1. Where two or more claims have been submitted separately to arbitration under this Section, and the claims raised have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order, in accordance with the agreement of all the disputing parties sought to be covered by the order or the terms of this Section.
2. A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary-General of ICSID and to all the disputing parties sought to be covered by the order, specifying: the name and address of all the disputing parties sought to be covered by the order; the nature of the order sought; and the grounds on which the order is sought.
3. If the Secretary-General of ICSID finds, within thirty (30) days after receiving a request in conformity with paragraph 1 of this Article, that the request is founded, a Tribunal shall be established under this Article.
Article 20. Preliminary Questions of Competence and Admissibility
1. Before studying the merits, the Tribunal shall rule on the preliminary questions of competence and admissibility. When deciding on questions of competence and admissibility, the Tribunal Shall rule on the costs and fees of attorneys incurred during the proceedings, considering whether or not the objection prevailed.
2. The Tribunal shall consider whether either the claim of the Claimant or the objection of the Respondent is frivolous, and shall provide the disputing parties a reasonable opportunity for comments. In the event of a frivolous claim the Tribunal shall award costs against the Claimant.
Article 21. The Award
The Award shall be binding and shall not be subject to any appeal, or remedy other than those provided for in the ICSID Convention or arbitral rules on which the arbitral proceedings by investors are based. The award shall be subject, not exhaustively, to remedies such as the ones regulated in Articles 48, 49, 50, 51, 52, 53 and 54 of the ICSID Convention. The Award shall be enforced without delay by the Contracting Parties as a final ruling under their domestic law.
Section E. Dispute Settlement between the Contracting Parties
Article 22. Dispute Settlement between the Contracting Parties
1. The Contracting Parties shall, as far as possible, settle any dispute concerning the interpretation or application of this Agreement through consultations or other diplomatic channels.
2. If the dispute has not been settled within six (6) months following the date on which such consultations or other diplomatic channels were requested by either Contracting Party and unless the Contracting Parties otherwise agree in writing, either Contracting Party may, submit the dispute to an ad-hoc Arbitration Tribunal, by written notice to the other Contracting Party, in accordance with the following provisions of this Article.
3. The Arbitration Tribunal shall be comprised of three (3) members and, unless otherwise agreed between the Contracting Parties, shall be established as follows: within two (2) months from the date of notification of the arbitration request, each Contracting Party shall appoint an arbitrator. Those two (2) arbitrators Shall then, within three (3) months from the date of the last appointment, agree upon a third member who shall be a national of a third State with which both Contracting Parties maintain diplomatic relations, and who Shall preside over the Tribunal. The appointment of the President shall be approved by the Contracting Parties within thirty (30) days from the date of his or her nomination.
4. If the necessary appointments are not made within the deadline provided for in paragraph 3 of this Article, either Contracting Party, unless otherwise agreed, may request the Secretary-General of the ICSID to make the necessary appointments. If the Secretary-General of the ICSID is prevented, for any reason, from performing the abovementioned duty or if that person is a national of either Contracting Party, the appointments shall he made by the Deputy Secretary-General of the ICSID.
5. The Arbitral Tribunal shall take its decision by a majority of votes, and shall determine its own procedural rules. Such decision shall be made in accordance with this Agreement and such recognised rules of international law as may be applicable and shall be final and binding on both Contracting Parties.
6. Each Contracting Party shall bear the costs of the member of the Arbitral Tribunal appointed by that Contracting Party, as well as the costs for its representation in the arbitration proceedings. The expenses of the Chairman as well as any other costs of the arbitration proceedings Shall be borne in equal parts by the Contracting Parties. However, the arbitral tribunal may, at its discretion, direct that a higher proportion or all of such costs be paid by one of the Contracting Parties. In all other respects, the Arbitral Tribunal shall determine its own procedures.
Section F. Miscellaneous and Final Provisions
Article 23. Entry and Sojourn
Subject to its laws and regulations regarding the entry and sojourn of foreigners, a Contracting Party may give sympathy regarding the entry of natural persons who are investors of the other Contracting Party and personnel employed by companies of that other Contracting Party to enter and temporally remain in its territory for the purpose of engaging in activities connected with investments.
Article 24. Senior Management and Boards of Directors
In accordance with its domestic law and regulation, a Contracting Party may allow enterprises to appoint senior management positions to natural persons of any particular nationality, provided that they are nationals of a State that has diplomatic relations with both Contracting Parties.
Article 25. Limitation of Benefits
1. Benefits of this Agreement shall not be available to an Investor of a Contracting Party, if the main purpose behind the acquisition of the nationality of that Contracting Party was to obtain benefits under this Agreement that would not otherwise be available to such Investor.
2. A Contracting Party may deny the benefits of this Agreement to:
(a) An Investor of the other Contracting Party that is a juridical person of such Contracting Party and to an investment of such investor if the juridical person is owned or controlled by investors of a third party and the Denying Contracting Party does not maintain diplomatic relations with the third party;
(b) an Investor of the other Contracting Party that is a juridical person of such other Contracting Party and to investments of that investor, if an investor of a non-Contracting Party owns or controls the juridical person or the juridical person has no substantial business activities in the territory of the other Contracting Party.
Article 26. Final Provisions
1. The Contracting Parties Shall notify each other of the compliance of the internal requirements of each of the Contracting Parties in connection to the entry into force of this Agreement. This Agreement shall enter into force sixty (60) days after the date of receipt of the latter notification.
2. This Agreement may be amended by mutual consent of the Contracting Parties. The amendments shall enter into force in accordance with the same legal procedure prescribed under the first paragraph of this Article.
3. This Agreement shall remain in force for a ten (10) year period and shall be extended indefinitely thereafter. This Agreement may be denounced at any time by any of the Contracting Parties, by serving a twelve (12) month prior notice, sent through diplomatic channels.
4. With respect to investments admitted before the date on which the notice of termination of this Agreement becomes effective, the provisions of this Agreement shall remain in force for an additional term of ten (10) years from such a date.
Conclusion
In witness thereof the undersigned fully authorised by their respective Governments have signed this Agreement.
Done in duplicate at Dubai the 12th day of November, 2017, in the Spanish, Arabic and English languages, all texts being equally authentic. In the case of divergence of interpretation, the English text shall prevail. The Contracting Parties exchange the Spanish and Arabic versions for internal translations approvals, which shall be confirmed at a later date through an exchange of notes.
For the Government of the Republic of Colombia
MARIA LORENA GUTIERREZ
Minister of Commerce, Industry and Tourism
For the Government of the United Arab Emirates
OBAID BIN HUMAID AL TAYER
Minister of State for Financial Affairs
Attachments
I. Presentation of documents to a party regarding section d "investor-state dispute settlement"
United Arab Emirates
The place of presentation of the notice of intent and other documents concerning settlement of disputes regarding Section D, in the United Arab Emirates is:
Ministry of Finance
Abu Dhabi, PO. Box: 433
The United Arab Emirates, Abu Dhabi
Republic of Colombia
The place of presentation of the notice of intent and other documents concerning settlement of disputes regarding Section D, in the Republic of Colombia is:
Dirección de Inversión Extranjera y Servicios
Ministerio de Comercio, Industria y Turismo
Calle 28 #13 A-15
Bogota D.C. — Colombia
II. Forms for the presentation of claims pursuant to article 13 conditions in order to submit a dispute for resolution
Pursuant to Paragraph 3 of Article 13 Conditions in Order to Submit a Dispute for Resolution, the following forms shall be filled and presented along with the Notice of Intent:
Form 1(a)—Manifestation of consent to arbitration, including the possibility of being presented with claims by the Respondent Party against the claimant Investor-Applicable for Covered Investors who are natural persons
I, [name of claimant Investor], hereby manifest my consent to arbitration in accordance with the procedures set out in the Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the United Arab Emirates, including the possibility that [name of disputing Party] presents claims against my person related to any issue in connection with the subject matter of the dispute, including alleged breaches of applicable international law or the respondent Party's law.
[To be signed and dated]
Form 1(b)-Manifestation of Consent to Arbitration, Including the Possibility of Being Presented with Claims by the Respondent Party Against the Claimant Investor- Applicable for Covered Investors Who Are Enterprises
I, [name of Claimant Investor's representative], acting on behalf of [name of claimant Investor], hereby manifest [name of claimant Investor]'s consent to arbitration in accordance with the procedures set out in the Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the United Arab Emirates, including the possibility that [name of disputing Party] presents claims against [name of claimant Investor] related to any issue in connection with the subject matter of the dispute, including alleged breaches of applicable international law or the respondent Party's law.
I hereby solemnly declare that I am duly authorised to execute this consent on behalf of [name of claimant Investor]
[To be signed and dated]
Protocol
At the moment of signing the Agreement between the Government of the United Arab Emirates and the Government of the Republic of Colombia for the Agreement for the Promotion and Protection of Investments, the undersigned have agreed that the following provision shall form an integral part of the Agreement.
With respect to Article 2, the Contracting Parties recognize that the purchase of debt issued by a Contracting Party entails commercial risk and are governed by the applicable rules of the concerned public debt operation. In case of dispute appertaining public debt operations, such issue shall be settled by consultation between the Contracting Parties in good faith, and may only be subject to arbitration under Section D of this Agreement in case no agreement is reached between the Contracting Parties, and, the default or non-payment of debt issued by a Contracting Party is caused by such Contracting Party's arbitrary and discriminatory failure to meet its debt obligations, despite of its means to do so, For greater certainty, no award may be made in favour of a claimant for a claim regarding default or non-payment of debt issued by a Contracting Party unless the claimant meets its burden of proving such Contracting Party's arbitrary and discriminatory conduct.
In witness thereof the undersigned fully authorised by their respective Governments have signed this Protocol.
Done in duplicate at Dubai the 12th day of November 2017, in the Spanish, Arabic and English languages, all texts being equally authentic. In the case of divergence of interpretation, the English text shall prevail. The Contracting Parties exchange the Spanish and Arabic versions for internal translations approvals, which shall be confirmed at a later date through an exchange of notes.
For the Government of the Republic of Colombia
MARIA LORENA GUTIERREZ
Minister of Commerce, Industry and Tourism
For the Government of the United Arab Emirates
OBAID BIN HUMAID AL TAYER
Minister of State for Financial Affairs