Article 31: Interpretation of Annexes
1. Where a respondent asserts as a defense that the measure
alleged to be a breach is within the scope of a non-conforming measure set out
in Annex I or Annex II, the tribunal shall, on request of the respondent,
request the interpretation of the Parties on the issue. The Parties shall
submit in writing any decision declaring their interpretation to the tribunal
within 60 days of delivery of the request.
2. A decision jointly issued under paragraph 1 by the
Parties, each acting through its representative designated for purposes of this
Article, shall be binding on the tribunal, and any award must be consistent
with that decision. If the Parties fail to issue such a decision within 60
days, the tribunal shall decide the issue.
Article 32: Expert Reports
Without prejudice to the appointment of other kinds of experts
where authorized by the applicable arbitration rules, a tribunal, 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 raised by a disputing party in a proceeding, subject to such
terms and conditions as the disputing parties may agree.
Article 33: Consolidation
1. Where two or more claims have been submitted separately to
arbitration under Article 24(1) 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 in accordance with the agreement of all
the disputing parties sought to be covered by the order or the terms of
paragraphs 2 through 10.
2. A disputing party that seeks a consolidation order under
this Article shall deliver, in writing, a request to the Secretary-General 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 finds within 30 days after
receiving a request under paragraph 2 that the request is manifestly unfounded,
a tribunal shall be established under this Article.
4. Unless all the disputing parties sought to be covered by
the order otherwise agree, a tribunal established under this Article shall
comprise three arbitrators:
(a) one arbitrator appointed by
agreement of the claimants;
(b) one arbitrator appointed by the respondent; and
(c) the presiding arbitrator appointed by the
Secretary-General, provided, however that the presiding arbitrator shall not be
a national of either Party.
5. If, within 60 days after the Secretary-General receives a
request made under paragraph 2, the respondent fails or the claimants fail to
appoint an arbitrator in accordance with paragraph 4, the Secretary-General, on
the request of any disputing party sought to be covered by the order, shall
appoint the arbitrator or arbitrators not yet appointed. If the respondent
fails to appoint an arbitrator, the Secretary-General shall appoint a national
of the disputing Party, and if the claimants fail to appoint an arbitrator, the
Secretary-General shall appoint a national of the non-disputing Party.
6. Where a tribunal established under this Article is
satisfied that two or more claims that have been submitted to arbitration under
Article 24(1) 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 under Article
27 [Selection of Arbitrators] to assume jurisdiction over, and hear and
determine together, all or part of the claims, provided that
(i) that tribunal, at the request of any claimant not
previously a disputing party before that tribunal, shall be reconstituted with
its original members, except that the arbitrator for the claimants shall be
appointed pursuant to paragraphs 4(a) and 5; and
(ii) that tribunal shall decide whether any prior hearing
shall be repeated.
7. Where a tribunal has been established under this Article,
a claimant that has submitted a claim to arbitration under Article 24(1) 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
6, 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.
The claimant shall deliver a copy of its request to the
Secretary-General.
8. A tribunal established under this Article shall conduct its
proceedings in accordance with the UNCITRAL Arbitration Rules, except as
modified by this Section.
9. A tribunal established under Article 27 [Selection of
Arbitrators] shall not have jurisdiction to decide a claim, or a part of a
claim, over which a tribunal established or instructed under this Article has
assumed jurisdiction.
10. On application of a disputing party, a tribunal
established under this Article, pending its decision under paragraph 6, may
order that the proceedings of a tribunal established under Article 27
[Selection of Arbitrators] be stayed, unless the latter tribunal has already
adjourned its proceedings.
Article 34: 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;
(b) restitution of property, 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 this Treaty and the applicable arbitration rules.
2. Subject to paragraph 1, where a claim is submitted
to arbitration under Article 24(1)(b):
(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 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. Subject to paragraph 6 and the applicable review procedure
for an interim award, a disputing party shall abide by and comply with an award
without delay.
6. A disputing party may not seek enforcement of a final
award until:
(a) in the case of a final award made under the ICSID
Convention
(i) 120 days have elapsed from the date the award was rendered
and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings
have been completed; and
(b) in the case of a final award under the ICSID Additional
Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant
to Article 24(3)(d)
(i) 90 days have elapsed from the date the award was rendered
and no disputing party has commenced a proceeding to revise, set aside, or
annul the award, or
(ii) a court has dismissed or allowed an application to
revise, set aside, or annul the award and there is no further appeal.
7. Each Party shall provide for the enforcement of an award
in its territory.
8. If the respondent fails to abide by or comply with a final
award, on delivery of a request by the non-disputing Party, a tribunal shall be
established under Article 37 [State-State Dispute Settlement]. Without
prejudice to other remedies available under applicable rules of international
law, 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 Treaty; and
(b) a recommendation that the respondent abide by or
comply with the final award.
9. A disputing party may seek enforcement of an arbitration
award under the ICSID Convention or the New York Convention [or the
Inter-American Convention] regardless of whether proceedings have been taken
under paragraph 8.
10. 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].
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