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Agreement Between the Government of Canada and the Government of the Republic of Benin for the Promotion and Reciprocal Protection of Investments

Table of Contents

Preamble

The Government of Canada and the Government of the People's Republic of Benin, referred to in this Agreement as the "Contracting Parties",

Considering the friendship and cooperation between the two countries and the two peoples;

Recognizing that the promotion and the protection of investments of investors of one Contracting Party in the territory of the other Contracting Party are conducive to the stimulation of mutually beneficial economic activity, the development of economic cooperation between both countries and the promotion of sustainable development;

Determined to create conditions to favour the establishment of a growing number of investments and companies of the Contracting Parties in their respective territories,

Have Agreed as follows:

Chapter I: General Provisions

Article 1: Definitions

For the purpose of this Agreement, the following terms and expressions shall have the meanings herein assigned to them:

"competition authority" means:

"confidential information" means confidential business information or information that is privileged or otherwise protected from disclosure under the law of a Contracting Party;

"counterclaim" means an act by which, within the competence of a Tribunal constituted under Article 26 (Submission of a Claim to Arbitration) or Article 30 (Consolidation), a respondent Contracting Party submits its own claim, during the proceedings;

"covered investment" means, with respect to a Contracting Party, an investment in its territory of an investor of the other Contracting Party existing on the date of coming into force of this Agreement, as well as an investment made or acquired subsequently;

"disputing party" means the investor that has made a claim under Chapter III or the respondent Contracting Party;

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

"existing" means in effect on the date of entry into force of this Agreement;

"financial institution" means a financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Contracting Party in whose territory it is located;

"financial service" means a service of a financial nature, including insurance, and a service accessory or auxiliary to a service of a financial nature;

"ICSID" means the International Centre for Settlement of Investment Disputes established by the ICSID Convention;

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

"information protected under its competition laws" means:

"intellectual property rights" means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders’ rights;

"investment" means:

but "investment" does not mean:

that does not involve the kinds of interests set out in subparagraphs (a) to (j);

"investment of an investor of a Contracting Party" means an investment owned or controlled directly or indirectly by an investor of that Contracting Party;

"investor of a Contracting Party" means a national or an enterprise of a Contracting Party, that seeks to make, is making or has made an investment;

"measure" includes a law, regulation, procedure, requirement or practice;

"national" means:

except that:

"national government" means for Canada, the federal government; and for Benin, the Government of the Republic of Benin;

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

"person" means a natural person or an enterprise;

"person engaged in a cultural industry" means a person engaged in the following activities:

"respondent Contracting Party" means a Contracting Party against which a claim is made under Chapter III;

"right of setoff" means a procedural act by which, within the competence of a Tribunal constituted under Article 26 (Submission of a Claim to Arbitration) or Article 30 (Consolidation), a disputing party presents an application for compensation;

"special arbitral group" means a group of arbitrators constituted at the request of either of the Contracting Parties to render decisions on disputes with respect to the application or interpretation of this Agreement;

"sub-national government" means with respect to Canada, a provincial, territorial or local government;

"taxation authorities" means:

"taxation measure" means any measure relating to direct taxes and indirect taxes;

"territory" means:

"Tribunal" means an arbitration tribunal established under Article 26 (Submission of a Claim to Arbitration) or Article 30 (Consolidation) of this Agreement;

"TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights;

"UNCITRAL Arbitration Rules" means the Arbitration Rules of the United Nations Commission on International Trade Law, in their most recent form; and

"WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.

Article 2: Purpose:

Consistent with this Agreement, each Contracting Party endeavours to promote economic cooperation by encouraging and protecting the investments of investors of the other Contracting Party in its territory.

Article 3: Scope:

1.  This Agreement shall apply to measures adopted or maintained by a Contracting Party relating to:

2.  The obligations in Chapter II of this Agreement apply to a person of a Contracting Party who exercises a regulatory, administrative or any other public prerogative power delegated to that person by that Contracting Party.

Chapter II: Obligations of the Contracting Parties

Article 4: Guiding Principles:

Each of the Contracting Parties shall ensure the promotion of investments of investors of the other Contracting Party as well as the protection of those investments and investors in its territory, consistent with the provisions of the guiding principles of this Chapter, including national treatment, most-favoured-nation treatment, minimum standard of treatment, compensation for losses, compensation for expropriation, transparency, subrogation and corporate social responsibility.

Article 5: National Treatment:

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

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

3. The treatment accorded by a Contracting Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of the Contracting Party of which it forms a part.

Article 6: Most-Favoured-Nation Treatment:

1. Each Contracting Party shall accord to an investor of the other Contracting Party treatment no less favourable than that it accords, in like circumstances, to investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.

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

3. For greater certainty, the treatment accorded by a Contracting Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of a non-Party.

Article 7: Minimum Standard of Treatment:

1. Each Contracting Party shall accord to a covered investment treatment in accordance with the customary international law minimum standard of treatment of aliens, including fair and equitable treatment and full protection and security.

2. The concepts of "fair and equitable treatment" and "full protection and security" in paragraph 1 do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.

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

Article 8: Compensation for Losses:

Notwithstanding subparagraph (2)(b) of Article 19 (Specific Exceptions), each Contracting Party shall accord to an investor of the other Contracting Party, and to a covered investment, non-discriminatory treatment with respect to measures it adopts or maintains relating to compensation for losses incurred by investments in its territory as a result of armed conflict, civil strife or a natural disaster.

Article 9: Senior Management, Boards of Directors and Entry of Personnel:

1. A Contracting Party may not require an enterprise of that Party that is a covered investment to appoint to a senior management position an individual of any particular nationality.

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

3. Subject to its domestic law relating to the entry of aliens, each Contracting Party shall grant temporary entry to nationals employed by an investor of the other Contracting Party who seek to render managerial or executive services, or services that require specialized knowledge, to an investment of that investor in the territory of the Contracting Party.

Article 10: Performance Requirements:

1. A Contracting Party may not impose or enforce the following requirements, or enforce a commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Contracting Party or of a non-Party in its territory:

2. A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements is not inconsistent with subparagraph 1(f).

3. A Contracting Party may not condition the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Contracting Party or of a non-Party, on compliance with the following requirements:

4. (a) Paragraph 3 does not prevent a Contracting Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Contracting Party or of a non Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.

(b) Subparagraph 1(f) does not apply if the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of domestic competition law.

5. Paragraphs 1 and 3 do not apply to a requirement other than the requirements set out in those paragraphs.

6. The provisions of:

Article 11: Expropriation:

1. A Contracting Party may not nationalize or expropriate a covered investment either directly or indirectly through measures having an effect equivalent to nationalization or expropriation ("expropriation"), except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on payment of compensation in accordance with paragraphs 2 and 3. For greater certainty, this paragraph shall be interpreted in accordance with Annex I.

2. The compensation referred to in paragraph 1 must be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation"), and must not reflect a change in value occurring because the intended expropriation had become known earlier. Valuation criteria must include going concern value, asset value including the declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.

3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be paid in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency accrued from the date of expropriation until the date of payment.

4. The affected investor shall have a right under the law of the expropriating Contracting Party to prompt review of its case and of the valuation of its investment by a judicial or other independent authority of that Contracting Party in accordance with the principles set out in this Article.

5. This Article does not apply to the issuance of a compulsory licence granted in relation to intellectual property rights, or to the revocation, limitation or creation of an intellectual property right, to the extent that the issuance, revocation, limitation or creation is consistent with the WTO Agreement.

Article 12: Transfers:

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

2. Each Contracting Party shall permit transfers relating to a covered investment to be made in the convertible currency in which the capital was originally invested, or in another convertible currency agreed to by the investor and the Contracting Party concerned. Unless otherwise agreed by the investor, transfers shall be made at the market rate of exchange in effect on the date of transfer.

3. Notwithstanding paragraphs 1 and 2, a Contracting Party may prevent a transfer through the equitable, non discriminatory and good faith application of its domestic law relating to:

4. A Contracting Party may not require one of its investors to transfer, or penalize one of its investors for failing to transfer, the income, earnings, profits or other amounts derived from, or attributable to, an investment in the territory of the other Contracting Party.

5. Paragraph 4 does not prevent a Contracting Party from imposing a measure through the equitable, non discriminatory and good faith application of its domestic law relating to the matters in subparagraphs 3(a) through 3(e).

6. Notwithstanding the provisions of paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 5, a Contracting Party may prevent or limit transfers by a financial institution to, or for the benefit of, an affiliate of or person related to that institution, through the equitable, non-discriminatory and good faith application of a measure relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions.

7. Notwithstanding paragraph 1, a Contracting Party may restrict transfers of returns in kind in circumstances where it could otherwise restrict those transfers under the WTO Agreement and as set out in paragraph 3.

Article 13: Transparency:

1. Each Contracting Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Contracting Party to become acquainted with them.

2. To the extent possible, each Contracting Party shall:

3. Upon request by a Contracting Party, the other Contracting Party shall provide information on a measure that may have an impact on a covered investment.

Article 14: Subrogation:

1. If a Contracting Party or an agency of a Contracting Party makes a payment to one of its investors under a guarantee or a contract of insurance it has entered into in respect of an investment, the other Contracting Party shall recognize the validity of the subrogation in favour of the first-mentioned Contracting Party or agency to a right or title held by the investor.

2. A Contracting Party or an agency of a Contracting Party, that is subrogated to a right of an investor in accordance with paragraph 1, is entitled to the same rights as those of the investor regarding the investment. Those rights may be exercised by the Contracting Party or an agency of the Contracting Party or by the investor if the Contracting Party or its agency so authorizes.

Article 15: Health, Safety and Environmental Measures:

The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Contracting Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, those measures to encourage the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Contracting Party considers that the other Contracting Party has offered such an encouragement, it may request consultations with the other Contracting Party and the two Contracting Parties shall consult with a view to avoiding the encouragement.

Article 16: Corporate Social Responsibility:

Each Contracting Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Contracting Parties. These principles address issues such as labour, the environment, human rights, community relations and anti-corruption.

Article 17: Taxation Measures:

1. Except as set out in this Article, this Agreement does not apply to a taxation measure.

2. This Agreement does not affect the rights and obligations of a Contracting Party under a tax convention. In the event of inconsistency between this Agreement and a tax convention, that convention prevails.

3. This Agreement does not require a Contracting Party to furnish or allow access to information, which if disclosed, would be contrary to the Contracting Party’s law protecting information concerning the taxation affairs of a taxpayer.

4. Subject to paragraph 2, the provisions of Articles 5 (National Treatment) and 6 (Most-Favoured-Nation Treatment) apply to all taxation measures, other than those on income, capital gains or on the taxable capital of corporations, except that nothing in those Articles shall apply:

5. Provided that the conditions in paragraph 6 are met:

6. An investor may not make a claim with respect to a matter covered under paragraph 5 unless:

7. If, in connection with a claim by an investor of a Contracting Party or a dispute between the Contracting Parties, an issue arises as to whether a measure of a Contracting Party is a taxation measure, a Contracting Party may refer the issue to the taxation authorities of the Contracting Parties. A decision of the taxation authorities shall bind a Tribunal formed pursuant to Chapter III or special arbitral group formed pursuant to Chapter IV. A Tribunal or special arbitral group seized of a claim or a dispute in which the issue arises may not proceed until it receives the decision of the taxation authorities. If the taxation authorities have not decided the issue within six months of the referral, the Tribunal or special arbitral group shall decide the issue.

8. Each Contracting Party shall notify the other Contracting Party by diplomatic note of the identity and of the coordinates of the taxation authorities referred to in this Article.

Article 18: Reservations:

1. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 9 (Senior Management, Boards of Directors and Entry of Personnel) and 10 (Performance Requirements) shall not apply to:

2. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment), 9 (Senior Management, Board of Directors and Entry of Personnel) and 10 (Performance Requirements) do not apply to a measure that a Contracting Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.

3. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Contracting Party under an agreement as set out in Annex III.

Article 19: Specific Exceptions:

1. In respect of intellectual property rights, a Contracting Party may derogate from Article 5 (National Treatment), Article 6 (Most-Favoured-Nation Treatment) and subparagraph (1)(f) of Article 10 (Performance Requirements) in a manner that is consistent with:

2. Articles 5 (National Treatment), 6 (Most-Favoured-Nation Treatment) and 9 (Senior Management, Boards of Directors and Entry of Personnel) do not apply to:

3. Article 6 (Most-Favoured-Nation Treatment) of this Agreement does not apply to financial services.

Article 20: General Exceptions:

1. For the purpose of this Agreement:

2. This Agreement does not prevent a Contracting Party from adopting or maintaining reasonable measures for prudential reasons, such as:

3. This Agreement does not apply to non-discriminatory measures of general application taken by a public entity in pursuit of monetary and related credit or exchange rate policies. This paragraph shall not affect a Contracting Party’s obligations under Article 10 (Performance Requirements) or Article 12 (Transfers).

4. This Agreement does not:

5. This Agreement does not require a Contracting Party to furnish or allow access to information which if disclosed would impede law enforcement or would be contrary to the Contracting Party’s law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy or the confidentiality of the financial affairs and accounts of individual customers of financial institutions.

6. In the course of a dispute settlement procedure under this Agreement:

7. This Agreement does not apply to a measure adopted or maintained by a Contracting Party with respect to a person engaged in a cultural industry.

8. If a right or obligation in this Agreement duplicates one under the WTO Agreement, the Contracting Parties agree that a measure adopted by a Contracting Party in conformity with a waiver decision granted by the WTO pursuant to Article IX of the WTO Agreement is deemed to be also in conformity with this Agreement. Such conforming measure may not give rise to a claim by an investor of one Contracting Party against the other Contracting Party under Chapter III of this Agreement.

Article 21: Denial of Benefits:

A Contracting Party may deny the benefits of this Chapter to an investor of the other Contracting Party that is an enterprise of that Contracting Party and to investments of that investor if investors of a non-Party or of the denying Contracting Party own or control the enterprise and:

Chapter III: Settlement Of Disputes Between An Investor Aand The Host Party

Article 22: Establishment of a Dispute Settlement Mechanism:

Without prejudice to the rights and obligations of the Contracting Parties under Chapter IV, the Contracting Parties hereby establish a mechanism for the settlement of investment disputes.

Article 23: Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise:

1. An investor of a Contracting Party may submit to arbitration under this Chapter a claim that:

2. An investor of a Contracting Party, on behalf of an enterprise of the respondent Contracting Party that is a juridical person that the investor owns or controls directly or indirectly, may submit to arbitration under this Chapter a claim that:

Article 24: Conditions Precedent to Submission of a Claim to Arbitration

1. The disputing parties shall hold consultations and attempt to settle a claim amicably before an investor may submit a claim to arbitration. Unless the disputing parties agree to a longer period, consultations shall be held within 60 days of the submission of the notice of intent to submit a claim to arbitration under subparagraph 2(c). The place of consultation shall be the capital of the respondent Contracting Party, unless the disputing parties otherwise agree.

2. An investor may submit a claim to arbitration under Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise) only if:

3. Subparagraphs 2(e)(ii), (iii) and 2(f)(ii) do not apply to proceedings before a judicial or administrative tribunal or court under the domestic law of the respondent Contracting Party for injunctive, declaratory or other extraordinary relief, not involving the payment of damages.

4. The disputing investor or the enterprise shall deliver the consent and waiver required under paragraph 2 to the respondent Contracting Party and the investor shall include them in the submission of a claim to arbitration. A waiver from the enterprise under subparagraphs 2(e)(iii) or 2(f)(ii) is not required if the respondent Contracting Party has deprived the investor of control of the enterprise.

Article 25: Special Rules Regarding Financial Services

1. For all claims in respect of financial services concerning a financial institution of a Contracting Party or an investor of a Contracting Party, and investments of that investor, in a financial institution in the respondent Contracting Party’s territory, this Chapter applies only in respect of claims that the respondent Contracting Party has breached an obligation under Article 11 (Expropriation), Article 12 (Transfers) or Article 21 (Denial of Benefits).

2. Where an investor or respondent Contracting Party claims that a dispute involves measures adopted or maintained by the respondent Contracting Party relating to financial institutions of the other Contracting Party or investors of the other Contracting Party and their investments in financial institutions in the respondent Contracting Party’s territory, or where the respondent Contracting Party invokes paragraph 6 of Article 12 (Transfers) or paragraph 2 or 3 of Article 20 (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 2 of Article 28 (Arbitrators), have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.

3. Where an investor submits a claim to arbitration under this Chapter, and the respondent Contracting Party invokes paragraph 6 of Article 12 (Transfers), paragraph 2 or 3 of Article 20 (General Exceptions), at the request of that Contracting Party, the Tribunal shall request a report in writing from the Contracting Parties on the issue of whether and to what extent the invoked paragraph is a valid defence to the claim of the investor. The Tribunal may not proceed pending receipt of a report under this Article.

4. Where the Tribunal requests a report under paragraph 3, the Contracting Parties shall prepare a written report. If the Contracting Parties disagree, they shall submit the issue to a special arbitral group established in accordance with Chapter IV that shall prepare the written report. The report shall be transmitted to the Tribunal and be binding on it.

5. The Tribunal may decide the matter where, within 70 days of the referral by the Tribunal, no request for the establishment of a special arbitral group pursuant to paragraph 4 has been made and no report has been received by the Tribunal.

Article 26: Submission of a Claim to Arbitration

1. An investor that meets the conditions precedent in Article 24 (Conditions Precedent to Submission of a Claim to Arbitration) may submit a claim to arbitration under:

2. Except to the extent modified by this Agreement, the arbitration is governed by the arbitration rules applicable under paragraph 1 that are in effect on the date that the claim is submitted to arbitration under this Chapter.

3. The Contracting Parties may adopt supplemental rules of procedure that complement the arbitration rules listed in paragraph 1 and these rules apply to the arbitration. The Contracting Parties shall promptly publish the supplemental rules of procedure that they adopt or otherwise make them available in such a manner as to enable interested persons to become acquainted with them.

4. A claim is submitted to arbitration under this Chapter when:

5. Each Contracting Party shall notify the other Contracting Party by diplomatic note of the place of delivery of notices and other documents.

Article 27: Consent to Arbitration

1. Each Contracting Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Agreement. Failure to meet a condition precedent listed in Article 24 (Conditions Precedent to Submission of a Claim to Arbitration) nullifies that consent.

2. The consent given in paragraph 1 and the submission by an investor of a claim to arbitration satisfy the requirement of:

Article 28: Arbitrators

1. Except in respect of a Tribunal established under Article 30 (Consolidation), and unless the disputing parties agree otherwise, the Tribunal shall be composed of three arbitrators. One arbitrator shall be appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, shall be appointed by agreement of the disputing parties.

2. Arbitrators shall have expertise or experience in public international law, international investment or international trade rules, or the resolution of disputes arising under international investment or international trade agreements. Arbitrators shall be independent of, and not be affiliated with or take instructions from, a disputing party.

3. If the disputing parties do not agree on the remuneration of the arbitrators before the Tribunal is constituted, the prevailing ICSID rate for arbitrators shall apply.

4. If a Tribunal, other than a Tribunal established under Article 30 (Consolidation), has not been constituted within 90 days from the date that a claim is submitted to arbitration, a disputing party may ask the Secretary-General of ICSID to appoint the arbitrator or arbitrators not yet appointed. The Secretary-General of ICSID shall make the appointment at his or her own discretion and, to the extent practicable, this appointment shall be made in consultation with the disputing parties. The Secretary-General of ICSID may not appoint as presiding arbitrator a national of a Contracting Party.

Article 29: Agreement to Appointment of Arbitrators

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

Article 30: Consolidation

1. A disputing party that seeks a consolidation order under this Article shall request that the Secretary-General of ICSID establish a Tribunal and shall specify in the request:

2. The disputing party shall deliver a copy of the request to the respondent Contracting Party or investors against which the order is sought.

3. Within 60 days of receiving the request, the Secretary-General of ICSID shall establish a Tribunal composed of three arbitrators. The Secretary-General of ICSID shall appoint one member who is a national of the respondent Contracting Party, one member who is a national of the Contracting Party of the investors that submitted the claims, and a presiding arbitrator who is not a national of a Contracting Party.

4. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by this Chapter.

5. If a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 26 (Submission of a Claim to Arbitration) have a question of law or fact in common, the Tribunal may, in the interest of fair and efficient resolution of the claims and after hearing the respondent Contracting Party and the disputing investors, by order:

6. Where a Tribunal has been established under this Article, an investor that has submitted a claim to arbitration under Article 26 (Submission of a Claim to Arbitration) and that has not been named in a request made under paragraph 1 may make a written request to the Tribunal that it be included in an order made under paragraph 5, and shall specify in the request:

7. An investor referred to in paragraph 6 shall deliver a copy of its request to the disputing parties named in a request under paragraph 1.

8. A Tribunal established under Article 26 (Submission of a Claim to Arbitration) does not have jurisdiction to decide a claim, or a part of a claim, over which a Tribunal established under this Article has assumed jurisdiction.

9. On application of a disputing party, a Tribunal established under this Article, pending its decision under paragraph 5, may order that the proceedings of a Tribunal established under Article 26 (Submission of a Claim to Arbitration) be stayed unless the latter Tribunal has already adjourned its proceedings.

Article 31: Access of Contracting Parties to Documents and Hearings

1. The respondent Contracting Party shall deliver to the other Contracting Party a copy of the notice of intent to submit a claim to arbitration and of any other document within 30 days of the date those documents have been delivered to the respondent Contracting Party. The other Contracting Party is entitled, at its cost, to receive from the respondent Contracting Party a copy of the evidence that has been tendered to the Tribunal, copies of pleadings filed in the arbitration, and the written argument of the disputing parties. The Contracting Party receiving such information shall treat the information as if it were a respondent Contracting Party.

2. The other Contracting Party has the right to attend hearings held under this Chapter. Upon written notice to the disputing parties, the other Contracting Party may make submissions to a Tribunal on questions of interpretation of this Agreement.

Article 32: Place of Arbitration

The disputing parties may agree on the place of arbitration under the arbitration rules applicable under paragraph 1 of Article 26 (Submission of a Claim to Arbitration) or paragraph 4 of Article 30 (Consolidation). If the disputing parties fail to agree, the Tribunal shall determine the place in accordance with the applicable arbitration rules, provided that the place shall be in the territory of a Contracting Party or of a third State that is a party to the New York Convention.

Article 33: Public Access to Hearings and Documents

1. A Tribunal award under this Chapter shall be publicly available, subject to the redaction of confidential information. All other documents submitted to, or issued by, the Tribunal shall be publicly available unless the disputing parties otherwise agree, subject to the redaction of confidential information.

2. Hearings held under this Chapter shall be open to the public. The Tribunal may hold portions of hearings in camera to the extent necessary to ensure the protection of confidential information.

3. A disputing party may disclose to other persons in connection with the arbitral proceedings such unredacted documents as it considers necessary for the preparation of its case, but it shall ensure that those persons protect the confidential information in those documents.

4. The Contracting Parties may share with officials of their respective national and sub-national governments all relevant unredacted documents in the course of dispute settlement under this Chapter, but they shall ensure that those persons protect the confidential information in those documents.

5. If a Tribunal’s order designates information as confidential and a Contracting Party’s law on access to information requires public access to that information, the Contracting Party’s law on access to information prevails. However, the Contracting Party should try to apply its law on access to information so as to protect information that the Tribunal’s order has designated as confidential.

Article 34: Submissions by a Non-Disputing Party

A Tribunal has the authority to consider and accept written submissions from a person or entity that is not a disputing party with a significant interest in the arbitration. The Tribunal shall ensure that a non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice a disputing party.

Article 35: Governing Law

1. A Tribunal established under this Chapter shall decide the issues in dispute consistently with this Agreement and applicable rules of international law. A joint interpretation by the Contracting Parties of a provision of this Agreement shall bind a Tribunal established under this Chapter, and an award under this Chapter must be consistent with that interpretation.

2. Where a respondent Contracting Party asserts as a defence that the measure alleged to be a breach is within the scope of a reservation or exception set out in paragraph 1 of Article 18 (Reservations) or in Annex II or Annex III, on request of the respondent Contracting Party, the Tribunal shall request the joint interpretation of the Contracting Parties on the issue. Within 60 days of the delivery of the request, the Contracting Parties shall submit in writing their joint interpretation to the Tribunal. If the Contracting Parties fail to submit their joint interpretation within 60 days of the Tribunal’s request, the Tribunal shall decide the issue. The joint interpretation of the Contracting Parties is binding on the Tribunal.

Article 36: Expert Reports

1. Subject to paragraph 2, a Tribunal may appoint an expert to report to it in writing on a factual issue concerning environmental, health, safety or other scientific matter raised by a disputing party, subject to such terms and conditions as the disputing parties may decide.

2. The Tribunal may not appoint an expert under paragraph 1 if the disputing parties agree that the Tribunal may not do so.

3. Paragraph 1 does not affect the appointment of other kinds of experts where the appointment is authorized by the applicable arbitration rules.

Article 37: Interim Measures of Protection and Final Award

1. A Tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the Tribunal’s jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal’s jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise). For the purposes of this paragraph, an order includes a recommendation.

2. Where a Tribunal makes a final award against the respondent Contracting Party, the Tribunal may award, separately or in combination, only:

The Tribunal may also award costs in accordance with the applicable arbitration rules.

3. Subject to paragraph 2, where a claim is made under paragraph 2 of Article 23 (Claim by an Investor of a Contracting Party on Its Own Behalf or on Behalf of an Enterprise):

4. A Tribunal may not order the respondent Contracting Party to pay punitive damages.

Article 38: Finality and Enforcement of an Award

1. An award made by a Tribunal has no binding force except between the disputing parties and in respect of that particular case.

2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.

3. A disputing party may not seek enforcement of a final award until:

4. Each Contracting Party shall provide for the enforcement of an award in its territory.

5. A claim that is submitted to arbitration under this Chapter shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.

Article 39: Receipts under Insurance or Guarantee Contracts

In an arbitration under this Chapter, a respondent Contracting Party may not assert as a defence, counterclaim, right of setoff, or otherwise that the investor has received or will receive, under an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.

Chapter IV: Dispute Settlement Procedure Between Contracting Parties

Article 40: Amicable Settlements

All disputes between the Contracting Parties relating to the interpretation or application of this Agreement shall be, whenever possible, settled amicably by consultations within the Joint Commission.

Article 41: Submission to a Special Arbitral Group

1. If a dispute cannot be settled by consultation within the Joint Commission, it shall, at the request of one of the Contracting Parties, be submitted to a special arbitral group for decision.

2. A special arbitral group shall be constituted for each dispute. Within two months after receipt through diplomatic channels of the request for arbitration, each Contracting Party shall appoint one member to the special arbitral group. The two members shall then select a national of a third State who, upon approval by the two Contracting Parties, shall be appointed Chair of the special arbitral group. The Chair shall be appointed within 60 days from the date of appointment of the other two members of the special arbitral group.

Article 42: Referral to the International Court of Justice for Appointments

1. In the case where the Contracting Parties have not proceeded with the appointments within the time limits set out in Article 41 (Submission to a Special Arbitral Group), each Contracting Party may invite the President of the International Court of Justice to proceed with the appointments.

2. If the President of the International Court of Justice is a national of one of the Contracting Parties or if he or she cannot fulfil this function for another reason, the Vice President shall be invited to proceed with the required appointments.

3. If the Vice-President is a national of one of the Contracting Parties, or if he or she cannot fulfil this function for another reason, the member of the International Court of Justice who is next in rank and who is not a national of one of the Contracting Parties shall be invited to proceed with the appointments.

Article 43: Profile of Arbitrators

1. Arbitrators shall have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent of, and not be affiliated with or take instructions from, a Contracting Party.

2. When a Contracting Party determines that a dispute involves measures adopted relating to financial institutions or to investors or their investments in those institutions or when a Contracting Party invokes paragraph 6 of Article 12 (Transfers) or paragraph 2 or 3 of Article 20 (General Exceptions), the arbitrators shall, in addition to the criteria set out in paragraph 1, have expertise or experience in financial services or practice, which may include the regulation of financial institutions.

Article 44: Decision of the Special Arbitral Group

The special arbitral group shall determine its own procedures and shall render its decision by a majority of votes. The decision of the special arbitral group is binding on the two Contracting Parties. Unless otherwise agreed, the decision of the special arbitral group shall be rendered within the six months of the appointment of the Chair.

Article 45: Costs of the Procedure

1. Each of the Contracting Parties shall bear the costs of the member of the special arbitral group that it appointed as well as the costs of its representation in the arbitral proceedings. The costs related to the Chair and any remaining costs shall be borne equally by the Contracting Parties.

2. The special arbitral group may, however, order that a higher percentage of costs be supported by one of the Contracting Parties, and this decision is binding on the Contracting Parties.

Article 46: Implementation of the Decision of the Special Arbitral Group

Within 60 days of the decision of a special arbitral group, the Contracting Parties shall reach an understanding regarding the manner in which to resolve their dispute. The understanding shall normally implement the decision of the special arbitral group. If the Contracting Parties fail to reach an understanding, the Contracting Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the special arbitral group.

Chapter V: Joint Commission

Article 47: Creation of the Joint Commission

The Contracting Parties hereby create a Joint Commission composed of their representatives.

Article 48: Mission of the Joint Commission

1. The meetings of the Joint Commission may cover the following issues:

2. In the application of this Chapter, each Contracting Party shall give sympathetic consideration to the requests of the other Contracting Party.

3. Following the meetings described in this Article, the Contracting Parties may implement all measures that they decide on, including elaborate and adopt rules that complement the arbitration regulations applicable under Chapter III of this Agreement.

Article 49: Operation of the Joint Commission

The Joint Commission generally meets once every two years for an ordinary session. Extraordinary sessions meet at the request of a Contracting Party. The sessions shall take place alternately on the territory of each Contracting Party or by way of any technical means.

Chapter VI: Final Provisions

Article 50: Scope of Obligations

Each of the Contracting Parties shall undertake all measures necessary to put into effect this Agreement including, unless otherwise provided, to ensure compliance with this Agreement, in the case of Canada, by its sub national governments, and, in the case of Benin, by its territorial communities.

Article 51: Exclusions

Chapters III and IV of this Agreement do not apply to questions covered in Annex IV.

Article 52: Application and Entry into Force

1. Annexes I (Expropriation), II (Reservations for Future Measures), III (Exceptions from Most-Favoured-Nation Treatment), and IV (Exclusions from Dispute Settlement) are an integral part of this Agreement.

2. Each of the Contracting Parties shall notify by writing the other Contracting Party of the completion of procedures required in its territory for the entry into force of this Agreement. The Agreement shall enter into force on the date of the last notification.

3. This Agreement may be amended by agreement of the Contracting Parties, that is through their written mutual consent.

4. This Agreement shall remain in force unless a Contracting Party notifies the other Contracting Party in writing of its intention to terminate it. The termination of this Agreement shall be effective one year after notice of termination has been received by the other Contracting Party.

5. Articles 1 to 51 inclusively of this Agreement and paragraphs 1 and 2 of this Article remain in force for a period of 15 years in respect of investments or commitments to invest made prior to the date when the termination of this Agreement becomes effective.

 

IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.

DONE in duplicate at ___________________ , this ___________________ day of___________________ 20 __, in the English and French languages, each version being equally authentic.

______________________________
FOR THE GOVERNMENT
OF CANADA

 

______________________________
FOR THE GOVERNMENT
OF THE REPUBLIC
OF BENIN

Annex I: Expropriation

The Contracting Parties confirm their shared understanding that:

Annex II: Reservations for Future Measures

Schedule of Canada

In accordance with paragraph 2 of Article 18 (Reservations) of this Agreement, Canada reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:

Schedule of the Republic of Benin

In accordance with paragraph 2 of Article 18 (Reservations) of this Agreement, Benin reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:

Annex III: Exceptions from Most-Favoured-Nation Treatment

Schedule of Canada

1. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Canada under a bilateral or multilateral international agreement in force or signed prior to January 1, 1994.

2. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Canada under an existing or future bilateral or multilateral agreement:

Schedule of the Republic of Benin

1. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Benin under a bilateral or multilateral international agreement in force or signed prior to January 1, 1994.

2. Article 6 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by Benin under an existing or future bilateral or multilateral agreement that, as the case may be:

Annex IV: Exclusions from Dispute Settlement

A decision taken by Canada, following a review made under the Investment Canada Act whether or not to authorize an investment subject to review, is not subject to the dispositions on dispute settlement of Chapter III (Dispute Settlement between an Investor and the Host Party) or Chapter IV (Dispute Settlement Procedure between the Contracting Parties) of this Agreement.

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