(iii) Expand the number of bilateral Double Taxation Avoidance Agreements among COMESA member States.
(b) Collective initiative to:
(i) Establish a Database for COMESA Supporting Industries and COMESA Technology Suppliers;
(ii) Establish a COMESA database to enhance the flow of COMESA investment data and information on investment opportunities in COMESA:
(iii) Promote public-private sector linkages through regular dialogues with the COMESA business community and other international organizations to identify investment impediments within and outside COMESA and propose ways to improve the COMESA investment environment;
(iv) Identify target areas for technical co-operation, e.g. development of human resources, infrastructure, supporting industries, small and medium-sized enterprises, information technology, industrial technology, R and D and co-ordinate efforts within COMESA and other international organizations involved in technical co-operation;
(v) Review and where possible improve the Investment Agreement for the COMESA Common Investment Area; and
(vi) Examine the possibility of a COMESA Double Taxation Agreement.
Schedule II. PROMOTION AND AWARENESS PROGRAMME
In respect of the Promotion and Awareness programme, Member States shall;
1. Organise joint investment promotion activities e.g. seminars, workshops, inbound familiarization tours for investors from capital exporting countries, joint promotion of specific projects with active business sector participation.
2. Conduct regular consultation among investment agencies of COMESA on investment promotion matters;
3. Organize investment-related training programmes for officials of investment agencies of COMESA;
4. Exchange lists of promoted sectors/industries where member States could encourage investments from other member States and initiate promotional activities; and
5. examine possible ways by which the investment agencies of Member States can support the promotion efforts of other member States.
Schedule III. LIBERALISATION PROGRAMME
In respect of the Liberalization Programme, Member States shall:
1. Unilaterally reduce and eliminate restrictive investment measures and review their investment regimes regularly towards further liberalization. In this context, Member States may undertake actions to liberalise, among others:
(i) rules, regulations and policies relating to investment;
(ii) rules on licensing conditions;
(iii) rules relating to access to domestic finance; and
(iv) Rules to facilitate payment, receipts and repatriation of profits by investors
2. Undertake individual action plans to:
(i) open up all industries for investment to COMESA investors by 2010 in accordance with the provisions of this Agreement; and
(ii) extend national treatment to all COMESA investors by 2010 in accordance with the provisions of this Agreement; and
3. Promote freer flow of capital, skilled labour, professionals and technology among COMESA member States.
Attachments
1. Consultation and Negotiation
In the event of a dispute under this Agreement, the claimant and the respondent shall seek to resolve the dispute in accordance with Article 28. The claimant and respondent constitute the disputing parties.
2. Submission of a Claim to Arbitration
(1) In the event that a disputing party considers that a dispute cannot be settled by alternative means, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled: A Member State may submit to arbitration under this Agreement a claim that the respondent has breached an obligation under this Agreement, and that the claimant or its investor has incurred loss or damage by reason of, or arising out of, that breach;
(2) For greater certainty, a claimant may submit to arbitration a claim referred to in Paragraph (1) that the respondent has breached an obligation through the actions of a designated government monopoly, local or state government or a state enterprise exercising delegated government authority.
(3) At least 180 days before submitting any claim to arbitration, a potential claimant shall deliver to the potential respondent a written notice of its intention to submit the claim to arbitration ("notice of intention). The notice shall specify:
(a) the name and address of the claimant and its legal representative;
(b) for each claim, the provision(s) of this Agreement alleged to have been breached and any other relevant provisions;
(c) the legal and factual basis for each claim; and
(d) the relief sought and, where appropriate, the approximate amount of damages claimed.
The CCIA Committee may establish a specific form for this purpose and make it available through the Internet and other means.
(4) Provided that at least six months have elapsed since the events giving rise to the claim, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled, a claimant may formally submit a Notice of Arbitration to the respondent State and to the COMESA Secretariat.
(5) A claim shall be deemed submitted to arbitration when the claimants Notice of Arbitration is submitted to the respondents and to the COMESA Secretariat. The CCIA Committee may establish a specific form for this purpose and make it available through the internet and other means. The Notice of Arbitration shall include, at a minimum, the information required in Paragraph (3).
3. Rules of Arbitration
The CCIA Committee shall establish Rules of Arbitration consistent with the provisions of this Agreement. Until the adoption of such Rules, the Rules of Arbitration of the International Centre for Settlement of Investment Disputes in effect on the date the claim or claims were submitted to arbitration under this Agreement, shall govern the arbitration except to the extent modified by this Agreement, irrespective of whether the host and home states are parties to the ICSID Convention.
4. Consent of Each Party to Arbitration
Each Member State consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions.
5. Conditions and Limitations on Consent of Each Party
No claim may be submitted to arbitration if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged in the Notice of Arbitration.
6. Selection of Arbitrators
(1) The Secretary General of the COMESA Secretariat shall, within 30 days of the filing of a notice of arbitration, appoint the panel members from the standing roster of panelists. No panel member shall be from the host or home state.
(2) A panel shall be composed of three members, with one designated as President of the panel.
(3) A disputing party may contest the nomination of an arbitrator for good cause, including real or apparent conflict of interest. Any challenges shall be decided by the remaining two designated arbitrators. Such a challenge must be brought as soon as practicable after information leading to the challenge is made known to the challenging party.
7. Conduct of the Arbitration
(1) Unless otherwise agreed by the disputing parties, the place of arbitration shall be at the COMESA Secretariat.
(2) Any non-disputing Member State may make oral and written submissions to the tribunal regarding the interpretation of this Agreement.
(3) Without prejudice to a tribunals authority to address other objections as a preliminary question, such as an objection that a dispute is not within a tribunals competence, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made.
(a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its first written argument.
(b) On receipt of an objection under this Paragraph, 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 thereof.
(c) In deciding an objection under this Paragraph, the tribunal shall assume to be true claimants factual allegations in support of any claim in the notice of arbitration. The tribunal may also consider any relevant facts not in dispute.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because the respondent did or did not raise an objection under this Paragraph or make use of the expedited procedure set out in the following Paragraph.
(4) In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under Paragraph (3) or any objection that the dispute is not within the tribunals competence. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds thereof, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period of time, which may not exceed 30 days.
(5) When it decides a respondents objection under Paragraph (3), the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorneys fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider inter alia whether either the claimants claim or the respondents objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
(6) A respondent may not assert as a defense, counterclaim, right of setoff, or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
(7) A tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the tribunals jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the tribunals jurisdiction. A tribunal may not order attachment or enjoin the application of a measure alleged to constitute a breach of the relevant parts of this Agreement. The protection of the public welfare and public interests shall be considered when any interim measures are requested.
8. Amicus Curiae
(1) The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party (the "submitter).
(2) The submissions shall be provided in English, French or Potugesesor in the principal language of the host state, and shall identify the submitter and any Party, other government, person, or organization, other than the submitter, that has provided, or will provide, any financial or other assistance in preparing the submission.
(3) The CCIA Committee may establish and make available to the public a standard form for applying for sta/tus as amicus curiae. This may include specific criteria which will help guide a tribunal in determining whether to accept a submission in any given instance.
(4) Amicus curiae submissions may relate to any matter covered by this Agreement that is relevant to the claim before the tribunal.
9. Transparency of Arbitral Proceedings
(1) Subject to Paragraphs (2) and (4), the claimant and respondent shall, after sending the following documents to the other disputing party, promptly transmit them to the Secretariat which shall make them available to the public including by Internet:
(a) the notice of intention;
(b) any settlement agreement resulting from alternative dispute resolution processes;
(c) the notice of arbitration;
(d) pleadings, memorials and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to this Annex or the Rules of Arbitration;
(e) minutes or transcripts of hearings of the tribunal, where available; and
(f) all orders, awards, and decisions of the tribunal.
(2) The tribunal shall conduct all hearings open to the public and shall determine, in consultation with the disputing parties and the Secretariat the appropriate logistical arrangements. However, any disputing party that intends to use information designated as confidential business information or information that is privileged or otherwise protected from disclosure under a partys law in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
(3) Nothing in this section requires a respondent to disclose confidential business information or information that is privileged or otherwise protected from disclosure under a Member States law or to furnish or allow access to information that it may withhold in accordance with this Agreement.
(4) Confidential business information or information that is privileged or otherwise protected from disclosure under a Member States law shall, if such information is submitted to the tribunal, be protected from disclosure in accordance with the following procedures:
(a) subject to Sub-paragraph (d), neither the disputing parties nor the tribunal shall disclose to the non-disputing party or to the public any confidential business information or information that is privileged or otherwise protected from disclosure under a Member States law where the disputing party that provided the information clearly designates it in accordance with Sub-paragraph (b);
(b) any disputing party claiming that certain information constitutes confidential business information or information that is privileged or otherwise protected from disclosure under a Member States law shall clearly designate the information at the time it is submitted to the tribunal;
(c) a disputing party shall, at the same time that it submits a document containing information claimed to be confidential business information or information that is privileged or otherwise protected from disclosure under a Member States law, submit a redacted version of the document that does not contain the information. Only the redacted version shall be provided to the non-disputing party and made public in accordance with Paragraph (1); and
(d) the tribunal shall decide any objection regarding the designation of information claimed to be confidential business information or information that is privileged or otherwise protected from disclosure under a Member States law. If the tribunal determines that such information was not properly designated, the disputing party that submitted the information may:
i) withdraw all or part of its submission containing such information; or
ii) agree to resubmit complete and redacted documents with corrected designations in accordance with the tribunals determination and Sub-paragraph (c). In either case, the other disputing party shall, whenever necessary, resubmit complete and redacted documents which either remove the information withdrawn under Sub-paragraph (d)(i) by the disputing party that first submitted the information or redesignate the information consistent with the designation under Sub-paragraph (d)(ii) of the disputing party that first submitted the information.
(5) Nothing in this Agreement authorizes a respondent to withhold from the public information required to be disclosed by its laws.
10. Expert Reports
A tribunal, at the request of a disputing party or on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety or other matters raised in a proceeding. The tribunal shall consider any terms or conditions relating to such appointments that the disputing parties may suggest.
11. Consolidation
(1) Where two or more claims have been submitted separately to arbitration under this Agreement and the claims have a question of law or fact in common and arise out of the same events or circumstances, any disputing party may seek a consolidation order.
(2) A disputing party that seeks a consolidation order under this Article shall deliver, in writing, a request to the Secretary General of the COMESA Secretariat and to all the disputing parties sought to be covered by the order and shall specify in the request:
a) the names and addresses of all the disputing parties sought to be covered by the order;
b) the nature of the order sought; and
c) the grounds on which the order is sought.
(3) Unless the Secretary General of the COMESA Secretariat finds within 30 days after receiving a request under Paragraph (2) that the request is manifestly unfounded, a separate tribunal shall be established under this Article by the Secretary General solely to consider the issue of consolidation.
(4) Where a tribunal established under this Article is satisfied that two or more claims that have been submitted to arbitration have a question of law or fact in common, and arise out of the same events or circumstances, the tribunal may, in the interest of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
a) assume jurisdiction over, and hear and determine together, all or part of the claims;
b) assume jurisdiction over, 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 previously established to assume jurisdiction over, and hear and determine together, all or part of the claims, provided that that tribunal shall decide whether any prior hearing shall be repeated.
(5) Where a tribunal has been established under this Article, a claimant that has submitted a claim to arbitration and that has not been named in a request made under Paragraph (2) may make a written request to the tribunal that it be included in any order made under Paragraph (4), and shall specify in the request:
a) the name and address of the claimant;
b) the nature of the order sought; and
c) the grounds on which the order is sought.
(6) On application of a disputing party, a tribunal established under this Article, pending its decision under Paragraph (4), may order that the proceedings of another tribunal be stayed, unless the latter tribunal has already adjourned its proceedings.
12. Awards
(1) Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
a) monetary damages and any applicable interest against a Member State; and
b) restitution of property from a Member State, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs and attorneys fees in accordance with the applicable arbitration rules.
(2) Subject to Paragraph (1), where a claim is submitted to arbitration on behalf of an investment:
a) an award of restitution of property shall provide that restitution be made to the investment; and
b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the investment.
(3) A tribunal may not award punitive damages.
(4) An award made by a panel tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
(5) Subject to Paragraph (6), a disputing party shall comply with an award without delay.
(6) A disputing party may not seek enforcement of a final award until:
a) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to appeal the award; or
b) the COMESA Court of Justice has rejected an appeal.
(7) Each Party shall provide for the enforcement of an award in its territory and make the appropriate legal proceedings available for this purpose.
13. Appellate Process
(1) A Member State may appeal to the COMESA Court of Justice, within 60 days, a panel decision on the basis of procedural irregularity, an error of law or a material and manifest error of fact. Such appeals shall proceed in accordance with Annex A. No other appeal or arbitration review process shall be applicable to arbitrations under this Agreement.
(2) The appellate process shall apply, mutatis mutandis, the rules of procedure for the arbitration tribunals, subject to such moficiations as required by this Agreement.
(3) The appeal must be filed within 60 days of the decision being appealed.
(4) The CCIA Committee shall establish, at it first meeting, the timelines for the appellate process.
(5) The decision on appeal shall be final and binding and not subject to further appeal or judicial review.
(6) A tribunal decision not taken to appeal shall have the same final and binding status.