FTAA - Free Trade Area of the Americas

Draft Agreement

Chapter on Investment

(Continuation)

[15. Notice 

1. A disputing Party shall deliver to the Secretariat, within [(fifteen) 15 days] [15 days] of receipt by the disputing Party, a copy of: 

[(a) a notice of arbitration given under the UNCITRAL Arbitration Rules; or 

(b) a request for arbitration made under paragraph (1) of Article 36 of the ICSID Convention; or 

(c) a notice of arbitration made under Article 2 of Schedule C of the ICSID Additional Facility Rules.] 

[a) a request for arbitration made under paragraph (1) of Article 36 of the ICSID Convention; 

b) a notice of arbitration made under Article 2 of Schedule C of the ICSID Additional Facility Rules; or 

c) a notice of arbitration given under the UNCITRAL Arbitration Rules.] 

2. A disputing Party shall deliver to the Secretariat a copy of a request made under [Article 15(4) (3)] [paragraph 3 of the article “Consolidation”]: 

(a) within [fifteen (15)] [15] days of receipt of the request, in the case of a request made by a disputing investor; 

(b) within [fifteen (15)] [15] days of making the request, in the case of a request made by the disputing Party. 

3. [A] [The] disputing Party shall deliver to the Secretariat a copy of a request made under paragraph 6 within [fifteen (15)] [15] days of receipt of the request. 

4. The Secretariat shall maintain a public register of the documents referred to in paragraphs 1, 2, and 3. 

5. The disputing Party shall deliver to the other [Party] [Parties]: 

(a) written notice of a claim that has been submitted to arbitration no later than 30 days after the date that the claim is submitted; and 

b) copies of all pleadings filed in the arbitration.] 

[15. Notice 

A disputing Party shall deliver to the other Parties: 

(a) written notice of a claim that has been submitted to arbitration no later than 30 days after the date that the claim is submitted; and 

(b) copies of all pleadings filed in the arbitration.] 

[16. Participation by a Party 

On written notice to the disputing parties, a Party may [make submissions to any Tribunal established under this section on its interpretation [of the Chapter’s provisions] [of the provisions of this Agreement] being discussed before the Tribunal] [make submissions to a Tribunal on a question of interpretation of this Agreement.]] 

[17. Documents 

1. A Party shall be entitled to receive from the disputing Party, at the cost of the requesting Party a copy of: 

(a) the evidence that has been tendered to the Tribunal; and 

(b) the written argument of the disputing parties. 

2. A Party receiving information pursuant to paragraph 1 shall treat the information as if it were a disputing Party.] 

[18. Place of Arbitration 

[Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in the territory of a Party that is a party to the New York Convention, selected in accordance with: 

(a) the UNCITRAL Arbitration Rules if the arbitration is under those Rules; or 

(b) the ICSID Additional Facility Rules if the arbitration is under those Rules or the ICSID Convention.] 

[Unless the disputing parties agree otherwise, a Tribunal [established under this section] shall hold an arbitration in the territory of a Party that is a Party to the New York Convention, selected in accordance with: 

(a) the ICSID Additional Facility Rules if the arbitration is under those Rules or the ICSID Convention; or 

(b) the UNCITRAL Arbitration Rules if the arbitration is under those Rules.]] 

[18. Any arbitration under sub-paragraph 4(a) (i), (ii), or (iii) shall be held in a State Party to this Agreement that is a Party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958.] 

[19. Governing Law 

1. A Tribunal established under this Section shall decide the issues in dispute in accordance with [this Chapter] [this Agreement] and applicable rules of international law. 

2. An interpretation by the Commission [in accordance with the article on the Administrative Commission of the Agreement] of a provision of [this Chapter] [this Agreement] shall be binding on a Tribunal established under this Section.] 

[19. The arbitral tribunal shall decide the dispute according to the provisions of this Agreement, the law of the Contracting Party involved in the dispute, the terms of potential individual investment-related agreements, legal standards agreed by the Parties, as well as rules and principles of international law that may apply.] 

[19. In the case of arbitration, the Arbitral Tribunal shall issue its award pursuant to the provisions of this Agreement, the legislation of the parties involved in the dispute, including rules on conflict of laws, and the accepted principles of International Law. 

In any case, the arbitral award, shall be limited to determining whether there is non-compliance with an obligation under this Agreement and, in the case there is damage or injury for the investor as a result of the said non-compliance, it shall set the amount of the applicable compensation.] 

[20. Interpretation of Annexes 

1. Where a disputing Party asserts as a defense that the measure alleged to be a breach is within the scope of a reservation or exception set out [in any of the Annexes, ] [in Annex I, Annex II, Annex III or Annex IV,] on request of the disputing Party, [any] [the] [a] Tribunal [established under this section] shall request the interpretation of the Commission on the issue, [in accordance with the article on the Administrative Commission of the Agreement]. The Commission, [in accordance with the article on the Administrative Commission of the Agreement,] within [sixty (60)] [60] days of delivery of the request, shall submit in writing its interpretation to the Tribunal. 2. [Further to Article ___ (Governing Law) (2),] The interpretation of the Commission submitted under paragraph 1 shall be binding on [any] [the] Tribunal [established under this section.]. If the Commission fails to submit an interpretation within [sixty (60)] [60] days, the Tribunal shall decide the issue.] 

[21. Expert Reports 

Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, a Tribunal [established under this section], at the request of a disputing party or, unless the disputing parties disapprove, 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 scientific matters] [any matter] raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.] 

[22. Interim or Precautionary Measures 

A Tribunal established under this section may issue letters rogatory to national tribunals, or issue to the disputing Parties [an interim measure of protection] [interim or precautionary measures] to safeguard the rights of the disputing party or to ensure that the jurisdiction of the Tribunal produces its full effect [, including an order to safeguard the evidence in possession or control of a disputing party]. The tribunal may not order [any lifting or suspension of the enforcement of the measure alleged to be a breach of the provisions of article 15(3)] [any compliance with or suspension of the measure alleged to be a breach of the provisions of the article “Claim by an investor of a Party on its own behalf or on behalf of an enterprise”].] 

[22. Interim Measures of Protection 

A Tribunal may recommend 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 or to protect the Tribunal's jurisdiction. A Tribunal may not recommend attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article (Claim by an Investor of a Party on Its Own Behalf) or (Claim by an Investor of a Party on Behalf of an Enterprise). For purposes of this paragraph, an order includes a recommendation.] 

[23. Final Award 

1. Where a Tribunal [established under this section] makes a final award against a Party, [this] [the] Tribunal may [award] [, separately or in combination,] [order] only: 

(a) [payment of] monetary damages and any applicable interest; [or] 

(b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution. 

[A tribunal [established under this section] may also award costs in accordance with the applicable arbitration rules.] 

[2. Subject to paragraph 1, where a claim is made under Article __ (Claim by an Investor of a Party on Behalf of an Enterprise) (1): 

(a) an award of restitution of property shall provide that restitution be made to the enterprise; 

(b) an award of monetary damages and any applicable 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 may have in the relief under applicable domestic law. 

3. A Tribunal may not order a Party to pay punitive damages.] 

[2. A tribunal may also order payment of costs in accordance with the applicable arbitration rules. 

3. Subject to paragraphs 1 and 2, where a claim is made under Article 15(3) by an investor on behalf of an enterprise: 

(a) an award of restitution of property shall provide that restitution be made to the enterprise; 

(b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise. 

4. For the purposes of paragraphs 1 and 2 the damages shall be determined in the currency in which the investment was made. 

5. The award shall be made without prejudice to the rights that a third party with legal interest may have in the relief for the damages incurred, under the applicable law.] 

[2. Where a claim is made by an investor on behalf of an enterprise, on the basis of the article “Claim by an investor of a Party on its own behalf or on behalf of an enterprise”: 

a) an award of restitution of property shall provide that restitution be made to the enterprise; and 

b) an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise. 

3. A Tribunal established under this section may not order a Party to pay punitive damages. 

4. The award shall be made without prejudice to the rights that any person with legal interest may have in the relief for the damages incurred, under the applicable law.]] 

[24. Finality and Enforcement of the Award 

1. An award made by [any Tribunal established under this section] [a Tribunal] [established under this section] shall have no binding force except between the disputing parties and in respect of the particular case. 

2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay. 

3. A disputing party may not seek enforcement of a final award until: 

(a) in the case of a final award [under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:] [made under the ICSID Convention:] 

(i) [ninety (90)] [120] days have elapsed from the date the award was rendered [and no disputing party has initiated proceedings for interpretation, rectification a further award or annulment; or] [and no disputing party has requested [clarification,] revision or annulment of the award;] or 

(ii) [interpretation, rectification or additional award proceedings have been completed or an annulment request by the disputing Party has been resolved by a Tribunal and this resolution is not going to be challenged; and] [revision or annulment proceedings have been completed; and] [clarification, revision or annulment proceedings have been completed; or] 

(b) in the case of a final award [made under the ICSID Convention] [under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules] 

(i) [one hundred and twenty days (120) days] [3 months] [90 days] have elapsed from the date the award was rendered [and no disputing party has requested clarification, revision or annulment.] [and no disputing party has commenced a proceeding to revise, set aside or annul the award, or] [and no disputing party has requested clarification, revision or annulment, or] 

(ii) [a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.] [revision or annulment proceedings have been completed.] [interpretation, rectification or additional award proceedings have been completed; or an annulment request has been resolved by a Tribunal of the disputing Party and this resolution is not open to challenge.] 

4. Each Party shall provide for the enforcement of an award in its territory. 

5. If a disputing Party fails to abide by or comply with a final award, the Commission, [pursuant to the article on the Administrative Commission of the Agreement,] on [receipt] [delivery] of a request by a Party whose investor was a party to the arbitration, shall establish [a panel] [an arbitration panel, as provided for by the Negotiating Group on Dispute Settlement of this Agreement] [under the State-to-State Chapter on the Settlement of Disputes to the Agreement.] [under Article ___ (Request for an Arbitral Panel).] The requesting Party may seek in such proceedings: 

(a) a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and 

(b) a recommendation that the Party abide by or comply with the final award. 

6. A disputing investor may seek enforcement of an arbitration award under the ICSID Convention, the New York Convention or the Inter-American Convention regardless of whether proceedings have been taken under paragraph 5. 

7. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention and Article I of the Inter-American Convention.] 

[24. Arbitral awards shall be final and binding on the Parties to the dispute. 

Enforcement of the award shall be made pursuant to the domestic legislation of the Contracting Party in whose territory the investment was made.] 

[24. Any arbitral award rendered pursuant to this Article shall be final and binding on the parties to the dispute. Each Party shall carry out without delay the provisions of any such award and provide in its territory for the enforcement of such award.] 

[25. General 

Time when a Claim is Submitted to Arbitration 

1. A claim is submitted to arbitration under this Section when: 

[(a) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the disputing Party; 

(b) the request for arbitration under paragraph 1 of Article 36 of the ICSID Convention has been received by the Secretary-General; 

(c) the notice of arbitration under Article 2 of Schedule C) of the ICSID Additional Facility Rules has been received by the Secretary-General] 

[(a) the request for arbitration under paragraph (1) of Article 36 of the ICSID Convention has been received by the Secretary-General; 

(b) the notice of arbitration under Article 2 of Schedule C of the ICSID Additional Facility Rules has been received by the Secretary-General; or 

(c) the notice of arbitration given under the UNCITRAL Arbitration Rules is received by the disputing Party.] 

Service of Documents 

2. Delivery of notice and other documents to a Party shall be made to the place named for that Party [in Appendix XXII (2).] [in Annex ___.] [in the Annex provided for that purpose.]

Receipts under Insurance or Guarantee Contracts 

3. In an arbitration under this Section, a Party shall not assert, as a defense, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages. 

Publication of an Award 

4. [Final awards shall not be published unless there is a written agreement between the Parties.] [Annex ___ applies to the Parties specified in that Annex with respect to publication of an award.] [Awards shall be published in accordance with the procedural rules on this matter.]] 

[26. Diplomatic Protection 

[5.] [The Parties shall refrain from addressing, through diplomatic channels, matters related to disputes submitted to judicial proceedings or arbitration under this section, until such proceedings are completed.] 

[26. The Contracting Parties shall refrain from treating, through diplomatic channels, matters related to disputes submitted to any of the dispute settlement procedures provided in this Chapter, unless one of the parties to the dispute has not complied with the judicial decision or the arbitral award, in the terms established in the respective decision or award.] 

[26. If a Contracting Party, or a duly authorized public or private entity of that Contracting Party, compensates one of its own investors through insurance or other guarantee to cover non-commercial risks related to the investor’s investment in the territory of the other Contracting Party, the latter Contracting Party shall recognize the subrogation of the former Contracting Party to the rights of the investor under this Agreement, without being able to enter as an objection, at any stage of the dispute or the enforcement of the sentence or award, the fact that the payment has been made. 

Where a Contracting Party or a public or private entity has paid its investor and therefore has assumed its rights and benefits, the said investor may not claim such rights and benefits from the other Contracting Party, unless expressly authorized by the first Contracting Party.] 

[27. In any proceeding involving an investment dispute arising from a nationalization, a Party shall not assert, as a defense, counterclaim, right of set-off or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received by a national or company of the other Party pursuant to an insurance or guarantee contract.] 

[28. Exclusions 

An order by a Party that prohibits or restricts under the article on National Security in the Agreement the acquisition of an investment in its territory by an investor of another Party or that investor’s investment, shall not be subject to the dispute settlement provisions of this section or the Chapter on the Settlement of Disputes Among Parties to the Agreement.]