11. Unless the disputing parties agree otherwise, an arbitral tribunal established under paragraph 4 shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties. If the disputing investor or the disputing Party fails to appoint an arbitrator or arbitrators within 60 days from the date on which the investment dispute was submitted to arbitration, the Secretary-General of the International Centre for Settlement of Investment Disputes in the case of arbitration referred to in subparagraph 4 (a) or (b), or the Secretary-General of the Permanent Court of Arbitration, at The Hague in the case of arbitration referred to in subparagraph 4 (c) or (d), may be requested by either of the disputing parties, to appoint the arbitrator or arbitrators not yet appointed, subject to the requirements of paragraph 12.
12. Unless the disputing parties agree otherwise, the third arbitrator shall not be a national of Japan nor citizen of India, nor have his or her usual place of residence in either Party, nor be employed by either of the disputing parties, nor have dealt with the investment dispute in any capacity.
13. Unless the disputing parties agree otherwise, the arbitration shall be held in a country that is a party to the New York Convention.
14. An arbitral tribunal established under paragraph 4 shall decide the issues in dispute in accordance with this Chapter and other provisions of this Agreement as applicable and applicable rules of international law.
15. The disputing Party shall deliver to the other Party:
(a) written notice of the investment dispute submitted to the arbitration no later than 30 days after the date on which the investment dispute was submitted; and
(b) copies of all pleadings filed in the arbitration.
16. On written notice to the disputing parties, the Party which is not the disputing Party may make submission to the arbitral tribunal on a question of interpretation of this Chapter and other provisions of this Agreement as applicable.
17. The arbitral tribunal may order an interim measure of protection to preserve the rights of the disputing investor, or to facilitate the conduct of arbitral proceedings, including an order to preserve evidence in the possession or control of either of the disputing parties. The arbitral tribunal shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in paragraph 1.
18. The award rendered by the arbitral tribunal shall include:
(a) a decision whether or not there has been a breach by the disputing Party of any obligation under this Chapter and other provisions of this Agreement as applicable with respect to the disputing investor and its investments, together with the basis and the reasons for such decision; and
(b) a remedy if there has been such breach. The remedy shall be limited to one or both of the following:
(i) payment of monetary damages and applicable interest; and
(ii) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution. Costs may also be awarded in accordance with the applicable arbitration rules.
Note: For the purposes of this paragraph, it is understood that where the disputing Party asserts as a defence that the measure alleged to constitute a breach referred to in paragraph 1 is within the scope of a security exception as set out in Article 11, the arbitral tribunal shall not review the merits of any such measure in its award. However, the arbitral tribunal shall not be prevented from assessing the remedy referred to in subparagraph (b) in the light of the treatment as set out in paragraph 1 of Article 93 for any loss or damage relating to the investments caused by the measure in question.
19. The award rendered in accordance with paragraph 18 shall be final and binding upon the disputing parties. The disputing Party shall carry out without delay the provisions of the award and provide in its Area for the enforcement of the award in accordance with its relevant laws and regulations.
20. Neither Party shall give diplomatic protection, or bring an international claim, in respect of an investment dispute which the other Party and an investor of the former Party have consented to submit or submitted to arbitration set forth in paragraph 4, unless the other Party has failed to abide by and comply with the award rendered in such investment dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the investment dispute.
21. An arbitral tribunal shall address and decide as a preliminary question any objection by the disputing Party that the investment dispute is not within the competence of the arbitral tribunal, provided that the disputing Party so requests immediately after the establishment of the arbitral tribunal.
Article 97. Temporary Safequard Measures
1. A Party may adopt or maintain measures not conforming with its obligations under Article 85 relating to cross- border capital transactions and Article 94:
(a) in the event of 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. Measures referred to in paragraph 1 shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund;
(b) not exceed those necessary to deal with the circumstances set out in paragraph 1;
(c) be temporary and eliminated as soon as conditions permit;
(d) be promptly notified to the other Party; and
(e) avoid unnecessary damages to the commercial, economic and financial interests of the other Party.
3. The Party adopting any measures under paragraph 1 shall, on request by the other Party, commence consultations in order to examine the possibility of reviewing the measures adopted by the former Party.
4. Nothing in this Article shall be regarded as altering the rights enjoyed and obligations undertaken by a Party as a party to the Articles of Agreement of the International Monetary Fund.
Article 98. Prudential Measures
Where a Party takes measures relating to financial services for prudential reasons, the provisions of paragraph 1 of Section 2 in Annex 4 shall apply accordingly.
Article 99. Environmental Measures
Each Party recognises that it is inappropriate to encourage investment activities in its Area of investors of the other Party by relaxing its environmental measures. To this effect each Party should not waive or otherwise derogate from such environmental measures as an encouragement for establishment, acquisition or expansion of investments in its Area.
Article 100. Relation to other Obligations
Nothing in this Agreement shall be construed so as to derogate from laws and regulations of each Party or any other international agreements that entitle investors of the other Party and to their investments treatment more favourable than that accorded by this Agreement.
Article 101. Duration and Termination
In respect of investments made prior to the date of termination of this Agreement, the provisions of this Chapter, as well as provisions of this Agreement which are directly related to this Chapter, shall continue to be effective for a period of ten years from the date of termination of this Agreement.
Chapter 9. Intellectual Property
Article 102. General Provisions
1. The Parties shall ensure adequate, effective, and non-discriminatory protection of intellectual property, in accordance with the provisions of the TRIPS Agreement.
2. Intellectual property referred to in this Chapter shall mean all categories of intellectual property that are under the TRIPS Agreement.
Article 103. Streamlining of Procedural Matters
1. For the purposes of providing efficient administration of the intellectual property protection system, each Party shall take appropriate measures to streamline its administrative procedures concerning intellectual property.
2. Neither Party shall require the certification, by any person other than the applicant or its representative, of a translation of an earlier application whose priority is claimed except in cases where the competent authority of the Party may reasonably doubt the accuracy of the translation.
3. Neither Party shall require that submission of a power of attorney be completed together with the filing of the application as a condition for according a filing date to the application.
Article 104. Promotion of Public Awareness Concerning Protection of Intellectual Property
The Parties shall endeavour to take such measures as deemed appropriate to enhance public awareness of protection of intellectual property including educational and dissemination projects on the use of intellectual property as well as on the enforcement of intellectual property rights.
Article 105. Patents
1. Neither Party shall require the rejection of any application for patent solely on the ground that the subject matter claimed in the application includes, among other things, a computer programme.
Note: This paragraph shall not prejudice the patentability or non-patentability of computer programmes per se which shall be determined in accordance with the laws and regulations of each Party.
2. Where the competent authority of a Party intends to render its decision to the effect that an application for a patent is to be refused, it shall notify the applicant for the patent of the reasons for refusal and give the said applicant an opportunity to present, in accordance with the laws and regulations of the Party, its case against the reasons for refusal within a reasonable period of time.
3. Each Party shall provide that a patent owner may file a request in accordance with its laws and regulations for correction of the description, the scope of the claims, or the drawings, that are attached to the patent application, to the competent authority for patents for the purpose of restriction of the scope of the claims.
Article 106. Trademarks
1. Each Party shall protect well-known trademarks in accordance with the following subparagraphs:
(a) Each Party may determine in accordance with its laws whether a trademark is a well-known trademark.
(b) Each Party shall, ex officio if its legislation so permits, or on the objection or request for invalidation raised in opposition or rectification or cancellation or invalidation proceedings by the proprietor of the well-known trademark, in accordance with its laws, refuse the application for or rectify or cancel or invalidate the registration of a trademark which is identical with or similar to a well-known trademark.
Note: For greater certainty, for the purposes of this subparagraph, each Party may in accordance with its laws take into account either of the following conditions and where appropriate other relevant factors:
(i) the use of the trademark in question is for unfair intentions; or
(ii) the use of that trademark would take unfair advantage of or be detrimental to the distinctive character or repute of the well-known trademark.
(c) For the purposes of subparagraphs (a) and (b), each Party shall in accordance with its laws determine that a trademark is a well-known trademark in either one or both of the following circumstances and where appropriate taking into account other relevant factors:
(i) if a trademark is well known in the other Party; or
(ii) if a trademark is well known in both Parties;
as indicating the goods or services of the proprietor of that trademark.
Note: The protection of a well-known trademark shall also extend, subject to the laws of each Party, to goods or services which are not similar to those goods or services which are covered by the well-known trademark.
2. Each Party shall ensure that an applicant may file a request to the competent authority that its application for registration of a trademark be examined in preference to other applications, subject to reasonable grounds and procedural requirements. Where such a request has been filed, the competent authority shall take the request into consideration and endeavour to examine the application in preference to other applications, where appropriate.
Article 107. Geographical Indications
Each Party shall ensure protection of geographical indications in accordance with its laws and regulations and in conformity with the TRIPS Agreement.
Article 108. Unfair Competition
Each Party shall provide for protection against acts of unfair competition in accordance with Article 10 bis of the Paris Convention for the Protection of Industrial Property (1967).
Article 109. Security Exceptions
For the purposes of this Chapter, Article 73 of the TRIPS Agreement is incorporated into and forms part of this Agreement, mutatis mutandis.
Chapter 10. Government Procurement
Article 110. Procurement Principle
Recognising the importance of government procurement in furthering the expansion of production and trade so as to promote growth and employment, each Party shall ensure transparency of the measures regarding government procurement in accordance with its national laws and regulations.
Article 111. Non-Discrimination
With respect to any measure regarding government procurement, each Party shall provide to the goods, services and suppliers of the other Party treatment no less favourable than that it accords to non-Partyâs goods, services and suppliers in accordance with its laws and regulations.
Article 112. Exchange of Information
1. The Parties shall at the national level, subject to their respective laws and regulations, exchange information, to the extent possible in the English language and in a timely manner, on their respective laws and regulations, policies and practices on government procurement, as well as on any reforms to their existing government procurement regimes.
2. Each Party shall endeavour to designate a contact point for the exchange of information and for providing information to the other Party.
Article 113. Further Negotiations
The Parties shall enter into negotiations to review this Chapter with a view to achieving a comprehensive Chapter on Government Procurement including the provisions of challenge procedures, when India expresses its intention to become a Party to the Agreement on Government Procurement in the Annex 4 to the WTO Agreement (hereinafter referred to as "the GPA").
Note: If the GPA is amended or is superseded by another agreement, "the GPA", for the purposes of this Chapter, shall refer to the GPA as amended or such other agreement.
Article 114. Negotiations on Non-Discrimination
In the event that, after the entry into force of this Agreement, a Party offers a non-Party any advantageous treatment concerning the measures regarding government procurement, including access to its government procurement market, the former Party shall, upon the request of the other Party, afford adequate opportunity to enter into negotiation with the other Party with a view to extending such advantageous treatment to the other Party on a reciprocal basis.
Article 115. Exceptions
1. The provisions of this Chapter shall not be applicable to:
(a) with respect to India, state governments and their entities and local governments; and
(b) with respect to Japan, local governments.
2. Nothing in this Chapter shall be construed to prevent any Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition, or war materials, or to procurement indispensable for national security or for national defence purposes.
Chapter 11. Competition
Article 116. Anticompetitive Activities
Each Party shall, in accordance with its laws and regulations, take measures which it considers appropriate against anticompetitive activities, in order to facilitate trade and investment flows between the Parties and the efficient functioning of its market.
Article 117. Definitions
For the purposes of this Chapter, the term "competition laws and regulations" means:
(a) for India, the Competition Act, 2002, No. 12 of 2003, as amended by the Competition (Amendment) Act, 2007, and its implementing regulations as well as any amendment thereto; and
(b) for Japan, the Law Concerning Prohibition of Private Monopoly and Maintenance of Fair Trade (Law No. 54 of 1947) and its implementing regulations as well as any amendment thereto.
Article 118. Cooperation on Controlling Anticompetitive Activities
The Parties shall, in accordance with their respective laws and regulations, endeavour to cooperate in the field of controlling anticompetitive activities subject to their respective available resources.
Article 119. Non-Discrimination
Each Party shall apply its competition laws and regulations in a manner which does not discriminate between persons in like circumstances on the basis of their nationality.
Article 120. Procedural Fairness
Each Party shall implement administrative and judicial procedures in a fair manner to control anticompetitive activities, pursuant to its relevant laws and regulations.
Article 121. Transparency
Each Party shall promote transparency of the implementation of its competition laws and regulations and its competition policy.
Article 122. Non-Application of Chapter 14
The dispute settlement procedures provided for in Chapter 14 shall not apply to this Chapter.
Chapter 12. Improvement of Business Environment
Article 123. Basic Principles
1. With a view to promoting trade and investment between the Parties, each Party shall, in accordance with its laws and regulations, take appropriate measures to further improve the business environment for the enterprises of the other Party conducting their business activities in its Area.
2. The Parties shall, in accordance with their respective laws and regulations, promote cooperation to further improve the business environment in their respective Areas.
Article 124. Sub-Committee on Improvement of Business Environment
1. For the purposes of the effective implementation and operation of this Chapter, a Sub-Committee on Improvement of Business Environment (hereinafter referred to in this Chapter as "the Sub-Committee") shall be established on the date of entry into force of this Agreement.
2. The functions of the Sub-Committee shall be:
(a) supervising the activities of each Consultative Group established in accordance with Article 125;
(b) addressing and resolving issues that the Sub- Committee considers appropriate taking into account, as necessary, the findings reported by each Consultative Group and each Liaison Office designated in accordance with Article 126;
(c) reporting the findings and making recommendations to the Parties including the measures to be taken by the Parties, regarding such functions as referred to in subparagraphs (a) and (b) and relevant issues. Such recommendations shall be taken into consideration by the Parties;
(d) where appropriate, reviewing the measures taken by the Parties in relation to the recommendations referred to in subparagraph (c);
(e) making available to those concerned, in an appropriate manner, the recommendations referred to in subparagraph (c) and the results of the review referred to in subparagraph (d), to the extent allowed by the respective laws and regulations of the Parties; and
(f) reporting the findings and recommendations referred to in subparagraph (c) and other findings in relation to the implementation and operation of this Chapter to the Joint Committee as fully and expeditiously as possible.
3. The Sub-Committee shall be composed of representatives of the Governments of the Parties. The Sub-Committee may, by mutual consent of the Parties, invite representatives of local governments of the Parties and invite representatives of other relevant entities including those from the private sector with the necessary expertise relevant to the issues to be addressed.
4. The Sub-Committee shall meet at such venues and times as may be agreed by the Parties.
5. The Sub-Committee shall cooperate with other relevant Sub-Committees in an appropriate manner with a view to avoiding unnecessary duplication of works with those of other relevant Sub-Committees.
6. The other details of the Sub-Committee shall be set forth in the Implementing Agreement. Article 125
Consultative Group
1. Each Party shall establish a Consultative Group as a subsidiary body of the Sub-Committee.
2. The composition, functions, and frequency of meetings of the Consultative Groups shall be set forth in the Implementing Agreement.
Article 126. Liaison Office
1. For the purposes of this Chapter, each Party shall designate and maintain a Liaison Office.
2. The functions and other details of the Liaison Offices shall be set forth in the Implementing Agreement.
Article 127. Non-Application of Chapter 14
The dispute settlement procedures provided for in Chapter 14 shall not apply to this Chapter.
Chapter 13. Cooperation
Article 128. Basic Principle and Objectives
1. The Parties shall promote cooperation for their mutual benefits in order to liberalise and facilitate trade and investment between the Parties, to strengthen wide-ranging relations between the Parties and to promote the well-being of the peoples of the Parties. For this purpose, the Parties shall, where necessary and appropriate, encourage and facilitate cooperation between their relevant entities.
2. The main objectives of this Chapter include:
(a) liberalisation and facilitation of investment and trade between the Parties through cooperation in the mutually identified fields;
(b) strengthening economic competitiveness of the Parties;
(c) ensuring long-term sustainable development of the Parties;
(d) promoting the Parties' human resource development and capacity building; and
(e) improving overall well-being of the peoples of the Parties.
Article 129. Fields of Cooperation
The fields of cooperation under this Chapter shall include:
(a) environment;
(b) trade and investment promotion;
(c) infrastructure;
(d) information and communications technology;
(e) science and technology;
(f) energy;
(g) tourism;