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