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THE ENERGY CHARTER TREATY
LE TRAITE SUR LA CHARTE DE L'ENERGIE
VERTRAG UBER DIE ENERGIECHARTA
TRATTATO SULLA CARTA DELL'ENERGIA
AOrOBOP K 3HEPrETlt1Lf ECKO XAPT"1"1
EL TRATADO SOBRE LA CARTA DE LA ENERGIA
EUROPEAN ENERGY CHARTER CONFERENCE
THE ENERGY CHARTER TREATY
THE ENERGY CHARTER TREATY
PREAMBLE
The Contracting Parties to this Treaty,
Having regard to the Charter of Paris for a New Europe signed on 21 November 1990;
Having regard to the European Energy Charter adopted in the Concluding Document of the Hague Conference on the European Energy Charter signed at The Hague on
17 December 1991;
Recalling that all signatories to the Concluding Document of the Hague Conference undertook to pursue the objectives and principles of the European Energy Charter and implement and broaden their cooperation as soon as possible by negotiating in good faith an Energy Charter Treaty and Protocols, and desiring to place the commitments contained in that Charter on a secure and binding international legal basis;
Desiring also to establish the structural framework required to implement the principles enunciated in the European Energy Charter;
Wishing to implement the basic concept of the European Energy Charter initiative which is to catalyse economic growth by means of measures to liberalize investment and trade in energy;
Affirming that Contracting Parties attach the utmost importance to the effective implementation of full national treatment and most favoured nation treatment, and that these commitments will be applied to the Making of Investments pursuant to a supplementary treaty;
Having regard to the objective of progressive liberalization of international trade and to the principle of avoidance of discrimination in international trade as enunciated in the General Agreement on Tariffs and Trade and its Related Instruments and as otherwise provided for in this Treaty;
Determined progressively to remove technical. administrative and other barriers to trade in Energy Materials and Products and related equipment, technologies and services;
Looking to the eventual membership in the General Agreement on Tariffs and Trade of those Contracting Parties which are not currently parties thereto and concerned to provide interim trade arrangements which will assist those Contracting Parties and not impede their preparation for such membership;
Mindful of the rights and obligations of certain Contracting Parties which are also parties to the General Agreement on Tariffs and Trade and its Related Instruments;
Having regard to competition rules concerning mergers, monopolies, anti-competitive practices and abuse of dominant position ;
Having regard also to the Treaty on the Non-Proliferation of Nuclear Weapons, the Nuclear Suppliers Guidelines and other international nuclear non-proliferation obligations or understandings;
- Recognizing the necessity for the most efficient exploration, production, conversion, storage, transport, distribution and use of energy;
Recalling the United Nations Framework Convention on Climate Change, the Convention on Long-Range Transboundary Air Pollution and its protocols, and other international environmental agreements with energy-related aspects; and
Recognizing the increasingly urgent need for measures to protect the environment, including the decommissioning of energy installations and waste disposal, and for internationally-agreed objectives and criteria for these purposes,
HAVE AGREED AS FOLLOWS:
PART I
DEFINITIONS AND PURPOSE
ARTICLE 1
DEFINITIONS
As used in this Treaty:
(1) "Charter" means the European Energy Charter adopted in the Concluding Document of the Hague Conferenc e on the European Energy Charter signed at The Hague on 17 December 1991; signature of the Concluding Document is considered to be signature of the Charter.
2) "Contracting Party" means a state or Regional Economic Integration Organization which has consented to be bound by this Treaty and for which the Treaty is in force .
(3) "Regional Economic Integration Organization" means an organization constituted by states to which they have transferred competence over certain matters a number of which are governed by this Treaty, including the authority to take decisions binding on them in respect of those matters.
(4) "Energy Materials and Products", based on the Harmonized System of the Customs Cooperation Council and the Combined Nomenclature of the European Communities, means the items included in Annex EM.
(5) "Economic Activity in the Energy Sector" means an economic activity c oncerning the exploration, extraction, refining, production, storage , land transport, transmission, distribution, trade, marketing, or sale of Energy Materials and Products except those included in Annex NI, or concerning the distribution of heat to multiple premises.
(6) ''Investment" means every kind of asset, owned or controlled directly or indirectly by an Investor and includes:
(a) tangible and intangible, and movable and immovable, property, and any property rights such as leases, mortgages, liens, and pledges;
(bl a company or business enterprise, or shares, stock, or other forms of equity participation in a company or business enterprise, and bonds and other debt of a company or business enterprise;
le) claims to money and claims to performance pursuant to contract having an economic value and associated with an Investment;
(dl Intellectual Property;
(e} Returns;
If) any right conferred by law or contract or by virtue of any licences and permits
Ir
granted pursuant to law to undertake any Economic Activity in the Energy Sector.
A change in the form in which assets are invested does not affect their character as investments and the term "Investment" includes all investments, whether existing at or made after the later of the date of entry into force of this Treaty for the Contracting Party of the Investor making the investment and that for the Contracting Party in the Area of which the investment is made (hereinafter referred to as the "Effective Date") provided that the Treaty shall only apply to matters affecting such investments after the Effective Date.
"Investment" refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as "Charter efficiency projects" and so notified to the Secretariat.
7) "Investor" means:
(a) with respect to a Contracting Party:
(i} a natural person having the citizenship or nationality of or who is permanently residing in that Contracting Party in accordance with its applicable law;
(ii) a company or other organization organized in accordance with the law applicable in that Contracting Party;
(bl with respect to a "third state", a natural person, company or other organization which fulfils, mutatis mutandis, the conditions specified in subparagraph (a) for a Contracting Party.
(8) "Make Investments" or "Making of Investments" means establishing new Investments, acquiring all or part of existing Investments or moving into different fields of Investment activity.
(9) "Returns" means the amounts derived from or associated with an Investment, irrespective of the form in which they are paid, including profits, dividends, interest, capital gains. royalty payments, management, technical assistance or other fees and payments in kind.
( 101 "Area" means with respect to a state that is a Contracting Party:
(al the territory under its sovereignty, it being understood that territory includes land, internal waters and the territorial sea; and
(bl subject to and in accordance with the international law of the sea: the sea, sea-bed and its subsoil with regard to which that Contracting Party exercises sovereign rights and jurisdiction.
With respect to a Regional Economic Integration Organization which is a Contracting Party, Area means the Areas of the member states of such Organization, under the provisions contained in the agreement establishing that Organization.
(1 1 l (al " GATT" means "GATT 1947" or " GATT 1994", or both of them where both are applicable .
(bl "GATT 1947" means the General Agreement on Tariffs and Trade, dated
30 October 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified.
(c) "GATT 1994" means the General Agreement on Tariffs and Trade as specified in Annex 1A of the Agreement Establishing the World Trade Organization, as subsequently rectified, amended or modified.
A party to the Agreement Establishing the World Trade Organization is considered to be a party to GATT 1994.
(d) "Related Instruments" means, as appropriate:
(i) agreements, arrangements or other legal instruments , including decisions, declarations and understandings, concluded under the auspices of GATT 1947 as subsequently rectified, amended or modified; or
(ii) the Agreement Establishing the World Trade Organization including its Annex 1 (except GATT 1994), its Annexes 2, 3 and 4, and the decisions , declarations and understandings related thereto, as subsequently rectified, amended or modified.
( 12) "Intellectual P(operty" includes copyrights and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits and the protection of undisclosed information .
(13) (a) "Energy Charter Protocol" or "Protocol" means a treaty, the negotiation of which is authorized and the text of which is adopted by the Charter Conference, which is entered into by two or more Contracting Parties in order to complement, suppleme·nt, extend or amplify the provisions of this Treaty with respect to any specific sector or category of activity within the scope of this Treaty, or to areas of cooperation pursuant to Title Ill of the Charter.
(b) "Energy Charter Declaration" or "Declaration" means a non-binding instrument, the negotiation of which is authorized and the text of which is approved by the Charter Conference, which is entered into by two or more Contracting Parties to complement or supplement the provisions of this Treaty.
{14) "Freely Convertible Currency " means a currency which is widely traded in international foreign exchange markets and widely used in international transactions.
ARTICLE 2
PURPOSE OF THE TREATY
This Treaty establishes a legal framework in order to promote long-term cooperation in the energy field, based on complementarities and mutual benefits, in accordance with the objectives and principles of the Charter.
PART II
COMMERCE
ARTICLE 3
INTERNATIONAL MARKETS
The Contracting Parties shall work to promote access to international markets on commercial terms, and generally to develop an open and competitive market, for Energy Materials and Products.
ARTICLE 4
NON-DEROGATION FROM GATT AND RELATED INSTRUMENTS
Nothing in this Treaty shall derogate, as between particular Contracting Parties which are parties to the GATT, from the provisions of the GATT and Related Instruments as they are applied between those Contracting Parties.
ARTICLE 5
TRADE-RELATED INVESTMENT MEASURES
{ 1 ) A Contracting Party shall not apply any trade-related investment measure that is inconsistent with the provisions of article Ill or XI of the GATT; this shall be without prejudice to the Contracting Party's rights and obligations under the GATT and Related Instruments and Article 29 .
(2) Such measures include any investment measure which is mandatory or enforceable under domestic law or under any administrative ruling, or compliance with which is necessary to obtain an advantage, and which requires:
fa) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production; or
(bl that an enterprise's purchase or use of imported products be limited to an amount related to the volume or value of local products that it exports; or which restricts:
(c) the importation by an enterprise of products used in or related to its local production, generally or to an amount related to the volume or value of local production that it exports;
(dl the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange to an amount related to the foreign exchange inflows attributable to the enterprise; or
(el the exportation or sale for export by an enterprise of products, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production.
(3) Nothing in paragraph ( 1l shall be construed to prevent a Contracting Party from applying the trade-related investment measures described in subparagraphs ( 2)(a) and {cl as a condition of eligibility for export promotion, foreign aid, government procurement or preferential tariff or quota programmes.
(41 Notwithstanding paragraph (1), a Contracting Party may temporarily c ontinue to maintain trade-related investment measures which were in effect more than 180 days before its signature of this Treaty, subject to the notification and phase-out provisions set out in Annex TRM.
ARTICLE 6
COMPETITION
(1l Each Contracting Party shall work to alleviate market distortions and barriers to competition in Economic Activity in the Energy Sector.
(2) Each Contracting Party shall ensure that within its jurisdiction it has and enforces such Jaws as are necessary and appropriate to address unilateral and concerted anti-competitive conduct in Economic Activity in the Energy Sector.
(3) Contracting Parties with experience in applying competition rules shall give full consideration to providing, upon request and within available resources, technic al assistance on the development and implementation of competition rules to other Contracting Parties.
i4l Contracting Parties may cooperate in the enforcement of their competition rules by consulting and exchanging information.
(5) If a Contracting Party considers that any specified anti-competitive conduct carried out within the Area of another Contracting Party is adversely affecting an important interest relevant to the purposes identified in this Article, the Contracting Party may notify the other Contracting Party and may request that its competition authorities initiate appropriate enforcement action. The notifying Contracting Party shall include in such notification sufficient information to permit the notified Contracting Party to identify the anti-competitive conduct that is the subject of the notification and shall include an offer of such further information and cooperation as the notifying Contracting Party is able to provide. The notified Contracting Party or, as the case may be, the relevant competition authorities may consult with the competition authorities of the notifying Contracting Party and shall accord full consideration to the request of the notifying Contracting Party in deciding whether or not to initiate enforcement action with respect to the alleged anti-competitive conduct identified in the notification. The notified Contracting Party shall inform the notifying Contracting Party of its decision or the decision of the relevant competition authorities and may if it wishes inform the notifying Contracting Party of the grounds for the decision. If enforcement action is initiated, the notified Contracting Party shall advise the notifying Contracting Party of its outcome and, to the extent possible, of any significant interim development.
(6) ) Nothing in this Article shall require the provision of information by a Contracting Party contrary to its laws regarding disclosure of information, c onfidentiality or business secrecy.
(7) The procedures set forth in paragraph (5) and Article 27(1l shall be the exclusive means within this Treaty of resolving any disputes that may arise over the implementation or interpretation of this Article.
ARTICLE 7
TRANSIT
( 1l Each Contracting Party shall take the necessary measures to facilitate the Transit of Energy Materials and Products consistent with the principle of freedom of transit and without distinction as to the origin, destination or ownership of such Energy Materials and Products or discrimination as to pricing on the basis of such distinctions, and without imposing any unreasonable delays, restrictions or charges.
(2) Contracting Parties shall encourage relevant entities to cooperate in:
(a) modernizing Energy Transport Facilities necessary to tl1e Transit of Energy Materials and Products;
(bl the development and operation of Energy Transport Facilities serving the Areas of more than one Contracting Party;
(cl measures to mitigate the effects of interruptions in the supply of Energy Materials and Products;
(d) facilitating the interconnection of Energy Transport Facilities.
(3) Each Contracting Party undertakes that its provisions relating to transport of Energy Materials and Products and the use of Energy Transport Facilities shall treat Energy Materials and Products in Transit in no less favourable a manner than its provisions treat such materials and products originating in or destined for its own Area, unless an existing international agreement provides otherwise.
(4) In the event that Transit of Energy Materials and Products cannot be achieved on commercial terms by means of Energy Transport Facilities the Contracting Parties shall not place obstacles in the way of new capacity being established, except as may be otherwise provided in applicable legislation which is consistent with paragraph ( 1l .
(5) A Contracting Party through whose Area Energy Materials and Products may transit shall not be obliged to
(a) ) permit the construction or modification of Energy Transport Facilities; or
(bl permit new or additional Transit through existing Energy Transport Facilities,
which it demonstrates to the other Contracting Parties concerned would endanger the security or efficiency of its energy systems, including the security of supply.
Contracting Parties shall, subject to paragraphs (6) and (7), secure established flows of Energy Materials and Products to, from or between the Areas of other Contracting Parties.
(6) A Contracting Party through whose Area Energy Materials and Products transit shall not, in the event of a dispute over any matter arising from that Transit, interrupt or reduce, permit any entity subject to its control to interrupt or reduce, or require any entity subject to its jurisdiction to interrupt or reduce the existing flow of Energy Materials and Products prior to the conclusion of the dispute resolution procedures set out in paragraph (7), except where this is specifically provided for in a contract or other agreement governing such Transit or permitted in accordanc e with the conciliator's decision.
(7) The followlng provisions shall apply to a dispute described in paragraph (6), but only following the exhaustion of all relevant contractual or other dispute resolution remedies previously agreed between the Contracting Parties party to the dispute or between any entity referred to in paragraph (61 and an entity of another Contracting Party party to the dispute:
(a) A Contracting Party party to the dispute may refer it to the Secretary-General by a notification summarizing the matters in dispute. The Secretary-General shall notify all Contracting Parties of any such referral.
(b) Within 30 days of receipt of such a notification, the Secretary-General , in consultation with the parties to the dispute and the other Contracting Parties concerned, shall appoint a conciliator. Such a conciliator shall have experience in the matters subject to dispute and shall not be a national or citizen of or permanently resident in a party to the dispute or one of the other Contracting Parties concerned.
le) The conciliator shall seek the agreement of the parties to the dispute to a resolution thereof or upon a procedure to achieve such resolution. If within 90 days of his appointment he has f ailed to secure such agreement, he shall
recommend a resolution to the dispute or a procedure to achieve such
resolution and shall decide the interim tariffs and other terms and conditions to be observed for Transit from a date which he shall specify until the dispute is resolved.
(d) The Contracting Parties undertake to observe and ensure that the entities under their control or jurisdiction observe any interim decision under subparagraph (c) on tariffs, terms and conditions for 12 months following the conciliator's decision or until resolution of the dispute, whichever is earlier .
(el Notwithstanding subparagraph (b) the Secretary-General may elect not to appoint a c onciliator if in his judgement the dispute concerns Transit that is or has been the subject of the dispute resolution procedures set out in subparagraphs (al to (d) and those proceedings have not resulted in a resolution of the dispute .
(fl The Charter Conference shall adopt standard provisions concerning the conduct of conciliation and the compensation of conciliators.
(8) ) Nothing in this Article shall derogate from a Contracting Party's rights and obligations under international Jaw including customary international J aw, existing bilateral or multilateral agreements, including rules concerning submarine cables and pipelines.
(9) This Article shall not be so interpreted as to oblige any Contracting Party which does not have a certain type of Energy Transport Facilities used for Transit ta take any measure under this Article with respect ta that type of Energy Transport Facilities. Such a Contracting Party is, however, obliged ta comply with paragraph (4).
( 10) For the purposes of this Article:
(a) "Transit" means
(i) the carriage through the Area of a Contracting Party, or to or from port facilities in its Area for loading or unloading, of Energy Materials and Products originating in the Area of another state and destined for the Area of a third state, so long as either the other state or the third state is a Contracting Party; or
(ii) the c arriage through the Area of a Contracting Party of Energy Materials and Products originating in the Area of another Contracting Party and destined for the Area of that other Contracting Party, unless the two Contracting Parties concerned decide otherwise and record their decision by a joint entry in Annex N. The two Contracting Parties may delete their listing in Annex N by delivering a joint written notification of their intentions to the Secretariat, which shall transmit that notification to all other Contracting Parties. The deletion shall take effect four weeks after such former notification.
lb) "Energy Transport Facilities" consist of high-pressure gas transmission pipelines, high-voltage electricity transmission grids and lines, crude oil transmission pipelines, coal slurry pipelines, oil product pipelines, and other fixed facilities specifically for handling Energy Materials and Products.
ARTICLE 8
TRANSFER OF TECHNOLOGY
(1) The Contracting Parties agree to promote access to and transfer of energy technology on a commercial and non-discriminatory basis to assist effective trade in Energy Materials and Products and Investment and to implement the objectives of
the Charter subject to their laws and regulations, and to the protection of Intellectual Property rights.
( 2) Accordingly, to the extent necessary to give effect to paragraph r 1Ithe Contracting Parties shall eliminate existing and create no new obstacles to the transfer of technology in the field of Energy Materials and Products and related equipment and services, subject to non-proliferation and other international obligations.
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ARTICLE 9
ACCESS TO CAPITAL
( 1) The Contracting Parties acknowledge the importance of open capital markets in encouraging the flow of capital to finance trade in Energy Materials and Products and ,, for the making of and assisting with regard to Investments in Economic Activity in the Energy Sector in the Areas of other Contracting Parties, particularly those with economies in transition. Each Contracting Party shall accordingly endeavour to promote conditions for access to its capital market by c ompanies and nationals of other Contracting Parties, for the purpose of financing trade in Energy Materials and Products and for the purpose of Investment in Economic Activity in the Energy Sector in the Areas of those other Contracting Parties, on a basis no less favourable than that which it accords in like circumstances to its own companies and nationals or companies and nationals of any other Contracting Party or any third state, whichever is the most favourable.
(2) A Contracting Party may adopt and maintain programmes providing for access to public loans, grants, guarantees or insurance for facilitating trade or Investment abroad. It shall make such f acilities available, consistent with the objectives, constraints and criteria of such programmes (including any objectives, constraints or criteria relating to the place of business of an applicant for any such facility or the place of delivery of goods or services supplied with the support of any such facility) for Investments in the Economic Activity in the Energy Sector of other Contracting Parties or for financing trade in Energy Materials and Products with other Contracting Parties.
(31 Contracting Parties shall, in implementing programmes in Economic Activity in the Energy Sector to improve the economic stability and investment climates of the Contracting Parties, seek as appropriate to encourage the operations and take advantage of the expertise of relevant international financial institutions.
(4) Nothing in this Article shall prevent:
la) financial institutions from applying their own lending or underwriting practices based on market principles and prudential considerations; or
(b) a Contracting Party from taking measures :
{ij for prudential reasons, including the protection of Investors, consumers, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; or
(ii) ) to ensure the integrity and stability of its financial system and capital markets.
INVESTMENT PROMOTION AND PROTECTION
ARTICLE 10
PROMOTION, PROTECTION AND TREATMENT OF INVESTMENTS
( 1) Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to Make Investments in its Area . Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no
Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party.
(2) Each Contracting Party shall endeavour to accord to Investors of other Contracting Parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3) .
(3) For the purposes of this Article, "Treatment" means treatment accorded by a Contracting Party which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or any third state, whichever is the most favourable.
(4) A supplementary treaty shall, subject to conditions to be laid down therein, oblige each party thereto to accord to Investors of other parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3). That treaty shall be open for signature by the states and Regional Economic Integration Organizations
which have signed or acceded to this Treaty. Negotiations towards the supplementary treaty shall commence not later than 1 January 1 995, with a view ta concluding it by 1 January 1998.
{5) Each Contracting Party shall, as regards the Making of Investments in its Area, endeavour to:
(a) limit to the minimum the exceptions to the Treatment described in paragraph (3) ;
(b) progressively remove existing restrictions affecting Investors of other Contracting Parties.
(6) (a) A Contracting Party may, as regards the Making of Investments in its Area , at any time declare voluntarily to the Charter Conference, through the Secretariat, its intention not to introduce new exceptions to the Treatment described in paragraph (3).
(b) A Contracting Party may, furthermore, at any time make a voluntary commitment to accord to Investors of other Contracting Parties, as regards the Making of Investments in some or all Economic Activities in the Energy Sector in its Area, the Treatment described in paragraph (3). Such commitments shall be notified to the Secretariat and listed in Annex VC and shall be binding under this Treaty.
(7) Each Contracting Party shall accord to Investments in its Area of Investors of other Contracting Parties, and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to Investments of its own Investors or of the Investors of any other Contracting Party or any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable.
(8) The modalities of application of paragraph (7) in relation to programmes under which a Contracting Party provides grants or other financial assistance, or enters into contracts, for energy technology research and development, shall be reserved for the supplementary treaty described in paragraph (4). Each Contracting Party shall through the Secretariat keep the Charter Conference informed of the modalities it applies to the programmes described in this paragraph .
(9) Each state or Regional Economic Integration Organization which signs or acc edes to this Treaty shall, on the date it signs the Treaty or deposits its instrument of accession, submit to the Secretariat a report summarizing all laws, regulations or other measures relevant to:
(a) exceptions to paragraph ( 2); or
(bl the programmes referred ta in paragraph (8).
A Contracting Party shall keep its report up to date by promptly submitting amendments ta the Secretariat. The Charter Conference shall review these reports periodically.
In respect of subparagraph (a) the report may designate parts of the energy sector in which a Contracting Party accords to Investors of other Contracting Parties the Treatment described in paragraph (3).
In respect of subparagraph (b) the review by the Charter Conference may consider the effects of such programmes on competition and Investments.
(1 Oi Notwithstanding any other provision of this Article, the treatment described in paragraphs (3) and (7) shall not apply to the protection of Intellectual Property; instead, the treatment shall be as specified in the corresponding provisions of the applicable international agreements for the protection of Intellectual Property rights to which the respective Contracting Parties are parties.
( 1 1) For the purposes of Article 26, the application by a Contracting Party of a trade-related investment measure as described in Article 5 ( 1) and (2) to an
Investment of an Investor of another Contracting Party existing at the time of such application shall, subject to Article 5(3) and (4). be considered a breach of an obligation of the former Contracting Party under this Part.
(12) Each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to It Investments, investment agreements, and investment authorizations.
ARTICLE 11
KEY PERSONNEL
( 1) A Contracting Party shall, subject to its laws and regulations relating to the entry, stay and work of natural persons, examine in good faith requests by Investors of another Contracting Party, and key personnel who are employed by such Investors or by Investments of such Investors, to enter and remain temporarily in its Area to engage in activities connected with the making or the development, management, maintenance, use, enjoyment or disposal of relevant Investments, including the provision of advice or key technical services.
(2) A Contracting Party shall permit Investors of another Contracting Party which have Investments in its Area, and Investments of such Investors, to employ any key person of the Investor's or the investment's choice regardless of nationality and citizenship provided that such key person has been permitted to enter, stay and work in the Area of the former Contracting Party and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key person.
ARTICLE 12
COMPENSATION FOR LOSSES
(1) Except where Article 13 applies, an Investor of any Contracting Party which suffers
a Joss with respect to any Investment in the Area of another Contracting Party owing to war or other armed conflict, state of national emergency, civil disturbance, or other similar event in that Area, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or other settlement, treatment which is the most favourable of that which that Contracting Party accords to any other Investor, whether its own Investor, the Investor of any other Contracting Party, or the investor of any third state.
(2) Without prejudice to paragraph (1), an Investor of a Contracting Party which, in any of the situations referred to in that paragraph, suffers a Joss in the Area of another Contracting Party resulting from
(a) requisitioning of its Investment or part thereof by the latter's forces or authorities; or
(b) destruction of its Investment or part thereof by the latter's farces or authorities, which was not required by the necessity of the situation, shall be accorded restitution or compensation which in e ither case shall be prompt, adequate and effective.
ARTICLE 13
EXPROPRIATION
(1) Investments of Investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as "Expropriation ") except where such Expropriation is:
(a) for a purpose which is in the public interest;
(bl not discriminatory;
le) carried out under due process of law; and
(d) accompanied by the payment of prompt, adequate and effective compensation.
Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the "Valuation Date").
Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment.
(2) ) The Investor affected shall have a right to prompt review, under the law of the Contracting Party making the Expropriation, by a judicial or other competent and independent authority of that Contracting Party, of its case, of the valuation of its Investment, and of the payment of compensation, in accordance with the principles set out in paragraph ( 1).
(3) For the avoidance of doubt, Expropriation shall include situations where a Contracting Party expropriates the assets of a company or enterprise in its Area in which an Investor of any other Contracting Party has an Investment, including through the ownership of shares.
_,
ARTICLE 14
TRANSFERS RELATED TO INVESTMENTS
(1 I Each Contracting Party shall with respect to Investments in its Area of Investors of any other Contracting Party guarantee the freedom of transfer into and out of its Area, including the transfer of:
(a) the initial capital plus any additional capital for the maintenance and development of an Investment;
(bl Returns;
le) payments under a contract, including amortization of principal and accrued interest payments pursuant to a loan agreement;
(d) unspent earnings and other remuneration of personnel engaged from abroad in connection with that Investment;
(e) proceeds from the sale or liquidation of all or any part of an Investment;
(fl payments arising out of the settlement of a dispute;
(g) payments of compensation pursuant to Articles 12 and 13.
( 2) Transfers under paragraph (1) shall be effected without delay and (except in case of a Return in kind) in a Freely Convertible Currency.
(3) Transfers shall be made at the market rate of exchange existing on the date of transfer with respect to spot transactions in the currency to be transferred. In the absence of a market for foreign exchange, the rate to be used will be the most recent rate applied to inward investments or the most recent exchange rate for conversion of currencies into Special Drawing Rights, whichever is more favourable to the Investor.
(4) Notwithstanding paragraphs (1) to (3), a Contracting Party may protect the rights of creditors, or ensure complianc e with laws on the issuing, trading and dealing in securities and the satisfaction of judgements in civil, administrative and criminal adjudicatory proceedings, through the equitable, non-discriminatory, and good faith application of its laws and regulations.
(5) Notwithstanding paragraph (2), Contracting Parties which are states that were constituent parts of the former Union of Soviet Socialist Republics may provide in agreements concluded between them that transfers of payments shall be made in the currencies of such Contracting Parties, provided that such agreements do not treat Investments in their Areas of Investors of other Contracting Parties less favourably than either Investments of Investors of the Contracting Parties which have entered into such agreements or Investments of Investors of any third state.
(6) Notwithstanding subparagraph ( 1l{b), a Contracting Party may restrict the transfer of a Return in kind in circumstances where the Contracting Party is permitted under Article 29(2) (a) or the GATT and Related Instruments to restrict or prohibit the exportation or the sale for export of the product constituting the Return in kind; provided that a Contracting Party shall permit transfers of Returns in kind to be effected as authorized or specified in an investment agreement, investment authorization, or other written agreement between the Contracting Party and either an Investor of another Contracting Party or its Investment.
ARTICLE 15
SUBROGATION
( 1) If a Contracting Party or its designated agency (hereinafter referred to as the "Indemnifying Party") makes a payment under an indemnity or guarantee given in respect of an Investment of an Investor (hereinafter referred to as the ''Party Indemnified") in the Area of another Contracting Party (hereinafter referred to as the "Host Party"), the Host Party shall recognize:
fa) the assignment to the Indemnifying Party of all the rights and claims in respect of such Investment; and
(b) the right of the Indemnifying Party to exercise all such rights and enforce such claims by virtue of subrogation.
(2) ) The Indemnif ying Party shall be entitled in all circumstances to: the same treatment in respect of the rights and claims acquired by it by virtue of the assignment referred to in paragraph {1 }; and
(bl the same payments due pursuant to those rights and claims, as the Party Indemnified was entitled to receive by virtue of this Treaty in respect of the Investment concerned.
(3) In any proceeding under Article 26, a Contracting Party shall not assert as a defence, counterclaim, right of set-off or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received pursuant to an insur ance or guarantee contract.
ARTICLE 16
RELATION TO OTHER AGREEMENTS
Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case conc ern the subject matter of Part Ill or V of this Tr eaty,
(1l nothing in Part Ill or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and
(2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Part Ill or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, where any such provision is more favourable to the Investor or Investment.
ARTICLE 17
NON-APPLICATION OF PART Ill IN CERTAIN CIRCUMSTANCES
Each Contracting Party reserves the right to deny the advantages of this Part to:
{ 1) a legal entity if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the Area of the Contracting Party in which it is organized; or
{ 2) an Investment, if the denying Contracting Party establishes that such Investment is an Investment of an Investor of a third state with or as to which the denying Contracting Party:
(a) does not maintain a diplomatic relationship; or
{b) adopts or maintains measures that:
(il prohibit transactions with Investors of that state; or
(ii) would be violated or circumvented if the benefits of this Part were accorded to Investors of that state or to their Investments.
PART IV
MISCELLANEOUS PROVISIONS
ARTICLE 18
SOVEREIGNTY OVER ENERGY RESOURCES
( 1) The Contracting Parties recognize state sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in accordance with and subject to the rules of international law.
( 2) Without affecting the objectives of promoting access to energy resources, and exploration and development thereof on a commercial basis, the Treaty shall in no way prejudice the rules in Contracting Parties governing the system of property ownership of energy resources.
(3) Each state continues to hold in particular the rights to decide the geographical areas within its Area to be made available for exploration and development of its energy resources, the optimalization of their recovery and the rate at which they may be depleted or otherwise exploited, to specify and enjoy any taxes, royalties or other financial payments payable by virtue of such exploration and exploitation, and to regulate the environmental and safety aspects of such exploration, development and reclamation within its Area, and to participate in such exploration and exploitation, inter alia, through direct participation by the government or through state enterprises .
(4) The Contracting Parties undertake to facilitate access to energy resources, inter alia, by alloc ating in a non-discriminatory manner on the basis of published criteria authorizations, licences, conc essions and contracts to prospect and explore for or to exploit or extract energy resources.
ARTICLE 19
ENVIRONMENTAL ASPECTS
( 1) In pursuit of sustainable development and taking into account its obligations under those international agreements concerning the environment to which it is party, each Contracting Party shall strive to minimize in an economically efficient manner harmful Environmental Impacts occurring either within or outside its Area from all operations within the Energy Cycle in its Area, taking proper account of safety. In doing so each Contracting Party shall act in a Cost-Effective manner. In its policies and actions each Contracting Party shall strive to take precautionary measures to prevent or minimize environmental degradation. The Contracting Parties agree that the polluter in the Areas of Contracting Parties, should, in principle, bear the cost of pollution, including transboundary pollution, with due regard to the public interest and without distorting Investment in the Energy Cycle or international trade.
Contracting Parties shall accordingly:
(a) take account of environmental considerations throughout the formulation and implementation of their energy policies;
(b) promote market-oriented price formation and a fuller reflection of environmental costs and benefits throughout the Energy Cycle;
(c) having regard to Article 34(41. encourage cooperation in the attainment of the environmental objectives of the Charter and cooperation in the field of international envir onmental standards for the Energy Cycle, taking into account differences in adverse effects and abatement costs between Contracting Parties;
(d) have particular regard to Improving Energy Efficiency, to developing and using renewable energy sources, to promoting the use of cleaner fuels and to employing technologies and technological means that reduce pollution;
(e) promote the collection and sharing among Contracting Parties of information on environmentally sound and economically efficient energy policies and
Cost-Effective practices and technologies;
(f ) promote public awareness of the Environmental Impacts of energy systems, of the scope for the prevention or abatement of their adverse Environmental Impacts, and of the costs associated with various prevention or abatement measures;
(g) promote and cooperate in the research, development and applic ation of energy efficient and environmentally sound technologies, practices and processes which will minimize harmful Environmental Impacts of all aspects of the Energy Cycle in an economically efficient manner ;
(h) encourage favourable conditions for the transfer and dissemination of such technologies consistent with the adequate and effective protection of Intellectual Property rights;
(i) promote the transparent assessment at an early stage and prior ta decision, and subsequent monitoring, of Environmental Impacts of environmentally significant energy investment projects;
(jl promote international awareness and information exchange on Contracting Parties' relevant environmental programmes and standards and on the implementation of those programmes and standards;
(kl participate, upon request, and within their available resources, in the development and implementation of appropriate environmental programmes in the Contracting Parties.
(21 At the request of one or more Contracting Parties, disputes concerning the application or interpretation of provisions of this Article shall, ta the extent that arrangements for the consideration of such disputes do not exist in other appropriate international fora, be reviewed by the Charter Conference aiming at a solution.
(3) For the purposes of this Article:
(al "Energy Cycle " means the entire energy chain, including activities related to prospecting for, exploration, production, conversion, storage, transport, distribution and consumption of the various forms of energy, and the treatment and disposal of wastes, as well as the decommissioning, cessation or closure of these activities, minimizing harmful Environmental Impacts;
(bl ''Environmental Impact" means any effect caused by a given activity on the environment, including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interactions among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors;
(c) "Improving Energy Efficiency" means acting to maintain the same unit of output (of a good or service) without reducing the quality or performance of the output, while reducing the amount of energy required to produce that output;
(d) "Cost-Effective" means to achieve a defined objective at the lowest cost or to achieve the greatest benefit at a given cost .
•
ARTICLE 20
TRANSPARENCY
( 11 Laws, regulations, judicial decisions and administrative rulings of general application which affect trade in Energy Materials and Products are, in accordance with
Article 29(2) (a), among the measures subject to the transparency disciplines of the GATT and relevant Related Instruments.
(2) Laws, regulations, judicial decisions and administrative rulings of general applic ation made effective by any C o ntracting Party, and agreements in force between Contracting Parties, which affect other matters covered by this Treaty shall also be published promptly in such a manner as to enable Contract ing Parties and Investors to become acquainted wit:h them. The provisions of this paragraph shall not require any Contracting Party to disclose c onfidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any Investor.
(3) Each Contracting Party shall designate one or more enquiry points to which requests for information about the abovementioned laws, regulations, judicial decisions and administrat ive rulings may be addressed and shall communicate promptly such designation ta the Secretar iat which shall make it available on request.
ARTICLE 21
TAXATION
( 1) Except as otherwise provided in this Article, nothing in this Treaty shall create rights or impose obligations w ith respect to Taxation Measures of the Contracting Parties. In the event of any inconsistency between this Article and any other provision of the Treaty, this Article shall prevail to the extent of the inconsistency.
( 2) Article 7(3) shall apply ta Taxation Measures other than those on income or on capital, except that such provision shall not apply to:
(a) an advantage accorded by a Contracting Party pursuant to the tax provisions of any convention, agreement or arrangement described in subparagraph (7) (a)(ii); or
(bl any Taxation Measure aimed at ensuring the effective collection of taxes, except where the measure of a Contracting Party arbitrarily discriminates against Energy Materials and Products originating in, or destined for the Area of another Contracting Party or arbitrarily restricts benefits accorded under Article 7(3).
(3) Article 10(2) and (7) shall apply to Taxation Measures of the Contracting Parties other than those on income or on capital, except that such provisions shall not apply
to:
(a) impose most favoured nation obligations with respect to advantages accorded by a Contracting Party pursuant to the tax provisions of any convention, agreement or arrangement described in subparagraph (7)(al(ii) or resulting from membership of any Regional Economic Integration Organization; or
(b) Any Taxation Measure aimed at ensuring the effective collection of taxes, except wher e the measure arbitrarily discriminates against an Investor of another Contracting Party or arbitrarily restricts benefits accorded under the Investment provisions of this _Treaty.
(4) Article 29(2) to (6) shall apply to Taxation Measures other than those on income or on capital.
(5) (a) Article 13 shall apply to taxes.
(bl Whenever an issue arises under Article 13, to the extent it pertains to whether a tax constitutes an expropriation or whether a tax alleged to constitute an expropriation is discriminatory, the following provisions shall apply:
(il The Investor or the Contracting Party alleging expropriation shall refer the issue of whether the tax is an expropriation or whether the tax is discriminatory to the relevant Competent Tax Authority. Failing such referral by the Investor or the Contracting Party, bodies called upon to settle disputes pursuant to Article 26(2){c) or 27(2) shall make a referral to the relevant Competent Tax Authorities;
(ii) The Competent Tax Authorities shall, within a period of six months of such referral, strive to resolve the issues so referred. Where non-discrimination issues are concerned, the Competent Tax Authorities shall apply the non-discrimination provisions of the relevant tax convention or, if there is no non-discrimination provision in the relevant tax convention applicable to the tax or no such tax convention is in force between the Contracting Parties concerned, they shall apply the non-discrimination principles under the Model Tax Convention on Income and Capital of the Organisation far Economic Cooperation and Development;
(iii) Bodies called upon to settle disputes pursuant to Article 26(2) (c) or 27( 2) may take into account any conclusions arrived at by the Competent Tax Authorities regarding whether the tax is an expropriation. Such bodies shall take into account any conclusions arrived at within the six-month period prescribed in subparagraph (b)(ii) by the Competent Tax Authorities regarding whether the tax is discriminatory. Such bodies may also take into account any conclusions arrived at by the Competent Tax Authorities after the expiry of the six-month period;
(iv) Under no circumstances shall involvement of the Competent Tax Authorities, beyond the end of the six-month period referred to in subparagraph (b) (ii). lead to a delay of proceedings under Articles 26 and 27.
( 6) For the avoidance of doubt, Article 14 shall not limit the right of a Contracting Party to impose or collect a tax by withholding or other means.
(7) For the purposes of this Article:
( a) The term ''Taxation Measure " includes:
(i) any provision relating to taxes of the domestic law of the Contracting Party or of a political subdivision thereof or a local authority therein; and
(ii) any provision relating to taxes of any convention for the avoidance of double taxation or of any other international agreement or arrangement by which the Contracting Party is bound.
lb) There shall be regarded as taxes on income or on capital all taxes imposed on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, or substantially similar taxes, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
(c) A "Competent Tax Authority" means the competent authority pursuant to a double taxation agreement in force between the Contracting Parties or, when no such agreement is in force, the minister or ministry responsible for taxes or their authorized representatives.
Id) For the avoidance of doubt, the terms "tax provisions" and "taxes" do not
_.,, include customs duties.
ARTICLE 22
STATE AND PRIVILEGED ENTERPRISES
I1) Each Contracting Party shall ensure that any state enterprise which it maintains or establishes shall conduct its activities in relation to the sale or provision of goods and services in its Area in a manner consistent with the Contracting Party's obligations under Part Ill of this Treaty.
(2) No Contracting Party shall encourage or require such a state enterprise to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under other provisions of this Treaty.
(3) Each Contracting Party shall ensure that if it establishes or maintains an entity and entrusts the entity with regulatory, administrative or other governmental authority, such entity shall exercise that authority in a manner consistent with the Contracting Party's obligations under this Treaty.
(4) No Contracting Party shall encourage or require any entity to which it grants exclusive or special privileges to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under this Treaty.
(5) For the purposes of this Article, "entity" includes any enterprise, agency or other organization or individual.
ARTICLE 23
OBSERVANCE BY SUB-NATIONAL AUTHORITIES
( 1 l Each Contracting Party is fully responsible under this Treaty for the observance of all provisions of the Treaty, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and
authorities within its Area .
(21 The dispute settlement provisions in Parts II, IV and V of this Treaty may be invoked in respect of measures affecting the observance of the Treaty by a Contracting Party which have been taken by regional or local governments or authorities within the Area of the Contracting Party.
ARTICLE 24
EXCEPTIONS
(1 l This Article shall not apply to Articles 12, 13 and 29.
( 2) The provisions of this Treaty other than
{a) those referred ta in paragraph (1); and
(bl with respect ta subparagraph (i), Part Ill of the Treaty shall not preclude any Contracting Party from adopting or enforcing any measure
(i) necessary to protect human, animal or plant life or health;
(ii) essential to the acquisition or distribution of Energy Materials and Products in conditions of short supply arising from causes outside the control of that Contracting Party, provided that any such measure shall be consistent with the principles that
(A) all other Contracting Parties are entitled to an equitable share of the international supply of such Energy Materials and Products; and
(8) any such measure that is inconsistent with this Treaty shall be discontinued as soon as the conditions giving rise to it have ceased to exist; or
(iii) designed to benefit Investors who are aboriginal people or socially or economically disadvantaged individuals or groups or their Investments and notified to the Secretariat as such, provided that such measure
(A) has no signific ant impact on that Contracting Party's economy; and
(8) does not discriminate between Investors of any other Contracting Party and Investors of that Contracting Party not included among those for whom the measure is intended,
provided that no such measure shall constitute a disguised restriction on Economic Activity in the Energy Sector, or arbitrary or unjustifiable discrimination between Contracting Parties or between Investors or other interested persons of Contracting Parties. Such measures shall be duly motivated and shall not nullify or impair any benefit one or more other Contracting Parties may reasonably expect under this Treaty to an exten-t greater than is strictly necessary to the stated end.
(3) The provisions of this Treaty other than those referred to in paragraph (1) shall not be construed to prevent any Contracting Party from taking any measure which it considers necessary:
(a) for the protection of its essential security interests including those
(i) relating to the supply of Energy Materials and Products to a military establishment; or
(ii) taken in time of war, armed conflict or other emergency in international relations;
(b) relating to the implementation of national policies respecting the
non-proliferation of nuclear weapons or other nuclear explosive devices or needed to fulfil its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, the Nuclear Suppliers Guidelines, and other international nuclear non-proliferation obligations or understandings; or
(c) for the maintenance of public order.
Such measure shall not constitute a disguised restriction on Transit .
(4) The provisions of this Treaty which accord most favoured nation treatment shall not oblige any Contracting Party to extend to the Investors of any other Contracting Party any preferential treatment:
(a) resulting from its membership of a free-trade area or customs union; or
(b) which is accorded by a bilateral or multilateral agreement concerning economic cooperation between states that were constituent parts of the former Union of Soviet Socialist Republics pending the establishment of their mutual economic relations on a definitive basis.
ARTICLE 25
ECONOMIC INTEGRATION AGREEMENTS
(1) The provisions of this Treaty shall not be so construed as to oblige a Contracting Party which is party to an Economic Integration Agreement (hereinafter referred to as "EIA") to extend, by means of most favoured nation treatment, to another
Contracting Party which is not a party to that EIA, any preferential treatment applicable between the parties to that EIA as a result of their being parties thereto.
(2) For the purposes of paragraph (1), "EIA " means an agreement substantially liberalizing, inter alia, trade and investment, by providing for the absence or elimination of substantially all discrimination between or among parties thereto through the elimination of existing discriminatory measures and/or the prohibition of new or more discriminatory measures, either at the entry into force of that agreement or on the basis of a reasonable time frame.
(3) This Article shall not affect the application of the GATT and Related Instruments according to Article 29.
PART V
DISPUTE SETTLEMENT
ARTICLE 26
SETTLEMENT OF DISPUTES BETWEEN AN INVESTOR AND A CONTRACTING PARTY
( 1) Disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part Ill shall, if possible, be settled amicably .
( 2) If such disputes can not be settled according to the provisions of paragraph ( 1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:
(a) to the courts or administrative tribunals of the Contracting Party party to the dispute;
(b) in accordance with any applicable, previously agreed dispute settlement procedure; or
(c) in accordance with the following paragraphs of this Article .
(3) (a) Subject only to subparagraphs (b) and (cl, each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article.
(b) (i) The Contracting Parties listed in Annex ID do not give such unconditional consent where the Investor has previously submitted the dispute under subparagraph 121(a) or (b).
(ii) For the sake of transparency, each Contracting Party that is listed in Annex ID shall provide a written statement of its policies, practices and conditions in this regard to the Secretariat no later than the date of the deposit of its instrument of ratification, acceptance or approval in accordance with Article 39 or the deposit of its instrument of accession in accordance with Article 41 .
(c) A Contracting Party listed in Annex IA does not give such unconditional consent with respect to a dispute arising under the last sentence of Article 1011).
(4) In the event that an Investor chooses to submit the dispute for resolution under subparagraph ( 2) (c). the Investor shall further provide its consent in writing for the dispute to be submitted to:
(a) [i) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington, 1B March 1965 (hereinafter referred to as the "ICSID Convention"), if the Contracting Party of the Investor and the Contracting Party party to the dispute are both parties to the ICSID Convention; or
(ii) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention referred to in subparagraph ( a) (i), under the rules governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre (hereinafter referred to as the "Additional Facility Rules"), if the Contracting Party of the Investor or the Contracting Party party to the dispute, but not both, is a party to the ICSID Convention;
lb) a sole arbitrator or ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (hereinafter referred to as "UNCITRAL"J; or
(c) an arbitral proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce.
(5) (a) The consent given in paragraph (3) together with the written consent of the Investor given pursuant to paragraph (4) shall be considered to satisfy the requirement for:
(i) written consent of the parties to a dispute for purposes of Chapter II of the ICSID Convention and for purposes of the Additional Facility Rules;
(ii) an "agreement in writing" for purposes of article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958 (hereinafter referred to as the "New York Convention"); and
(iii) "the parties to a contract [to] have agreed in writing" for the purposes of article 1 of the UNCITRAL Arbitration Rules.
(a) Any arbitration under this Article shall at the request of any party to the dispute be held in a state that is a party to the New York Convention. Claims submitted to arbitration hereunder shall be considered to arise out of a commercial relationship or transaction for the purposes of article I of that Convention.
(6) A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international Jaw.
(7) An Investor other than a natural person which has the nationality of a Contracting Party party to the dispute on the date of the consent in writing referred to in paragraph (4) and which, before a dispute between it and that Contracting Party arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a "national of another Contracting State" and shall for the purpose of article 1(6) of the Additional Facility Rules be treated as a "national of another State".
(8) The awards of arbitration, which may include an award of interest, shall be final and binding upon the parties to the dispute. An award of arbitration concerning a measure of a sub-national government or authority of the disputing Contracting Party shall provide that the Contracting Party may pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carry out without delay any such award and shall make provision for the effective enforcement in its Area of such awards.
ARTICLE 27
SETTLEMENT OF DISPUTES BETWEEN CONTRACTING PARTIES
( 1) Contracting Parties shall endeavour to settle disputes concerning the application or interpretation of this Treaty through diplomatic channels.
(2) If a dispute has not been settled in accordance with paragraph (1) within a reasonable period of time, either party thereto may, except as otherwise provided in this Treaty or agreed in writing by the Contracting Parties, and except as concerns the application or interpretation of Article 6 or Article 19 or, for Contracting Parties listed in Annex IA, the last sentence of Article 10(1), upon written notice to the other party to the dispute submit the matter to an ad hoc tribunal under this Article.
(3) Such an ad hoc arbitral tribunal shall be constituted as follows:
(a) The Contracting Party instituting the proceedings shall appoint one member of the tribunal and inform the other Contracting Party to the dispute of its appointment within 30 days of receipt of the notice referred to in paragraph (2) by the other Contracting Party;
(bl Within 60 days of the receipt of the written notice referred to in paragraph (2), the other Contracting Party party to the dispute shall appoint one member. If the appointment is not made within the time limit prescribed, the Contracting Party having instituted the proc eedings may, within 90 days of the rec eipt of the written notice referred ta in paragraph ( 2), request that the appointment be made in accordance with subparagraph (d);
(c) A third member, who may not be a national or citizen of a Contracting Party party to the dispute, shall be appointed by the Contracting Parties parties to the dispute. That member shall be the President of the tribunal. If, within 150 days of the receipt of the notice referred to in paragraph (2), the Contracting Parties are unable to agree on the appointment of a third member, that appointment shall be made, in accordance with subparagraph (d), at the request of either Contracting Party submitted within 180 days of the receipt of that notice;
(di Appointments requested to be made in accordance with this paragraph shall be made by the Secretary-General of the Permanent Court of International Arbitration within 30 days of the receipt of a request to do so. If the Secretary-General is prevented from discharging this task, the appointments shall be made by the First Secretary of the Bureau. If the latter, in turn, is prevented from discharging this task, the appointments shall be made by the most senior Deputy;
(e) Appointments made in accordance with subparagraphs (a) to (d) shall be made with regard to the qualifications and experience, particularly in matters covered by this Treaty, of the members to be appointed;
{f) In the absence of an agreement to the contrary between the Contracting Parties, the Arbitration Rules of UNCITRAL shall govern, except to the extent modified by the Contracting Parties parties to the dispute or by the arbitrators. The tribunal shall take its decisions by a majority vote of its members;
(g) The tribuna l shall decide the dispute in accordance with this Treaty and applicable rules and principles of international law;
(h) The arbitral award shall be final and binding upon the Contracting Parties parties to the dispute;
(i) Where, in making an award, a tribunal finds that a measure of a regional or local government or authority within the Area of a Contracting Party listed in Part I of Annex P is not in conformity with this Treaty, either party to the dispute may invoke the provisions of Part II of Annex P;
(j) The expenses of the tribunal, including the remuneration of its members, shall be borne in equal shares by the Contracting Parties parties to the dispute. The tribunal may, however, at its discretion direct that a higher proportion of the costs be paid by one of the Contracting Parties parties to the dispute;
(k) Unless the Contracting Parties parties to the dispute agree otherwise, the tribunal shall sit in The Hague, and use the premises and facilities of the Permanent Court of Arbitration;
(I) A copy of the award shall be deposited with the Secretariat which shall make it generally available.
ARTICLE 28
NON-APPLICATION OF ARTICLE 27 TO CERTAIN DISPUTES
A dispute between Contracting Parties with respect to the application or interpretation of Article 5 or 29 shall not be settled under Article 27 unless the Contracting Parties parties to the dispute so agree.
PART VI
TRANSITIONAL PROVISIONS
ARTICLE 29
INTERIM PROVISIONS ON TRADE-RELATED MATTERS
(1 I The provisions of this Article shall apply to trade in Energy Materials and Products while any Contracting Party is not a party to the GATT and Related Instruments.
( 2) iai Trade in Energy Materiais and Products between Contracting Parties at least one of which is not a party to the GATT or a relevant Related Instrument shall be governed, subject to subparagraphs (b) and (cl and to the exceptions and rules provided for in Annex G, by the provisions of GATT 1 947 and Related Instruments, as applied on 1 March 1 994 and practised with regard to Energy Materials and Products by parties to GATI 1947 among themselves, as if all Contracting Parties were parties to GATT 1947 and Related Instruments.
(b) Such trade of a Contracti ng Pa rty which is a state that was a constituent pa rt of the former Union of Soviet Socialist Republics may instead be governed,
subject to the provisions of An nex TFU, by an agreement between two or more such states, until 1 Decem ber 1999 or the adm ission of th at Contracting Party to the GATT, whichever is the earlier.
(cl As concerns trade between any two parties to the GATT, subparagraph (a) shall not a pply if either of those parties is not a party to GATI 1947.
(3) Each signatory to this Treaty, and each state or Regional Economic I ntegration Organization acceding to this Treaty, shall on the date of its signature or of its deposit of its i nstrument of accession provide to the Secretariat a list of all ta riff rates and other charges l evied on Energy Materials and Products at the time of
im portation or exportation, notif ying the level of such rates and charges applied on such date of signature or deposit. Any changes to such rates or other charges shall be notified to the Secretariat, which shall inform the Contracting Parties of such changes.
(4) Each Contracti ng Party shall endeavou r not to increase any tariff ra te or other charge levied at the time of importation or exportation:
(a) In the case of the importation of Energy Materials and Products described in . Part I of the Schedule relating to the Contracting Party referred to in a rticle II of the GATI, above the level set forth in that Schedule, if the Contracti ng Pa rty is a pa rty to the GATT;
lb) in the case of the exportation of Energy Materials and Products, and that of their importation if the Contracting Party is not a party to the GATT, above the level most recently notified to the Secretariat, except as permitted by the provisions made applicable by subparagraph {2)(a).
(5) A Contracting Party may increase such tariff rate or other charge above the level referred to in paragraph 14) only if:
(a) in the case of a rate or other charge levied at the time of importation, such action is not inconsistent with the applicable provisions of the GATT other than those provisions of GATT 1947 and Related Instruments listed in Annex G and the corresponding provisions of GATT 1994 and R elated Instruments; or
(b) it has, to the fullest extent practicable under its legislative procedures, notified the Secretariat of its proposal for such an increase, given other interested Contracting Parties reasonable opportunity for consultation with respect to its proposal, and accorded consideration to any representations from such Contracting Parties.
{6) Signatories undertake to commence negotiations not later than 1 January 1995 with a vie w to concluding by 1 January 1998, as appropriate in the light of any developments in the world trading system, a text of an amendment to this Treaty which shall, subject to conditions to be laid down therein, commit each Contracting Party not to increase such tariffs or charges beyond the level prescribed under that amendment .
(7} Annex D shall apply to disputes regarding compliance with provisions applicable to trade under this Article and, unless both Contracting Parties agree otherwise, to disputes regarding compliance with Article 5 between Contracting Parties at least one of which is not a party to the GATT, except that Annex D shall not apply to any dispute between Contracting Parties, the substance of which arises under an agreement that
(a) ) has been notified in accordance with and meets the other requirements of subparagraph ( 2l(b) and Annex TFU; or
(b) establishes a free-trade area or a customs union as described in article XXIV of the GATT.
ARTICLE 30
DEVELOPMENTS IN INTERNATIONAL TRADING ARRANGEMENTS
Contracting Parties undertake that in the light of the results of the Uruguay Round of Multilateral Trade Negotiations embodied principally in the Final Act thereof done at Marrakesh, 1 5 April 1994, they will commence consideration not later than 1 July 1995 or the entry into force of this Treaty, whichever is the later, of appropriate amendments to this Treaty with a view to the adoption of any such amendments by the Charter Conference .
ARTICLE 31
ENERGY-RELATED EQUIPMENT
The provisional Charter Conference shall at its first meeting commence examination of the inclusion of energy-related equipment in the trade provisions of this Treaty.
ARTICLE 32
TRANSITIONAL ARRANGEMENTS
11) In recognition of the need for time to adapt to the requirements of a market economy, a Contracting Party listed in Annex T may temporarily suspend full compliance with its obligations under one or more of the following provisions of this
Treaty, subject to the conditions in paragraphs (3) to (6):
Article 6(21 and (5}
Article 7(41
Article 9(11
Article 10(7) - specific measures
Article 14(1)(d) - related only to transf er of unspent earnings Article 20(3)
Article 22(1) and 13)
(2) ) Other Contracting Parties shall assist any Contracting Party which has suspended full compliance under paragraph ( 1) to achieve the conditions under which such suspension c an be terminated. This assistance may be given in whatever form the other Contracting Parties consider most effective to respond to the needs notified under subparagraph (4) (c) including, where appropriate, through bilateral or multilateral arrangements.
(3) The applicable provisions, the stages towards full implementation of each, the measures to be taken and the date or, exceptionally, contingent event, by which each stage shall be completed and measure taken are listed in Annex T for each Contracting Party claiming transitional arrangements. Each such Contracting Party shall take the measure listed by the date indicated for the relevant provision and stage as set out in Annex T. Contracting Parties which have temporarily suspended full compliance under paragraph ( 1) undertake to comply fully with the relevant obligations by 1 July 2001. Should a Contracting Party find it necessary, due to exceptional circumstances, to request that the period of such temporary suspension be extended or that any further temporary suspension not previously listed in
Annex T be introduced, the decision on a request to amend Annex T shall be made by the Charter Conference.
(4) A Contracting Party which has invoked transitional arrangements shall notify the Secretariat no less often than once every 12 months:
( a) of the implementatio_ n of any measures listed in its Annex T and of its general progress to full compliance;
(b) of the progress it expects to make during the next 12 months towards full compliance with its obligations, of any problem it foresees and of its proposals for dealing with that problem;
(c) of the need for technical assistance to facilitate c ompletion of the stages set out in Annex T as necessary for the full implementation of this Treaty, or to deal with any problem notified pursuant to subparagraph (bl as well as to promote other necessary market-oriented reforms and modernization of its energy sector;
(dl of any possible need to make a request of the kind referred to in paragraph (3l.
(5) The Secretariat shall:
( a) circulate to all Contracting Parties the notifications referred to in paragraph (4);
(b) circulate and actively promote, relying where appropriate on arrangements existing within other international organizations, the matching of needs for and offers of technical assistance referred to in paragraph ( 2) and
subparagraph {4)(c);
(cl circulate to all Contracting Parties at the end of each six month period a summary of any notifications made under subparagraph (4)(a) or (d).
(6) The Charter Conference shall annually review the progress by Contracting Parties towards implementation of the provisions of this Article and the matching of needs and offers of technical assistance referred to in paragraph [2) and subparagraph (4)(c) . In the course of that review it may decide to take appropriate action.
PART VII
STRUCTURE AND INSTITUTIONS
ARTICLE 33
ENERGY CHARTER PROTOCOLS AND DECLARATIONS
(1l The Charter Conference may authorize the negotiation of a number of Energy Charter Protocols or Declarations in order to pursue the objectives and principles of the Charter.
(2) Any signatory to the Charter may participate in such negotiation.
(3) A state or Regional Economic Integration Organization shall not become a party to a Protocol or Declaration unless it is, or becomes at the same time, a signatory to the Charter and a Contracting Party to this Treaty.
(4) Subject to paragraph (3) and subparagraph ( 6)(a), f inal provisions applying to a Protocol shall be defined in that Protocol.
(5) A Protocol shall apply only to the Contracting Parties which consent to be bound by it, and shall not derogate from the rights and obligations of those Contracting Parties not party to the Protocol.
(6) (a) A Protocol may assign duties to the Charter Conference and functions to the Secretariat, provided that no such assignment may be made by an amendment to a Protoc ol unless that amendment is approved by the Charter Conference, whose approval shall not be subject to any provisions of the Protocol which are authorized by subparagraph (bl .
(b) A Protocol which provides for decisions thereunder to be taken by the Charter Conference may, subject to subparagraph (a), provide with respect to such decisions:
(ii for voting rules other than those contained in Article 36;
(ii) that only parties to the Protocol shall be considered to be Contracring Parties for the purposes of Article 36 or eligible to vote under the rules provided for in the Protocol.
ARTICLE 34
ENERGY CHARTER CONFERENCE
( 1) The Contracting Parties shall meet periodically in the Energy Charter Conference [referred to herein as the "Charter Conference") at which each Contracting Party shall be entitled to have one representative. Ordinary meetings shall be held at intervals determined by the Charter Conference.
( 2) Extraordinary meetings of the Charter Conference may be held at such times as may be determined by the Charter Conference, or at the written request of any Contracting Party, provided that, within six weeks of the request being communicated to the Contracting Parties by the Secretariat, it is supported by at least one-third of the Contracting Parties.
'
(3) The functions of the Charter Conferenc e shall be to:
(a) carry out the duties assigned to it by this Treaty and any Protocols;
(b} keep under review and facilitate the implementation of the principles of the Charter and of the provisions of this Treaty and the Protocols;
(c) facilitate in accordance with this Treaty and the Protocols the coordination of appropriate general measures to carry out the principles of the Charter;
!
(d ) consider and adopt programmes of work to be carried out by the Secretariat;
r (el consider and approve the annual accounts and budget of the Secretariat; (fl consider and approve or adopt the terms of any headquarters or other
agreement, including privileges and immunities considered necessary for the Charter Conference and the Secretariat;
(g) encourage cooperative efforts aimed at facilitating and promoting
market-oriented reforms and modernization of energy sectors in those countries of Central and Eastern Europe and the former Union of Soviet Socialist Republics undergoing economic transition;
(h) authorize and approve the terms of reference for the negotiation of Protocols, and consider and adopt the texts thereof and of amendments thereto;
{i) authorize the negotiation of Declarations, and approve their issuance;
U) decide on accessions to this Treaty;
(k) authorize the negotiation of and consider and approve or adopt association agreements;
(I) consider and adopt texts of amendments to this Treaty;
(m) consider and approve modifications of and technical changes to the Annexes to this Treaty;
{n) appoint the Secretary-General and take all decisions necessary for the establishment and functioning of the Secretariat including the structure, staff levels and standard terms of employment of officials and employees.
(4) In the performance of its duties, the Charter Conference, through the Secretariat, shall cooperate with and mak e as full a use as possible, consistently with economy and efficiency, of the services and programmes of other institutions and
organizations with established competence in matters related to the objectives of this Treaty.
(5) The Charter Conference may establish such subsidiary bodies as it considers appropriate for the performance of its duties.
(6) The Charter Conference shall consider and adopt rules of procedure and financial rules.
(7) In 1999 and thereafter at intervals (of not more than five years) to be determined by the Charter Conference, the Charter Conference shall thoroughly review the functions provided for in this Treaty in the light of the extent to which the provisions of the Treaty and Protocols have been implemented. At the conclusion of each review the Charter Conference may amend or abolish the functions specified in paragraph (3) and may discharge the Secretariat.
ARTICLE 35
SECRETARIAT
(1) In carrying out its duties, the Charter Conference shall have a Secretariat which shall be composed of a Secretary-General and such staff as are the minimum consistent with efficient performance.
(2) ) The Secretary-General shall be appointed by the Charter Conference. The first such appointment shall be for a maximum period of five years.
(3) In the performance of its duties the Secretariat shall be responsible to and report to the Charter Conferenc e.
(4} The Secretariat shall provide the Charter Conference with all necessary assistance for the performance of its duties and shall carry out the functions assigned to it in this .-., Treaty or in any Protocol and any other functions assigned to it by the Charter Conference.
(5) The Secretariat may enter into such administrative and contractual arrangements as may be required for the effective discharge of its functions.
ARTICLE 36
VOTING
( 1 l Unanimity of the Contracting Parties Present and Voting at the meeting of the Charter Conference where such matters fall to be decided shall be required far decisions by the Charter Conference ta:
[a) adopt amendments ta this Treaty other than amendments to Articles 34 and 35 and Annex T;
{b) approve accessions to this Treaty under Article 41 by states or Regional Economic Integration Organizations which were not signatories to the Charter as of 16 June 1995;
(cl authorize the negotiation of and approve or adapt the text of association agreements;
{dl approve modifications ta Annexes EM, NI, G and B;
{e) approve technical changes to the Annexes to this Treaty; and
[fl approve the Secretary-General's nominations of panelists under Annex D, paragraph (7).
The Contracting Parties shall make every effort to reach agreement by consensus on any other matter requiring their decision under this Treaty. If agreement cannot be reached by consensus, paragraphs ( 2) to (5) shall apply.
( 2) Decisions on budgetary matters referred to in Article 34(3)(e) shall be taken by a qualified majority of Contracting Parties whose assessed contributions as specified in Annex B represent, in combination, at least three-fourths of the total assessed contributions specified therein.
(3) Decisions on matters referred to in Article 34(7) shall be taken by a three-fourths majority of the Contracting Parties.
(4) Except in cases specified in subparagraphs (1 ) (a) to (fl, paragraphs (2) and (3), and subject to paragraph (6), decisions provided for in this Treaty shall be taken by a three-fourths majority of the Contracting Parties Present and Voting at the meeting of the Charter Conferenc e at which such matters fall to be decided.
(5) For purposes of this Article,"Contracting Parties Present and Voting" means Contracting Parties present and casting affirmative or negative votes, provided that the Charter Conference may decide upon rules of procedure to enable such decisions to be taken by Contracting Parties by correspondence.
(6) ) Except as provided in paragraph (2), no decision referred to in this Article shall be valid unless it has the support of a simple majority of the Contracting Parties.
(7) A Regional Economic Integration Organization shall, when voting, have a number of votes equal to the number of its member states which are Contracting Parties to this Treaty; provided that such an Organization shall not exercise its right to vote if its member states exercise theirs, and vice versa,
(8) In the event of persistent arrears in a Contracting Party's discharge of financial obligations under this Treaty, the Charter Conference may suspend that Contracting Party's voting rights in whole or in part.
ARTICLE 37
FUNDING PRINCIPLES
111 Each Contracting Party shall bear its own costs of representation at meetings of the Charter Conference and any subsidiary bodies.
12) The cost of meetings of the Charter Conference and any subsidiary bodies shall be regarded as a cost of the Secretariat.
(3) The costs of the Secretariat shall be met by the Contracting Parties assessed according to their capacity to pay, determined as specified in Annex B, the provisions of which may be modified in accordance with Article 36{1l(d) .
(41 A Protocol shall contain provisions to assure that any costs of the Secretariat arising from that Protocol are borne by the parties thereto.
(5) The Charter Conference may in addition accept voluntary contributions from one or more Contracting Parties or from other sources. Costs met from such contributions shall not be considered costs of the Secretariat for the purposes of paragraph (3) .
PART VIII
FINAL PROVISIONS
ARTICLE 38
- SIGNATURE
This Treaty shall be open for signature at Lisbon from 17 December 1994 to 16 June 1995 by the states and Regional Economic Integration Organizations which have signed the Charter.
ARTICLE 39
RATIFICATION, ACCEPTANCE OR APPROVAL
This Treaty shall be subject to ratification, acceptance or approval by signatories. Instruments of ratification, acceptance or approval shall be deposited with the Depositary.
ARTICLE 40
APPLICATION TO TERRITORIES
( 1) Any state or Regional Economic I ntegration Organization may at the tim e of signature, ratification, accepta nce, approval or accession, by a decla ration deposited with the Depositary, declare that the Treaty shall be binding u pon it with respect to all the territories for the international relations of which it is responsible, or to one or more of them. Such decla ration shall ta ke eff ect at the time the Treaty enters into force for that Contracting Party.
(2) Any Contracting Party may at a later date, by a declaration deposited with the Depositary, bi nd itself u nder this Treaty with respect to other territory specif ied in the declaration. I n respect of such territory the Treaty shall enter into force on the ninetieth day followi ng the receipt by the Depositary of such declaration.
(3) Any decla ration made under the two preceding paragraphs may, i n respect of any terdtory specif ied in such decl aration, be withd rawn by a notification to the Depositary . The withdrawal shall, subject to the applicability of Article 47(3). become eff ective upon the expiry of one yea r after the date of receipt of such notif ication by the Depositary .
( 41 The def inition of "Area" in Article 1 (10) sha ll be construed havi ng rega rd to any decla ration deposited under this Article.
ARTICLE 41
ACCESSION
This Treaty shall be open for accession, from the date an which the Treaty is closed for signature, by states and Regional Economic Integration Organizations which have signed the Charter, on terms ta be approved by the Charter Conference. The instruments of accession shall be deposited with the Depositary.
ARTICLE 42
AMENDMENTS
11 l Any Contracting Party may propose amendments to this Treaty.
(2) The text of any proposed amendment to this Treaty shall be communicated to the Contracting Parties by the Secretariat at least three months before the date on which it is proposed for adoption by the Charter Conference .
(3) Amendments to this Treaty, texts of which have been adopted by the Charter Conference, shall be communicated by the Secretariat to the Depositary which shall submit them to all Contracting Parties for ratification, acceptance or approval.
(4) Instruments of ratification, acceptance or approval of amendments to this Treaty shall be deposited with the Depositary. Amendments shall enter into force between Contracting Parties having ratified, accepted or approved them on the ninetieth day after deposit with the Depositary of instruments of ratification, acceptance or approval by at least three-fourths of the Contracting Parties. Thereafter the amendments shall enter into force for any other Contracting Party on the ninetieth day after that Contracting Party deposits its instrument of ratification, acceptance or approval of the amendments.
ARTICLE 43
ASSOCIATION AGREEMENTS
(11 The Charter Conference may authorize the negotiation of association agreements with states or Regional Economic Integration Organizations, or with international organizations, in order to pursue the objectives and principles of the Charter and the provisions of this Treaty or one or more Protocols.
( 21 The relationship established with and the rights enjoyed and obligations incurred by an associating state, Regional Economic Integration Organization, or international organization shall be appropriate to the particular circumstances of the association, and in each case shall be set out in the association agreement.
ARTICLE 44
ENTRY INTO FORCE
( 1) This Treaty shall enter into force on the ninetieth day after the date of deposit of the thirtieth instrument of ratification, acceptance or approval thereof, or of accession thereto, by a state or Regional Economic Integration Organization which is a signatory to the Charter as of 16 June 1995.
(2) For each state or Regional Economic Integration Organization which ratifies, accepts or approves this Treaty or accedes thereto after the deposit of the thirtieth instrument of ratification, acc eptance or approval, it shall enter into force on the ninetieth day after the date of deposit by such state or Regional Economic Integration Organization of its instrument of ratification, acceptance, approval or accession.
(3) For the purposes of paragraph (1), any instrument deposited by a Regional Economic Integration Organization shall not be counted as additional to those deposited by member states of such Organization.
ARTICLE 45
PROVISIONAL APPLICATION
(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations .
( 2) (a) Notwithsta ndi ng pa ragraph ( 1 ) any signatory may, when signing, deliver to the _,
Depositary a decla rati on that it is not a ble to accept provisional application. The o bligation contained in paragraph (1) shall not apply to a signatory m a ki ng such a declaration . Any such signatory ma y at a ny tim e withdra w that declaration by written notif ication to the Deposita ry.
(b) Neither a signatory which ma kes a decl a ration in accorda nce with subparagra ph (a) nor I nvestors of that signatory may claim the benefits of provision al a pplication u nder paragra ph (1).
(c) Notwithsta nding subpa ragra ph (al, any signatory making a decla ratio n ref erred to in subpa ragraph (a ) shall apply Pa rt VII provisiona lly pending the entry i nto force of the Treaty for such signatory i n accordance with Article 44, to the extent that su ch provisiona l application is not inconsistent with its laws or regulations .
(3) (a) Any signatory may terminate its provisional application of this Treaty by written notif ica tion to the Depositary of its intention not to become a Contracti ng Pa rty to the Treaty. Termi nation of provisional application for any signatory shall take effect upon the expiration of 60 days f rom the d ate on which such signatory 's written notif ication is received by the Deposita ry.
( bl I n the event that a signatory terminates provisional a pplication under subpa ragra ph ( a), the obligation of the signatory u nder pa ragra ph ( 1) to appl y Parts Il l and V with respect to any I nvestments m ade i n its Area d u ring such provision a l a pplication by I nvestors of other signatories shall nevert heless remain i n effect with respect to those I nvestments for twenty yea rs fol lowing the eff ective date of term ination, except as otherwise provided in subparagraph (c) .
(c) Subparagraph (b) shall not apply to any signatory listed in Annex PA. A signatory shall be removed from the list in Annex PA effective upon delivery to the Depositary of its request therefor.
(4) Pending the entry into force of this Treaty the signatories shall meet periodically in the provisional Charter Conference, the first meeting of which shall be convened by the provisional Secretariat referred to in paragraph 15) not later than 180 days after the opening date for signature of the Treaty as specified in Article 38.
(5) The functions of the Secretariat shall be carried out on an interim basis by a provisional Secretariat until the entry into force of this Treaty pursuant to Article 44 and the establishment of a Secretariat .
(6) The signatories shall, in accordance with and subject to the provisions of paragraph (1) or subparagraph ( 2)(c) as appropriate, contribute to the costs of the provisional Secretariat as if the signatories were Contracting Parties under Article 37(3) . Any modifications made to Annex B by the signatories shall terminate upon the entry into force of this Treaty.
(7) A state or Regional Economic Integration Organization which, prior to this Treaty's entry into force, accedes to the Treaty in accordance with Article 41 shall, pending the Treaty's entry into force, have the rights and assume the obligations of a signatory under this Article.
ARTICLE 46
RESERVATIONS
No reservations may be made to this Treaty.
ARTICLE 47 WITHDRAWAL
( 1l At a ny time after f ive years f rom the date on which this Treaty has entered into force for a Contracti ng Pa rty, tha t Contracti ng Pa rty may give written notif ication to the Deposita ry of its withdra wal from the Treaty .
(2) Any such withd ra wal sha ll ta ke eff ect upo n the expiry of one yea r after the date of the receipt of the notif ication by the Depositary, or on such later date as may be specif ied in the notification of withdra wal.
13) The provisions of this Treaty shall continue to apply to I nvestments made in the Area of a Contracti ng Party by I nvestors of other Contracti ng Parties or i n the Area of other Contracting Parties by I nvestors of that Contracti ng Pa rty as of the date when that Contracti ng Pa rty 's withdrawal from the Treaty ta kes eff ect for a period of 20 years from such date.
(4) Al l Protocols to which a Contracting Party is pa rty shall cease to be in force for that Contracti ng Party on the eff ective date of its withdrawal from t his Treaty.
ARTICLE 48
STATUS OF ANNEXES AND DECISIONS
The Annexes to this Treaty and the Decisions set out in Annex 2 to the Final Act of the European Energy Charter Conference signed at Lisbon on 17 December 1994 are integral parts of the Treaty.
ARTICLE 49
DEPOSITARY
The Government of the Portuguese Republic shall be the Depositary of this Treaty .
ARTICLE 50
AUTHENTIC TEXTS
In witness whereof the undersigned, being duly authorized to that effect, have signed this Treaty in English, French, German, Italian, Russian and Spanish, of which every text is equally authentic, in one original, which will be deposited with the Government of the Portuguese Republic.
Done at Lisbon on the seventeenth day of December in the year one thousand nine hundred and ninety-four. ·
Fait a Lisbonne, le dix-sept decembre mil neuf cent quatre-vingt-quatorze .
Geschehen zu Lissabon am siebzehnten Dezember neunzehnhundertvierundneunzig.
Fatto a Lisbona ii diciassettesimo giorno del mese di dicembre dell'anno millenovecentonovantaquattro.
CoBepwetto B TIHcca6oHe B ceMHanuaTI,rf\ neHb .aeKa6pH onHa TlicHqa .aenHTbCoT .aeBHuocTo tieTnepToro ro.aa .
Hecho en Lisboa, el diecisiete de diciembre de mil novecientos noventa y cuatro.
NOTIFICATION AND PHASE-OUT (TRIMs)
(In accordance with Article 5 /4))
( 1) Each Contracting Party shall notify to the Secretariat all trade related investment measures which it applies that are not in conformity with the provisions of Article 5, within:
(a) 90 days after the entry into force of this Treaty if the Contracting Party is a
.,,.-, party to the GATT; or
(bl 12 months after the entry into force of this Treaty if the Contracting Party is not a party to the GATT.
Such trade related investment measures of general or specific application shall be notified along with their principal features.
[2) In the case of trade related investment measures applied under discretionary authority, each specific application shall be notified. Information that would prejudice the legitimate commercial interests of particular enterprises need not be disclosed.
(3) Each Contracting Party shall eliminate all trade related investment measures which are notified under paragraph (1) within:
(al two yea rs from the date of entry i nto force of this Treaty if the Contracting Party is a pa rty to the GATT; or
(bl three yea rs from the date of entry i nto force of this Treaty if the Contracti ng Party is not a party to the GATT.
(41 Duri ng the applica ble period referred to in pa ragra ph (3) a Contracti ng Party sh all n ot modif y the terms of a ny trade related investment measure which it notifies u nder paragra ph ( 1) from those prevailing at the date of entry into force of this Treaty so as to i ncrease the degree of inconsistency with the provisions of Article 5 of this Treaty.
(5l Notwithsta nding the provisions of paragra ph (4). a Contracting Party, i n order not to disadva ntage esta blished enterprises which are subject to a trade re l ated i nvestment m easure notified under pa ragra ph ( 1). may apply d uri ng the phase-out period the same trade related i nvestment measure to a new I nvestment where:
(al the prod ucts of such I nvestment a re li ke products to those of the established enterprises; and
(b) such application is necessary to avoid distorting the conditions of com petiti on betwee n the new I nvestment a nd the established enterprises.
Any trade related i nvestment measure so applied to a new I nvestment shall be notif ied to the Secretariat. The terms of such a trade related investment measu re shall be equ iva le nt in their com petitive eff ect to those a pplicable to the esta blished enterprises, a nd it shall be terminated at the same time .
( 6) Where a state or Regional Economic Integration Organization accedes to this Treaty after the Treaty has entered into force:
(al the notification referred to in paragraphs (1) and (2) shall be made by the later of the applicable date in paragraph ( 1) or the date of deposit of the instrument of accession; and
(b) the end of the phase-out period shall be the later of the applicable date in paragraph (3) or the date on which the Treaty enters into force for that state or Regional Economic Integration Organization.
4. ANNEX N
LIST OF CONTRACTING PARTIES REQUIRING AT LEAST 3 SEPARATE AREAS TO BE INVOLVED IN A TRANSIT
(In accordance with Article 7(10)(a))
- Canada and United States of America
5. ANNEX VC
LIST OF CONTRACTING PARTIES WHICH HAVE MADE VOLUNTARY BINDING COMMITMENTS IN RESPECT OF ARTICLE 10(3)
(In accordance with Article 10(6))
6. ANNEX ID
LIST OF CONTRACTING PARTIES NOT ALLOWING AN INVESTOR TO RESUBMIT THE SAME DISPUTE TO INTERNATIONAL ARBITR ATION AT A LATER STAGE UNDER ARTICLE 26
(In accordance with Article 26(3l(b)(i))
- Australia 10. Greece
- Azerbaijan 11. Hungary
- Bulgaria 12. Ireland
4. Canada 13. Italy
5. | Croatia | 14. Japan | 6. | Cyprus | 15. Kazakhstan | 7. | The Czech Republic | 16. Norway | 8, | EuropecJn Communities | 17. Poland | 9. | Finland | 18. Portugal |
|
|
.._,,
(1) Where, in making an a ward, the tribunal finds that a measure of a regional or local government or authority of a Contracting Party (hereinafter referred to as the "Responsible Party") is not in conformity with a provision of this Treaty, the Responsible Party shall take such reasonable measures as may be available to it to ensure observance of the Treaty in respect of the measure.
12) The Responsible Party shall, within 30 days from the date the award is made, provide to the Secretariat written notice of its intentions as to ensuring observance
of the Treaty in respect of the measure. The Secretariat shall present the notification to the Charter Conference at the earliest practicable opportunity, and no later than the meeting of the Charter Conference tallowing receipt of the notice. If it is impracticable to ensure observance immediately, the Responsible Party shall have a reasonable period of time in which to do so. The reasonable period of time shall be agreed by both parties to the dispute. In the event that such agreement is not reached, the Responsible Party shall propose a reasonable period for approval by the Charter Conference.
(3) Where the Responsible Party f ails, within the reasonable period of time, to ensure observance in respect of the measure, it shall at the request of the other Contracting Party party to the dispute (hereinafter referred to as the "Injured Party") endeavour to agree with the Injured Party on appropriate compensation as a mutually satisfactory resolution of the dispute .
(4) If no satisfactory compensation has been agreed within 20 days of the request of the Injured Party, the Injured Party may with the authorization of the Charter Conference suspend such of its obligations to the Responsible Party under the Treaty as it considers equivalent to those denied by the measure in question, until such time as the Contracting Parties have reached agreement on a resolution of their dispute or the non-conforming measure has been brought into conformity with the Treaty.
(5) In considering what obligations to suspend, the Injured Party shall apply the following principles and procedures:
(a) The Injured Party should first seek to suspend obligations with respect to the same Part of the Treaty as that in which the tribunal has found a violation.
(bl If the Injured Party considers that it is not practicable or effective to suspend obligations with respect to the same Part of the Treaty, it may seek to suspend obligations in other Parts of the Treaty. If the Injured Party decides to request authorization to suspend obligations under this sub-paragraph, it shall state the reasons therefor in its request to the Charter Conference for authorization.
[...]
(6) On written request of the Responsible Party, delivered to the Injured Party and to the President of the tribunal that rendered the award, the tribunal shall determine whether the level of obligations suspended by the Injured Party is excessive, and if so, to what extent. If the tribunal cannot be reconstituted, such determination shall be made by one or more arbitrators appointed by the Secretary-General. Determinations pursuant to this paragraph shall be completed within 60 days of the request to the tribunal or the appointment by the Secretary-General. Obligations shall not be suspended pending the determination, which shall be final and binding.
(7) In suspending any obligations to a Responsible Party, an Injured Party shall make every effort not to affect adversely the rights under the Treaty of any other Contracting Party .
EECH/Annexes to A 1/en 21
......
Safeguard Action for Development Purposes
Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance.
(b) Related Instruments
(i) Agreement on Technical Barriers to Trade (Standards Code)
Preamble {paragraphs 1, 8, 9)
10. 6
General provisions
Preparation, adoption and application of technical regulations and standards by central government bodies
Information about technical regulations, standards and certification systems
,,.,,,.,.,.,.
l,
11 Technical assistance to other Parties
12 Special and differential treatment of developing countries
13 The Committee on Technical Barriers to Trade
14 Consultation and dispute settlement
15 Final provisions (other than 15.5 and 15 .13) Annex 2 Technical Expert Groups
Annex 3 Panels
(ii ) Agreement on Government Procurement
Developing countries
Committee on Subsidies and Countervailing Measures Conciliation
Dispute settlement Acceptance and accession Entry into force
National legislation Review Amendments Withdrawal
Non-application of this Agreement between particular signatories
Secretariat Deposit Registration
(iv! Agreement on Implementation of Article VII (Customs Valuation)
l
1.2(bl(iv) Transaction value
11.1 Determination of customs value
14 Application of Annexes (second sentence)
18 Institutions (Committee on Customs Valuation)
19 Consultation
20 Dispute settlement
21 Special and differential treatment of developing countries
22 Acceptance and accession ,.
24 Entry into force
25.1 National legislation
26 Review
27 Amendments
28 Withdrawal
29 Secretariat
30 Deposit
31 Registration
Annex II Technical Committee on Customs Valuation Annex Ill Ad Hoc Panels
Protoc ol to the Agreement on Implementation of Article VII (except 1.7
and 1. 8; with nec essary conforming introductory language)
(v) Agreement on Import Licensing Procedures
1 .4 General provisions (last sentence)
2.2 Automatic import licensing (footnote 2)
4 Institutions, c onsultation and dispute settlement
5 Final provisions {except paragraph 21
lvi) Agreement an Implementation of Article VI ( Antidumping Cade)
13 Developing Countries
14 Committee on Anti-Dumping Practices
15 Consultation, Conciliation and Dispute Settlement
16 Final Provisions (except paragraphs 1 and 3)
(vii) Arrangement Regarding Erovtne Meat
(viii) International Dairy Arrangement
lix) Agreement on Trade in Civil Aircraft
(x) Declaration on Trade Measures Taken for Balance-of-Payments Purposes.
(cl All other provisions in the GATT or Related Instruments which relate to:
Iii governmental assistance to economic development and the treatment of developing countries, except for paragraphs (1) ta (4) of the Decision of 28 November 1979 (L/4903) on Differential and more Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries;
(ii) the establishment or operation of specialist committees and other subsidiary institutions;
(iii) signature, accession, entry lnto force, withdrawal, deposit and registration.
(d) All agreements, arrangements, decisions, understandings or other joint action pursuant to the provisions listed in sub-paragraphs (al to (c).
(2) Contracting Parties shall apply the provisions of the "Declaration on Trade Measures Taken for Balance-of-Payments Purposes" to measures taken by those Contracting Parties which are not parties to the GATT, to the extent practic able in the context of the other provisions of this Treaty.
(3) With respect to notifications required by the provisions made applicable by Article 29(2)(a):
(a) Contracting Parties which are not parties to the GATT or a Related Instrument shall make their notifications to the Secretariat. The Secretariat shall circulate copies of the notifications to all Contracting Parties. Notifications to the Secretariat shall be in one of the authentic languages of this Treaty. The accompany ing documents may be solely in the language of the Contracting Party ;
(b) such requirements shall not apply to Contracting Parties to this Treaty which are also parties to the GATT and Related Instruments, which contain their own notification requirements .
(41 Trade in nuclear materials may be governed by agreements referred to in the Declarations related to this paragraph c ontained in the Final Act of the European Energy Charter Conference .
- ANNEX TFU
PROVISfONS REGARDING TRADE AGREEMENTS BETWEEN STATES WHICH WERE CONSTITUENT PARTS OF THE FORMER UNION OF SOVIET SOCIALIST REPUBLICS
(In accordance with Article 29( 2)(b))
1 ,
(1 l Any agreement referred to in Article 29(2)(b) shall be notified in writing to the
Secretariat by or on behalf of all of the parties to such agreement which sign or accede to this Treaty:
(a) in respect of an agreement in force as of a date three months after the date on which the first of such parties signs or deposits its instrument of accession to the Treaty, no later than six months after such date of signature or deposit; and
( b) in respect of an agreement which enters into force on a date subsequent to the date referred to in sub-paragraph (al. sufficiently in advance of its entry into force far other states or Regional Economic Integration Organizations which have- signed or acceded to the Treaty (hereinafter referred to as the "Interested Parties") to have a reasonable opportunity to review the agreement and make representations concerning it to the parties thereto and to the Charter Conference prior to such entry into force.
(2) The notiticatton shall include:
(a) copies of the original texts of the agreement in all languages in which it has been signed;
(bl a description, by reference to the items included in Annex EM, of the specific Energy Materials and Products to which it applies;
(c) an explanation, separately for each relevant provision of the GATT and Related Instruments made applicable by Article 29(2l(a), of the circumstances which mak e it impossible or impracticable for the parties to the agreement to conform fully with that provision;
(di the specific measures to be adopted by each party to the agreement to address the circumstances referred to in sub-paragraph (c); and
(e) a description of the parties' programmes for achieving a progressive reduction and ultimate elimination of the agreement's non-conforming provisions.
(3) Parties to an agreement notified in accordance with paragraph (1J shall afford to the Interested Parties a reasonable opportunitY to consult with them with respect to such agreement, and shall accord consideration to their representations . Upon the request of any of the Interested Parties, the agreement shall be considered by the Charter Conference, which may adopt recommendations with respect thereto.
(4) The Charter Conference shall periodically review the implementation of agreements notified pursuant to paragraph (1) and the progress having been made towards the elimination of provisions thereof that do not conform with provisions of the GATT and Related Instruments made applicable by Article 29(2) (a). Upon the request of any of the Interested Parties, the Charter Conference may adopt recommendations with respect to such an agreement.
(51 An agreement described in Article 29( 2)1b) may in case of exceptional urgency be allowed to enter into force without the notification and consultation provided for in sub-paragraph (1 ) (b), paragraphs ( 2) and 13), provided that such notification takes place and the opportunity for such consultation is afforded promptly. In such a case the parties to the agreement shall nevertheless notify its text in accordance with sub-paragraph (2)(al promptly upon its entry into force.
16) Contracting Parties which are or become parties to an agreement described in Article 29(2)(bl undertake to limit the non-conformities thereof with the provisions of the GATT and Related Instruments made applicable by Article 29(2l{al to those necessary to address the particular circumstances and to implement such an agreement so as least to deviate from those provisions. They shall make every effort to take remedial action in light of representations from the Interested Parties and of any recommendations of the Charter Conference.
ANNEX D
INTERIM PROVISIONS FOR TRADE DISPUTE SETTLEMENT
(In accordance with Article 29(7))
( 1) (a) In their relations with one another, Contracting Parties shall make every effort through cooperation and consultations to arrive at a mutually satisfactory resolution of any dispute about existing measures that might materially affect compliance with the provisions applicable to trade under Article 5 or 29.
(b) A Contracting Party may make a written request to any other Contracting Party for consultations regarding any existing measure of the other Contracting Party that it considers might affect materially compliance with provisions applicable to trade under Article 5 or 29. A Contracting Party which requests
consultations shall to the fullest extent possible indicate the measure complained of and specify the provisions of Article 5 or 29 and of the GATT and Related Instruments that it considers relevant. Requests to consult pursuant to this paragraph shall be notified to the Secretariat, which shall periodically inform the Contracting Parties of pending consultations that have been notified.
(c) Contracting Party shall treat any confidential or proprietary information identified as such and contained in or received in response to a written request, or received in the course of consultations, in the same manner in which it is treated by the Contracting Party providing the information.
(d) In seeking to resolve matters considered by a Contracting Party to affect compliance with provisions applicable to trade under Article 5 or 29 as between itself and another Contracting Party, the Contracting Parties participating in consultations or other dispute settlement shall make every effort to avoid a resolution that adversely affects the trade of any other Contracting Party.
(2) (a) If, within 60 days from the receipt of the request for consultation referred to in sub-paragraph (1) (bl, the Contracting Parties have not resolved their dispute or agreed to resolve it by conciliation, mediation, arbitration or other method, either Contracting Party may deliver to the Secretariat a written request for the establishment of a panel in accordance with sub-paragraphs (b) to (f ). In its request the requesting Contracting Party shall state the substance of the dispute and indicate which provisions of Article 5 or 29 and of the GATT and Related Instruments are considered relevant. The Secretariat shall promptly deliver copies of the request to all Contracting Parties.
(bl The interests of other Contracting Parties shall be taken into account during the resolution of a dispute. Any other Contracting Party having a substantial interest in a matter shall have the right to be heard by the panel and to make written submissions to it, provided that both the disputing Contracting Parties and the Secretariat have received written notice of its interest no later than the date of establishment of the panel, as determined in accordance with sub-paragraph le).
(c) A panel shall be deemed to be established 45 days after the receipt of the written request of a Contracting Party by the Secretariat pursuant to sub-paragraph (a).
(d) A panel shall be composed of three members who shall be chosen by the Secretary-General from the roster described in paragraph (7). Except where the disputing Contracting Parties agree otherwise, the members of a panel shall not be citizens of Contracting Parties which either are party to the dispute or have notified their interest in accordance with sub-paragraph (bl, or citizens of states members of a Regional Economic Integration Organization which either is party to the dispute or has notified its interest in accordance with sub-paragraph (b) .
(e) The disputing Contracting Parties shall respond within ten working days to the nominations of panel members and shall not oppose nominations except for compelling reasons .
(f ) Panel members shall serve in their individual capacities and shall neither seek nor take instruction from any government or other body. Each Contracting Party undertakes to respect these principles and not to seek to influence panel members in the performance of their tasks . Panel members shall be selected with a view to ensuring their independence, and that a sufficient diversity of backgrounds and breadth of experience are reflected in a panel.
(g) The Secretariat shall promptly notify all Contracting Parties that a panel has been constituted.
(3) ( a) The Charter Conference shall adopt rules of procedure for panel proceedings consistent with this Annex. Rules of procedure shall be as close as possible to those of the GATT and Related Instruments. A panel shall also have the right to adopt additional rules of procedure not inconsistent with the rules of procedure adopted by the Charter Conference or with this Annex. In a proceeding before a panel each disputing Contracting Party and any other Contracting Party which has notified its interest in accordance with sub-paragraph ( 2)(b). shall have the right to at least one hearing before the panel and to provide a written submission. Disputing Contracting Parties shall also have the right to provide a written rebuttal. A panel may grant a request by any other Contracting Party which has notified its interest in accordance with sub-paragraph ( 2l(bl for access to any written submission made to the panel. with the consent of the Contracting Party which has made it.
The proceedings of a panel shall be confidential. A panel shall make an objective assessment of the matters before it, including the facts of the dispute and the compliance of measures with the provisions applicable to trade under Article 5 or 29. In exercising its functions, a panel shall consult with the disputing Contracting Parties and give them adequate opportunity to arrive at a mutually satisfactory solution. Unless otherwise agreed by the disputing Contracting Parties, a panel shall base its decision on the arguments and submissions of the disputing Contracting Parties. Panels shall be guided by the interpretations given to the GATT and Related Instruments within the framework of the GATT, and shall not question the compatibility with Article 5 or 29 of practices applied by any Contracting Party which is a party to the GATT to other parties to the GATT to which it applies the GATT and which have not been taken by those other parties to dispute resolution under the GATT.
Unless otherwise agreed by the disputing Contracting Parties, all procedures involving a panel, including the issuance of its final report, should be completed within 180 days of the date of establishment of the panel; however, a failure to complete all procedures within this period shall not affect the validity of a final report.
(bl A panel shall determine its jurisdiction; such determination shall be final and binding. Any objection by a disputing Contracting Party that a dispute is not within the jurisdiction of the panel shall be considered by the panel, which shall decide whether to deal with the objection as a preliminary question or to join it to the merits of the dispute.
(cl In the event of two or more requests for establishment of a panel in relation to disputes that are substantively similar, the Secretary-General may with the consent of all the disputing Contracting Parties appoint a single panel.
[4) (a) After having considered rebuttal arguments, a panel shall submit to the disputing Contracting Parties the descriptive sections of its draft written report, including a statement of the facts and a summary of the arguments made by the disputing Contracting Parties. The disputing Contracting Parties shall be afforded an opportunity to submit written comments on the descriptive sections within a period set by the panel.
Following the date set for receipt of comments from the Contracting Parties, the panel shall issue to the disputing Contracting Parties an interim written report, including both the descriptive sections and the panel's proposed findings and conclusions. Within a period set by the panel a disputing Contracting Party may submit to the panel a written request that the panel review specific aspects of the interim report before issuing a final report. Before issuing a final report the panel may, in its discretion, meet with the disputing Contracting Parties to consider the issues raised in such a request.
The final report shall include descriptive sections (including a statement of the facts and a summary of the arguments made by the disputing Contracting Parties!, the panel's findings and conclusions, and a discussion of arguments made on specific aspects of the interim report at the stage of its review. The final report shall deal with every substantial issue raised before the panel and necessary to the resolution of the dispute and shall state the reasons for the panel's conclusions.
A panel shall issue its final report by providing it promptly to the Secretariat and to the disputing Contracting Parties. The Secretariat shall at the earliest practicable opportunity distribute the final report, together with any written views that a disputing Contracting Party desires to have appended, to all Contracting Parties.
(bl Where a panel concludes that a measure introduced or maintained by a Contracting Party does not comply with a provision of Article 5 or 29 or with a provision of the GATT or a Related Instrument that applies under Article 29, the panel may recommend in its final report that the Contracting Party alter or abandon the measure or conduct so as to be in compliance with that provision.
(c) Panel reports shall be adopted by the Charter Conference. In order to provide sufficient time for the Charter Conference to consider panel reports, a report shall not be adopted by the Charter Conference until at least 30 days after it has been provided to all Contracting Parties by the Secretariat. Contracting Parties having objections to a panel report shall give written reasons for their objections to the Secretariat at least 10 days prior to the date on which the report is to be considered for adoption by the Charter Conference, and the Secretariat shall promptly provide them to all Contracting Parties. The disputing Contracting Parties and Contracting Parties which notified their interest in accordance with sub-paragraph ( 2)(bJ shall have the right to participate fully in the consideration of the panel report on that dispute by the Charter Conference, and their views shall be fully recorded.
(d) In order to ensure effective resolution of disputes to the benefit of all Contracting Parties, prompt compliance with rulings and recommendations of a final panel report that has been adopted by the Charter Conference is essential. A Contracting Party which is subject to a ruling or recommendation of a final panel report that has been adopted by the Charter Conference shall inform the Charter Conference of its intentions regarding compliance with such ruling or recommendation. In the event that immediate compliance is impracticable, the Contracting Party concerned shall explain its reasons for non-compliance to the Charter Conference and, in light of this explanation, shall have a reasonable period of time to effect compliance. The aim of dispute resolution is the modification or removal of inconsistent measures.
(5) Where a Contracting Party has failed within a reasonable period of time to comply with a ruling or recommendation of a final panel report that has been adopted by the Charter Conference, a Contracting Party to the dispute injured by such non-complianc e may deliver to the non-complying Contracting Party a written request that the non-complying Contracting Party enter into negotiations with a view to agreeing upon mutually acceptable compensation. If so requested the non-complying Contracting Party shall promptly enter into such negotiations.
(bl If the non-complying Contracting Party refuses to negotiate, or if the Contracting Parties have not reached agreement within 30 days after delivery of the request for negotiations, the injured Contracting Party may make a written request for authorization of the Charter Conference to suspend obligations owed by it to the non-complying Contracting Party under Article 5 or 29.
(cl The Charter Conference may authorize the injured Contracting Party to suspend such of its obligations to the non-complying Contracting Party, under provisions of Article 5 or 29 or under provisions of the GATT or Related Instruments that apply under Article 29, as the injured Contracting Party considers equivalent in the circumstances.
(d) The suspension of obligations shall be temporary and shall be applied only until such time as the measure found to be inconsistent with Article 5 or 29 has been removed, or until a mutually satisfactory solution is reached.
16) (a) Before suspending such obligations the injured Contracting Party shall inform the non-complying Contracting Party of the nature and level of its proposed suspension. If the non-complying Contracting Party delivers to the
Secretary-General a written objection to the level of suspension of obligations proposed by the injured Contracting Party, the objection shall be referred to arbitration as provided below . The proposed suspension of obligations shall be stayed until the arbitration has been completed and the determination of the arbitral panel has become final and binding in accordance with
sub-paragraph (el.
(b) The Secretary-General shall establish an arbitral panel in accordance with
sub-paragraphs (2) (d) to (fl, which if practicable shall be the same panel which made the ruling or recommendation referred to in sub-paragraph (4) (dl, to examine the level of obligations that the injured Contracting Party proposes to suspend. Unless the Charter Conference decides otherwise the rules of procedure for panel proceedings shall be adopted in accordance with sub-paragraph (3)1a).
le) The arbitral panel shall determine whether the level of obligations proposed to be suspended by the injured Contracting Party is excessive in relation to the
inj ury it experienced, and if so, to what extent . I! shall not review the nature of the obligations suspended, except insofar as this is inseparable from the determination of the level of suspended obligations.
(d) The arbitral panel shall deliver its written determination to the injured and the non-complying Contracting Parties and to the Secretariat within 60 days of the establishment of the panel or within such other period as may be agreed by the injured and the non-complying Contracting Parties. The Secretariat shall present the determination to the Charter Conference at the earliest practicable opportunity, and no later than the meeting of the Charter Conference following receipt of the determination.
(el The determination of the arbitral panel shall become final and binding 30 days after the date of its presentation to the Charter Conference, and any level of suspension of benefits allowed thereby may thereupon be put into effect by the injured Contracting Party in such manner as that Contracting Party considers equivalent in the circumstances, unless prior to the expiration of the 30 days period the Charter Conference decides otherwise.
("fl In suspending any obligations to a non-complying Contracting Party, an injured Contracting Party shall make every effort not to affect adversely the trade of any other Contracting Party.
(7) Each Contracting Party may designate two individuals who shall, in the case of Contracting Parties which are also party to the GATT, if they are willing and able to serve as panellists under this Annex, be panellists currently nominated for the purpose of GATT dispute panels. The Secretary-General may also designate, with the approval of the Charter Conference, not more than ten individuals, who are willing and able to serve as panellists for purposes of dispute resolution in accordance with paragraphs ( 21 to (4) . The Charter Conference may in addition decide to designate for the same purposes up to 20 individuals, who serve on dispute settlement rosters of other international bodies, who are willing and able to serve as panellists. The names of all of the individuals so designated shall constitute the dispute settlement roster . Individuals shall be designated strictly on the basis of objectivity, reliability and sound judgement and, to the greatest extent possible, shall have expertise in international trade and energy matters, in particular as relates to provisions applicable under Article 29 . In fulfilling any function under this Annex,
designees shall not be affiliated with or take instructions from any Contracting Party. Designees shall serve for renewable terms of five years and until their successors have been designated. A designee whose term expires shall continue to fulfil any function for which that individual has been chosen under this Annex. In the case of death, resignation or incapacity of a designee, the Contracting Party or the
Secretary-General, whichever designated said designee, shall have the right to designate another individual to serve for the remainder of that designee's term, the designation by the Secretary-General being subject to approval of the Charter Conference.
(B) Notwithstanding the provisions contained in this Annex, Contracting Parties are encouraged to consult throughout the dispute resolution proceeding with a view to settling their dispute.
(9) The Charter Conference may appoint or designate other bodies or fora to perform any of the functions delegated in this Annex to the Secretariat and the Secretary-General .
- ANNEX B
FORMULA FOR ALLOCATING CHARTER COSTS
(In accordance with Article 37(3))
[1) Contributions payable by Contracting Parties shall be determined by the Secretariat annually on the basis of their percentage contributions required under the latest available United Nations Regular Budget Scale of Assessment (supplemented by information on theoretical contributions for any Contracting Parties which are not UN members) .
(2) The contributions shall be adjusted as necessary to ensure that the total of all Contracting Parties' contributions is 100%.
- ANNEX PA
LIST OF SIGNATORIES WHICH DO NOT ACCEPT THE PROVISIONAL APPLICATION OBLIGATION OF ARTICLE 45(3)(b)
(In accordance with Article 45(3) Jc))
1. The Czech Republic
2 . Germany
- Hungary
- Lithuania
- Poland
( 5) For the purposes of this Decision:
"Current Transactions" are current payments connected with the movement of goods, services or persons that are made in accordance with normal international practice, and do not include arrangements which materially constitute a combination of a current payment and a capital transaction, such as deferrals of payments and advances which is meant to circumvent respective legislation of the Limiting Party in the field.
- With respect to Article 14(21
Without prejudice to the requirements of Article 14 and its other international obligations, Romania shall endeavour during the transition to full convertibility of its national currency to take appropriate steps to improve the efficiency of its
procedures for the transfers of Investment Returns and shall in any case guarantee such transfers in a Freely Convertible Currency without restriction or a delay exceeding six months. Romania shall ensure that Investments in its Area of the Investors of all other Contracting Parties are accorded, with respect to transfers, treatment no less favourable than that which it accords to Investments of Investors of any other Contracting Party or of any third state, whichever is the most favourable.
- With respect to Articles 24(4llal and 25
An Investment of an Investor referred to in Article 1(7)(a)(ii), of a Contracting Party which is not party to an EIA or a member of a free-trade area or a customs union, shall be entitled to treatment accorded under such EIA, free-trade area or customs union, provided that the Investment:
(a) has its registered off ice, centra l administration or pri ncipal place of busi ness i n the Area of a party to that EIA or mem ber of that free-trade area or customs union; or
(b) in case it only has its registered of fice in that Area, has an eff ective and continuous link with the economy of one of the pa rties to that EIA or mem ber of that free-trade area or customs union.
Footnote to Decision No 3
* This Decision has been d rafted i n the understa nding that Contracti ng Parties which intend to avail themselves of it and which also have entered into Partnership and Cooperation Agreements with the Eu ropea n Comm u nities and their Member States containing an article disa pplying those Agreements in favour of the Treaty, will
excha nge letters of understanding which have the legal effect of ma king Article 16 of the Treaty applica ble between them i n relation to this Decision. The exchange of letters shall be com pleted in good time prior to signature.
The preceding text is a certified true copy of the single original deposited in the archives of the Government of the Portuguese Republic.
Le texte qui precede est une copie certifiee conf orme a !'original unique depose dans les archives du gouvernement de la Republique portugaise.
Der vorstehende Text ist eine beglaubigte Abschrif t des einzigen Originals, das im Archiv der Reg_ierung der Portugiesischen Republik hinterlegt ist.
II testo che precede e c opia certificata conforme all ' originale unico depositato negli archivi del Governo della Repubblic a del Portogallo.
El.texto que precede es copia certificada conforme del original l'.mico depositado en los ar c hivos del Gobierno de la Republica Portuguesa .