(ii) That tribunal shall decide whether any prior hearing should be repeated.
7. Where the tribunal has been established under this Article, a claimant that has submitted a claim to arbitration under Article 10.16.1, and that has not been named in a request made under paragraph 2, may make a written request to the tribunal that it may be included in any order made under paragraph 6 and shall specify in the request:
(a) The name and address of the claimant;
(b) The nature of the consolidation order sought; and
(c) The grounds on which the order is sought. The claimant shall deliver a copy of its request to the Secretary-General.
8. A tribunal established under this Article shall conduct the proceedings pursuant to the provisions of the UNCITRAL Arbitration Regulations, except as modified by this Section.
9. A tribunal established under Article 10.19 shall not have jurisdiction over the resolution of a claim, or part of a claim, over which a tribunal or established instructed under this Article has assumed jurisdiction.
10. On application of a Disputing Party, a tribunal established under this Article, pending its decision under paragraph 6, may order that the proceedings of a tribunal established under Article 10.19 be deferred, unless the latter tribunal has already adjourned its proceedings.
Article 10.26. Awards
1. When a tribunal issues a final award against a respondent, the tribunal may only award, separately or jointly:
(a) Monetary damages and applicable interest, and
(b) Restitution of property, in which case the award shall provide that the respondent may pay monetary damages, and any applicable interest in lieu of restitution.
A tribunal may also award costs and legal fees pursuant to this Section and the applicable Arbitration Rules.
2. The liability between the Disputing Parties for the assumption of costs, including, where appropriate, the court costs under Article 10.20, resulting from participation in arbitration, must be established: (a) By the arbitral institution before which the claim was submitted for arbitration, pursuant to its procedural rules, or
(b) Pursuant to the procedural rules agreed by the Disputing Parties, where appropriate.
3. For greater certainty, when a claim is submitted to arbitration under Article 10.16.1 (a), by virtue of said provision, the claimant may only claim losses or damages incurred by the claimant as an investor in respect of an investment that the investor intends to make, is making or has made in the territory of the respondent.
4. Subject to paragraph 1, where a claim is submitted to arbitration under Article 10.16.1 (b):
(a) The award of restitution of property shall provide that the restitution be made to the enterprise;
(b) The award of monetary damages and any applicable 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 may have to the compensation under applicable domestic law.
5. A tribunal may not award punitive damages.
6. The award issued by a tribunal shall not be binding except between the Disputing Parties and solely in terms of the specific case.
7. Subject to paragraph 8 and the applicable review procedure for an interim award, the Disputing Party shall abide by and comply with the award without delay.
8. The Disputing Party may not seek the enforcement of the final award until:
(a) In the case of a final award being issued under the ICSID Convention:
(i) 120 days have elapsed from the issuing of the award and no Disputing Party has sought the revision or annulment of the award, or
(ii) The revision or annulment proceedings have been completed, and
(b) In the case of a final award issued pursuant to the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules or the rules selected pursuant to Article 10.16.4 (d):
(i) 90 days have elapsed from the issuing of the award and no Disputing Party has initiated revision, revocation or annulment proceedings, or
(ii) A tribunal has dismissed or admitted a request for revision, revocation or annulment of the award and there is no further appeal.
9. Each Party shall provide for the due enforcement of an award within their territory.
10. If the respondent fails to comply with or abide by a final award, on delivery of a request by the Party of the claimant, a Panel of Arbitrators shall be established under Article 17.7 (Establishment of a Panel of Arbitrators). In said proceedings, the requesting Party may seek:
(a) A determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Additional Protocol, and
(b) Pursuant to Article 17.15 (Draft Award of Panel of Arbitrators), a recommendation that the respondent abide by or comply with the final award.
11. A Disputing Party may seek enforcement of an arbitral award pursuant to the ICSID Convention, the New York Convention if both Parties are party to said agreements, or the Inter-American Convention, regardless of whether the proceedings covered by paragraph 10 have been initiated.
12. For the purposes of Article | of the New York Convention and Article I of the Inter-American Convention, a claim submitted to arbitration pursuant to this Section shall be considered to arise out of a commercial relationship or transaction.
Article 10.27. Service of Documents
Delivery of notice and other documents shall be made to each Party at the location designated in Annex 10.27.
Section C. Complementary Provisions
Article 10.28. Relation to other Sections
This Section is not subject to the dispute resolution mechanism of Section B of this Chapter, nor is it subject to the dispute resolution mechanism of Chapter 17 (Dispute Resolution). For greater certainty, nothing in this Section may be used by an investor as a substance of the dispute nor may it be used by a Panel of Arbitrators as part of its considerations for any decision or award that it may issue.
Article 10.29. Promotion of Investments
The Parties reaffirm the importance of supporting the investment promotion activities carried out through each Party's investment promotion organisations.
Article 10.30. Social Responsibility Policies
1. The Parties recognise the importance of encouraging enterprises that operate in their territories and that are subject to their jurisdiction to apply policies concerning sustainability and social responsibility and policies that promote the development of the host country's investment.
2. Each Party shall encourage the enterprises that operate within their territory or that are subject to their jurisdiction to voluntarily incorporate internationally-recognised standards of corporate social responsibility into their policies, such as declarations of principles that have been approved or that are supported by the Parties. The Parties shall remind those enterprises of the importance of incorporating said standards of corporate social responsibility into their domestic policies, including among others, human rights, labour rights, environmental considerations, anti-corruption practices, consumer rights, science and technology, competition and taxation.
3. Taking into account the OECD Guidelines for Multinational Enterprises from the Organisation of Economic Cooperation and Development, the Parties undertake to identify and share best practices implemented by the Parties to implement the commitments of the Guidelines and in doing so, maximise the contribution of multinational enterprises to sustainable development.
Article 10.31. Investment and Measures Related to Health, the Environment and other Regulatory Objectives
1. Nothing in this Chapter shall be construed as an impediment to a Party adopting, maintaining or enforcing any measure, otherwise consistent with this Chapter that it considers appropriate for ensuring that investments made in its territory are made with regard to health, environmental and other regulatory objectives.
2. The Parties recognise that it is not sufficient to encourage investment by relaxing domestic policies on health, the environment and other regulatory objectives. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from such measures as a means of incentivising the establishment, purchase, expansion or maintenance of the investment by an investor in the Party's territory.
Article 10.32. Implementation
The Parties shall consult with each other annually or otherwise agreed to review the implementation of this Chapter and consider investment items of mutual interest, including amongst others, the extent to which the private sector takes advantage of the commitments established in this Chapter.
Article 10.33. Joint Committee on Investment and Services
1. The Parties establish a Joint Committee that shall be made up of the Investment Subcommittee and the Services Subcommittee.
2. This Joint Committee has the objective of monitoring the implementation and administration of Chapter 9 (Cross-Border Service Trade) and of this Chapter, and to discuss related matters that are of interest to the Parties through the exchange of information and cooperation on these matters.
3. The Joint Committee shall be comprised of:
(a) In the case of Chile, the General Directorate of International Economic Relations of the Ministry of Foreign Affairs, or its successor;
(b) In the case of Colombia, the Vice-Ministry of Foreign Trade of the Ministry of Trade, Industry and Tourism, or its successor;
(c) In the case of Mexico, the Bureau of Foreign Trade of the Ministry of Economy, or its successor; and
(d) In the case of Peru, the Vice-Ministry of Foreign Trade of the Ministry of Foreign Trade and Tourism, or its successor.
4. The Joint Committee shall meet at the request of any Party or of the Free Trade Commission, and shall issue recommendations on the matters falling within its jurisdiction.
5. The Investment and Services Subcommittees shall be comprised by expert representatives from the competent authority or authorities of each Party and they shall determine their own procedural rules to carry out their functions.
Investment Subcommittee
6. The Investment Subcommittee shall have the following functions:
(a) Sharing information and promoting cooperation on matters related to investment and the improvement of the investment climate between the Parties;
(b) Discussing any other matter related to the investment climate between the Parties, including the involvement of the private sector where appropriate;
(c) Making proposals to the Joint Committee so that this subcommittee may operate more effectively or achieve its objectives; and
(d) Discussing any other investment-related matter. Services Subcommittee
7. The functions of the Services Subcommittee are established in Article 9.15 (Services Subcommittee).
Annex 10.6. CUSTOMARY INTERNATIONAL LAW
The Parties confirm their shared understanding that "customary international law," as referred to in Article 10.6, results from a general and consistent practice of States, which they follow from a sense of legal obligation. In terms of Article 10.6, the minimum standard of treatment of foreigners pursuant to customary international law refers to all customary international law principles that protect the economic rights of foreigners.
Annex 10.11. TRANSFERS
With respect to Article 10.11, the Parties agree to the following:
1. In the case of the Republic of Chile and the Republic of Colombia, in relation to transfers related to investments made or that may be made by investors of one Party in the territory of another Party, the application and interpretation of Article 10.11 shall be subject to Annex 9-B (Payments and Transfers) of the Chapter on Investment of the Free Trade Agreement signed between both Parties, in Santiago, Chile, on 27 November 2006, as an Additional Protocol to the Economic Complementation Agreement (ECA) N° 24 entered into by those Parties.
2. In the case of the Republic of Chile and the United Mexican States, in relation to transfers related to investments made or that may be made by investors of one Party in the territory of another Party, the application and interpretation of Article 10.11 shall be subject to Annex 9-10 (Transfers) of the Chapter on Investment of the Free Trade Treaty signed between both Parties, in Santiago, Chile, on 17 April 1998.
3. In the case of the Republic of Chile and the Republic of Peru, in relation to transfers related to investments made or that may be made by investors of one Party in the territory of another Party, the application and interpretation of Article 10.11 (Transfers) shall be subject to Annex 11-C (Payments and Transfers) of the Chapter on Investment of the Free Trade Agreement signed between both Parties in Lima, Peru on 22 August 2006, which modifies and substitutes the ECA N° 38 entered into by those two parties.
Annex 10.12. EXPROPRIATION
The Parties confirm their shared understanding that:
1. An action or series of actions by a Party cannot constitute an expropriation unless it substantially interferes with a tangible or intangible property right, or property interest in an investment.
2. Article 10.12 addresses two situations. The first is the direct expropriation, where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.
3. The second situation addressed by Article 10.12 is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes indirect expropriation requires a case-by-case, fact-based enquiry that considers, among other factors:
(i) The economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, does not in and of itself establish that an indirect expropriation has occurred;
(ii) The extent to which the government action or series of actions interferes with the unequivocal and reasonable expectations of the investment; and
(iii) The character of the government action.
(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives do not constitute indirect expropriations. (1)
Annex 10.27. SERVICE OF DOCUMENTS TO A PARTY UNDER SECTION B
1. Documents must be submitted to the location specified for each Party. A Party must notify and make public any change in the address specified in this Annex.
2. The location for submission of the Notice of Intent and other documents referred to in the dispute resolution related to Section B shall be as follows:
(a) For Chile:
Dirección de Asuntos Jurídicos
Ministerio de Relaciones Exteriores de la República de Chile
Teatinos No. 180 Santiago, Chile
or its successor
(b) For Colombia:
Dirección de Inversión Extranjera y Servicios
Ministerio de Comercio, Industria y Turismo
Calle 28 No. 13 A - 15, piso 3 Bogota D.C. - Colombia
Or its successor
(c) For Mexico:
Dirección General de Consultoria Jurídica de Comercio Internacional
Secretaría de Economia Alfonso Reyes No. 30, piso 17 Delegación Cuauhtémoc
México D.F. C.P.06140
or its successor
(d) For Peru:
Dirección General de Asuntos de Economía Internacional, Competencia y Productividad
Ministerio de Economía y Finanzas
Jirón Lampa No. 277, piso 5 Lima 1, Peru
Or its successor
ANNEX ON DECREE LAW 600 - CHILE
1. The Decree Law 600 (1974), Foreign Investment Statute, is a voluntary and special investment scheme for Chile.
2. Instead of investing in Chile through a standard foreign direct investment to, potential investors may ask the Committee of Foreign Investments to apply the scheme established by Decree Law 600.
3. The obligations and commitments established in this Chapter do not apply to Decree Law 600, Foreign Investment Statue, to Law 18,657 on Foreign Capital Investment Funds, to the continuation or prompt renewal of such laws and to their modification, or to any special and/or voluntary investment scheme that may be adopted in Chile in the future.
4. For greater certainty, the Committee of Foreign Investments of Chile has the right to reject applications for investment through Decree Law 600 and Law 18,657. Additionally, the Committee of Foreign Investments of Chile has the right to regulate the terms and conditions which foreign investment made under Decree Law 600 and Law 18,657 shall be subject to.
5. For greater certainty, once an application for foreign investment is submitted by an investor under Decree Law 600, its modifications, continuation or prompt renewal, or under any special and/or voluntary investment scheme that may be adopted in Chile in the future, is accepted by the Committee of Foreign Investments of Chile through the signing of a foreign investment contract, the disciplines established in this Chapter shall be applicable to the investment made under the respective contract.
6. For greater certainty, nothing in paragraphs 1 to 4 of this Annex may be appealed under the provisions of Section B.
ANNEX ON EXEMPTIONS TO DISPUTE RESOLUTION - MEXICO
The resolutions of the National Commission on Foreign Investments, established in existing measures 2 and 3 of Mexico's Schedule to Annex 1, shall not be subject to the provisions established in the dispute resolution mechanism between a Party and an investor of another
Party established in Section B of this Chapter and the dispute resolution mechanism of Chapter 17 (Dispute Resolution).
Chapter 11. FINANCIAL SERVICES
Article 11.1. Definitions
For the purposes of this Chapter:
Cross-border financial services provider refers to a person from one Party whose business it is to provide a financial service in the territory of the Party and is seeking to provide or is providing a financial service through cross-border supply of said services;
Cross-border trade in financial services or cross-border supply of financial services refers to the supply of a financial service:
(a) From the territory of one Party to the territory of another Party;
(b) In the territory of one Party by a person from that Party to a person from another Party; or
(c) By the national of one Party in the territory of another Party;
This does not include, however, a financial service in the territory of one Party supplied through investment in that territory;
Financial institution refers to any financial intermediary or other company authorised to conduct business and which is regulated or supervised as a financial institution in accordance with the laws of the Party in whose territory it is located;
Financial institution of another Party refers to a financial institution, including a branch thereof, located in the territory of one Party and which is controlled by persons from another Party;
Financial service refers to any service of a financial nature. Financial services comprise all insurance services and services related to insurance, and all banking services and other financial services (with the exception of insurance). Financial services include the following activities:
Insurance services and services related to insurance
(a) Direct insurance (including coinsurance):
(i) Life insurance;
(ii) Insurance other than life insurance;
(b) Reinsurance and retrocession;
(c) Insurance intermediary activities, for example those carried out by insurance brokers and agents;
(d) Auxiliary insurance services, for example consultants, actuaries, risk assessments and claims settlement;
Banking services and other financial services (excluding insurance)
(a) Accepting deposits and other reimbursable funds from the public;
(b) Loans of any kind, including personal and mortgage loans, factoring and the financing of commercial transactions;
(c) Financial leasing services;
(d) All payment and money transfer services, including credit, charge, debit and similar cards, travellers' cheques and wire transfers;
(e) Guarantees and commitments;
Trade exchange by personal accord or on behalf of clients, whether on a stock exchange, an over-the-counter market or another method, of the following:
(i) Money market instruments (including cheques, letters and deposit certificates);
(ii) Currencies;
(iii) Derivative products, including but not limited to, futures and options;
(iv) Exchange and money market instruments, for example, swaps and term agreements on interest rates;