Common use of Conduct of the Arbitration Clause in Contracts

Conduct of the Arbitration. 1. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, the tribunal shall decide the matter before proceeding to the merits. 2. A disputing Member State may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit. A disputing Member State may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Member State shall specify as precisely as possible the basis for the objection. 3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect. 4. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment. 5. Unless the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention. 6. Where an investment dispute relate to a measure which may be a taxation measure, the disputing Member State and the non-disputing Member State, including representatives of their tax administrations, shall hold consultations to determine whether the measure in question is a taxation measure. 7. Where a disputing investor claims that the disputing Member State has breached Article 14 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Member State and the non-disputing Member State shall, upon request from the disputing Member State, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. 8. Any tribunal that may be established under this Section shall accord serious consideration to the decision of both Member States under paragraphs 6 and 7. 9. If both Member States fail either to initiate such consultations referred to paragraphs 6 and 7, or to make such joint decisions, within the period of 180 days from the date of the receipt of request for consultation referred to in Article 31 (Consultations), the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Section.

Conduct of the Arbitration. 1. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, the a tribunal shall decide the matter before proceeding to the merits. 2. A disputing Member State Party may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit. A disputing Member State Party may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Member State Party shall specify as precisely as possible the basis for the objection. 3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect. 4. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment. 5. Unless the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention. 6. Where an investment dispute relate to a measure which may be a taxation measure, the disputing Member State and the non-disputing Member State, including representatives of their tax administrations, shall hold consultations to determine whether the measure in question is a taxation measure. 7. Where a disputing investor claims that the disputing Member State Party has breached Article 14 9 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Member State Party and the non-disputing Member State Party shall, upon request from the disputing Member StateParty, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. 8. Any tribunal that may be established under pursuant to this Section shall accord serious consideration to the decision of both Member States Parties under paragraphs 6 and 7this Paragraph. 97. If both Member States Parties fail either to initiate such consultations referred to paragraphs 6 and 7in Paragraph 6, or to make determine whether such joint decisions, taxation measure has an effect equivalent to expropriation or nationalisation within the period of 180 days from the date of the receipt of request for consultation referred to in Article 31 19 (Consultations), the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Section.

Conduct of the Arbitration. 1. Where issues relating The disputing parties may agree on the place of any arbitration under the arbitration rules applicable under Article 21.4 (Submission of a Claim to jurisdiction or admissibility are raised as preliminary objectionsArbitration). If the disputing parties fail to reach agreement on the place of arbitration, the tribunal shall decide determine the matter before proceeding place in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a party to the meritsNew York Convention. 2. A The tribunal shall have the authority to accept and consider amicus curiae written submissions that may assist the tribunal in evaluating the submissions and arguments of the disputing Member State mayparties from a person or entity that is not a disputing party (the “submitter”). Each submission shall be provided in English, no later and shall identify the submitter and any Party, other government, person, or organisation, other than 30 days after the constitution submitter, that has provided, or will provide, any financial or other assistance in preparing the submission. Where such submissions are admitted by the tribunal, the tribunal shall provide to the disputing parties a reasonable opportunity to respond to such submissions. 3. Without prejudice to a tribunal’s authority to address other objections as a preliminary question, such as an objection that an investment dispute is not within the jurisdiction or the competence of the tribunal, file an a tribunal shall address and decide as a preliminary question any objection by the respondent that a the claim is manifestly without legal merit. A disputing Member State may also file . (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 referred to in Article 21.5 (Submission of a Claim to Arbitration), the date the tribunal fixes for the respondent to submit its response to the amendment. (b) On receipt of an objection that under this paragraph, the tribunal shall suspend any proceedings on the merits, establish a claim is otherwise outside 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) The respondent does not waive any objection as to the jurisdiction or competence of the tribunal. The disputing Member State shall specify as precisely as possible tribunal or any argument on the basis for merits merely because the objectionrespondent did or did not raise an objection under this paragraph or make use of the expedited procedure set out in the following paragraph. 34. The In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall address any such decide on an expedited basis an objection as a preliminary question apart from by the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides respondent that the claim is manifestly without merit, legal merit or any objection that the claim is otherwise not within the tribunal’s jurisdiction or competence 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 tribunalrequest. However, it shall render 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 to that effectby an additional period of time, which may not exceed 30 days. 5. When it decides a respondent’s objection under paragraph 3 or 4. The , 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 or manifestly without meritis frivolous, and shall provide the disputing parties a reasonable opportunity to comment. 56. Unless For greater certainty, a claimant has the burden of proving all elements of its claim, consistent with general principles of international law applicable to international arbitration, including, in the case of a claim of a breach of Article 6 (Minimum Standard of Treatment), that the respondent has breached a general and consistent practice of States that they follow from a sense of legal obligation. 7. A respondent may not assert as a defence, counterclaim, right of set-off, or otherwise that the claimant has received or will receive indemnification or other compensation for all or part of the alleged loss or 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 21 (Submission of a Claim to Arbitration). For the purposes of this paragraph, an order includes a recommendation. 9. At the request of a disputing party, a tribunal shall, before issuing an award on liability, transmit its proposed award to the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party and to the New York Convention. 6. Where an investment dispute relate to a measure which may be a taxation measure, the disputing Member State and the non-disputing Member StateParty. Within 60 days after the tribunal transmits its proposed award, including representatives of their tax administrations, shall hold consultations to determine whether the measure in question is a taxation measure. 7. Where a disputing investor claims that only the disputing Member State has breached Article 14 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Member State and the non-disputing Member State shall, upon request from the disputing Member State, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. 8. Any tribunal that parties may be established under this Section shall accord serious consideration submit written comments to the decision tribunal concerning any aspect of both Member States under paragraphs 6 its proposed award. The tribunal shall consider any such comments and 7. 9. If both Member States fail either to initiate such consultations referred to paragraphs 6 and 7, or to make such joint decisions, within issue its award not later than 45 days after the period of 180 days from the date expiration of the receipt of request for consultation referred to in Article 31 (Consultations), the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Section60 day comment period.

Conduct of the Arbitration. 1. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, the tribunal shall decide the matter before proceeding to the merits. 2. A disputing Member State may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit. A disputing Member State may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Member State shall specify as precisely as possible the basis for the objection. 3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect. 4. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment. 5. Unless the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention. 6. Where an investment dispute relate to a measure which may be a taxation measure, the disputing Member State and the non-disputing Member State, including representatives of their tax administrations, shall hold consultations to determine whether the measure in question is a taxation measure. 7. Where a disputing investor claims that the disputing Member State has breached Article 14 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Member State and the non-disputing Member State shall, upon request from the disputing Member State, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. 8. Any tribunal that may be established under this Section shall accord serious consideration to the decision of both Member States under paragraphs 6 and 7. 9. If both Member States fail either to initiate such consultations referred to paragraphs 6 and 7, or to make such joint decisions, within the period of 180 days from the date of the receipt of request for consultation referred to in Article 31 (Consultations), the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Section.

Conduct of the Arbitration. ‌ 1. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, the tribunal shall decide the matter before proceeding to the merits. 2. A disputing Member State may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit. A disputing Member State may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Member State shall specify as precisely as possible the basis for the objection. 3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect. 4. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment. 5. Unless the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a State that is a party to the New York Convention. 6. Where an investment dispute relate to a measure which may be a taxation measure, the disputing Member State and the non-disputing Member State, including representatives of their tax administrations, shall hold consultations to determine whether the measure in question is a taxation measure. 7. Where a disputing investor claims that the disputing Member State has breached Article 14 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Member State and the non-disputing Member State shall, upon request from the disputing Member State, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. 8. Any tribunal that may be established under this Section shall accord serious consideration to the decision of both Member States under paragraphs 6 and 7. 9. If both Member States fail either to initiate such consultations referred to paragraphs 6 and 7, or to make such joint decisions, within the period of 180 days from the date of the receipt of request for consultation referred to in Article 31 (Consultations), the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Section.

Conduct of the Arbitration. 1. Where Upon request of the Tribunal, on written notice to the disputing parties, the non-disputing Party may make oral or written submissions to a Tribunal on a question of interpretation of this Agreement. Upon request of a disputing party, the non- disputing Party shall submit its oral submission in writing. 2. Unless otherwise agreed by the disputing parties, a Tribunal shall hold an arbitration in the territory of a Party that is party to the New York Convention, selected in accordance with: (a) the ICSID Additional Facility Rules, if the arbitration is under those Rules or the ICSID Convention; or (b) the UNCITRAL Arbitration Rules, if the arbitration is under those Rules. 3. Unless otherwise agreed by the disputing parties, the Tribunal may determine a place for meetings and hearings, other than the legal place of arbitration. In doing so, the Tribunal shall take into consideration, its convenience for the parties and the arbitrators, the location of the subject matter, and the proximity of the evidence. 4. If issues relating to jurisdiction or admissibility are raised as preliminary objections, the tribunal shall Tribunal shall, whenever possible, decide the matter before proceeding to the merits. 2. A disputing Member State may, no later than 30 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit. A disputing Member State may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Member State shall specify as precisely as possible the basis for the objection. 3. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunalTribunal. If the tribunal Tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunalTribunal, it shall render an award to that effect. 45. The tribunal Tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal Tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment. 56. Unless The Tribunal may order an interim measure of protection to preserve the disputing parties otherwise agree, the tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory rights of a State that is a party to the New York Convention. 6. Where an investment dispute relate to a measure which may be a taxation measure, the disputing Member State and the non-disputing Member State, including representatives of their tax administrations, shall hold consultations to determine whether the measure in question is a taxation measure. 7. Where a disputing investor claims that the disputing Member State has breached Article 14 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Member State and the non-disputing Member State shall, upon request from the disputing Member State, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. 8. Any tribunal that may be established under this Section shall accord serious consideration to the decision of both Member States under paragraphs 6 and 7. 9. If both Member States fail either to initiate such consultations referred to paragraphs 6 and 7party, or to make such joint decisionsensure that the Tribunal's jurisdiction is made fully effective, within including an order to preserve evidence in the period possession or control of 180 days from a disputing party or to protect the date Tribunal's jurisdiction. The Tribunal shall not order the seizure of assets nor may it prevent the application of the receipt of request for consultation measure alleged to constitute a breach referred to in Article 31 (Consultations), the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Section9.