**TREATY BETWEEN**

**THE GOVERNMENT OF THE UNITED STATES OF AMERICA**

**AND THE GOVERNMENT OF \[Country\]**

**CONCERNING THE ENCOURAGEMENT**

**AND RECIPROCAL PROTECTION OF INVESTMENT**

The Government of the United States of America and the Government of
\[Country\] (hereinafter the "Parties");

Desiring to promote greater economic cooperation between them with
respect to investment by nationals and enterprises of one Party in the
territory of the other Party;

Recognizing that agreement upon the treatment to be accorded such
investment will stimulate the flow of private capital and the economic
development of the Parties;

Agreeing that a stable framework for investment will maximize effective
utilization of economic resources and improve living standards;

Recognizing the importance of providing effective means of asserting
claims and enforcing rights with respect to investment under national
law as well as through international arbitration;

Desiring to achieve these objectives in a manner consistent with the
protection of

health, safety, and the environment, and the promotion of
internationally recognized labor rights;

Having resolved to conclude a Treaty concerning the encouragement and
reciprocal protection of investment;

Have agreed as follows:

##  

## [Section A]{.smallcaps}

# 

## Article 1: Definitions

For purposes of this Treaty:

**"central level of government"** means:

\(a\) for the United States, the federal level of government; and

\(b\) for \[Country\], \[ \].

**"Centre"** means the International Centre for Settlement of Investment
Disputes ("ICSID") established by the ICSID Convention.

**"claimant"** means an investor of a Party that is a party to an
investment dispute with the other Party.

**"covered investment"** means, with respect to a Party, an investment
in its territory of an investor of the other Party in existence as of
the date of entry into force of this Treaty or established, acquired, or
expanded thereafter.

**"disputing parties"** means the claimant and the respondent.

**"disputing party"** means either the claimant or the respondent.

**"enterprise"** means any entity constituted or organized under
applicable law, whether or not for profit, and whether privately or
governmentally owned or controlled, including a corporation, trust,
partnership, sole proprietorship, joint venture, association, or similar
organization; and a branch of an enterprise.

**"enterprise of a Party"** means an enterprise constituted or organized
under the law of a Party, and a branch located in the territory of a
Party and carrying out business activities there.

**"existing"** means in effect on the date of entry into force of this
Treaty.

**"freely usable currency"** means "freely usable currency" as
determined by the International Monetary Fund under its *Articles of
Agreement*.

**"government procurement"** means the process by which a government
obtains the use of or acquires goods or services, or any combination
thereof, for governmental purposes and not with a view to commercial
sale or resale, or use in the production or supply of goods or services
for commercial sale or resale.

**"ICSID Additional Facility Rules"** means the *Rules Governing the
Additional Facility for the Administration of Proceedings by the
Secretariat of the International Centre for Settlement of Investment
Disputes*.

**"ICSID Convention"** means the *Convention on the Settlement of
Investment Disputes between States and Nationals of Other States*, done
at Washington, March 18, 1965.

\[**"Inter-American Convention"** means the *Inter-American Convention
on International Commercial Arbitration*, done at Panama, January 30,
1975.\]

**"investment"** means every asset that an investor owns or controls,
directly or indirectly, that has the characteristics of an investment,
including such characteristics as the commitment of capital or other
resources, the expectation of gain or profit, or the assumption of risk.
Forms that an investment may take include:

\(a\) an enterprise;

> \(b\) shares, stock, and other forms of equity participation in an
> enterprise;
>
> \(c\) bonds, debentures, other debt instruments, and loans;[^1]
>
> \(d\) futures, options, and other derivatives;

\(e\) turnkey, construction, management, production, concession,
revenue-sharing, and other similar contracts;

\(f\) intellectual property rights;

> \(g\) licenses, authorizations, permits, and similar rights conferred
> pursuant to applicable domestic law;[^2]^,^ [^3] and
>
> \(h\) other tangible or intangible, movable or immovable property, and
> related property rights, such as leases, mortgages, liens, and
> pledges.

**"investment agreement"** means a written agreement[^4] that takes
effect on or after the date of entry into force of this Treaty between a
national authority[^5] of a Party and a covered investment or an
investor of the other Party that grants the covered investment or
investor rights:

\(a\) with respect to natural resources or other assets that a national
authority controls; and

> \(b\) upon which the covered investment or the investor relies in
> establishing or acquiring a covered investment other than the written
> agreement itself.

**"investment authorization"**[^6] means an authorization that the
foreign investment authority of a Party grants to a covered investment
or an investor of the other Party.

**"investor of a non-Party"** means, with respect to a Party, an
investor that attempts to make, is making, or has made an investment in
the territory of that Party, that is not an investor of either Party.

**"investor of a Party"** means a Party or state enterprise thereof, or
a national or an enterprise of a Party, that attempts to make, is
making, or has made an investment in the territory of the other Party;
provided, however, that a natural person who is a dual national shall be
deemed to be exclusively a national of the State of his/her dominant and
effective nationality.

**"measure"** includes any law, regulation, procedure, requirement, or
practice.

**"national"** means:

> \(a\) for the United States, a natural person who is a national of the
> United States as defined in Title III of the Immigration and
> Nationality Act; and

\(b\) for \[Country\], \[ \].

**"New York Convention"** means the *United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards*, done at New
York, June 10, 1958.

**"non-disputing Party"** means the Party that is not a party to an
investment dispute.

**"person"** means a natural person or an enterprise.

**"person of a Party"** means a national or an enterprise of a Party.

**"protected information"** means confidential business information or
information that is privileged or otherwise protected from disclosure
under a Party's law.

**"regional level of government"** means:

> \(a\) for the United States, a state of the United States, the
> District of Columbia, or Puerto Rico; and

\(b\) for \[Country\], \[ \].

**"respondent"** means the Party that is a party to an investment
dispute.

**"Secretary-General"** means the Secretary-General of ICSID.

**"state enterprise"** means an enterprise owned, or controlled through
ownership interests, by a Party.

**"territory"** means:

\(a\) with respect to the United States, \[ \_\_\_\_\].

\(b\) with respect to \[Country,\] \[ \_\_\_\_\].

**"TRIPS Agreement"** means the Agreement on Trade-Related Aspects of
Intellectual Property Rights, contained in Annex 1C to the Marrakesh
Agreement Establishing the World Trade Organization, done on April 15,
1994.

**"UNCITRAL Arbitration Rules"** means the arbitration rules of the
United Nations Commission on International Trade Law.

# **Article 2: Scope and Coverage**

# 

# 1. This Treaty applies to measures adopted or maintained by a Party relating to:

\(a\) investors of the other Party;

\(b\) covered investments; and

> \(c\) with respect to Articles 8 \[Performance Requirements\], 12
> \[Investment and Environment\], and 13 \[Investment and Labor\], all
> investments in the territory of the Party.

2\. A Party's obligations under Section A of this Treaty shall apply:

\(a\) to a state enterprise or other person when exercising any
regulatory, administrative, or other governmental authority delegated to
it by that Party; and []{.mark}

[]{.mark}

\(b\) to the political subdivisions of that Party.

3\. For greater certainty, the provisions of this Treaty do not bind
either Party in relation to any act or fact that took place or any
situation that ceased to exist before the date of entry into force of
this Treaty.

## 

# **Article 3: National Treatment** 

1\. Each Party shall accord to investors of the other Party treatment no
less favorable than that it accords, in like circumstances, to its own
investors with respect to the establishment, acquisition, expansion,
management, conduct, operation, and sale or other disposition of
investments in its territory.

2\. Each Party shall accord to covered investments treatment no less
favorable than that it accords, in like circumstances, to investments in
its territory of its own investors with respect to the establishment,
acquisition, expansion, management, conduct, operation, and sale or
other disposition of investments.

3\. The treatment to be accorded by a Party under paragraphs 1 and 2
means, with respect to a regional level of government, treatment no less
favorable than the treatment accorded, in like circumstances, by that
regional level of government to natural persons resident in and
enterprises constituted under the laws of other regional levels of
government of the Party of which it forms a part, and to their
respective investments.

# 

# **Article 4: Most-Favored-Nation Treatment**

1\. Each Party shall accord to investors of the other Party treatment no
less favorable than that it accords, in like circumstances, to investors
of any non-Party with respect to the establishment, acquisition,
expansion, management, conduct, operation, and sale or other disposition
of investments in its territory**.**

2\. Each Party shall accord to covered investments treatment no less
favorable than that it accords, in like circumstances, to investments in
its territory of investors of any non-Party with respect to the
establishment, acquisition, expansion, management, conduct, operation,
and sale or other disposition of investments.

# **Article 5: Minimum Standard of Treatment**[^7]

1\. Each Party shall accord to covered investments treatment in
accordance with customary international law, including fair and
equitable treatment and full protection and security.

2\. For greater certainty, paragraph 1 prescribes the customary
international law minimum standard of treatment of aliens as the minimum
standard of treatment to be afforded to covered investments. The
concepts of "fair and equitable treatment" and "full protection and
security" do not require treatment in addition to or beyond that which
is required by that standard, and do not create additional substantive
rights. The obligation in paragraph 1 to provide:

> \(a\) "fair and equitable treatment" includes the obligation not to
> deny justice in criminal, civil, or administrative adjudicatory
> proceedings in accordance with the principle of due process embodied
> in the principal legal systems of the world; and
>
> \(b\) "full protection and security" requires each Party to provide
> the level of police protection required under customary international
> law.

3\. A determination that there has been a breach of another provision of
this Treaty, or of a separate international agreement, does not
establish that there has been a breach of this Article.

4\. Notwithstanding Article 14 \[Non-Conforming Measures\](5)(b)
\[subsidies and grants\], each Party shall accord to investors of the
other Party, and to covered investments, non-discriminatory treatment
with respect to measures it adopts or maintains relating to losses
suffered by investments in its territory owing to armed conflict or
civil strife.

5\. Notwithstanding the preceding paragraph, if an investor of a Party,
in the situations referred to in that paragraph, suffers a loss in the
territory of the other Party resulting from:

\(a\) requisitioning of its covered investment or part thereof by the
latter's forces or authorities; or

> \(b\) destruction of its covered investment or part thereof by the
> latter's forces or authorities, which was not required by the
> necessity of the situation,

the latter Party shall provide the investor restitution or compensation,
which in either case shall be prompt, adequate, and effective, and, with
respect to compensation, shall be in accordance with Article 6
\[Expropriation and Compensation\](2), (3), and (4).

6\. Paragraph 4 does not apply to existing measures relating to
subsidies or grants that would be inconsistent with Article 3 \[National
Treatment\] but for Article 14 \[Non-Conforming Measures\](5)(b)
\[subsidies and grants\].

# **Article 6: Expropriation and Compensation**[^8]

1\. Neither Party may expropriate or nationalize a covered investment
either directly or indirectly through measures equivalent to
expropriation or nationalization ("expropriation"), except:

\(a\) for a public purpose;

\(b\) in a non-discriminatory manner;

> \(c\) on payment of prompt, adequate, and effective compensation; and
>
> \(d\) in accordance with due process of law and Article 5 \[Minimum
> Standard of Treatment\](1), (2), and (3).

2\. The compensation referred to in paragraph 1 shall:

\(a\) be paid without delay;

> \(b\) be equivalent to the fair market value of the expropriated
> investment immediately before the expropriation took place ("the date
> of expropriation");
>
> \(c\) not reflect any change in value occurring because the intended
> expropriation had become known earlier; and

\(d\) be fully realizable and freely transferable.

3\. If the fair market value is denominated in a freely usable currency,
the compensation referred to in paragraph 1 shall be no less than the
fair market value on the date of expropriation, plus interest at a
commercially reasonable rate for that currency, accrued from the date of
expropriation until the date of payment.

4\. If the fair market value is denominated in a currency that is not
freely usable, the compensation referred to in paragraph 1 -- converted
into the currency of payment at the market rate of exchange prevailing
on the date of payment -- shall be no less than:

> \(a\) the fair market value on the date of expropriation, converted
> into a freely usable currency at the market rate of exchange
> prevailing on that date, plus
>
> \(b\) interest, at a commercially reasonable rate for that freely
> usable currency, accrued from the date of expropriation until the date
> of payment.

5\. This Article does not apply to the issuance of compulsory licenses
granted in relation to intellectual property rights in accordance with
the TRIPS Agreement.

# 

# **Article 7: Transfers**

# 

1\. Each Party shall permit all transfers relating to a covered
investment to be made freely and without delay into and out of its
territory. Such transfers include:

(a) contributions to capital;

(b) profits, dividends, capital gains, and proceeds from the sale of all
    or any part of the covered investment or from the partial or
    complete liquidation of the covered investment;

(c) interest, royalty payments, management fees, and technical
    assistance and other fees;

(d) payments made under a contract, including a loan agreement;

\(e\) payments made pursuant to Article 6 \[Expropriation and
Compensation\] and Article 5 \[Minimum Standard of Treatment\](4) and
(5); and

\(f\) payments arising out of a dispute.

2\. Each Party shall permit transfers relating to a covered investment
to be made in a freely usable currency at the market rate of exchange
prevailing at the time of transfer.

3\. Each Party shall permit returns in kind relating to a covered
investment to be made as authorized or specified in an investment
authorization or other written agreement between the Party and a covered
investment or an investor of the other Party.

4\. Notwithstanding paragraphs 1, 2, and 3, a Party may prevent a
transfer through the equitable, nondiscriminatory, and good faith
application of its laws relating to:

(a) bankruptcy, insolvency, or the protection of the rights of
    creditors;

(b) issuing, trading, or dealing in securities, futures, options, or
    derivatives;

(c) criminal or penal offenses;

(d) financial reporting or record keeping of transfers when necessary to
    assist law enforcement or financial regulatory authorities; or

\(e\) ensuring compliance with orders or judgments in judicial or
administrative proceedings.

**Article 8: Performance Requirements**

1\. Neither Party may impose or enforce any of the following
requirements, or enforce any commitment or undertaking, in connection
with the establishment, acquisition, expansion, management, conduct,
operation, or sale or other disposition of an investment of an investor
of a Party or of a non-Party in its territory:

\(a\) to export a given level or percentage of goods or services;

\(b\) to achieve a given level or percentage of domestic content;

\(c\) to purchase, use, or accord a preference to goods produced in its
territory, or to purchase goods from persons in its territory;

\(d\) to relate in any way the volume or value of imports to the volume
or value of exports or to the amount of foreign exchange inflows
associated with such investment;

\(e\) to restrict sales of goods or services in its territory that such
investment produces or supplies by relating such sales in any way to the
volume or value of its exports or foreign exchange earnings;

\(f\) to transfer a particular technology, a production process, or
other proprietary knowledge to a person in its territory; or

\(g\) to supply exclusively from the territory of the Party the goods
that it produces or the services that it supplies to a specific regional
market or to the world market.

2\. Neither Party may condition the receipt or continued receipt of an
advantage, in connection with the establishment, acquisition, expansion,
management, conduct, operation, or sale or other disposition of an
investment in its territory of an investor of a Party or of a non-Party,
on compliance with any of the following requirements:

\(a\) to achieve a given level or percentage of domestic content;

\(b\) to purchase, use, or accord a preference to goods produced in its
territory, or to purchase goods from persons in its territory;

\(c\) to relate in any way the volume or value of imports to the volume
or value of exports or to the amount of foreign exchange inflows
associated with such investment; or

\(d\) to restrict sales of goods or services in its territory that such
investment produces or supplies by relating such sales in any way to the
volume or value of its exports or foreign exchange earnings.

3\. (a) Nothing in paragraph 2 shall be construed to prevent a Party
from conditioning the receipt or continued receipt of an advantage, in
connection with an investment in its territory of an investor of a Party
or of a non-Party, on compliance with a requirement to locate
production, supply a service, train or employ workers, construct or
expand particular facilities, or carry out research and development, in
its territory.

\(b\) Paragraph 1(f) does not apply:

\(i\) when a Party authorizes use of an intellectual property right in
accordance with Article 31 of the TRIPS Agreement, or to measures
requiring the disclosure of proprietary information that fall within the
scope of, and are consistent with, Article 39 of the TRIPS Agreement; or

> \(ii\) when the requirement is imposed or the commitment or
> undertaking is enforced by a court, administrative tribunal, or
> competition authority to remedy a practice determined after judicial
> or administrative process to be anticompetitive under the Party's
> competition laws.[^9]

\(c\) Provided that such measures are not applied in an arbitrary or
unjustifiable manner, and provided that such measures do not constitute
a disguised restriction on international trade or investment, paragraphs
1(b), (c), and (f), and 2(a) and (b), shall not be construed to prevent
a Party from adopting or maintaining measures, including environmental
measures:

\(i\) necessary to secure compliance with laws and regulations that are
not inconsistent with this Treaty;

\(ii\) necessary to protect human, animal, or plant life or health; or

> \(iii\) related to the conservation of living or non-living
> exhaustible natural resources.
>
> \(d\) Paragraphs 1(a), (b), and (c), and 2(a) and (b), do not apply to
> qualification requirements for goods or services with respect to
> export promotion and foreign aid programs.
>
> \(e\) Paragraphs 1(b), (c), (f), and (g), and 2(a) and (b), do not
> apply to government procurement.
>
> \(f\) Paragraphs 2(a) and (b) do not apply to requirements imposed by
> an importing Party relating to the content of goods necessary to
> qualify for preferential tariffs or preferential quotas.

4\. For greater certainty, paragraphs 1 and 2 do not apply to any
requirement other than the requirements set out in those paragraphs.

5\. This Article does not preclude enforcement of any commitment,
undertaking, or requirement between private parties, where a Party did
not impose or require the commitment, undertaking, or requirement.

**Article 9: Senior Management and Boards of Directors**

1\. Neither Party may require that an enterprise of that Party that is a
covered investment appoint to senior management positions natural
persons of any particular nationality.

2\. A Party may require that a majority of the board of directors, or
any committee thereof, of an enterprise of that Party that is a covered
investment, be of a particular nationality, or resident in the territory
of the Party, provided that the requirement does not materially impair
the ability of the investor to exercise control over its investment.

#### Article 10: Publication of Laws and Decisions Respecting Investment

1\. Each Party shall ensure that its:

\(a\) laws, regulations, procedures, and administrative rulings of
general application; and

\(b\) adjudicatory decisions

respecting any matter covered by this Treaty are promptly published or
otherwise made publicly available.

2\. For the purposes of this Article, "administrative ruling of general
application" means an administrative ruling or interpretation that
applies to all persons and fact situations that fall generally within
its ambit and that establishes a norm of conduct but does not include:

> \(a\) a determination or ruling made in an administrative or
> quasi-judicial proceeding that applies to a particular person, good,
> or service of the other Party in a specific case; or

\(b\) a ruling that adjudicates with respect to a particular act or
practice.

#### 

#### Article 11: Transparency

1\. Contact Points

> \(a\) Each Party shall designate a contact point or points to
> facilitate communications between the Parties on any matter covered by
> this Treaty.
>
> \(b\) On the request of the other Party, the contact points shall
> identify the office or official responsible for the matter and assist,
> as necessary, in facilitating communication with the requesting Party.

2\. Publication

To the extent possible, each Party shall:

\(a\) publish in advance any measure referred to in Article 10(1)(a)
that it proposes to adopt; and

> \(b\) provide interested persons and the other Party a reasonable
> opportunity to comment on such proposed measures.

3\. Notification and Provision of Information

> \(a\) To the maximum extent possible, each Party shall notify the
> other Party of any proposed or actual measure that the Party considers
> might materially affect the operation of this Treaty or otherwise
> substantially affect the other Party's interests under this Treaty.
>
> \(b\) On request of the other Party, a Party shall promptly provide
> information and respond to questions pertaining to any actual or
> proposed measure referred to in paragraph 3(a), whether or not the
> other Party has been previously notified of that measure.
>
> \(c\) Any notification, request, or information under this paragraph
> shall be provided to the other Party through the relevant contact
> points.
>
> \(d\) Any notification or information provided under this paragraph
> shall be without prejudice as to whether the measure is consistent
> with this Treaty.

4\. Administrative Proceedings

With a view to administering in a consistent, impartial, and reasonable
manner all measures referred to in Article 10(1)(a), each Party shall
ensure that in its administrative proceedings applying such measures to
particular persons, goods, or services of the other Party in specific
cases that:

> \(a\) wherever possible, persons of the other Party that are directly
> affected by a proceeding are provided reasonable notice, in accordance
> with domestic procedures, when a proceeding is initiated, including a
> description of the nature of the proceeding, a statement of the legal
> authority under which the proceeding is initiated, and a general
> description of any issues in controversy;
>
> \(b\) such persons are afforded a reasonable opportunity to present
> facts and arguments in support of their positions prior to any final
> administrative action, when time, the nature of the proceeding, and
> the public interest permit; and

\(c\) its procedures are in accordance with domestic law.

5\. Review and Appeal

> \(a\) Each Party shall establish or maintain judicial, quasi-judicial,
> or administrative tribunals or procedures for the purpose of the
> prompt review and, where warranted, correction of final administrative
> actions regarding matters covered by this Treaty. Such tribunals shall
> be impartial and independent of the office or authority entrusted with
> administrative enforcement and shall not have any substantial interest
> in the outcome of the matter.
>
> \(b\) Each Party shall ensure that, in any such tribunals or
> procedures, the parties to the proceeding are provided with the right
> to:
>
> \(i\) a reasonable opportunity to support or defend their respective
> positions; and
>
> \(ii\) a decision based on the evidence and submissions of record or,
> where required by domestic law, the record compiled by the
> administrative authority.
>
> \(c\) Each Party shall ensure, subject to appeal or further review as
> provided in its domestic law, that such decisions shall be implemented
> by, and shall govern the practice of, the offices or authorities with
> respect to the administrative action at issue.

## 

## Article 12: Investment and Environment 

1\. The Parties recognize that it is inappropriate to encourage
investment by weakening or reducing the protections afforded in domestic
environmental laws.[^10] Accordingly, each Party shall strive to ensure
that it does not waive or otherwise derogate from, or offer to waive or
otherwise derogate from, such laws in a manner that weakens or reduces
the protections afforded in those laws as an encouragement for the
establishment, acquisition, expansion, or retention of an investment in
its territory. If a Party considers that the other Party has offered
such an encouragement, it may request consultations with the other Party
and the two Parties shall consult with a view to avoiding any such
encouragement.

2\. Nothing in this Treaty shall be construed to prevent a Party from
adopting, maintaining, or enforcing any measure otherwise consistent
with this Treaty that it considers appropriate to ensure that investment
activity in its territory is undertaken in a manner sensitive to
environmental concerns.

**Article 13: Investment and Labor**

1\. The Parties recognize that it is inappropriate to encourage
investment by weakening or reducing the protections afforded in domestic
labor laws. Accordingly, each Party shall strive to ensure that it does
not waive or otherwise derogate from, or offer to waive or otherwise
derogate from, such laws in a manner that weakens or reduces adherence
to the internationally recognized labor rights referred to in paragraph
2 as an encouragement for the establishment, acquisition, expansion, or
retention of an investment in its territory. If a Party considers that
the other Party has offered such an encouragement, it may request
consultations with the other Party and the two Parties shall consult
with a view to avoiding any such encouragement. []{.mark}

[]{.mark}

2\. For purposes of this Article, "labor laws" means each Party's
statutes or regulations,[^11] or provisions thereof, that are directly
related to the following internationally recognized labor rights:

\(a\) the right of association;

\(b\) the right to organize and bargain collectively;

\(c\) a prohibition on the use of any form of forced or compulsory
labor;

> \(d\) labor protections for children and young people, including a
> minimum age for the employment of children and the prohibition
> and elimination of the worst forms of child labor; and
>
> \(e\) acceptable conditions of work with respect to minimum wages,
> hours of work, and occupational safety and health.

**Article 14: Non-Conforming Measures**

1.  Articles 3 \[National Treatment\], 4 \[Most-Favored-Nation
    Treatment\], 8 \[Performance Requirements\], and 9 \[Senior
    Management and Boards of Directors\] do not apply to:

    a.  any existing non-conforming measure that is maintained by a
        Party at:

> \(i\) the central level of government, as set out by that Party in its
> Schedule to Annex I,
>
> \(ii\) a regional level of government, as set out by that Party in its
> Schedule to Annex I, or
>
> \(iii\) a local level of government;
>
> \(b\) the continuation or prompt renewal of any non-conforming measure
> referred to in subparagraph (a); or
>
> \(c\) an amendment to any non-conforming measure referred to in
> subparagraph (a) to the extent that the amendment does not decrease
> the conformity of the measure, as it existed immediately before the
> amendment, with Articles 3 \[National Treatment\], 4
> \[Most-Favored-Nation Treatment\], 8 \[Performance Requirements\], or
> 9 \[Senior Management and Boards of Directors\].

2\. Articles 3 \[National Treatment\], 4 \[Most-Favored-Nation
Treatment\], 8 \[Performance Requirements\], and 9 \[Senior Management
and Boards of Directors\] do not apply to any measure that a Party
adopts or maintains with respect to sectors, subsectors, or activities,
as set out in its Schedule to Annex II.

3\. Neither Party may, under any measure adopted after the date of entry
into force of this Treaty and covered by its Schedule to Annex II,
require an investor of the other Party, by reason of its nationality, to
sell or otherwise dispose of an investment existing at the time the
measure becomes effective.

4\. Articles 3 \[National Treatment\] and 4 \[Most-Favored-Nation
Treatment\] do not apply to any measure covered by an exception to, or
derogation from, the obligations under Articles 3 or 4 of the TRIPS
Agreement, as specifically provided in those Articles and in Article 5
of the TRIPS Agreement.

5\. Articles 3 \[National Treatment\], 4 \[Most-Favored-Nation
Treatment\], and 9 \[Senior Management and Boards of Directors\] do not
apply to:

> \(a\) government procurement; or

\(b\) subsidies or grants provided by a Party, including
government-supported loans, guarantees, and insurance.

**Article 15: Special Formalities and Information Requirements**

1\. Nothing in Article 3 \[National Treatment\] shall be construed to
prevent a Party from adopting or maintaining a measure that prescribes
special formalities in connection with covered investments, such as a
requirement that investors be residents of the Party or that covered
investments be legally constituted under the laws or regulations of the
Party, provided that such formalities do not materially impair the
protections afforded by a Party to investors of the other Party and
covered investments pursuant to this Treaty.

2\. Notwithstanding Articles 3 \[National Treatment\] and 4
\[Most-Favored-Nation Treatment\], a Party may require an investor of
the other Party, or a covered investment, to provide information
concerning that investment solely for informational or statistical
purposes. The Party shall protect any business information that is
confidential from any disclosure that would prejudice the competitive
position of the investor or the covered investment. Nothing in this
paragraph shall be construed to prevent a Party from otherwise obtaining
or disclosing information in connection with the equitable and good
faith application of its law.

## Article 16: Non-Derogation 

This Treaty shall not derogate from any of the following that entitle
covered investments to treatment more favorable than that accorded by
this Treaty:

1\. laws and regulations, administrative practices or procedures, or
administrative or adjudicatory decisions of a Party;

2\. international legal obligations; or

3\. obligations assumed by a Party, including those contained in an
investment authorization or an investment agreement.

**Article 17: Denial of Benefits**

1\. A Party may deny the benefits of this Treaty to an investor of the
other Party that is an enterprise of such other Party and to investments
of that investor if investors of a non-Party own or control the
enterprise and the denying Party:

> \(a\) does not maintain diplomatic relations with the non-Party; or

\(b\) adopts or maintains measures with respect to the non-Party or an
investor of the non-Party that prohibit transactions with the enterprise
or that would be violated or circumvented if the benefits of this Treaty
were accorded to the enterprise or to its investments.

2\. A Party may deny the benefits of this Treaty to an investor of the
other Party that is an enterprise of such other Party and to investments
of that investor if the enterprise has no substantial business
activities in the territory of the other Party and investors of a
non-Party, or of the denying Party, own or control the enterprise.

**Article 18: Essential Security**

Nothing in this Treaty shall be construed:

1\. to require a Party to furnish or allow access to any information the
disclosure of which it determines to be contrary to its essential
security interests; or

2\. to preclude a Party from applying measures that it considers
necessary for the

> fulfillment of its obligations with respect to the maintenance or
> restoration of international peace or security, or the protection of
> its own essential security interests.

**Article 19: Disclosure of Information**

Nothing in this Treaty shall be construed to require a Party to furnish
or allow access to confidential information, the disclosure of which
would impede law enforcement, or otherwise be contrary to the public
interest, or which would prejudice the legitimate commercial interests
of particular enterprises, public or private.

**Article 20: Financial Services**

1\. Notwithstanding any other provision of this Treaty, a Party shall
not be prevented from adopting or maintaining measures relating to
financial services for prudential reasons, including for the protection
of investors, depositors, policy holders or persons to whom a fiduciary
duty is owed by a financial services supplier, or to ensure the
integrity and stability of the financial system.[^12] Where such
measures do not conform with the provisions of this Treaty, they shall
not be used as a means of avoiding the Party's commitments or
obligations under this Treaty.

2\. Where a claimant submits a claim to arbitration under Section B
\[Investor-State Dispute Settlement\], and the respondent invokes
paragraph 1 of this Article as a defense, the following provisions shall
apply:

> \(a\) The respondent shall, within 120 days of the date the claim is
> submitted to arbitration under Section B, refer the issue in writing
> to the competent financial authorities[^13] of both Parties for a
> joint determination on the issue of whether and to what extent
> paragraph 1 is a valid defense to the claim. The arbitration may
> proceed with respect to the claim only as provided in subparagraph
> (d).
>
> \(b\) The competent financial authorities of both Parties shall make
> themselves available for consultations with each other and shall
> attempt in good faith to make a determination as described in
> subparagraph (a). Any such determination shall be transmitted promptly
> to the disputing parties and, if constituted, to the tribunal. The
> determination shall be binding on the tribunal.
>
> \(c\) If the competent financial authorities of both Parties, within
> 180 days of the date the respondent invokes paragraph 1 of this
> Article, have not made a determination as described in subparagraph
> (a), the respondent or the non-disputing Party may request the
> establishment of a tribunal under Section C \[State-State Dispute
> Settlement\] to decide the issue left unresolved by the competent
> financial authorities. The provisions of Section C shall apply, except
> as modified by this subparagraph. The tribunal established under this
> subparagraph shall be constituted in accordance with paragraph 4. This
> tribunal shall, within 180 days of the date it is constituted,
> transmit its final decision to the disputing parties and, if
> constituted, to the tribunal established under Section B. This
> decision shall be binding on the tribunal established under Section B.
>
> \(d\) The arbitration referred to in subparagraph (a) may proceed with
> respect to the claim if:

(i) no request for the establishment of a tribunal as described in
    subparagraph (c) has been made within 10 days of the expiration of
    the 180-day period extended to the competent financial authorities
    in that subparagraph, or

(ii) a tribunal established under subparagraph (c) has issued its final
     decision.

3\. Where a dispute that arises under Section C involves financial
services, other than where an issue remains unresolved as described in
subparagraph 2(c), Section C shall apply except as modified by this
paragraph and paragraph 4.

> \(a\) The competent financial authorities shall make themselves
> available for consultations with each other regarding the dispute, and
> shall have 180 days from the date such consultations are requested by
> either competent financial authority to transmit a report on their
> consultations to the Parties. A Party may submit the dispute to
> arbitration under Section C only upon the expiration of that 180-day
> period.

 

\(b\) Either Party may make any such report available to a tribunal
constituted under Section C to decide the dispute referred to in this
paragraph or a similar dispute, or to a tribunal constituted under
Section B to decide a claim arising out of the same events or
circumstances that gave rise to the dispute under Section C.

4\. Where a Party to a dispute submitted to a tribunal under Section C
asserts in writing to the other Party to the dispute, within 30 days
from the date that the dispute is submitted, that the dispute involves
financial services, each Party shall, in the appointment of all
arbitrators not yet appointed, take appropriate steps to ensure that the
tribunal has expertise or experience in financial services law or
practice. In such a case, the expertise of particular candidates with
respect to financial services shall be taken into account in the
appointment of the presiding arbitrator.

5\. Notwithstanding Article 11, paragraph 2 \[Transparency --
Publication\], each Party shall, to the extent practicable,

> \(a\) publish in advance any regulations of general application
> relating to financial services that it proposes to adopt;

\(b\) provide interested persons and the other Party a reasonable
opportunity to comment on such proposed regulations.

6\. The terms "financial service" or "financial services" shall have the
same meaning as in subparagraph 5(a) of the Annex on Financial Services
of the General Agreement on Trade in Services.

Article 21: Taxation

1\. Subject to paragraph 3, no provision of this Treaty shall impose
obligations with respect to taxation measures, except for:

\(a\) Article \[Expropriation\];

\(b\) Article \[Performance Requirements\](2) - (4);

\(c\) Articles \[Investor-State Dispute Settlement\] and \[State-State
Dispute Settlement\] with respect to a claim of breach of Article
\[Expropriation\] or Article \[Performance Requirements\](2) - (4); and

\(d\) Article \[Investor-State\] with respect to a claim of breach of an
investment agreement or an investment authorization.

2\. With respect to the application of Article \[Expropriation\]
referred to in paragraph 1, a claimant that asserts that a taxation
measure involves an expropriation may submit a claim to arbitration
under Section B, only if:

> \(a\) the claimant has first referred to the competent tax
> authorities[^14] of both Parties in writing the issue of whether that
> taxation measure involves an expropriation; and

b\) within 180 days after the date of such referral, the competent tax
authorities of both Parties fail to agree that the taxation measure is
not an expropriation.

3\. Nothing in this Treaty shall affect the rights and obligations of
either Party under any tax convention. In the event of any inconsistency
between this Treaty and any such convention, that convention shall
prevail to the extent of the inconsistency. In the case of a tax
convention between the Parties, the competent authorities under that
convention shall have sole responsibility for determining whether any
inconsistency exists between this Treaty and that convention.

**Article 22: Entry into Force, Duration, and Termination**

1\. This Treaty shall enter into force thirty days after the date of
exchange of instruments of ratification. It shall remain in force for a
period of ten years and shall continue in force unless terminated in
accordance with paragraph 2.

2\. A Party may terminate this Treaty at the end of the initial ten-year
period or at any time thereafter by giving one year's written notice to
the other Party.

3\. For ten years from the date of termination, all other Articles shall
continue to apply to covered investments established or acquired prior
to the date of termination, except insofar as those Articles extend to
the establishment or acquisition of covered investments.

**[Section B]{.smallcaps}**

**Article 23: Consultation and Negotiation**

In the event of an investment dispute, the claimant and the respondent
should initially seek to resolve the dispute through consultation and
negotiation, which may include the use of non-binding, third-party
procedures.

**Article 24: Submission of a Claim to Arbitration**

1\. In the event that a disputing party considers that an investment
dispute cannot be settled by consultation and negotiation:

> \(a\) the claimant, on its own behalf, may submit to arbitration under
> this Section a claim

\(i\) that the respondent has breached

> \(A\) an obligation under Articles 3 through 10,
>
> \(B\) an investment authorization, or
>
> \(C\) an investment agreement;

and

> \(ii\) that the claimant has incurred loss or damage by reason of, or
> arising out of, that breach; and

\(b\) the claimant, on behalf of an enterprise of the respondent that is
a juridical person that the claimant owns or controls directly or
indirectly, may submit to arbitration under this Section a claim

\(i\) that the respondent has breached

> \(A\) an obligation under Articles 3 through 10,
>
> \(B\) an investment authorization, or

\(C\) an investment agreement;

and

\(ii\) that the enterprise has incurred loss or damage by reason of, or
arising out of, that breach.

2\. At least 90 days before submitting any claim to arbitration under
this Section, a claimant shall deliver to the respondent a written
notice of its intention to submit the claim to arbitration ("notice of
intent"). The notice shall specify:

> \(a\) the name and address of the claimant and, where a claim is
> submitted on behalf of an enterprise, the name, address, and place of
> incorporation of the enterprise;
>
> \(b\) for each claim, the provision of this Treaty, investment
> authorization, or investment agreement alleged to have been breached
> and any other relevant provisions;
>
> \(c\) the legal and factual basis for each claim; and
>
> \(d\) the relief sought and the approximate amount of damages claimed.

3\. Provided that six months have elapsed since the events giving rise
to the claim, a claimant may submit a claim referred to in paragraph 1:

> \(a\) under the ICSID Convention and the ICSID Rules of Procedure for
> Arbitration Proceedings, provided that both the respondent and the
> non-disputing Party are parties to the ICSID Convention;

 

> \(b\) under the ICSID Additional Facility Rules, provided that either
> the respondent or the non-disputing Party is a party to the ICSID
> Convention;

 

> \(c\) under the UNCITRAL Arbitration Rules; or
>
> \(d\) if the claimant and respondent agree, to any other arbitration
> institution or under any other arbitration rules.

4\. A claim shall be deemed submitted to arbitration under this Section
when the claimant's notice of or request for arbitration ("notice of
arbitration"):

> \(a\) referred to in paragraph 1 of Article 36 of the ICSID Convention
> is received by the Secretary‑General;
>
> \(b\) referred to in Article 2 of Schedule C of the ICSID Additional
> Facility Rules is received by the Secretary‑General;
>
> \(c\) referred to in Article 3 of the UNCITRAL Arbitration Rules,
> together with the statement of claim referred to in Article 18 of the
> UNCITRAL Arbitration Rules, are received by the respondent; or
>
> \(d\) referred to under any other arbitral institution or arbitral
> rules selected under paragraph 3(d) is received by the respondent.

A claim asserted for the first time after such notice of arbitration is
submitted shall be deemed submitted to arbitration under this Section on
the date of its receipt under the applicable arbitral rules.

5\. The arbitration rules applicable under paragraph 3, 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 Treaty.

6\. The claimant shall provide with the notice of arbitration referred
to in paragraph 4:

> \(a\) the name of the arbitrator that the claimant appoints; or
>
> \(b\) the claimant's written consent for the Secretary-General to
> appoint the claimant's arbitrator.

**Article 25: Consent of Each Party to Arbitration**

1\. Each Party consents to the submission of a claim to arbitration
under this Section in accordance with this Treaty.

2\. The consent under paragraph 1 and the submission of a claim to
arbitration under this Section shall satisfy the requirements of:

> \(a\) Chapter II of the ICSID Convention (Jurisdiction of the Centre)
> and the ICSID Additional Facility Rules for written consent of the
> parties to the dispute; \[and\]
>
> \(b\) Article II of the New York Convention for an "agreement in
> writing\[."\] \[;" and
>
> \(c\) Article I of the Inter-American Convention for an "agreement."\]

**Article 26: Conditions and Limitations on Consent of Each Party**

1\. No claim may be submitted to arbitration under this Section if more
than three years have elapsed from the date on which the claimant first
acquired, or should have first acquired, knowledge of the breach alleged
under Article 24(1) and knowledge that the claimant (for claims brought
under Article 24(1)(a)) or the enterprise (for claims brought under
Article 24(1)(b)) has incurred loss or damage.

2\. No claim may be submitted to arbitration under this Section unless:

> \(a\) the claimant consents in writing to arbitration in accordance
> with the procedures set out in this Treaty; and
>
> \(b\) the notice of arbitration is accompanied,
>
> \(i\) for claims submitted to arbitration under Article 24(1)(a), by
> the claimant's written waiver, and
>
> \(ii\) for claims submitted to arbitration under Article 24(1)(b), by
> the claimant's and the enterprise's written waivers
>
> of any right to initiate or continue before any administrative
> tribunal or court under the law of either Party, or other dispute
> settlement procedures, any proceeding with respect to any measure
> alleged to constitute a breach referred to in Article 24.

3\. Notwithstanding paragraph 2(b), the claimant (for claims brought
under Article 24(1)(a)) and the claimant or the enterprise (for claims
brought under Article 24(1)(b)) may initiate or continue an action that
seeks interim injunctive relief and does not involve the payment of
monetary damages before a judicial or administrative tribunal of the
respondent, provided that the action is brought for the sole purpose of
preserving the claimant's or the enterprise's rights and interests
during the pendency of the arbitration.

**Article 27: Selection of Arbitrators**

1\. Unless the disputing parties otherwise agree, the tribunal shall
comprise three arbitrators, one arbitrator appointed by each of the
disputing parties and the third, who shall be the presiding arbitrator,
appointed by agreement of the disputing parties.

2\. The Secretary‑General shall serve as appointing authority for an
arbitration under this Section.

3\. If a tribunal has not been constituted within 75 days from the date
that a claim is submitted to arbitration under this Section, the
Secretary‑General, on the request of a disputing party, shall appoint,
in his or her discretion, the arbitrator or arbitrators not yet
appointed.

4\. For purposes of Article 39 of the ICSID Convention and Article 7 of
Schedule C to the ICSID Additional Facility Rules, and without prejudice
to an objection to an arbitrator on a ground other than nationality:

> \(a\) the respondent agrees to the appointment of each individual
> member of a tribunal established under the ICSID Convention or the
> ICSID Additional Facility Rules;
>
> \(b\) a claimant referred to in Article 24(1)(a) may submit a claim to
> arbitration under this Section, or continue a claim, under the ICSID
> Convention or the ICSID Additional Facility Rules, only on condition
> that the claimant agrees in writing to the appointment of each
> individual member of the tribunal; and
>
> \(c\) a claimant referred to in Article 24(1)(b) may submit a claim to
> arbitration under this Section, or continue a claim, under the ICSID
> Convention or the ICSID Additional Facility Rules, only on condition
> that the claimant and the enterprise agree in writing to the
> appointment of each individual member of the tribunal.

**Article 28: Conduct of the Arbitration**

1\. The disputing parties may agree on the legal place of any
arbitration under the arbitral rules applicable under Article 24(3). If
the disputing parties fail to reach agreement, the tribunal shall
determine the place in accordance with the applicable arbitral rules,
provided that the place shall be in the territory of a State that is a
party to the New York Convention.

2\. The non-disputing Party may make oral and written submissions to the
tribunal regarding the interpretation of this Treaty.

3\. The tribunal shall have the authority to accept and consider *amicus
curiae* submissions from a person or entity that is not a disputing
party.

Number range CHAPTER4. Without prejudice to a tribunal's authority to
address other objections as a preliminary question, a tribunal shall
address and decide as a preliminary question any objection by the
respondent that, as a matter of law, a claim submitted is not a claim
for which an award in favor of the claimant may be made under Article
34.

\(a\) Such objection shall be submitted to the tribunal as soon as
possible after the tribunal is constituted, and in no event later than
the date the tribunal fixes for the respondent to submit its
counter-memorial (or, in the case of an amendment to the notice of
arbitration, the date the tribunal fixes for the respondent to submit
its response to the amendment).

\(b\) On receipt of an objection under this paragraph, 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 award on the objection, stating the grounds therefor.

\(c\) In deciding an objection under this paragraph, the tribunal shall
assume to be true claimant's factual allegations in support of any claim
in the notice of arbitration (or any amendment thereof) and, in disputes
brought under the UNCITRAL Arbitration Rules, the statement of claim
referred to in Article 18 of the UNCITRAL Arbitration Rules. The
tribunal may also consider any relevant facts not in dispute.

\(d\) The respondent does not waive any objection as to competence or
any argument on the merits merely because the respondent did or did not
raise an objection under this paragraph or make use of the expedited
procedure set out in the following paragraph.

5\. In the event that the respondent so requests within 45 days after
the tribunal is constituted, the tribunal shall decide on an expedited
basis an objection under paragraph 4 or any objection that the dispute
is not within the tribunal's competence. The tribunal shall suspend any
proceedings on the merits and issue a decision or award on the
objection(s), stating the grounds therefor, no later than 150 days after
the date of the request. However, if a disputing party requests a
hearing, the tribunal may take an additional 30 days to issue the
decision or award. Regardless of whether a hearing is requested, a
tribunal may, on a showing of extraordinary cause, delay issuing its
decision or award by an additional brief period of time, which may not
exceed 30 days.

6\. When it decides a respondent's objection under paragraph 4 or 5, the
tribunal may, if warranted, award to the prevailing disputing party
reasonable costs and attorneys' fees incurred in submitting or opposing
the objection. In determining whether such an award is warranted, the
tribunal shall consider whether either the claimant's claim or the
respondent's objection was frivolous, and shall provide the disputing
parties a reasonable opportunity to comment.

7\. A respondent may not assert as a defense, counterclaim, right of
set‑off, or for any other reason that the claimant has received or will
receive indemnification or other compensation for all or part of the
alleged damages pursuant to an insurance or guarantee contract.

8\. A 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. A tribunal may not order attachment or
enjoin the application of a measure alleged to constitute a breach
referred to in Article 24. For purposes of this paragraph, an order
includes a recommendation.

9\. (a) In any arbitration conducted under this Section, at the request
of a disputing party, a tribunal shall, before issuing an award on
liability, transmit its proposed award to the disputing parties and to
the non-disputing Party. Within 60 days after the tribunal transmits its
proposed award, the disputing parties may submit written comments to the
tribunal concerning any aspect of its proposed award. The tribunal shall
consider any such comments and issue its award not later than 45 days
after the expiration of the 60-day comment period.

> \(b\) Subparagraph (a) shall not apply in any arbitration conducted
> pursuant to this Section for which an appeal has been made available
> pursuant to paragraph 10.

10\. If a separate multilateral agreement enters into force as between
the Parties that establishes an appellate body for purposes of reviewing
awards rendered by tribunals constituted pursuant to international trade
or investment arrangements to hear investment disputes, the Parties
shall strive to agree that such appellate body will review awards
rendered under Article 34 of this Section in arbitrations commenced
after the multilateral agreement enters into force as between the
Parties.

**Article 29: Transparency of Arbitral Proceedings**

1\. Subject to paragraphs 2 and 4, the respondent shall, after receiving
the following documents, promptly transmit them to the non-disputing
Party and make them available to the public:

\(a\) the notice of intent referred to in Article 24(2);

> \(b\) the notice of arbitration referred to in Article 24(4);
>
> \(c\) pleadings, memorials, and briefs submitted to the tribunal by a
> disputing party and any written submissions submitted pursuant to
> Article 28(2) \[Non-Disputing Party submissions\] and (3) \[*Amicus*
> Submissions\] and Article 33 \[Consolidation\];
>
> \(d\) minutes or transcripts of hearings of the tribunal, where
> available; and
>
> \(e\) orders, awards, and decisions of the tribunal.

2\. The tribunal shall conduct hearings open to the public and shall
determine, in consultation with the disputing parties, the appropriate
logistical arrangements. However, any disputing party that intends to
use information designated as protected information in a hearing shall
so advise the tribunal. The tribunal shall make appropriate arrangements
to protect the information from disclosure.

Number range CHAPTER3. Nothing in this Section requires a respondent to
disclose protected information or to furnish or allow access to
information that it may withhold in accordance with Article 18
\[Essential Security Article\] or Article 19 \[Disclosure of Information
Article\].

4\. Protected information shall, if such information is submitted to the
tribunal, be protected from disclosure in accordance with the following
procedures:

> \(a\) Subject to paragraph 4(d), neither the disputing parties nor the
> tribunal shall disclose to the non-disputing Party or to the public
> any protected information where the disputing party that provided the
> information clearly designates it in accordance with paragraph 4(b).
>
> \(b\) Any disputing party claiming that certain information
> constitutes protected information 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 protected information,
> 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.
>
> \(d\) The tribunal shall decide any objection regarding the
> designation of information claimed to be protected information. 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 (ii)
> agree to resubmit complete and redacted documents with corrected
> designations in accordance with the tribunal's determination and
> paragraph 4(c). In either case, the other disputing party shall,
> whenever necessary, resubmit complete and redacted documents which
> either remove the information withdrawn under (i) by the disputing
> party that first submitted the information or redesignate the
> information consistent with the designation under (ii) of the
> disputing party that first submitted the information.

5\. Nothing in this Section requires a respondent to withhold from the
public information required to be disclosed by its laws.

#### Article 30: Governing Law

1\. Subject to paragraph 3, when a claim is submitted under Article
24(1)(a)(i)(A) or Article 24(1)(b)(i)(A), the tribunal shall decide the
issues in dispute in accordance with this Treaty and applicable rules of
international law.

2.  Subject to paragraph 3 and the other terms of this Section, when a
    claim is submitted under Article 24(1)(a)(i)(B) or (C), or Article
    24(1)(b)(i)(B) or (C), the tribunal shall apply:

> \(a\) the rules of law specified in the pertinent investment agreement
> or investment authorization, or as the disputing parties may otherwise
> agree; or

\(b\) if the rules of law have not been specified or otherwise agreed:

\(i\) the law of the respondent, including its rules on the conflict of
laws;[^15] and

\(ii\) such rules of international law as may be applicable.

3\. A joint decision of the Parties, each acting through its
representative designated for purposes of this Article, declaring their
interpretation of a provision of this Treaty shall be binding on a
tribunal established under this Section, and any award must be
consistent with that decision.

#### 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 \[and Article I of
the Inter-American Convention\].

#### Article 35: Annexes

The Annexes shall form an integral part of this Treaty.

**Article 36: Service of Documents**

## Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex C.

## 

## 

##  

## [Section C]{.smallcaps}

## Article 37: State-State Dispute Settlement

1\. Subject to paragraph 5, any dispute between the Parties concerning
the interpretation or application of this Treaty, that is not resolved
through consultations or other diplomatic channels, shall be submitted
upon the request of either Party to a tribunal for a binding decision or
award in accordance with applicable rules of international law. In the
absence of an agreement by the Parties to the contrary, the UNCITRAL
Arbitration Rules shall govern, except as modified by the Parties or
this Section.

2\. Unless the Parties otherwise agree, the tribunal shall comprise
three arbitrators, one arbitrator appointed by each of the Parties and
the third, who shall be the presiding arbitrator, appointed by agreement
of the Parties. If a tribunal has not been constituted within 75 days
from the date that a claim is submitted to arbitration under this
Section, the Secretary‑General, on the request of either Party, shall
appoint, in his or her discretion, the arbitrator or arbitrators not yet
appointed.

3\. Expenses incurred by the arbitrators, and other costs of the
proceedings, shall be paid for equally by the Parties. However, the
tribunal may, in its discretion, direct that a higher proportion of the
costs be paid by one of the Parties.

4\. Articles 29 \[Investor-State Transparency\], 28(3) \[*Amicus Curiae*
Submissions\], 30 \[Governing Law\], and 31 \[Interpretation of
Annexes\] shall apply *mutatis mutandis* to arbitrations under this
Article.

5\. Paragraphs 1 through 4 shall not apply to a matter arising under
Article 12 or Article 13.

IN WITNESS WHEREOF, the respective plenipotentiaries have signed this
Treaty.

DONE in duplicate at \[city\] this \[number\] day of \[month, year\], in
the English and \[foreign\] languages, each text being equally
authentic.

FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF

THE UNITED STATES OF AMERICA: \[Country\]:

**Annex A**

**CUSTOMARY INTERNATIONAL LAW**

The Parties confirm their shared understanding that "customary
international law" generally and as specifically referenced in Article 5
\[Minimum Standard of Treatment\] and Annex B \[Expropriation\] results
from a general and consistent practice of States that they follow from a
sense of legal obligation. With regard to Article 5 \[Minimum Standard
of Treatment\], the customary international law minimum standard of
treatment of aliens refers to all customary international law principles
that protect the economic rights and interests of aliens.

**Annex B**

**EXPROPRIATION**

The Parties confirm their shared understanding that:

1\. Article 6 \[Expropriation and Compensation\](1) is intended to
reflect customary international law concerning the obligation of States
with respect to expropriation.

2\. An action or a series of actions by a Party cannot constitute an
expropriation unless it interferes with a tangible or intangible
property right or property interest in an investment.

3\. Article 6 \[Expropriation and Compensation\](1) addresses two
situations. The first is direct expropriation, where an investment is
nationalized or otherwise directly expropriated through formal transfer
of title or outright seizure.

4\. The second situation addressed by Article 6 \[Expropriation and
Compensation\](1) is indirect expropriation, where an action or series
of actions by a Party has an effect equivalent to direct expropriation
without formal transfer of title or outright seizure.

> \(a\) The determination of whether an action or series of actions by a
> Party, in a specific fact situation, constitutes an indirect
> expropriation, requires a case-by-case, fact-based inquiry that
> considers, among other factors:

i.  the economic impact of the government action, although the fact that
    an action or series of actions by a Party has an adverse effect on
    the economic value of an investment, standing alone, does not
    establish that an indirect expropriation has occurred;

ii. the extent to which the government action interferes with distinct,
    reasonable investment-backed expectations; and

iii. the character of the government action.

> \(b\) Except in rare circumstances, nondiscriminatory regulatory
> actions by a Party that are designed and applied to protect legitimate
> public welfare objectives, such as public health, safety, and the
> environment, do not constitute indirect expropriations.

**Annex C**

### SERVICE OF DOCUMENTS ON A PARTY UNDER SECTION B

### 

### 

### United States

Notices and other documents in disputes under Section B shall be served
on the United States by delivery to:

> Executive Director (L/EX)
>
> Office of the Legal Adviser
>
> Department of State
>
> Washington, D.C. 20520
>
> United States of America

**\[Country\]**

Notices and other documents in disputes under Section B shall be served
on \[Country\] by delivery to:

\[insert place of delivery of notices and other documents for
\[Country\]\]

**Annex D**

**POSSIBILITY OF A BILATERAL APPELLATE BODY/MECHANISM**

Within three years after the date of entry into force of the Treaty, the
Parties shall consider whether to establish a bilateral appellate body
or similar mechanism to review awards rendered under Article 34 in
arbitrations commenced after they establish the appellate body or
similar mechanism.

[^1]: Some forms of debt, such as bonds, debentures, and long-term
    notes, are more likely to have the characteristics of an investment,
    while other forms of debt, such as claims to payment that are
    immediately due and result from the sale of goods or services, are
    less likely to have such characteristics.

[^2]: Whether a particular type of license, authorization, permit, or
    similar instrument (including a concession, to the extent that it
    has the nature of such an instrument) has the characteristics of an
    investment depends on such factors as the nature and extent of the
    rights that the holder has under the domestic law of the Party.
    Among the licenses, authorizations, permits, and similar instruments
    that do not have the characteristics of an investment are those that
    do not create any rights protected under domestic law. For greater
    certainty, the foregoing is without prejudice to whether any asset
    associated with the license, authorization, permit, or similar
    instrument has the characteristics of an investment.

[^3]: The term "investment" does not include an order or judgment
    entered in a judicial or administrative action.

[^4]: Written agreement refers to an agreement in writing, executed by
    both parties, whether in a single instrument or in multiple
    instruments, that creates an exchange of rights and obligations,
    binding on both parties under the law applicable under Article XX
    \[Governing Law\](2). For greater certainty, (a) a unilateral act of
    an administrative or judicial authority, such as a permit, license,
    or authorization issued by a Party solely in its regulatory
    capacity, or a decree, order, or judgment, standing alone; and (b)
    an administrative or judicial consent decree or order, shall not be
    considered a written agreement.

[^5]: For purposes of this definition, "national authority" means (a)
    for the United States, an authority at the central level of
    government; and (b) for \[Country\], \[ \].

[^6]: Actions taken by an agency of a Party to enforce laws of general
    application such as competition law do not come within this
    definition.

[^7]: Article 5 \[Minimum Standard of Treatment\] is to be interpreted
    in accordance with Annex A.

[^8]: Article 6 \[Expropriation\] is to be interpreted in accordance
    with Annex A and B.

[^9]: The Parties recognize that a patent does not necessarily confer
    market power.

[^10]: For the United States, "laws" for purposes of this Article means
    an act of the United States Congress or regulations promulgated
    pursuant to an act of the United States Congress that is enforceable
    by action of the federal government.

[^11]: For the United States, "statutes or regulations" for purposes of
    this Article means an act of the U.S. Congress or regulation
    promulgated pursuant to an act of the U.S. Congress that is
    enforceable by action of the federal government.

[^12]: It is understood that the term "prudential reasons" includes the
    maintenance of the safety, soundness, integrity or financial
    responsibility of individual financial institutions.

[^13]: For purposes of this Article, "competent financial authorities"
    means, for the United States, the Department of the Treasury for
    banking and other financial services, and the Office of the United
    States Trade Representative, in coordination with the Department of
    Commerce and other agencies, for insurance; and for \[Country\], \[
    [\]]{.underline}.

[^14]: For the purposes of this Article, the "competent tax authorities"
    means:

    > \(a\) for the United States, the Assistant Secretary of the
    > Treasury (Tax Policy), Department of the Treasury; and

    \(b\) for \[Country\], \[ [\]]{.underline}.

[^15]: The "law of the respondent" means the law that a domestic court
    or tribunal of proper jurisdiction would apply in the same case.