Chapter 11 - Investment
Section 2: Investor - State Dispute Settlement
Article 152 Consultation and Negotiation
Any legal dispute arising under this Chapter between an investor of one Party and the other Party, directly concerning an investment by that investor in the territory of that other Party, shall, as far as possible, be settled amicably through consultations and negotiations between the investor and that other Party, which may include the use of non-binding third-party procedures, where this is acceptable to both parties to the dispute. A request for consultations and negotiations shall be made in writing and shall state the nature of the dispute.
Article 153 Consent to Submission of a Claim
1. If the dispute cannot be settled as provided for in Article 152 within 6 months from the date of request for consultations and negotiations then, unless the parties to the dispute agree otherwise, it shall, by the choice of the investor, be submitted to:
- conciliation or arbitration by the International Centre for the Settlement of Investment Disputes ("ICSID") under the Convention on the Settlement of Disputes between States and Nationals of Other States, done at Washington on March 18, 1965; or
- arbitration under the rules of the United Nations Commission on International Trade Law ("UNCITRAL");
provided that the investor shall give the state party 3 months' notice prior to submitting the claim to arbitration under paragraph 1(a) or 1(b).
2. Upon the receipt of a notice referred to in paragraph 1, the state party may require the investor concerned to go through any applicable domestic administrative review procedures specified by the laws and regulations of the state party, which may not exceed 3 months, before the submission of the claim to arbitration under paragraph 1(a) or 1(b).
3. In case a dispute has been submitted to a competent domestic court, it may be submitted to international dispute settlement, on the condition that the investor concerned has withdrawn its case from the domestic courts before a final judgment has been reached in the case.
4. The arbitration rules applicable under paragraph 1, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Section.
5. The arbitration award shall be final and binding upon both parties to the dispute. Each party shall commit itself to the enforcement of the award.
Article 154 Admissibility of Claims and Preliminary Objections
1. No claim may be submitted to arbitration under this Chapter if more than 3 years have elapsed between the time at which the disputing investor became aware, or should reasonably have become aware, of a breach of obligation under this Chapter causing loss or damage to the investor or its investments and the date of submission of the request for consultations and negotiations referred to in Article 152.
2. A state party may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit or is otherwise outside the jurisdiction or competence of the tribunal. The state party shall specify as precisely as possible the basis for the objection.
3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render a decision to that effect.
4. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the parties a reasonable opportunity to comment.
Article 155 Interpretation of Agreement
1. The tribunal shall, on request of the state party, request a joint interpretation of the Parties of any provision of this Agreement that is in issue in a dispute. The Parties shall submit in writing any joint decision declaring their interpretation to the tribunal within 60 days of delivery of the request.
2. A joint decision issued under paragraph 1 by the Parties shall be binding on the tribunal, and any award must be consistent with that joint decision. If the Parties fail to issue such a decision within 60 days, the tribunal shall decide the issue on its own account.
Article 156 Consolidation of Claims
Where two or more investors notify an intention to submit claims to arbitration which have a question of law or fact in common and arise out of the same events or circumstances, the disputing parties shall consult with a view to harmonising the procedures to apply, where all disputing parties agree to the consolidation of the claims, including with respect to the forum chosen to hear the dispute.
Article 157 Publication of Information and Documents Relating to Arbitral Proceedings
1. Subject to paragraph 2, the state party may, as it considers appropriate, ensure public availability of all tribunal documents.
2. Any information that is submitted to the tribunal and that is specifically designated as confidential information shall be protected from disclosure.
Article 158 Awards
1. Where a tribunal makes a final award against a state party, the tribunal may award, separately or in combination, only:
- monetary damages and any applicable interest;
- restitution of property, in which case the award shall provide that the state party may pay monetary damages and any applicable interest in lieu of restitution.
2. A tribunal may also award costs and fees in accordance with this Chapter and the applicable arbitration rules.
3. A tribunal may not award punitive damages.
4. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
5. A disputing party may not seek enforcement of a final award until all applicable review procedures have been completed.
6. Subject to paragraph 5, a disputing party shall abide by and comply with an award without delay.
- Page last updated: 02 July 2010