3. For greater certainty, a claimant's consent to the procedures under this Section as referred to in Article 17.32 includes the submission of counterclaims by the respondent.
Article 17.32. Consent
1. The respondent consents to the submission of a claim under this Section.
2. The consent under paragraph 1 and the submission of a claim under this Section shall be deemed to satisfy the requirements of:
(a) Article 25 of the ICSID Convention and the ICSID Additional Facility Rules for written consent of the disputing parties; and
(b) Article II of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York on 10 June 1958 (the ‘New York Convention’) for an agreement in writing.
3. The claimant is deemed to give consent in accordance with the procedures provided for in this Section at the time of submitting a claim pursuant to Article 17.30.
Article 17.33. Third Party Funding
1. If a disputing party has received or is receiving third-party funding, or has arranged to receive third-party funding, the disputing party benefiting from it shall disclose to the other disputing party and to the division of the Tribunal or, if the division of the Tribunal is not established, to the President of the Tribunal, the name and address of the third-party funder, and if applicable, of the ultimate beneficial owner and corporate structure.
2. The disputing party shall make the disclosure under paragraph 1 at the time of submission of a claim, or, if the third-party funding is arranged after the submission of a claim, without delay, as soon as the arrangement is concluded or the donation or grant is made. The disputing party shall immediately notify the Tribunal of any changes to the information disclosed.
3. The Tribunal may order disclosure of further information regarding the funding arrangement and the third-party funder if it deems it necessary at any stage of the proceedings.
Subsection 4. Investment Court System
Article 17.34. Tribunal of First Instance
1. A Tribunal of first instance (‘Tribunal’) is hereby established to hear claims submitted pursuant to Article 17.30.
2. The Joint Committee shall, upon the entry into force of this Agreement, appoint nine Judges to the Tribunal. Three of the Judges shall be nationals of a Member State, three shall be nationals of Chile and three shall be nationals of third countries. In appointing the Judges, the Joint Committee is encouraged to consider the need to ensure diversity and a fair gender representation.
3. The Joint Committee may decide to increase or to decrease the number of Judges by multiples of three. Additional appointments shall be made according to the criteria provided for in paragraph 2.
4. The Judges shall possess the qualifications required in the countries of which they are nationals for appointment to judicial office, or be jurists of recognised competence. They shall have demonstrated expertise in public international law. It is desirable that they have expertise in international investment law, international trade law and the resolution of disputes arising under international investment or international trade agreements.
5. The Judges shall be appointed for a five-year term. However, the terms of five Judges, namely two nationals of a Member State, two nationals of Chile and one national of a third country, of the nine appointed immediately after the entry into force of this Agreement, to be determined by lot, shall extend to eight years. Vacancies shall be filled as they arise. A Judge appointed to replace another Judge whose term of office has not expired shall hold office for the remainder of the predecessor's term. A Judge who is serving on a division of the Tribunal when their term expires may, with the authorisation of the President of the Tribunal, continue to serve on the division until the closure of the proceedings of that division and shall, for that purpose only, be deemed to continue to be a Judge of the Tribunal.
6. The Tribunal shall have a President and Vice-President responsible for organisational issues, with the assistance of a Secretariat. The President and the Vice-President shall be selected by lot for a two-year term from among the Judges who are nationals of third countries. They shall serve on the basis of a rotation drawn by lot by the co-Chairs of the Joint Committee. The Vice-President shall act as the President when the President is unavailable.
7. The Tribunal shall hear cases in divisions consisting of three Judges, of whom one shall be a national of a Member State, one a national of Chile and one a national of a third country. The division shall be chaired by the Judge who is a national of a third country.
8. When a claim is submitted pursuant to Article 17.30, the President of the Tribunal shall establish the composition of the division of the Tribunal hearing the case on a rotation basis, ensuring that the composition of the divisions is random and unpredictable, while giving equal opportunity to all Judges to serve.
9. Notwithstanding paragraph 7 of this Article, the disputing parties may agree that a case be heard by a sole Judge who is a national of a third country, to be appointed by the President of the Tribunal. The respondent shall give sympathetic consideration to such a request from the claimant, in particular if the compensation or damages claimed are relatively low. Such a request should be made at the same time as the filing of the claim pursuant to Article 17.30.
10. The Tribunal shall establish its own working procedures, after discussing with the Parties.
11. The Judges shall be available at all times and on short notice, and shall stay abreast of dispute settlement activities under this Part of this Agreement.
12. In order to ensure their availability, the Judges shall be paid a monthly retainer fee to be determined by decision of the Joint Committee. The President of the Tribunal and, if applicable, the Vice-President shall receive a fee equivalent to the fee determined pursuant to Article 17.35(11) for each day worked in fulfilling the functions of President of the Tribunal pursuant to this Section.
13. The retainer fee shall be paid by the Parties, taking into account their respective levels of development, into an account managed by the Secretariat of the International Centre for Settlement of Investment Disputes (‘ICSID’). If one Party fails to pay the retainer fee, the other Party may elect to pay that fee itself. Any such arrears will remain payable, with appropriate interest. The Joint Committee shall regularly review the amount and repartition of those fees and may recommend relevant adjustments.
14. Unless the Joint Committee adopts a decision pursuant to paragraph 15 of this Article, the amount of the other fees and expenses of the Judges on a division of the Tribunal shall be determined pursuant to Regulation 14(1) of the Administrative and Financial Regulations of the ICSID Convention in force on the date of the submission of the claim and allocated by the Tribunal among the disputing parties in accordance with Article 17.54(5), (6) and (7).
15. Upon a decision by the Joint Committee, the retainer fee and other fees and expenses may be permanently transformed into a regular salary. In that event, the Judges shall serve on a full-time basis and the Joint Committee shall establish their remuneration and related organisational matters. The Judges receiving a regular salary shall not be permitted to engage in any occupation, whether gainful or not, unless an exemption is exceptionally granted by the President of the Tribunal.
16. The Secretariat of the ICSID shall act as Secretariat for the Tribunal and provide it with appropriate support. The expenses for such support shall be allocated by the Tribunal among the disputing parties in accordance with Article 17.54(5), (6) and (7).
Article 17.35. Appeal Tribunal
1. A permanent Appeal Tribunal is hereby established to hear appeals of the awards issued by the Tribunal.
2. The Joint Committee shall, upon the entry into force of this Agreement, appoint six Members to the Appeal Tribunal. Two of the Members shall be nationals of a Member State, two shall be nationals of Chile and two shall be nationals of third countries. In appointing the Members of the Appeal Tribunal, the Joint Committee is encouraged to consider the need to ensure diversity and a fair gender representation.
3. The Joint Committee may decide to increase the number of the Members of the Appeal Tribunal by multiples of three. Additional appointments shall be made in accordance with the criteria provided for in paragraph 2.
4. The Members of the Appeal Tribunal shall possess the qualifications required in the countries of which they are nationals for appointment to the highest judicial office, or be jurists of recognised competence. They shall have demonstrated expertise in public international law. It is desirable that they have expertise in international investment law, international trade law and the resolution of disputes arising under international investment or international trade agreements.
5. Members of the Appeal Tribunal shall be appointed for a five-year term. However, the terms of three of the six Members appointed immediately after the entry into force of this Agreement, to be determined by lot, shall extend to eight years. Vacancies shall be filled as they arise. A Member appointed to replace another Member whose term of office has not expired shall hold office for the remainder of the predecessor's term. A Member who is serving on a division of the Appeal Tribunal when their term expires may, with the authorisation of the President of the Appeal Tribunal, continue to serve on the division until the closure of the proceedings of that division and shall, for that purpose only, be deemed to continue to be a Member of the Appeal Tribunal.
6. The Appeal Tribunal shall have a President and Vice-President responsible for organisational issues, with the assistance of a Secretariat. The President and the Vice-President shall be selected by lot for a two-year term from among the Members who are nationals of third countries. They shall serve on the basis of a rotation drawn by lot by the co-Chairs of the Joint Committee. The Vice-President shall act as the President when the President is unavailable.
7. The Appeal Tribunal shall hear appeals in divisions consisting of three Members, of whom one shall be a national of a Member State, one a national of Chile and one a national of a third country. The division shall be chaired by the Member who is a national of a third country.
8. The President of the Appeal Tribunal shall establish the composition of the division hearing each appeal on a rotation basis, ensuring that the composition of each division is random and unpredictable, while giving equal opportunity to all Members to serve.
9. The Appeal Tribunal shall establish its own working procedures, after discussing with the Parties.
10. All Members serving on the Appeal Tribunal shall be available at all times and on short notice, and shall stay abreast of other dispute settlement activities under this Part of this Agreement.
11. In order to ensure their availability, the Members of the Appeal Tribunal shall be paid a monthly retainer fee and receive a fee for each day worked as a Member, to be determined by decision of the Joint Committee. The President of the Appeal Tribunal and, if applicable, the Vice-President, shall receive a fee for each day worked in fulfilling the functions of President of the Appeal Tribunal pursuant to this Section.
12. The remuneration of the Members of the Appeal Tribunal shall be paid by the Parties, taking into account their respective levels of development, into an account managed by the ICSID Secretariat. If one Party fails to pay the retainer fee, the other Party may elect to pay that fee itself. Any such arrears will remain payable, with appropriate interest. The Joint Committee shall regularly review the amount and repartition of those fees and may recommend relevant adjustments.
13. Upon a decision by the Joint Committee, the retainer fee and the fees for days worked may be permanently transformed into a regular salary. In that event, the Members of the Appeal Tribunal shall serve on a full-time basis and the Joint Committee shall establish their remuneration and related organisational matters. The Members of the Appeal Tribunal receiving a regular salary shall not be permitted to engage in any occupation, whether gainful or not, unless an exemption is exceptionally granted by the President of the Appeal Tribunal.
14. The ICSID Secretariat shall act as Secretariat for the Appeal Tribunal and provide it with appropriate support. The expenses for such support shall be allocated by the Appeal Tribunal among the disputing parties in accordance with Article 17.54(5), (6) and (7).
Article 17.36. Ethics
1. The Judges of the Tribunal and the Members of the Appeal Tribunal shall be chosen among persons whose independence is beyond doubt. They shall not be affiliated with any government (53). They shall not take instructions from any government or organisation on 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 Annex 17-I. Upon appointment, they shall refrain from acting as counsel or as party-appointed expert or witness in any pending or new investment dispute under this Agreement or any other agreement or national legal system.
2. If a disputing party considers that a Judge of the Tribunal or a Member of the Appeal Tribunal does not meet the requirements set out in paragraph 1, it shall send a notice of challenge to the appointment to the President of the Tribunal or to the President of the Appeal Tribunal, as applicable. The notice of challenge shall be sent within 15 days of the date on which the composition of the division of the Tribunal or of the Appeal Tribunal has been communicated to the disputing party, or within 15 days of the date on which the relevant facts came to its knowledge if they could not have reasonably been known at the time of the composition of the division. The notice of challenge shall state the grounds for the challenge.
3. If, within 15 days of the date of the notice of challenge, the challenged Judge of the Tribunal or Member of the Appeal Tribunal has elected not to resign from that division, the President of the Tribunal or the President of the Appeal Tribunal, as applicable, shall, after hearing the disputing parties and after providing the Judge of the Tribunal or the Member of the Appeal Tribunal with an opportunity to submit observations, issue a decision within 45 days of receipt of the notice of challenge and immediately notify the disputing parties and the other Judges or Members of that division.
4. Challenges to the appointment to a division of the President of the Tribunal shall be decided by the President of the Appeal Tribunal and vice versa.
5. Upon a reasoned recommendation from the President of the Appeal Tribunal (54), the Parties, by decision of the Joint Committee, may decide to remove a Judge from the Tribunal or a Member from the Appeal Tribunal where their behaviour is inconsistent with the obligations set out in paragraph 1 of this Article and incompatible with their continued membership of the Tribunal or Appeal Tribunal. If the alleged behaviour in question is that of the President of the Appeal Tribunal, the President of the Tribunal shall submit the reasoned recommendation. Articles 17.34(2) and 17.35(2) shall apply mutatis mutandis for filling vacancies that may arise pursuant to this paragraph.
Article 17.37. Multilateral Dispute Settlement Mechanisms
The Parties shall endeavour to cooperate for the establishment of a multilateral investment tribunal and appellate mechanism for the resolution of investment disputes. Upon the entry into force between the Parties of an international agreement providing for such a multilateral mechanism applicable to disputes under this Part of this Agreement, the relevant parts of this Section shall cease to apply. The Joint Committee may adopt a decision specifying any necessary transitional arrangements.
Subsection 5. Conduct of Proceedings
Article 17.38. Applicable Law and Rules of Interpretation
1. The Tribunal shall determine whether the measure in respect of which the claimant is submitting a claim is inconsistent with any of the provisions referred to in Article 17.25(1).
2. In making such a determination, the Tribunal shall apply this Agreement and other rules of international law applicable between the Parties. It shall interpret this Agreement in accordance with customary rules of interpretation of public international law, as codified in the Vienna Convention on the Law of Treaties.
3. For greater certainty, in determining the consistency of a measure with the provisions referred to in Article 17.25(1), the Tribunal shall consider, when relevant, the law of a Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to such law by the courts or authorities of that Party and any meaning given to such law by the Tribunal shall not be binding upon the courts or authorities of that Party.
4. For greater certainty, the Tribunal shall not have jurisdiction to determine the legality of a measure alleged to constitute a breach of the provisions referred to in Article 17.25(1) under the law of the disputing party.
5. For greater certainty, if an investor of a Party submits a claim under this Section, including a claim alleging that a Party breached Article 17.17, the burden of proof relating to that claim lies on the investor, in line with the general principles of international law applicable to the dispute.
6. Where serious concerns arise as regards matters of interpretation relating to Section C (55) or D, the Joint Council may adopt decisions interpreting this Agreement. Any such interpretation shall be binding on the Tribunal and the Appeal Tribunal. The Joint Council may decide that an interpretation shall have binding effect from a specific date.
Article 17.39. Interpretation of Annexes
1. Following a request for consultations pursuant to Article 17.27(3), the respondent may request, in writing, the Sub-Committee to determine whether, and, if so, to what extent, the measure which is the subject of the request for consultations falls within the scope of a non-conforming measure set out in Annex 17-A or 17-B.
2. The request to the Sub-Committee shall be submitted as soon as possible after the reception of the request for consultations. Upon the request to the Sub-Committee, the periods of time referred to in Articles 17.27(5), 17.27(8), 17.54(10) and 17.55(5) shall be suspended.
3. The Sub-Committee shall, in good faith, attempt to make the requested determination. Any such determination shall be transmitted promptly to the disputing parties.
4. If the Sub-Committee has not made a determination within three months of the request of the matter, the suspension of those periods of time ceases to apply.
Article 17.40. Other Claims
If claims are brought pursuant to this Section, to Chapter 38 or to another international agreement concerning the same alleged breach of the provisions referred to in Article 17.25(1), and there is a potential for overlapping compensation, or the claim pursuant to the other international agreement could have a significant impact on the resolution of the claim brought pursuant to this Section, the Tribunal shall, if relevant, after hearing the disputing parties, take into account proceedings pursuant to Chapter 38 or the other international agreement in its decision, order or award. To that end, it may also stay its proceedings. In acting pursuant to this Article, the Tribunal shall respect Article 17.54(10).
Article 17.41. Anti-Circumvention
For greater certainty, the Tribunal shall decline jurisdiction if the dispute had arisen, or was reasonably foreseeable, at the time when the claimant acquired ownership or control of the investment subject to the dispute or engaged in a corporate restructuring, provided that the Tribunal determines, on the basis of the facts of the case, that the claimant acquired ownership or control of the investment or engaged in the corporate restructuring for the main purpose of submitting the claim under this Section. The possibility to decline jurisdiction in such circumstances is without prejudice to other jurisdictional objections which could be entertained by the Tribunal.
Article 17.42. Claims Manifestly without Legal Merit
1. The respondent may, no later than 30 days after of the constitution of the division of the Tribunal pursuant to Article 17.34(7), and in any event before the first session of the division of the Tribunal, or no later than 30 days after the respondent became aware of the facts on which the objection is based, file an objection that a claim is manifestly without legal merit.
2. The respondent shall specify as precisely as possible the basis for the objection.
3. The Tribunal, after giving the disputing parties an opportunity to present their observations on the objection, shall, at the first session of the division of the Tribunal or promptly thereafter, issue a decision or provisional award on the objection, stating the grounds therefor. In the event that the objection is received after the first session of the division of the Tribunal, the Tribunal shall issue such decision or provisional award as soon as possible, and in any event no later than 120 days after the objection was filed. In deciding on the objection, the Tribunal shall assume the facts as alleged by the claimant to be true and may also consider any relevant facts which are not in dispute.
4. The decision of the Tribunal shall be without prejudice to the right of a disputing party to object, pursuant to Article 17.43 or in the course of the proceedings, to the legal merits of a claim and without prejudice to the Tribunal's authority to address other objections as a preliminary question.
Article 17.43. Claims Unfounded as a Matter of Law
1. Without prejudice to the Tribunal's authority to address other objections as a preliminary question or to a respondent's right to raise any such objections at any appropriate time, the Tribunal shall address and decide as a preliminary question any objection by the respondent that a claim, or any part thereof, submitted under this Section, as a matter of law is not a claim for which an award in favour of the claimant may be made under Article 17.54, even if the facts as alleged by the claimant were assumed to be true. The Tribunal may also consider any relevant facts which are not in dispute.
2. An objection pursuant to paragraph 1 of this Article shall be submitted to the Tribunal as soon as possible after the division of the Tribunal is constituted, and in any event no later than the date the Tribunal sets for the respondent to submit its counter-memorial or statement of defence. An objection pursuant to paragraph 1 may not be submitted as long as proceedings under Article 17.42 are pending, unless the Tribunal, after having taken due account of the circumstances of the case, grants leave to file an objection under this Article.
3. On receipt of an objection pursuant to paragraph 1, and unless it considers the objection manifestly unfounded, the Tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection that is consistent with any schedule it has established for considering any other preliminary question, and issue a decision or provisional award on the objection, stating the grounds therefor.
Article 17.44. Transparency
1. The UNCITRAL Transparency Rules shall apply to disputes under this Section mutatis mutandis, in addition to the following rules.
2. The following documents shall be included in the list of documents referred to in Article 3(1) of the UNCITRAL Transparency Rules: the agreement to have recourse to mediation referred to in Article 17.26 of this Agreement, the request for consultations referred to in Article 17.27 of this Agreement, the notice requesting a determination of the respondent, and the determination of the respondent, referred to in Article 17.28 of this Agreement, the notice of challenge, and the decision on the challenge, referred to in Article 17.36 of this Agreement, and the consolidation request referred to in Article 17.53 of this Agreement.
3. For greater certainty, exhibits may be made available to the public in accordance with Article 3(3) of the UNCITRAL Transparency Rules.
4. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, the EU Party or Chile, as the case may be, shall make publicly available in a timely manner and prior to the constitution of the division, the request for consultations referred to in Article 17.27 of this Agreement, the notice requesting a determination of the respondent, and the determination of the respondent, referred to in Article 17.28 of this Agreement, subject to the redaction of confidential or protected information (56). Such documents may be made publicly available by communication to the repository referred to in the UNCITRAL Transparency Rules.
5. Any disputing party that intends to use in a hearing information designated as confidential or protected shall inform the Tribunal thereof.
6. Any disputing party claiming that certain information constitutes confidential or protected information shall clearly designate it as such when it is submitted to the Tribunal.
7. For greater certainty, nothing in this Section requires the respondent to withhold from the public any information required to be disclosed by its law.
Article 17.45. Interim Measures
The Tribunal may order interim measures of protection to preserve the rights of a disputing party or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in possession or control of a disputing party, or to protect the Tribunal's jurisdiction. The Tribunal shall not order the seizure of assets or prevent the application of the treatment alleged to constitute a breach.
Article 17.46. Discontinuance
If, following the submission of a claim under this Section, the claimant fails to take any steps in the proceedings for 180 consecutive days after that submission, or for such period as the disputing parties may agree, the claimant shall be deemed to have withdrawn its claim and to have discontinued the proceedings. The Tribunal shall, at the request of the respondent, and after having given notice to the disputing parties, take note of the discontinuance in an order and issue an award on costs. After such an order has been rendered, the authority of the Tribunal shall lapse. The claimant may not subsequently submit a claim on the same matter.
Article 17.47. Security for Costs
1. For greater certainty, on request of the respondent, the Tribunal may order the claimant to provide security for all or a part of the costs if there are reasonable grounds to believe that the claimant risks not being able to honour a possible decision on costs issued against it.
2. If the security for costs is not provided in full within 30 days of the Tribunal's order or within any other time period set by the Tribunal, the Tribunal shall inform the disputing parties thereof and may order the suspension or termination of the proceedings.
3. The Tribunal shall consider all evidence provided in relation to the circumstances referred to in paragraph 1, including the existence of third-party funding.
Article 17.48. The Non-Disputing Party
1. The respondent shall, no later than 30 days after receipt of or promptly after any dispute concerning confidential or protected information has been resolved, deliver to the non-disputing Party:
(a) the request for consultations referred to in Article 17.27, the notice requesting a determination referred to in Article 17.28, the claim referred to in Article 17.30 and any other documents that are appended to such documents;
(b) on request of the non-disputing Party:
(i) pleadings, memorials, briefs, requests and other submissions made to the Tribunal by a disputing party;
(ii) written submissions made to the Tribunal by a third person;
(iii) minutes or transcripts of hearings of the Tribunal, if available; and
(iv) 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 submitted to the Tribunal.
2. The non-disputing Party has the right to attend a hearing held under this Section.
3. The Tribunal shall accept or, after consultation with the disputing parties, may invite written or oral submissions on issues relating to the interpretation of this Agreement from the non-disputing Party. The Tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on any submission by the non-disputing Party.
Article 17.49. Intervention by Third Parties
1. The Tribunal shall allow any person which can establish a direct and present interest in the specific circumstances of the dispute (‘the intervener’) to intervene as a third party. The intervention shall be limited to supporting, in whole or in part, the legal position of one of the disputing parties.
2. An application to intervene must be lodged within 90 days of the publication of submission of the claim pursuant to Article 17.30. The Tribunal shall rule on the application within 90 days of the date when that application was lodged, after giving the disputing parties an opportunity to submit their observations.
3. If the application to intervene is granted, the intervener shall receive a copy of every procedural order served on the disputing parties, except, if applicable, confidential or protected information. The intervener may submit a statement in intervention within a time period set by the Tribunal after the communication of the procedural orders. The disputing parties shall have an opportunity to reply to the statement in intervention. The intervener shall be permitted to attend the hearings held under this Section and to make an oral statement.
4. In the event of an appeal, the intervener shall be entitled to intervene before the Appeal Tribunal. Paragraph 3 shall apply mutatis mutandis.
5. The right of intervention conferred by this Article is without prejudice to the possibility for the Tribunal to accept amicus curiae briefs from third persons that have a significant interest in the proceedings, in accordance with Article 4 of the UNCITRAL Transparency Rules.
6. For greater certainty, the fact that a person is a creditor of the claimant shall not be considered in itself sufficient to establish that that person has a direct and present interest in the specific circumstances of the dispute.
Article 17.50. Expert Reports
Without prejudice to the appointment of other kinds of experts, when authorised by the applicable rules referred to in Article 17.30(2), the Tribunal, on request of a disputing party or on its own initiative after consulting the disputing parties, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety or other matters raised by a disputing party in the proceedings.
Article 17.51. Indemnification and other Compensation
The Tribunal shall not accept as a valid defence or similar claim the fact that the claimant or the locally established enterprise has received, or will receive, indemnification or other compensation pursuant to an insurance or guarantee contract in respect of all or part of the compensation sought in a dispute initiated pursuant to this Section.
Article 17.52. Role of the Parties
1. A Party shall not bring an international claim in respect of a dispute submitted pursuant to Article 17.30, unless the other Party has failed to abide by and comply with the award rendered in such dispute. This shall not exclude the possibility of dispute settlement under Chapter 38 in respect of a measure of general application, even if that measure is alleged to have violated this Agreement as regards a specific investment in respect of which a dispute has been initiated pursuant to Article 17.30. This paragraph is without prejudice to Article 17.48.
2. Paragraph 1 does not preclude informal exchanges for the sole purpose of facilitating a settlement of the dispute.
Article 17.53. Consolidation
1. If two or more claims that have been submitted separately under this Section have a question of law or fact in common and arise from the same events and circumstances, the respondent may submit to the President of the Tribunal a request for the consolidated consideration of all such claims or parts thereof. The request shall stipulate:
(a) the names and addresses of the disputing parties to the claims sought to be consolidated;
(b) the scope of the consolidation sought; and
(c) the grounds for the request sought.
2. The respondent shall also deliver the request to each claimant in the claims which the respondent seeks to consolidate.
3. If all disputing parties to the claims sought to be consolidated agree on the consolidated consideration of the claims, those disputing parties shall submit a joint request to the President of the Tribunal pursuant to paragraph 1. Unless the President of the Tribunal determines that the request is manifestly unfounded, the President of the Tribunal shall, within 30 days of receiving such request, constitute a new division (the ‘consolidating division’) of the Tribunal pursuant to Article 17.34, which shall have jurisdiction over some or all of the claims, in whole or in part, which are subject to that request.
4. If the disputing parties referred to in paragraph 3 of this Article have not reached an agreement on consolidation within 30 days of the receipt of the request for consolidation referred to in paragraph 1 of this Article by the last claimant to receive it, the President of the Tribunal shall constitute a consolidating division of the Tribunal pursuant to Article 17.34. The consolidating division shall assume jurisdiction over some or all of the claims, in whole or in part, if, after considering the views of the disputing parties, it is satisfied that the claims submitted pursuant to Article 17.30 have a question of law or fact in common and arise from the same events or circumstances, and that consolidation would best serve the interests of fair and efficient resolution of the claims, including the interest of consistency of awards.
5. If the claimants have not agreed on the dispute settlement rules provided for in the list set out in Article 17.30(2) within 30 days of the date of receipt of the request for consolidated consideration by the last claimant to receive it, the consolidated consideration of the claims shall be submitted to the consolidating division of the Tribunal under application of the UNCITRAL Arbitration Rules subject to the rules set out in this Section.
6. Divisions of the Tribunal constituted pursuant to Article 17.34 shall cede jurisdiction in relation to the claims, or parts thereof, over which the consolidating division has jurisdiction, and the proceedings of such divisions shall be suspended. The award of the consolidating division of the Tribunal in relation to the parts of the claims over which it has assumed jurisdiction shall be binding on the divisions which have jurisdiction over the remainder of the claims as of the date on which the award becomes final pursuant to Article 17.56.
7. A claimant whose claim is subject to consolidation may withdraw its claim, or the part thereof subject to consolidation, from the dispute settlement proceedings under this Article, and, in that event, such claim or part thereof may not be resubmitted pursuant to Article 17.30.
8. At the request of the respondent, the consolidating division of the Tribunal, on the same basis and with the same effect as in paragraphs 3 to 6, may decide whether it shall have jurisdiction over all or part of a claim falling within the scope of paragraph 1 which is submitted after the initiation of the consolidation proceedings.
9. On request of one of the claimants, the consolidating division of the Tribunal may take measures in order to preserve the confidentiality of confidential or protected information of that claimant vis-à-vis other claimants. Such measures may include the submission of redacted versions of documents containing confidential or protected information to the other claimants, or arrangements to hold parts of the hearing in private.
Article 17.54. Provisional Award
1. If the Tribunal concludes that the respondent has breached any of the provisions referred to in Article 17.25(1) as alleged by the claimant, the Tribunal may, on the basis of a request from the claimant and after hearing the disputing parties, award only:
(a) monetary damages and any 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, determined in accordance with Article 17.19.
Where the claim was submitted on behalf of a locally established enterprise, any award under this paragraph shall provide that:
(a) any monetary damages and interest shall be paid to the locally established enterprise;
(b) any restitution of property shall be made to the locally established enterprise.
For greater certainty, the Tribunal may not award remedies other than those referred to in the first subparagraph, nor may order the repeal, cessation or modification of the measure concerned.
2. Monetary damages shall not be greater than the loss suffered by the claimant or, if the claimant acted on behalf of the locally established enterprise, by the locally established enterprise as a result of the breach of the relevant provisions referred to in Article 17.25(1), reduced by any prior damages or compensation already provided by the Party concerned. The Tribunal shall establish such monetary damages on the basis of the submissions of the disputing parties, and shall consider, if applicable, contributory fault, whether deliberate or negligent, or failure to mitigate damages.
3. For greater certainty, if an investor of a Party submits a claim pursuant to Article 17.30, it may recover only loss or damage that it has incurred in its capacity as an investor of a Party.
4. The Tribunal may not award punitive damages.
5. The Tribunal shall order that the costs of the conduct of the proceedings be borne by the unsuccessful disputing party. In exceptional circumstances, the Tribunal may apportion such costs between the disputing parties if it determines that apportionment is appropriate in the circumstances of the case.