(b) any settlement agreement resulting from alternative dispute resolution processes;
(b) any settlement agreement resulting from alternative dispute resolution processes;
(c) the notice of arbitration;
(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;
(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
(e) minutes or transcripts of hearings of the tribunal, where available; and
(f) all orders, awards, and decisions of the tribunal.
(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.
(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.
(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:
(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);
(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
(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;
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
(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:
(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
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.
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.
(5) Nothing in this Agreement authorizes a respondent to withhold from the public information required to be disclosed by its laws.
10. Expert Reports
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.
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
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.
(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:
(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;
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
b) the nature of the order sought; and
c) the grounds on which the order is sought.
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.
(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:
(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;
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
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.
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:
(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;
a) the name and address of the claimant;
b) the nature of the order sought; and
b) the nature of the order sought; and
c) the grounds on which the order is sought.
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.
(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
12. Awards
(1) Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
(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
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.
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.
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:
(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
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.
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.
(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.
(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.
(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:
(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
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.
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.
(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
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.
(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.
(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.
(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.
(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.
(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.
(6) A tribunal decision not taken to appeal shall have the same final and binding status.