61.1 Amicable resolution: A Party shall provide Notice to the other Party [or Parties] of any dispute concerning the application or interpretation of this Agreement and shall seek to amicably resolve such dispute including, without prejudice to any legal rights or obligations, referring the dispute by agreement to independent mediation.

61.2 Independent Expert: For any disagreement or dispute relating exclusively to issues of a factual or technical nature, the Parties may, by agreement, seek determination of the issues in dispute by an independent expert with qualifications, experience, and professional standing demonstrating a high level of aptitude in the field or matter on which the determination is sought (the Independent Expert).

61.3 An Independent Expert shall be appointed through the following procedure:

(a) The Parties shall jointly appoint an Independent Expert, giving preference to persons ordinarily resident in the Host State and seeking economy in appointment expenses and fees.

(b) Where the Parties have not reached an agreement on the appointment of an Independent Expert within 1 month of the provision of Notice referred to in Section 61.1 above, [an Independent Expert shall, at the request of a Party, be appointed by the [insert relevant industry body/arbitral institution]/[each Party shall choose one Independent Expert who jointly shall choose a third Independent Expert, who shall together form a panel of Independent Experts (the Independent Expert Panel) which will make a decision by a majority vote].

(c) Each Party shall have ten (10) days after the selection of the Independent Expert [or Independent Expert Panel, as the case may be] to submit its positions in writing to the Independent Expert [or Independent Expert Panel]. After considering the Parties’ written positions, the Independent Expert shall determine whether there is a need for the Parties to present their positions in an oral hearing, upon the request of a Party or upon the initiative of the Independent Exert [or Independent Expert Panel].

(d) The Independent Expert [or Independent Expert Panel] shall act as expert and not as arbitrator and shall decide the procedure to be followed in any oral hearing and in making a determination.

(e) [The draft determination of the Independent Expert shall be rendered in writing within fourteen (14) days after submission of the Parties’ positions in writing or oral hearing, as the case may be, and the Parties shall be afforded 5 days to submit any written comments on the draft determination.]

(f) The final determination of the Independent Expert [or Independent Expert Panel] shall be rendered in writing within thirty (30) days after submission of the Parties’ positions in writing or oral hearing, as the case may be, and such determination shall, in the absence of manifest error, be final and binding on the Parties.

61.4 The costs of the determination, including fees and expenses of the Independent Expert [or Independent Expert Panel] shall be borne equally between the Parties.

61.5 Litigation in national courts: Where the dispute has not been resolved in accordance with the preceding paragraphs within 6 months of the Notice referred to in Section 61.1 above, any Party may submit the dispute to the courts of the Host State for resolution and the law of the Host State shall be the governing law for such dispute.

61.6 The Parties and their Affiliates hereby waive any rights whatsoever, and irrespective of their origin in the Applicable Law or under international law, including international treaties, to additional or alternative dispute settlement processes for any matters relating to the interpretation or implementation of this Agreement or any act by any Party alleged to be in breach of this Agreement.

[OPTIONAL]

61.7 Arbitration by agreement: The Parties may, by written agreement, submit a dispute to international arbitration under rules to be agreed by the Parties at the time but in any event including provisions for:

(a) the arbitral proceedings to be administered and hosted by an arbitral institution located in [the Host State]/[insert other country close to the Host State or region in which the Host State is located];

(b) the law applicable to the arbitration to be the Applicable Law under this Agreement;

(c) the disclosure of the existence of any third-party funder to the arbitration, the identity of that funder, and terms of the funding agreement to the arbitral tribunal;

(d) the participation of non-Parties to the arbitration in the arbitral proceedings, including Legitimate Tenure Rights Holders, the Local Community, and amicus curiae; and

(e) the incorporation of the United Nations Commission on International Trade Law (UNCITRAL) Rules on Transparency in Treaty-based Investor–State Arbitration.

61.8 For greater certainty, the foregoing Section does not constitute and shall not be construed as an agreement to arbitrate any dispute in relation to this Agreement.

For more information: See generally IISD, 2014, Section 11.2 (Dispute Settlement); ISLP & CCSI, 2016, Section 2.20 (Dispute Resolution); UNIDROIT & IFAD, 2021, Chapter 7.II.B.1 (Expert Determination); Aizawa & Mann, 2021, Section 5.6 (Dispute Avoidance and Dispute Settlement).