Article 38. Expert Reports
Without prejudice to the appointment of other kinds of experts if authorized by the applicable arbitration rules, the Tribunal may, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, appoint one or more experts to report to it in writing on any factual issue, including the rights of Indigenous peoples or scientific matters raised by a disputing party in a proceeding, subject to any terms and conditions agreed on by the disputing parties.
Article 39. Interim Measures of Protection
1. 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 shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 27 (Submission of a Claim to Arbitration). For the purposes of this paragraph, an order includes a recommendation.
2. At the request of a disputing party, the Tribunal may order the other disputing party to provide security for all or part of the costs, if there are reasonable grounds to believe that there is a risk the disputing party may not be able to honour a potential costs award against it. In considering that request, the Tribunal may take into account evidence of third party funding. If the security for costs is not posted in full within 30 days of the Tribunal's order, or within any other time period set by the Tribunal, the Tribunal shall so inform the disputing parties and may order the suspension or termination of the proceedings.
Article 40. Final Award
1. If a Tribunal makes a final award against the respondent Party, in respect of its finding of liability, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent Party may pay monetary damages and any applicable interest in lieu of restitution.
2. Subject to paragraph 1, if a claim is made under Article 27(2) (Submission of a Claim to Arbitration):
(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;
(c) an award of costs in favour of the investor shall provide that the sum be paid to the investor; and
(d) the award shall provide that it is made without prejudice to a right that a person, other than a person which has provided a waiver pursuant to Article 27 (Submission of a Claim to Arbitration), may have in monetary damages or property awarded under a Party's domestic law.
3. The Tribunal shall make an order with respect to the costs of the arbitration, which shall in principle be borne by the unsuccessful disputing party or parties. In determining the appropriate apportionment of costs, the Tribunal shall consider all relevant circumstances, including:
(a) the outcome of any part of the proceeding, including the number or extent of the successful parts of the claims or defenses;
(b) the disputing parties' conduct during the proceeding, including the extent to which they acted in an expeditious and cost-effective manner;
(c) the complexity of the issues; and
(d) the reasonableness of the costs claimed.
4. The Tribunal and the disputing parties shall make every effort to ensure the dispute settlement process is carried out in a timely manner. The Tribunal shall issue its final award within 12 months of the final date of the hearing on the merits. A Tribunal may, with good cause and notice to the disputing parties, delay issuing its final award by an additional brief period.
5. Monetary damages in an award:
(a) shall not be greater than the loss or damage incurred by the investor, or, as applicable, by the enterprise referred to in Article 27(2) (Submission of a Claim to Arbitration), as valued on the date of the breach (8);
(b) shall only reflect loss or damage incurred by reason of, or arising out of, the breach; and
(c) shall be determined with reasonable certainty, and shall not be speculative or hypothetical.
6. In making an award under paragraph 5, the Tribunal shall calculate monetary damages based only on the submissions of the disputing parties, and shall consider, as applicable:
(a) contributory fault, whether deliberate or negligent;
(b) failure to mitigate damages;
(c) prior damages or compensation received for the same loss; or
(d) restitution of property, or repeal or modification of the measure.
7. The Tribunal may award monetary damages for lost future profits only insofar as such damages satisfy the requirements under paragraph 5. Such determination requires a case-by- case, fact-based inquiry that takes into consideration, among other factors, whether a covered investment has been in operation in the territory of the respondent Party fora sufficient period of time to establish a performance record of profitability.
8. The Tribunal may award pre-award and post-award interest at a reasonable rate of return compounded annually. 9. The Tribunal shall not award punitive damages.
10. The Tribunal shall not award monetary damages under Article 27(1) (Submission of a Claim to Arbitration) for loss or damage incurred by the investment.
Article 41. 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 shall 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 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 submitted to arbitration under Article 27 (Submission of a Claim to Arbitration) shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 42. Third Party Funding
1. A claimant benefiting from a third party funding arrangement shall disclose to the respondent Party and to the Tribunal the name and address of the third party funder.
2. The claimant shall make the disclosure under paragraph 1 at the time of the submission of a claim to arbitration under Article 27 (Submission of a Claim to Arbitration), or, if the third party funding is arranged after the submission of a claim, within ten days of the date on which the third party funding was arranged.
3. The claimant shall have a continuing obligation to disclose any changes to the information referred to in paragraph 1 occurring after its initial disclosure, including termination of the third party funding arrangement.
Article 43. Service of Documents
Each Party shall promptly make publicly available, and notify the other Party by diplomatic note, the location for delivery of notice and other documents, including any subsequent change to the location for delivery. Investors shall ensure that service of documents to a Party is made to the appropriate location.
Article 44. Receipts Under Insurance or Guarantee Contracts
In an arbitration under this Section, a respondent Party may not assert as a defence, counterclaim, right of set-off, or otherwise, that the claimant has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
Article 45. Special Rules Regarding Financial Services
1. With respect to a measure adopted or maintained by a Party relating to:
(a) a financial institution of the other Party; or
(b) an investor of the other Party, or a covered investment in a financial institution in the territory of the other Party,
this Section applies only in respect of a claim that the other Party has breached an obligation under Article 7 (Treatment in Case of Armed Conflict, Civil Strife or Natural Disaster), Article 9 (Expropriation), or Article 10 (Transfers of Funds).
2. If a disputing party claims that a dispute involves measures referred to in paragraph 1, the arbitrators shall be selected in accordance with Article 30 (Arbitrators) as modified in this Article, such that:
(a) the presiding arbitrator shall meet the qualifications set out in Article 30 (Arbitrators) and have expertise or experience in financial services law or practice, such as the regulation of financial institutions; and
(b) each of the other arbitrators of the Tribunal shall:
(i) meet the qualifications set out in Article 30 (Arbitrators); or
(ii) have expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meet the qualifications set out in paragraphs 1, 3, and 6 of Article 30 (Arbitrators).
3. If an investor of a Party submits a claim to arbitration under Article 27 (Submission of a Claim to Arbitration), and the respondent Party asserts a defence under Article 10 (Transfers of Funds), or Article 22(2) or (3) (General Exceptions), the respondent Party shall, no later than the date the Tribunal fixes for the respondent Party to submit its principal submission on the merits, such as the counter- memorial, submit to the financial authority of the other Party a written request for a joint determination by the financial authorities of the Parties on the issue of whether, and to what extent, the defence asserted is a valid defence to the claim. The respondent Party shall provide the Tribunal, if constituted, a copy of its request. The Tribunal shall proceed to hear the claim only as provided in paragraphs 5, 6 or 7.
4. With respect to the joint determination by the financial authorities of the Parties referred to in paragraph 3:
(a) the financial authorities of the Parties shall have 60 days from the date of the receipt of the request to exchange positions;
(b) the financial authorities of the Parties shall have 60 days from the exchange of positions under subparagraph (a) to make a joint determination;
(c) if the financial authorities of the Parties have made a joint determination under subparagraph (b), the financial authority of either Party shall transmit their joint determination to the disputing parties and the Tribunal, if constituted; and
(d) if the financial authorities of the Parties have not made a joint determination under subparagraph (b), either Party may request, within 130 days of the receipt of the request for a joint determination, an arbitral panel to be established under Section G (State-to-State Dispute Settlement) to decide whether, and to what extent, the paragraph asserted is a valid defence to the claim. The arbitral panel shall transmit its decision to the disputing parties and to the Tribunal, if constituted.
5. If the financial authorities of the Parties in a joint determination referred to in paragraph 4(b), or the arbitral panel in a decision referred to in paragraph 4(d), decide that the paragraph asserted is a valid defence to all parts of the claim, the claimant is deemed to have withdrawn its claim and to have discontinued the proceeding, with prejudice. The Tribunal, if constituted, shall take note of the discontinuance of the claim in an order, after which the authority of the Tribunal shall cease.
6. If the financial authorities of the Parties in a joint determination referred to in paragraph 4(b), or the arbitral panel in a decision referred to in paragraph 4(d), decide that the paragraph asserted is only a valid defence to a part of the claim, the claimant is deemed to have withdrawn that part of the claim and to have discontinued that part of the proceeding, with prejudice. The Tribunal shall take note of the discontinuance of that part of the claim in an order, and shall not proceed with the part of the claim for which the paragraph asserted is determined to be a valid defence.
7. If the financial authorities of the Parties do not make a joint determination under paragraph 4(b), and neither Party has requested the establishment of an arbitral panel under paragraph 4(d), the Tribunal may decide the matter, provided that:
(a) in addition to the disputing parties, the Party of the investor may make oral or written submissions to the Tribunal regarding the issue of whether, and to what extent, the paragraph asserted is a valid defence to the claim prior to the Tribunal deciding this issue. Unless it makes such a submission, the Party of the investor shall be presumed, for the purposes of the arbitration, to take a position on the application of the paragraph asserted that is not inconsistent with the position of the respondent Party; and
(b) the Tribunal shall draw no inference regarding the application of the paragraph asserted from the fact that the financial authorities of the Parties have not made a joint determination referred to in paragraph A(b).
Article 46. Establishment of a First Instance Investment Tribunal or an Appellate Mechanism for Investor-State Dispute Settlement
If an investor-State dispute settlement mechanism, consisting of a first instance investment tribunal or an appellate mechanism, is developed under other institutional arrangements and is open to the Parties for acceptance, the Parties shall consider whether, and to what extent, a dispute under this Section should be decided pursuant to that investor-State dispute settlement mechanism.
Section F. Expedited Arbitration
Article 47. Consent to Expedited Arbitration
1. The disputing parties to an arbitration under Section E (Investor-State Dispute Settlement) may consent to expedite the arbitration in accordance with this Section, when the damages claimed do not exceed CAD$ 10 million, by following the procedure in paragraph 2.
2. The disputing parties shall jointly notify the ICSID Secretariat in writing of their consent to an expedited arbitration in accordance with this Section. The notice must be received within 20 days of the submission of a claim to arbitration under Article 27(6)(a) or (b) (Submission of a Claim to Arbitration).
3. Section E (Investor-State Dispute Settlement), as modified by this Section, applies to the investment dispute, except for Article 33 (Preliminary Objections), which does not apply.
Article 48. Mediation
1. The disputing parties may consent to have recourse to mediation in accordance with this Section. Recourse to mediation is without prejudice to the legal position or rights of a disputing party under this Section.
2. If the disputing parties jointly agree to have recourse to mediation, the disputing parties shall appoint a mediator to facilitate the resolution of the dispute within 20 days of the notification provided under Article 47(2) (Consent to Expedited Arbitration).
3. If the disputing parties do not select a mediator within the time period provided for in paragraph 2, the Secretary-General of ICSID shall select the mediator within 20 days of the expiration of that time period.
4. The disputing parties may hold mediation sessions by videoconference, telephone, or similar means of communication as appropriate.
5. If the disputing parties fail to reach a resolution of the dispute within 60 days of the appointment of the mediator, the dispute shall proceed to arbitration in accordance with this Section.
Article 49. Constitution of the Tribunal
1. The Tribunal in an expedited arbitration shall consist of a sole arbitrator appointed pursuant to Article 50 (Method of Appointing the Sole Arbitrator).
2. An appointment under Article 50 (Method of Appointing the Sole Arbitrator) shall be deemed an appointment in accordance with a method agreed by the parties pursuant to Article 37(2)(a) of the ICSID Convention.
Article 50. Method of Appointing the Sole Arbitrator
1. The disputing parties shall jointly appoint the sole arbitrator within 30 days of the notification delivered under Article 47(2) (Consent to Expedited Arbitration).
2. If the disputing parties do not appoint the sole arbitrator within the time period under paragraph 1, the Secretary-General of ICSID shall appoint the sole arbitrator in the following manner:
(a) the Secretary-General shall transmit a list of five candidates for appointment as the sole arbitrator to the disputing parties within 30 days of the expiration of the time period under paragraph 1;
(b) each disputing party may strike one candidate from the list, and shall rank the remaining candidates in order of preference and transmit such ranking to the Secretary-General within 14 days of receipt of the list;
(c) the Secretary-General shall inform the disputing parties of the result of the rankings on the next business day after receipt of the rankings, and shall appoint the candidate with the best ranking. If two or more candidates share the best ranking, the Secretary-General shall select one of them;
(d) the Secretary-General shall immediately send the request for acceptance of the appointment to the selected candidate, and shall request a reply within 10 days of receipt; and
(e) if the selected candidate does not accept the appointment, the Secretary-General shall select the next highest-ranked candidate.
3. The sole arbitrator shall have expertise or experience as an arbitrator of investor-State disputes arising under international investment agreements. The sole arbitrator shall not have the nationality of either disputing party and shall otherwise be independent of, and not be affiliated with or take instructions from, either disputing party.
4. lf the dispute involves a measure referred to in Article 45(1) (Special Rules Regarding Financial Services), the sole arbitrator shall also have expertise or experience in financial services law or practice, such as the regulation of financial institutions.
5. The sole arbitrator shall be prepared to meet the shorter timeframes provided for in this Section.
6. The sole arbitrator's fees shall be fixed according to the scales of administrative expenses and arbitrator's fees for the expedited procedure set out in Appendix III of the Arbitration Rules of the International Chamber of Commerce.
7. The sole arbitrator shall abide by the Code of Conduct (Arbitrator Code of Conduct for Dispute Settlement).
Article 51. First Session In Expedited Arbitration
1. The sole arbitrator shall hold a first session within 30 days of the constitution of the Tribunal under Article 49 (Constitution of the Tribunal).
2. The sole arbitrator shall hold the first session by videoconference, telephone, or similar means of communication, unless both disputing parties and the sole arbitrator agree it shall be held in person.
Article 52. Procedural Schedule for Expedited Arbitration
1. The following schedule for written submissions and the hearing shall apply in the expedited arbitration:
(a) the claimant shall file, within 90 days of the first session, a principal submission on the merits, such as a memorial, of no more than 150 pages;
(b) the respondent Party shall file, within 90 days of the claimant's filing of its principal submission on the merits pursuant to subparagraph (a), a principal submission on the merits, such as a counter- memorial, of no more than 150 pages;
(c) the claimant shall file, within 90 days of the respondent Party's filing of its principal submission on the merits pursuant to subparagraph (b), a reply of no more than 100 pages;
(d) the respondent Party shall file, within 90 days of the claimant's filing of the reply pursuant to subparagraph (c), a rejoinder of no more than 100 pages,
(e) a non-disputing Party may file, within 60 days of the respondent Party's filing of the rejoinder pursuant to subparagraph (d), a written submission regarding the interpretation of this Agreement pursuant to Article 37 (Participation of a Non-Disputing Party);
(f) the sole arbitrator shall hold the hearing within 120 days of the respondent Party's filing of the rejoinder pursuant to subparagraph (d);
(g) each disputing party shall file a statement of costs within 30 days of the last day of the hearing referred to in subparagraph (f); and
(h) the sole arbitrator shall render the award as soon as possible, and in any event within 180 days of the last day of the hearing referred to in subparagraph (f).
2. The sole arbitrator may grant a claimant in default a grace period not exceeding 30 days, otherwise the claimant is deemed to have withdrawn its claim and to have discontinued the proceedings. The sole arbitrator, if appointed, shall, at the request of the respondent Party, and after notice to the disputing parties, in an order take note of the discontinuance.
After the order has been rendered, the authority of the Tribunal shall cease.
3. The sole arbitrator may grant a respondent Party in default a grace period not exceeding 30 days, otherwise the claimant may request that the sole arbitrator address the questions submitted to it and render an award.
4. At the request of a disputing party, the sole arbitrator may grant limited requests for specifically identifiable documents that the requesting disputing party knows, or has good cause to believe, exist and are in the possession, custody or control of the other disputing party, and shall adjust the schedule under paragraph 1 as appropriate.
5. The sole arbitrator may, after consulting the disputing parties, limit the number, length, or scope of written submissions or written witness evidence (both fact witnesses and experts).
6. The sole arbitrator may, following a joint request by the disputing parties, decide the dispute solely on the basis of the documents submitted by the disputing parties, with no hearing and no or a limited examination of witnesses or experts. If the sole arbitrator holds a hearing under paragraph 1(f), the sole arbitrator may conduct the hearing by videoconference, telephone, or similar means of communication.
7. The sole arbitrator shall, following a joint request by the disputing parties, but no later than the date of filing of the respondent Party's principal submission on the merits referred to in paragraph 1(b), decide that this Section shall no longer apply to the case.
8. The sole arbitrator may, at the request of a disputing party, but no later than the date of filing of the respondent Party's principal submission on the merits referred to in paragraph 1(b), decide that this Section shall no longer apply to the case. The disputing party that has made the request shall bear the costs of the expedited arbitration.
9. If, pursuant to paragraph 7 or 8, the sole arbitrator decides that this Section no longer applies to the case, and unless the disputing parties agree otherwise, the sole arbitrator appointed pursuant to Article 49 (Constitution of the Tribunal) and Article 50 (Method of Appointing the Sole Arbitrator) shall be appointed as presiding arbitrator of the Tribunal constituted under Section E (Investor-State Dispute Settlement).
10. In all matters concerning an expedited arbitration procedure not expressly provided for in this Agreement, the disputing parties shall endeavour to agree on the applicable procedural rules. If the disputing parties do not agree on the applicable procedural rules, the sole arbitrator, if appointed, may decide the matter.
Article 53. Consolidation
When two or more claims falling under Article 47 (Consent to Expedited Arbitration) have a question of law or fact in common and arise out of the same events or circumstances, Article 34 (Consolidation) applies.
Section G. State-to-State Dispute Settlement
Article 54. Disputes between the Parties
1. The Parties shall, whenever possible, settle amicably through consultations any dispute concerning the interpretation or application of this Agreement. A Party may request consultations on the interpretation or application of this Agreement by delivering a notice to the other Party. Unless the Parties agree to a longer period, the Parties shall, within 15 days of the notice, meet to consider the matter with a view to reaching a mutually satisfactory resolution. During those consultations, each Party shall endeavour to provide sufficient information to enable a full examination of the matter, while maintaining the confidentiality of the information provided by the other Party in the course of consultations.
2. If a dispute cannot be settled through consultations, a Party may submit the dispute to an arbitral panel for decision.
3. An arbitral panel shall be constituted for each dispute. Each Party shall appoint one member to the arbitral panel within 30 days of receipt through diplomatic channels of the request for arbitration. The two members shall then select a national of a non-Party who, on approval by the Parties, shall be appointed Chair of the arbitral panel. The Parties shall appoint the Chair within 60 days of the date of the last Party-appointed member of the arbitral panel. The Parties are encouraged to consider greater diversity in arbitrator appointments, including through the appointment of women.
4. If within the periods specified in paragraph 3 the necessary appointments have not been made, a Party may invite the President of the International Court of Justice to make the necessary appointment. If the President of the International Court of Justice is a national of a Party or is otherwise prevented from discharging this function, the Vice-President of the International Court of Justice shall be invited to make the necessary appointment. If the Vice-President of the International Court of Justice is a national of a Party or is otherwise prevented from discharging this function, the Member of the International Court of Justice next in seniority, who is not a national of a Party and not otherwise prevented from discharging this function, shall be invited to make the necessary appointment.
5. Members of the arbitral panel shall have expertise or experience in public international law, international trade law, or dispute resolution arising under international trade or international investment agreements.
6. The members of the arbitral panel shall comply with the Code of Conduct (Arbitrator Code of Conduct for Dispute Settlement).
7. If a Party claims that the dispute involves measures relating to a financial institution of the other Party, or to an investor of the other Party or a covered investment in a financial institution, or if a Party invokes Article 10 (Transfers of Funds), or Article 22(2) or (3) (General Exceptions), the Chair and members of the arbitral panel shall be appointed so that:
(a) the Chair has expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meets the qualifications set out in paragraphs 5 and 6; and
(b) each of the other members of the arbitral panel shall:
(i) meet the qualifications set out in paragraphs 5 and 6; or
(ii) have expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meet the qualifications of paragraph 6.
8. The arbitral panel shall determine its own procedure. The arbitral panel shall reach its decision by a majority of votes. The decision is binding on both Parties. Unless the Parties agree otherwise, the arbitral panel shall render the decision within 180 days of the appointment of the Chair.
9. Each Party shall bear the costs of its own member of the arbitral panel and of the Party's representation in the arbitration proceedings. The Parties shall equally bear the costs related to the Chair and any remaining costs. The arbitral panel may, however, award that a Party shall bear a higher proportion of costs than the other Party, and this award is binding on the Parties.
10. Within 60 days of the decision of an arbitral panel, the Parties shall agree on the manner in which to resolve their dispute. The agreement must normally implement the decision of the arbitral panel.
Section H. Administration of the Agreement
Article 55. Consultations and other Actions
1. A Party may request in writing consultations with the other Party regarding an actual or proposed measure or any other matter that it considers might affect the operation of this Agreement.
2. The consultations under paragraph 1 may address, among others, matters relating to:
(a) the implementation of this Agreement; or
(b) the interpretation or application of this Agreement.