9. The Contracting Party which is not the disputing Party may, upon written notice to the disputing parties, make submissions to the arbitral tribunal on a question of interpretation of this Agreement. The disputing Party may make comments concerning the said interpretation.
10. The arbitral tribunal may award only:
(a) A judgment whether or not there has been a breach by the disputing Party of any obligation under this Agreement with respect to the disputing investor and its investments; and
(b) One or both of the following remedies, only if there has been such a breach:
(i) Monetary damages and applicable interest; and
(ii) Restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest, in lieu of restitution.
The arbitral tribunal may also award cost and attorney's fees in accordance with applicable arbitration rules.
The arbitral tribunal shall not award punitive damages.
11. The disputing Party may make available to the public in a timely manner all documents, including an award, submitted to, or issued by, an arbitral tribunal established under paragraph 4, subject to redaction of:
(a) Confidential business information;
(b) Information which is privileged or otherwise protected from disclosure under the applicable laws and regulations of either Contracting Party; and
(c) Information which shall be withheld pursuant to the relevant arbitration rules.
12. Unless the disputing parties agree otherwise, the arbitration shall be held in a country that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958 (hereinafter referred to in this Article as "the New York Convention").
13. The disputing Party may not assert as a defence, counterclaim, right of set-off or for any other reason, that the disputing investor has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
14. The award rendered by the arbitral tribunal shall be final and binding upon the disputing parties. This award shall be executed in accordance with the applicable laws and regulations, as well as relevant international law including the ICSID Convention and the New York Convention, concerning the execution of award in force in the country where such execution is sought.
15. No measures of constraint, such as attachment, arrest or execution, in connection with an arbitration referred to in paragraph 4 or any proceeding before a court of a State other than the disputing Party with respect to the award of that arbitration, shall be taken, before or after that award, against the property of the disputing Party in use or intended for use for government non-commercial purposes.
The following categories, in particular, of property of the disputing Party shall be considered as property in use or intended for use by the disputing Party for government non-commercial purposes under this paragraph:
(a) Property, including any bank accounts, which is used or intended for use in the performance of the functions of the diplomatic mission of the disputing Party or its consular posts, special missions, missions to international organisations, or delegations to organs of international organisations or to international conferences;
(b) Property of a military character or used or intended for use in the performance of military functions;
(c) Property of the central bank or other monetary authority of the disputing Party;
(d) Property forming part of the cultural heritage of the disputing Party or part of its archives and not placed or intended to be placed on sale; and
(e) Property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.
Article 17. Settlement of Dispute between the Contracting Parties
1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall be as far as possible settled through consultation between the Contracting Parties.
2. If the dispute is not satisfactorily adjusted within six months from the receipt of the notification of the dispute, it shall be submitted, at the request of either Contracting Party, to an Arbitral Tribunal in accordance with the provisions of this Article.
3. The Arbitral Tribunal shall be constituted in the following way: each Contracting Party shall appoint an arbitrator and these two arbitrators shall agree upon a national of a non-Contracting Party to be appointed as President of the Arbitral Tribunal. The arbitrators shall be appointed within three months and the President within five months from the date of receipt by either Contracting Party from the other Contracting Party of a note requesting arbitration of the dispute.
4. If within the period specified in paragraph 3 the necessary appointment of the third arbitrator has not been made, the Contracting Parties shall, unless otherwise agreed, 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 either Contracting Party or if he or she is otherwise prevented from discharging the said 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 either Contracting Party or if he or she is also prevented from discharging the said function, the member of the International Court of Justice next in seniority who is not a national of either Contracting Party shall be invited to make the necessary appointment.
5. The Arbitral Tribunal shall issue its decision on the basis of the provisions of this Agreement and rules and principles of international law.
6. Unless the Contracting Parties agree otherwise, the Arbitral Tribunal shall within a reasonable period of time reach its decision by a majority of votes and that decision shall be final and binding on both Contracting Parties.
7. Each Contracting Party shall bear the expenses of the arbitrator appointed by it and those connected with representing it in the arbitral proceeding. The other expenses, including those of the President, shall be borne in equal parts by the two Contracting Parties.
Article 18. Taxation
1. Nothing in this Agreement shall affect the rights and obligations of either Contracting Party under tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency.
2. An arbitral tribunal established under Article 16 shall not have the authority for interpretation or application of the tax laws of either Contracting Party.
Article 19. Health, Safety and Environmental Measures and Labour Standards
Each Contracting Party shall refrain from encouraging investments by investors of the other Contracting Party by relaxing its health, safety or environmental measures, or by lowering its labour standards. To this effect, each Contracting Party should not waive or otherwise derogate from such measures or standards as an encouragement for the establishment, acquisition or expansion in its Territory of investments by investors of the other Contracting Party.
Article 20. Denial of Benefits
1. A Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of the other Contracting Party and to its investments if the enterprise is owned or controlled by an investor of a non-Contracting Party and the denying Contracting Party:
(a) Does not maintain diplomatic relations with the non-Contracting Party; or
(b) Adopts or maintains measures with respect to the non-Contracting Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investments.
2. Subject to prior notification and consultation, a Contracting Party may deny the benefits of this Agreement to an investor of the other Contracting Party that is an enterprise of the other Contracting Party and to its investments if the enterprise is owned or controlled by an investor of a non-Contracting Party and the enterprise has no substantial business activities in the Territory of the other Contracting Party.
Article 21. General and Security Exceptions
1. Subject to the requirement that such measures are not applied by a Contracting Party in a manner which would constitute a means of arbitrary or unjustifiable discrimination against, or a disguised restriction on investors of the other Contracting Party and their investments in the Territory of the former Contracting Party, nothing in this Agreement shall be construed so as to prevent the former Contracting Party from adopting or enforcing measures:
(a) Necessary to protect human, animal or plant life or health;
(b) Necessary to protect public morals or to maintain public order, provided that the public order exception may only be invoked where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society;
(c) Necessary to secure compliance with the laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) The prevention of deceptive and fraudulent practices or to deal with the effects of a default on contract;
(ii) The protection of the privacy of the individual in relation to the processing and dissemination of personal data and the protection of confidentiality of personal records and accounts; or
(iii) Safety; or
(d) Imposed for the protection of national treasures of artistic, historic or archaeological value.
2. Notwithstanding any other provisions in this Agreement other than the provisions of Article 10 and paragraph 15 of Article 16, each Contracting Party may take any measure:
(a) Which it considers necessary for the protection of its essential security interests:
(i) Taken in time of war, or armed conflict, or other emergency in that Contracting Party or in international relations; or
(ii) Relating to the implementation of national policies or international agreements respecting the non-proliferation of weapons; or
(b) In pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 22. Application of the Agreement
This Agreement shall also apply to all investments of investors of either Contracting Party made in the Territory of the other Contracting Party in accordance with the laws and regulations of that other Contracting Party prior to the entry into force of this Agreement. However, this Agreement shall not apply to the disputes which occurred before its entry into force.
Article 23. Final Provisions
1. Each Contracting Party shall send through diplomatic channels to the other Contracting Party the notification confirming that its internal procedures necessary for the entry into force of this Agreement have been completed. This Agreement shall enter into force on the thirtieth day after the date of receipt of the latter notification.
2. This Agreement shall remain in force for a period of ten years and shall continue in force unless terminated as provided in paragraph 3.
3. A Contracting Party may, by giving one year's advance notice in writing to the other Contracting Party, terminate this Agreement at the end of the initial ten year period or at any time thereafter.
4. Upon the request of either Contracting Party, the Contracting Parties shall undertake a review of this Agreement, with a view to further promoting investment between the Contracting Parties.
5. In respect to investments made prior to the date of termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten years from the date of termination of this Agreement.
6. The Annex to this Agreement shall form an integral part of this Agreement.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE in duplicate at Rabat, on this eighth day of January, 2020 in the Japanese, Arabic and English languages, all texts being equally authentic. In case of divergence of interpretation the English text shall prevail.
FOR THE GOVERNMENT OF JAPAN:
Suzuki Keisuke
FOR THE GOVERNMENT OF THE KINGDOM OF MOROCCO:
Mohcine Jazouli
Attachments
Annex. Referred to in Article 9 Expropriation and Compensation
1. The Contracting Parties confirm their shared understanding that paragraph 1 of Article 9 is intended to reflect customary international law concerning the obligation of States with respect to expropriation.
2. Paragraph 1 of Article 9 addresses the following two situations:
(a) The first situation is direct expropriation where investments are nationalised or otherwise directly expropriated through formal transfer of title or outright seizure; and
(b) The second situation is indirect expropriation where a measure or a series of measures of a Contracting Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
3. The determination of whether a measure or a series of measures of a Contracting Party, in a specific fact situation, constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(a) The economic impact of the measure or series of measures, although the fact that such measure or series of such measures has an adverse effect on the economic value of investments, standing alone, does not establish that an indirect expropriation has occurred;
(b) The extent to which the measure or series of measures interferes with distinct and reasonable expectations arising out of investments; and
(c) The character of the measure or series of measures, including the duration of such measure, whether such measure is non-discriminatory and whether such measure is disproportionate with regard to the public interest purpose.
4. Except in rare circumstances, such as when a measure or a series of measures of a Contracting Party is extremely severe or disproportionate in light of its purpose, non-discriminatory measures of a Contracting Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriation.