Common use of Settlement of Investment Disputes between a Party and an Investor of the other Party Clause in Contracts

Settlement of Investment Disputes between a Party and an Investor of the other Party. 1. For the purposes of this Chapter, an “investment dispute” is a dispute between a Party and the investor of the other Party that has incurred loss or damage by reason of, or arising out of, an alleged breach of any right conferred by this Chapter with respect to the investments of the investor of the other Party. Note: For greater certainty, where an agreement executed between an investor of a Party and the other Party provides for any arbitration or dispute resolution procedures, then any dispute which arises or occurs between the parties in relation to anything or matter arising out of or in connection with that agreement shall be referred to and resolved by arbitration or dispute resolution provided in that agreement and recourse may only be made to the arbitration procedure in this Article where any breach expressly and directly arises or occurs between the parties in relation to breaches of any provisions of this Chapter. 2. Nothing in this Article shall be construed so as to prevent an investor who is a party to an investment dispute (hereinafter referred to in this Article as “disputing investor”) from seeking administrative or judicial settlement available within the country of the Party that is a party to the investment dispute (hereinafter referred to in this Article as “disputing Party”). 3. An investment dispute shall, as far as possible, be settled amicably through consultations between the parties to the investment dispute. 4. An investor shall not be entitled to make a claim, if more than three years have elapsed from the date on which the investor first acquired, or should have first acquired knowledge of the alleged breach and knowledge that the investor has incurred loss or damage. 5. If the investment dispute cannot be settled through such consultations referred to in paragraph 3 of this Article within six months from the date on which the disputing investor requested for the consultations in writing and if the disputing investor has not submitted the investment dispute for resolution under administrative or judicial settlement, the disputing investor may: (a) if agreed by the disputing Party, submit the investment dispute to the Kuala Lumpur Regional Centre for Arbitration for settlement by conciliation or arbitration; (b) submit the investment dispute to conciliation or arbitration in accordance with the provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington, 18 March 1965, as may be amended; (c) submit the investment dispute to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law, adopted by the United Nations Commission on International Trade Law on 28 April 1976, as may be amended; or (d) if agreed with the disputing Party, submit the investment dispute to arbitration in accordance with other arbitration rules. 6. The applicable arbitration rules shall govern the arbitration referred to in this Article except to the extent modified in this Article. 7. The disputing investor who intends to submit the investment dispute to conciliation or arbitration pursuant to paragraph 5 of this Article shall give to the disputing Party written notice of intent to do so at least 90 days before the claim is submitted. The notice of intent shall specify: (a) the name and address of the disputing investor; (b) the specific measures of the disputing Party at issue and a summary of the factual and legal basis of the dispute sufficient to present the problem clearly, including the provisions of this Chapter alleged to have been breached; and (c) the dispute settlement procedures set forth in paragraph 5 of this Article which the disputing investor will seek. 8. Notwithstanding paragraph 5 of this Article and subject to the laws of the disputing Party, the disputing investor may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of damages before an administrative tribunal or a court of justice. 9. Unless the disputing parties agree otherwise, the arbitration shall be held in the territory of the country of the disputing Party. 10. The award shall include: (a) judgment whether or not there has been a breach by the disputing Party of any rights conferred by this Chapter in respect of the disputing investor and its investments; and (b) remedy if there has been such breach. The remedy shall be limited to one or both of the following: (i) payment of monetary damages and applicable interest; and (ii) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution. Costs may also be awarded in accordance with the applicable arbitration rules. 11. The award rendered in accordance with paragraph 10 of this Article shall be final and binding upon the disputing parties. The disputing Party shall carry out without delay the provisions of any such award and provide in the territory of the country of the disputing Party for the enforcement of such award in accordance with the relevant laws and regulations of its country. 12. Neither Party shall, in respect of an investment dispute which one of its investors has submitted to arbitration in accordance with paragraph 5 of this Article, bring an international claim before another forum unless the other Party has failed to abide by and comply with the award rendered in such investment dispute. 13. This Article shall not apply to any dispute arising between a Party and an investor of the other Party on any right or privileges conferred or created by Article 89 and 92. 14. An investor of a Party whose investments are not made in compliance with the laws, regulations and national policies of the other Party shall not: (a) be entitled to submit an investment dispute to conciliation or arbitration referred to in paragraph 5 of this Article; and (b) resort to dispute settlement procedures under Chapter 12 as a means to settle the investment disputes between the investor and the other Party.

Settlement of Investment Disputes between a Party and an Investor of the other Party. 1. For the purposes of this Chapter, an “"investment dispute” " is a dispute between a Party and the investor of the other Party that has incurred loss or damage by reason of, or arising out of, an alleged breach of any right conferred by this Chapter with respect to the investments of the investor of the other Party. Note: For greater certainty, where an agreement executed between an investor of a Party and the other Party provides for any arbitration or dispute resolution procedures, then any dispute which arises or occurs between the parties in relation to anything or matter arising out of or in connection with that agreement shall be referred to and resolved by arbitration or dispute resolution provided in that agreement and recourse may only be made to the arbitration procedure in this Article where any breach expressly and directly arises or occurs between the parties in relation to breaches of any provisions of this Chapter. 2. Nothing in this Article shall be construed so as to prevent an investor who is a party to an investment dispute (hereinafter referred to in this Article as “"disputing investor”") from seeking administrative or judicial settlement available within the country of the Party that is a party to the investment dispute (hereinafter referred to in this Article as “"disputing Party”"). 3. An investment dispute shall, as far as possible, be settled amicably through consultations between the parties to the investment dispute. 4. An investor shall not be entitled to make a claim, if more than three years have elapsed from the date on which the investor first acquired, or should have first acquired knowledge of the alleged breach and knowledge that the investor has incurred loss or damage. 5. If the investment dispute cannot be settled through such consultations referred to in paragraph 3 of this Article within six months from the date on which the disputing investor requested for the consultations in writing and if the disputing investor has not submitted the investment dispute for resolution under administrative or judicial settlement, the disputing investor may: (a) if agreed by the disputing Party, submit the investment dispute to the Kuala Lumpur Regional Centre for Arbitration for settlement by conciliation or arbitration; (b) submit the investment dispute to conciliation or arbitration in accordance with the provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington, 18 March 1965, as may be amended; (c) submit the investment dispute to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law, adopted by the United Nations Commission on International Trade Law on 28 April 1976, as may be amended; or (d) if agreed with the disputing Party, submit the investment dispute to arbitration in accordance with other arbitration rules. 6. The applicable arbitration rules shall govern the arbitration referred to in this Article except to the extent modified in this Article. 7. The disputing investor who intends to submit the investment dispute to conciliation or arbitration pursuant to paragraph 5 of this Article shall give to the disputing Party written notice of intent to do so at least 90 days before the claim is submitted. The notice of intent shall specify: (a) the name and address of the disputing investor; (b) the specific measures of the disputing Party at issue and a summary of the factual and legal basis of the dispute sufficient to present the problem clearly, including the provisions of this Chapter alleged to have been breached; and and (c) the dispute settlement procedures set forth in paragraph 5 of this Article which the disputing investor will seek. 8. Notwithstanding paragraph 5 of this Article and subject to the laws of the disputing Party, the disputing investor may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of damages before an administrative tribunal or a court of justice. 9. Unless the disputing parties agree otherwise, the arbitration shall be held in the territory of the country of the disputing Party. 10. The award shall include: (a) judgment whether or not there has been a breach by the disputing Party of any rights conferred by this Chapter in respect of the disputing investor and its investments; and (b) remedy if there has been such breach. The remedy shall be limited to one or both of the following: (i) payment of monetary damages and applicable interest; and (ii) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution. Costs may also be awarded in accordance with the applicable arbitration rules. 11. The award rendered in accordance with paragraph 10 of this Article shall be final and binding upon the disputing parties. The disputing Party shall carry out without delay the provisions of any such award and provide in the territory of the country of the disputing Party for the enforcement of such award in accordance with the relevant laws and regulations of its country. 12. Neither Party shall, in respect of an investment dispute which one of its investors has submitted to arbitration in accordance with paragraph 5 of this Article, bring an international claim before another forum unless the other Party has failed to abide by and comply with the award rendered in such investment dispute. 13. This Article shall not apply to any dispute arising between a Party and an investor of the other Party on any right or privileges conferred or created by Article 89 and 92. 14. An investor of a Party whose investments are not made in compliance with the laws, regulations and national policies of the other Party shall not: (a) be entitled to submit an investment dispute to conciliation or arbitration referred to in paragraph 5 of this Article; and (b) resort to dispute settlement procedures under Chapter 12 as a means to settle the investment disputes between the investor and the other Party.