1. Each Contracting Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other Contracting Party may make with respect to any matter affecting the implementation of this Agreement.
2. Any dispute between the Contracting Parties as to the interpretation and application of this Agreement, not satisfactorily adjusted by diplomacy, shall be referred for decision to an arbitration board. Such arbitration board shall be constituted for each dispute in the following way. Within sixty days from the date of receipt by either Contracting Party from the other Contracting Party of a note requesting arbitration of the dispute, each Contracting Party shall appoint an arbitrator. The two arbitrators shall select a third arbitrator who, upon approval by the Contracting Parties, shall be appointed as the Chairperson, provided that the third arbitrator shall not be a national of either Contracting Party. The Chairperson shall be appointed within sixty days from the date of appointment of the other two arbitrators.
have not been made within the periods referred to in that paragraph, either Contracting Party may, unless otherwise agreed, request the Secretary-General of the Permanent Court of Arbitration at The Hague to make such appointments.
4. The arbitration board shall determine its own procedural rules, after consultation with the Contracting Parties. The arbitration board shall decide the dispute in accordance with this Agreement and the rules and principles of international law applicable to the subject matter. The arbitration board shall within a reasonable period of time reach its decision by a majority of votes. Such decision shall be final and binding.
5. Each Contracting Party shall bear the cost of the arbitrator of its choice and its representation in the arbitral proceedings. The cost of the Chairperson of the arbitration board in discharging his or her duties and the remaining costs of the arbitration board shall be borne equally by the Contracting Parties.
1. In the event of an investment dispute between the claimant and the respondent, they should initially seek to resolve the dispute through consultation and negotiation, which may include the use of non-binding, third-party procedures.
2. In the event that a disputing party considers that an investment dispute cannot be settled by consultation and negotiation:
a)
the claimant, on its own behalf, may submit to arbitration under this Article a claim:
(i)
that the respondent has breached an obligation under Chapter I; and
(ii)
that the claimant has incurred loss or damage by reason of, or arising out of, that breach; and
b)
the claimant, on behalf of an enterprise of the respondent that is a legal person that the claimant owns or controls directly or indirectly, may submit to arbitration under this Article a claim:
(i)
that the respondent has breached an obligation under Chapter I; and
(ii)
that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
3. At least ninety days before submitting any claim to arbitration under this Article, a claimant shall deliver to the respondent a written notice of its intention to submit the claim to arbitration (hereinafter referred to as “notice of intent”). The notice of intent shall specify:
a)
the name and address of the claimant and, in the case of subparagraph 2(b), the name, address and place of incorporation of the enterprise;
b)
for each claim, the provision of Chapter I alleged to have been breached and any other relevant provisions;
c)
the legal and factual basis for each claim; and
d)
the relief sought and the approximate amount of damages claimed.
4. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to in
under the ICSID Convention, provided that the Contracting Parties are parties to the ICSID Convention;
b)
under the ICSID Additional Facility Rules, provided that:
(i)
none of the Contracting Parties is a party to the ICSID Convention; or
(ii)
either Contracting Party, but not both, is a party to the ICSID Convention;
c)
under the UNCITRAL Arbitration Rules; or
d)
if the disputing parties agree, under any other arbitration institution or arbitration rules.
5. A claim shall be deemed submitted to arbitration under this Article when the claimant’s notice of or request for arbitration (hereinafter referred to as “notice of arbitration”):
of the UNCITRAL Arbitration Rules, is received by the respondent; or
d)
under any other arbitration institution or arbitration rules selected under subparagraph 4(d) is received by the respondent, unless otherwise specified by such institution or in such rules.
6. Each Contracting Party hereby consents to the submission of a claim to arbitration under this Article in accordance with this Agreement.
, no claim may be submitted to arbitration under this Article if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under paragraph 2 and knowledge that the claimant in the case of subparagraph 2(a) or the enterprise referred to in subparagraph 2(b) in the case of that subparagraph has incurred loss or damage.
8. No claim may be submitted to arbitration under this Article unless:
a)
in the case of subparagraph 2(a):
(i)
the claimant consents in writing to arbitration in accordance with the procedures set out in this Article; and
(ii)
the claimant waives in writing any right to initiate or continue before any administrative tribunal or court of justice under the law of either Contracting Party, or other dispute settlement procedures, any proceedings with respect to any measure alleged to constitute a breach referred to in subparagraph 2(a)(i); and
b)
in the case of subparagraph 2(b):
(i)
both the claimant and the enterprise referred to in that subparagraph consent in writing to arbitration in accordance with the procedures set out in this Article; and
(ii)
both the claimant and the enterprise referred to in that subparagraph waive in writing any right to initiate or continue before any administrative tribunal or court of justice under the law of either Contracting Party, or other dispute settlement procedures, any proceedings with respect to any measure alleged to constitute a breach referred to in subparagraph 2(b)(i).
9. The waiver provided pursuant to subparagraph 8(a)(ii) or 8(b)(ii) shall cease to apply where the arbitral tribunal rejects the claim on the basis of a failure to meet the requirements of , or on any other procedural or jurisdictional grounds.
10. Notwithstanding subparagraphs 8(a)(ii) and 8(b)(ii), the claimant or the enterprise referred to in subparagraph 2(b) may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of monetary damages before an administrative tribunal or court of justice under the law of the respondent.
11. When a claim is submitted under subparagraph 2(a) or 2(b), the arbitral tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
12. The respondent shall deliver to the non-disputing Party:
a)
notice of arbitration no later than thirty days after the date on which the claim was submitted; and
b)
copies of all pleadings filed in the arbitration.
13. The non-disputing Party may, upon written notice to the disputing parties, make submissions to the arbitral tribunal on a question of interpretation of this Agreement.
14. In an arbitration under this Article, the respondent shall not assert, as a defence, counterclaim, right of setoff or otherwise, that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
15. The arbitral tribunal may award only:
a)
a judgement whether or not there has been a breach by the respondent of any obligation under Chapter I with respect to the claimant and its investments; and
b)
one or both of the following remedies, only if there has been such a breach:
(i)
monetary damages and applicable interest; and
(ii)
restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest, in lieu of restitution.
The arbitral tribunal may also award cost and attorney’s fees in accordance with applicable arbitration rules.
an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise referred to in that subparagraph;
b)
an award of restitution of property shall provide that restitution be made to the enterprise referred to in that subparagraph; and
c)
the award shall provide that it is made without prejudice to any right that any natural person or enterprise may have in the relief under applicable law.
17. The respondent may make available to the public in a timely manner all documents, including an award, submitted to, or issued by, an arbitral tribunal established under
information which is privileged or otherwise protected from disclosure under the laws and regulations of either Contracting Party; and
c)
information which shall be withheld pursuant to the relevant arbitration rules.
18. Unless the disputing parties agree otherwise, the place of arbitration shall be in a country that is a party to the New York Convention.
19. The award rendered by the arbitral tribunal shall be final and binding upon the disputing parties. This award shall be executed in accordance with the applicable laws and regulations, as well as relevant international law including the ICSID Convention and the New York Convention, concerning the execution of award in force in the country where such execution is sought.
1. Notices and other documents relating to arbitration under this Chapter shall be served on a Contracting Party by delivery to:
a)
with respect to Japan, International Legal Affairs Bureau, the Ministry of Foreign Affairs; and
b)
with respect to the Republic of Serbia, State Attorney’s Office.
2. A Contracting Party shall promptly make publicly available and notify to the other Contracting Party any change to the name of the authority referred to in
A decision by Japan under the Foreign Exchange and Foreign Trade Law (Law No. 228 of 1949), as may be amended, regarding an investment that requires prior notification under that law, including an order to alter the content of investment or discontinue the investment process, shall not be subject to the dispute settlement provisions under this Agreement.