Project Title

Capacity Building on Existing International Investment Agreements (IIAs) in the APEC Region, Relevance, Emerging Trends, Challenges and Policy Options to Address Coherence in Treaty Making 

Project Year

2015   

Project Number

CTI 15 2015A 

Project Session

Session 2   

Project Type

Standard 

Project Status

Completed Project   
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Project No.

CTI 15 2015A 

Project Title

Capacity Building on Existing International Investment Agreements (IIAs) in the APEC Region, Relevance, Emerging Trends, Challenges and Policy Options to Address Coherence in Treaty Making 

Project Status

Completed Project 

Publication (if any)

 

Fund Account

APEC Support Fund 

Sub-fund

ASF: General Fund 

Project Year

2015 

Project Session

Session 2 

APEC Funding

120,250 

Co-funding Amount

5,050 

Total Project Value

125,300 

Sponsoring Forum

Committee on Trade and Investment (CTI) 

Topics

Trade Facilitation 

Committee

Committee on Trade and Investment (CTI) 

Other Fora Involved

 

Other Non-APEC Stakeholders Involved

 

Proposing Economy(ies)

Peru 

Co-Sponsoring Economies

Canada; Chile; China; Japan; Korea; United States; Viet Nam 

Expected Start Date

01/11/2015 

Expected Completion Date

30/06/2016 

Project Proponent Name 1

Vanessa Rivas Plata 

Job Title 1

Investment Affairs Coordinator, National Directorate of Multilateral Affairs and International Trade Negotiations, Vice Ministry of Foreign Trade 

Organization 1

Ministry of Foreign Trade and Tourism 

Postal Address 1

Calle Uno Oeste N° 050. Street, Urb. Córpac - San Isidro, Lima, Peru 

Telephone 1

51-1 5136100 

Fax 1

Not Applicable 

Email 1

vrivas@mincetur.gob.pe 

Project Proponent Name 2

Not Applicable 

Job Title 2

Not Applicable 

Organization 2

Not Applicable 

Postal Address 2

Not Applicable 

Telephone 2

Not Applicable 

Fax 2

Not Applicable 

Email 2

Not Applicable 

Declaration

Vanessa Rivas Plata 

Project Summary

APEC economies have embarked on the negotiation of international investment agreements (IIAs). The emerging trend of regionalization in investment-rule making has led to the rise of “overlapping” agreements on investment. Hence, the existing network of IIAs in the APEC region represent a complex framework of multi-layered investment rules which may lead to significant legal and policy challenges. Further to the existence of “overlapping” IIAs, an additional layer of complexity is present in the interaction between investment rules in IIAs and services-related investment rules provided under separate chapters on trade in services. A three-day workshop for investment negotiators is proposed to be held in the margins of SOM1  in Peru with the aim of enhancing awareness and understanding of the complex framework of investment rules and the policy options to help economies achieve coherence in the negotiation of their IIAs and prevent potential unanticipated consequences in the context of ISDS.

Relevance

Relevance - APEC: Over the last decade, investment rule-making in the APEC region through the negotiation of international investment agreements (IIAs) has led to a complex framework of multi-layered and multi-faceted investment rules which may represent a challenge in achieving coherence in the interaction between an economies’ past and future IIAs, as well as between IIAs and services-related investment provisions under separate services chapters included in IIAs. As a consequence of this complex investment frameworks, APEC economies may face legal and policy challenges, and potentially unanticipated consequences, particularly in the context of investor-State dispute settlement cases (ISDS).

This project seeks to build capacity for negotiators on the current status of investment rule-making in the APEC region with an emphasis on: (i) identifying the characteristics and evolution of IIAs in APEC (e.g., convergence and divergence of the features provided under IIAs in APEC); (ii) assessing the legal and policy challenges of existing IIAs (e.g., the “spaghetti bowl” effect); particularly in the context of ISDS; and (iii) exchanging views on policy options to help economies achieve coherence in the negotiation of IIIAs and prevent potential unanticipated consequences in the context of ISDS.

In terms of benefits for APEC members in the region, the main objective of the workshop is to provide investment negotiators with recommendations on how to face the challenges of the existing complex framework of investment rules in APEC; specifically providing them with legal tools on how to best address potential unanticipated consequences derived from the existence of “overlapping” IIAs (i.e. agreements in which the membership of a small agreement is a subset of the members of a larger agreement, or agreements in which one economy has different agreements with different partners) in the negotiation phase of IIAs. Taking into account that a dominant trend in the APEC region is the regionalization of investment-rule making, and that economies in APEC are currently embarked in negotiations of mega-regional IIAs, investment negotiators in the APEC region must be equipped with the adequate technical skills to tackle the legal challenges that the state-of-the-art in international investment law represents.

Relevance - Rank: This project falls under the following categories in the funding criteria for all APEC-funded projects in 2015 (Rank 1): (i) Activities outlined in the Beijing Roadmap for APEC´s Contribution to the Realization of the FTAPP; and (ii) Services Trade and Investment Facilitation and Liberalization.

Objectives

The main objectives of the project are: 

1) To provide capacity building for public officials involved in the negotiation of IIAs on the legal and policy challenges that may arise due to the existence of a complex framework of investment rules in the APEC region.

2) To enhance a comprehensive understanding among public officials involved in the negotiation of IIAs on the potential implications that this complex framework of IIAs entails, particularly in the context of ISDS.

3) To exchange best practices and views on the policy options that could be undertaken in order for economies to achieve coherence in the future negotiations of IIAs in the APEC region and prevent potential unanticipated consequences in the context of ISDS.

Alignment

In the AELM Declaration of 2014, Leaders “(…) highly commended the work on the implementation of the Action Plan Framework on Capacity Building Needs Initiatives (CBNI), and endorsed the Action Plan Framework of the 2nd CBNI”. 

Also, Leaders specifically instructed officials to “(…) design targeted and tailor-made capacity building activities to narrow the gap of the capacities of APEC Economies to facilitate the eventual realization of the FTAAP”. 

Finally, this project will, in the long term, facilitate the eventual realization of the FTAAP, and will contribute to economic integration via free and open trade and investment.

TILF/ASF Justification

APEC developing economies are active participants in the current process of regionalization of investment-rule making in the region. These economies are embarked in the negotiation of mega-regional IIAs given the significance in terms of economic growth and generation of jobs that these type of agreements represent.

In light of the above, the capacity building on IIAs for investment negotiators is a key element for APEC developing economies who are currently engaged or will be engaged in the future negotiation of regional or mega-regional IIAs, so as to equip those public negotiators with the necessary technical skills to address the main challenges derived from the existence of “overlapping” IIAs. Furthermore, it is important to note that being ISDS one of the main features of IIAs , investment negotiators from APEC developing economies must possess the skills to draft provisions that prevent potential unanticipated consequences in this context (e.g. treaty shopping). 

Providing public officials from APEC developing economies with the legal techniques to tackle these type of challenges will ensure that these economies achieve an outcome that safeguards their main interests in terms of promoting foreign investment to enhance their economic growth while preventing potential unanticipated consequences in the context of ISDS. 

APEC developing economies will play a relevant role in the development of this workshop trough the active participation of their public officials involved in the negotiation of IIAs. We seek to invite speakers from APEC developing APEC economies to share best practices on how to address the challenges derived from “overlapping” agreements, so investment negotiators from other developing APEC economies can draw lessons from these experiences in order to implement them in the negotiation of their future IIAs.

Beneficiaries and Outputs

Outputs: As a project outcome, a report containing the main conclusions of the workshop will be distributed among APEC economies. Since this report will include recommendations on possible solutions to achieve coherence in the negotiations of IIAs and prevent unanticipated consequences in the context of ISDS, investment negotiators may use this report as a tool for future investment treaty-making. 

After the workshop, a report will be submitted to the APEC Secretariat with conclusions and recommendations. This report will be mainly focused on the following themes: 

1) Identification of the characteristics and evolution of IIAs in APEC (e.g., convergence and divergence of the features provided under IIAs);

2) Assessment of the legal and policy challenges of existing IIAs (e.g., the “spaghetti bowl” effect); particularly in the context of ISDS; and

3) Recommendations on the policy options and legal techniques to address unanticipated consequences in the context of ISDS. 

Outcomes: As an introduction, the workshop will explain the key issues, provide a stocktaking of treaty provisions, analyze the different approaches with respect to substantive and procedural provisions followed by APEC economies in the negotiations of their IIAs, and study interactions between treaty provisions and ISDS. This introduction will serve as a departure point to undertake a discussion on the challenges that the existing framework of IIAs entails. For instance, one of the subjects to be covered by the workshop is how the different approaches in negotiating a substantive provision could lead to potential risks in the context of ISDS. 

A comprehensive overview of the characteristics of this new scenario of “overlapping” IIAS in the APEC region will allow investment negotiators to understand the challenges they face and to implement the best practices learnt from the workshop in the negotiation of future IIAs. 

A report summarizing recommendations on how to best address the challenges arising from the current complex framework of IIAs will be a useful tool for investment negotiators from economies currently engaged in the negotiations of IIAs; particularly in those cases where the IIA under negotiation constitute a regional or mega-regional IIA which coexists with  an economy´s past IIAs. 

Beneficiaries: This workshop is targeted to government officials, women or men, involved in the negotiation of IIAs in the APEC region. These officials will be benefited by an active dialogue with the speakers from other APEC economies, international organizations and academia, who will exchange their views on the status, trends and legal and policy challenges related to the existing network of IIAs in the APEC region and the policy options to address coherence in future investment treaty making. 

Given that an active role from the participants in the workshop will be required in order to ensure its success, it is necessary that the participants possess a relevant experience in the negotiation of IIAs. Notwithstanding the output of this workshop is mainly focused on recommendations to be implemented in the negotiation phase, the participation of public officials in charge of the defense in investment disputes will be relevant, so they can contribute with their experience on how specific provisions of IIAs have been interpreted by arbitral tribunals. The workshop is planned to include panels of discussions where the participants will be asked to be commentators in order to encourage a productive interaction between speakers and participants. Hence, it is important that economies designate participants with the expertise identified above, so they can contribute as commentators of the panels of discussion in the workshop. 

Taking into account that the capacity-building workshop will be successful only if the relevant actors are appointed by their respective economies as the participants and direct beneficiaries of this workshop, the Organizing Committee will specify the criteria to be met by those participants in the invitations to be sent to APEC economies, requesting a short bio to be attached to each nomination, so the Organizing Committee can verify the professional background of the participants and whether they can actively participate in the discussions to take place in the workshop. It is of major significance that APEC economies designate participants that play a key role as Chief Negotiators or members of investment negotiating teams, so they can lead in their respective economies a process of capacity building with the group of negotiators they work with. Therefore, the Organizing Committee will address in the respective invitations to be sent to APEC economies the criteria to be met by the participants, and will ensure that this criteria is met by verifying the background of the participants in the short bios sent with each nomination. 

In terms of economies to participate in the workshop, the objective is that the most active economies in the negotiation of IIAs be represented, so they can be benefited with the recommendations on how to best address the current challenges of the existing complex framework of IIAs and implement these recommendations in their future negotiation of IIAs. To this extent, ensuring the participation of speakers from APEC economies with the most recent experiences in the negotiations of IIAs will be a significant element in order to encourage the debate on some of the best practices put in practice by these economies in order to achieve an outcome that tackles the main challenges of the current context in investment treaty-making. 

We consider that involving the “most active economies” in the negotiations of IIAs as participants of the workshop; do not exclude the ASF objective of targeting developing economies. Most of the developing economies in the APEC region are already involved in the negotiation of IIAs – some of these IIAs are regional or mega-regional, and they are leading an active role in the negotiation of IIAs in the APEC region. Therefore, we consider that both objectives are complementary and this workshop will address both of them. 

In addition to the direct benefits for the public officials involved in the negotiation of IIAs, this workshop will benefit other resource persons from the academia or international organizations that participate as speakers, since they will interact with the relevant actors in the negotiation of IIAs in one of the most dynamic regions in the investment-treaty-making. Hence, this workshop will serve as a constructive platform of discussion to identify current trends and challenges for further discussion by academics and international organizations engaged in capacity building for public officials in the APEC region. For instance, we have been engaged in discussions with some international organizations regarding their possible participation in the activities organized by Peru in 2016. At this stage, however, we consider necessary to develop an agenda as a first step to identify the most suitable speakers for our workshop. We must have a preliminary agenda by the beginning of December, so we can contact the resource persons that can achieve the goals of the workshop.

Dissemination

The workshop´s report, presentations and related materials will be made available to members in electronic format for distribution to public officials from APEC involved in the negotiation of IIAs. 

The materials will be sent to the APEC Secretariat for distribution through the APEC document database. The summary report will be released in the IEG meeting in SOM 1, and published on the APEC website. In addition to the APEC website, we will encourage APEC economies represented in the workshop to post the workshop documents in their respective websites. As the proposing economy, Peru will also consider publishing these materials in the webpage of the Ministry of Foreign Trade.

Gender

The preliminary agenda of the workshop will be circulated in advance to receive comments and suggestions from APEC economies in order to meet their capacity building needs. 

This capacity building will contribute to enhance the knowledge of both, women and men, investment negotiators. APEC Economies will also be encouraged to consider qualified women candidates for participation in the workshop without discrimination with men candidates. It is expected to include 40% of female participants at least. 

In order to ensure participation of female speakers, the organisers will send invitations to some economies indicating the relevance of having female speakers. In addition to that, some female speakers with recognized expertise are being already identified and will be directly invited. 

Women engaged in investment negotiations will be benefited with this workshop. IIAs contribute to increase FDI flows into the APEC economies engaged in the negotiations of such agreements. More investment leads to economic growth and new employment opportunities for both, women and men.

Work Plan

Timeline of Actions: 

Timeline of Actions

Activities

Outputs

Timing

Establishment of Organizing Committee and Advisory Committee

Committee established

Third week of November

2015

Workshop organization: venues, tentative agenda and request to Economies suggest keynote speakers

Preliminary Agenda is defined

First week of December

2015

Invitation to speakers

Keynote speakers confirmed

Second week of December

2015

Invitation to APEC members to participate

APEC members nominated per Economy Confirmed

Second week of December

2015

Review of the agenda by the Advisory Committee and, once approved, it will be circulated among economies for their inputs

Approval of tentative Agenda

Second week of January

2016

Administrative Circular will be sent to all participants with all details of the Conference

Participants received the Administrative Circular

Third week of January

2016

Workshop will be announced on the APEC webpage and confirmation of the event

Registration of Participants

Third week of January 2016

Workshop is developed in Lima-Peru

The workshop was successfully hosted

At SOM 1 margins

Present a brief report to CTI1

Report

CTI1

A report with outputs of the workshop will be disseminated among APEC members, participants of the workshop and APEC Secretariat.

Approved Report

Last week of June 2016

Risks

Risk 1: Ensure the participation of keynote speakers. 

Risk management: A letter of invitation will be circulated in advance. Early identification of potential speakers should ensure quality presentations for this event. Given that the workshop will be held in the margins of SOM 1, it will be important to identify alternate speakers in case schedule conflicts of potential speakers may arise. 

The role of the Organizing Committee and Advisory Committee will be particularly relevant to identify potential speakers with a significant expertise in the themes to be addressed in this workshop. The members of the Organizing Committee and Advisory Committee will be public officials from APEC economies, officers from international organizations engaged in the developments of IIAs in the APEC region, and other actors who may contribute with their inputs to develop an agenda, which suits the capacity building needs in the APE region. 

Risk 2: Lack of attendance due to the geographical distance between Lima and some APEC Economies.

Risk management: Given the geographical distance between the venue of the workshop and many APEC economies, it will be important that the Organizing Committee notifies at the earliest time possible all the logistical arrangements for the development of the workshop. In accordance with the timeline of actions proposed, participants from APEC economies must be confirmed by the second week of December after they have received the necessary information to ensure their participation. 

Risk 3: May be a challenge to ensure that participants will be able to comprehend within the limited amount of time.

Risk Management:
A three-day workshop will be designed to ensure an active role of the participants from APEC economies, including their participation as commentators of some panels of discussion. The structure of the workshop will allow participants to get a comprehensive understanding of the key issues to be covered by the workshop. In order to verify that this goal has been achieved, evaluation forms would also be used to assess what participants have learnt in each session.

Monitoring and Evaluation

The preliminary agenda of the workshop will be circulated in advance to receive comments and suggestions from Economies. The main indicators of the success of the project are: 

The number of APEC Economies engaged with the Project.

13

The number of participants that will attend the workshop.

20

The number of female participants in this project is one of the most important indicators to assess the impacts on women. This workshop will contribute to increase the capabilities of negotiators with no discrimination between genders.

40% at at least

After the workshop, a survey will be distributed to government officials to obtain feedback. This will be very important for possible future events on similar issues. This will help to identify the main needs of the public officials in charge of or directly involved in the negotiation of IIAs.

We will circulate a pre-workshop survey once the agenda has been defined by the Organizing Committee. We consider that a pre-workshop agenda will allow us to identify the specific needs of the beneficiaries of the workshop, while a post-workshop survey will measure the impact of the workshop (how the beneficiaries could implement the recommendations learnt in the workshop).

We consider that no less than 50% of attendees from APEC developing economies will participate in the workshop. These attendees will be invited to take part of the panels of discussions, so APEC developing economies can be actively represented in the discussions to take place in the workshop. Moreover, we are considering to invite some speakers from APEC developing economies.

It is also relevant to mention that, in addition to participants from eligible economies, the organizers will seek to involve in the development of the workshop, resource experts from other economies (4 at minimum).

We acknowledge the challenges arising out of the short time period to organize the workshop in the margins of SOM1. However, we consider that the current timeline of actions accurately reflects the best way to manage several major holidays within that period. As it has been provided in the timeline of actions, we must have a preliminary agenda by the first week of December, a list of speakers confirmed and participants from APEC members nominated by the second week of December (prior to Christmas holidays). We consider that this timeline of actions will allow us to provide additional time to secure visas when necessary.

Linkages

We seek to invite members of academia and international organizations engaged in the analysis of the key dimensions of IIAs and in the assessment of various policy options to address coherence in the negotiations of IIAs and to tackle the challenges arising out of the existing framework of IIAs.

Cross-fora collaboration will be of major relevance since one of the areas to be covered by this workshop is the interaction between IIAs and services-related investment rules provided under trade in services chapters of IIAs. In this regard, the participation of APEC GOS members as speakers will also be encouraged to cover one of the elements to be addressed by the workshop.

This project will not duplicate previous work in APEC since the objective of the project goes beyond providing capacity building on the application and interpretation of the core provisions under IIAs. Furthermore, this project seeks enhancing awareness and understanding of the complex framework of investment rules in the APEC region, its relationship with ISDS and the policy options for economies wishing to address policy coherence in the future negotiations of their IIAs.

This project is designed as a targeted and tailor-made capacity building activity to narrow the gap of the capacities of APEC economies in the field of investment to facilitate the eventual realization of the FTAAP. As indicated, we consider that this project is among those projects that will be conducted from 2015-2017 and that a wrap-up seminar for the 2nd CBNI must be held to evaluate this and other projects. 

Under the CBNI Framework 2, a range of activities related to FTA Capacity Building is conducted and expected to be conducted from 2015-2017. This project is among those. Korea is the Lead economy for the CBNI2. Priority areas for capacity building was agreed and contained in the CBNI2 framework, among which investment. Lead economies take responsibility for the planning and implementation of individual projects under the CBNI2.The results of the programs will be reported to CTI and SOM. In 2017, A wrap-up seminar for the 2nd CBNI will be held to evaluate the programs. 

Taking into account that the emerging trend of regionalization in investment-rule making has led to the rise of “overlapping” agreements on investment, APEC economies may face policy and legal challenges during the coming negotiation processes, for which the recommendations learnt in the workshop could be very useful.

Hence, the issues to be addressed in this project could be pursued in future workshops or seminars, so investment negotiators can share their experiences in implementing the recommendations learnt in the workshop during the treaty drafting in the negotiations they have been involved in. Given that these recommendations could only be implemented over the course of the next years, we consider that the IEG could discuss future activities linked to this workshop. 

APEC is the best source of funding for this project because APEC is implementing the APEC REI CBNI Framework, the goal of which is to prepare APEC economies to negotiate high-quality trade agreements including a Free Trade Area of the Asia-Pacific. The results of this capacity building will contribute to the ultimate deliverables of this Framework.

Sustainability

Since the beneficiaries of the workshop will be public officials involved in the negotiation of IIAs, it is important that these officials share the recommendations of the workshop with other officials from their own Governments, so the capacities of the negotiating teams of the APEC economies represented in the workshop can be enhanced. In this respect, it is of major significance that APEC economies designate participants that play a key role as Chief Negotiators or members of investment negotiating teams, so they can lead in their respective economies a process of capacity building with the group of negotiators they work with. 

The expectation that the participants share the recommendations learnt in the workshop will be notified when Peru sends the invitations to the APEC member economies to nominate their representatives. We intend to address this expectation as well as the criteria that participants must meet in the invitations to be circulated to APEC member economies. 

Building on this capacity-building workshop, future seminars and workshops can be undertaken in order to track the developments in the negotiation of IIAs. The goal of this workshop is to initiate a continuous dialogue among all the relevant actors involved in the process of investment treaty-making in the APEC region.

It is important to track the outcomes of this workshop since it constitutes one of the series of capacity-building activities supported under the CBNI approach, with the view to building and enhancing capacities of developing economies in the APEC region. The actual benefits of this workshop will be measured over time once the public officials benefited with this workshop put in practice the recommendations provided in the workshop. 

The most effective way to track the actual benefits of this workshop is to follow up with future activities of the similar nature where investment negotiators exchange the results of implementing the recommendations provided by the workshop. APE economies will continue negotiating IIAs in the future, so the impact of the workshop will be measured in the next years. 

The Organizing Committee will distribute a survey after the completion of the workshop in order to get feedback from the participants regarding the lessons learnt in the workshop and whether the recommendations derived from it could be implemented in the short term. Taking into account the nature of the recommendations and that they could be implemented on a long term basis, we consider important to encourage economies to continue future activities to follow up on the way that APEC economies have implemented these recommendations.

Since each economy will have to assess internally their needs according to the investment negotiations they are involved in, we consider relevant to circulate questions after each session, so participants can share how they conceive that the lessons learnt in the workshop can be implemented in their respective economies.

Project Overseers

Ms. Vanessa Rivas Plata
Investment Affairs Coordinator, Directorate of International Trade Negotiations, Vice Ministry of Foreign Trade.
TeL: + 511 5136100 Ext. 1213
Email: vrivas@mincetur.gob.pe 

LL.M. in International Business and Economic Law from Georgetown University. Investment negotiator of the Trans-Pacific Partnership and the Pacific Alliance. Member of the negotiating team of the Free Trade Agreements with the Republic of Korea and China. Currently negotiating the Investment Chapter of a Free Trade Agreement between Peru and Turkey.

Member of Peru´s Special Commission in charge of the management of investment disputes. 

Mr. Héctor Zevallos
APEC Division, Vice Ministry of Foreign Trade
TeL: + 511 5136100 Ext. 1252
Email: hzevallos@mincetur.gob.pe 

Responsible for Peru’s Committee of Trade and Investment coordination including Investment, Market Access, and Standards and Conformance issues.

Cost Efficiency

Not Applicable.

Drawdown Timetable

Not Applicable.

Direct Labour

Not Applicable.

Waivers

An advance payment (travel expenses for participants) will be necessary to ensure participation in the project.

Are there any supporting document attached?

No 
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Project No.

Project Title

Project Status

Publication (if any)

Fund Account

Sub-fund

Project Year

Project Session

APEC Funding

Co-funding Amount

Total Project Value

Sponsoring Forum

Topics

Committee

Other Fora Involved

Other Non-APEC Stakeholders Involved

Proposing Economy(ies)

Co-Sponsoring Economies

Expected Start Date

Expected Completion Date

Project Proponent Name 1

Job Title 1

Organization 1

Postal Address 1

Telephone 1

Fax 1

Email 1

Project Proponent Name 2

Job Title 2

Organization 2

Postal Address 2

Telephone 2

Fax 2

Email 2

Declaration

Project Summary

Relevance

Objectives

Alignment

TILF/ASF Justification

Beneficiaries and Outputs

Dissemination

Gender

Work Plan

Risks

Monitoring and Evaluation

Linkages

Sustainability

Project Overseers

Cost Efficiency

Drawdown Timetable

Direct Labour

Waivers

Are there any supporting document attached?

hdFldAdmin

Project Number

Previous Fora

Secretariat Comments

Reprogramming Notes

Consolidated QAF

Endorsement By Fora

PD Sign Off

Batch

Forum Priority

Committee Ranking Category

Committee Priority

PDM Priority

Priority Within Funding Category

Monitoring Report Received

Completion Report Received

PMU Field 1

PMU Field 2

PMU Field 3

On Behalf Of

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