Article 10.52. Consolidation
1. In the event that two or more claims that have been submitted separately under this Section have a question of law or fact in common and arise out of 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 part of them. 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.
The respondent shall also deliver the request to each claimant in a claim which the respondent seeks to consolidate.
2. In the event that all disputing parties to the claims sought to be consolidated agree on the consolidated consideration of the claims, the 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 after receiving such joint request, constitute a new division (the "consolidating division") of the Tribunal pursuant to Article 10.33 (Tribunal of First Instance ("Tribunal")) which shall have jurisdiction over some or all of the claims, in whole or in part, which are subject to the joint consolidation request.
3. In the event that the disputing parties referred to in paragraph 2 have not reached an agreement on consolidation within thirty days of the receipt of the request for consolidation referred to in paragraph 1 by the last claimant to receive it, the President of the Tribunal shall constitute a consolidating division of the Tribunal pursuant to Article 10.33 (Tribunal of First Instance ("Tribunal")). 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 claims submitted pursuant to Article 10.29 (Submission of a Claim) have a question of law or fact in common and arise out of the same events or circumstances, and consolidation would best serve the interests of fair and efficient resolution of the claims including the interest of consistency of awards.
4. If the claimants have not agreed upon the dispute settlement rules from the list contained in Article 10.29 (Submission of a Claim) paragraph 2 within 30 days after the date of receipt of the request for consolidated consideration by the last claimant to teceive 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 Chapter.
5. Divisions of the Tribunal constituted under Article 10.33 (Tribunal of First Instance ("Tribunal")) 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 the award becomes final pursuant to Article 10.52 (Final Award).
6. 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 such claim or part thereof may not be resubmitted under Article 10.29 (Submission of a Claim).
7. At the request of the respondent, the consolidating division of the Tribunal, on the same basis and with the same effect as paragraphs 3 and 6 above, may decide whether it shall have jurisdiction over all or part of a claim falling within the scope of paragraph 1 above, which is submitted after the initiation of the consolidation proceedings.
8. At the request of one of the claimants, the consolidating division of the Tribunal may take measures in order to preserve the confidentiality of protected information of that claimant vis-a-vis other claimants. Such measures may include the submission of redacted versions of documents containing protected information to the other claimants or arrangements to hold parts of the hearing in private.
Article 10.53. Provisional Award
1. Where the Tribunal concludes that the respondent has breached any of the provisions referred to in Article 10.24 (1) (Scope and Definitions) 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 a manner consistent with Article 10.17 (Expropriation) of Section C (Investment Protection) of Chapter 10 (Investment).
Where the claim was submitted on behalf of a locally-established company, any award under this paragraph shall provide that:
(a) any monetary damages and interest shall be paid to the locally established company;
(b) any restitution of property shall be made to the locally established company.
For greater certainty, the Tribunal may not award remedies other than those referred to in paragraph 1, 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 of the Agreement, reduced by any prior damages or compensation already provided by the Party concerned. The Tribunal shall establish such monetary damages based on 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 Article 10.29 (Submission of a Claim) it may recover only for 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.
6. The Tribunal shall also allocate other reasonable costs, including the reasonable costs of legal representation and assistance, to be borne by the unsuccessful disputing party when it dismisses a claim and renders an award pursuant to Articles 10.41 (Claims manifestly without legal merit) and 10.42 (Claims unfounded as a matter of law). In other circumstances, the Tribunal shall determine the allocation of other reasonable costs, including the reasonable costs of legal representation and assistance among the disputing parties, considering the outcome of the proceedings and other relevant circumstances, such as the conduct of the parties.
7. Where only some parts of the claims have been successful the costs shall be adjusted, proportionately, to the number or extent of the successful parts of the claims.
8. The Appeal Tribunal shall deal with costs in accordance with this Article.
9. No later than one year after the entry into force of this Agreement, the [...] Committee shall adopt supplemental rules on fees for the purpose of determining the maximum amount of costs of legal representation and assistance that may be borne by specific categories of unsuccessful disputing parties, taking into account their financial resources.
10. The Tribunal shall issue a provisional award within 24 months of the date of submission of the claim. If that deadline cannot be respected, the Tribunal shall adopt a decision to that effect, which will specify to the disputing parties the reasons for such delay and indicate an estimated date for the issuance of the provisional award.
Article 10.54. Appeal Procedure
1. Either disputing party may appeal before the Appeal Tribunal a provisional award, within 90 days of its issuance. The grounds for appeal are:
(a) that the Tribunal has erred in the interpretation or application of the applicable law;
(b) that the Tribunal has manifestly erred in the appreciation of the facts, including where relevant the appreciation of domestic law; or
(c) those provided for in Article 52 of the ICSID Convention, in so far as they are not covered by (a) and (b).
2. The Appeal Tribunal shall reject the appeal where it finds that the appeal is unfounded. It may also reject the appeal on an expedited basis where it is clear that the appeal is manifestly unfounded.
3. If the Appeal Tribunal finds that the appeal is well founded, the decision of the Appeal Tribunal shall modify or reverse the legal findings and conclusions in the provisional award in whole or part. Its decision shall specify precisely how it has modified or reversed the relevant findings and conclusions of the Tribunal.
4. When the facts established by the Tribunal so permit, the Appeal Tribunal shall apply its own legal findings and conclusions to such facts and render a final decision. When that is not possible, it shall refer the matter back to the Tribunal.
5. As a general rule, the appeal proceedings shall not exceed 180 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appeal Tribunal issues its decision. When the Appeal Tribunal considers that it cannot issue its decision within 180 days, it shall inform the disputing parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its decision. In no case should the proceedings exceed 270 days.
6. A disputing party lodging an appeal shall provide security for the costs of appeal.
7. The provisions of Articles 10.32 (Third Party Funding), 10.43 (Transparency), 10.44 (Interim Measures), 10.45 (Discontinuance), 10.47 (The Non-Disputing Party to the Agreement) and, where relevant, other provisions of this Section, shall apply mutatis mutandis in respect of the appeal procedure.
Article 10.55. Final Award
1. A provisional award issued pursuant to this Section shall become final if neither disputing party has appealed the provisional award pursuant to Article 10.54 (Appeal Procedure).
2. When a provisional award has been appealed and the Appeal Tribunal has rejected the appeal pursuant to Article 10.54 (Appeal Procedure), the provisional award shall become final on the date of rejection of the appeal by the Appeal Tribunal.
3. When a provisional award has been appealed and the Appeal Tribunal has rendered a final decision, the provisional award as modified or reversed by the Appeal Tribunal shall become final on the date of the issuance of the final decision of the Appeal Tribunal.
4. When a provisional award has been appealed and the Appeal Tribunal has modified or reversed the legal findings and conclusions of the provisional award and referred the matter back to the Tribunal, the Tribunal shall, after hearing the disputing parties if appropriate, revise its provisional award to reflect the findings and conclusions of the Appeal Tribunal. The Tribunal shall be bound by the findings made by the Appeal Tribunal. The Tribunal shall seek to issue its revised award within 90 days of receiving the decision of the Appeal Tribunal. The revised provisional award will become final 90 days after its issuance.
5. The term "final award" shall include any final decision of the Appeal Tribunal rendered pursuant to Article 10.54 (Appeal Procedure).
Article 10.56. Enforcement of Awards
1. An award rendered pursuant to this Section shall not be enforceable until it has become final pursuant to Article 10.55 (Final Award). Final awards issued pursuant to this Section by the Tribunal shall be binding between the disputing parties and shall not be subject to appeal, review, set aside, annulment or any other remedy (32).
2. Each Party shall recognize an award rendered pursuant to this Agreement as binding and enforce the pecuniary obligation within its territory as if it were a final judgement of a court in that Party.
3. Execution of the award shall be governed by the laws concerning the execution of judgments or awards in force where such execution is sought.
4. For greater certainty, Article X [numbering tbd] (Rights and obligations of natural or juridical persons under this Agreement, Chapter Y) shall not prevent the recognition, execution and enforcement of awards rendered pursuant to this Section.
5. For the purposes of Article 1 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, final awards issued pursuant to this Section are arbitral awards relating to claims that are considered to arise out of a commercial relationship or transaction.
6. For greater certainty and subject to paragraph 1, where a claim has been submitted to dispute settlement pursuant to Article 10.29 (2) (a) (Submission of a Claim), a final award issued pursuant to this Section shall qualify as an award under Section 6 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965 (ICSID).
Conclusion
Attachments
ANNEX [numbering tbd] . MEDIATION MECHANISM FOR INVESTOR-TO-STATE DISPUTES
1. Initiation of the Procedure
1. Either disputing party may request, at any time, the commencement of a mediation procedure. Such request shall be addressed to the other party in writing.
Where the request concerns an alleged breach of the Agreement by the authorities of the European Union or by the authorities of the Member States of the European Union, and no respondent has been determined pursuant to Article 10.27 (Request for Determination of the Respondent) of Section D (Resolution of Investment Disputes and Investment Court System), it shall be addressed to the European Union. Where the request is accepted, the response shall specify whether the European Union or the Member State concerned will be a party to the mediation (33).
2. The party to which such request is addressed shall give sympathetic consideration to the request and accept or reject it in writing within 20 working days of its receipt.
2. Rules of the Mediation Procedure
1. The disputing parties shall endeavour to reach a mutually agreed solution within 90 days from the appointment of the mediator. Pending a final agreement, the disputing parties may consider possible interim solutions.
2. Mutually agreed solutions shall be made publicly available. However, the version disclosed to the public may not contain any information that a disputing party has designated as confidential or protected.
3. Relationship to Dispute Settlement
1. The procedure under this mediation mechanism is not intended to serve as a basis for dispute settlement procedures under this Agreement or another agreement. A disputing party shall not rely on or introduce as evidence in such dispute settlement procedures, nor shall any adjudicative body take into consideration:
(a) positions taken by a disputing party in the course of the mediation procedure;
(b) the fact that a disputing party has indicated its willingness to accept a solution to the measure subject to mediation; or
(c) advice given or proposals made by the mediator.
2. The mediation mechanism is without prejudice to the rights and obligations of the Parties and the disputing parties under Section D (Resolution of Investment Disputes and Investment Court System) and Chapter YY (State to State Dispute Settlement).
3. Unless the disputing parties agree otherwise, and without prejudice to Article 10.26 (6 specific paras tod) (Consultations and amicable resolution), all steps of the procedure, including any advice or proposed solution, shall be confidential. However, the Party engaged in mediation may disclose to the public that mediation is taking place.
ANNEX [numbering tbd] . CODE OF CONDUCT FOR MEMBERS OF THE TRIBUNAL, THE APPEAL TRIBUNAL AND MEDIATORS
(text not available)
ANNEX XXXX . EXPROPRIATION
The Parties confirm their shared understanding that:
1. Expropriation under Article 10.17 (Expropriation) may be either direct or indirect:
(a) direct expropriation occurs when an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.
(b) indirect expropriation occurs where a measure or series of measures by a Party has an effect equivalent to direct expropriation, in that it substantially deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formaltransfer of title or outright seizure.
2. The determination of whether a measure or series of measures by a Party, in a specific situation, constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(a) the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred;
(b) the duration of the measure or series of measures by a Party; and
(c) the character of the measure or series of measures, including their object, purpose and context.
3. For greater certainty, non-discriminatory measures by a Party that are designed and applied to achieve legitimate policy objectives, such as the protection of public health, social services, education, safety, environment, including climate change, or public morals, social or consumer protection, privacy and data protection, or the promotion and protection of cultural diversity, do not constitute indirect expropriations, unless the impact of a measure or series of measures is so severe in light of its purpose that it is manifestly excessive.
ANNEX XXXX . TRANSFERS-CHILE (34)
1. Notwithstanding Article 10.18 (Transfers), Chile reserves the right of the Central Bank of Chile (Banco Central de Chile) to maintain or adopt measures in conformity with Law 18.840, Constitutional Organic Law of the Central Bank of Chile (Ley 18.840, Ley Organica Constitucional del Banco Central de Chile) , Decreto con Fuerza de Ley N°3 de 1997, Ley General de Bancos (General Banking Act) and Ley de Mercado de Valores N°18.045 (Securities Market Law), in order to ensure currency stability and the normal operation of domestic and foreign payments. Such measures include, inter alia, the establishment of restrictions or limitations on current payments and transfers (capital movements) to or from Chile, as well as transactions related to them, such as requiring that deposits, investments or credits from or to a foreign country, be subject to a reserve requirement (encaje).
2. Notwithstanding paragraph 1, the reserve requirement that the Central Bank of Chile can apply pursuant to Article 49 N°2 of Law 18.840, shall not exceed 30 percent of the amount transferred and shall not be imposed for a period which exceeds two years.
ANNEX XXXX . PUBLIC DEBT
1. No claim that a restructuring of debt of a Party breaches an obligation under Section C (Investment Protection) may be submitted to, or if already submitted, be pursued under Section D (Resolution of Investment Disputes and Investment Court System) if the restructuring is a negotiated restructuring at the time of submission, or becomes a negotiated restructuring after such submission.
2. Notwithstanding Article xxxx (Submission of a Claim) of Section D (Resolution of Investment Disputes and Investment Court System), and subject to paragraph [1] of this Annex, an investor of the other Party may not submit a claim under Section D (Resolution of Investment Disputes and Investment Court System) that a restructuring of debt of a Party breaches Articles 10.7 (National Treatment) or 10.9 (Most Favoured Nation Treatment) (35) or an obligation under Section C (Investment Protection), unless 270 days have elapsed from the date of submission by the claimant of the written request for consultations pursuant to Article xxxx (Consultations) of Sub-Section 1 (Scope and Definitions) of Section D (Resolution of Investment Disputes and Investment Court System).
3. For the purposes of this Annex:
(a) "negotiated restructuring" means the restructuring or rescheduling of debt of a Party that has been effected through (i) a modification or amendment of debt instruments, as provided for under their terms, including their governing law, or (ii) a debt exchange or other similar process in which the holders of no less than 66% of the aggregate principal amount of the outstanding debt subject to restructuring, excluding debt held by that Party or by entities owned or controlled by it, have consented to such debt exchange or other process.
(b) "governing law" of a debt instrument means a jurisdiction's legal and regulatory framework applicable to that debt instrument.
4. For greater certainty, "debt of a Party" includes, in the case of the European Union, debt of a government of a Member State at the central, regional or local level.
ANNEX XXXX . COMPETENT AUTHORITIES MENTIONED IN ARTICLE 10.14 PARAGRAPH 4 OF SECTION C (INVESTMENT PROTECTION)
In the case of the EU, the competent authorities entitled to order the actions mentioned in Article 10.14 (Investment and Regulatory Measures) paragraph 4 are the European Commission or a court or tribunal of a Member State when applying EU law on state aid.
ANNEX XXXX . AGREEMENTS BETWEEN MEMBER STATES OF THE EUROPEAN UNION AND CHILE
1. Agreement between the Belgo-Luxembourg Economic Union and the Republic of Chile on the Promotion and Reciprocal Protection of Investments, done in Brussels on 15 July 1992;
2. Agreement between the Government of the Czech Republic and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments, done in Prague on 24 April 995;
3. Agreement between the Government of the Kingdom of Denmark and the Government of the Republic of Chile concerning the Promotion and Reciprocal Protection of Investments, done in Copenhagen on 28 May 1993;
4. Agreement between the Federal Republic of Germany and the Republic of Chile on the Promotion and Reciprocal Protection of Investment, done in Santiago de Chile on 21 October 1991;
5. Agreement between the Government of the Hellenic Republic and the Government of the Republic of Chile on the Promotion and Reciprocal Protection of Investments, done in Athens on 10 July 1996;
6. Agreement between the Kingdom of Spain and the Republic of Chile on the Reciprocal Protection and Promotion of Investments, done in Santiago de Chile on 2 October 1991;
7. Agreement between the Government of the Republic of France and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments, done in Paris on 4 July 1992;
8. Agreement between the Government of the Republic of Croatia and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments, done in Santiago de Chile on 28 November 1994;
9. Agreement between the Government of the Republic of Chile and the Government of the Italian Republic on the Promotion and Protection of Investments, done at Santiago de Chile on 8 March 1993;
10. Agreement between the Republic of Austria and the Republic of Chile on the Promotion and Reciprocal Protection of Investments, done in Santiago de Chile on 8 September 1997;
11. Agreement between the Government of the Republic of Poland and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments, done in Warsaw on 5 July 1995;
12. Agreement between the Portuguese Republic and the Republic of Chile on the Promotion and Reciprocal Protection of Investments, done in Lisbon on 28 April 1995;
13. Agreement between the Government of Romania and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments, done in Bucharest on 4 July 1995;
14. Agreement between the Government of the Republic of Finland and the Government of the Republic of Chile on the Promotion and Reciprocal Protection of Investments, done at Helsinki on 27 May 1993;
15. Agreement between the Government of the Kingdom of Sweden and the Government of the Republic of Chile on the Promotion and Reciprocal Protection of Investments, done in Stockholm on 24 May 1993
Joint Interpretative Declaration on the Investment Protection Agreement between Chile and the European Union and its Member States
The European Union and its Member States and Chile make the following Joint Interpretative Declaration at the time of signature of the Investment Protection Agreement between them.
In light of their commitments under the Paris Agreement, the Contracting Parties confirm that their investors should expect that the Contracting Parties will adopt measures that are designed and applied to combat climate change or address its present or future consequences, by mitigation, adaptation, reparation, compensation or otherwise. When interpreting the provisions of the Investment Protection Agreement, the Tribunal should take due consideration of the commitments of the Parties under the Paris Agreement and their respective climate neutrality objectives. Thus, the Parties confirm their understanding that the provisions of the Investment Protection Agreement shall be interpreted and applied by the Tribunal by taking due consideration of the commitments of the Parties under the Paris Agreement and their respective climate neutrality objectives and in a way that allows the Parties to pursue their respective climate change mitigation and adaptation policies.