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32.1 Cooperation

The Parties agree to provide Notice to each other of any controversy or dispute, and thereafter:

(a) To seek amicable resolution of any disputes concerning the interpretation or application of this Agreement;
(b) To submit any controversy or dispute relating exclusively to technical matters to an Independent Sole Expert within ten (10) Days after a Party provides Notice to the other of a dispute not resolved amicably. The decision of such Independent Sole Expert must be rendered within 30 Days. Such decision shall be final, and not subject to appeal. In case of disagreement as to the technical nature of the difference or dispute or in case of disagreement between Parties over the choice of the Independent Sole Expert, the controversy or dispute will be submitted to arbitration in accordance with the provisions of this Agreement. The Independent Sole Expert shall act on the following basis:

(a) The Independent Sole Expert shall act as expert and not as arbitrator;
(b) The items or items in dispute shall be notified to the Independent Sole Expert in writing by the Parties within ten (10) Days of the Independent Sole Expert’s appointment;
(c) The Independent Sole Expert shall decide the procedure to be followed in the determination;
(d) The determination of the Independent Sole Expert shall (in the absence of manifest error) be final and binding on the Parties; and
(e) The costs of the determination, including fees and expenses of the Independent Sole Expert, shall be borne equally between the Parties.

32.2 Arbitration

All disputes, controversies or claims arising out of or related to this Agreement, or the breach thereof, shall be submitted to the International Center for Settlement of Investment Disputes (“ICSID”).

(a) The State and the Company hereby consent to submit to ICSID any dispute arising out of or related to this agreement for settlement by conciliation followed, if the dispute remains unresolved within ninety (90) Days of the communication of the report of the Conciliation Commission to the parties, by arbitration pursuant to the Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter the “ICSID Convention”).
(b) The State irrevocably waives any claim to state or sovereign immunity:

(i) In respect to proceedings on the merits of any claim which is the subject matter of the arbitration;
(ii) In respect of proceedings to recognise or to enforce or to execute any arbitration award including, without limitation, immunity from service of process and from the jurisdiction of any court; and
(iii) In respect of the execution of any such award against the assets or property of the State assets held by the State for commercial purposes or otherwise.

(c) For purposes of the ICSID Convention and of this Agreement:

(i) the Parties expressly stipulate that the transaction to which this Agreement relates is an investment;
(ii) either [it is hereby stipulated by the Parties that the investor is a national of [name of an ICSID Contracting State] or [the Parties agree that, although the Company is a national of the State, it is controlled by nationals of [name(s) of other ICSID Contracting State(s)] and shall be treated as a national of said State[s] for the purposes of the ICSID Convention.

(d) Any arbitral tribunal constituted pursuant to this Agreement shall consist of three arbitrators, one appointed by each party, and an arbitrator, who shall be Chairman of the Administrative Council of the tribunal, appointed by agreement of the parties or, failing such agreement, by the President of ICSID.
(e) If ICSID declares itself not to be competent shall be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with such Rules. The arbitration shall be held in London, England U.K., in the English language. The arbitral award shall be in writing, and shall be final and binding on the Parties. Judgment on the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance for the award and an order of enforcement, as the case may be.
(f) Unless this Agreement has already been repudiated or terminated, the Parties shall continue to observe and perform all the obligations contained in, and may exercise their rights under, this Agreement notwithstanding the reference of any dispute to arbitration. No Party shall be entitled to exercise any rights or election arising in consequence of any alleged default by any other arising out of the subject matter of the dispute until the dispute has been resolved by arbitration or by agreement of the Parties as the case may be.

Example 1
16.1 Negotiation.
Prior to submitting any Dispute to mediation or arbitration, the Parties shall attempt in good faith promptly to resolve any Dispute by negotiations between or among their executive officers, as appropriate. The disputing Party shall give the other Party Notice of the Dispute. The executive officers shall meet at a mutually acceptable time and place within thirty (30) Days after the date of the disputing Party’s Notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the Dispute. Nothing in this Section 16.1 shall be deemed to limit a Party’s right to submit a Dispute to mediation or arbitration as herein provided if the Dispute has not been resolved to its satisfaction no later than forty-five (45) Days after Notice of the Dispute has been given by a Party.

16.2 Arbitration of Disputes.

(a) All Disputes between the Parties that are not resolved within ninety (90) Days after the delivery of a Notice pursuant to Section 16.1 by negotiation conducted pursuant to Section 16.1 shall exclusively be resolved by final and binding arbitration pursuant to Section 16.5; provided, however, that all Environmental Disputes between the Parties shall be subject to prior mediation as provided in Section 16.3(a), and if not resolved by such mediation within the period specified in Section 16.3(b), shall be resolved by final and binding arbitration pursuant to Section 16.5; and provided further that all Transfer Pricing Disputes shall be subject to resolution as provided in Section 16.4(a), and if not resolved by such mediation within the period specified in Section 16.4(b), shall be resolved by final and binding arbitration pursuant to Section 16.5. No exhaustion of local remedies by Company shall be required prior to submission of any Dispute to arbitration pursuant to the provisions of this Article 16.
(b) The Parties hereby irrevocably waive any right to institute, and irrevocably covenant not to institute or permit to be instituted on their behalf, any litigation, arbitration, mediation, conciliation or other legal or administrative proceeding with respect to any Dispute, other than as provided in this Article 16 or the institution of any proceedings necessary for the recognition and enforcement of any arbitral award as provided in this Article 16, in any jurisdiction (including [countries], or in any other place where relevant Parties have assets or may be found). Nothing in this Agreement shall limit the rights of any Party to institute proceedings to secure, in any court of competent jurisdiction, the recognition and enforcement of any arbitral decision or award made in an arbitration proceeding conducted pursuant to Section 16.5, where such proceedings are required for the enforcement of such decision or award.
(c) THE STATE waives any right to assert any defense of sovereign immunity as to it and its property in respect of: (i) the institution of any arbitration proceeding pursuant to this Agreement, or the grant of interim relief or provisional measures in connection with such a proceeding; and (ii) the enforcement and execution of any award rendered by an arbitral tribunal pursuant to this Article 16.
(d) No Party shall be entitled to recover from any other Party in any arbitration proceeding any punitive damages, or except as provided in Section 7.15 any incidental, special, indirect or consequential damages and the arbitrators shall not have jurisdiction or authority to award any such damages.
(e) The prevailing Party in any arbitration proceeding brought pursuant to this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses relating to such arbitration proceedings, including arbitration costs and reasonable attorneys’ fees. The prevailing Party in any legal action brought to confirm or enforce an arbitral award shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses relating to such judicial proceedings, including court costs and reasonable attorneys’ fees. If neither Party prevails as to all matters in Dispute (for example, because there are multiple claims or successful counterclaims), the arbitrators shall have the authority to allocate the costs and expenses of the arbitration proceedings between the Parties as they deem appropriate, taking into account which Party has prevailed on particular claims in Dispute.

[…]

16.5 Arbitration under the International Chamber of Commerce Rules.
The Parties hereby irrevocably agree that any Dispute (including any Disputes not timely resolved by mediation pursuant to Section 16.3 or Section 16.4(a)) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The arbitration shall be conducted in accordance with the ICC Arbitration Rules in effect on the date the arbitration proceeding is instituted, except as the ICC Arbitration Rules are modified by this Article 16 or by subsequent written agreement of the Parties.
[additional arbitration rules]

Example 2
Arbitration
37.

(1)Any dispute or difference between the State and the Company arising out of or in connection with this Agreement, the construction of this Agreement or as to the rights, duties or liabilities of either of them under this Agreement or as to any matter to be agreed upon between them under this Agreement shall in default of agreement between them and in the absence of any provision in this Agreement to the contrary be referred to and settled by arbitration under the provisions of the [Arbitration Act] and notwithstanding section [x] of that Act each party may be represented before the arbitrator by a duly qualified legal practitioner or other representative.
(2) Except where otherwise provided in this Agreement, the provisions of this Clause shall not apply to any case where the State, the Minister or any other Minister in the Government of the said State is by this Agreement given either expressly or impliedly a discretionary power.
(3) The arbitrator of any submission to arbitration under this Agreement is hereby empowered upon the application of either of the parties to the arbitration to grant in the name of the Minister any interim extension of any period or variation of any date referred to herein which having regard to the circumstances may reasonably be required in order to preserve the rights of that party or of the parties to the arbitration and an award may in the name of the Minister grant any further extension or variation for that purpose.

Example 3
Section 26 – Arbitration

26.1 Submission to Arbitration.

(a) Any dispute, controversy, or claim between the (Government) and the (Concessionaire) arising out of, in relation to or in connection with this Agreement or its formation, or the validity, interpretation, performance, termination, enforceability or breach of this Agreement for which resolution by submission to an expert is not specifically provided elsewhere in this Agreement shall be exclusively and finally settled by binding and enforceable arbitration under the then prevailing rules of arbitration of UNCITRAL (the “UNCITRAL Rules”). The law applicable to any arbitration shall be determined pursuant to Section 29 below. In the event of any conflict between the UNCITRAL Rules and this Section 26, the provisions of this Section 26 shall govern. Arbitration hereunder shall be the parties’ exclusive remedy and no party to arbitration shall be required to exhaust any local administrative or judicial remedy, provided that in a dispute involving a violation of Law, the (Company) shall not initiate arbitration prior to a final administrative determination of a violation.
(b) Either of the parties to such dispute may institute arbitration proceedings by giving Notice to the other party and notice to the International Chamber of Commerce (“ICC”), including in each a statement of the issues in dispute.

26.2 Nationality for Purposes of Arbitration. Notwithstanding the incorporation of the (Company) in (Country) it shall be treated under this Section 26 as a Person that is a national of (Country) for purposes of any arbitration pursuant to this Agreement.
26.3 Arbitrators. Any arbitral tribunal constituted pursuant to this Agreement shall consist of one arbitrator to be appointed by the (Government), one arbitrator to be appointed by the (Company), and one arbitrator, who shall be the president of the tribunal and shall be a citizen neither of (Country) nor of (Country) (or of any other state of which a party owning shares in (Company) is a national), to be appointed by the ICC. No such arbitrator shall have an interest in the matters in dispute.
26.4 Single Arbitrator. If the parties agree, they may jointly request that any matter subject to arbitration under this Agreement shall instead be referred for resolution by a single arbitrator to be appointed by agreement between them. In the absence of agreement as to the choice of arbitrator the ICC, or of any successor entity as provided for by Section 26.9 below, shall make the appointment. The decision of the single arbitrator shall be rendered pursuant to Section 26.6 below (except as regards the requirement for a decision by majority vote) and shall be final and binding unless appealed by any party to a full panel of arbitrators appointed as provided in this Section 26.3, who shall examine the single arbitrator’s decision only as to manifest error of law, findings of fact that are not supported by any credible evidence, and abuse of authority, misconduct or other unauthorized act by the single arbitrator.
26.5 Venue and Other Items. Arbitration proceedings conducted pursuant to this Agreement shall be held in (Country), or such other place as the parties may agree, and shall be conducted in the English language. The parties submit to the jurisdiction of the Courts of (Country) for the limited purpose of enforcing this agreement to arbitrate. Each party shall bear equally the costs and fees incurred or imposed by the ICC; provided that the arbitral tribunal may decide in its award how the costs and fees are allocated between the parties. Any procedural issues that cannot be determined under UNCITRAL Rules shall be determined pursuant to applicable Law as set forth in Section 29 below.
26.6 Award. The arbitrators shall, by majority vote, render a written decision which shall be public stating the reasons for their award within 3 months after any hearing conducted has been concluded. Any monetary award shall be assessed and payable in Dollars (determined at the Prevailing Market Rate of Exchange if the award involves an obligation expressed in any currency other than Dollars) through a bank designated by the recipient. Each party shall bear its own costs and attorney fees. Neither party shall have any liability for either consequential damages (except for purposes of set-off) or exemplary or punitive damages, but interest at a rate not to exceed the London Interbank Offering Rate (“LIBOR”) existing at the time of such award, plus one percentage point, multiplied by the amount of the award, shall be assessed from the date of any monetary award until its satisfaction. If LIBOR should cease to be reported, then the rate to be applied shall be another substitute rate agreed to by a majority of the arbitrators. If the decision of the arbitral tribunal is adverse to either party, then the arbitral tribunal may, in its discretion, specify a reasonable period of grace to cure any defect or default on the part of such party, provided that such period of grace shall not exceed 180 days for the making of any payment required by such award.
26.7 Reservation of Rights. The right to refer a claim or dispute to arbitration hereunder shall not be affected by the fact that a claimant or respondent has received full or partial compensation from another Person for a loss or injury that is the object of the claim or dispute, and any such other Person may participate in such proceedings by right of subrogation.
26.8 Nature of Award. The parties agree that, subject to Section 26.6 hereof, the arbitral award of any arbitral tribunal constituted pursuant to this Agreement may contain such orders (including orders for equitable relief or monetary damages) in respect of or affecting any of the parties (and any loss or damage suffered by any of them) as such arbitral tribunal determines to be appropriate in the circumstances, provided, that, the arbitrators may not award specific performance or other similar equitable remedies against either party. The parties, subject to their respective obligations contained elsewhere in this Agreement, shall take all such actions as are necessary to give full and complete effect to the award which, in accordance with its terms, shall be binding upon and enforceable against them.
26.9 General. The consent to the jurisdiction of the ICC as set forth in this Section 26 shall equally bind any successor or successors-in-interest to each party to this Agreement. Should the ICC be replaced by, or their functions be substantially conferred upon or be transferred to, any new international body of a similar type and competence, each party shall have the right to submit any dispute to such body for settlement by arbitration in accordance with the foregoing provisions of this Section 26. The provisions of this Section 26 shall be severable from the remainder of this Agreement and shall remain in full force and effect notwithstanding termination of this Agreement.

Example 4
Article 8
Arbitration
8.1 The Parties agree:

(a) to seek amicable resolution of any disputes concerning the interpretation or application of this Agreement;
(b) in the case of any controversy or dispute relating exclusively to technical matters, including Work Programs and Budgets, to submit such controversy or dispute to any expert recognized for his technical knowledge, chosen jointly by the Parties, and not being of either of the Parties’ nationality or related to them. The decision of such expert must be rendered within 30 days. Such decision shall be final, and not subject to appeal. In case of disagreement as to the technical nature of the difference or dispute or in case of disagreement between Parties over the choice of the expert, the controversy or dispute will be submitted to arbitration in accordance with the provisions of 8.2.
The expenses of technical arbitration shall be split equally between the Parties.

8.2 Subject to the provisions of Article 8.1, any controversy or dispute relating to this Agreement shall be settled by arbitration in accordance with the Convention for Settlement of Investment Disputes between States and nationals of other States in effect since October 14, 1966 (hereafter “the Convention”).
In all cases of arbitration:

(a) arbitration shall take place in (Country) unless the Parties decide otherwise;
(b) the language of the arbitration shall be (Language), with translation into English;
(c) the costs of the arbitration shall be borne by the losing Party.

8.3 For the purposes of arbitration, the Parties agree that the transactions to which this Agreement relates constitutes an investment within the meaning of Article 25(1) of the Convention.
8.4 In case, for whatever reason, the International Center for Settlement of Investment Disputes should not accept jurisdiction or should reject the arbitration request, the dispute shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce and the remaining provisions of Article 8.2 shall apply. Arbitration shall be conducted by one sole arbitrator appointed by mutual agreement of the Parties. This arbitrator shall be of a nationality other than that of the Parties and shall have extended experience in the mining field.
In case the Parties cannot agree on the choice of the arbitrator, arbitration shall be conducted by three arbitrators names in accordance with the rules and regulations of the International Chamber of Commerce.
8.5 The Parties agree to execute the decision rendered by the arbitrators without delay and hereby waive any rights of appeal. The execution of the decision may be carried out by any tribunal having jurisdiction.

Example 5
14. Chapter Fourteen: Dispute Resolution

14.1. Any disputes between the Parties arising out of or in connection with this Agreement shall be settled by the Parties first attempting in good faith to negotiate a resolution and if a negotiated resolution to the dispute is not agreed to within 60 (sixty) Working Days of the date of a Party’s request in writing for such negotiation, or such other time period as may be agreed, then the dispute shall be settled in accordance with Clause 14.2. No notice under Clause 10.7 shall be issued if the Parties are in dispute over the subject matter of this Agreement.
14.2 If a dispute is not settled by negotiation in accordance with Clause 14.1, it shall be resolved by binding arbitration in accordance with the procedures under the Arbitration Rules of the United Nations Commission on International Trade Law (the “UNCITRAL Rules”) as in force at the time of the dispute. Accordingly, the following shall apply:

14.2.1. the number of arbitrators shall be 3 (three);
14.2.2. the 3 (three) arbitrators shall be appointed in accordance with rules 7 and 8 of the UNCITRAL Rules;
14.2.3. the language of the arbitration shall be English;
14.2.4. the arbitrators shall apply the laws and regulations of (Country) to the interpretation of the Investment Agreement;
14.2.5. the place of arbitration shall be in London, United Kingdom; and
14.2.6. the arbitral proceedings shall be administered under the UNCITRAL Rules by the London Court of International Arbitration.

14.3. The arbitral award shall be final and binding on the Parties. Judgment on the award may be entered by any court having competent jurisdiction, provided that an arbitral award shall first be presented in an appropriate court of (Country) for execution and enforcement. If such execution and enforcement has not occurred within 30 (thirty) days of presentation, the award may be presented in any other court having competent jurisdiction. The Parties hereby commit to fulfill the execution and enforcement of the arbitral award and shall not raise any defense to its execution and enforcement.
14.4. The provisions of this Clause 14 shall continue to apply to any dispute that arises during the term of this Agreement or any dispute that occurs after the expiry or earlier termination of this Agreement in regard to activities arising out of or in connection with this Agreement.

REFER TO MMDA DISCLAIMERS AND MMDA USER’S GUIDE
PRIOR TO ANY USE OF THIS DOCUMENT.

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