(a) In accordance with the ICSID Convention and all its applicable instruments, provided that both the party and the respondent are litigant parties; or
(b) In accordance with the ICSID Additional Facility Rules), if the Party not combatant or the respondent, but not both, is a party to the ICSID Convention; or
(c) In accordance with the UNCITRAL Arbitration Rules; or
(d) If the parties involved so agree, an ad hoc Arbitration Court of Arbitration under any other institution or under any other arbitration rules.
6. A claim shall be deemed submitted to arbitration under this section when the notice of or request for arbitration ("request for arbitration") of the applicant:
(a) Referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) Referred to in article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General;
(c) Referred to in article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in article 18 of the UNCITRAL Arbitration Rules is received by the respondent; or
(d) Referred to under any other arbitral institution or arbitral rules selected under paragraph 5 (d) is received by the respondent.
7. The arbitration rules applicable under paragraph 5 and which are in effect on the date the claim or claims that have been submitted to arbitration under this section shall govern the arbitration except to the extent modified by this Agreement.
8. The requesting party shall deliver the request for arbitration referred to in paragraph 6:
(a) The name of the arbitrator appointed by the respondent; or
(b) The applicant's written consent for the Secretary-General to appoint that arbitrator.
Article 9.17. Consent of Each Party to Arbitration
1. Each party consents to the submission of a claim to arbitration under this section in accordance with this Agreement.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this section shall comply with the requirements set out in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the Parties to the dispute;
(b) Article II of the New York Convention for an agreement in writing; and
(c) Article I of the Inter-American Convention requires an agreement.
Article 9.18. Conditions and Limitations on Consent of the Parties
1. No claim may be submitted to arbitration under this section if more than thirty nine months (39) from the date on which the claimant knew or should have had knowledge of the alleged breach under article 9.16.1 and knowledge that the claimant (for claims brought under article 9.16.1 (a)) or the enterprise (for claims brought under article 9.16.1 (b)) has incurred loss or damage.
2. No claim may be submitted to arbitration under this section unless:
(a) The claimant consents in writing to submit to arbitration in accordance with the procedures set out in this Agreement; and
(b) The request for arbitration referred to in article 9.16.6 accompanied is:
(i) The written waiver of the applicant for claims submitted to arbitration under article 9.16.1 (a),
(ii) Written on waivers of the claimant and the enterprise for claims submitted to arbitration under article 9.16.1 (b),
Any right to initiate or continue before any tribunal or administrative court under the law of either party or any other dispute settlement procedures proceedings with respect to the facts or measures that are alleged to breach claimed.
3. Without prejudice to paragraph 2 (b), the claimant (for claims brought under article 9.16.1 (a)) and the claimant or the enterprise (for claims brought under article 9.16.1 (b)) may continue or initiate an action that seeks an application of the precautionary measures that apply, and that does not involve the payment of monetary damages before a judicial or administrative tribunal of the defendant, and the siempreque action is brought for the sole purpose of preserving its rights and interests of the claimant or the enterprise during the period of waiting of arbitration. (13)
4. No claim may be submitted to arbitration, if the claimant (for claims brought under article 9.16.1 (a)) and the claimant or the enterprise (for claims brought under article 9.16.1 (b)) has previously submitted the same alleged breach before a judicial or administrative tribunal of the defendant, or to any other binding dispute settlement procedure.
Article 9.19. Selection of Arbitrators
1. Unless the parties agree otherwise, the Tribunal shall comprise three arbitrators: one arbitrator appointed by each of the warring parties and the third, who shall be the presiding arbitrator shall be appointed by agreement of the parties involved.
2. The Secretary-General shall appoint the arbitrator in the arbitration proceedings under this section.
3. Where a tribunal shall not be integrated within seventy-five (75) days from the date that the claim is submitted to arbitration under this section, the Secretary-General, upon request of either party, shall, after consultation with the same, the arbitrator or arbitrators not yet appointed.
4. For the purposes of article 39 of the ICSID Convention and article 7 of part C of the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator on grounds that are not nationals of:
(a) The respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) The claimant referred to in article 9.16.1 (a) may submit a claim to arbitration under this section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only on condition that the claimant's consent in writing to the appointment of each member of the Tribunal; and
(c) The claimant referred to in article 9.16.1 (b) may submit a claim to arbitration under this section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only on condition that the claimant and the enterprise consent in writing to the appointment of each member of the Tribunal.
Article 9.20. Conduct of the Arbitration
1. The parties may agree on the legal place of any arbitration under the applicable arbitral rules under article 9.16.5 (b), (c) or (d). in the absence of agreement between the warring parties, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
2. The Party not litigants may make oral or written submissions to the Tribunal regarding the interpretation of this Agreement.
3. The Tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a party (Challenger "the holder of the submission"). such submissions shall be made in English and identify its holder and any Party Government or another person or organization, apart from the holder of the submission, or provide that has provided any financial or other assistance in preparing the same.
4. Without prejudice to the power of the Tribunal to hear other objections as a preliminary issues, such as an objection that the dispute is not within the competence of the Tribunal, a Tribunal shall hear and decide any question as a preliminary objection by the respondent that as a matter of law, a claim is not submitted a claim for which an award in favour of could be issued to the applicant pursuant to article 9.26. (14)
(a) Such objection shall be submitted to the Tribunal as soon as possible after the Constitution of the Tribunal, and in no event later than the tribunal fixes the date for the respondent to submit its response to the demand (or in the case of an amendment to the request for arbitration referred to in article 9.16.6, fixes the date the Tribunal for the respondent to submit its response to the amendment).
(b) Upon receipt of an objection, the Tribunal shall suspend any proceedings on the merits, shall establish a schedule for the objection considering consistent with any schedule it has established for considering preliminary question, and any other issue a decision or award on the objection, stating the grounds.
(c) In deciding an objection under this paragraph, the Tribunal shall assume to certain factual arguments submitted by the claimant in support of any claim in the request for arbitration (or any amendment thereof) and in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to Article 18 of the UNCITRAL Arbitration rules. The Tribunal may also consider any relevant fact that is not subject to the dispute.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because it has or has not formulated an objection under this paragraph or make use of the expedited procedure set out in paragraph 5.
5. In the event that the respondent so requests within forty five (45) days after the Constitution of the Tribunal, the Tribunal shall decide on an expedited basis an objection under paragraph 4 or any objection that the dispute is not within the competence of the Tribunal. the Tribunal shall suspend any proceedings on the merits and issue by31 one hundred and fifty (150) days after the date of the request, a decision or award, stating the objection on the basis. however, if a Party requests a litigant the Tribunal hearing may take an additional 30 days to issue the decision or award. regardless of whether a hearing is requested, the Tribunal shall show a special reason, delay issuing its decision or award by an additional brief period of time, which may not exceed thirty (30) days.
6. When it decides a respondent objection under paragraph 4 or 5 shall, if deemed appropriate and justified, awarded to the winner litigants party reasonable costs and fees incurred in submitting or opposing the objection. when taking such a decision, the tribunal shall determine whether the claim of the claimant or the objection of the respondent was frivolous and shall accord to the warring parties a reasonable opportunity to present their comments.
7. The respondent does not preclude defence, as a counterclaim or countervailing duty or for any other reason that pursuant to an insurance or guarantee contract, the claimant has received or will receive indemnification or other compensation for all or part of the alleged damage.
8. A tribunal may order an interim measure of protection to preserve the rights of a combatant or with the aim of ensuring the full exercise of the competence of the Tribunal, including an order to preserve evidence in the possession or control of combatant or a party to protect the Tribunal jurisdiction. the Tribunal may not order attachment or prevent the application of a measure that is deemed to be a breach referred to in article 9.16.
9. (a) At the request of any of the Parties to the conflict, the Tribunal before the award on liability, transmit its proposed decision or award to the parties to the conflict and the Party not litigants. within sixty (60) days after such proposed decision or award only warring parties may submit written comments to the Tribunal concerning any aspect of its proposed decision or award. the Tribunal shall consider any such comments and issue its award not later than forty-five (45) days following the expiry of the period of sixty (60) days to submit comments.
(b) Subparagraph (a) shall not apply in any arbitration for which an appeal has been made available pursuant to paragraph 10.
10. If the parties are put in place a separate multilateral treaty that establishes an appellate body for purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment treaties to hear investment disputes, the Parties shall endeavour to reach an agreement that would have such appellate body review under Article 9.26 awards rendered in arbitrations commenced after that have been established the Appellate Body.
Article 9.21. Transparency of Arbitration Proceedings
1. Subject to paragraphs 2 and 4, the defendant, after receiving the following documents, shall promptly notify the Party not combatants and make available to the public:
(a) The notice of intent referred to in article 9.16.4;
(b) The request for arbitration referred to in article 9.16.6;
(c) Written pleadings, demand and explanatory notes to the Tribunal submitted by a Party combatant and any written communication submitted in accordance with article 3 and Article 9.20.2 9.25; and
(d) The minutes or transcripts of hearings of the Tribunal, when available; and
(e) Judgments, orders or awards and decisions of the Tribunal.
2. The Tribunal shall conduct hearings open to the public and shall, in consultation with the parties - the appropriate logistical arrangements. however, any opposing side which intends to use in a hearing information designated as confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the legislation of one Party, shall inform the court. the tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Nothing in this section requires a respondent to provide confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the legislation of one party or to furnish or allow access to information that it may withhold in accordance with article 21.2 Essential (Security) or article 20.5 (disclosure of information).
4. Confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the laws of a Party shall, if such information is submitted to the Tribunal shall be protected from disclosure in accordance with the following procedures:
(a) Subject to subparagraph (d), neither warring parties nor the Tribunal shall disclose to the Challenger no party or the public to any confidential business information or information that is privileged or otherwise protected from disclosure is
In accordance with the laws of a Party where the opposing side that provided the information clearly designates it in accordance with subparagraph (b);
(b) Any litigant party claiming that certain information constitutes confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the laws of a party, designate clearly to be submitted to the Tribunal;
(c) A combatant Party shall, at the same time that it submits a document containing information claimed as confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the laws of a party to submit a redacted version of the document that does not contain the information. only the redacted version shall be provided to the Party not combatants and shall be made public in accordance with paragraph 1; and
(d) The Tribunal shall decide any objection regarding the designation of Information claimed as confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the laws of a party. if the Tribunal determines that such information was not properly designated the opposing side that submitted the information may:
(i) Withdraw all or part of its submission containing such information; or
(ii) Agree to resubmit with complete and redacted documents corrected designations in accordance with the Tribunal determination and subparagraph (c).
In any case, the other party combatant shall, where necessary, resubmit to complete and redacted documents which omitted information withdrawn in accordance with subparagraph (d) (i) by the Party that submitted the first information litigants or redesignar information consistent with the designation under subparagraph (d) (ii) of the Party that submitted the first information litigants.
5. Nothing in this section requires a respondent to authorize or deny public access to information, in accordance with its legislation, should be disclosed.
Article 9.22. Applicable Law
1. Subject to paragraph 2, when a claim is submitted under article 9.16.1 (a) (i), or article 9.16.1 (b) (i) The Tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
2. A decision of the Commission declaring its interpretation of a provision of this Agreement under article 15.1.2 (Free Trade Commission) shall be binding on a tribunal established under this section, and any decision or award issued by a tribunal must be consistent with that decision of the Commission.
Article 9.23. Interpretation of Exhibits
1. If the respondent raise as a defence that the measure is alleged to be a breach within the scope of a Non-Conforming Measure contained in Annex I or Annex II, at the request of the defendant, the Tribunal shall request the interpretation of the Commission on the issue. within sixty (60) days of the delivery of the request, the Commission shall submit in writing to any decision declaring the Tribunal in its interpretation under article 15.1.2 (Free Trade Commission).
2. A decision issued by the Commission under paragraph 1 shall be binding on the Tribunal and any decision or award issued by the Tribunal must be consistent with that decision. if the Commission fails to issue such a decision within sixty (60) days, the Tribunal shall decide on the matter.
Article 9.24. Expert Reports
Without prejudice to the appointment of other kinds of experts where this is authorized by the applicable arbitration rules, the Tribunal, at the request of a party or on its own initiative litigants, unless the parties to the conflict do not accept, may appoint one or more experts to inform in writing on any factual issue concerning environmental affairs, health, safety or other scientific matters raised by a Party in a proceeding litigants, in accordance with the terms and conditions to be agreed upon between the warring parties.
Article 9.25. Accumulation of Proceedings
1. In cases in which they have been submitted to arbitration two or more claims separately in accordance with article 9.16.1, and the claims raised in a common question of fact or law and arise out of the same events or circumstances litigants, any Party may seek a consolidation order in accordance with the agreement of all parties involved, against which the order is sought cumulation, or the terms of paragraphs 2 through 10.
2. The opposing side seeking a consolidation order under this article shall deliver a written request to the Secretary-General and to all the warring parties against which the order is sought and cumulation specified therein as follows:
(a) The names and addresses of all the warring parties against which the order is sought cumulation;
(b) The nature of the order sought and cumulation;
(c) The rationale underlying the request.
3. Unless the Secretary-General within thirty (30) days after receiving a request under paragraph 2, determines that it is manifestly unfounded, a Tribunal shall be established under this article.
4. Unless all the warring parties against which the order is sought cumulation agree otherwise, the Tribunal established under this article shall be composed of three arbitrators.
(a) One arbitrator appointed by agreement of the claimants;
(b) One arbitrator appointed by the respondent; and
(c) The presiding arbitrator appointed by the Secretary-General who shall not be a national of any of the Parties.
5. If within sixty (60) days of receipt by the Secretary-General of the request made in accordance with paragraph 2, the respondent or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, at the request of any party litigants against which the order is sought cumulation, shall appoint the arbitrator or arbitrators not yet appointed. if the respondent fails to appoint an arbitrator, the Secretary-General shall appoint a national of the respondent, and if the claimants fail to appoint an arbitrator, the Secretary-General shall appoint a national of the Party not litigants.
6. In the event that the Tribunal established under this article is satisfied that have been submitted to arbitration two or more claims under article 9.16.1 which arise in a common question of fact or law, and arising 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 parties - by order:
(a) Assume jurisdiction, and hear and determine jointly, on all or part of the claims;
(b) Assume jurisdiction, 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) To instruct a tribunal established under article 9.19 to assume jurisdiction, and hear and determine jointly, on all or part of the claims, provided that:
(i) The Tribunal, at the request of any claimant previously not opposing side before that Court recover, with its original Members except to appoint the arbitrator for the claimants pursuant to paragraphs 4 and 5 (a); and
(ii) That Tribunal shall decide whether any prior hearing repeat.
7. Where a tribunal has been established under this article, that a claimant has submitted a claim to arbitration under article 9.16.1, and whose name is not mentioned in a request made under paragraph 2 may make a written request to the Tribunal that it be included applicant encualquier order under paragraph 6 and in the request shall specify:
(a) The name and address of the claimant;
(b) The nature of the order sought and cumulation;
(c) The reasons for the request. the claimant shall deliver a copy of its request to the Secretary-General.
8. The Tribunal established under this article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this section.
9. A tribunal established under article 9.19 shall not have jurisdiction to decide a claim. or a part thereof, which has assumed jurisdiction instructed or a tribunal established under this article.
10. At the request of a party litigants, a tribunal established under this article may, pending its decision under paragraph 6, provided that the proceedings of a tribunal established under article 9.19 be postponed, unless the latter Tribunal has suspended its procedures.
Article 9.26. Awards (15)
1. Where a tribunal for a final award unfavourable to the defendant, the Tribunal may award separately or in combination, only:
(a) Monetary damages and interest as appropriate;
(b) Restitution of property in which case the award shall provide that the respondent may pay monetary damages as appropriate, plus interest in lieu of restitution.
The Tribunal may also award costs and attorney fees in accordance with this section and the applicable arbitration rules.
2. Subject to paragraph 1, when a claim is submitted to arbitration under article 9.16.1 (b):
(a) The award for the restitution of property that shall provide restitution be made to the enterprise;
(b) The award granted monetary damages and interest, shall provide that the sum be paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any right that any person has in the relief under applicable domestic law.
3. A tribunal may not order a party to pay punitive damages Challenger.
4. An award made by a tribunal shall be binding only for opposing parties and only in respect of the particular case.
5. Subject to paragraph 6 and the review procedure applicable for an interim award, the opposing side abide by and comply with an award without delay.
6. The opposing side shall not seek enforcement of a final award until:
(a) In the case of a final award made under the ICSID Convention:
(i) Within one hundred and twenty (120) days from the date the award was rendered litigant and no party has requested revision or annulment of the same; or
(ii) Have concluded the revision or annulment proceedings; and
(b) In the case of a final award made under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules or the rules selected pursuant to article 9.16.5 (d):
(i) Within ninety (90) days from the date the award was rendered and no party litigant has commenced a proceeding to set aside or revised, annul it; or
(ii) A court has dismissed or allowed an application for revision or annulment of the award, revocation and this decision cannot be appealed.
7. Each Party shall provide for the enforcement of an award in its territory.
8. If the respondent fails to abide by or comply with a final award, on delivery of a request by the Party not combatant shall establish an arbitral tribunal pursuant to article 16.7 (establishment of an arbitral tribunal). the requesting party may invoke the procedures for:
(a) A determination that the failure or refusal of the terms of the final award is inconsistent with the obligations of this Agreement; and
(b) A decision to the effect that abide by the respondent or comply with the final award, in accordance with article 16.11 (preliminary report).
9. A Party may apply a litigant enforcement of an arbitration award under the ICSID Convention or the New York Convention or the Inter-American Convention regardless of whether or not commenced the procedures referred to in paragraph 8.
10. For the purposes of article 1 of the New York Convention and article I of the Inter-American Convention shall be considered a claim that is submitted to arbitration under this section, arises out of a commercial relationship or transaction.
Article 9.27. Service of Documents
Delivery of notice and other documents on a party shall be done in the place designated by it in Annex 9 (submission of documents on a Party under section B).
Section B. Definitions
Article 9.28. Definitions
For purposes of this chapter:
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights related to trade, which is part of the WTO agreement;
Written agreement means a written agreement, signed and put into effect, between the Party and a covered an investor or investment of the other party, in establishing an exchange of rights and obligations with monetary value. a unilateral act of an administrative or judicial authority, including a decree, order, a judgment, a permit, a licence or authorization issued by a Party in the exercise of its regulatory powers, shall be considered as a written agreement;
The Centre means the International Centre for Settlement of Investment Disputes (ICSID) established by the ICSID Convention;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, concluded in Panama on 30 January 1975;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington on 18 March 1965;
Respondent means the Party that is a party to an investment dispute;
Claimant means an investor of a Party that is a party to an investment dispute with the other party. for the purposes of submission of a claim to arbitration by a natural person in accordance with section B of this chapter, may submit to arbitration a natural person of nationality of a Party according to the constitution of a Party and a permanent resident of that Party. Permanent resident means a natural person who is a permanent resident in accordance with the laws of a party.
enterprise means an "enterprise" as defined in article 2.1 (definitions of general application), and a branch of an enterprise;
Enterprise of a party constituted means an enterprise or organized under the law of a Party and a branch located in the territory of a party and carrying out business activities there;
Investment means every asset owned or controlled by an investor of the same, directly or indirectly, that has the characteristics of an investment, including at least the commitment of capital or other resources, the expectation of gain or profit, and the assumption of risk. an investment may take forms that include:
(a) An enterprise;