4. The Members shall possess the qualifications required for appointment as a judge to the International Court of Justice, or be jurists of recognised competence. They shall have demonstrated expertise in public international law. It is desirable that they have expertise, in particular, in international investment law, international trade law and the resolution of disputes arising under international investment or international trade agreements, or trade negotiations.
5. The Members of the Tribunal shall be appointed for a five-year term. However, the terms of four of the nine persons appointed immediately after the entry into force of this Agreement, to be determined by lot, shall extend to seven 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 authorisation of the President of the Tribunal after consulting the other Members of the division, 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 Tribunal.
6. The Tribunal shall hear cases 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 Mexico and one a national of a third country. The division shall be chaired by the Member who is a national of a third country.
7. Notwithstanding paragraph 6 and if the disputing parties so agree, a case shall be heard by a division consisting of a sole member who is a national of a third country selected by the President of the Tribunal.
8. Within 90 days after the submission of a claim pursuant to Article 10.26, the President of the Tribunal, in accordance with the working procedures adopted pursuant to paragraph 10, shall appoint the Members or Member composing the division of the Tribunal hearing the case on a rotation basis, ensuring that the composition of the division is random and unpredictable, while giving equal opportunity to all Members to be selected.
9. The President of the Tribunal shall be responsible for organisational issues, shall be appointed for a two-year term and shall be drawn by lot from among the Members who are nationals of third countries. The Presidents shall serve on a rotation basis, drawn by lot by the Chair of the Joint Council. The working procedures adopted pursuant to paragraph 10 shall foresee the necessary rules for addressing a temporary unavailability of the President.
10. The Tribunal shall adopt its own working procedures, after consulting the Parties.
11. The Members shall be available at all times and at short notice, and shall stay abreast of dispute settlement activities under this Agreement.
12. In order to ensure their availability, the Members shall be paid a monthly retainer fee to be determined by decision of the Joint Council. For each day worked in fulfilling the functions of President of the Tribunal, the President shall receive a fee equivalent to the fee determined pursuant to Article 10.31.11 for the President of the Appeal Tribunal
13. The retainer fee and the daily fee referred to in paragraph 12 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 those fees the other Party may elect to pay. Any such arrears shall remain payable, with appropriate interest. The Sub-Committee on Services and Investment shall regularly review the amount and repartition of the fees referred to above and may recommend relevant adjustments for decision by the Joint Council.
14. Unless the Joint Council adopts a decision pursuant to paragraph 15, the amount of the other fees and expenses of the Members 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 10.48.5.
15. The Joint Council may decide that the retainer fee and other fees and expenses may be permanently transformed into a regular salary. In that case, the Members shall serve on a full-time basis and the Joint Council shall determine their salary and related organisational matters. In that case, the Members shall not be permitted to engage in any other 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 10.48.5.
Article 10.31. Appeal Tribunal
1. A permanent Appeal Tribunal is hereby established to hear appeals from the awards issued by the Tribunal.
2. The Joint Council 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 Mexico and two shall be nationals of third countries. For that purpose, each Party shall propose three candidates, two of whom may be nationals of that Party and one shall be a non-national.
3. The Joint Council may decide to increase the number of Members by multiples of three. Additional appointments shall be made on the same basis as provided for in paragraph 2.
4. The Members shall possess the qualifications required for appointment as a judge to the International Court of Justice, or be jurists of recognised competence. They shall have demonstrated expertise in public international law and in the subject matter covered by this Chapter. It is desirable that they have expertise in international trade law and the resolution of disputes arising under international investment or international trade agreements.
5. The Members 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 this Agreement, to be determined by lot, shall extend to seven 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 Appeal Tribunal when his or her term expires may, with the authorisation of the President of the Appeal Tribunal, after consulting with the other Members of the division, 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 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 Mexico and one a national of a third country. The division shall be chaired by the Member who is a national of a third country.
7. The President of the Appeal Tribunal, in accordance with the working procedures adopted pursuant to paragraph 9, shall appoint the Members composing the division of the Appeal Tribunal hearing each case on a rotation basis, ensuring that the composition of each division is random and unpredictable, while giving equal opportunity to all Members to be selected.
8. The President of the Appeal Tribunal shall be responsible for organisational issues, shall be appointed for a two-year term and shall be drawn by lot from among the Members who are nationals of third countries. The Presidents shall serve on the basis of a rotation drawn by lot by the Chair of the Joint Council. The working procedures adopted pursuant to paragraph 9 shall foresee the necessary rules for addressing a temporary unavailability of the President.
9. The Appeal Tribunal shall draw up its own working procedures, after consulting the Parties.
10. The Members shall be available at all times and at short notice, and shall stay abreast of other dispute settlement activities under this Agreement.
11. The Members of the Appeal Tribunal shall be paid a monthly retainer fee, in order to ensure their availability, and receive a fee for each day worked as a Member, to be determined by decision of the Joint Council. The President of the Appeal Tribunal shall receive a fee for each day worked in fulfilling the functions of President of the Appeal Tribunal.
12. The retainer fee and the daily fees referred to in paragraph 11 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 those fees the other Party may elect to pay. Any such arrears shall remain payable, with appropriate interest. The Sub-Committee on Services and Investment shall regularly review the amount and repartition of the abovementioned fees and may recommend relevant adjustments for decision by the Joint Council.
13. The Joint Council may decide that the retainer fee and the daily fees may be permanently transformed into a regular salary. In that case, the Members of the Appeal Tribunal shall serve on a full-time basis and the Joint Council shall determine their salary and related organisational matters. In that case, the Members shall not be permitted to engage in any other 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 10.48.5.
Article 10.32. Ethics
1. The Members 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. (48) They shall not take instructions from any government or organisation with regard to matters related to any dispute under this Section. 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 10-D (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 protection dispute under this Agreement or any other agreement or domestic law.
2. If a disputing party considers that a Member appointed to a division does not meet the requirements of paragraph 1, it shall send a notice of challenge of that Member's appointment to the President of the Tribunal or to the President of the Appeal Tribunal, as appropriate. The notice of challenge shall be sent within 15 days after the date on which the composition of the division of the Tribunal or of the Appeal Tribunal was communicated to the disputing party, or within 15 days after 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 after the date of the notice of challenge, the challenged Member has elected not to resign from that division, the President of the Tribunal or the President of the Appeal Tribunal, as appropriate, shall, after hearing the disputing parties and after providing the Member an opportunity to submit any observations, issue a decision within 45 days after receipt of the notice of challenge and forthwith notify the disputing parties and other Members of the division.
4. Challenges of the appointment to a division of the President of the Tribunal shall be decided by the President of the Appeal Tribunal and vice-versa.
5. Upon a reasoned recommendation from the President of the Appeal Tribunal or, on their joint initiative, the Parties, by decision of the Joint Council, may decide to remove a Member from the Tribunal or from the Appeal Tribunal if his or her behaviour is inconsistent with the obligations set out in paragraph 1 and incompatible with his or her 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, the President of the Tribunal shall submit the reasoned recommendation. Articles 10.30.2 and 10.31.2 shall apply, mutatis mutandis, for filling vacancies that may arise pursuant to this paragraph.
Article 10.33. Multilateral Dispute Settlement Mechanism
1. The Parties should cooperate for the establishment of a multilateral mechanism for the resolution of investment disputes.
2. 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 application of the relevant parts of this Section shall be suspended and the Joint Council may adopt a decision specifying any transitional arrangements.
Article 10.34. Applicable Law
1. The Tribunal shall determine whether the measure or measures subject to the claim are in breach of any of the provisions referred to in Article 10.21.1 alleged by the claimant.
2. In making its determination, the Tribunal shall apply the provisions of this Agreement, and, when relevant, other rules and principles 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 10.21.1, 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 10.21.1 under the domestic law of the disputing Party.
5. If a Party has concerns as regards matters of interpretation relating to this Chapter, it may request the Joint Council to consider the issue. The Joint Council may adopt decisions interpreting any provision concerned. Any such interpretation shall be binding on the Tribunal and the Appeal Tribunal. The Joint Council may decide that an interpretation shall have binding effect from a specific date.
6. If a respondent asserts as a defence that the measure alleged to be a breach of any of the provisions referred to in Article 10.21.1 is within the scope of a non-conforming measure set out in Annex I (Reservations for Existing Measures) or Annex II (Reservations for Future Measures), the Tribunal shall, on request of the respondent, request the interpretation of the Joint Council on the issue. The Joint Council shall submit any decision on its interpretation pursuant to Article 1.7 (Specific Functions of the Joint Council) to the Tribunal within 90 days after delivery of the request.
7. A decision submitted by the Joint Council pursuant to paragraph 6 shall be binding on the Tribunal, and any decision or award issued by the Tribunal shall be consistent with that decision. If the Joint Council fails to issue a decision within 90 days, the Tribunal shall decide the issue.
Article 10.35. Anti-Circumvention
For greater certainty, the Tribunal shall decline jurisdiction where the dispute had arisen, or was foreseeable on the basis of a high degree of probability, at the time when the claimant acquired ownership or control of the investment subject to the dispute and the Tribunal determines, on the basis of the facts of the case, that the claimant has acquired ownership or control of the investment for the main purpose of submitting a 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 10.36. Claims Manifestly without Legal Merit
1. The respondent may, no later than 30 days after the constitution of the division of the Tribunal, and in any case before its first session, 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. An objection shall not be submitted pursuant to paragraph 1 if the respondent has filed an objection pursuant to Article 10.37.
3. The respondent shall specify as precisely as possible the basis for the objection.
4. On receipt of an objection pursuant to this Article, the Tribunal shall suspend the proceedings on the merits and establish a schedule for considering such an objection, consistent with its schedule for considering any other preliminary question.
5. The Tribunal, after giving the disputing parties an opportunity to present their observations, shall at its first session or as soon as possible thereafter, issue a decision or award stating the grounds therefor. In doing so, the Tribunal shall assume the alleged facts to be true.
6. This Article shall be without prejudice to the Tribunal's authority to address other objections as a preliminary question or to the right of the respondent to object, in the course of the proceedings, that a claim lacks legal merit.
Article 10.37. 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 an 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 pursuant to Article 10.26 is not a claim for which an award in favour of the claimant may be made under this Section, even if the facts alleged were assumed to be true.
2. An objection pursuant to paragraph 1 shall be submitted to the Tribunal no later than the date the Tribunal determines for the respondent to submit its counter-memorial or statement of defence.
3. If an objection has been submitted pursuant to Article 10.36, the Tribunal may, taking into account the circumstances of that objection, decline to address, under the procedures set out in this Article, an objection submitted pursuant to paragraph 1.
4. On receipt of an objection pursuant to paragraph 1 and, if appropriate, after issuing a decision not to decline an objection pursuant to paragraph 3, 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 award on the objection, stating the grounds therefor.
Article 10.38. Transparency of the Proceedings
1. The Tribunal shall promptly make available to the public all written submissions submitted by the disputing parties to the Tribunal as well as all orders, decisions and awards issued by the Tribunal or, where applicable, by the President of the Tribunal, with the exception of protected information consisting of:
(a) confidential business information; (49)
(b) privileged information that is protected by law from being made available to the public; and
(c) information the disclosure of which would impede law enforcement.
2. The Tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. If a disputing party intends to use information in a hearing that constitutes protected information, it shall so advise the Tribunal. The Tribunal shall make appropriate arrangements to protect such information from disclosure, which may include closing the hearing for the duration of the discussion of that information.
3. The written submissions referred to in paragraph 1 include the memorial, the counter‑memorial, the reply, the rejoinder and any other submission made by a disputing party during the proceedings, such as a notice of challenge pursuant to Article 10.32.2 or the consolidation request pursuant to Article 10.47.
4. Minutes or transcripts of the hearings, if available, shall be made available to the public subject to the redaction of protected information referred to in paragraph 1.
5. Each Party shall make publicly available in a timely manner and prior to the composition of a division of the Tribunal the request for consultations referred to in Article 10.22, the notice requesting a determination of the respondent and the determination of the respondent referred to in Article 10.24, subject to the redaction of protected information. To that effect the claimant shall submit a public version of its request for consultations and notice requesting a determination of the respondent that does not contain the protected information, preferably at the same time but no later than 15 days after submitting the non-public version. If the claimant does not provide such public version, it shall be deemed to have consented to making the submitted documents available to the public.
6. The Tribunal may make available to the public all the exhibits upon request, after consulting the relevant disputing party in order to prevent protected information from being made available to the public and after allowing that party a reasonable period of time to redact, if needed, the pertinent portions of the exhibits.
7. For the purposes of paragraph 1, each disputing party shall be responsible for providing the Tribunal with redacted versions of its written submissions within 30 days after their submission or within any other time limit set by the Tribunal. The Tribunal may review the redacted versions of the disputing parties and may assess whether the redacted information has to be protected. The Tribunal shall, after consulting the disputing parties, decide any objection regarding the qualification or redaction of information claimed to be protected information. If the Tribunal determines that information shall not be redacted from a submission, or that a submission shall not be prevented from being made available to the public, any disputing party that voluntarily made the submission shall be permitted to withdraw all or parts of the submission from the record of the proceedings.
8. The Tribunal shall consult with the disputing parties whether an order, decision or award issued by the Tribunal contains protected information pursuant to subparagraphs 1(a), (b) or (c) before its publication.
9. If a disputing party does not request the Tribunal to preserve confidentiality over protected information in a particular submission, order, decision or award within 30 days after the submission or the consultation of the disputing party pursuant to paragraphs 6 and 8, or within any other time limit set by the Tribunal, that party shall be deemed to have consented to making available to the public such submission, order, decision or award.
10. The Tribunal may make publicly available the submissions referred to in this Article by communication to the repository referred to in the UNCITRAL Rules on Transparency in Treaty‑based Investor-State Arbitration.
11. Nothing in this Section shall require a respondent to withhold from the public information required to be disclosed by its law.
Article 10.39. Interim Measures of Protection
1. 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.
2. The Tribunal shall not order the seizure of assets nor prevent the application of a measure alleged to constitute a breach referred to in Article 10.26. For the purposes of this paragraph, an order includes a recommendation.
Article 10.40. Discontinuance
If, following the submission of a claim under this Section, the claimant fails to take any steps in the proceedings during 180 consecutive days or any other period as agreed by the disputing parties, 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 issued the authority of the Tribunal shall lapse. The claimant may not subsequently submit a claim on the same matter arising from the same measure or measures.
Article 10.41. Security for Costs
1. For greater certainty, upon request, the Tribunal may order the claimant to post security for all or a part of the costs if there are reasonable grounds to believe that the claimant may be unable to comply with an award on costs issued against it.
2. If the security for costs is not posted in full within 30 days after the issuance of an order pursuant to paragraph 1 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.
Article 10.42. The Non-Disputing Party
1. The respondent shall, within 30 days after receipt or promptly after any dispute concerning protected information has been resolved, (50) deliver to the non-disputing Party:
(a) the request for consultations referred to in Article 10.22, the notice requesting a determination of the respondent referred to in Article 10.24 and the claim referred to in Article 10.26;
(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 third persons pursuant to Article 10.43;
(iii) minutes or transcripts of hearings of the Tribunal, if available; and
(iv) orders, awards and decisions of the Tribunal; and
(c) on request and at the cost of the non-disputing Party, all or part of the evidence that has been tendered to the Tribunal, including exhibits appended to the documents referred to in subparagraphs (a) and (b).
2. The non-disputing Party has the right to attend a hearing held under this Section, and to make oral and written submissions to the Tribunal regarding the interpretation of this Agreement. 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 10.43. Interventions by Third Persons
1. After consulting the disputing parties, the Tribunal may accept and consider written amicus curiae submissions regarding a matter of fact or law within the scope of the dispute.
2. Each amicus curiae submission shall be in writing and in the language of the proceedings, unless the disputing parties agree otherwise. Each submission shall identify the author, disclose any affiliation, direct or indirect, with any disputing party, and identify any person, government or other entity that has provided, or will provide, any financial or other assistance in preparing the submission. In addition, the author of the submission shall provide evidence of any affiliation, direct or indirect, with any of the disputing parties, and specify the nature of the interest in the dispute.
3. If the Tribunal accepts submissions pursuant to paragraphs 1 and 2, it shall provide the disputing parties with an opportunity to respond to such submissions.
Article 10.44. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorised by the applicable rules referred to in Article 10.26.2, the Tribunal, at the request of a disputing party, or on its own initiative after consulting the disputing parties, may appoint one or more experts to report to it in writing on any factual scientific issue, such as environmental, health or safety matters, or other matters raised by a disputing party in the proceedings, subject to the terms and conditions that the disputing parties may agree.
Article 10.45. Indemnification or other Compensation
A respondent shall not assert, and the Tribunal shall not accept as a defence, counterclaim, right of set-off, or for any other reason that the claimant or the locally established enterprise on behalf of which the claim is submitted, has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
Article 10.46. Role of the Parties
1. A Party shall not bring an international claim in respect of a claim submitted pursuant to Article 10.26 unless the other Party has failed to abide by and comply with the award issued in that dispute.
2. Paragraph 1 shall not exclude the possibility of dispute settlement under Chapter 31 (Dispute Settlement) in respect of a measure of general application even if that measure is alleged to have breached this Agreement as regards a specific investment in respect of which a claim has been submitted pursuant to Article 10.26, and is without prejudice to Article 10.42.
3. Paragraph 1 does not preclude informal exchanges for the sole purpose of facilitating a settlement of the dispute.
Article 10.47. Consolidation
1. If two or more claims that have been submitted separately pursuant to Article 10.26 have a question of law or fact in common and arise out of the same events or circumstances, a disputing party or the disputing parties jointly may seek the establishment of a separate division of the Tribunal pursuant to this Article and request that such division issue a consolidation order (hereinafter referred to as "consolidation request").
2. The disputing party seeking a consolidation order shall first deliver a notice to the disputing parties it seeks to be covered by this order.
3. If the disputing parties referred to in paragraph 2 have reached an agreement on the consolidation order to be sought, they may make a joint consolidation request. If those disputing parties have not reached agreement on the consolidation request within 30 days after the notice, a disputing party may make a consolidation request.
4. The consolidation request shall be delivered, in writing, to the President of the Tribunal and to all the disputing parties sought to be covered by the order, and shall specify:
(a) the names and addresses of the disputing parties sought to be covered by the order;
(b) the scope of the consolidation sought; and
(c) the grounds for the order sought.
5. A consolidation request involving more than one respondent shall require the agreement of all such respondents.
6. The rules applicable to the proceedings under this Article are determined as follows:
(a) if all of the claims for which a consolidation order is sought have been submitted to dispute settlement under the same rules referred to in Article 10.26.2, those rules shall apply;
(b) if the claims for which a consolidation order is sought have not been submitted to dispute settlement under the same rules referred to in Article 10.26.2:
(i) the claimants may agree on the applicable rules referred to in Article 10.26.2; or
(ii) if the claimants cannot agree on the applicable rules within 30 days after the President of the Tribunal received the consolidation request, the UNCITRAL Arbitration Rules shall apply subject to the specific rules set out in this Section.
7. The President of the Tribunal shall, after receipt of a consolidation request and in accordance with Article 10.30.8 constitute a new division of the Tribunal (hereinafter referred to as "consolidating division") which shall have jurisdiction over some or all of the claims, in whole or in part, which are the subject of the consolidation request.
8. If, after hearing the disputing parties, a consolidating division is satisfied that claims submitted pursuant to Article 10.26 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, the consolidating division may, by order, assume jurisdiction over some or all of the claims, in whole or in part.
9. If a consolidating division has assumed jurisdiction pursuant to paragraph 8, a claimant that has submitted a claim pursuant to Article 10.26 and whose claim has not been consolidated may make a written request to the Tribunal that it be included in the consolidation order, provided that the request complies with the requirements set out in paragraph 4. The consolidating division shall grant that order if it is satisfied that the conditions of paragraph 8 are met and that granting that order would not unduly burden or unfairly prejudice the disputing parties or unduly disrupt the proceedings.
10. On application of a disputing party, the consolidating division, pending its decision pursuant to paragraph 8, may order that the proceedings of the division of the Tribunal appointed pursuant to Article 10.30 be stayed unless the latter Tribunal has already adjourned its proceedings.
11. A division of the Tribunal appointed pursuant to Article 10.30 shall cede jurisdiction in relation to the claims, or parts thereof, over which a consolidating division has assumed jurisdiction.
12. The award of a consolidating division in relation to the claims, or parts thereof, over which it has assumed jurisdiction is binding on the division of the Tribunal appointed pursuant to Article 10.30 as regards those claims, or parts thereof.
13. A claimant may withdraw a claim submitted pursuant to Article 10.26 that is subject to consolidation and that claim shall not be resubmitted pursuant to that Article.
14. At the request of a claimant, a consolidating division may take measures in order to preserve the confidentiality of any protected information as referred to in Article 10.38.1 of that claimant in relation to other claimants. Those 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 10.48. Award
1. If the Tribunal concludes that the respondent has breached any of the provisions referred to in Article 10.21.1 alleged by the claimant, the Tribunal may, on request of the claimant and after hearing the disputing parties, award separately or in combination, 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, determined in a manner consistent with Article 10.18, in lieu of restitution.
2. Subject to paragraph 1, if a claim is submitted on behalf of a locally established enterprise, and an award is made in favour of the locally established enterprise, the award shall provide that:
(a) any restitution of property shall be made to the locally established enterprise;
(b) any monetary damages and applicable interest shall be paid to the locally established enterprise; and
(c) the award is made without prejudice to any right that any person may have under the law of a Party in the relief provided in the award.
3. For greater certainty, the Tribunal may not award other remedies than those referred to in paragraph 1, nor may it order the repeal, cessation or modification of the measure or measures concerned.
4. Monetary damages shall not be greater than the loss suffered by the claimant or, as applicable, the locally established enterprise, as a result of the breach of the provisions referred to in Article 10.21.1, reduced by any prior damages or compensation already provided by the Party concerned. The Tribunal shall not award punitive damages. For greater certainty, if an investor submits a claim pursuant to Article 10.26.1(a), it may recover only loss or damage that it has incurred in its capacity as an investor of a Party.
5. The Tribunal shall order that the costs 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. Other reasonable costs, including the reasonable costs of legal representation and assistance, shall be borne by the unsuccessful disputing party, unless the Tribunal determines that such apportionment is unreasonable in the circumstances of the case. When considering the reasonableness of the costs or of their apportionment, the Tribunal may also take into account whether the costs to be reimbursed to the prevailing disputing party would excessively exceed the costs incurred by the unsuccessful disputing party. If only some parts of the claims have been successful, the costs of the proceedings and other reasonable costs shall be adjusted, proportionately, to the number or extent of the successful parts of the claims. The Appeal Tribunal shall deal with costs in accordance with this Article.
6. No later than one year after the entry into force of this Agreement, the Joint Council 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.
7. The Tribunal and the disputing parties shall make every effort to ensure that the dispute settlement process is carried out in a timely manner. The Tribunal should issue its award within 30 months after the date the claim is submitted pursuant to Article 10.26. If the Tribunal requires additional time to issue its award, it shall provide the disputing parties the reasons for the delay.
8. An award shall become final if 90 days have elapsed after it has been issued and neither disputing party has appealed the award to the Appeal Tribunal.
9. Either disputing party may appeal the award pursuant to Article 10.49. In that case, if the Appeal Tribunal modifies or reverses the award of the Tribunal and refers the matter back to the Tribunal, the Tribunal shall be bound by the findings of the Appeal Tribunal and shall, after hearing the disputing parties if appropriate, revise its award to reflect the findings and conclusions of the Appeal Tribunal. The Tribunal shall seek to issue its revised award within 90 days after receiving the referral by the Appeal Tribunal. The revised award shall become final 90 days after its issuance.
Article 10.49. Appeal Procedure
1. A disputing party may appeal before the Appeal Tribunal an award within 90 days after 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 the appreciation of relevant domestic law; or
(c) the grounds provided for in Article 52 of the ICSID Convention, in so far as they are not covered by subparagraphs (a) and (b) of this paragraph.
2. If the Appeal Tribunal dismisses the appeal, the award shall become final. The Appeal Tribunal may also dismiss the appeal on an expedited basis where it is clear that the appeal is manifestly unfounded, in which case the award shall become final. If the appeal is well founded, the Appeal Tribunal shall modify or reverse the legal findings and conclusions in the award in whole or part. Its decision shall specify precisely how it has modified or reversed the relevant findings and conclusions of the Tribunal.