3. Further to consultations under this Article, the Parties may take action as they may agree, including making and adopting rules supplementing the applicable arbitration rules under Section E (Investor-State Dispute Settlement).
Article 56. Extent of Obligations
Each Party shall ensure that it takes all necessary measures to give effect to this Agreement, including its observance by its regional and other levels of government, except as otherwise provided in this Agreement.
Article 57. Application and Entry Into Force
1. All Annexes are an integral part of this Agreement.
2. Each Party shall deliver to the other Party a written notice of the completion of the procedures required in its territory for the entry into force of this Agreement. This Agreement enters into force on the date of the later of these notifications.
3. The Parties may amend this Agreement by mutual written consent.
4. This Agreement shall remain in force unless a Party delivers to the other Party a written notice of its intention to terminate the Agreement. The termination of this Agreement will be effective one year after the written notice of termination has been received by the other Party. In respect of investments or commitments to invest made prior to the date of termination of this Agreement, Articles 1 through 56, as well as paragraphs 1 and 2 of this Article, shall remain in force for 15 years.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorized, have signed this Agreement.
DONE in two originals at..... on this..... day of 20[__], in the English and French languages, each version being equally authentic.
FOR CANADA FOR
Attachments
Section I. Annexes
Annex I: Reservations for Future Measures Schedule of Canada
Schedule of Annex II: Exceptions from Most-Favoured-Nation-Treatment
Annex III: Exclusions from Dispute Settlement
Arbitrator Code of Conduct for Dispute Settlement
1. Definitions
For the purposes of this Code of Conduct:
“arbitrator” means a member of a Tribunal constituted pursuant to Article 30 (Arbitrators);
“assistant” means a person who, under the terms of appointment of an arbitrator, conducts research or provides support for the arbitrator;
“candidate” means a person who is under consideration for selection as an arbitrator pursuant to Article 30 (Arbitrators), Article 50 (Method of Appointing the Sole Arbitrator), or Article 54 (Disputes between the Parties);
“expert” means a person appointed pursuant to Article 38 (Expert Reports) or applicable arbitration rules;
“family member” means the spouse or partner of an arbitrator or candidate; the parent, child, grandparent, grandchild, sister, brother, aunt, uncle, niece or nephew of the arbitrator or candidate or spouse or partner of the arbitrator or candidate (including whole and half-blood relatives and step relatives), or the spouse or partner of such a person; or a resident of the arbitrator’s or candidate’s household whom the arbitrator or candidate treats as a member of his or her family;
“Rules” means applicable rules pursuant to Article 27 (Submission of a Claim to Arbitration); and
“staff”, in respect of an arbitrator, means individuals under the direction and control of the arbitrator other than assistants.
2. Responsibilities to the Dispute Settlement Process
Each candidate, arbitrator, and former arbitrator shall avoid impropriety and the appearance of impropriety, and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement process is preserved.
3. Governing Principles
1. Each arbitrator shall be independent and impartial, and shall avoid direct or indirect conflicts of interest.
2. Each arbitrator and former arbitrator shall respect the confidentiality of Tribunal proceedings.
3. Each candidate or arbitrator shall disclose the existence of any interest, relationship, or matter that is likely to affect the candidate's or arbitrator's independence or impartiality, or that might reasonably create an appearance of impropriety or an apprehension of bias. An appearance of impropriety or an apprehension of bias is created when a reasonable person, with knowledge of all the relevant circumstances that a
reasonable inquiry would disclose, would conclude that a candidate's or arbitrator's ability to carry out the duties with integrity, impartiality, and competence is impaired.
4. Upon appointment, an arbitrator shall refrain, for the duration of the proceeding, from acting as counsel or party-appointed expert or witness in any pending or new investment dispute under this Agreement or any other international investment treaty.
5. This Code of Conduct shall be interpreted in a manner consistent with other internationally recognized standards or guidelines regarding direct or indirect conflicts of interest, such as the International Bar Association Guidelines on Conflicts of Interest in International Arbitration.
6. In the event of an alleged breach of this Code of Conduct, the Rules governing the arbitration shall apply to any challenge, disqualification, or replacement of an arbitrator.
4. Disclosure Obligations
1. Throughout the Tribunal proceeding, each candidate or arbitrator has a continuing obligation to disclose any interest, relationship, or matter that may bear on the integrity or impartiality of the dispute settlement process.
2. The disputing parties or the Secretary-General of ICSID, as the appointing authority for a Tribunal referred to in Article 30 (Arbitrators), shall provide a candidate a copy of this Code of Conduct and the Initial Disclosure Statement set out in the Appendix to this Code of Conduct.
3. A candidate shall submit the Initial Disclosure Statement set out in the Appendix to this Code of Conduct to the disputing parties or the Secretary-General of ICSID, as the appointing authority, as far as possible and no later than seven days of receipt of that Initial Disclosure Statement.
4. A candidate shall disclose any interest, relationship, or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias in the Tribunal proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interest, relationship or matter. Therefore, a candidate shall disclose, at a minimum, the following interests, relationships and matters:
(a) any financial or personal interest of the candidate in: 1. (i) the Tribunal proceeding or its outcome; and
2. (ii) an administrative proceeding, a domestic judicial proceeding, or any other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding for which the candidate is under consideration;
o (b) any financial interest of the candidateâs employer, business partner, business associate, or family member in:
1. (i) the Tribunal proceeding or its outcome; and
2. (ii) an administrative proceeding, a domestic judicial proceeding, or any other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding for which the candidate is under consideration;
o (c) any past or current financial, business, professional, family, or social relationship with any interested parties (9) in the Tribunal proceeding or their counsel, or any such relationship involving a candidateâs employer, business partner, business associate, or family member; and
o (d) any public advocacy or legal or other representation concerning an issue in dispute in the Tribunal proceeding or involving the same investment.
5. Once appointed, an arbitrator shall continue to make all reasonable efforts to become aware of any interest, relationship, or matter referred to in paragraph 4, and shall disclose them. The obligation to disclose is a continuing duty that requires an arbitrator to disclose any such interest, relationship, or matter that may arise during any stage of the Tribunal proceeding.
6. In the event of any uncertainty regarding whether an interest, relationship, or matter must be disclosed under paragraph 4 or 5, a candidate or arbitrator should err in favour of disclosure. Disclosure of an interest, relationship or matter is without prejudice as to whether the interest, relationship or matter is covered by paragraph 4 or 5, or whether it warrants recusal, amelioration or disqualification.
7. The disclosure obligations set out in paragraphs 1 through 6 should not be interpreted so that the burden of detailed disclosure makes it impractical for individuals in the legal or business community to serve as arbitrators, thereby depriving the disputing parties of the services of those who might be best qualified to serve as arbitrators. Thus, a candidate or arbitrator should not be called upon to disclose an interest, relationship, or matter whose bearing on the candidateâs or arbitrator's role in the Tribunal proceeding would be trivial.
5. Performance of Duties by Candidates and Arbitrators
1. A candidate who accepts an appointment as an arbitrator shall be available to perform, and shall perform, once the arbitrator is appointed pursuant to Article 30 (Arbitrators), an arbitrator's duties thoroughly, fairly, diligently, and expeditiously throughout the course of the Tribunal proceeding.
2. An arbitrator shall ensure that he or she is contactable, at all reasonable times, by the Secretary-General of ICSID, disputing parties, arbitration institution in charge of the proceeding, and other arbitrators of the Tribunal in order to conduct Tribunal work.
3. An arbitrator shall comply with the provisions of Section E (Investor-State Dispute Settlement), Section F (Expedited
Arbitration), and Section G (State-to-State Dispute Settlement), as applicable, and the Rules.
4. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the Tribunal proceeding.
5. An arbitrator shall consider only those issues raised in the Tribunal proceeding and necessary to make a decision, order, or award.
6. An arbitrator shall not delegate the duty to make a decision, order, or award to any other person.
7. An arbitrator shall take all reasonable steps to ensure that his or her assistants and staff comply with Article 2 (Responsibilities to the Dispute Settlement Process), paragraphs 1, 4, 5, 6 and 7 of Article 4 (Disclosure Obligations), paragraphs 3, 8 and 9 of this Article, and Article 8 (Maintenance of Confidentiality) of this Code of Conduct.
8. An arbitrator shall not engage in any ex parte contact concerning the Tribunal proceeding.
9. A candidate or arbitrator shall only communicate matters concerning actual or potential violations of this Code of Conduct, or if necessary to ascertain whether that candidate or arbitrator has violated or may violate this Code of Conduct, to the Secretary-General of ICSID, the disputing parties and arbitration institution in charge of the proceedings.
10. Each arbitrator shall keep a record and render a final account of the time devoted to the Tribunal proceeding and of his or her expenses, as well as the time and expenses of his or her staff and assistants.
6. Independence and Impartiality of Arbitrators
1. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner and shall not create an appearance of impropriety or an apprehension of bias.
2. An arbitrator shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a disputing party or a non-disputing Party, or fear of criticism.
. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his or her duties.
. An arbitrator shall not use his or her position on the Tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator. An arbitrator shall make every effort to prevent or discourage others from representing themselves as being in such a position.
. An arbitrator shall not allow past or ongoing financial, business, professional, family, or social relationships or responsibilities to influence his or her conduct or judgment.
. An arbitrator shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or an apprehension of bias.
. If an interest, relationship, or matter of a candidate or arbitrator is inconsistent with paragraphs 1 through 6, the candidate may accept appointment to a Tribunal, and an arbitrator may continue to serve on a Tribunal, if the disputing parties waive the violation or if, after the candidate or arbitrator has taken steps to ameliorate the violation, the disputing parties determine that the inconsistency has ceased.
7. Duties of Former Arbitrators
A former arbitrator shall avoid actions that may create the appearance that the arbitrator was biased in carrying out his or her duties or would benefit from the decision, order or award of the Tribunal.
8. Maintenance of Confidentiality
1. An arbitrator or former arbitrator shall not at any time disclose
or use any non-public information concerning the Tribunal proceeding or acquired during the Tribunal proceeding, except for the purposes of the Tribunal proceeding and shall not, in
any case, disclose or use any such information to gain a personal advantage, or an advantage for another person, or to adversely affect the interest of another person.
2. An arbitrator shall not disclose a decision, order, or award, or a part thereof, prior to its publication in accordance with Section E (Investor-State Dispute Settlement).
3. An arbitrator or former arbitrator shall not at any time disclose the deliberations of the Tribunal, or any arbitrator's view. (10)
4. An arbitrator shall not make a public statement regarding the merits of a pending Tribunal proceeding.
9. Responsibilities of Experts, Assistants and Staff
Article 2 (Responsibilities to the Dispute Settlement Process), paragraphs 1, 4, 5, 6 and 7 of Article 4 (Disclosure Obligations), paragraphs 3, 8 and 9 of Article 5 (Performance of Duties by Candidates and Arbitrators), Article 7 (Duties of Former Arbitrators), and Article 8 (Maintenance of Confidentiality) of this Code of Conduct shall also apply to experts, assistants, and staff.
10. Review
A Party may request to review and amend this Code of Conduct to take into account, as appropriate, relevant developments concerning investor-State dispute settlement.
Appendix to the Arbitrator Code of Conduct for Dispute Settlement: Initial Disclosure Statement Form 1. |acknowledge having received a copy of the Arbitrator Code of Conduct for Dispute Settlement (Code of Conduct).
2. | acknowledge having read and understood the Code of Conduct.
3. | understand that | have a continuing obligation, while participating in the Tribunal proceeding, to disclose an interest, relationship, or matter that may bear on the integrity
or impartiality of the dispute settlement process. As a part of this continuing obligation, | am making the following initial disclosures:
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(a) My financial interest in the Tribunal proceeding for which | am under consideration or in its outcome is as follows:
(b) My financial interest in any administrative proceeding, domestic judicial proceeding, or other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding is as follows:
(c) The financial interests that any employer, business partner, business associate, or family member of mine may have in the Tribunal proceeding or in its outcome are as follows:
(d) The financial interests that any employer, business partner, business associate, or family member of mine may have in any administrative proceeding, domestic judicial proceeding or other international dispute settlement proceeding that involves issues that may be decided in the Tribunal proceeding are as follows:
(e) My past or current financial, business, professional, family, and social relationships with any interested party in the Tribunal proceeding, or their counsel, are as follows:
(f) The past or current financial, business, professional, family, and social relationships with any interested party in the Tribunal proceeding, or their counsel, involving any employer, business partner, business associate, or family member of mine are as follows:
(g) My public advocacy or legal or other representation concerning an issue in dispute in the Tribunal proceeding or involving the same investment is as follows:
o (h) My other interests, relationships and matters that may bear on the integrity or impartiality of the dispute settlement process and that are not disclosed in paragraphs 3(a) through (g) above are as follows:
Signed on this day of , 20 By:
Signature
Name