1. A Tribunal has the authority to consider and accept written submissions from a person or entity that is not a disputing party with a significant interest in the arbitration. The Tribunal shall ensure that a non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice either disputing party.
2. An application to the Tribunal for leave to file a non-disputing party submission, and the filing of a submission, if allowed by the Tribunal, must be made in accordance with Annex 9.31.
Article 9.32. Governing Law
1. A Tribunal established under this Section shall decide the issues in dispute consistently with this Agreement and applicable rules of international law. An interpretation by the Commission of this Agreement is binding on a Tribunal established under this Section and an award under this Section must be consistent with that interpretation.
2. Where a disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex I, Annex II or Annex HI, on request of the disputing Party the Tribunal shall request the interpretation of the Commission on the issue. Within 60 days of delivery of the request, the Commission shall submit in writing its interpretation to the Tribunal. The interpretation is binding on the Tribunal. If the Commission fails to submit an interpretation within 60 days, the Tribunal shall decide the issue.
Article 9.33. Expert Reports
1. Subject to paragraph 2, a Tribunal may appoint experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party, subject to such terms and conditions as the disputing parties may decide.
2. The Tribunal may not exercise the power conferred to it under paragraph 1 if the disputing parties decide that the Tribunal may not do so.
3. Paragraph 1 does not affect the appointment of other kinds of experts where the appointment is authorized by the applicable arbitration rules.
Article 9.34. Interim Measures of Protection and Final Award
1. A Tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the Tribunalâs jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal's jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Articles 9.20 and 9.21. For purposes of this paragraph, an order includes a recommendation.
2. Where a Tribunal makes a final award against the disputing Party, the Tribunal may award only:
(a) monetary damages and any applicable interest; or
(b) 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. The Tribunal may also award costs in accordance with the applicable arbitration rules.
3. Subject to paragraph 2, where a claim is made under Article 9.21:
(a) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise;
(b) an award of restitution of property shall provide that restitution be made to the enterprise; and
(c) the award shall provide that it is made without prejudice to a right that a person may have in monetary damages or property awarded under subparagraphs (a) or (b) under domestic law.
4. A Tribunal may not order a disputing Party to pay punitive damages.
Article 9.35. Finality and Enforcement of an Award
1. An award made by a Tribunal has no binding force except between the disputing parties and in respect of that particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered, provided that a disputing party has not requested that the award be revised or annulled, or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its territory.
5. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.
Article 9.36. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a disputing Party may not assert as a defence, counterclaim, right of setoff or otherwise that the disputing investor has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Article 9.37. Exclusions
The dispute settlement provisions of this Section and of Chapter Twenty-Two (Dispute Settlement) do not apply to the matters referred to in Annex 9.37.
Article 9.38. Suspension of other Agreements
1, The Treaty between the Government of Canada and the Government of the Republic of Panama for the Promotion and Protection of Investments, done at Guatemala on 12 September 1996 (the "FIPA") is suspended from the date of entry into force of this Agreement until such time as this Agreement is no longer in force.
2. Notwithstanding paragraph 1, the FIPA remains operative for a period of 15 years after the entry into force of this Agreement for the purpose of any breach of the obligations of the FIPA that occurred before the entry into force of this Agreement. During this period the right of an investor of a Party to submit a claim to arbitration concerning such a breach shall be governed by the relevant provisions of the FIPA.
Annex 9.11. Expropriation
The Parties confirm their shared understanding that:
(a) indirect expropriation results from a measure or a series of measures of a Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
(b) the determination of whether a measure or series of measures of a Party constitute an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the measure or a series of measures, although the sole fact that a measure or a series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred,
(ii) the extent to which the measure or the series of measures interfere with distinct, reasonable investment-backed expectations, and
(ii) the character of the measure or the series of measures;
(c) except in rare circumstances, such as when a measure or a series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, a non-discriminatory measure of a Party that is designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, does not constitute indirect expropriation.
Annex 9.31. Submissions by a Non-Disputing Party
1. The application for leave to file a non-disputing party submission shall:
(a) be made in writing, dated and signed by the person filing the application, and include the address and other contact details of the applicant;
(b) be no longer than five typed pages;
(c) describe the applicant, including, where relevant, its membership and legal status (for example, company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that directly or indirectly controls the applicant);
(d) disclose whether the applicant has an affiliation, direct or indirect, with a disputing party;
(e) identify any government, person or organization that has provided financial or other assistance in preparing the submission;
(f) specify the nature of the interest that the applicant has in the arbitration;
(g) identify the specific issues of fact or law in the arbitration that the applicant has addressed in its written submission;
(h) explain why the Tribunal should accept the submission; and
(i) be made in a language of the arbitration.
2. The submission filed by a non-disputing party shall:
(a) be dated and signed by the person filing the submission;
(b) be concise, and not exceed 20 typed pages, including any appendices;
(c) set out a precise statement supporting the applicant's position on the issues; and
(d) only address matters within the scope of the dispute.
Annex 9.37. Exclusions
1. A decision by Canada following a review under the Investment Canada Act (R.S.C. 1985, c. 28 (1st supp.)), with respect to whether to permit an acquisition that is subject to review, shall not be subject to the dispute settlement provisions of Section C of this Chapter or of Chapter Twenty-Two (Dispute Settlement).
2. A decision by a Party to prohibit or restrict the acquisition of an investment in its territory by an investor of the other Party, or its investment, under Article 23.03 (Exceptions â National Security) shall not be subject to the dispute settlement provisions of Section C of this Chapter or of Chapter Twenty-Two (Dispute Settlement).
Chapter Ten. CROSS-BORDER TRADE IN SERVICES
Article 10.01. Definitions
For purposes of this Chapter:
aircraft repair and maintenance services mean these activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
computer reservation system (CRS) services mean services provided by computerised systems that contain information about air carrier' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
cross-border trade in services means providing a service:
(a) from the territory of one Party into the territory of the other Party,
(b) in the territory of one Party by a person of that Party to a person of the other Party, or
(c) by a national of a Party in the territory of the other Party,
but does not include providing a service in the territory of a Party by a covered investment as defined in Article 9.01 (Investment - Definitions);
enterprise means an enterprise as defined in Article 1.01 (Initial Provisions and General Definitions - Definitions of General Application), and a branch of an enterprise;
enterprise of a Party means an enterprise organized or constituted under the laws of a Party and a branch located in the territory of a Party and carrying out business activities there;
measure adopted or maintained by a Party means a measure adopted or maintained by:
(a) a national or sub-national government or authority; or
(b) a non-governmental body exercising a national or sub-national governmental authority;
professional service means a service, the provision of which requires specialized post- secondary education, or equivalent training or experience, and for which the right to ptactise is granted or restricted by a Party, but does not include a service provided by a tradesperson or a crew member of a vessel or an aircraft;
selling or marketing of an air transport service means opportunities for the air carrier concerned to sell and market freely its air transport services and all aspects of marketing such as market research, advertising and distribution, but does not include the pricing of air transport services nor the applicable conditions; and
service provider of a Party means a person of that Party that seeks to provide or provides a service.
Article 10.02. Scope of Application
1. This Chapter applies to measures adopted or maintained by a Party affecting cross-border trade in services by a service provider of the other Party, including a measure that affects:
(a) producing, distributing, marketing, selling and delivering of a service;
(b) purchasing, using or paying for a service;
(c) accessing and using a distribution, transport or telecommunications network and service in connection with providing a service;
(d) the presence in its territory of a service provider of the other Party; or
(e) requiring a bond or other form of financial security as a condition for providing a service.
2. This Chapter does not apply to:
(a) a financial service as defined in Chapter Twelve (Financial Services);
(b) an air service or related service in support of air services, other than:
(i) an aircraft repair and maintenance service,
(ii) the selling or marketing of an air transport service, or
(iii) a computer reservation system (CRS) service;
(c) procurement by a Party or a state enterprise; or
(d) a subsidy or grant provided by a Party or a state enterprise, including a government-supported loan, guarantee or insurance.
3. This Chapter does not impose an obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, or confer any right on that national with respect to that access or employment.
Article 10.03. National Treatment
1. Each Party shall accord to a service provider of the other Party treatment no less favourable than that it accords in like circumstances to its own service providers.
2. The treatment accorded by a Party under paragraph 1 means, with respect to a measure adopted or maintained by a sub-national government, treatment no less favourable than the most favourable treatment accorded, in like circumstances, by that sub-national government to service providers of the Party of which it forms a part.
3. The treatment accorded by a Party under paragraph 1 extends to a relevant service provided by that service provider.
Article 10.04. Most-Favoured-Nation Treatment
1. Each Party shall accord to a service provider of the other Party treatment no less favourable than that it accords in like circumstances to service providers of a non-Party.
2. The treatment accorded by a Party under paragraph 1 extends to a relevant service provided by that service provider.
Article 10.05. Market Access
A Party may not adopt or maintain a measure that:
(a) imposes limitations on:
(i) the number of service providers, whether in the form of a numerical quota, monopoly, exclusive service provider or by requiring an economic needs test,
(ii) the total value of service transactions or assets in the form of a numerical quota or the requirement of an economic needs test,
(iii) the total number of service operations or the total quantity of service output expressed in terms of a designated numerical unit in the form of a quota or the requirement of an economic needs test, or
(iv) the total number of natural persons that may be employed in a particular service sector or that a service provider may employ and who are necessary for, and directly related to, the provision of a specific service in the form of a numerical quota or the requirement of an economic needs test; or
(b) restricts or requires a specific type of legal entity or joint venture through which a service provider may provide a service.
Article 10.06. Local Presence
A Party may not require as a condition for the cross-border provision of a service that a service provider of the other Party:
(a) establish or maintain a representative office or an enterprise in its territory; or
(b) be resident in its territory.
Article 10.07. Reservations
1. Articles 10.03, 10.04, 10.05 and 10.06 do not apply to:
(a) an existing non-conforming measure that is maintained by a Party at the level of the:
(i) national government as set out in its Schedule to Annex I, or
(ii) a sub-national government;
(b) the continuation or prompt renewal of a non-conforming measure referred to in subparagraph (a); or
(c) an amendment to a non-conforming measure referred to in subparagraph (a) provided that this amendment does not decrease the conformity of the measure as it existed immediately before the amendment, with Articles 10.03, 10.04, 10.05 and 10.06.
2. Articles 10.03, 10.04, 10.05 and 10.06 do not apply to a measure that a Party adopts or maintains with respect to a sector, subsector or activity, as set out in its Schedule to Annex II.
Article 10.08. Domestic Regulation
The Parties note their mutual obligations related to domestic regulation in Article VI:4 of the GATS and affirm their commitment to develop necessary disciplines under Article VI:4. If any of those disciplines are adopted by the WTO Members, the Parties will, as appropriate, jointly review them to determine whether this Article needs to be supplemented.
Article 10.09. Recognition
1. For the purposes of fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services providers, and subject to the requirements of paragraph 3, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. That recognition, which may be achieved through harmonization or otherwise, may be based on an agreement or arrangement with the country concerned or may be accorded autonomously.
2. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate its accession to that agreement or atrangement or to negotiate a comparable agreement or arrangement. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licences or certifications obtained or requirements met in that other Party's territory should be recognized.
3. A Party shall not accord recognition in a manner that would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing or certification of services providers, or a disguised restriction on trade in services.
4. The Parties shall encourage their relevant professional service bodies in their respective territories to:
(a) exchange information on existing standards and criteria for the authorization, licensing and certification of professional service providers; and
(b) consider the use of the standards and criteria of Annex 10.09 in discussions for a potential agreement or arrangement referred to in paragraph 1.
Article 10.10. Denial of Benefits
Subject to prior notification in accordance with Article 20.03 (Transparency - Notification and Provision of Information):
(a) the benefits of this Chapter shall be denied to a service provider of the other Party where the Party establishes that the service is being provided by an enterprise owned or controlled by a national of a non-Party, and the denying Party adopts or maintains a measure with respect to the non-Party that prohibits transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise; and
(b) a Party may deny the benefits of this Chapter to a service provider of the other Party if the service provider is an enterprise owned or controlled by a person of a non-Party that has no substantial business activities in the territory of the other Party.
Article 10.11. Transfers and Payments
1. Each Party shall permit transfers and payments relating to the cross-border provision of services to be made freely and without delay into and out of its territory.
2. Each Party shall permit transfers and payments relating to the cross-border provision of services to be made in a freely usable currency at the market rate of exchange prevailing on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer or payment through the equitable, non-discriminatory, and good faith application of its domestic law relating to:
(a) bankruptcy, insolvency or the protection of the rights of a creditor;
(b) issuing, trading, or dealing in securities, futures, options or derivatives;
(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(d) a criminal or penal offence; or
(e) ensuring compliance with an order or judgment in judicial or administrative proceedings.