Article 37. Technical Assistance Committee
A Technical Assistance Committee of the Conference of the Parties is hereby established as a Committee of the whole. This Committee shall:
i) have special expertise in the promotion of development and sustainable investments;
ii) organize the provision of technical assistance to the Parties relating to the implementation of this Agreement, upon their request, including in the area of development planning and investment linkages;
iii) establish and manage a special fund for the provisions of technical assistance;
iv) promote the transfer of technology through appropriate investments; and
v) such other matters as the members of the Committee or the Conference of the Parties may determine.
The rules of procedure and participation applicable to the Conference of the Parties shall apply, mutatis mutandis, to this Committee.
Article 38. Financial Mechanism
The Parties shall establish a financial mechanism with the objective of supporting institutional development and capacity building in host state developing countries and, in particular, least-developed countries. Support from this mechanism may be directed at support for the Technical Assistance Committee, investment promotion and facilitation projects, at the monitoring of the effectiveness of this agreement, and for the establishment and operation of the Legal Assistance Centre.
Article 39. Secretariat
(A) A Secretariat to the Agreement is hereby established. The Secretariat shall be headed by an Executive Director appointed by the Conference of the Parties.
(B) The Executive Director shall be responsible for appointing and managing an international staff capable of providing the necessary range of support for the Conference of the Parties and to meet its responsibilities.
(C) The Secretariat shall be an independent body and undertake such tasks as may be directed by the Conference of the Parties. Such tasks may include:
i) making arrangements for meetings of the Conference of the Parties and its subsidiary bodies and to provide them with services as required;
ii) facilitating assistance to the Parties, particularly developing Parties and Parties with economies in transition, on request, in the implementation of this Agreement;
iii) ensuring the necessary coordination with the Secretariats of other relevant international bodies;
iv) entering, under the overall guidance of the Conference of the Parties, into such administrative and contractual arrangements as may be required for the effective discharge of its functions;
v) collecting and disseminating information on the functioning of this Agreement, including the implementation of its provisions and the rates of foreign direct investment under the Agreement;
vi) establishing a list of qualified mediators to assist Parties, investors and investments in resolving potential disputes;
vii) performing the other Secretariat functions specified in this Convention and such other functions as may be determined by the Conference of the Parties; and
viii) performing the tasks necessary to assist in preparing for the first meeting of the Conference of the Parties.
Article 40. Dispute Settlement Body
(A) A Dispute Settlement Body (DSB) is hereby established to manage the dispute settlement processes under this Agreement.
(B) The Dispute Settlement Body shall be composed of a Council of the Parties open to all Parties, a panel division and an appellate division.
(C) The Council of the Parties shall establish a Secretariat to assist the Dispute Settlement Body in its operation and the panel and appellate divisions in the management of their cases. The Secretariat shall be headed by a Director (17). This dispute settlement Secretariat shall be independent of any other body established by this Agreement.
(D) The Council shall oversee the operation of the Dispute Settlement Body. It shall be responsible for ensuring the smooth operation of the dispute settlement processes as a whole. The Council may not interfere in any individual disputes between Parties or between an investor or investment and a Party.
(E) There shall be a standing body of 35 panelists from which all panel members shall be drawn. The Director of the Council shall appoint all panelists on disputes on a lottery basis, and subject to:
i) no panelist being called to serve more than twice before all other panelists have served at least once; and
ii) no panelist being from a state of a disputing Party.
(F) The panelists shall be chosen by the Council at its first meeting, with one-third then chosen at each subsequent meeting. No panelist can serve more than three terms, subject to completing any ongoing dispute settlement processes in which the panelist is engaged.
(G) Any panelist in a position of real or apparent conflict of interest shall recuse himself or herself from the panel in question.
(H) The appellate division shall be composed of nine individuals with recognized expertise in the matters covered by this Agreement. Appellate body members shall be appointed on a full-time basis and be free of any real or apparent conflict of interest in any case on which they sit.
(I) Appellate division members shall be chosen by the Council for a term of seven years. The Council shall choose a replacement for any member who is incapable of continuing to fulfill their duties for the remainder of their term. Members may be re-elected one time. For the first period, the Council shall select new members or re-select existing members, after four years.
(J) Members of the panel and appellate divisions shall be individuals of high repute with expertise in the matters covered by this Agreement. Each shall comply with a Code of Ethics that will establish the highest standards of conduct and ensure the absence of a real or apparent conflict of interest in all cases. (18) No panel or appellate body member may be an advocate in any arbitration cases at the same time as being a member of either division, or affiliated with other advocates in a similar situation.
Article 41. Legal Assistance Centre
(A) A Legal Assistance Centre to assist developing country Parties, and especially least-developed states, in responding to claims by an investor or in initiating procedures permitted under this Agreement against investors, shall be established.
(B) This Centre shall be independent of the Secretariat and function as a self-directed body. Its legal advice shall be confidential and subject to the same standards of lawyer-client protection and service as a private law firm.
(C) The Centre may also assist in capacity building on legal issues raised in this Agreement in developing countries, or for the implementation of the Agreement under domestic law and policy.
(D) The Legal Assistance Centre shall report to the Conference of the Parties on a yearly basis concerning its financing and a summary of its activities.
(E) The Legal Assistance Centre shall disclose all sources of funds. It may receive funds from states Party, other States, international organizations and non-governmental organizations as long as the receipt of such funds is public and does not compromise the integrity of the Centre.
Part 9. Dispute Prevention and Settlement
Article 42. Prevention of Disputes and Mediation
(A) In the event a dispute arises between the Parties, between a State Party and an investment or investor, or between an investment or investor and a host state, the Party wishing to raise the dispute shall issue a notice of intention to initiate an arbitration under this Agreement to the other potential disputing Party or Parties.
(B) For the purposes of this Agreement, there shall be a minimum six-month cooling-off period between the date of a notice of intention to initiate a dispute settlement process under this Agreement, and the date a Party, investment or investor, as the case may be, may formally initiate a dispute.
(C) The Parties shall seek to resolve potential disputes through amicable means, both prior to and during the cooling-off period. Investors and investments shall similarly seek to resolve potential disputes with host states, and host states with their investors and investments, in an amicable manner, prior to and during the cooling-off period. The use of good offices, conciliation, mediation or any other agreed dispute resolution process may be applied.
(D) Where no alternative means of dispute settlement are agreed upon, Parties, investors or investments, as the case requires, shall seek the assistance of a mediator to resolve disputes during the cooling-off period required under this Agreement between notification of a potential dispute and the initiation of dispute settlement proceedings. The potential disputants shall use a mediator from the list established by the Secretariat for this purpose, or another one of their joint choosing. Recourse to mediation does alter the minimum cooling-off period.
(E) If no mediator is chosen by the disputing parties prior to three months before the expiration of the cooling-off period, the Director of the Council shall appoint a mediator from the Secretariat list who is not a national of a State Party or the investor. The appointment shall be binding on the disputing parties.
(F) The Parties may also establish regionally-based mediation centres to facilitate the resolution of disputes between Parties and investors or investments, taking into account regional customs and traditions. Mediators officially appointed to such centres shall be incorporated into the Secretariat list.
Article 43. State-state Disputes
(A) In the event of a dispute between two or more Parties as to the application or interpretation of this Agreement, and such dispute has not been resolved pursuant to good faith efforts in accordance with Article 42, a Party may initiate an arbitration in accordance with the rules in this Agreement, including Annex A of this Agreement, applying them mutatis mutandis to the context of a state-state dispute.
(B) Such a dispute shall, unless otherwise resolved, proceed to a panel, and may, at the discretion of a disputing Party, subsequently be taken to the appellate division.
Article 44. Procedure for Abrogation of Investor/investment Rights
(A) In the event of a dispute between a Party and an investor or investment relating to the abrogation of said investor's or investment's rights under Article 18 of this Agreement, and such dispute has not been resolved pursuant to good faith efforts in accordance with Article 42, a Party may initiate an arbitration in accordance with the rules in this Agreement, including Annex A of this Agreement, applying them mutatis mutandis to the context of a state-investor/investment dispute.
(B) A special expedited process shall be established by the Council to ensure that a panel decision shall be rendered within six months of an arbitration being initiated. The appellate division shall decide any appeal on this issue within 90 days of its submission to them.
(C) The panel or appellate division may, if requested, issue an interim order suspending the rights of the investor(s) or investment for the duration of the process, so long as any period of limitations that may impact the ability of the investor or investment to initiate a dispute is subsequently extended by the length of any such suspension if necessary.
(D) A dispute under this Article may, at the discretion of a disputing party, be appealed to the appellate division.
(E) The decision of the panel or appellate division on the abrogation of rights may be permanent or for any period over a minimum of three years it determines is appropriate, or may provide a minimum period after which the investment or investor(s) may apply for reinstatement of its rights.
Article 45. Investor/investment-state Disputes
(A) In the event of a dispute between an investor or investment and a host State Party as to the application or interpretation of this Agreement, and such dispute has not been resolved pursuant to good faith efforts in accordance with Article 42, the investment or investor may initiate an arbitration in accordance with the rules in this Agreement, including in Annex A, applying them mutatis mutandis to the context of an investor/investment-state dispute.
(B) A dispute between an investor or investment and a host state may not be commenced until domestic remedies are exhausted in relation to the underlying issues pleaded in relation to a breach of the Agreement.
(C) Where such remedies are unavailable due to the subject of the dispute or a demonstrable lack of independence or timeliness of the judicial or administrative processes (20) implicated in the matter in the host state, an investor may plead this in an application before a panel as a preliminary matter. The decision of a panel on this issue shall be final. This panel shall be chosen in accordance with Article 40. The Council shall establish procedures for such a pleading at its first meeting (21).
(D) Where a dispute under this Article proceeds to a panel, the decision may, at the discretion of a disputing Party, subsequently be taken to the appellate division.
(E) Use of the investor-state process by an investor is subject to Article 18.
Article 46. Transparency of Proceedings
(A) All documents relating to a notice of intention to arbitrate, the settlement of any dispute pursuant to Article 42, the initiation of a panel or appeal, or the pleadings, evidence and decisions in them, shall be available to the public through an Internet site.
(B) Procedural and substantive oral hearings shall be open to the public.
(C) A panel or appellate tribunal may take such steps as are necessary, by exception, to protect confidential business information in written form or at oral hearings.
(D) A panel or appellate tribunal shall be open to the receipt of amicus curiae submissions in accordance with the process set out in Annex A.
Article 47. Enforceability of Final Awards
Parties shall adopt such domestic rules as are required to make final awards enforceable in domestic legal proceedings in their states.
Article 48. Governing Law In Disputes
(A) When a claim is submitted to a panel or an appeal tribunal, it shall be decided in accordance with this Agreement, national law of the host state, and the general principles of international law.
(B) The Interpretive Notes of the Parties attached to this Agreement shall be binding upon any tribunal established under this Agreement, and any award must be consistent with such Notes.
(C) An Interpretive Statement adopted by the Conference of the Parties declaring its interpretation of a provision of this Agreement shall be binding upon any tribunal established under this Agreement, and any award must be consistent with such a Statement.
(D) A decision by the appellate division on an interpretation of this Agreement shall be binding on subsequent panels and appellate tribunals, unless it is made inapplicable by virtue of an Interpretive Statement relating to the Agreement adopted by the Conference of the Parties, or an amendment to the Agreement.
Part 10. General Exceptions
Article 49. National Security
Nothing in this Agreement shall be construed:
i) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
ii) to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations under the United Nations Charter with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 50. Rules for Taxation Measures
(A) Except as set out In this Article, nothing in this Agreement shall apply to taxation measures.
(B) Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Agreement and that convention.
(C) National treatment and most-favoured-nation treatment shall apply to all taxation measures, other than those on income, capital gains or on the taxable capital of corporations, taxes on estates, inheritances, gifts, and generation-skipping transfers, except that nothing in those Articles shall apply:
i) in the case of a most-favoured-nation obligation, with respect to an advantage accorded by a Party pursuant to a tax convention;
ii) to a non-conforming provision of any existing taxation measure;
iii) to the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;
iv) to an amendment to a non-conforming provision of any existing taxation measure to the extent that the amendment does not decrease its conformity, at the time of the amendment, with any of those Articles;
v) to the adoption or enforcement of any taxation measure aimed at ensuring the equitable or effective imposition or collection of taxes (as permitted by Article XIV(d) of GATS); or
vi) to a provision that conditions the receipt, or continued receipt, of an advantage relating to the contributions to, or income of, pension trusts or pension plans on a requirement that the Party maintain continuous jurisdiction over the pension trust or pension plan.
(D) Article 8 shall apply to a taxation measure alleged to be an expropriation. However, no investor may invoke Article 8 as the basis of a claim where it has been determined pursuant to this Paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 8 with respect to a taxation measure must refer to the Executive Director of the Secretariat at the time that it gives its notice of intention to arbitrate under Article 42 the issue of whether that taxation measure involves an expropriation. The Executive Director shall ask the competent authorities of the host state and home state whether they do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of such referral, in which case the investor may submit its claim to arbitration, if the other conditions of Article 45 have been fulfilled as well.
Article 51. General Reservations and Exceptions
(A) The provisions of this Agreement, except Article 8, do not apply to any law or other measure of a host state the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, or categories of persons, disadvantaged by long-term historic discrimination in its territory, provided that such law or other measure is compatible with the requirements of Article 19.
(B) State Parties may take such measures as are necessary to avoid or abate a balance of payments emergency. Such measures shall be kept in force for as short as possible to address the emergency situation. Such measures shall not be subject to this Agreement.
Part 11. Final Provisions
Article 52. Regional Cooperation
Where appropriate, the Parties shall cooperate in the negotiation of regional cooperation agreements on matters covered by this agreement, and the development of regional capacity in this field.
Article 53. Amendment
(A) The Parties may agree on any modification of, or addition to, this Agreement, through the Conference of the Parties.
(B) When so agreed, and approved in accordance with the applicable legal procedures of each Party, and the provisions on entry into force with the amendment, a modification or addition shall constitute an integral part of this Agreement for those Parties that become Party to the amendment.
Article 54. Annexes, Appendices and Notes
(A) The Annexes and footnotes to this Agreement constitute an integral part of this Agreement.
(B) The national lists in Annex E may be amended by each Party at their discretion.
Article 55. Protocols
The Parties May, at a Conference of the Parties, Adopt a Protocol to this Agreement.
Article 56. Entry Into Force
This Agreement shall enter into force 90 days after the receipt by the depository of the 40th instrument of ratification or accession to this Agreement.
Article 57. Withdrawal
(A) Any Party may withdraw from this Agreement by written notification to the other Parties. This Agreement shall expire for that Party 180 days after the date of such notification.
(B) Notwithstanding Paragraph (A), the rights and obligations of investors and investments and host and home states in relation to that investment or investor, where an investment is substantially in progress of being established or has been established shall survive for a period of five years from such a with- drawal. The five-year period shall be extended to the full period of any investment contract, agreement or authorization if one is in existence at the time of the withdrawal.
Article 58. Authentic Texts
The English Language Text of this Agreement Shall Be Its Authentic Language.
Article 59. Depositary
The Depositary of this Agreement Shall Be the Secretary-General of the United Nations.
Conclusion
Annex A. Investor-State Dispute Settlement
Article 1. Consultation and Negotiation
In the event of a dispute under this Agreement, the claimant (investor/investment/State Party) and the respondent (investor/investment/State Party) shall seek to resolve the dispute in accordance with Article 42. The claimant and respondent constitute the disputing parties.
Article 2. Submission of a Claim to Arbitration
(1) In the event that a disputing party considers that a dispute cannot be settled by alternative means, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled:
a) the investment, on its own behalf, may submit to arbitration under this Agreement a claim that the respondent host State has breached an obligation under this Agreement and that the investment has incurred loss or damage by reason of, or arising out of, that breach;
b) the investor, on its own or on behalf of the investment if it is the controlling investor, may submit to arbitration under this Agreement a claim that the respondent has breached an obligation under this Agreement, and that the claimant has incurred loss or damage by reason of, or arising out of, that breach;
c) a State Party may submit a claim to arbitration under this Agreement as claimant against another State party; and
d) a State Party may submit a claim to arbitration as claimant against an investor or investment.
(2) For greater certainty, an investor or investment claimant may submit to arbitration a claim referred to in Paragraph (1) that the respondent has breached an obligation through the actions of a designated monopoly or a state enterprise exercising delegated government authority.
(3) At least 180 days before submitting any claim to arbitration, a potential claimant shall deliver to the potential respondent a written notice of its intention to submit the claim to arbitration ("notice of intention"). The notice shall specify:
a) the name and address of the claimant and its legal representative and, where a claim is submitted on behalf of an investment, the name, address and place of incorporation of the investment;
b) for each claim, the provision(s) of this Agreement alleged to have been breached and any other relevant provisions;
c) the legal and factual basis for each claim; and
d) the relief sought and, where appropriate, the approximate amount of damages claimed.
The Council may establish a specific form for this purpose and make it available through the Internet and other means, and through the National Authorities.
(4) Provided that at least six months have elapsed since the events giving rise to the claim, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled, a claimant may formally submit a Notice of Arbitration to the Dispute Settlement Body, panel division, established by this Agreement.
(5) A-claim shall be deemed submitted to arbitration when the claimant's Notice of Arbitration is submitted to the Secretariat of the Dispute Settlement Body and to the respondent at its designated place of business or to its National Authority. The Council may establish a specific form for this purpose and make it available through the internet and other means, and through the National Authorities. The Notice of Arbitration shall include, at a minimum, the information required in Paragraph (3).
Article 3. Rules of Arbitration
The Council of the Dispute Settlement Body shall establish Rules of Arbitration consistent with the provisions of this Agreement. Until the adoption of such Rules, the Rules of Arbitration of the Centre in effect on the date the claim or claims were submitted to arbitration under this Agreement, shall govern the arbitration except to the extent modified by this Agreement, irrespective of whether the host and home states are parties to the ICSID Convention.
Article 4. Consent of Each Party to Arbitration
Each State Party consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions. Each investor and investment, by virtue of establishing or continuing to operate or own an investment subject to this Agreement, consents to the submission of a claim to arbitration under this Agreement.
Article 5. Conditions and Limitations on Consent of Each Party
(1) No claim may be submitted to arbitration if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged in the Notice of Arbitration. This Article does not apply in the case of Article 13 of this Agreement.
(2) No claim may be submitted to arbitration by an investor or investment unless the claimant has demonstrated that the requirement for the exhaustion of local remedies has been complied with or the claimant has been granted a request to a panel for a finding that it is not in a viable position to exhaust local remedies. In the event of the latter case, the Notice of Arbitration shall be accompanied by an express written waiver of any such rights conditional on the initiation of an arbitration.
Article 6. Selection of Arbitrators
(1) The Director shall, within 30 days of the filing of a notice of arbitration, appoint the panel members from the standing roster of panelists. No panel member shall be from the host or home state.
(2) A panel shall be composed of three members, with one designated as President of the panel.
(3) A disputing party may contest the nomination of an arbitrator for good cause, including real or apparent conflict of interest. Any challenges shall be decided by the remaining two designated arbitrators. Such a challenge must be brought as soon as practicable after information leading to the challenge is made known to the challenging party.