2. In the interest of a fair and efficient resolution, and unless the interests of any disputing party are seriously harmed, a tribunal established under this Article may consolidate the proceedings when:
(a) two or more investors in relation with the same investment submit a claim to arbitration under this Section, or
(b) two or more claims arising from common legal or factual issues are submitted to arbitration.
3. Upon request of a disputing party, a tribunal established under Article 11, awaiting the determination of the consolidation tribunal in accordance with paragraph 4 below, may suspend the proceedings that it had initiated.
4. A tribunal established under this Article, after hearing the disputing parties, may determine:
(a) assume jurisdiction over, and hear and determine together, all or part of the claims,or
(b) assume jurisdiction over, and hear and determine one or more of the claims, provided thal in doing so it would contribute to the settlement of the other c1aimsl
5. A tribunal established under Article 11 shall not have jurisdiction to decide a claim, or part of a claim, over which a tribunal established under this Article has assumed jurisdiclion.
6. A disputing party that intends consolidation of a claim under this Article may request to the Secretary-General of ICSID the establishment of a tribunal, and shall specify in its request:
(a) the name of Ihe disputing Contracting Party or the disputing investors to be included in the consolidation process;
(b) the nature of the order sought, and
(c) the grounds on which the order is sought.
7. A disputing party shall deliver a copy of its request to the disputing Contracting Party or to any disputing investor to the proceedings sought to be consolidated.
8. Within sixty (60) days of receipt of the request, the Secretary-General of ICSID may establish a tribunal comprised of three arbitrators. One shall be a national of the disputing Contracting Party, and one shall be a national of the Contracting Party of the disputing investors; the third, the presiding arbitrator, shall be a national of a non-Contracting Party. Nothing in this paragraph shall prevent the disputing investors and the disputing Contracting Party from appointing the members of the tribunal by a special agreement.
9. Where a disputing investor has submitted a claim to arbitration under Article 11 and has not been named in a request made under paragraph 6 above, a disputing investor or the disputing Contracting Party, as appropriate, may make a written request to the tribunal that the first disputing investor be included in an order made under paragraph 4 aboye, and shall specify in the request:
(a) the name and address of the disputing investor;
(b) the nature of the order sought, and
(c) the grounds on which the order is sought.
10. A disputing investor referred to in paragraph 9 above shall deliver a copy of its request to the disputing parties named in a request under paragraph 6 above.
Article 15. Place of Arbitration
Upon request of any disputing party, an arbitration under this Section shall be held in a State that is party to the New York Convention. Only for the purposes of Article 1 of the New York Convention, claims submitled to arbitration under this Section shallbe considered to have arisen out of a commercial relationship or transaction.
Article 16. Indemnification
In an arbitration under this Section, a disputing Contracting Party shall not assert as a defense, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contraet, indemnification or other compensation for all or part of its alleged damages.
Article 17. Applicable Law
1. A tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and the applicable rules and principies of international law.
2. An interpretation jointly forrnulated and agreed upon by the Contracting Parties with regard to any provision of this Agreement shall be binding on any tribunal established thereunder.
Article 18. Finality and Enforcement of Awards
1. Unless the disputing parties agree otherwise, an award which provides that a Contracting Party has breached its obligations pursuant to this Agreement may only award, separately or in combination:
(a) monetary damages and any applicable interest, or
(b) restitution in kind, provided that the Contracting Party may pay pecuniary compensation in lieu thereof.
2. When a claim is submitted to arbitration on behalf of an enterprise:
(a) an award of restitution in kind shall provide that restitution be made to the enterprise;
(b) an award of monetary damages and any applicable interest shall provide that the total amount be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person has or may have, with respect to the remedy granted, under applicable domestic law.
3. Arbitral awards shall be final and binding solely between the disputing parties and with respect to the particular case.
4. The arbitral award shall be public, unless the disputing parties agree otherwise.
5. A tribunal may not award punitive damages.
6. A disputing investor may seek enforcement of an arbitral award under the ICSID Convention or the New York Convention if both Contracting Parties are parties to such treaties.
7. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award rendered under the ICSID Convention:
(1) one hundred and twenty (120) days have elapsed from the date on which the award was rendered and no disputing party has requested revision or annulment of the award, or
(2) revision or annuiment proceedings have been completed, and
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules or any olher arbitration rules selected by the disputing parties:
(1) three (3) months have elapsed from the date on which the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
(2) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
8. A Contracting Party may not initiate proceedings in accordance with Section Two by reason of an alleged breach under this Section, unless the olher Contracting Party fails to abide by or comply with a final award rendered in a dispute that such investor may have submitted pursuant to this Seclion.
Article 19. Interim Measures of Protection
1. An arbitral tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the arbitral tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the arbitral tribunal's jurisdiction.
2. An arbitral tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 11. For purposes of this paragraph, an order includes a recommendation.
Section Two. Settlement of Disputes between the Contracting Parties
Article 20. Scope
This Section applies to the settlement of disputes between the Contracting Parties arising from the interpretation or application of the provisions of this Agreement. The alleged breach of a Contracting Party's obligation under Chapter Two shall be settled as provided by Section One of this Chapter.
Article 21. Consultations and Negotiations
1. Any Contracting Party may request, consultations on the interpretation or application of this Agreement.
2. If a dispute arises between the Contracting Partíes on the interpretation or application of this Agreement, it shall, to the extent possible, be settled amicably through consultations and negotiation.
3. In the event the dispute is not settled through the means mentioned aboye within six (6) months from the date such negotiations or consultations were requested in writing, either Contracting Party may submit such dispute to an arbitral tribunal established in accordance with this Section or, by agreement of the Contracting Parties, to any other international tribunal.
Article 22. Constitution of the Arbitral Tribunal
1. Arbitration proceedings shall initiate upon written notice delivered by one Contracting Party (the requesting Contracting Party) to the other Contracting Party (the respondent Contracting Party) through diplomatic channels. Such notice shall contain a statement setting forth the legal and factual grounds of the claim, a summary of the development and results of the consultations and negotiations pursuant to Article 21, the intention of the Contracting Party to initiate proceedings under this Section and the name of the arbitrator appointed by such requesting Contracting Party.
2. Within thirty (30) days after delivery of such notice, the respondent Contracting Party shall notify the requesting Contracting Party the name of its appointed arbitrator.
3. Within thirty (30) days following the date on which the second arbitrator was appointed, the arbitrators appointed by the Contracting Parties shall appoint, by mutual agreement, a third arbitrator, who shall be the chairman of the arbitral tribunal upon approval of the Contracting Parties.
4. If within the time limits set forth in paragraphs 2 and 3 above, the required appointments have not been made or the required approvals have not been given, either Contracting Party may invite the President of lhe International Court of Justice to appoint the arbitrator or arbitrators not yet appointed. If the President is a citizen or a permanent resident of either Conlracling Party, or he or she is otherwise unable to act, the Vice-President shall be invited lo make the said appointments. If the Vice-President is a citizen or a permanent resident of either Contracting Party, or he or she is otherwise unable to act, the Member of the International Court of Justice next in seniority who is not a citizen nor a permanent resident of eilher Contracting Party shall be invited to make the necessary appointments.
5. In case an arbitrator appointed under this Article resigns or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and he or she shall have the same powers and duties that the original arbitrator had.
Article 23. Proceedings
1. Unless the Contracting Parties decide otherwise, the place of arbitration shall be determined by the Tribunal.
2. The arbitral tribunal shall decide all questions relating to its competence and, subject to any agreement between the Contracting Parties, determine its own procedure.
3. At any stage of the proceedings, the arbitral tribunal may propose to the Contracting Parties that the dispute be settled amicably.
4. At all times, the arbitral tribunal shall afford a fair hearing to the Contracting Parties.
Article 24. Award
1. The arbitral tribunal shall reach its decision by majority vote. The award shall be issued in writing and shall contain the applicable factual and legal findings. A signed award shall be delivered to each Contracting Party.
2. The award shall be final and binding on the Contracting Parties
Article 25. Applicable Law
A tribunal established under this section shall decide the issues in dispute in accordance with this Agreement and applicable rules and principles of international law.
Article 26. Costs
Each Contracting Party shall bear the costs of its appointed arbitrator and of any legal representation in the proceedings. The costs of the chairman of the arbitral tribunal and of other expenses associated with the conduct of the arbitration shall be borne equally by the Contracting Parties unless the arbitral tribunal decides that a higher proportion of costs be borne by one of the Contracting Parties.
Chapter FOUR. FINAL PROVISIONS
Article 27. Application of the Agreement
This Agreement shall apply to all investments made before or after its entry into force, but not to claims arising out of events which occurred, or to claims which had been settled, prior to that date.
Article 28. Consultations
A Contracting Party may propose to the other Contracting Party to carry out consultations regarding any matter relating to this Agreement. These consultations shall be held at a place and at a time agreed by the Contracting Parties.
Article 29. Denial of Benefits
The Contracting Parties may decide jointly in consultation to deny the benefits of this Agreement to an enterprise of the other Contracting Party and to its investments, if a natural person or enterprise of a non-Contracting Party owns or controls such enterprise.
Article 30. Entry Into Force, Duration and Termination
1. The Contracting Parties shall notify each other in writing through diplomatic channels the fulfilment of their constitutional requirements in relation to the approval and entry into force of this Agreement.
2. This Agreement shall enter into force thirty (30) days after the date of receipt of the latter two of the notifications referred to in paragraph 1 above.
3. This Agreement shall remain in force for a period of ten (10) years. Thereafter it shall continue in force until the expiration of twelve (12) months from the date on which either Contracting Party shall have given written notice of termination to the other Contracting Party.
4. This Agreement shall continue to be effective for a period of ten (10) years from the date of termination only with respect to investments made prior to such date.
5. This Agreement may be modified by mutual consent of the Contracting Parties, and the agreed modification shall come into effect pursuanllo the procedures set forth in paragraphs 1 and 2 above.
Conclusion
Done in Mexico City, on this 22nd day of February 2013, corresponding to 12 Rabi Al-Akhir 1434 H, in to originals the Spanish, Arabic and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.
For the Government of the United Mexican States
Idelfonso Guajardo Villarreal
Minister of Economy
For the Government of the State of Kuwait
Sameeh Essa Johar Hayat
Ambassador of the State of Kuwait to the United Mexican States