(c) Issuing, trading, or dealing in securities, futures or derivatives;
(d) Criminal offences; or
(e) Financial reporting or record-keeping of transfers when necessary to assist law enforcement or financial regulatory authorities.
Article 10.12. Expropriation and Compensation (16)
1. No Party may expropriate or nationalise a covered investment, whether directly or indirectly through measures equivalent to expropriation or nationalisation (hereinafter referred to as "expropriation") unless such expropriation is carried out:
(a) For a public purpose; (17)
(b) On a non-discriminatory basis;
(c) Through payment of compensation pursuant to paragraphs 2 to 4; and
(d) Pursuant to the due process principle and Article 10.6.
2. The compensation referred to in paragraph 1 (c) must:
(a) Be paid without delay;
(b) be equivalent to the fair market value of the expropriated investment immediately prior to the expropriation taking place (hereinafter referred to as "date of expropriation");
(c) not reflect any change in value due to the intention of expropriation being known prior to the date of expropriation; and
(d) be fully realisable and freely transferable.
3. If the fair market value is set in a freely useable currency, the compensation referred to in paragraph 1 (c) shall not be less than the fair market value as at the date of expropriation, plus interest calculated at a commercially reasonable rate for that currency, from the date of expropriation until the payment date.
4. If the fair market value is set in a currency that is not freely useable, the compensation referred to in paragraph 1 (c), converted into the payment currency at the market exchange rate prevailing on the date of payment shall not be less than:
(a) The fair market value as at the date of expropriation, converted into a freely useable currency at the market exchange rate prevailing on the payment date, plus
(b) Interest, calculated at a commercially reasonable rate for that currency, from the date of expropriation until the payment date.
5. This Article does not apply to the compulsory licensing in connection to intellectual property rights, or to the revocation, limitation or creation of said rights insofar as said revocation, limitation or creation is consistent with the TRIPS Agreement. (18)
Article 10.13. Denial of Benefits
A Party may deny the benefits of this Chapter to:
(a) An investor from another Party that is an enterprise from that other Party and to the investments of said investor, if an investor of a non-Party owns or controls the enterprise and this enterprise does not conduct substantial commercial activities in the territory of the other Party;
(b) An investor of another Party that is an enterprise of that other Party and to the investments of said investor, if an investor of the Denying Party owns or controls the enterprise and this enterprise does not conduct substantial commercial activities in the territory of the other Party.
Article 10.14. Special Formalities and Information Requirements
1. Nothing in Article 10.4 shall be construed as preventing a Party from adopting or maintaining any measure that requires special formalities in relation to a covered investment, such as the requirement for investors to be residents of the Party or for covered investments to be constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the protection granted by a Party to investors of another Party and to covered investments under this Chapter.
2. Notwithstanding Articles 10.4 and 10.5, a Party may require an investor of another Party or a covered investment to provide information concerning that investment, solely for informational or statistical purposes. The Party shall prevent any disclosure of confidential information that may negatively affect the competitive position of the investor or of the covered investment. Nothing in this paragraph shall be construed as an impediment to a Party obtaining or disclosing information related to the equitable and good faith application of its law.
Section B. Dispute Resolution between a Party and an Investor from Another Party
Article 10.15. Consultation and Negotiation
1. In the event of an investment-related dispute, the Disputing Parties must first attempt to resolve the dispute through consultation and negotiation, with a view to resolving the dispute in an amicable way, which may include the use of a non-binding procedure with the involvement of third parties such as good offices, conciliation and mediation.
2. The consultation and negotiation procedure shall begin with a written request sent to the respondent which must include the information specified in Article 10.16.2 (a) and 2 (b) and a brief description of the events that gave rise to the initiation of consultation.
3. The consultations shall take place for a minimum of six months.
4. For greater certainty, the initiation of consultation and negotiation must not be construed as the recognition of the tribunal's jurisdiction.
Article 10.16. Submission of a Claim to Arbitration
1. If a dispute related to an investment has not been resolved within six months of the respondent's receipt of the written request for consultation pursuant to Article 10.15:
(a) The claimant may submit a claim for arbitration in their own name, pursuant to this Section, thereby alleging:
(i) That the respondent has breached an obligation pursuant to Section A, and
(ii) That the claimant has incurred losses or damages by virtue of said breach or as a result of such breach;
(b) The claimant, representing an enterprise of the respondent that may be a legal entity that the claimant owns or directly or indirectly controls, may submit a claim to arbitration pursuant to this Section, thereby alleging:
(i) That the respondent has breached an obligation pursuant to Section A, and
(ii) That the enterprise has incurred losses or damages by virtue of said breach or as a result of such breach.
For greater certainty, no claim may be submitted to arbitration under this Section alleging a breach of any provision of this Additional Protocol that is not an obligation of Section A.
2. Once the period established in Article 10.15.2 ends, the claimant shall deliver the respondent written Notice of Intent to submit the claim for arbitration (hereinafter referred to as "Notice of Intent") at least 90 days before submitting the claim for arbitration pursuant to this Section. In the notice, the following shall be specified:
(a) The name and address of the claimant, and in the event that the claim is submitted on behalf of an enterprise, the name and address of the enterprise and its place of incorporation;
(b) For each claim, the provisions of Section A of this Chapter that are alleged to have been breached and any other applicable provision;
(c) The factual and legal issues that each claim is based on; and
(d) The compensation sought and the approximate amount of the damages claimed.
3. The claimant may submit a claim for arbitration as referred to in paragraph 1:
(a) Pursuant to the ICSID convention and the ICSID Rules of Procedure for Arbitration Proceedings (hereinafter referred to as "Arbitration Rules"), provided that both the respondent and the Party's claimant are party to the ICSID Convention;
(b) Pursuant to the ICSID Additional Facility Rules, provided that either the respondent or the Party's claimant, but not both, is party to the ICSID Convention;
(c) Pursuant to the UNCITRAL Arbitration Rules, or
(d) If the disputing parties agree, to any other arbitration institution or pursuant to any other arbitration rule.
4. A claim shall be deemed submitted to arbitration pursuant to this Section, when the claimant's notice or request for arbitration (hereinafter referred to as "Notice of Arbitration"):
(a) Referred to in the ICSID Convention, is received by the Secretary-General;
(b) Referred to in the ICSID Additional Facility Rules, is received by the Secretary-General;
(c) Referred to in the UNCITRAL Arbitration Rules, is received by the respondent, together with the statement of claim pursuant to said regulations; or
(d) Referred to by any other arbitration institution or under any arbitration rules selected pursuant to paragraph 3 (d), is received by the respondent.
5. A claim asserted by the claimant for the first time after the Notice of Arbitration has been submitted shall be deemed submitted to arbitration under this Section, on the date of its receipt pursuant to the applicable arbitration rules.
6. The arbitration rules applicable under paragraph 3 and in force on the date the claim or claims were submitted to arbitration pursuant to this Section, shall govern arbitration except to the extent modified or complemented by this Additional Protocol.
7. The claimant shall provide with the Notice of Arbitration referred to in paragraph 4:
(a) The name of the arbitrator that the claimant appoints, or
(b) The claimant's written consent for the Secretary-General to appoint the arbitrator.
Article 10.17. Consent of Each Party to Arbitration
1. Each Party consents to the submission of a claim to arbitration pursuant to this Section in accordance with this Additional Protocol.
2. The consent referred to in paragraph 1 and the submission of a claim to arbitration pursuant to this Section must comply with the requirements specified in:
(a) Chapter Il of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules, which require the written consent of the parties to the dispute;
(b) Article Il of the New York Convention, which requires a "written agreement"; and
(c) Article I of the Inter-American Convention, which requires an "agreement."
Article 10.18. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration pursuant to this Section if more than three years have elapsed from the date on which the claimant knew, or ought to have known of the breach alleged under Article 10.16.1, and that the claimant, based on the claims initiated by virtue of Article 10.16.1 (a), or the enterprise, based on the claims initiated by virtue of Article 10.16.1 (b), incurred loss or damage.
2. No claim may be submitted to arbitration pursuant to this Section unless: (a) The claimant provides written consent to arbitration, pursuant to the procedures described in this Additional Protocol, and
(b) The Notice of Arbitration referred to in Article 10.16.4 is accompanied:
(i) For claims submitted to arbitration under Article 10.16.1 (a), by the claimant's written waiver;
(ii) For claims submitted to arbitration under Article 10.16.1 (b), by the written waivers of the claimant and the enterprise,
of any right to initiate before any judicial or administrative tribunal pursuant to the law of any of the Parties, or other dispute resolution procedures, any action concerning deeds or measures alleged to be a breach of the measures referred to in Article 10.16.
3. Notwithstanding paragraph 2 (b), the claimant, based on claims initiated under 10.16.1 (a), and the claimant or the enterprise, based on claims initiated under 10.16.1 (b), may initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages, before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of upholding the rights and interests of the claimant or the enterprise while the arbitration is pending.(19)
4. No claim may be submitted to arbitration pursuant to this Section if the claimant, in the case of claims submitted under Article 10.16.1 (a), or the claimant or the enterprise, in the case of claims submitted under Article 10.16.1 (b), have previously submitted a claim of the same alleged breach before an administrative or judicial court of the respondent, or any other binding dispute resolution procedure. For greater certainty, if an investor chooses to submit a claim of the aforementioned type before a judicial or administrative tribunal of the respondent, that decision shall be final and the investor may not later submit the claim to arbitration pursuant to this Section.
Article 10.19. Selection of Arbitrators
1. Unless the Disputing Parties agree otherwise, the tribunal shall be made up of three arbitrators, one arbitrator appointed by each of the disputing parties and the third, the president, shall be appointed by agreement of the disputing parties.
2. The arbitrators must have experience in public international law, international investment rules, or dispute resolution for international investment agreements; they must not depend on either of the Parties or the claimant, nor receive instructions from either of them.
3. The Secretary-General shall serve as appointing authority for the arbitrators in arbitration under this Section.
4. When a tribunal is not formed within 90 days from the date on which the claim is submitted to arbitration pursuant to this Section, the Secretary-General, at the request of either of the Disputing Parties, shall appoint, at its discretion, the arbitrator or arbitrators that have not yet been appointed. Unless the disputing parties agree otherwise, the president of the tribunal should not be a national of either of the Disputing Parties.
5. For the purposes of Article 39 of the ICSID Convention and Article 7 of Part C of the ICSID Additional Facility Rules, and notwithstanding the objection to an arbitrator on grounds other than nationality: (a) The respondent accepts the appointment of each of the tribunal members established pursuant to the ICSID Convention or to the ICSID Additional Facility Rules;
(b) The respondent referred to in Article 10.16.1 (a) may submit a claim to arbitration pursuant to this Section, or continue a claim pursuant to the ICSID Convention or the ICSID Additional Facility Rules, on the sole condition that the claimant expresses written consent to the appointment of each of the tribunal members, and
(c) The claimant referred to in 10.16.1 (b) may submit a claim to arbitration pursuant to this Section, or continue a claim pursuant to the ICSID Convention and the ICSID Additional Facility Rules, on the sole condition that the claimant and the enterprise express written consent to the appointment of each of the tribunal members.
Article 10.20. Conduct of the Arbitration
1. The Disputing Parties may agree on the legal place where any arbitration should take place pursuant to the applicable arbitral rules pursuant to Article 10.16.3. If the Disputing Parties fail to reach agreement, the tribunal shall determine the place pursuant to the applicable arbitral rules, provided that the place shall be located in the territory of a State that is party to the New York Convention.
2. A non-Disputing Party may make oral or written submissions to the tribunal in relation to the interpretation of this Additional Protocol.
3. Following consultation with the Disputing Parties, the tribunal shall be authorised to accept and consider amicus curiae submissions that may assist the tribunal in the determination of factual and legal issues related to the scope of the dispute.
4. The communications must be made in writing and in Spanish, unless the Disputing Parties agree otherwise, and they must identify the author of the submission and any Party or other government, person or organisation, other than the author of the submission, that has provided or that shall provide any assistance of a financial nature or otherwise in the preparation of the submission. Additionally, the author of the submission must make it known if he or she has any direct or indirect affiliation with either of the Disputing Parties; and the nature of the interest that he or she has in the dispute must be specified.
5. When said communications are admitted by the tribunal, it must accord the Disputing Parties an opportunity to respond to such submissions.
6. Notwithstanding the tripunal's power to hear other objections as preliminary issues, such as an objection that the dispute is not within the jurisdiction of the tribunal, the tribunal shall hear and consider as a preliminary issue any objection of the respondent that, as a matter of law, indicates that the claim filed is not a claim for which an award can be made to the claimant pursuant to Article 10.26.(20)
(a) Said objection shall be presented to the tribunal as soon as practicable after its constitution, and under no circumstances any later than the date the tribunal has set for the respondent to enter a plea to the claim, or in the event of a modification to the Notice of Arbitration, referred to in Article 10.16.4, the date the tribunal sets for the respondent to enter a response to the modification.
(b) On receipt of an objection pursuant to this paragraph, the tribunal shall adjourn any proceedings on the substance of the dispute, and establish a schedule for the consideration of the objection that shall be consistent with any schedule which has been established for the consideration of any other preliminary issue and it shall issue a decision or award on the objection stating the legal grounds therefor.
(c) Upon making a decision on an objection pursuant to this paragraph, the tribunal shall assume the factual allegations presented by the claimant to be true in support of any claim in the Notice of Arbitration, or any modification thereof, and in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in the relevant article of the UNCITRAL Arbitration Rules. The tribunal may also consider any other relevant facts that are not in dispute.
(d) The respondent does not waive any objection as to jurisdiction or to any substantive argument merely because the respondent did or did not raise an objection under this paragraph or make use of the expedited procedure described in paragraph 7.
7. In the event that the respondent so requests, within 45 days of the date of the tribunal's constitution, the tribunal shall make a decision in a timely manner on an objection pursuant to paragraph 6 and any other objection that the dispute is not within the tribunal's jurisdiction. The tribunal shall adjourn any action on the substance of the dispute and issue a decision or award based on said objection, stating the legal grounds therefor, no later than 150 days after the request date. However, if a Disputing Party requests a hearing, the tribunal may take 30 additional days to issue the decision or award. Regardless of whether a hearing has been requested, under extraordinary circumstances, the tribunal may delay the issue of a decision or award for a brief additional period which may not exceed 30 days.
8. When the tribunal makes a decision on the objection of a respondent pursuant to paragraphs 6 or 7, it may, if justified, grant the prevailing party of the dispute reasonable costs and fees that it may have incurred by raising an objection or opposing one. Upon determining if such an award is justified, the tribunal shall consider if the claimant's claim or the respondent's objection were frivolous, and it shall grant the Disputing Parties a reasonable opportunity to comment.
9. The respondent shall not assert as a defence, counterclaim, countervailing duty, or for any other reason, that the claimant has received or shall receive indemnification or other compensation for all or part of the alleged damages, pursuant to an insurance or guarantee contract.
10. The tribunal may recommend an interim measure to protect the rights of a Disputing Party, or with the objective of guaranteeing the full exercise of the tribunal's jurisdiction, including an order to preserve the evidence that is in the possession or control of a Disputing Party and to protect the tribunal's jurisdiction. The tribunal may not order the attachment or prevent the application of a measure that is alleged to constitute a breach as mentioned in Article 10.16. For the purposes of this paragraph, an order includes a recommendation.
11. At the request of any of the Disputing Parties, before issuing a decision or award on liability, the tribunal shall communicate its proposed decision or award to the Disputing Parties and the non-Disputing Party. Within 60 days of communicating such proposed decision or award, the Disputing Parties may submit written comments to the tribunal concerning any aspect of its proposed award. The tribunal shall consider said comments and shall issue its decision or award no later than 45 days after the expiration of the 60-day comment period. This paragraph shall not apply to any arbitration in which an appeal is available by virtue of paragraph 12.
12. If a separate, multilateral agreement enters into force between the Parties that establishes an appellate body with the objective of reviewing awards issued by tribunals constituted pursuant to international trade or investment agreements to hear investment disputes, the Parties shall analyse the possibility of reaching an agreement that considers such appellate body for the review of awards issued pursuant to Article 10.26 in arbitrations initiated after the multilateral treaty between the Parties enters into force.
Article 10.21. Transparency of Arbitral Proceedings
1. Subject to paragraphs 2 and 4, the respondent shall, after receiving the following documents, deliver them without delay to the Non-Disputing Parties and make them publicly available:
(a) The Notice of Intent referred to in Article 10.16.2;
(b) The Notice of Arbitration referred to in Article 10.16.4;
(c) The allegations, statements of claim and briefs presented to the tribunal by a Disputing Party and any written submission made pursuant to Article 10.20.2 and 10.20.3 and Article 10.25;
(d) The minutes or transcriptions of the tribunal hearings, where available; and (e) The tribunal orders, awards and decisions.
2. The tribunal shall conduct hearings open to the public and shall determine, in consultation with the Disputing Parties, the appropriate logistical arrangements. However, any Disputing Party that intends to use information classified as protected information in a hearing shall so advise the tribunal. The tribunal shall make the appropriate arrangements to protect information from disclosure, including closing the hearing during any discussion of confidential information.
3. Nothing in this Section requires the respondent to make protected information available or provide or allow access to information that it may withhold pursuant to Article 18.3 (Essential Security) or Article 18.5 (Information Disclosure).
4. Any protected information that is submitted to the tribunal shall be protected from disclosure pursuant to the following procedures:
(a) In accordance with subparagraph (d), neither the Disputing Parties nor the tribunal shall disclose to the Non-Disputing Party or the public any protected information, where the Disputing Party providing the information clearly designates it as such pursuant to subparagraph (b);
(b) Any Disputing Party claiming that certain information constitutes protected information, shall clearly designate it as such when it is submitted to the tribunal;
(c) A Disputing Party shall, when submitting a document that contains information claimed to be protected information, at the same time submit an edited version of the document that does not contain that information. Only the edited version shall be provided to the non-Disputing Parties and made public pursuant to paragraph 1, and
(d) The tribunal shall make a decision on any objection regarding the designation of information claimed to be protected information. If the tribunal determines that said information was not appropriately designated, the Disputing Party that submitted the information may:
(i) Withdraw all or part of the submission that contains such information, or
(ii) Agree to re-submit the full documents edited with corrected designations pursuant to the tribunal's determination and subparagraph (c).
In either case, the other Disputing Party must, as appropriate, resubmit full and edited documents, which either remove the information withdrawn by the Disputing Party that first submitted the information pursuant to subparagraph (d)(i) or redesignate the information consistently with the designation made pursuant to subparagraph (d)(ii) by the Disputing Party that first submitted the information.
5. Nothing in this Section requires the respondent to withhold from the public information required to be disclosed by its law.
Article 10.22. Governing Law
1. Subject to paragraph 2, when a claim is presented under Article 10.16.1 (a) or 10.16.1 (b), the tribunal shall decide the issues in dispute pursuant to this Additional Protocol and the applicable rules of international law.
2. A decision by the Free Trade Commission declaring its interpretation of a provision of this Additional Protocol, pursuant to Article 16.2 (Functions of the 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.
Article 10.23. Interpretation of the Annexes of Non-Conforming Measures
1. When a respondent asserts as a defence that the measure alleged to be a breach is within the scope of application set out in Annex I or Annex II, the tribunal shall, at the request of the respondent, request the Free Trade Commission's interpretation on the issue. The Free Trade Commission shall submit in writing any decision declaring its interpretation under Article 16.2.2 (c) to the tribunal within 60 days of delivery of the request.
2. A decision issued by the Free Trade 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 Free Trade Commission fails to issue such a decision within 60 days, the tribunal shall decide on the issue.
Article 10.24. Expert Reports
Notwithstanding the appointment of other kinds of experts where authorised by the applicable arbitration rules, a tribunal, at the request of a Disputing Party or, unless the Disputing Parties disapprove, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue related to environmental, health, safety or other scientific matters that a Disputing Party has raised in proceedings, pursuant to the terms and conditions agreed by the Disputing Parties.
Article 10.25. Consolidation of Proceedings
1. Where two or more separate claims have been submitted to arbitration under Article 10.16.1, and the claims have a question of law or fact in common and arise from the same events or circumstances, any Disputing Party may seek a consolidation order, subject to agreement of all Disputing Parties sought to be covered by the consolidation order or the terms of paragraphs 2 to 10.
2. The Disputing Party that seeks a consolidation order under this Article shall deliver a written request to the Secretary-General and to all the Disputing Parties sought to be covered by the consolidation order and in the request it shall specify: (a) The names and addresses of all Disputing Parties sought to be covered by the consolidation order;
(b) The nature of the consolidation order sought; and (c) The grounds on which the order is sought.
3. Unless the Secretary-General determines, within 30 days of the receipt of a request under paragraph 2, that the request is manifestly unfounded, a tribunal shall be established under this Article.
4. Unless all the Disputing Parties sought to be covered by the consolidation order agree otherwise, the tribunal established under this Article shall comprise 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 Disputing Parties.
5. If within 60 days of the Secretary-General's receipt of the request made under paragraph 2, the respondent or claimants have not appointed an arbitrator pursuant to paragraph 4, the Secretary-General, at the request of any Disputing Party sought to be covered by the consolidation order, shall appoint the arbitrator or arbitrators not yet appointed. If the respondent does not appoint an arbitrator, the Secretary-General shall appoint a national of the respondent, and if the claimants do not appoint an arbitrator, the Secretary-General shall appoint a national of a party other than that of the respondent.
6. Where a tribunal established under this Article has found that two or more claims submitted to arbitration under Article 10.16.1 have a question of law or fact in common and arise from the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the Disputing Parties, by order:
(a) Assume jurisdiction over, and hear and jointly determine all or part of the claims;
(b) Assume jurisdiction over, and hear and determine one or more claims, the determination of which is considered to contribute to the resolution of the others; or
(c) Instruct a tribunal established under Article 10.19 to assume jurisdiction over, and to hear or jointly determine, all or part of the claims, provided that:
(i) That tribunal, at the request of any claimant that has not previously been a Disputing Party before that tribunal, shall be reconstituted with its original members, except that the arbitrator for the claimants shall be appointed pursuant to subparagraph 4 (a) and paragraph 5, and