Except for the tribunal established pursuant to Article 13-26, and unless the disputing Parties agree otherwise, the tribunal shall be composed of three (3) arbitrators. Each disputing Party shall appoint one. The third arbitrator, who shall be the chairman of the arbitral tribunal, shall be appointed by agreement of the disputing parties.
Article 13-24. Integration of the Tribunal In the Event That a Party Fails to Appoint an Arbitrator or the Disputing Parties Fail to Agree on the Appointment of the Chairman of the Arbitral Tribunal.
1. The Secretary-General of ICSID (hereinafter referred to as the Secretary-General) shall appoint arbitrators in arbitration proceedings in accordance with this section.
2. Where a tribunal, other than the tribunal established pursuant to Article 13-26, is not constituted within ninety days from the date on which the claim is submitted to arbitration, the Secretary General shall, at the request of either disputing Party, appoint, at his discretion, the arbitrator or arbitrators not yet appointed, but not the chairman of the tribunal who shall be appointed in accordance with paragraph 3.
3. The Secretary-General shall appoint the President of the tribunal from the list of arbitrators referred to in paragraph 4, ensuring that the President of the tribunal is not a national of the disputing Party or a national of the Party of the disputing investor. In the event that an arbitrator available to preside over the tribunal is not found on the list, the Secretary-General shall appoint, from the ICSID Panel of arbitrators, the President of the arbitral tribunal, provided that he or she is a national of a Party other than the Party of the disputing investor.
4. On the date of entry into force of this Agreement, the Parties shall establish and maintain a list of 10 arbitrators as potential presiding arbitrators who meet the qualifications set out in the Convention and the rules referred to in Article 13-20 and who have experience in international law and investment matters. The members of the list shall be appointed by consensus without regard to their nationality.
Article 13-25. Consent to the Appointment of Arbitrators.
For the purposes of Article 39 of the ICSID Convention and Article 7 of Part C of the Additional Facility Rules, and without prejudice to objecting to an arbitrator pursuant to Article 13-24(3) or on grounds other than nationality:
a) the disputing Party accepts the appointment of each of the members of a tribunal established in accordance with the ICSID Convention or the Additional Facility Rules;
b) a disputing investor referred to in Article 13-16 may submit a claim to arbitration or continue proceedings under the ICSID Convention or the Additional Facility Rules only on condition that the disputing investor consents in writing to the appointment of each member of the tribunal; and
c) the disputing investor referred to in Article 13-17(1) may submit a claim to arbitration or continue proceedings under the ICSID Convention or the Additional Facility Rules only on condition that the disputing investor and the enterprise consent in writing to the appointment of each of the members of the Tribunal.
Article 13-26. Joinder of Proceedings.
1. A tribunal established under this Article shall be established in accordance with the UNCITRAL Arbitration Rules and shall proceed in accordance with the provisions of those Rules, except as provided in this Section.
2. Where a tribunal established under this Article determines that the claims submitted to arbitration under Article 13-20 raise common questions of law or fact, the tribunal, in the interest of a fair and efficient resolution, and having heard the disputing Parties, may order that:
a) assumes jurisdiction over, adjudicates and resolves all or part of the claims, jointly; or
b) assume jurisdiction, substantiate and resolve one or more of the claims on the basis that this will contribute to the resolution of the other claims.
3. A disputing party seeking a determination of joinder under paragraph 2 shall request the Secretary-General to establish a tribunal and shall specify in its request:
a) the name of the disputing Party or the disputing investors against which the order of cumulation is sought;
b) the nature of the requested consolidation order; and
c) the basis on which the request is supported.
4. A disputing party shall deliver a copy of its request to the other disputing party or to the disputing investors against whom the order of consolidation is sought.
5. Within 60 days from the date of receipt of the request, the Secretary-General shall set up a tribunal composed of three arbitrators. The Secretary-General shall appoint the Chairman of the tribunal from the list of arbitrators referred to in Article 13-24 (4). In the event that no arbitrator is available on the list to preside over the tribunal, the Secretary-General shall appoint, from the list of ICSID Arbitrators, the president of the tribunal who shall not be a national of any of the Parties. The Secretary-General shall appoint the other two members of the tribunal from the list referred to in Article 13-24(4) and, where they are not available on that list, shall select them from the list of ICSID Arbitrators; if no arbitrators are available on that list, the Secretary-General shall make the missing appointments at his discretion. One of the members shall be a national of the disputing Party and the other member of the tribunal shall be a national of a Party of the disputing investors.
6. Where a tribunal has been established under this Article, a disputing investor who has submitted a claim to arbitration under Article 13-16 or 13-17 and has not been named in the request for aggregation made pursuant to paragraph 3 may apply in writing to the Tribunal to be included in an order made pursuant to paragraph 2, and shall specify in such application:
a) the name and address of the disputing investor;
b) the nature of the requested consolidation order; and
c) the grounds on which the request is based.
7. A disputing investor referred to in paragraph 6 shall deliver a copy of its request to the disputing Parties identified in a request made under paragraph 3.
8. Acourt established under Article 13-20 shall not have jurisdiction to adjudicate a claim, or part of a claim, over which a court established under this Article has assumed jurisdiction.
9. On the request of a disputing party, a tribunal established under this Article may, pending its decision under paragraph 2, order that the proceedings of a tribunal established under Article 13-20 be adjourned, unless the latter tribunal has suspended its proceedings.
10. A disputing Party shall deliver to the Secretariat within 15 days from the date of receipt by the disputing Party:
a) a request for arbitration made pursuant to Article 36(1) of the ICSID Convention;
b) anotice of arbitration under Article 2 of Part C of the ICSID Additional Facility Rules; or
c) anotice of arbitration under the terms of the UNCITRAL Arbitration Rules.
11. Adisputing Party shall provide the Secretariat with a copy of the request made under the terms of paragraph 3:
a) within 15 days of receipt of the request, in the case of a request made by the disputing investor; or
b) within 15 days from the date of the request, in the case of a request made by the disputing Party.
12. A disputing Party shall deliver to the Secretariat a copy of a request made under the terms of paragraph 6 within 15 days from the date of receipt of the request.
13. The Secretariat shall keep a public register of the documents referred to in paragraphs 10, 11 and 12.
Article 13-27. Notification.
The disputing Party shall deliver to the other Party:
a) written notice of a claim that has been submitted to arbitration no later than 30 days after the date of submission of the claim to arbitration; and
b) copies of all pleadings filed in the arbitration proceedings.
Article 13-28. Participation of a Party.
Upon written notice to the disputing parties, a Party may communicate to a tribunal its legal interpretation on questions relating to the interpretation of the provisions of this treaty in the context of the dispute in question.
Article 13-29. Documentation.
1. A Party shall be entitled, at its own expense, to receive from the disputing Party a copy of:
a) the evidence offered to the court; and
b) the written arguments presented by the disputing Parties.
2. A Party receiving information under paragraph 1 shall treat the information as if it were a disputing Party
Article 13-30. Place of Arbitration Proceedings.
Unless the disputing parties agree otherwise, a tribunal shall conduct the arbitral proceedings in the territory of a Party that is a party to the New York Convention, which shall be chosen in accordance with:
a) the ICSID Additional Facility Rules, if the arbitration is governed by those rules or by the ICSID Convention; or
b) the UNCITRAL Arbitration Rules, if the arbitration is governed by those rules.
Article 13-31. Applicable Law.
1. A tribunal established under this Section shall decide disputes submitted to it in accordance with this Agreement and the applicable rules and principles of international law.
2. An interpretation by the Commission of a provision of this Agreement shall be binding on a tribunal established in accordance with this section.
Article 13-32. Interpretation of Annexes.
1. Where a Party asserts as a defense that an allegedly violative measure falls within the scope of a reservation or exception set out in Annex I (Reservations and Exceptions), Annex III (Exceptions to Most- Favored-Nation Treatment) or Annex IV (Activities Reserved to the State), at the request of the disputing Party, the tribunal shall request the Commission for an interpretation on that matter. The Commission shall, within 60 days of the delivery of the request, submit its interpretation in writing to the tribunal.
2. Pursuant to Article 13-31(2}, the Commission's interpretation submitted under paragraph 1 shall be binding on the Tribunal. If the Commission does not submit an interpretation within 60 days, the Tribunal shall decide the matter.
Article 13-33. Expert Opinions.
Without prejudice to the appointment of other types of experts where authorized by the applicable arbitration rules, the tribunal, at the request of a disputing party, or on its own initiative unless the disputing parties do not agree, may appoint one or more experts to render written opinions on any factual issue relating to environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, on such terms and conditions as the disputing parties may agree.
Article 13-34. Provisional Measures of Protection.
A tribunal may order or recommend an interim measure of protection to preserve the rights of a disputing party or to ensure that the tribunal's jurisdiction is given full effect, including an order to preserve evidence in the possession or control of a disputing party, or orders to protect the tribunal's jurisdiction. A tribunal may not order the attachment or stay of enforcement of the allegedly violative measure referred to in Article 13-16 or 13- 17.
Article 13-35. Final Award.
1. Where a tribunal makes a final award against the Party, the tribunal may only award, separately or in combination:
a) compensation for pecuniary damages and the corresponding interest;
b) restitution of the property, in which case the award shall provide that the disputing Party may pay monetary damages, plus interest as appropriate, in lieu of restitution.
2. A tribunal may also award costs in accordance with the applicable arbitration rules.
3. Pursuant to paragraph 1, when the claim is made on the basis of Article 13-17(1):
a) the award providing for restitution of the property shall provide that restitution shall be granted to the enterprise;
b) the award granting pecuniary damages and interest thereon, shall provide that the sum of money be paid to the company; and
c) the award shall provide that the award shall be without prejudice to any right of any person to relief under applicable domestic law.
4. A court may not order a Party to pay damages that are punitive in nature.
Article 13-36. Finality and Enforcement of the Award.
1. An award rendered by a tribunal shall be binding only on the disputing parties and only in respect of the particular case.
2. Subject to paragraph 3 and to the review procedure applicable to an interim award, a disputing party shall comply with and comply with the award without delay.
3. A disputing party may not request enforcement of a final award as long as: a) in the case of a final award rendered under the ICSID Convention:
(i) 120 days have not elapsed from the date on which the award was rendered and no disputing party has requested the revision or annulment of the award; or
(ii) review or annulment proceedings have not been concluded; and
b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules;
(i) 3 (three) months have elapsed since the date on which the award was rendered and no disputing party has initiated a proceeding to revise, set aside or annul the award; or
(ii) a Tribunal has dismissed or admitted an application for reconsideration, dismissal or annulment of the award and this decision cannot be appealed.
4. Each Party shall provide for the proper enforcement of an award in its territory.
5. Where a disputing Party fails to comply with or abide by a final award, the Commission, upon receipt of a request from a Party whose investor was a party to the arbitration proceeding, shall establish a panel pursuant to Article 18-04 (Request for Establishment of an Arbitral Tribunal). The requesting Party may invoke such procedures to:
a) a determination that non-compliance or disregard of the terms of the final award is contrary to the obligations of this Agreement; and
b) arecommendation that the Party comply with and abide by the final award.
6. The disputing investor may seek enforcement of an arbitral award under the ICSID Convention, the New York Convention or the Inter-American Convention, whether or not proceedings under paragraph 5 have been instituted.
7. For the purposes of Article I of the New York Convention and Article i of the Inter-American Convention, a claim submitted to arbitration under this section shall be deemed to arise out of a commercial relationship or transaction.
Article 13-37. General Provisions.
A. The time at which the claim is considered to be subject to arbitration proceedings.
1. A claim is considered submitted to arbitration under the terms of this section when:
a) the request for arbitration under Article 36(1) of the ICSID Convention has been received by the Secretary-General;
b) the notice of arbitration pursuant to Article 2 of Part C of the ICSID Additional Facility Rules has been received by the Secretary-General; or
c) the notice of arbitration referred to in the UNCITRAL Arbitration Rules has been received by the disputing Party.
B. Delivery of documents.
2. Delivery of the notification and other documents to a Party shall be made at the place designated by it in Annex 13-37.2.
C. Payments under Insurance or Guaranty Agreements.
3. In an arbitration proceeding under this Section, a Party shall not assert as a defense, counterclaim, right of set-off, or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of the alleged damages.
D. Publication of awards.
4. Annex 13-37.4 applies to the Parties listed in that annex with respect to the publication of awards.
Article 13-38. Exclusions.
1. Without prejudice to the application or non-application of the dispute settlement provisions of this Section or Chapter XVIII (Dispute Settlement) to other actions agreed to by a Party pursuant to Article 19-03 (National Security), a ruling by a Party prohibiting or restricting the acquisition of an investment in its territory by an investor of the other Party or its investment, in accordance with that Article, shall not be subject to such provisions.
2. The dispute resolution provisions of this section and those of Chapter XVIII (Dispute Resolution) shall not apply to matters referred to in Annex 13-38.2.
Annex 13-06.1. Minimum Standard of Treatment Under international Law
1. Article 13-06.1 establishes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be accorded to investments of investors of another Party.
2. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that required by the customary international law minimum standard of treatment of aliens.
3. A finding that another provision of this Treaty or of a separate international agreement has been violated does not establish that Article 13-06(1) has been violated.
Annex 13-37.2. Delivery of documents to a Party in accordance with Section C
For purposes of section 13-37(2), the place for service of notices and other documents under section C shall be:
1. In the case of Mexico: General Directorate of Foreign Investment Secretariat of the Economy Insurgentes Sur 1940, 8th Floor Colonia Florida, C.P. 01030, Mexico City.
2. For Uruguay: Ministry of Economy and Finance, Colonia 1089. C.P. 11100, Montevideo, Uruguay
Article Annex 13-37.4. Publication of Awards
Mexico
Where Mexico is the disputing Party, the corresponding procedural rules shall apply with respect to the publication of an award.
Article Annex 13-38.2. Exclusions from Dispute Resolution Provisions
Mexico
The provisions relating to the dispute settlement mechanism provided for in Chapter XVIII (Dispute Settlement), shall not apply to a decision of the National Foreign Investment Commission resulting from subjecting an investment to review under the provisions of Annex I (Reservations and Exceptions) relating to whether or not an acquisition that is subject to such review should be permitted.
Chapter XIV. COMPETITION, MONOPOLIES AND STATE-OWNED ENTERPRISES POLICY
Article 14-01. Definitions
For the purposes of this Chapter, the following definitions shall apply:
commercial considerations: consistent with the normal business practices of the private companies that make up the industry;
designate: to establish, designate, authorize or extend the scope of the monopoly to include an additional good or service, after the date of entry into force of this Agreement;
state enterprise: "state enterprise" as defined in Article 2-01 (General Definitions); market: the geographic and commercial market for a good or service;
monopoly: an entity, including a consortium or government agency that, in any relevant market in the territory of a Party, has been designated as the sole supplier or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right derived solely from such grant;
government monopoly: a monopoly owned or controlled, through ownership rights, by the government of a Party or another such monopoly; discriminatory supply includes:
a) more favorable treatment to the parent, subsidiary or other joint venture than to an unaffiliated company, or
b) more favorable treatment of one type of company than another, in similar circumstances; and non-discriminatory treatment: the best treatment, as between national treatment and most-favored-nation treatment, as set forth in the relevant provisions of this Agreement.
Article 14-02. Competition Legislation.
1. Each Party shall adopt or maintain measures prohibiting anticompetitive business practices and shall take appropriate action in this regard, recognizing that such measures will further the objectives of this Agreement. To this end, the Parties shall consult from time to time on the effectiveness of the measures adopted by each Party.
2. Each Party recognizes the importance of cooperation and coordination between its authorities to promote the effective enforcement of competition laws in the free trade area. Likewise, the Parties shall cooperate on matters related to the enforcement of competition laws, including mutual legal assistance, communication, consultation and exchange of information regarding the application of competition laws and policies in the free trade area.
3. The exchange of information referred to in the preceding paragraph shall be carried out taking into account the applicable legislation of each Party, as well as the confidentiality provisions agreed upon by the Parties or their enforcement authorities.
4. No Party may have recourse to the dispute settlement procedures of this Agreement with respect to any matter arising under this Article.
5. No investor of a Party may submit a dispute under Chapter XIII (Investment) for any matter arising under this Article.
Article 14-03. State Monopolies.
1. For the purposes of this article, the following definitions shall apply:
delegation: includes a legislative grant and an order, instruction or other act of government transferring governmental powers to the monopoly or authorizing the monopoly to exercise such powers; and
maintain: established prior to the entry into force of this Agreement and its existence on that date.
2. Nothing in this Agreement shall be construed to prevent a Party from designating a monopoly.
3. Where a Party intends to designate a monopoly, and this designation may affect the interests of persons of the other Party, the Party:
a) whenever possible, notify the other Party, in advance and in writing, of the designation; and
b) at the time of designation, shall endeavor to introduce into the operation of the monopoly conditions that minimize or eliminate any nullification or impairment of benefits, within the meaning of Annex 18- 01 (Nullification and Impairment).
4. Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any privately owned monopoly that the Party designates, or governmental monopoly that the Party maintains or designates:
a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement, where that monopoly exercises govemmental functions delegated to it by the Party with respect to the monopolized good or service, such as the authority to grant import or export licenses, approve commercial transactions, or impose quotas, duties or other charges;
b) except when it concerns the fulfillment of any of the terms of its appointment or prevents the regular performance of its legal attributions that are not incompatible with paragraphs c) or d), acts only according to commercial considerations in the purchase or sale of the monopolized good or service in the relevant market, including with respect to its price, quality, availability, sales capacity, transportation and other terms and conditions for its purchase and sale. The difference in pricing between types of customers, between affiliated and non-affiliated companies, and the granting of cross-subsidies, are not per se incompatible with this provision and these conducts are subject to this paragraph when they are used as an instrument of behavior contrary to competition laws;
c) grants non-discriminatory treatment to the investors' investment, goods and service suppliers of the other Party when buying and selling the monopolized good or service in the relevant market; and
d) does not use its monopoly position to engage in anticompetitive practices in a non-monopolized market in its territory that adversely affect the investment of an investor of the other Party, directly or indirectly, including through the operations of its parent, subsidiary or other joint venture, including discriminatory supply of the monopolized good or service, cross-subsidization or predatory conduct.
5. Paragraph 4 does not apply to the acquisition of goods or services by governmental agencies for official purposes and without the purpose of commercial resale or for use in the production of goods or the provision of services for commercial sale.
6. Nothing in this article shall be construed to prevent a monopolist from fixing prices in different geographic markets, when such differences are based on normal commercial considerations such as considering supply and demand conditions in those markets.
Article 14-04. State-Owned-Enterprises.
1. Nothing in this Agreement shall be construed to prevent a Party from maintaining or establishing State enterprises.