3. A natural person possessing the nationality or citizenship of a Party may not pursue a claim against that Party under this Section.
Article 14.21. Exclusion of Claims
1. Without prejudice to the scope of any applicable exceptions, non-conforming measures, principles of international law or the disputing Party's ability to rely upon such exceptions, non-conforming measures or principles of international law during the proceedings, no claim may be brought under this Section:
(a) alleging a breach of, or otherwise invoking, Article 14.5 on the basis that another international agreement contains more favourable rights or obligations. For greater certainty, this shall not prevent a claim challenging measures of a Party, including measures taken in accordance with another international agreement, on the basis that those measures breach Article 14.5 and have resulted in loss or damage to the disputing investor;
(b) in relation to a measure that is designed and implemented to protect or promote public health (21)
(c) in relation to an investment that has been established through illegal conduct including fraudulent misrepresentation, concealment or corruption. For greater certainty, this exclusion does not apply to investments established through minor or technical breaches of law; or
(d) if the claim is frivolous or manifestly without merit.
2. If the disputing Party considers that a claim brought under this Section is covered by paragraph 1, it may submit an objection on that basis as a preliminary question in accordance with Article 14.30, without prejudice to its ability to raise such an objection at another stage in the proceedings.
Article 14.22. Consultations
1. In the event of an investment dispute referred to in Article 14.20, the disputing parties shall as far as possible resolve the dispute through consultation, with a view towards reaching an amicable settlement. Such consultations shall be initiated by a written request for consultations delivered by the disputing investor to the disputing Party.
2. With the objective of resolving an investment dispute through consultations, a disputing investor shall provide the disputing Party, prior to the commencement of consultations, with information regarding the legal and factual basis for the investment dispute.
3. For greater certainty, the initiation of consultations shall not be construed as recognition of the jurisdiction of the tribunal.
Article 14.23. Conciliation
1. If the dispute cannot be resolved within 180 days from the date of receipt by the disputing Party of the written request for consultations, the disputing Party may initiate a conciliation process, which shall be mandatory for the disputing investor, with a view towards reaching an amicable settlement. Such a conciliation process shall be initiated by a written request delivered by the disputing Party to the disputing investor.
2. The conciliation process under this Article can only be initiated by a written request delivered by the disputing Party within 180 days from the date of receipt by the disputing Party of the written request for consultations.
3. Expenses incurred in relation to the conciliation process shall be borne equally by the disputing parties. Each disputing party shall bear its own legal expenses.
Article 14.24. Claim by an Investor of a Party
1. If an investment dispute has not been resolved by consultations in accordance with Article 14.22 or conciliation in accordance with Article 14.23, in accordance with the timeframes in Article 14.26.2(a) or Article 14.26.2(b) respectively;
(a) the disputing investor, on his or her own behalf, may submit to arbitration under this Section a claim:
(i) that the disputing Party has breached an obligation under Article 14.4, Article 14.5 and Articles 14.7 through 14.12 of Section A; and
(ii) that the disputing investor has incurred loss or damage by reason of, or arising out of, that breach; and
(b) the disputing investor, on behalf of an enterprise (22)of the disputing Party that the disputing investor owns or controls directly or indirectly, may submit to arbitration under this Section a claim:
(i) that the disputing Party has breached an obligation under Article 14.4, Article 14.5 and Article 14.7 through Article 14.12 of Section A; and
(ii) that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
Article 14.25. Submission of a Claim
1. A disputing investor may submit a claim referred to in Article 14.24 to one of the following fora:
(a) if Indonesia is the disputing Party, to the courts or tribunals of that Party, provided that such court or tribunal has jurisdiction over such claim;
(b) under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings;
(c) under the ICSID Additional Facility Rules;
(d) under the UNCITRAL Arbitration Rules; or
(e) if the disputing parties agree, to any other arbitration institution or under any other arbitration rules.
2. A claim shall be deemed submitted to arbitration under this Article when the disputing investor’s notice or of request for arbitration made in accordance with this Section (“notice of arbitration”) is received under the applicable arbitration rules.
3. The arbitration rules applicable under paragraphs 1(a) through (e), as in effect on the date the claim or claims were submitted to arbitration under this Article, shall govern the arbitration except to the extent modified by this Section.
4. In the event that an investment dispute has been submitted for resolution under one of the fora provided for in paragraph 1 of this Article, the same investment dispute shall not be submitted under any other fora provided for in paragraph 1 of this Article.
5. In relation to a specific investment dispute or class of disputes, the applicable arbitration rules may be waived, varied or modified by written agreement between the disputing parties. Such rules shall be binding on the relevant tribunal or tribunals established in accordance with this Section, and on individual arbitrators serving on such tribunals.
6. The disputing investor shall provide with the notice of arbitration:
(a) the name of the arbitrator that the disputing investor appoints; or
(b) the disputing investor’s written consent for the Appointing Authority to appoint that arbitrator.
Article 14.26. Conditions and Limitations on Submission of a Claim
1. No claim shall be submitted to arbitration under this Section if more than three years and six months have elapsed from the date on which the disputing investor first acquired, or should have first acquired, knowledge of the breach alleged under Article 14.24 and knowledge that the disputing investor (for claims brought under Article 14.24(1)(a) or the enterprise (for claims brought under Article 14.24(1)(b)) has incurred loss or damage.
2. No claim shall be submitted to arbitration under this Section unless:
(a) if the disputing Party has not initiated a conciliation process in accordance with Article 14.23, at least 180 days have elapsed since the date of the receipt by the disputing Party of a request for consultations and the disputing investor has provided written notice to the disputing Party of its intent to submit the investment dispute to arbitration at least 90 days before the claim is submitted under Article 14.24; or
(b) if the disputing Party has initiated a conciliation process Article 14.23, at least 120 days has elapsed since the initiation of the conciliation and the disputing investor has provided written notice to the disputing Party of its intent to submit the investment dispute to arbitration at least 60 days before the claim is submitted under Article 14.24; and
(c) a notice of intent referred to in subparagraphs (a) and (b) briefly summarises the alleged breach of the disputing Party (including the articles or provisions alleged to have been breached) and the loss or damaged allegedly caused to the disputing investor or a covered investment.
3. No claim shall be submitted to arbitration under this Section unless:
(a) the disputing investor consents in writing to arbitration in accordance with the procedures set out in this Agreement; and
(b) the notice of arbitration is accompanied by:
(i) for claims under Article 14.24(1)(a), the disputing investor's written waiver; and
(ii) for claims under Article 14.24(1)(b), the disputing investor's and the enterprise's written waiver
of any right to initiate or continue before any court or administrative tribunal under the law of either Party, or any other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 14.24.
4. Notwithstanding paragraph 3(b), neither Party shall prevent the disputing investor from initiating or continuing an action that seeks interim measures of protection for the sole purpose of preserving its rights and interests and does not involve the payment of damages or resolution of the substance of the matter in dispute, before the courts or administrative tribunals of the disputing Party.
5. No Party shall give diplomatic protection, or bring an international claim, in respect of a dispute which has been submitted to conciliation or arbitration under this Article, unless such other Party has failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
6. A disputing Party shall not assert, as a defence counter-claim, right of set off or otherwise, that the disputing investor or the covered investment has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of any alleged loss.
Article 14.27. Selection of Arbitrators
1. Unless the disputing parties otherwise agree, the tribunal shall comprise three arbitrators:
(a) one arbitrator appointed by each of the disputing parties; and
(b) a third arbitrator, who shall be the presiding arbitrator, appointed by agreement of the disputing parties, shall be a national of a non-Party which has diplomatic relations with the disputing Party and non-disputing Party, and shall not have permanent residence in either the disputing Party or non- disputing Party.
2. Arbitrators shall have expertise or experience in public international law, international trade or international investment rules and be independent of, and not be affiliated with or take instructions from the disputing Party, the non-disputing Party or disputing investor.
3. The Appointing Authority shall serve as appointing authority for arbitration under this Article.
4. Ifa tribunal has not been constituted within 75 days from the date that a claim is submitted to arbitration under this Section, the Appointing Authority, on the request of a disputing party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed.
5. The disputing parties may establish rules relating to expenses incurred by the tribunal, including the arbitrators' remuneration.
6. If any arbitrator appointed as provided for in this Article resigns or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and the successor shall have all the powers and duties of the original arbitrator.
7. Arbitrators appointed under this Section shall comply with Annex 14-A (Code of Conduct of Arbitrators).
Article 14.28. Security for Costs
1. For greater certainty, on request of the disputing Party, the tribunal may order the disputing investor to provide security for all or a part of the costs if there are reasonable grounds to believe that the claimant risks not being able to honour a possible decision on costs issued against it.
2. If the security for costs is not provided in full within 30 days after the tribunalâs order or within any other time period set by the tribunal, the tribunal shall so inform the disputing parties and thereafter the tribunal may order the suspension or termination of the proceedings.
Article 14.29. Consolidation
Where two or more claims have been submitted separately to arbitration under Article 14.24 and the claims have a question of law or fact in common and arise out of the same or similar events or circumstances, all concerned disputing parties may agree to consolidate those claims in any manner they deem appropriate.
Article 14.30. Conduct of the Arbitration
1. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, a tribunal shall decide the matter before proceeding to the merits.
2. A disputing Party may, no later than 60 days after the constitution of the tribunal, file as a preliminary objection that a claim is excluded under Article 14.20. A disputing Party may also file an objection that a claim is otherwise outside of the jurisdiction or competence of the tribunal. The disputing Party shall specify as precisely as possible the basis for the objection. This is without prejudice to a disputing Party's ability to raise such an objection at another stage of the proceedings.
3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is excluded under Article 14.20, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect.
4. In the event that the disputing Party so requests within 60 days after the tribunal is constituted, the tribunal shall decide on an expedited basis any preliminary objection raised under this Article. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection, 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, which may not exceed 30 days.
5. Unless the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
Article 14.31. Transparency of Arbitral Proceedings
1. Subject to paragraphs 2 and 3, the disputing Party shall make publicly available all awards and decisions produced by the tribunal.
2. Any of the disputing parties that intend to use information designated as confidential information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Any information specifically designated as confidential that is submitted to the tribunal or the disputing parties shall be protected from disclosure to the public.
4. A disputing party may disclose to persons directly connected with the arbitral proceeding such confidential information as it considers necessary for the preparation of its case, but it shall require that such confidential information is protected.
5. The tribunal shall not require a Party to furnish or allow access to information the disclosure of which would impede law enforcement or would be contrary to the Party's law protecting Cabinet confidences, personal privacy or the financial affairs and accounts of individual customers of financial institutions, or which it determines to be contrary to its essential security.
6. The non-disputing Party shall be entitled, at its cost, to receive from the disputing Party a copy of the notice of arbitration, no later than 30 days after the date that such document has been delivered to the disputing Party. The disputing Party shall notify the other Party of the receipt of the notice of arbitration within 30 days thereof.
Article 14.32. Third Party Funding
1. If there is third party funding, the disputing investor benefiting from it shall notify to the disputing Party and to the tribunal, or where the tribunal is not established, to the Appointing Authority of the tribunal, the name and address of the third party funder.
2. Such notification shall be made at the time of submission of a claim, or, where the financing agreement is concluded or the donation or grant is made after the submission of a claim, without delay as soon as such agreement is concluded or the donation or grant is made.
3. If a disputing investor fails to disclose third party funding under this Article, the tribunal may order the suspension or termination of the proceedings.
Article 14.33. Governing Law
1. Subject to paragraphs 2 and 3, when a claim is submitted under Article 14.24, the tribunal shall decide the issues in dispute in accordance with this Agreement, any other applicable agreements between the Parties, any relevant rules of international law applicable in the relations between the Parties and, if applicable, any relevant domestic law of the disputing Party.
2. The tribunal shall, on its own account or at the request of a disputing party, request a joint interpretation of any provision of this Agreement that is in issue in a dispute. The Parties shall submit in writing any joint decision declaring their interpretation to the tribunal within 60 days of the delivery of the request. Without prejudice to paragraph 3, if the Parties fail to issue such a decision within 60 days, any interpretation submitted by a Party shall be forwarded to the disputing parties and the tribunal, which shall decide the issue on its own account.
3. A joint decision of the Parties, declaring their interpretation of a provision of this Agreement shall be binding on a tribunal, and any decision or award issued by a tribunal and any decision or award issued by a tribunal must be consistent with that joint decision.
Article 14.34. Awards
1. If a tribunal makes a final award against either of the disputing parties, 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 disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
2. A tribunal may also award costs and attorney's fees in accordance with this Section and the applicable arbitration rules.
3. If the tribunal determines that a claim is brought in contravention of Article 14.21 the tribunal shall make an award requiring the disputing investor to pay all costs and attorneyâs fees incurred by the disputing Party to respond to the claim, unless the tribunal considers that there are exceptional circumstances that warrant the disputing parties to bear costs in other specified proportions.
4. A tribunal may not award punitive damages.
5. Subject to paragraph 1, if a claim is submitted to arbitration under Article 14.24.1(b) and an award is made in favour of the enterprise:
(a) an award of restitution of property shall provide that restitution be made to the enterprise; and
(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise.
6. An award made by a tribunal shall be final and binding upon the disputing parties. An award shall have no binding force except between the disputing parties and in respect of the particular case.
7. Subject to paragraph 8 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
8. A disputing party may not seek enforcement of a final award until:
(a) In the case of a final award under the ICSID Convention:
(i) 120 days has elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; or
(b) In the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected in accordance with Article 14.25:
(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.
9. Each Party shall provide for the enforcement of an award in its territory.
Article 14.35. Service of Documents
1. Notices and other documents in disputes under this Section shall be served on Australia by delivery to:
Department of Foreign Affairs and Trade RG. Casey Building
John McEwen Crescent
Barton ACT 0221
161
Australia
2. Notices and other documents in disputes under this Section shall be served on Indonesia by delivery to:
Directorate General of Legal Affairs and International Treaties Ministry of Foreign Affairs
Jalan Taman Pejambon 6
10110 DKI Jakarta
Indonesia
Chapter 15. ECONOMIC COOPERATION
Article 15.1. Objectives
1. Economic cooperation under this Chapter shall be built upon a common understanding between the Parties to support the implementation of this Agreement, with the objective of maximising its benefits, supporting pathways to trade and investment facilitation, and further improving market access and openness to contribute to the sustainable inclusive economic growth and prosperity of the Parties.
2. The Parties reaffirm the importance of economic cooperation activities between them and shall seek, if possible, to minimise duplication of ongoing efforts and utilisation of resources, particularly under other trade agreements and economic cooperation programs.
Article 15.2. Scope
Economic cooperation under this Chapter shall support the effectiveness and efficiency of the implementation and utilisation of this Agreement through activities that relate to trade and investment as specified in the Annual Work Program.
Article 15.3. Committee on Economic Cooperation
1. For the purpose of effective implementation of this Chapter, and to achieve better coordination of economic cooperation activities with efficient and effective allocation and use of resources, a Committee on Economic Cooperation (the Committee) is hereby established.
2. Australia and Indonesia shall jointly chair the Committee. The membership of the Committee shall include representatives from the Committee on Trade in Goods, Committee on Trade in Services and Committee on Investment.
3. Members of the Committee shall be familiar with the scope of economic cooperation activities conducted under this Agreement and promote coherence between these activities and the work undertaken through the broader bilateral economic partnership.
4. The Committee shall meet within one year of the date of entry into force of this Agreement and, unless the Parties otherwise agree, once every year after that.
5. The functions of the Committee shall include, but not be limited to, the following:
(a) developing medium-term objectives as a guideline for the development of an annual work program of economic cooperation activities ("Annual Work Program") for consideration and approval by the Joint Committee;
(b) developing an Annual Work Program for consideration and approval by the Joint Committee, including coordinating and prioritising proposals for economic cooperation activities from the Committee on Trade in Goods, the Committee on Trade in Services and the Committee on Investment as well as their subsidiary bodies;
(c) conducting a review of the Annual Work Program from the previous year and providing a report to the Joint Committee;
(d) overseeing and reviewing the implementation of the Annual Work Program to assess its overall effectiveness and contribution to the implementation of this Agreement;
(e) working with other Committees and subsidiary bodies to establish and maintain effective communication and coordination on economic cooperation activities; and
(f) resolving issues and concerns about the implementation of the Annual Work Program as agreed by the Parties.
Article 15.4. Formulation of Annual Work Program
1. Each activity in an Annual Work Program developed under this Chapter shall: (a) be guided by the medium-term objectives, as agreed in Article 15.3.5(a);
(b) be related to trade or investment and support the implementation of this Agreement;
(c) involve both Parties;
(d) address the mutual priorities of the Parties;
(e) avoid duplicating existing economic cooperation activities; and
(f) take into consideration the economic cooperation needs as proposed and identified by other Committees.
2. In developing the Annual Work Program, the Committee shall take into account the Annual Work Program review under Article 15.3.5(c).
3. The Joint Committee may modify the Annual Work Program, taking into account the Annual Work Program review under Article 15.3.5(c), any recommendations from the Committee and available resources. The Joint Committee may modify the Annual Work Program out of session if agreed by the Parties.