Article 7. Conduct of the Arbitration
(1) Unless otherwise agreed, the place of arbitration shall be at the Secretariat to the Dispute Settlement Body or a regional affiliate in the region of the disputing party. The disputing parties may agree on another place of arbitration within 30 days of the notice of arbitration being filed.
(2) Any non-disputing party may make oral and written submissions to the tribunal regarding the interpretation of this Agreement.
(3) Without prejudice to a tribunal's authority to address other objections as a preliminary question, such as an objection that a dispute is not within a tribunal's competence, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made. This includes an objection pursuant to Article 18(1) of the Agreement.
a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its first counter memorial.
b) On receipt of an objection under this Paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objec- tion, stating the grounds therefore.
c) In deciding an objection under this Paragraph, the tribunal shall assume to be true claimant's factual allegations in support of any claim in the notice of arbitration, except in so far as it may relate to a breach of Article 13 issue. The tribunal may also consider any relevant facts not in dispute.
d) The respondent does not waive any objection as to competence or any argument on the merits merely because the respondent did or did not raise an objection under this Paragraph or make use of the expedited procedure set out in the following Paragraph.
(4) In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under Paragraph (3) or any objection that the dispute is not within the tribunalâs competence. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds therefore, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period of time, which may not exceed 30 days.
(5) A claim to loss of jurisdiction due to a breach of Article 13 shall be decided by the tribunal on the basis of a balance of probabilities on the facts adduced in evidence before it. A tribunal does not have to wait for a determination by a domestic court in the host or home state.
(6) When it decides a respondent's objection under Paragraph (3) or (4), the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorneys' fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider inter alia whether either the claimant's claim or the respondent's objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
(7) A respondent may not assert as a defense, counterclaim, right of set-off, or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
(8) A tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the 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 tribunal's jurisdiction. A tribunal may not order attachment or enjoin the application of a measure alleged to constitute a breach of the relevant parts of this Agreement. The protection of the public welfare and public interests shall be considered when any interim measures are requested.
Article 8. Amicus Curiae
(1) The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party (the "submitter").
(2) The submissions shall be provided in English or in the principal language of the host state, and shall identify the submitter and any Party, other government, person, or organization, other than the submitter, that has provided, or will provide, any financial or other assistance in preparing the submission.
(3) The Council may establish and make available to the public a standard form for applying for status as amicus curiae. This may include specific criteria which will help guide a tribunal in determining whether to accept a submission in any given instance.
(4) Amicus curiae submissions may relate to any matter covered by this Agreement.
Article 9. Transparency of Arbitral Proceedings
(1) Subject to Paragraphs (2) and (4), the claimant and respondent shall, after sending the following documents to the other disputing party, promptly transmit them to the Secretariat of the Dispute Settlement Body which shall make them available to the public, including by Internet:
a) the notice of intention;
b) any settlement agreement resulting from alternative dispute resolution processes;
c) the notice of arbitration;
d) pleadings, memorials and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to this Annex or the Rules of Arbitration;
e) minutes or transcripts of hearings of the tribunal, where available; and
f) all orders, awards, and decisions of the tribunal.
(2) The tribunal shall conduct all hearings open to the public and shall determine, in consultation with the disputing parties and the dispute settlement Secretariat the appropriate logistical arrangements. However, any disputing party that intends to use information designated as confidential business information or information that is privileged or otherwise protected from disclosure under a party's law in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
(3) Nothing in this section requires a respondent to disclose confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law or to furnish or allow access to information that it may withhold in accordance with this Agreement.
(4) Confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law shall, if such information is submitted to the tribunal, be protected from disclosure in accordance with the following procedures:
a) subject to Sub-paragraph (d), neither the disputing parties nor the tribunal shall disclose to the non-disputing party or to the public any confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law where the disputing party that provided the information clearly designates it in accordance with Sub-paragraph (b);
b) any disputing party claiming that certain information constitutes confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law shall clearly designate the information at the time it is submitted to the tribunal;
c) a disputing party shall, at the same time that it submits a document containing information claimed to be confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the non-disputing party and made public in accordance with Paragraph (1); and
d) the tribunal shall decide any objection regarding the designation of information claimed to be confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may:
i) withdraw all or part of its submission containing such information; or
ii) agree to resubmit complete and redacted documents with corrected designations in accordance with the tribunal's determination and Sub-paragraph (c).
In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents which either remove the information withdrawn under Sub-paragraph (d)(i) by the disputing party that first submitted the information or redesignate the information consistent with the designation under Sub-paragraph (d)(ii) of the disputing party that first submitted the information.
(5) Nothing in this Agreement authorizes a respondent to withhold from the public information required to be disclosed by its laws.
Article 10. Interpretation of Annexes
(1) Where a respondent asserts as a defense that the measure alleged to be a breach is within the scope of an excluded sector in Annex C or is a non-conforming measure set out in Annex D, the tribunal shall, on request of a State Party that is a disputing party request the interpretation of the home and host state on the issue. The home and host state shall submit in writing any decision declaring its interpretation under this Article the tribunal within 60 days of delivery of the request.
A decision issued under Paragraph (A) shall be binding on the tribunal, and any award must be consistent with that decision. If the home and host state fails to issue such a decision within 60 days, the tribunal shall decide the issue.
Article 11. Expert Reports
A tribunal, at the request of a disputing party or on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety or other matters raised in a proceeding. The tribunal shall consider any terms or conditions relating to such appointments that the disputing parties may suggest.
Article 12. Consolidation
(1) Where two or more claims have been submitted separately to arbitration under this Agreement and the claims have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order.
(2) A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Director and to all the disputing parties sought to be covered by the order and shall specify in the request:
a) the names and addresses of all the disputing parties sought to be covered by the order;
b) the nature of the order sought; and
c) the grounds on which the order is sought.
(3) Unless the Director finds within 30 days after receiving a request under Paragraph (2) that the request is manifestly unfounded, a separate tribunal shall be established under this Article by the Director solely to consider the issue of consolidation.
(4) Where a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration have a question of law or fact in common, and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
a) assume jurisdiction over, and hear and determine together, all or part of the claims;
b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others; or
c) instruct a tribunal previously established to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that that tribunal shall decide whether any prior hearing shall be repeated.
(5) Where a tribunal has been established under this Article, a claimant that has submitted a claim to arbitration and that has not been named in a request made under Paragraph (2) may make a written request to the tribunal that it be included in any order made under Paragraph (4), and shall specify in the request:
a) the name and address of the claimant;
b) the nature of the order sought; and
c) the grounds on which the order is sought.
(6) On application of a disputing party, a tribunal established under this Article, pending its decision under Paragraph (4), may order that the proceedings of another tribunal be stayed, unless the latter tribunal has already adjourned its proceedings.
Article 13. Awards
(1) Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
a) the specific remedies allowed for in Articles 18 and 44 of this Agreement in relation to an investor or investment;
b) monetary damages and any applicable interest against a State Party; and
c) restitution of property from a State Party, in which case the award shall provide that the respon- dent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorneys' fees in accordance with the applicable arbitration rules.
(2) Subject to Paragraph (1), where a claim is submitted to arbitration on behalf of an investment:
a) an award of restitution of property shall provide that restitution be made to the investment; and
b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the investment.
(3) A tribunal may not award punitive damages.
(4) An award made by a panel tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
(5) Subject to Paragraph (6) and the applicable appeal procedure, a disputing party shall abide by and com- ply with an award without delay.
(6) A disputing party may not seek enforcement of a final award until:
a) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to appeal the award; or
b) the appellate division has rejected an appeal.
(7) Each Party shall provide for the enforcement of an award in its territory and make the appropriate legal proceedings available for this purpose.
Article 14. Appellate Process
(1) A disputing investor/investment or party may appeal, within 60 days, a panel decision on the basis of an error of law or a material and manifest error of fact. Such appeals shall proceed in accordance with Annex A. No other appeal or arbitration review process shall be applicable to arbitrations under this Agreement.
(2) The appellate process shall apply, mutatis mutandis, the rules of procedure for the panel division, subject to such mediations as required by this Agreement.
(3) The appeal must be filed within 60 days of the decision being appealed.
(4) The Council of the Dispute Settlement Body shall establish, at it first meeting, the timelines for the appellate process.
(5) The decision on appeal shall be final and binding and not subject to further appeal or judicial review. A panel decision not taken to appeal shall have the same final and binding status.
Annex B. List of National Authority contact points for all State Parties
This list of National Authority contact points for all State Parties would be relevant for dispute settlement purposes, exchange of information and all other matters necessary for the operation of the Agreement.
The list is to be developed by submission from each Party, to the Secretariat.
Annex C. National lists of excluded sectors from coverage of all or part of the Agreement
This list would be part of the end result of a negotiation.
Annex D. National list of grandfathered non-complying measures, from all or part of the Agreement
This list would be part of the end result of a negotiation.
Annex E. National list of sectors subject to establishment rights of foreign investors under domestic law
This list would initially be developed during the negotiations, but is subject to unilateral changes by each State Party.
Annex F. Indicative list of corporate social responsibility issues
This indicative list of issues of concern should be understood, for present purposes, as a very preliminary list for further development.
Trade Practices:
- Fair trading practices
- Ethical advertising
- Avoidance of abuse of market dominant positions and use of anti-competitive practices ¢ Other?
Corporate Governance:
- Regulatory compliance systems
- Board of directors integrity and independence
- Transparent reporting and accounting
- Risk management strategies
- Protection and respect of intellectual property
- Protection of whistle-blowers
- Other?
Employment and Industrial Relations:
- Equal opportunity
- Fair wages and conditions
- Reasonable disciplinary practices
- Reasonable working hours and conditions
- Protection of individual privacy
- Fair, non-discriminatory dispute and issue resolution mechanisms
- Other?
Production and Product-related Issues:
- Product stewardship
- Design for recycling/re-use
- Energy efficiency
- Non-hazardous materials and manufacturing processes
- Minimization of environmental impacts
- Product recycling
- Product disposal/waste management
- Safe working practices
- Safe working environment
- Occupational hygiene
- Control of hazardous substances and dangerous goods
-Emergency preparedness
-Fair workers' compensation, rehabilitation and return-to-work programs
- Other?
Business Relationships:
- Ethical purchasing
- Non-collusive tendering
- Avoidance of price fixing
- Other?
Environment Protection/Sustainability:
- Sustainable production
- Energy reduction
- Waste and discharge management
- Protection of flora, fauna and cultural heritage
- Protection of traditional knowledge
- Stakeholder consultation/communication
- Other?
Good Corporate Citizenship:
- Philanthropy
- Organizational accountability
- SR reporting
- Other?