3. Unless the disputing parties otherwise agree, the place of consultation shall be:
(a) Ottawa, if the measures challenged are measures of Canada; or
(b) Abu Dhabi, if the measures challenged are measures of the United Arab Emirates.
4. The disputing parties may hold the consultations through videoconference or other means if appropriate, such as in the case when the investor is a micro, small, or medium-sized enterprise.
5. The investor seeking consultations shall deliver to the relevant Party a written request for consultations, which shall specify:
(a) whether the investor intends to claim under Article 26(1) or Article 26(2) (Submission of a Claim to Dispute Settlement);
(b) the name and address of the investor and evidence to establish that the investor is an investor of the other Party;
(c) the investment at issue and evidence to establish that the investor owns or controls the investment, including, if the investment is an enterprise, the name, address, and place of incorporation of the enterprise;
(d) for each claim:
(i) the provisions of this Agreement alleged to have been breached, and
(ii) the factual basis for the claim, including the measure at issue; and
(e) the relief sought and the approximate amount of damages claimed.
6. If the investor has not submitted a claim pursuant to Article 26 (Submission of a Claim to Dispute Settlement) within one year of the delivery of the request for consultations, the investor is deemed to have withdrawn its request for consultations and shall not submit a claim under this Section with respect to the same measures. This period may be extended by the mutual agreement of the disputing parties.
Article 25. Mediation
1. The disputing parties may at any time agree to have recourse to mediation.
2. Recourse to mediation is without prejudice to the legal position or rights of a disputing party under this Agreement and is governed by the rules agreed to by the disputing parties including, if available, rules for mediation adopted by the Parties after the entry into force of this Agreement.
3. The mediator is appointed by agreement of the disputing parties. The disputing parties may also request that the Secretary-General of ICSID appoint the mediator.
4. The disputing parties shall endeavour to reach a resolution of the dispute within 120 days from the appointment of the mediator.
5. If the disputing parties agree to have recourse to mediation, the timelines set out in Article 24(2) and Article 24(6) (Request for Consultation) and all timelines pursuant to an arbitration under this Section shall be suspended from the date on which the disputing parties agreed to have recourse to mediation and shall resume on the date on which a disputing party decides to terminate the mediation. A decision by a disputing party to terminate the mediation shall be transmitted by way of a letter to the mediator and the other disputing party.
Article 26. Submission of a Claim to Dispute Settlement
1. An investor of a Party may submit a claim that the other Party has breached an obligation in accordance with Article 23 (Scope and Purpose), and that the investor has incurred loss or damage by reason of, or arising out of, that breach, only if:
(a) the investor has fulfilled the requirements of Article 24 (Request for Consultations);
(b) 180 days have elapsed since the receipt by the other Party of a request for consultations under Article 24 (Request for Consultations);
(c) the claim relates to measures identified in the investor’s request for consultations under Article 24 (Request for Consultations);
(d) the investor consents to dispute settlement in accordance with the procedures set out in this Agreement; and
(e) the investor and, if the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise, waives its right to initiate or continue before any administrative tribunal or court under the law of any Party or other dispute settlement procedures any proceedings with respect to the measure of the other Party that is alleged to be a breach referred to in Article 24(5)(Request for Consultations), except for proceedings for injunctive, declaratory, or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the other Party.
2. An investor of a Party, on behalf of an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, may submit a claim that the other Party has breached an obligation in accordance with Article 23 (Scope and Purpose), and that the investor has incurred loss or damage by reason of, or arising out of, that breach, only if:
(a) the investor has fulfilled the requirements stipulated in Article 24 (Request for Consultations);
(b) 180 days have elapsed since the receipt by the other Party of a request for consultations under Article 24 (Request for Consultations);
(c) the claim relates to measures identified in the investor’s request for consultations under Article 24 (Request for Consultations);
(d) the investor consents to dispute settlement in accordance with the procedures set out in this Agreement; and
(e) both the investor and the enterprise waive their right to initiate or continue before an administrative tribunal or court under the law of any Party or other dispute settlement procedures any proceedings with respect to the measure of the other Party that is alleged to be a breach referred to in Article 24 (5) (Request for Consultation), except for proceedings for injunctive, declaratory, or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the other Party.
3. A consent and waiver required by this Article must be in writing, must be delivered to the respondent Party and must be included in the submission of a claim to dispute settlement.
4. Notwithstanding paragraph 3, a waiver from the enterprise under subparagraphs 1(e) and 2(e) is not required if the other Party has deprived an investor of control of the enterprise.
5. If an investor of a Party makes a claim under paragraph 2 of this Article and the investor or a non-controlling investor in the enterprise makes a claim under paragraph 1 of this Article arising out of the same events that gave rise to the claim under paragraph 2 of this Article, and two or more of the claims are submitted to dispute settlement under this Article, the claims should be heard together by the Tribunal constituted under Article 34 (Consolidation), unless the Tribunal finds that the interests of a disputing party would be prejudiced thereby.
6. An investor of a Party may submit a claim to dispute settlement under:
(a) the ICSID Convention, provided that both the respondent Party and the Party of the investor are parties to the ICSID Convention;
(b) the ICSID Additional Facility Rules, provided that either the respondent Party or the Party of the investor, but not both, is a party to the ICSID Convention;
(c) the UNCITRAL Arbitration Rules; or
(d) any other rules on agreement of the disputing parties.
7. A claim is submitted to dispute settlement under this Section when:
(a) the request for arbitration under paragraph (1) of Article 36 of the ICSID Convention has been received by the Secretary-General;
(b) the notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules has been received by the Secretary-General;
(c) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the respondent Party; or
(d) the request or notice initiating proceedings is received by the respondent Party in accordance with the rules agreed upon pursuant to paragraph 6(d) of this Article.
8. The applicable arbitration rules pursuant to paragraph 6 of this Article shall govern the proceedings except to the extent modified by this Section.
9. If the investor of a Party proposes rules pursuant to subparagraph 6(d), the respondent Party shall reply to the investor’s proposal within 45 days of receipt of the proposal. If the disputing parties have not agreed on those rules within 60 days of receipt, the investor may submit a claim under the rules provided for in subparagraphs 6(a), 6(b), or 6(c).
10. The investor of a Party may, when submitting its claim, propose that a sole member of the Tribunal should hear the claim. The respondent Party may give sympathetic consideration to that request, in particular if the investor is a micro, small, or medium-sized enterprise or the compensation or damages claimed are relatively low.
Article 27. Special Rules Regarding Financial Services
1. With respect to:
(a) financial institutions of a Party; or
(b) investors of a Party or covered investments in financial institutions in the territory of the respondent Party,
this Section applies only in respect of claims that the respondent Party has breached an obligation under Article 11 (Expropriation) or Article 12 (Transfer of Funds).
2. If a disputing party claims that a dispute involves measures referred to in paragraph 1, the members of the Tribunal shall be selected in accordance with Article 32 (Number of Tribunal Members and Method of Appointment) as modified in this Article, such that:
(a) the presiding member shall have expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meet the qualifications set out in Article 32 (Number of Tribunal Members and Method of Appointment); and
(b) each of the other members of the Tribunal shall:
(i) meet the qualifications set out in Article 32 (Number of Tribunal Members and Method of Appointment), or
(ii) have expertise or experience in financial services law or practice, such as the regulation of financial institutions, and meet the qualifications set out in Article 32(1), Article 32(3) and Article 32(8).
3. If an investor submits a claim to arbitration under this Section, and the respondent Party invokes a defence under Article 12 (Transfer of Funds), Article 22(3) or Article 22(4) (General Exceptions), at the request of that Party, the Tribunal shall request a report in writing from the financial authorities of the Party of the investor and the respondent Party on the issue of whether and to what extent the invoked paragraph is a valid defence to the claim of the investor. The Tribunal shall not proceed pending receipt of a report under this Article.
4. If the Tribunal requests a report under paragraph 3, the financial authorities shall prepare a written report. If the financial authorities cannot agree, the matter shall be submitted to an arbitral panel established in accordance with Section G (State-to-State Dispute Settlement Procedures) that shall prepare the written report. The report shall be transmitted to the Tribunal and be binding on it.
5. The Tribunal may decide the matter where, within 70 days of the referral by the Tribunal, no request for the establishment of a panel pursuant to paragraph 4 has been made and no report has been received by the Tribunal.
Article 28. Consent to Dispute Settlement Under this Section
1. Each Party consents to the submission of a claim to dispute settlement in accordance with the procedures set out in this Agreement, including Article 24 (Request for Consultations) and Article 26 (Submission of a Claim to Dispute Settlement).
2. The consent given by paragraph 1 and the submission by an investor of a claim to dispute settlement must satisfy the requirement of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties; and
(b) Article II of the New York Convention for an “agreement in writing”.
Article 29. Third Party Funding
1. If there is third party funding, the claimant benefiting from it shall disclose to the other disputing party and to the Tribunal the name and address of the third party funder.
2. The claimant shall make the disclosure at the time of the submission of a claim, or if the third party funding is arranged after the submission of a claim within 10 days of the date on which the third party funding was arranged. The claimant shall have a continuing obligation to disclose any changes to the information referred to in paragraph 1 occurring after its initial disclosure, including termination of the third party funding arrangement.
3. For the purposes of this Article, “third party funding” means any funding or other equivalent support provided by a person who is not a disputing party in order to finance part or all of the cost of the proceedings, including through a donation or grant, or in return for remuneration dependent on the outcome of the dispute.
Article 30. Discontinuance
If, following the submission of a claim under this Section, the investor fails to take a step in the proceeding within 180 days or a period agreed on by the disputing parties, the investor is deemed to have withdrawn its claim and to have discontinued the proceeding. The Tribunal, if constituted, shall, at the request of the respondent Party and after notice to the disputing parties, take note of the discontinuance in an order. After the order has been rendered, the authority of the Tribunal shall cease.
Article 31. Receipts Under Insurance or Guarantee Contracts
In a dispute settlement under this Section, a Party may not assert as a defence, counterclaim, right of setoff, or otherwise, that the investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification, or other compensation for all or part of its alleged damages.
Article 32. Number of Tribunal Members and Method of Appointment
1. Except in respect of a Tribunal established under Article 34 (Consolidation), and unless the disputing parties agree otherwise, the Tribunal shall be composed of three members: one member appointed by each of the disputing parties and the third, who shall be the presiding member, appointed by agreement of the disputing parties. Disputing parties are encouraged to consider greater diversity in tribunal appointments, including through the appointment of women.
2. Tribunal members shall have expertise or experience in public international law, international investment law, international trade law, or the resolution of disputes arising under international investment or international trade agreements.
3. Tribunal members shall be independent. They shall not be affiliated with any government. They shall not take instructions from any organization or government with regard to matters related to the dispute. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest. They shall comply with the International Bar Association Guidelines on Conflicts of Interest in International Arbitration and any supplemental rules agreed to by the disputing parties. In addition, upon appointment, they shall refrain from acting as counsel or as a party-appointed expert or witness in any pending or new investment dispute under this or any other international agreement.
4. If the disputing parties do not agree on the remuneration of the arbitrators before the Tribunal is constituted, the prevailing ICSID rate for arbitrators shall apply.
5. If a disputing party fails to appoint a member of the Tribunal or the disputing parties are unable to agree on a presiding member the Secretary-General of ICSID shall serve as appointing authority for arbitration under this Section.
6. If a Tribunal, other than a Tribunal established under Article 34 (Consolidation), has not been constituted within 90 days from the date that a claim is submitted to arbitration, the Secretary-General of ICSID, on the request of either disputing party, shall appoint the member or members not yet appointed.
7. In accordance with this Article, the Secretary-General of ICSID shall make any appointment at his or her own discretion and, to the extent practicable, this appointment shall be made in consultation with the disputing parties. The Secretary-General of ICSID may not appoint as presiding member a national of a Party.
8. Tribunal members shall abide by the Arbitrator Code of Conduct for Dispute Settlement.
Article 33. Agreement to Appointment of Members of the Tribunal
For purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to a member of the Tribunal based on a ground other than nationality:
(a) the respondent Party agrees to the appointment of each individual member of a Tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) an investor referred to in Article 26(1) (Submission of a Claim to Dispute Settlement) may submit a claim to arbitration or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the disputing investor, referred to in Article 26(1), agrees in writing to the appointment of each individual member of the Tribunal; and
(c) an investor referred to in Article 26(2) (Submission of a Claim to Dispute Settlement) may submit a claim to arbitration or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the investor and the enterprise, referred to in Article 26(2), agree in writing to the appointment of each individual member of the Tribunal.
Article 34. Consolidation
1. If two or more claims have been submitted to dispute settlement under Article 26 (Submission of a Claim to Dispute Settlement) and have a question of law or fact in common and arise out of the same events or circumstances, a disputing party or the disputing parties, jointly, may request the establishment of a separate Tribunal pursuant to this Article (Consolidating Tribunal) and that this Tribunal issue a consolidation order together (Request for Consolidation).
2. The disputing party seeking a consolidation order shall first deliver a notice to the disputing parties it seeks to be covered by this order.
3. If the disputing parties notified pursuant to paragraph 2 have reached an agreement on the consolidation order to be sought, they may make a joint request for the establishment of a separate Tribunal and a consolidation order pursuant to this Article. If the disputing parties notified pursuant to paragraph 2 have not reached agreement on the consolidation order to be sought within 60 days of the notice, a disputing party may make a Request for Consolidation order pursuant to this Article.
4. A Request for Consolidation shall be delivered, in writing, to the Secretary-General of ICSID and to all the disputing parties sought to be covered by the consolidation order, and shall specify:
(a) the names and addresses of the disputing parties sought to be covered by the order;
(b) the claims or parts thereof sought to be covered by the order; and
(c) the grounds for the order sought.
5. The rules applicable to the proceedings under this Article are determined as follows:
(a) if all of the claims for which a consolidation order is sought have been submitted to dispute settlement under the same rules pursuant to Article 26(6)(Submission of a Claim to Dispute Settlement), these rules shall apply; or
(b) if the claims for which a consolidation order is sought have not been submitted to dispute settlement under the same rules:
(i) the investors may collectively agree on the rules pursuant to Article 26(6)(Submission of a Claim to Dispute Settlement), or
(ii) if the investors cannot agree on the applicable rules within 30 days of the Secretary-General of ICSID receiving the Request for Consolidation, the UNCITRAL Arbitration Rules shall apply.
6. The Secretary-General of ICSID shall, after receipt of a Request for Consolidation, establish a Consolidating Tribunal.
7. If, after hearing the disputing parties a Consolidating Tribunal is satisfied that claims submitted pursuant to Article 26 (Submission of a Claim to Dispute Settlement) have a question of law or fact in common and arise out of the same events or circumstances, and consolidation would best serve the interests of fair and efficient resolution of the claims including the interest of consistency of awards, the Consolidating Tribunal may, by order, assume jurisdiction over some or all of the claims, in whole or in part.
8. If a Consolidating Tribunal has assumed jurisdiction pursuant to paragraph 7, an investor that has submitted a claim pursuant to Article 26 (Submission of a Claim to Dispute Settlement) and whose claim has not been consolidated may make a written request to the Consolidating Tribunal that it be included in such order provided that the request complies with the requirements set out in paragraph 4. The Consolidating Tribunal shall grant such order if it is satisfied that the conditions of paragraph 7 are met and that granting such a request would not unduly burden or unfairly prejudice the disputing parties or unduly disrupt the proceedings. Before the Consolidating Tribunal issues that order, it shall consult with the disputing parties.
9. On application of a disputing party, a Consolidating Tribunal established under this Article, pending its decision under paragraph 7, may order that the proceedings pursuant to Article 26 (Submission of a Claim to Dispute Settlement) be stayed unless these proceedings have already been adjourned.
10. A Tribunal appointed to hear claims pursuant to Article 26 (Submission of a Claim to Dispute Settlement) shall cede jurisdiction in relation to the claims, or parts thereof, over which a Consolidating Tribunal established under this Article has assumed jurisdiction.
11. The award of a Consolidating Tribunal established under this Article in relation to those claims, or parts thereof, over which it has assumed jurisdiction is binding on the Tribunal appointed to hear claims pursuant to Article 26 (Submission of a Claim to Dispute Settlement) as regards those claims, or parts thereof.
12. An investor may withdraw a claim under this Section that is subject to consolidation and that claim shall not be resubmitted pursuant to Article 26 (Submission of a Claim to Dispute Settlement).
13. At the request of an investor, a Consolidating Tribunal may take measures it considers appropriate in order to preserve the confidential or protected information of that investor in relation to other investors. Those measures may include the submission of redacted versions of documents containing confidential or protected information to the other investors or arrangements to hold parts of the hearing in private.
Article 35. Place of Arbitration
1. Unless the disputing parties agree otherwise, the place of arbitration for dispute settlement under this Agreement shall be in the territory of a Party that is a party to the New York Convention, selected in accordance with:
(a) the ICSID Additional Facility Rules if the proceeding is under those Rules or the ICSID Convention;
(b) the UNCITRAL Arbitration Rules if the proceeding is under those Rules; or
(c) the rules agreed to by the disputing parties under Article 26(6)(d) (Submission of a Claim to Dispute Settlement).
2. Special consideration should be given to micro, small, or medium-sized enterprise when determining the location and mode of hearings by the respondent Party or by the Tribunal if no agreement is reached between the disputing parties.
Article 36. Preliminary Objections
1. Without prejudice to a Tribunal’s authority to address other questions as a preliminary objection, a Tribunal shall address and decide as a preliminary question an objection by the respondent Party that, as a matter of law, a claim submitted is not a claim for which an award in favour of the investor may be made under this Agreement, including that a dispute is not within the competence of the Tribunal or that a claim is manifestly without legal merit.
2. An objection under paragraph 1 shall be submitted to the Tribunal within 60 days after the Tribunal is constituted. The Tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection, stating the grounds therefor, no later than 180 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.
3. In deciding an objection under paragraph 1, the Tribunal shall assume to be true the investor’s factual allegations in support of a claim in the request for consultations or any amendment thereof, provided the amendment is submitted no later than 30 days from the objection under paragraph 1. The Tribunal may also consider relevant facts not in dispute.
4. This Article shall be without prejudice to the Tribunal’s authority to address questions pertaining to its competence in the course of the proceedings or to the right of the respondent Party to make an objection as to the Tribunal’s competence, including an objection to the Tribunal’s jurisdiction or an argument on the merits, merely because the respondent Party did or did not raise an objection under paragraph 1.
5. The provisions on costs in Article 41(2) (Final Award), including costs of the proceedings and costs of legal representation and assistance, shall apply to decisions or awards issued under this Article.
Article 37. Transparency of Proceedings
1. The UNCITRAL Transparency Rules, including the participation of third parties, as modified by this Agreement, shall apply in connection with proceedings under this Section.
2. The agreement to mediate made after the commencement of arbitral proceedings, the notice of intent to challenge a member of the Tribunal, the decision on challenge to a member of the Tribunal, and the request for consolidation shall be included in the list of documents to be made available to the public under Article 3(1) of the UNCITRAL Transparency Rules.
3. Exhibits shall be included in the list of documents to be made available to the public under Article 3(2) of the UNCITRAL Transparency Rules.
4. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, prior to the constitution of the Tribunal, the respondent Party shall make publicly available in a timely manner relevant documents pursuant to paragraph 2, subject to the redaction of confidential information. That documentation may be made publicly available by communication to the repository referred to in paragraph 8 of this Article.
5. A disputing party may disclose to other persons in connection with the proceedings, including witnesses and experts, unredacted documents that it considers necessary to disclose in the course of proceedings under this Section. However, the disputing party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
6. A Party may share with government officials and sub-national government officials, if applicable, unredacted documents that it considers necessary to share in the course of proceedings under this Section. However, that Party shall ensure that those persons protect the confidential information in those documents as directed by the Tribunal.
7. Notwithstanding Article 6 of the UNCITRAL Transparency Rules:
(a) in the case of a claim against Canada, hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to the hearings. If the Tribunal determines that there is a need to protect confidential or protected information, it shall make the appropriate arrangements to hold in private the part of the hearing requiring that protection; and
(b) in the case of a claim against the United Arab Emirates, hearings shall be open to the public, subject to the prior written approval of the United Arab Emirates. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to the hearings.
8. Nothing in this Agreement requires a respondent Party to withhold from the public information required to be disclosed by its law. To the extent that a Tribunal’s confidentiality order designates information as confidential and a Party’s law on access to information requires public access to that information, the Party’s law on access to information shall prevail. The respondent Party should apply those laws in a manner sensitive to protecting from disclosure information that has been designated as confidential or protected information.
9. The repository of information published under this Article shall be the administering authority to which a claim is submitted under this Section.
10. The respondent Party shall deliver to the non-disputing Party:
(a) a claim submitted pursuant to Article 26 (Submission of a Claim to Dispute Settlement), a Request for Consolidation, and any other documents that are appended to those documents;
(b) on request:
(i) a request for consultation,
(ii) pleadings, memorials, briefs, requests, and other submissions made to the Tribunal by a disputing party,
(iii) written submissions made to the Tribunal pursuant to Article 4 of the UNCITRAL Transparency Rules,
(iv) minutes or transcripts of hearings of the Tribunal, if available, or
(v) orders, awards, and decisions of the Tribunal; and
(c) on request and at the cost of the non-disputing Party, all or part of the evidence that has been tendered to the Tribunal, unless the requested evidence is publicly available.
11. The non-disputing Party receiving materials pursuant to paragraph 10 shall treat the information as if it were the respondent Party.
12. The non-disputing Party may make oral and written submissions to a Tribunal only on questions of interpretation of this Agreement and have the right to attend hearings held under this Section.
13. The Tribunal shall not draw any inference from the absence of a submission pursuant to paragraph 12.
14. The Tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on a submission by the non-disputing Party to this Agreement.
Article 38. Governing Law
1. If serious concerns arise as regards matters of interpretation, the Parties may agree to adopt an interpretation of this Agreement. An interpretation adopted by the Parties shall be binding on a Tribunal established under this Section.
2. A Tribunal established under this Section shall decide the issues in dispute in accordance with the Vienna Convention on the Law of Treaties, done on 23 May 1969, and other rules and principles of international law applicable between the Parties.
3. The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of a Party. For greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party.