6. Where either the European Union or a Member State of the European Union acts as respondent following a determination made pursuant to paragraph 3, neither the European Union nor the Member State concerned may assert the inadmissibility of the claim, lack of jurisdiction of the Tribunal or otherwise assert that the claim or award is unfounded or invalid on the ground that the proper respondent should be or should have been the European Union rather than the Member State or vice versa.
7. The Tribunal and the Appeal Tribunal shall be bound by the determination made pursuant to paragraph 3 and, if no such determination has been communicated to the claimant, the application of paragraph 4.
8. Nothing in this Agreement or the applicable rules on dispute settlement shall prevent the exchange of all information relating to a dispute between the European Union and the Member State concerned.
Article 10.28. Requirements for a Submission of a Claim
1. Before submitting a claim the claimant shall:
(a) Withdraw any pending claim or proceeding before any domestic or international court or tribunal under domestic or international law concerning any measure alleged to constitute a breach referred to in Article 10.24 (1) (Scope and Definitions);
(b) provide a written waiver that it will not initiate any claim or proceedings before any domestic or international court or tribunal under domestic or international law concerning any measure alleged to constitute a breach referred to in Article 10.24 (1) (Scope and Definitions);
(c) a declaration that it will not enforce any award rendered pursuant to this Section before such award has become final pursuant to Article 10.55 (Final Award), and will not seek to appeal, review, set aside, annul, revise or initiate any other similar procedure before an international or domestic court or tribunal, as regards an award pursuant to this section.
2. The Tribunal shall dismiss a claim by a claimant who has submitted a claim to the Tribunal or to any other domestic or international court or tribunal concerning the same measure as that alleged to be inconsistent with the provisions referred to in Article 10.24 (1) (Scope and Definitions) unless the claimant withdraws such pending claim. This paragraph shall not apply where the claimant submits a claim to a domestic court or tribunal seeking interim injunctive or declaratory relief.
3. For the purposes of this Article, the term "claimant" includes the investor and, if the investor acted on behalf of the locally established enterprise, the locally established enterprise. In addition, for the purposes of paragraphs 1(a) and 2 this Article the term "claimant" also includes:
(a) where the claim is submitted by an investor acting on its own behalf, all persons who, directly or indirectly, have an ownership interest in or are controlled by the investor; or
(b) where the claim is submitted by an investor acting on behalf of a locally established enterprise, all persons who, directly or indirectly, have an ownership interest in or are controlled by the locally established enterprise, and claim to have suffered the same loss or damage as the investor or locally established enterprise. (25)
Article 10.29. Submission of a Claim
1. If the dispute cannot be settled within six months of the submission of the request for consultations and, where applicable, at least three months have elapsed from the submission of the notice requesting a determination of the respondent pursuant to Article 10.27 (Request for Determination of the Respondent), the claimant, provided that it satisfies the requirements set out in this Article and in Article 10.31 (Consent), may submit a claim to the Tribunal established pursuant to Article 10.33 (Tribunal of First Instance ("Tribunal")).
2. A claim may be submitted to the Tribunal under one of the following sets of rules on dispute settlement:
(a) the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965 (ICSID) provided that both the respondent and the State of the claimant are parties to the ICSID Convention;
(b) the ICSID Additional Facility Rules provided that either the respondent or the State of the claimant is a party to the ICSID Convention;
(c) the UNCITRAL Arbitration Rules; or
(d) any other rules agreed by the disputing parties at the request of the claimant.
3. The rules on dispute settlement referred to in paragraph 2 shall apply subject to the rules set out in this Chapter, as supplemented by any rules adopted by the [...] Committee.
4. All the claims identified by the claimant in the submission of its claim pursuant to this Article must be based on information identified in its request for consultations pursuant to Article 10.26 (4) (c) and (d) (Consultations and amicable resolution).
5. Claims submitted in the name of a class composed of a number of unidentified claimants, or submitted by a representative intending to conduct the proceedings in the interests of a number of identified or unidentified claimants that delegate all decisions relating to the proceedings on their behalf, shall not be admissible.
6. For greater certainty, a claimant may not submit a claim under this Section if its investment has been made through fraudulent misrepresentation, concealment, corruption, or conduct amounting to an abuse of process.
Article 10.30. Counterclaims
1. The respondent may submit a counterclaim on the basis of an investor's failure to comply with an international obligation applicable in the territories of both Parties, (26) arising in connection with the factual basis of the claim. (27)
2. The counterclaim shall be submitted no later than in the Respondent's counter-memorial or statement of defence, or at a later stage in the proceedings if the Tribunal decides that the delay was justified under the circumstances.
3. For greater certainty, claimant's consent to the procedures under this Section includes the submission of counterclaims by the respondent.
Article 10.31. 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 New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards 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 10.29 (Submission of a Claim).
Article 10.32. 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 where the division of the Tribunal is not established, to the President of the Tribunal, the name and address of the third party funder, and where applicable, ultimate beneficial owner and corporate structure.
2. This 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 proceeding.
Subsection 4. Investment Court System
Article 10.33. Tribunal of First Instance ("Tribunal")
1. A Tribunal of First Instance ("Tribunal") is hereby established to hear claims submitted pursuant to Article 10.29 (Submission of a Claim).
2. The [...] 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 of the European Union, three shall be nationals of Chile and three shall be nationals of third countries. In appointing the Judges, the Committee is encouraged to consider the need to ensure diversity and a fair gender representation.
3. The [...] Committee may decide to increase or to decrease the number of the Judges by multiples of three. Additional appointments shall be made on the same basis as provided for in paragraph 2.
4. The Judges shall possess the qualifications required in their respective countries 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 appointed pursuant to this Section shall be appointed for a five-year term. However, the terms of five (two nationals of a Member State of the European Union, two nationals of Chile and one national of third countries) of the nine persons appointed immediately after the entry into force of the Agreement, to be determined by lot, shall extend to eight years. Vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessorâs term. A person who is serving on a division of the Tribunal when his or her term expires may, with the authorization 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 the 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 Chair of the [...] Committee. The Vice-President shall replace 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 of the European Union, 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 10.29 (Submission of a Claim), the composition of the division of the Tribunal hearing the case shall be established by the President of the Tribunal 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, the disputing parties may agree that a case be heard by a sole Judge who is a national of a third country, to be selected by the President of the Tribunal. The respondent shall give sympathetic consideration to such a request from the claimant, in particular where 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 10.29 (Submission of a Claim).
10. The Tribunal shall draw up 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 Agreement.
12. In order to ensure their availability, the Judges shall be paid a monthly retainer fee to be fixed by decision of the [...] Committee. The President of the Tribunal and, where applicable, the Vice-President, shall receive a fee equivalent to the fee determined pursuant to Article 10.34 (11) (Appeal Tribunal) 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 both Parties taking into account their respective levels of development into an account managed by the Secretariat of ICSID. In the event that one Party fails to pay the retainer fee the other Party may elect to pay. Any such arrears will remain payable, with appropriate interest. The Committee shall regularly review the amount and repartition of the fees referred to above and may recommend relevant adjustments.
14. Unless the [...] Committee adopts a decision pursuant to paragraph 15, the amount of the other fees and expenses of the Judges on a division of the Tribunal shall be those 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 10.53 (4 [specific paras tbd]) (Provisional Award).
15. Upon a decision by the [...] Committee, the retainer fee and other fees and expenses may be permanently transformed into a regular salary. In such an event, the Judges shall serve on a full-time basis and the [...] Committee shall fix their remuneration and related organisational matters. In that event, the Judges shall not be permitted to engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the President of the Tribunal.
16. The Secretariat of 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 10.53 (Provisional Award) paragraphs 4, 5 and 6 [specific paras tbd].
Article 10.34. Appeal Tribunal
1. A permanent Appeal Tribunal is hereby established to hear appeals from the awards issued by the Tribunal.
2. The [...] 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 of the European Union, two shall be nationals of Chile and two shall be nationals of third countries. In appointing the Members of the Appeal Tribunal, the Committee is encouraged to consider the need to ensure diversity and a fair gender representation.
3. The Committee may decide to increase the number of the Members of the Appeal Tribunal by multiples of three. Additional appointments shall be made on the same basis as provided for in paragraph 2.
4. The Members of the Appeal Tribunal shall possess the qualifications required in their respective countries for appointment to the highest judicial offices, 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 persons appointed immediately after the entry into force of the Agreement, to be determined by lot, shall extend to eight years. Vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessor's term. A person who is serving on a division of the Tribunal when his or her term expires may, with the authorization 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 Member of the Appeal Tribunal.
6. The Appeal Tribunal shall have a President and Vice-President responsible for organisational issues, with the assistance of the 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 Chair of the [...] Committee. The Vice-President shall replace 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 of the European Union, 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 composition of the division hearing each appeal shall be established in each case by the President of the Appeal Tribunal 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 draw up 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 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 [...] Committee. The President of the Appeal Tribunal and, where 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 shall be paid by both Parties taking into account their respective levels of development into an account managed by the Secretariat of ICSID. In the event that one Party fails to pay the retainer fee the other Party may elect to pay. Any such arrears will remain payable, with appropriate interest. The Committee shall regularly review the amount and repartition of the abovementioned fees and may recommend relevant adjustments.
13. Upon a decision by the [...] Committee, the retainer fee and the fees for days worked may be permanently transformed into a regular salary. In such an event, the Members of the Appeal Tribunal shall serve on a full-time basis and the [...] Committee shall fix their remuneration and related organisational matters. In that event, the Members shall not be permitted to engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the President of the Appeal Tribunal.
14. The Secretariat of ICSID 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 10.53 (Provisional Award) paragraphs 4, 5, 6 and 7 [specific paras tbd].
Article 10.35. Ethics
1. The Judges of the Tribunal and the Members of the Appeal Tribunal shall be chosen from persons whose independence is beyond doubt. They shall not be affiliated with any government. (28) They shall not take instructions from any government or organisation 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. In so doing they shall comply with Annex [numbering tbd] (Code of Conduct for Members of the Tribunal, the Appeal Tribunal and Mediators). In addition, 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 or any other agreement or domestic law.
2. If a disputing party considers that a Judge or a Member 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, respectively. 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 composition of the division. The notice of challenge shall state the grounds for the challenge.
3. If, within 15 days from the date of the notice of challenge, the challenged Judge or Member has elected not to resign from that division, the President of the Tribunal or the President of the Appeal Tribunal, respectively, shall, after hearing the disputing parties and after providing the Judge or the Member an opportunity to submit any observations, issue a decision within 45 days of receipt of the notice of challenge and forthwith notify the disputing parties and other Judges or Members of the division.
4. Challenges against 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 areasoned recommendation from the President of the Appeal Tribunal, (29) the Parties, by decision of the [...] 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 and incompatible with their continued membership of the Tribunal or Appeal Tribunal. If the behaviour in question is alleged to be that of the President of the Appeal Tribunal then the President of the Tribunal of First Instance shall submit the reasoned recommendation. Articles 10.33 (2) (Tribunal of First Instance ("Tribunal")) and 10.34 (2) (Appeal Tribunal) shall apply mutatis mutandis for filling vacancies that may arise pursuant to this paragraph.
Article 10.36. Multilateral Dispute Settlement Mechanisms
The Parties shall endeavor 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 Agreement, the relevant parts of this Section shall cease to apply. The [...] Committee may adopt a decision specifying any necessary transitional arrangements.
Subsection 5. Conduct of Proceedings
Article 10.37. 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 10.24 (1) (Scope and Definitions).
2. In making such determination, the Tribunal shall apply the provisions of 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 10.24 (1) (Scope and Definitions), the Tribunal shall consider, when relevant, 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 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 10.24 (1) (Scope and Definitions) under the domestic 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 10.15 (Treatment of Investors and Covered Investment), the investor has the burden of proving its claims, consistent with general principles of international law applicable to the dispute.
6. Where serious concerns arise as regards matters of interpretation relating to [the Investment Protection (30) or the Resolution of Investment Disputes and Investment Court System Section of this Agreement], the [...] Committee may adopt decisions interpreting this Agreement. Any such interpretation shall be binding on the Tribunal and the Appeal Tribunal. The [...] Committee may decide that an interpretation shall have binding effect from a specific date.
Article 10.38. Interpretation of Annexes
Following a request for consultations pursuant to Article 10.26(3) (Consultations and amicable resolution), the respondent may request in writing to the [Committee] that it determines 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 [numbering tbd] (Reservations for Existing Measures) or Annex [numbering tbd] (Reservations for Future Measures). This referral shall be made as soon as possible after the reception of the request for consultations. Upon the referral to the [Committee] the periods of time referred to in Article [...] shall be suspended. The [Committee] shall attempt in good faith to make a determination. Any such determination shall be transmitted promptly to the disputing parties. If the [Committee] has not made a determination within three months after the referral of the matter, the suspension of the periods of time referred to above ceases to apply.
Article 10.39. Other Claims
Where claims are brought pursuant to this Section and Section X (State to State dispute settlement) or another international agreement concerning the same alleged breach referred to in Article 10.24 (1) (Scope and Definitions), and there is a potential for overlapping compensation; or the other international claim could have a significant impact on the resolution of the claim brought pursuant to this Section, the Tribunal shall, where relevant, after hearing the disputing parties, take into account proceedings pursuant to Section X (State to State dispute settlement) or another international agreement in its decision, order or award. To this end, it may also stay its proceedings. In acting pursuant to this provision the Tribunal shall respect Article 10.53 (10) (Provisional Award).
Article 10.40. Anti-Circumvention
For greater certainty, the Tribunal shall decline jurisdiction where 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 restructure and the Tribunal determines, on the basis of the facts of the case, that the claimant has acquired ownership or control of the investment or engaged in the corporate restructure 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 10.41. Claims Manifestly without Legal Merit
1. The respondent may, no later than 30 days after the constitution of the division of the Tribunal pursuant to Article 10.33 (7) (Tribunal of First Instance (âTribunalâ)), and in any event before the first session of the division of the Tribunal, or 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 no later than 120 days after the objection was filed. In deciding the objection, the Tribunal shall assume the facts as alleged by the claimant to be true, and may also consider any relevant facts 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 10.42 (Claims Unfounded as a Matter of Law) or in the course of the proceeding, to the legal merits of a claim and without prejudice to the Tribunal's authority to address other objections as a preliminary question.
Article 10.42. 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, as a matter of law, a claim, or any part thereof, submitted under this Section is not a claim for which an award in favour of the claimant may be made under Article 10.53 (Provisional Award), even if the facts as alleged by the claimant were assumed to be true. The Tribunal may also consider any relevant facts not in dispute.
2. An objection under paragraph 1 shall be submitted to the Tribunal as soon as possible after the division of the Tribunal is constituted, and in no event later than the date the Tribunal fixes for the respondent to submit its counter-memorial or statement of defence. An objection may not be submitted under paragraph 1 as long as proceedings under Article 10.41 (Claims manifestly without legal merit) are pending, unless the Tribunal grants leave to file an objection under this Article, after having taken due account of the circumstances of the case.
3. On receipt of an objection under 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 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 10.43. Transparency
1. The "UNCITRAL Transparency Rules" shall apply to disputes under this Section mutatis mutandis, with the following additional obligations.
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 mediate referred to in Article 10.25, the request for consultations referred to in Article 10.26, the notice requesting a determination of the respondent and the determination of the respondent referred to in Article 10.27, the notice of challenge and the decision on this challenge referred to in Article 10.35, and the consolidation request referred to in Article 10.52 [para xx].
3. For greater certainty, exhibits may be made available to the public in accordance with Article 3.3 of the of the UNCITRAL Transparency Rules.
4. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, the European Union 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 10.26 (Consultations and amicable resolution), the request for determination of the Respondent and the determination of the Respondent referred to in Article 10.27 (Request for Determination of the Respondent), subject to the redaction of confidential or protected information. 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 information in a hearing that is designated as confidential or protected information shall so advise the tribunal.
6. Any disputing party claiming that certain information constitutes protected or confidential 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 information required to be disclosed by its law.
Article 10.44. Interim Measures
The Tribunal may order an interim measure 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 the possession or control of a disputing party or to protect the Tribunal's jurisdiction. The Tribunal may not order the seizure of assets nor may it prevent the application of the treatment alleged to constitute a breach.
Article 10.45. Discontinuance
If, following the submission of a claim under this Section, the claimant fails to take any steps in the proceeding during 180 consecutive days or such periods 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 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 10.46. Security for Costs
1. For greater certainty, upon request by 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 after the Tribunalâs order or within any other time period set by the Tribunal, the Tribunal shall so inform the disputing parties. The Tribunal may order the suspension or termination of the proceedings.
3. The Tribunal shall consider all evidence adduced in relation to the circumstances in paragraph (1), including the existence of third-party funding.
Article 10.47. The Non-Disputing Party to the Agreement
1. The respondent shall, within 30 days after receipt or promptly after any dispute concerning confidential or protected information has been resolved, (31) deliver to the non- disputing Party:
(a) a request for consultations referred to in Article 10.26 (Consultations and amicable resolution), a notice requesting a determination referred to in Article 10.27 (Request for Determination of the Respondent), a claim referred to in Article 10.29 (Submission of a Claim) and any other documents that are appended to such documents;
(b) on request:
(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, where available; and
(iv) orders, awards and decisions of the Tribunal.
(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 10.48. Intervention by Third Parties
1. The Tribunal shall permit any natural or legal 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 10.29 (Submission of a Claim). The Tribunal shall tule on the application within 90 days, 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, save, where 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 Chapter and to make an oral statement.
4. In the event of an appeal, a natural or legal person who has intervened before the Tribunal 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 natural or legal person is a creditor of the claimant shall not be considered as sufficient in itself to establish that it has a direct and present interest in the result of the dispute.
Article 10.49. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorised by the applicable rules referred to in Article 10.29 (Submission of a claim) paragraph 2, a tribunal, the request of a disputing party or, after consulting the disputing parties, on its own initiative, 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 a proceeding.
Article 10.50. 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 10.51. Role of the Parties to the Agreement
1.No Party shall bring an international claim, in respect of a dispute submitted pursuant to Article 10.29 (Submission of a Claim) 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 Section X (State to State dispute settlement) in respect of a measure of general application even if that measure is alleged to have violated the Agreement as regards a specific investment in respect of which a dispute has been initiated pursuant to Article 10.29 (Submission of a Claim). This is without prejudice to Article 10.47 (The Non-Disputing Party to the Agreement).
2. Paragraph 1 does not preclude informal exchanges for the sole purpose of facilitating a settlement of the dispute.