2. The consent under paragraph 1 and the submission of a claim to arbitration under this section shall comply with the requirements set out in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the Parties to the dispute;
(b) Article II of the New York Convention for an agreement in writing; and
(c) Article I of the Inter-American Convention requires an agreement.
Article 11.18. Conditions and Limitations on Consent of the Parties
1. No claim may be submitted to arbitration under this section if more than three years have elapsed from the date on which the claimant knew or should have had knowledge of the alleged breach under article 11.16.1 and knowledge that the claimant (for claims brought under article 11.16.1 (a)) or the enterprise (for claims brought under article 11.16.1 (b)) has suffered losses or damages.
2. No claim may be submitted to arbitration under this section unless:
(a) The claimant consents in writing to submit to arbitration in accordance with the procedures set out in this Agreement; and
(b) The notice of arbitration referred to in article 11.16.5 accompanied,
(i) The written waiver of the applicant for claims submitted to arbitration under article 11.16.1 (a),
(ii) Written on waivers of the claimant and the enterprise for claims submitted to arbitration under article 11.16.1 (b),
Any right to initiate before any tribunal or administrative court under the law of either party or any other dispute settlement procedures proceedings with respect to the facts that are alleged to breach claimed.
3. No claim may be submitted to arbitration, if the claimant (for claims brought under article 11.16.1 (a)) and the claimant or the enterprise (for claims brought under article 11.16.1 (b)) has previously submitted the same alleged breach before a judicial or administrative tribunal of the defendant, or to any other binding dispute settlement procedure. For greater certainty, if an investor elects to submit a claim of the type described above before a judicial or administrative tribunal of the defendant, that election shall be definitive and the investor may not thereafter submit the claim to arbitration under this section.
4. Without prejudice to paragraph 2 (b), the claimant (for claims brought under article 11.16.1 (a)) and the claimant or the enterprise (for claims brought under article 11.16.1 (b)) may continue or initiate an action that seeks an application for protective measures of suspensive effect, declaratory or special and that does not involve the payment of monetary damages before a judicial or administrative tribunal of the defendant, provided that the action is brought for the sole purpose of preserving its rights and interests of the claimant or the enterprise during the period of waiting of arbitration.
Article 11.19. Selection of Arbitrators
1. Unless the parties agree otherwise, the T ribunal shall be composed of three arbitrators, one arbitrator desig Nado by each of the warring parties and the third, who shall be the presiding arbitrator shall be appointed by agreement of the parties involved.
2. The Secretary-General shall appoint the arbitrators in the arbitration proceedings under this section.
3. Where a tribunal shall not be integrated within 75 days from the date that the claim is submitted to arbitration under this section, the Secretary-General, at the request of a party, designate litigants, at its discretion, the arbitrator or arbitrators not yet appointed.
4. For the purposes of article 39 of the ICSID Convention and article 7 of part C of the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator on grounds that are not nationals of:
(a) The respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) The claimant referred to in article 11.16.1 (a) may submit a claim to arbitration under this section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only on condition that the claimant's consent in writing to the appointment of each member of the Tribunal; and
(c) The claimant referred to in article 11.16.1 (b) may submit a claim to arbitration under this section, or continue a claim under the ICSID Convention or the ICSID Additional Facility Rules only on condition that the claimant and the enterprise consent in writing to the appointment of each member of the Tribunal.
Article 11.20. Conduct of the Arbitration
1. The parties may agree on the legal place of any arbitration held under the applicable arbitral rules under article 11.16.4 11.16.4 (b), (c) or (d) 11.16.4. In the absence of agreement between the warring parties, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
2. The Party not litigants may make oral or written submissions to the Tribunal regarding the interpretation of this Agreement.
3. The Tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a party (Challenger "the holder of the report"). The reports shall be made in English and shall identify the holder of the report and any Party Government or another person or organization, apart from the holder of the report, or provide that has provided any financial or other assistance in preparing the report.
4. Without prejudice to the powers of the T ribunal a preliminary objections as to other issues, such as an objection that the dispute is not within the competence of the T A T ribunal ribunal, known as a preliminary question and decide any objection by the respondent that as a matter of law, a claim is not submitted a claim for which an award in favour of could be issued to the applicant under article 11.26.
(a) Such objection shall be submitted to the T ribunal as soon as possible after the Constitution of the T ribunal, and in no event later than the tribunal fixes the date for the respondent to submit its response to the demand; or in the case of an amendment to the notice of arbitration referred to in article 11.16.5, fixes the date the Tribunal for the respondent to submit its response to the amendment.
(b) Upon receipt of an objection, the Tribunal shall suspend any proceedings on the merits, shall establish a schedule for the objection considering consistent with any schedule it has established for considering preliminary question, and any other issue a decision or award on the objection, stating the grounds.
(c) In deciding an objection under this paragraph, the Tribunal shall assume to certain factual arguments submitted by the claimant in support of any claim in the notice of arbitration (or any amendment thereof) and in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in article 18 of the UNCITRAL Arbitration Rules. The Tribunal may also consider any relevant fact that is not subject to the dispute.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because it has or has not formulated an objection under this paragraph or make use of the expedited procedure set out in paragraph 5.
5. In the event that the respondent so requests within 45 days after the Constitution of the Tribunal, the Tribunal shall decide on an expedited basis, on an objection under paragraph 4 or any objection that the dispute is not within the competence of the Tribunal. The Tribunal shall suspend any proceedings on the merits and issue no later than 150 days after the date of the request, a decision or award, stating the objection on the basis. However, if a Party requests a litigant the Tribunal hearing may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, the Tribunal shall show a special reason, delay issuing its decision or award by an additional brief period of time, which may not exceed 30 days.
6. When the T ribunal decides on the objection of the respondent in accordance with paragraphs 4 or 5, may, if warranted, awarded to the winner litigants party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is justified, the tribunal shall determine whether the claim of the claimant or the objection of the respondent was frivolous and shall accord to the warring parties a reasonable opportunity to present their comments.
7. The respondent shall as a defence, counterclaim or countervailing duty or for any other reason that pursuant to an insurance contract, or guarantee that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damage.
8. A tribunal may order an interim measure of protection to preserve the rights of a combatant or with the aim of ensuring the full exercise of the competence of the Tribunal, including an order to preserve evidence in the possession or control of combatant or a party to protect the competence of the Tribunal. The Tribunal or attachment order may not prevent the application of a measure that is deemed to be a breach referred to in article 11.16.
9..(a) At the request of any of the Parties to the conflict, the Tribunal before the award on the responsibility, transmit its proposed award to the parties to the conflict and the Party not litigants. Within 60 days after such proposed award only warring parties may submit written comments to the Tribunal concerning any aspect of its proposed award. The Tribunal deemed such comments and issue its award not later than 45 days after the expiration of the 60-day comment.
(b) Subparagraph (a) shall not apply in any arbitration for which an appeal has been made available pursuant to paragraph 10 or anexo11 -g.
10. If the parties are put in place a separate multilateral treaty that establishes an appellate body for purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment treaties to hear investment disputes, the parties will explore the possibility to reach an agreement that would have such appellate body review under Article 10.26 awards rendered in arbitrations commenced after that have been established the Appellate Body.
Article 11.21. Transparency of the Arbitral Proceedings
1. Subject to paragraphs 2 and 4, the defendant, after receiving the following documents, shall promptly notify the Party not combatants and make available to the public:
(a) The notice of intent referred to in article 11.16.3;
(b) The notice of arbitration referred to in article 11.16.5;
(c) Written pleadings, demand and other documents to be submitted to the Tribunal by a Party combatant and any written communication submitted in accordance with article and article 11.20.2 11.20.3 and 11.25;
(d) The minutes or transcripts of hearings of the Tribunal, when available; and
(e) Orders or judgments and decisions of the Tribunal.
2. The Tribunal shall conduct hearings open to the public and shall, in consultation with the parties - the appropriate logistical arrangements. However, any opposing side in a hearing to use information designated as protected information shall inform the court. The tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Nothing in this section requires a respondent to provide or furnish or protected information to allow access to information that it may withhold in accordance with article 17.2 Essential (Security) or Article 19.5 (disclosure of information).
4. The protected information shall, if such information is submitted to the Tribunal shall be protected from disclosure in accordance with the following procedures:
(a) Subject to subparagraph (d), neither warring parties nor the T ribunal litigants not disclose to the party or to the public any information protected where the opposing side that provided the information clearly designates it in accordance with subparagraph (b);
(b) Any litigant party claiming that certain information constitutes protected information shall clearly designate the time to be submitted to the Tribunal;
(c) A combatant Party shall, at the same time that it submits a document containing information claimed as protected information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the Party not combatants and shall be made public in accordance with paragraph 1; and
(d) The Tribunal shall decide on any objection regarding the designation of Information claimed as protected information. If the Tribunal determines that such information was not properly designated the opposing side that submitted the information may:
(i) Withdraw all or part of its submission containing such information; or
(ii) Agree to resubmit with complete and redacted documents corrected designations in accordance with the Tribunal determination and subparagraph (c).
In any case, the other party combatant shall, where necessary, resubmit to complete and redacted documents which either omitted information withdrawn in accordance with subparagraph (d) (i) by the Party that submitted the first information litigants or redesignen information consistent with the designation under subparagraph (d) (ii) of the Party that submitted the first information litigants.
5. Nothing in this section authorizes a respondent to deny public access to information, in accordance with its legislation, should be disclosed.
Article 11.22. Applicable Law
1. Subject to paragraph 2, when a claim is submitted under article 11.16.1 (a) (i) or article 11.16.1 (b) (ii), the Tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
2. Administering a decision of the Commission declaring its interpretation of a provision of this Agreement under article 15.1 (commission administering) shall be binding on a tribunal established under this section and any award must be consistent with that decision.
Article 11.23. Interpretation of Annexes I and II
1. If the respondent raise as a defence that the measure is alleged to be a breach within the scope of a Non-Conforming Measure contained in Annex I or Annex II, at the request of the defendant, the T ribunal shall request the administering a commission interpretation on the matter. Within 60 days of the delivery of the request the Commission to the Court Administrator shall submit in writing any decision declaring its interpretation.
2. The Administrator decision issued by the Commission under paragraph 1 shall be binding on the T ribunal and any award issued by the Tribunal must be consistent with that decision. If the Commission fails to issue such a decision within 60 days, administering the tribunal shall decide on the matter.
Article 11.24. Expert Reports
Without prejudice to the appointment of other kinds of experts where this is authorized by the applicable arbitration rules, the Tribunal, at the request of a party or on its own initiative litigants, unless the parties to the conflict do not accept, may appoint one or more experts to inform in writing on any factual issue concerning environmental affairs, health, safety or other scientific matters raised by a Party in a proceeding litigants, in accordance with the terms and conditions to be agreed upon between the warring parties.
Article 11.25. Cumulation of Procedures
1. In cases in which they have been submitted to arbitration two or more claims under article 11.16.1 and separately the claims raised in a common question of fact or law and arise out of the same events or circumstances litigants, any Party may seek a consolidation order in accordance with the agreement of all parties involved in respect of which the order is sought cumulation or with the terms of paragraphs 2 through 10.
2. The opposing side seeking a consolidation order under this article shall provide in writing to the Secretary-General and to all the warring parties against which the order is sought cumulation and in the request shall specify:
(a) The names and addresses of all the warring parties against which the order is sought cumulation;
(b) The nature of the order sought and cumulation;
(c) The rationale underlying the request.
3. Unless the Secretary-General determines within 30 days of receipt of a request under paragraph 2 that the request is manifestly unfounded, a Tribunal shall be established under this article.
4. Unless all the warring parties against which the order is sought cumulation agree otherwise, the T ribunal established pursuant to this article shall be composed of three arbitrators.
(a) One arbitrator appointed by agreement of the claimants;
(b) One arbitrator appointed by the respondent; and
(c) The presiding arbitrator appointed by the Secretary-General who shall not be a national of any of the Parties.
5. If within 60 days of the receipt by the Secretary-General of the request made in accordance with paragraph 2, the respondent or the claimants fail to appoint an arbitrator in accordance with paragraph 4, the Secretary-General, at the request of any party litigants against which the order is sought cumulation, shall appoint the arbitrator or arbitrators not yet appointed. If the respondent fails to appoint an arbitrator, the Secretary-General shall appoint a national of the respondent, and if the claimants fail to appoint an arbitrator, the Secretary-General shall appoint a national of the Party not litigants.
6. In the event that the Tribunal established under this article is satisfied that have been submitted to arbitration two or more claims under article 11.16.1 which arise in a common question of fact or law, and arising out of the same events or circumstances the T ribunal may, in the interest of fair and efficient resolution of the claims and after hearing the parties - by order:
(a) Assume jurisdiction to hear and determine jointly, on all or part of the claims;
(b) Assume jurisdiction and hear and determine one or more of the claims the determination of which it believes would assist in the resolution of the others; or
(c) Instruct a tribunal established under article 11.19 to assume jurisdiction to hear and determine together on all or part of the claims, provided that:
(i) The Tribunal, at the request of any claimant previously not opposing side before that Court recover, with its original Members except that the arbitrator for the claimants pursuant to paragraphs 4 and 5 (a); and
(ii) That Tribunal shall decide whether any prior hearing repeat.
7. Where a tribunal has been established under this article, that a claimant has submitted a claim to arbitration under article 11.16.1 and whose name is not mentioned in a request made under paragraph 2 may make a written request to the Tribunal that it be included in any applicant order is made under paragraph 6 and in the request shall specify:
(a) The name and address of the claimant;
(b) The nature of the order sought and cumulation;
(c) The reasons for the request.
The claimant shall deliver a copy of its request to the Secretary-General.
8. The Tribunal established under this article shall conduct its proceedings in accordance with the UNCITRAL Arbitration Rules, except as modified by this section.
9. A tribunal established under article 11.19 shall not have jurisdiction to decide a claim. or a part thereof, which has assumed jurisdiction instructed or a tribunal established under this article.
10. At the request of a party litigants, the Tribunal established under this article may, pending its decision under paragraph 6, provided that the proceedings of a tribunal established under article 11.19 be postponed, unless the latter Tribunal has suspended its procedures.
Article 11.26. Awards
1. Where the Tribunal for a final award unfavourable to the defendant, the Tribunal may award separately or in combination, only:
(a) Monetary damages and interest as appropriate; and
(b) Restitution of property in which case the award shall provide that the respondent may pay monetary damages as appropriate, plus interest in lieu of restitution.
The Tribunal may award costs and fees in accordance with this section and the applicable arbitration rules.
2. Subject to paragraph 1, when a claim is submitted to arbitration under article 11.16.1 (b):
(a) The award for the restitution of property that shall provide restitution be made to the enterprise;
(b) The award granted monetary damages and interest, shall provide that the sum be paid to the enterprise; and
(c) The award shall provide that it is made without prejudice to any right that any person has in the relief under applicable domestic law.
3. A tribunal may not order a party to pay punitive damages.
4. An award made by a tribunal shall be binding only for opposing parties and only in respect of the particular case.
5. Subject to paragraph 6 and the review procedure applicable for an interim award, the opposing side abide by and comply with an award without delay.
6. The opposing side shall not seek enforcement of a final award until:
(a) In the case of a final award made under the ICSID Convention
(i) 120 days have elapsed from the date the award was rendered litigant and no party has requested revision or annulment of the same, or
(ii) Have concluded the revision or annulment proceedings; and
(b) In the case of a final award made under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules or the rules selected pursuant to article 11.16.4 (D)
(i) 90 days have elapsed from the date the award was rendered and no party litigant has commenced a proceeding revised to set aside or annul it, or
(ii) A court has dismissed or allowed an application for revision or annulment of the award, revocation and this decision cannot be appealed.
7. Each Party shall provide for the enforcement of an award in its territory.
8. If the respondent fails to abide by or comply with a final award, on delivery of a request by the Party not litigants bunal Tri shall establish an arbitral tribunal pursuant to Article 16.6 (establishment of an arbitral tribunal). The requesting party may invoke the procedures for:
(a) A determination that the failure or refusal of the terms of the final award is inconsistent with the obligations of this Agreement; and
(b) In accordance with the procedures laid down in article 16.11 (preliminary report), a decision that abide by the respondent or comply with the final award.
9. A Party may apply a litigant enforcement of an arbitration award under the ICSID Convention or the New York Convention or the Inter-American Convention regardless of whether or not commenced the procedures referred to in paragraph 8.
10. For the purposes of article I of the New York Convention and article I of the Inter-American Convention shall be considered a claim that is submitted to arbitration under this section arises out of a commercial relationship or transaction.
Article 11.27. Service of Documents
Delivery of notice and other documents on a party shall be done in the place designated by it in Annex 11 - H.
Section C. Definitions
Article 11.28. Definitions
For the purposes of this chapter:
Written agreement means a written agreement, signed and enacted by a Party and an investor of the other party or its representative that establishes an exchange of rights and obligations with monetary value. A unilateral act of an administrative or judicial authority, such as an order or judgment judicial order, nor a record of transaction, shall be considered as a written agreement;
Centre means the International Centre for Settlement of Investment Disputes (ICSID) established by the ICSID Convention;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, held in Panama de1975; 30 January
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington on 18 March 1965;
Means the respondent party that is a party to a dispute concerning an investment;
Claimant means an investor of a Party that is a party to an investment dispute with the other party;
Enterprise of a party constituted means an enterprise or organized under the law of a Party and a branch located in the territory of a party and carrying out business activities there;
Existing means in effect on the date of signature of this Agreement;
Protected information means confidential business information or information that is privileged or otherwise protected from disclosure is located in accordance with the laws of a party;
Financial institution means any financial intermediary or other enterprise that is authorized to do business or supervised and regulated as a financial institution under the law of the Party in whose territory it is located;
Investment means every asset owned or controlled by an investor of the same, directly or indirectly, that has the characteristics of an investment, including characteristics such as the commitment of capital or other resources, the expectation of gain or profit or the assumption of risk. An investment may take forms that include:
(a) An enterprise;
(b) Actions, capital and other forms of equity participation in an enterprise;
(c) Bonds, debentures and other debt instruments of an enterprise loans and (12), (13)
(d) Futures, options and other derivatives;
(e) Turnkey contractual rights or under construction, management, production of participation in the granting of earnings and other contracts;
(f) Intellectual Property Rights;
(g) Rights conferred pursuant to domestic law, including concessions, licences and permits and authorizations (14);
(h) Other property rights tangible or intangible, movable or immovable property and related property rights, such as leases, mortgages, liens and pledges guarantees;
But investment does not mean an order or judgment entered in a judicial or administrative proceedings;
investor of a non-Party means, with respect to a Party, an investor that intends to make (15), is making or has made an investment in the territory of that Party, that is not an investor of any Party;
An investor of a Party means a Party or a state enterprise thereof, or a national of that Party or an enterprise that seeks to perform (16), is making or has made an investment in the territory of the other party; whereas, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the state of his or her dominant and effective nationality;
The free use means currency Currency "free" as determined in accordance with the Articles of Agreement of the International Monetary Fund;
Designated monopoly means an entity, including those controlled directly or indirectly through ownership, national interest by the Government of a Party or an agency of a consortium that Government, in any relevant market in the territory of a Party is designated or is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an intellectual property right solely by virtue of such award (17);
Disputing party means either the claimant or the respondent;
A Party not combatant means that the Party is not a party to a dispute concerning an investment;
Parties means the claimant and the respondent;
Negotiated restructuring means for purposes of Annex 11 - (b), the restructuring or rescheduling of a debt instrument that has been effected through:
(a) A modification of such debt instrument, as provided for under the terms of this instrument; or