accordance with the terms from paragraphs 2 to 10.
2. The opposing side seeking a consolidation order under this article shall deliver a written request to the Secretary-General and to all parties involved in respect of which the accumulation order is sought and shall specify in the request:
(a) The names and addresses of all the contending parties against which the order of accumulation is sought;
(b) The nature of the order of accumulation sought; and
(c) The rationale underlying the request;
3. Unless the Secretary-General determines within thirty (30) days after receiving a request under paragraph 2 that it is manifestly unfounded, there shall be established a tribunal under this article.
4. Unless all parties involved in respect of which the order of accumulation is sought agree otherwise, the Tribunal established pursuant to this article shall be composed of three arbitrators.
(a) One arbitrator appointed by agreement of the claimants;
(b) One arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the Secretary-General who shall not be a national of any of the Parties.
5. If within sixty (60) days of the receipt by the Secretary-General of the request made under paragraph 2, the respondent or the co- claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, at the request of any of the disputed parties in respect of the acumulation, shall appoint the arbitrator or arbitrators not yet appointed. Iif the respondent fails to appoint an arbitrator, the Secretary-General shall appoint a national of the respondent and if the claimants fail to appoint an arbitrator, the Secretary-General shall appoint a national of a party of the claimants.
6. In the cases that the Tribunal is established under this article confirms that have been submitted to arbitration under two or more claims in accordance with article 20.2 (submission of a claim to arbitration), which pose a question of fact or law in common and which will emerge under the same facts or circumstances, the Tribunal may in the interest of fair and efficient resolution of the claims and after hearing the parties, by order:
(a) Recognise the jurisdiction to hear and determine together on all or a party of one of the claims;
(b) Recognise the jurisdiction and know and establish one or more claims, which determination considers that would assist in the resolution of the others; or
(c) To instruct a tribunal established under article 24 (selection of arbitrators) to assume jurisdiction to hear and determine jointly, on all or part of the claims, provided that
(i) The Tribunal, at the request of any claimant which has not acted before as contending party, recover itself with its original members, except that the arbitrator of the claimants shall be appointed pursuant to paragraphs 4(a) and 5; and
(ii) That Tribunal shall decide to repeat any prior hearing.
7. When a tribunal has been established under this article, an applicant who has submitted a claim to arbitration under article at 20.2 (submission of a request of arbitration), and whose name is not mentioned in a request made under paragraph 2, may make a written request to the Tribunal that it be included in any order made under paragraph 6 and in the request shall specify:
(a) The name and address of the claimant;
(b) The nature of the order sought; and
(c) The reasons for the request.
Claimant shall deliver a copy of its request to the Secretary-General and the contending parties contained in the request pursuant to paragraph 2.
8. A tribunal established under this article shall conduct its proceedings in accordance with the UNCITRAL arbitration rules except as modified by this section.
9. A tribunal established under article 24 (selection of arbitrators) shall have jurisdiction to decide a complaint, or a part of a claim, over which has recognized jurisdiction a tribunal established or instructed under this article.
10. At the request of a party, a tribunal established in accordance with this article may, pending its decision under paragraph 6 provide that the proceedings of a tribunal established under article 24 (selection of arbitrators) be postponed, unless the latter Tribunal already has adjourned its procedures.
Article 31. Awards
1. Where a tribunal issuing a final award unfavourable to the defendant, the Tribunal may award separately or in combination, only:
(a) Monetary damages and interest as appropriate; and
(b) Restitution of property, in which case the award will provide that the respondent may pay monetary damages plus appropriate interest in lieu of restitution.
The Tribunal may also award costs and attorney fees in accordance with this section and the applicable arbitration rules
2. Subject to paragraph 1, when a claim is submitted to arbitration under article 20.2 (b) (Submission of a claim to arbitration):
(a) The award for the restitution of property that shall provide restitution be made to the enterprise;
(b) The award granted monetary damages and interest, shall provide that the sum be paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any right that any person has in the relief under the applicable domestic law.
3. A tribunal is not authorized to award punitive damages with.
4. For greater certainty, a Tribunal shall not be competent to rule on the Legality of the measure in respect of the domestic law.
Article 32. Finality and Enforcement of an Award
1. For greater certainty, the award made by a tribunal shall have no compulsory force except the fighting sections and only in respect of the particular case,
2. Subject to paragraph 3 and the review procedure applicable for an interim award, the opposing side abide by and comply with an award without delay.
3. The opposing side may not seek enforcement of a final award until:
(a) In the house of a final award made in accordance with the ICSID Convention
(i) Within one hundred and twenty (120) days from the date the award was rendered and no contending party has requested revision or annulment of the same; or
(ii) Have concluded the revision or annulment proceedings; and
(b) In the case of a final award made under the ICSID Additional Facility Rules or the Arbitration Rules or the Rules selected in accordance with article 20.6 (d) (submission of a claim to arbitration),
(i) Has elapsed (90) days from the date the award was rendered and no contending party has commenced a proceeding to set aside or revised, annul it; or
(ii) A court has dismissed or allowed an application for revision or annulment of the award, revocation and this decision cannot be appealed.
4. Each Party shall provide for the enforcement of an award in its territory.
5. When the respondent fails to abide by or comply with a final award at the delivery of a request by the non-contending Party a panel shall be established under section C (State - State Settlement of Disputes ). The applicant may seek in such proceedings:
(a) A determination that the failure or refusal of the terms of the final award is inconsistent with the obligations of this Agreement; and
(b) A recommendation with the message that the respondent abide by or comply with the final award.
6. A contending party may resort to the execution of an arbitral award under the ICSID Convention, the New York Convention or the Inter-American Convention regardless of whether or not the procedures referred to in paragraph 5 have commenced.
7, For the purposes of article I of the New York Convention and article I of the Inter-American Convention shall be considered a claim that is submitted to arbitration under this section arises out of a relationship or commercial transaction.
Article 33. Provision of Documents
The delivery of the notice and other documents to a party shall be done in the place designated by it in Annex A to F (deliver of documents of a party under section B).
Section C. State - State Dispute Settlement
Article 34. Disputes between the Parties
1. Either party may request consultations on the interpretation or application of this Agreement. The other party shall consider the request. Any dispute between the parties concerning the interpretation or the application of this agreement should, if possible, be settled through consultations.
2. If a dispute cannot be settled through consultations, shall, upon request of either of the parties, be submitted to an arbitral panel so it will decide on it.
3, An arbitral panel shall be constituted for each dispute within two (2) months after receipt of the request for arbitration through diplomatic channels, each party shall appoint one member of the arbitral Tribunal. Those two Members shall designate a national of a third State who, at be adopted by the two parties shall be appointed Chairman of the arbitral Tribunal. The chairman shall be appointed within two (2) months from the date of appointment of the other two members of the arbitral tribunal.
4. If within the periods specified in paragraph 3 of this article have not been made the necessary appointments, either Party may invite the President of the International Court of Justice to make the necessary appointments. If the President of the International Court of Justice is a national of a given Party or is prevented from exercising the function said, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of a party or is prevented from exercising the function, the said member of the International court of Justice who continues in seniority, who is not a national of any of the parties, shall be invited to make the necessary appointments.
5, The arbitrators:
(a) They shall have the necessary expertise or experience in International Law, rules of international investment or international trade, or the resolution of disputes arising under international investment agreements or international trade.
(b) Be independent and not be affiliated with or receive instructions; of the parties; and
(c) Comply with the Code of Conduct for dispute settlement, as may be decided by the Commission.
6. Where a party requests that a dispute involves measures relating to financial institutions, or to investors or investments of those investors in financial institutions, then,
(a) When the parties agree, the arbitrators shall in addition to the criteria set out in paragraph 5 shall have expertise or experience in financial services, law or practice which may include the regulation of financial institutions; or
(b) Where the parties do not agree,
(i) Each contending party may select arbitrators who have the profile of the qualifications set out in subparagraph (a), and
(ii) if the respondent invokes articles 8.2 (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),
7. The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. such decision shall be binding on both parties unless otherwise agreed, the decision of the Arbitral Tribunal shall be issued within six months (6) following the appointment of the President in agreement with paragraphs (3) and (4) of this article.
8. The Parties shall be borne in equal parts the expenses of the arbitrators, which shall not exceed the rights, fees and charges prevailing ICSID, as well as the other costs of the proceedings, unless they agree otherwise, the arbitral tribunal in its decision, however, may direct that a higher proportion of the costs be covered by one of the two parties, and this decision shall be binding on both parties.
9. The parties, within sixty (60) days after the decision of panel shall reach agreement on the manner in which to resolve their controversy. Such agreement normally implement the panel decision. If the parties do not reach an agreement, the Party that submits the dispute shall be entitled to compensation or to suspend benefits equivalent to the use of those granted by the Panel.
Article 35. Consultations
A Party may request, by writing, a consultation with the other party regarding proposed or actual measures or related to some other issue that it considers it may have an effect in the implementation of this Agreement.
Article 36. Observance of the Obligations
The parties shall ensure that all measures required to give effect to the provisions of this Agreement are taken; including its observance.
Article 37. Committee
1. Through this agreement the parties agree to establish a commission which includes representatives
On behalf of Colombia, the Ministry of Commerce, Industry and Turism, or its successor; and
On behalf of Peru, the Ministry of Finance or its successor
2. The Commission shall:
(a) Overseeing the implementation of this Agreement;
(b) Resolve disputes that may arise regarding its interpretation or application:
(c) Consider any other matter that may have an impact on the implementation of this Agreement; and
(d) Adopt a code of conduct for arbitrators.
3. The Commission may take any other action in the exercise of its functions as agreed by the parties, including the amendment of the code of conduct for arbitrators.
4. The Commission shall establish its rules and procedures.
Article 38. Amendments
1. The parties agree to convey any amendment to this Agreement.
2. When so agreed and approved according to the constitutional requirements of each Party; an amendment shall constitute an integral party of this Agreement and shall enter into force on the date on which the parties so agree.
Article 39. The Andean Community
The Parties confirm that nothing in this Agreement shall mean a limitation of commitments agreed by both in the framework of the Andean Community. In case of any inconsistency that emerges pursuant to this Agreement and the commitments undertaken by the parties within the framework of the Andean Community, these last shall prevail provided that they provide a greater scope of liberalization than those agreed in this Agreement.
Article 40. Termination of the Bilateral Investment Treaty
1. Without prejudice to paragraph 2, the Parties agree that the "Agreement between the Government of the Republic of Peru and the Governement of the Republic of Colombia on reciprocal promotion and protection of investments" and its Protocols, hereinafter referred to as the "APPRI", signed at Lima, on April 26th, 1994, shall cease to apply at the date of entry into Force of this Agreement, as well as all the rights and obligations derived of the APPRI.
2. Any investment made in accordance with the APPRI, in a period prior to the Entry into force shall be governed by the provisions of this Agreement.
3. Notwithstanding the provisions of paragraph 2, an investor may only submit a claim to arbitration by acts, facts or situations caused during the term of the APPRI, in accordance with the rules and procedures laid down in article 12, and provided that has not elapsed more than three (3) years from the date of entry into force of this Agreement.
Article 41. Application and Entry Into Force
1. Annexes and the footnotes of the present Agreement, for all purposes, shall form an integral part thereof.
2. Each Party shall notify the other in writing of the completion of the procedures required in its territory for the Entry into Force of this Agreement. This Agreement shall enter into force on ten (10) days after the date of the last two notifications.
3. This Agreement shall remain in force unless a Party notifies the other in bearing writing of its intention to terminate it. The termination of this agreement will be effective one (1) year after the Notice of termination has been received by the other party. With regard to the covered investments made prior to the date when the termination of this Agreement becomes effective, the provisions of this Agreement shall remain in force for a further period of fifteen (15) years.
Section E. Definitions
Article 42. Definitions
For the purposes of this Agreement:
ADPIC Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights related to Commerce part of the WTO agreement;
WTO Agreement means the Marrakech Agreement establishing the World Trade Organization on April 15th, 1994;
AGCS means the General Agreement on Trade in Services as part of the WTO Agreement,
ICSID means the International Centre for Settlement of Investment Disputes;.
The Andean Community means the Cartagena Agreement dated 26 May 1969 laying down the Andean Community;
The New York Convention means to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards held at New York on June 10th, 1958;
Inter-Amercian Convention means the Inter American Convention on International Arbitration held in Panama; on January 30th, 1975;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington on March 18th, 1965;
Tax Convention means a convention for the avoidance of double taxation or other international agreement on taxation;
Respondent means the party that is a party to a dispute concerning an investment;
Claimant means an investor of one Party which is a party to an investment dispute with the other party;
Enterprise means any entity constituted or organized under the applicable statutory, whether or not for profit and whether private or government owned, including companies, trusts, interests, sole proprietor companies, joint ventures and other forms of associations and a branch of an enterprise;
Enterprise of a party constituted means an enterprise organized or under the law of a Party and a branch located in the territory of a party and carrying out business activities there;
Public entity means a central bank or a monetary authority of a party or any financial institution owned or controlled by a party;
Confidential information means:
(a) Confidential business information; and
(b) Privileged information or otherwise protected from disclosure, according to the Law of the Party;
Financial institution means any financial intermediary or other enterprise that is authorized to do business or supervised and regulated as a financial institution under the law of a Party in whose territory it is located;
Investment means any asset owned or controlled by the investor itself, directly or indirectly, that has the characteristics of an investment, including characteristics such as the commitment of capital or other resources, the expectation of gain or profit or the assumption of risk. An investment may take forms that include:
(a) An enterprise;
(b) Actions, capital and other forms of equity participation in an enterprise;
(c) Bonds, obligations and other debt instruments and loans(12);
(i) A loan granted to a financial institution or a debt instrument issued by a financial institution is an investment only where the loan or debt instrument is treated as a capital regulatory by the Party in whose territory the financial institution is located; and
(ii) A loan granted by a financial institution or a debt instrument owned by a financial institution, other than a loan to a financial institution or a debt instrument of a financial institution referred to in subparagraph (i), is not an investment;
(d) Futures, options and other derivatives;
(e) Turnkey, construction, management, production of participation in the granting of earnings and other similar contracts;
(f) Intellectual Property Rights;
(g) Autorizations, licences, permits and similar rights conferred pursuant to domestic law(13); and
(h) Other property rights tangible or intangible, movable or real estate and the related rights, such as leases, mortgages, liens and pledges guarantees;
Investment does not include:
(a) An order or judgment in judicial or administrative proceedings.
(b) Loans granted from one party to the other party.