e) the relationship of review by an appellate body or similar mechanism to the arbitral rules that may be selected under Articles 20.1 of this Treaty; and
f) the relationship of review by an appellate body or similar mechanism to existing domestic laws and international law on the enforcement of arbitral awards.
Article 30. Diplomatic Exchange between Parties
30.1 If a disputing investor has commenced a dispute against a Defending Party under this Chapter, the Non-disputing Party shall not give diplomatic protection, or bring an international claim, in respect of such dispute between one of its investors and the Defending Party, unless the Defending Party has failed to abide by and comply with an award or the decisions of its courts, as the case may be, in accordance with this Chapter and other applicable law regarding recognition and enforcement of foreign judgments and arbitral awards.
30.2 Nothing in this Chapter precludes a Defending Party from requesting consultations or seeking agreement with the other Party on issues of interpretation or application of the Treaty. In response to such a request, the other Party shall engage in good faith consultations on the matters requested.
Article 31. Disputes between Parties
31.1 Disputes between the Parties concerning:
(i) the interpretation or application of this Treaty, or
(ii) whether there has been compliance with obligations to consult in good faith under Articles 30 or 36,
should, as far as possible, be settled through consultation or negotiation, which may include the use of non-binding third-party mediation or other mechanisms.
31.2 If a dispute between the Parties cannot be settled within six months from the time the dispute arose, it shall upon the request of either Party be submitted to a Tribunal.
31.3 Such a Tribunal shall be constituted for each individual case in the following way: Within two months of the receipt of the request for arbitration, each Party shall appoint one member of the Tribunal. Those two members shall then select a national of a third State who, on approval by the two Parties, shall be appointed Chairman of the Tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members.
31.4 If within the periods specified in Article 31.3 the necessary appointment(s) have not been made, either Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make any necessary appointment(s). If the President is a national of either Party or if he or she is otherwise prevented from discharging the said function, the Vice President shall be invited to make the necessary appointment(s). If the Vice President is a national of either Party or if he or she too is prevented from discharging the said function, the member of the International Court of Justice next in seniority who is not a national of either Party shall be invited to make the necessary appointment(s).
31.5 The arbitral tribunal shall reach its decision by a majority of votes. Such decision shall be binding on both Parties.
31.6 The Parties to the arbitration shall share the costs of the arbitration, including the arbitrator fees, expenses, allowances and other administrative costs. Each Party shall bear the cost of its representation in the arbitral proceedings. The Tribunal may, however, in its discretion direct that the entire costs or a higher proportion of costs shall be borne by one of the two disputing Parties and this determination shall be binding on both disputing Parties.
31.7. The Tribunal shall decide all questions relating to its competence and, subject to any agreement between the disputing Parties, determine its own procedure, taking into account the PCA Optional Rules.
Chapter VI. Exceptions
Article 32. General Exceptions
32.1 Nothing in this Treaty shall be construed to prevent the adoption or enforcement by a Party of measures of general applicability applied on a non-discriminatory basis that are necessary (6) to:
(i) protect public morals or maintaining public order;
(ii) protect human, animal or plant life or health;
(iii) ensure compliance with law and regulations that are not inconsistent with the provisions of this Agreement;
(iv) protect and conserve the environment, including all living and non-living natural resources;
(v) protect national treasures or monuments of artistic, cultural, historic or archaeological value.
32.2 Nothing in this Treaty shall apply to non-discriminatory measures of general application taken by a central bank or monetary authority of a Party in pursuit of monetary and related credit policies or exchange rate policies. This paragraph is without prejudice to a Party's rights and obligations under Article 6.
32.3 Nothing in this Treaty shall affect the rights and obligations of Parties as members of the International Monetary Fund under the IMF Articles of Agreement, as applicable from time to time, including the use of exchange actions which are in conformity with the IMF Articles of Agreement. In case of any inconsistency between the provisions of this Agreement and the IMF Articles of Agreement, the latter shall prevail.
Article 33. Security Exceptions
33.1 Nothing in this Treaty shall be construed:
(i) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(ii) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests including but not limited to:
(a) action relating to fissionable and fusionable materials or the materials from which they are derived;
(b) action taken in time of war or other emergency in domestic or
(c) action relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(d) action taken so as to protect critical public infrastructure including communication, power and water infrastructures from deliberate attempts intended to disable or degrade such infrastructure;
(e) any policy, requirement or measure including, without limitation, a requirement obtaining (or denying) any security clearance to any company, personnel or equipment; or
(iii) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
33.2 Each Party shall inform the other Party to the fullest extent possible of measures taken under Article 33.1 and of their termination.
33.3 Nothing in this Chapter shall be construed to require a Party to accord the benefits of this Treaty to an investor of the other Party where a Party adopts or maintains measures in any legislation or regulations which it considers necessary for the protection of its essential security interests with respect to a non-Party or an investor of a non-Party that would be violated or circumvented if the benefits of this Chapter were accorded to such juridical person or to its investments.
33.4 This Article shall be interpreted in accordance with the understanding of the Parties on security exceptions as set out in Annex 1, which shall form an integral part of this Treaty.
Chapter VII. Final Provisions
Article 34. Relationship with other Treaties
34.1 This Treaty or any action taken hereunder shall not affect the rights and obligations of the Parties under any other Agreements to which they are parties.
34.2 Any inconsistency, or question regarding the relationship between this Treaty and another bilateral agreement between the Parties, or a multilateral agreement to which both Parties are a party, shall be resolved in accordance with the Vienna Convention on the Law of Treaties.
Article 35. Denial of Benefits
A Party may at any time, including after the institution of arbitration proceedings in accordance with Chapter IV of this Treaty, deny the benefits of this Treaty to:
(i) an investment or investor owned or controlled, directly or indirectly, by persons of a non-Party or of the denying Party; or
(ii) an investment or investor that has been established or restructured with the primary purpose of gaining access to the dispute resolution mechanisms provided in this Treaty.
Article 36. Consultations and Periodic Review
36.1 Either Party may request, and the other Party shall promptly agree to, consultations in good faith on any issue regarding the interpretation, application, implementation, execution or any other matter including, but not limited to:
(i) reviewing the implementation of this Treaty;
(ii) reviewing the interpretation or application of this Treaty;
(iii) exchanging legal information; and
(iv) subject to Article 30, addressing disputes arising under Chapter IV of this Treaty or any other disputes arising out of investment.
36.2 Further to consultations under this Article, the Parties may take any action as they may jointly decide, including making and adopting rules supplementing the applicable arbitral rules under Chapter IV or Chapter V of this Treaty, issuing binding interpretations of this Treaty, and adopting joint measures in order to improve the effectiveness of this Treaty.
36.3 The Parties shall meet every five years after the entry into force of this Treaty to consult and review the operation and effectiveness of this Treaty.
Article 37. Amendments
371. This treaty may be amended at any time at the request of either Party. The requesting Party must submit its request in written form explaining the grounds on which the amendment shall be made. The other Party shall consult with the requesting Party regarding the proposed amendment and must also respond to the request in writing.
37.2 This Treaty will stand automatically amended at all times to the extent that the Parties agree. Any agreement to amend the treaty pursuant to this Article must be expressed in writing, whether in a single written instrument or through an exchange of diplomatic notes. These amendments shall be binding on the tribunals constituted under Chapter IV or Chapter V of this Treaty and a tribunal award must be consistent with all amendments to this Treaty.
Article 38. Entry Into Force, Duration and Termination
38.1 This Treaty shall be subject to ratification and shall enter into force on the date of exchange of instruments of ratification.
38.2 This Treaty shall remain in force for a period of ten years and shall lapse thereafter unless the Parties expressly agree in writing that it shall be renewed. This Treaty may be terminated any time after its entry into force if either Party gives to the other Party a prior notice in writing twelve (12) months in advance stating its intention to terminate the Treaty. The Treaty shall stand terminated immediately after the expiry of the twelve (/2) month notice period.
38.3 In respect of investments made prior to the date when the termination of this Treaty becomes effective, the provisions of this Treaty shall remain in force for a period of five years.
38.4 This Treaty replaces "the Agreement between the Government of the Kyrgyz Republic and the Government of India for the Reciprocal Promotion and Protection of Investments", signed on 16th May 1997, which shall be terminated on the date of entry into force of this Agreement.
38.5 In witness whereof the undersigned, duly authorised thereto by their respective Governments, have signed this Treaty. Done at on this day of in two originals each in the Hindi, Kyrgyz, English and Russian (languages), all texts being equally authoritative. In case of any divergence in interpretation, the English text shall prevail.
Conclusion
For the Government of the Republic of India
For the Government of the Kyrgyz Republic
Attachments
Annex 1. Security exceptions
The parties confirm the following understanding with respect to interpretation and/or implementation of Article 33 of this Treaty:
(i) the measures referred to in Article 33.3 are measures where the intention and objective of the Party imposing the measures is for the protection of its essential security interests. These measures shall be imposed on a non-discriminatory basis and may be found in any of its legislation or regulations:
a. In the case of India, the applicable measures referred to in Article 33.3 are currently set out in the regulations framed under the Foreign Exchange Management Act, 1999 and the rules and regulations made thereunder. India shall, upon request by the other Party, provide information on the measures concerned;
b. In the case of the Kyrgyz Republic, the applicable measures referred to in Article 33.3, in the Kyrgyz Republic Law "On Foreign Currency Transactions", and other normative legal acts of the Kyrgyz Republic on currency regulation.
(ii) Where the Party asserts as a defence that conduct alleged to be a breach of its obligations under this Treaty is for the protection of its essential security interests protected by Article 33, any decision of such Party taken on such security considerations and its decision to invoke Article 33 at any time, whether before or after the commencement of arbitral proceedings shall be non-justiciable. It shall not be open to any arbitral tribunal constituted under Chapter IV or Chapter V of this Treaty to review any such decision, even where the arbitral proceedings concern an assessment of any claim for damages and/or compensation, or an adjudication of any other issues referred to the Tribunal.