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The respondent may, no later than 30 days after the constitution of the division of the
Tribunal pursuant to Article 9(4), and in any event before the first session of the
division of the Tribunal, or 30 days after the respondent became aware of the facts on
which the objection is based, file an objection that a claim is manifestly without legal
The respondent shall specify as precisely as possible the basis for the objection.
The Tribunal, after giving the disputing parties an opportunity to present their
observations on the objection, shall, at the first meeting of the division of the Tribunal
or promptly thereafter, issue a decision or provisional award on the objection, stating
the grounds therefor. In the event that the objection is received after the first meeting
of the division of the Tribunal, the Tribunal shall issue such decision or provisional
award as soon as possible, and no later than 120 days after the objection was filed. In
doing so, the Tribunal shall assume the alleged facts to be true, and may also consider
any relevant facts not in dispute.
The decision of the Tribunal shall be without prejudice to the right of a disputing party
to object, pursuant to Article 17 (Claims unfounded as a matter of law) or in the course
of the proceeding, to the legal merits of a claim and without prejudice to the Tribunal's
authority to address other objections as a preliminary question.
Claims unfounded as a matter of law
Without prejudice to the
Tribunal’s authority to address other objections as a
preliminary question or to a respondent’s right to raise any such objections at any
appropriate time, the Tribunal shall address and decide as a preliminary question any
objection by the respondent that, as a matter of law, a claim, or any part thereof,
submitted under this section is not a claim for which an award in favour of the
claimant may be made under Article 28 (Provisional Award), even if the facts alleged
were assumed to be true. The Tribunal may also consider any relevant facts not in
An objection under paragraph 1 shall be submitted to the Tribunal as soon as possible
after the division of the Tribunal is constituted, and in no event later than the date the
Tribunal fixes for the respondent to submit its counter-memorial or statement of
defence. An objection may not be submitted under paragraph 1 as long as proceedings
under Article 16 (Preliminary Objections) are pending, unless the Tribunal grants
leave to file an objection under this article, after having taken due account of the
circumstances of the case.
On receipt of an objection under paragraph 1, and unless it considers the objection
manifestly unfounded, 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
provisional award on the objection, stating the grounds therefor.
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The “UNCITRAL Transparency Rules” shall apply to disputes under this Section,
with the following additional obligations.
2. The request for consultations under Article 4, the request for a determination and the
notice of determination under Article 5, the agreement to mediate under Article 3, the
notice of challenge and the decision on challenge under Article 11, the request for
consolidation under Article 27 and all documents submitted to and issued by the
Appeal Tribunal shall be included in the list of documents referred to in Article 3(1) of
the UNCITRAL Transparency Rules.
3. Exhibits shall be included in the list of documents mentioned in Article 3(2) of the
UNCITRAL Transparency Rules.
4. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, the European
Union or the United States as the case may be shall make publicly available in a
timely manner prior to the constitution of the division, relevant documents pursuant to
paragraph 2, subject to the redaction of confidential or protected information. Such
documents may be made publicly available by communication to the repository
referred to in the UNCITRAL Transparency Rules.
A disputing party may disclose to other persons in connection with proceedings,
including witnesses and experts, such unredacted documents as it considers necessary
in the course of proceedings under this Section. However, the disputing party shall
ensure that those persons protect the confidential or protected information in those
The Tribunal may order 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. The Tribunal may not order the seizure of assets nor may it prevent the
application of the treatment alleged to constitute a breach.
If, following the submission of a claim under this section, the claimant fails to take any steps
in the proceeding during 180 consecutive days or such periods as the disputing parties may
agree, the claimant shall be deemed to have withdrawn its claim and to have discontinued the
proceedings. The Tribunal shall, at the request of the respondent, and after notice to the
disputing parties, take note of the discontinuance in an order. After such an order has been
rendered the authority of the Tribunal shall lapse. The claimant may not subsequently submit
a claim on the same matter.
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Security for costs
For greater certainty, upon request, the Tribunal may order the claimant to post
security for all or a part of the costs if there are reasonable grounds to believe that the
claimant risks not being able to honour a possible decision on costs issued against it.
If the security for costs is not posted in full within 30 days after the Tribunal’s order or
within any other time period set by the Tribunal, the Tribunal shall so inform the
disputing parties. The Tribunal may order the suspension or termination of the
The non-disputing Party to the Agreement
The respondent shall, within 30 days after receipt or promptly after any dispute
concerning confidential or protected information has been resolved,
deliver to the
(a) a request for consultations referred to in Article 4, a notice requesting a
determination referred to in Article 5, a claim referred to in Article 6 and any other
documents that are appended to such documents;
(b) on request:
a. pleadings, memorials, briefs, requests and other submissions made to the
Tribunal by a disputing party;
b. written submissions made to the Tribunal by a third person;
c. minutes or transcripts of hearings of the Tribunal, where available; and
d. orders, awards and decisions of the Tribunal.
(c) on request and at the cost of the non-disputing Party, all or part of the evidence
that has been tendered to the Tribunal.
2. The non-disputing Party has the right to attend a hearing held under this Section.
The Tribunal shall accept or, after consultation with the disputing parties, may invite
written or oral submissions on issues relating to the interpretation of this Agreement
from the non-disputing Party. The Tribunal shall ensure that the disputing parties are
given a reasonable opportunity to present their observations on any submission by the
Intervention by third parties
For greater certainty, the term confidential or protected information shall be understood as defined in and
determined pursuant to Article 7 of the UNCITRAL Transparency Rules.
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The Tribunal shall permit any natural or legal person which can establish a direct and
present interest in the result of the dispute (the intervener) to intervene as a third party.
The intervention shall be limited to supporting, in whole or in part, the award sought
by one of the disputing parties.
An application to intervene must be lodged within 90 days of the publication of
submission of the claim pursuant to Article 6. The Tribunal shall rule on the
application within 90 days, after giving the disputing parties an opportunity to submit
If the application to intervene is granted, the intervener shall receive a copy of every
procedural document served on the disputing parties, save, where applicable,
confidential documents. The intervener may submit a statement in intervention within
a time period set by the Tribunal after the communication of the procedural
documents. The disputing parties shall have an opportunity to reply to the statement in
intervention. The intervener shall be permitted to attend the hearings held under this
Chapter and to make an oral statement.
In the event of an appeal, a natural or legal person who has intervened before the
Tribunal shall be entitled to intervene before the Appeal Tribunal. Paragraph 3 shall
apply mutatis mutandis.
The right of intervention conferred by this Article is without prejudice to the
possibility for the Tribunal to accept amicus curiae briefs from third parties in
accordance with Article 18.
For greater certainty, the fact that a natural or legal person is a creditor of the claimant
shall not be considered as sufficient in itself to establish that it has a direct and present
interest in result of the dispute.
The Tribunal, at the request of a disputing party or, after consulting the disputing parties, 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 by a disputing party in
Indemnification and other Compensation
The Tribunal shall not accept as a valid defence, counterclaim, set-off or similar claim the fact
that the claimant or the locally established company has received, or will receive
indemnification or other compensation pursuant to an insurance or guarantee contract in
respect of all or part of the compensation sought in a dispute initiated pursuant to this Section.
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Role of the Parties to the Agreement
No Party shall bring an international claim, in respect of a dispute submitted pursuant
to Article 6 or in respect of treatment covered by this Section and subject to mediation
pursuant to Article 3, unless the other Party has failed to abide by and comply with the
award rendered in such dispute. This shall not exclude the possibility of dispute
settlement under Section [state-to-state dispute settlement] in respect of a measure of
general application even if that measure is alleged to have violated the agreement as
regards a specific investment in respect of which a dispute has been initiated pursuant
to Article 6. This is without prejudice to Article 22 of this Section or Article 5 of the
UNICTRAL Transparency Rules.
Paragraph 1 does not preclude informal exchanges for the sole purpose of facilitating a
settlement of the dispute.
In the event that two or more claims submitted under this Section have a question of
law or fact in common and arise out of the same events and circumstances, the
respondent may submit to the President of the Tribunal a request for the consolidated
consideration of all such claims or part of them. The request shall stipulate:
(a) the names and addresses of the disputing parties to the claims sought to be
(b) the scope of the consolidation sought; and
(c) the grounds for the request.
The respondent shall also deliver the request to each claimant in a claim which the
respondent seeks to consolidate.
In the event that all disputing parties to the claims sought to be consolidated agree on
the consolidated consideration of the claims, the disputing parties shall submit a joint
request to the President of the Tribunal pursuant to paragraph 1. The President of the
Tribunal shall, after receipt of such joint request, constitute a new division (the
of the Tribunal pursuant to Article 9 which shall have
jurisdiction over all or part of the claims which are subject to the joint consolidation
In the event that the disputing parties referred to in paragraph 2 have not reached an
agreement on consolidation within thirty days of the receipt of the request for
consolidation referred to in paragraph 1 by the last claimant to receive it, the President
of the Tribunal shall constitute a consolidating division of the Tribunal pursuant to
Article 9. The consolidating division shall assume jurisdiction over all or part of the
claims, if, after considering the views of the disputing parties, it decides that to do so
would best serve the interest of fair and efficient resolution of the claims, including the
interest of consistency of awards.
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The consolidated consideration of the claims shall be submitted to the consolidating
division of the Tribunal under application of the dispute settlement rules chosen by
agreement of the claimants from the list contained in Article 6.
If the claimants have not agreed upon the dispute settlement rules within 30 days after
the date of receipt of the request for consolidated consideration by the last claimant to
receive it, the consolidated consideration of the claims shall be submitted to the
consolidating division of the Tribunal under application of the UNCITRAL arbitration
Divisions of the Tribunal constituted under Article 9 shall cede jurisdiction in relation
to the claims, or parts thereof, over which the consolidating division has jurisdiction
and the proceedings of such divisions shall be stayed or adjourned, as appropriate. The
award of the consolidating division of the Tribunal in relation to the parts of the claims
over which it has assumed jurisdiction shall be binding on the divisions which have
jurisdiction over the remainder of the claims, as of the date the award becomes final
pursuant to Article 28(6) or 28(7).
A claimant whose claim is subject to consolidation may withdraw its claim or the part
thereof subject to consolidation from dispute settlement proceedings under this Article
and such claim or part thereof may not be resubmitted under Article 6.
At the request of the respondent, the consolidating division of the Tribunal, on the
same basis and with the same effect as paragraphs 3 and 6 above, may decide whether
it shall have jurisdiction over all or part of a claim falling within the scope of
paragraph 1 above, which is submitted after the initiation of the consolidation
At the request of one of the claimants, the consolidating division of the Tribunal may
take such measures as it sees fit in order to preserve the confidentiality of protected
information of that claimant vis-à-vis other claimants. Such measures may include the
submission of redacted versions of documents containing protected information to the
other claimants or arrangements to hold parts of the hearing in private.
Where the Tribunal concludes that the treatment in dispute is inconsistent with the
provisions referred to in Article 1(1) alleged by the claimant, the Tribunal may, on the
basis of a request from the claimant, and after hearing the disputing parties, award
(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 representing the fair market value of the property at
the time immediately before the expropriation or impending expropriation became
known, whichever is earlier, and any applicable interest in lieu of restitution,
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determined in a manner consistent with Article 2.5 of Section 2 of Chapter II
Where the claim was submitted on behalf of a locally-established company, any award
under this paragraph shall provide that:
(a) any monetary damages and interest shall be paid to the locally established
(b) any restitution shall be made to the locally established company.
The Tribunal may not order the repeal, cessation or modification of the treatment
Monetary damages shall not be greater than the loss suffered by the claimant or, as
applicable, the locally established company, as a result of the breach of the relevant
provisions of the agreement, reduced by any prior damages or compensation already
provided by the Party concerned.
3. The Tribunal may not award punitive damages.
The Tribunal shall order that the costs of the proceedings be borne by the unsuccessful
disputing party. In exceptional circumstances, the Tribunal may apportion such costs
between the disputing parties if it determines that apportionment is appropriate in the
circumstance of the case. Other reasonable costs, including the reasonable costs of
legal representation and assistance, shall be borne by the unsuccessful disputing party,
unless the Tribunal determines that such apportionment is unreasonable in the
circumstances of the case. Where only some parts of the claims have been successful
the costs shall be adjusted, proportionately, to the number or extent of the successful
parts of the claims. The Appeal Tribunal shall deal with costs in accordance with this
No later than one year after the entry into force of this Agreement, the […] Committee
shall adopt supplemental rules on fees for the purpose of determining the maximum
amount of costs of legal representation and assistance that may be borne by an
unsuccessful claimant which is a natural person or a small or medium-sized enterprise.
Such supplemental rules shall, in particular, take into account the financial resources
of such claimants and the amounts of compensation sought.
The Tribunal shall issue a provisional award within 18 months of the date of
submission of the claim. If that deadline cannot be respected, the Tribunal shall adopt
a decision to that effect, which will specify the reasons for such delay. A provisional
award shall become final if 90 days have elapsed after it has been issued and neither
disputing party has appealed the award to the Appeal Tribunal.
Either disputing party may appeal the provisional award, pursuant to Article 29. In
such an event, if the Appeal Tribunal modifies or reverses the provisional award of the
Tribunal then the Tribunal shall, after hearing the disputing parties if appropriate,
revise its provisional award to reflect the findings and conclusions of the Appeal
Tribunal. The provisional award will become final 90 days after its issuance.
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