(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, having heard previously the disputing parties that 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 c1aims, provided thal in doing so it would contribute to the settlement of the other c1aims.
5. A tribunal established under Article 11 shall not have jurisdiction to decide a c1aim, or part of a c1aim, over which a tribunal established under this Article has assumed jurisdiclion.
6. A disputing party that intends consolidation of a c1aim 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 uon which the order is sought.
7. A Party shall deliver a copy of its request to the litigants Contracting Party or any other litigant investor litigants against which the order is sought.
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 c1aim to arbitration under Article 11 and has not been named in a request made under paragraph 6 aboye, 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) Tthe grounds uon which the order is sought.
10. A disputing investor referred to in paragraph 9 above shall deliver a copy of its request to the parties to the conflict identified in a request made under paragraph 6 above.
Article 15. The Arbitral Proceedings
At the request of either of the Parties - an arbitration under this section shall be held in a State that is a party to the New York Convention. Only for the purposes of article 1 of the New York Convention, it shall be considered that claims submitted to arbitration under this section of a commercial relationship or transaction.
Article 16. Compensation
In an arbitration under this section a disputuing contracting party shall not assert as a counterclaim, defence, right of set-off 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 parties agree otherwise, an arbitral award that determines that a contracting party has failed to fulfil its obligations under this Agreement may only award separately or in combination:
(a) Any applicable monetary damages and interest; or
(b) Restitution in kind, taking into account that the Contracting Party may pay pecuniary compensation in lieu thereof.
2. When a claim is submitted on behalf of an enterprise:
(a) An award that accorded restitution in kind shall provide that restitution be made to the enterprise;.
(b) An award to accord monetary damages and any applicable provide that interest shall be the sum paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any righl that any person has or may have, with respect to the remedy granled, under applicable domestic law.
3. The arbitral awards shall be final and binding only between warring parties and only in respect of the particular case.
4. The arbitral award shall be public, unless the 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 annulment 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 other 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 lhe award, or
(2) A court has dismissed an application or allowed to review, disposal or annul the award and there is no further appeal.
8. A Contracting Party may not initiate proceedings in accordance with section II by an alleged breach under this section, unless the other contracting party fails to comply with the award rendered in a dispute that an investor has submitted under this section.
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 arder to preserve evidence in the possession or control of a disputing party or to prolect 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 2. 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. To the extent possible, the Contracting Parties shall endeavour to amicably resolve any dispute between them concerning the interpretation or application of this Agreement through consultations and negotiations.
3. If a dispute cannot be settled through such means within a period of six (6) months from the negotiations or consultations were requested in writing, either Contracting Party may refer the dispute to an arbitral tribunal established under this section or by agreement of the Contracting Parties, to another 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 aboye, 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 Conlracting 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 either Contracting Party shall be invited to make the necessary appointments.
5. Where any arbitrator appointed under this article resigns or is unable to act as a successor arbitrator shall be appointed in accordance with the same procedure as prescribed for the appointment of the original arbitrator and shall have the same powers and duties of the original arbitrator.
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 shall determine its own procedure.
3. At any stage of the proceedings of the arbitral tribunal may propose to the parties that the dispute be settled amicably
4. At any time, the arbitral tribunal shall ensure 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 lhe Contracting Parties
Article 25. Applicable Law
A tribunal established under this section shall decide the dispute to be submitted to it 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 its representation in the proceedings. The costs of the Chairman of the arbitral tribunal and other expenses associated with the arbitration shall be borne in equal parts 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 shall not apply to claims or disputes arising out of events which occurred or to which claims have been settled before that date.
Article 28. Consultations
A Contracting Party may propose to the other contracting party for consultations regarding any matter relating to this Agreement.Such consultations shall be conducted at the time and place 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 on the fulfilment of their constitutional requirements in relation to the approval and Entry into Force 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 is concluded 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 remain in force for a period of ten (10) years from the date of termination only with respect to investments made prior to that date.
5. This Agreement may be amended by mutual consent of the Contracting Parties, and the agreed modification shall enter into force in accordance with the procedures set out in paragraphs 1 and 2 above.
Conclusion
Done at Mexico City, on 22 February 2013, in duplicate in the English language, Arabic and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.
The Government of the United Mexican States
The Government of the State of Kuwait