Type: Process Essays
Sample donated: Natasha Burke
Last updated: December 30, 2019
PREAMBLEThe Contracting Parties to this Treaty,Seeking no aggrandizement, territorial or other, nor territorial changes that do not accord with thefreely expressed wishes of the peoples concerned;Respecting the right of all peoples to choose the form of Government under which they will live;and wishing to see sovereign rights and self-government restored to those who have been forciblydeprived of them;Hoping to see established a peace which will afford to all nations the means of dwelling in safetywithin their own boundaries, and which will afford assurance that all the men in all the lands maylive out their lives in freedom from fear and want;Believing all of the nations of the world, for realistic as well spiritual reasons, must come to theabandonment of the use of force since no future peace can be maintained if land, sea, or airarmaments continue to be employed by nations which threaten, or may threaten aggression outsideof their frontiers; and that such a peace should enable all men to traverse the high seas and oceanswithout hindrance;Endeavoring with due respect for existing obligations, to further enjoyment by all States, great orsmall, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of theworld which are needed for their economic prosperity;Desiring to bring about the fullest collaboration between all nations in the economic field, with theobject of securing for all improved labour standards, economic advancement, and social security;11Hoping to see established a peace which will afford to all nations the means of dwelling in safetywithin their own boundaries, and which will afford assurance that all the men in all the lands maylive out their lives in freedom from fear and want; and such a peace should enable all men totraverse the high seas and oceans without hindrance;Determined to safeguard freedom, common heritage and civilisation of their peoples, founded onthe principles of democracy, individual liberty, and the rule of law;HAVE AGREED AS FOLLOWS:PART I DEFINITIONS AND PURPOSEARTICLE 1DEFINITIONSAs used in this Treaty:(1) not reproduced(2) “Contracting Party” means a State which has consented to be bound by this Treaty and forwhich the Treaty is in force.(3) not reproduced(4) not reproduced(5) not reproduced(6) “Investment” means every kind of asset, owned or controlled directly or indirectly by anInvestor and includes:12(a) tangible and intangible, and movable and immovable, property, and any property rights such asleases, mortgages, liens, and pledges;(b) a company or business enterprise, or shares, stock, or other forms of equity participation in acompany or business enterprise, and bonds and other debt of a company or business enterprise;(c) claims to money and claims to performance pursuant to contract having an economic value andassociated with an Investment;(d) Intellectual Property;(e) Returns;(f) any right conferred by law or contract or by virtue of any licences and permits granted pursuantto law to undertake any Economic Activity.A change in the form in which assets are invested does not affect their character as investments andthe term “Investment” includes all investments, whether existing at or made after the later of thedate of entry into force of this Treaty for the Contracting Party of the Investor making theinvestment and that for the Contracting Party in the Area of which the investment is made(hereinafter referred to as the “Effective Date”) provided that the Treaty shall only apply to mattersaffecting such investments after the Effective Date.”Investment” refers to any investment associated with an economic activity.(7) “Investor” means:(a) with respect to a Contracting Party:13(i) a natural person having the citizenship or nationality of or who is permanently residing in thatContracting Party in accordance with its applicable law;(ii) a company or other organization organized in accordance with the law applicable in thatContracting Party;(b) with respect to a “third state”, a natural person, company or other organiza tion which fulfils,mutatis mutandis, the conditions specified in subparagraph (a) for a Contracting Party.(8) “Make Investments” or “Making of Investments” means establishing new Investments, acquiringall or part of existing Investments or moving into different fields of Investment activity.
(9) “Returns” means the amounts derived from or associated with an Investment, irrespective of theform in which they are paid, including profits, dividends, interest, capital gains, royalty payments,management, technical assistance or other fees and payments in kind.(10) “Area” means with respect to a state that is a Contracting Party:(a) the territory under its sovereignty, it being understood that territory includes land, internal watersand the territorial sea; and(b) subject to and in accordance with the international law of the sea: the sea, sea -bed and its subsoilwith regard to which that Contracting Party exercises sovereign rights and jurisdiction.(11) not reproduced(12) “Intellectual Property” includes copyrights and related rights, trademarks, geographicalindications, industrial designs, patents, layout designs of integra ted circuits and the protection ofundisclosed information.14(13) not reproduced(14) “Freely Convertible Currency” means a currency which is widely traded in international foreignexchange markets and widely used in international transactions.ARTICLE 2PURPOSE OF THE TREATYThis Treaty establishes a legal framework in order to promote long-term cooperation in the field ofinternational investment and commerce based on complementarities and mutual benefits, inaccordance with the objectives and principles of this Treaty..
..PART IIIINVESTMENT PROMOTION AND PROTECTIONARTICLE 10PROMOTION, PROTECTION AND TREATMENT OF INVESTMENTS(1) Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage andcreate stable, equitable, favourable and transparent conditions for Investors of other ContractingParties to make Investments in its Area. Such conditions shall include a commitment to accord at alltimes to Investments of Investors of other Contracting Parties fair and equitable treatment.
SuchInvestments shall also enjoy the most constant protection and security and no Contracting Partyshall in any way impair by unreasonable or discriminatory measures their management, maintenance,use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable15than that required by international law, including treaty obligations. Each Contra cting Party shallobserve any obligations it has entered into with an Investor or an Investment of an Investor of anyother Contracting Party.(2) Each Contracting Party shall endeavour to accord to Investors of other Contracting Parties, asregards the Making of Investments in its Area, the Treatment described in paragraph (3).(3) For the purposes of this Article, “Treatment” means treatment accorded by a Contracting Partywhich is no less favourable than that which it accords to its own Investors or to Investors of anyother Contracting Party or any third state, whichever is the most favourable.(4) A supplementary treaty shall, subject to conditions to be laid down therein, oblige each partythereto to accord to Investors of other parties, as regards the Making of Investments in its Area, theTreatment described in paragraph (3).
That treaty shall be open for signature by the states and Regional Economic IntegrationOrganizations which have signed or acceded to this Treaty.(5) Each Contracting Party shall, as regards the Making of Investments in its Area, endeavour to:(a) limit to the minimum the exceptions to the Treatment described in paragraph (3);(b) progressively remove existing restrictions affecting Investors of other Contracting Parties.(6) (a) A Contracting Party may, as regards the Making of Investments in its Area, at any timedeclare to the Depositary its intention not to introduce new exceptions to the Treatment describedin paragraph (3).(b) A Contracting Party may, furthermore, at any time make a voluntary commitment to accord toInvestors of other Contracting Parties, as regards the Making of Investments in some or all16economic activities in its Area, the Treatment described in paragraph (3).
Such commitments shallbe binding under this Treaty.(7) Each Contracting Party shall accord to Investments in its Area of Investors of other ContractingParties, and their related activities including management, maintenance, use, enjoyment or disposal,treatment no less favourable than that which it accords to Investments of its own Investors or of theInvestors of any other Contracting Party or any third state and their related activities includingmanagement, maintenance, use, enjoyment or disposal, whichever is the most favourable.(8) The modalities of application of paragraph (7) in relation to programmes under which aContracting Party provides grants or other financial assistance, or enters into contracts, fortechnology research and development, shall be reserved for the supplementary treaty described inparagraph (4).(9) Each state or Regional Economic Integration Organization which signs or accedes to this Treatyshall, on the date it signs the Treaty or deposits its instrument of accession, submit to the Depositarya report summarizing all laws, regulations or other measures relevant to:(a) exceptions to paragraph (2); or(b) the programmes referred to in paragraph (8).A Contracting Party shall keep its report up to date by promptly submitting amendments to theDepositary.
(10) Notwithstanding any other provision of this Article, the treatment described in paragraphs (3)and (7) shall not apply to the protection of Intellectual Property; instead, the treatment shall be as17specified in the corresponding provisions of the applicable international agreements for theprotection of Intellectual Property rights to which the respective Contracting Parties are parties.(11) not reproduced(12) Each Contracting Party shall ensure that its domestic law provides effective means for theassertion of claims and the enforcement of rights with respect to Investments, investmentagreements, and investment authorizations.ARTICLE 11KEY PERSONNEL(1) A Contracting Party shall, subject to its laws and regulations relating to the entry, stay and workof natural persons, examine in good faith requests by Investors of another Contracting Party, andkey personnel who are employed by such Investors or by Investments of such Investors, to enterand remain temporarily in its Area to engage in activities connected with the making or thedevelopment, management, maintenance, use, enjoyment or disposal of relevant Investments,including the provision of advice or key technical services.(2) A Contracting Party shall permit Investors of another Contracting Party which have Investmentsin its Area, and Investments of such Investors, to employ any key person of the Investor’s or theInvestment’s choice regardless of nationality and citizenship provided that such key person has beenpermitted to enter, stay and work in the Area of the former Contracting Party and that theemployment concerned conforms to the terms, conditions and time limits of the permission grantedto such key person.ARTICLE 1218COMPENSATION FOR LOSSES(1) Except where Article 13 applies, an Investor of any Contracting Party which suffers a loss withrespect to any Investment in the Area of another Contracting Party owing to war or other armedconflict, state of national emergency, civil disturbance, or other similar event in that Area, shall beaccorded by the latter Contracting Party, as regards restitution, indemnification, compensation orother settlement, treatment which is the most favourable of that which that Contracting Partyaccords to any other Investor, whether its own Investor, the Investor of any other ContractingParty, or the Investor of any third state.
(2) Without prejudice to paragraph (1), an Investor of a Contracting Party which, in any of thesituations referred to in that paragraph, suffers a loss in the Area of another Contracting Partyresulting from(a) requisitioning of its Investment or part thereof by the latter’s forces or authorities; or(b) destruction of its Investment or part thereof by the latter’s forces or authorities, which was notrequired by the necessity of the situation, shall be accorded restitution or compensation which ineither case shall be prompt, adequate and effective.ARTICLE 13EXPROPRIATION(1) Investments of Investors of a Contracting Party in the Area of any other Contracting Party shallnot be nationalized, expropriated or subjected to a measure or measures having effect equivalent tonationalization or expropriation (hereinafter referred to as “Expropriation”) except where suchExpropriation is:19(a) for a purpose which is in the public interest;(b) not discriminatory;(c) carried out under due process of law; and(d) accompanied by the payment of prompt, adequate and effective compensation.Such compensation shall amount to the fair market value of the Investment expropriated at the timeimmediately before the Expropriation or impending Expropriation became known in such a way asto affect the value of the Investment (hereinafter referred to as the “Valuation Date”). Such fairmarket value shall at the request of the Investor be expressed in a Freely Convertible Currency onthe basis of the market rate of exchange existing for that currency on the Valuation Date.
Compensation shall also include interest at a commercial rate established on a market basis from thedate of Expropriation until the date of payment.(2) The Investor affected shall have a right to prompt review, under the law of the Contracting Partymaking the Expropriation, by a judicial or other competent and independent authority of thatContracting Party, of its case, of the valuation of its Investment, and of the payment ofcompensation, in accordance with the principles set out in paragraph (1).(3) For the avoidance of doubt, Expropriation shall include situations where a Contracting Partyexpropriates the assets of a company or enterprise in its Area in which an Investor of any otherContracting Party has an Investment, including through the ownership of shares..
..ARTICLE 23OBSERVANCE BY SUB-NATIONAL AUTHORITIES20(1) Each Contracting Party is fully responsible under this Treaty for the observance of all provisionsof the Treaty, and shall take such reasonable measures as may be available to it to ensure suchobservance by regional and local governments and authorities within its Area.(2) The dispute settlement provisions in Parts II, IV and V of this Treaty may be invoked in respectof measures affecting the observance of the Treaty by a Contracting Party which have been taken byregional or local governments or authorities within the Area of the Contracting Party.ARTICLE 24EXCEPTIONS(1) This Article shall not apply to Articles 12, 13 and 29.(2) The provisions of this Treaty other than(a) those referred to in paragraph (1); and(b) with respect to subparagraph (i), Part III of the Treaty shall not preclude any Contracting Partyfrom adopting or enforcing any measure(i) necessary to protect human, animal or plant life or health;(ii) not reproduced(iii) designed to benefit Investors who are aboriginal people or socially or economicallydisadvantaged individuals or groups or their Investments, provided that such measure(A) has no significant impact on that Contracting Party’s economy; and(B) does not discriminate between Investors of any other Contracting Party and Investors ofthat Contracting Party not included among those for whom the measure is intended,21provided that no such measure shall constitute a disguised restriction on Economic Activity,or arbitrary or unjustifiable discrimination between Contracting Parties or between Investorsor other interested persons of Contracting Parties.
Such measures shall be duly motivatedand shall not nullify or impair any benefit one or more other Contracting Parties mayreasonably expect under this Treaty to an extent greater than is strictly necessary to thestated end.(3) The provisions of this Treaty other than those referred to in paragraph (1) shall not be construedto prevent any Contracting Party from taking any measure which it considers necessary:(a) for the protection of its essential security interests including those(i) not reproduced(ii) taken in time of war, armed conflict or other emergency in international relations;(b) not reproduced(c) for the maintenance of public order. Such measure shall not constitute a disguised restriction onTransit.(4) The provisions of this Treaty which accord most favoured nation treatment shall not oblige anyContracting Party to extend to the Investors of any other Contracting Party any preferentialtreatment:(a) resulting from its membership of a free-trade area or customs union; or(b) which is accorded by a bilateral or multilateral agreement concerning economic co-operationbetween states that were constituent parts of the former Union of Soviet Socialist Republics pendingthe establishment of their mutual economic relations on a definitive basis.
PART V DISPUTE SETTLEMENTARTICLE 26SETTLEMENT OF DISPUTES BETWEEN AN INVESTOR AND A CONTRACTINGPARTY(1) Disputes between a Contracting Party and an Investor of another Contracting Party relating toan Investment of the latter in the Area of the former, which concern an alleged breach of anobligation of the former under Part III shall, if possible, be settled amicably.(2) If such disputes cannot be settled according to the provisions of paragraph (1) within a period ofthree months from the date on which either party to the dispute requested amicable settlement, theInvestor party to the dispute may choose to submit it for resolution:(a) to the courts or administrative tribunals of the Contracting Party to the dispute;(b) in accordance with any applicable, previously agreed dispute settlement procedure; or(c) in accordance with the following paragraphs of this Article.(3) (a) Each Contracting Party hereby gives its unconditional consent to the submission of a disputeto international arbitration or conciliation in accordance with the provisions of this Article.(4) In the event that an Investor chooses to submit the dispute for resolution under subparagraph(2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to:(a) (i) The International Centre for Settlement of Investment Disputes, established pursuant to theConvention on the Settlement of Investment Disputes between States and Nationals of other States23opened for signature at Washington, (hereinafter referred to as the “ICSID Convention”), if theContracting Party of the Investor and the Contracting Party to the dispute are both parties to theICSID Convention; or(ii) The International Centre for Settlement of Investment Disputes, established pursuant to theConvention referred to in subparagraph (a)(i), under the rules governing the Additional Facility forthe Administration of Proceedings by the Secretariat of the Centre (hereinafter referred to as the”Additional Facility Rules”), if the Contracting Party of the Investor or the Contracting Party to thedispute, but not both, is a party to the ICSID Convention;(b) a sole arbitrator or ad hoc arbitration tribunal established under the Arbitration Rules of theUnited Nations Commission on International Trade Law (hereinafter referred to as “UNCITRAL”);or(c) an arbitral proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce,provided that in such proceedings any decision on any proposal to disqualify an arbitrator shall betaken by the other members of the Tribunal, provided further that where those members are equallydivided, or in the case of a proposal to disqualify a sole arbitrator or a majority of the arbitrators, theBoard of Directors of the Arbitration Institute of Stockholm Chamber of Commerce shall take thedecision.(5) (a) The consent given in paragraph (3) together with the written consent of the Investor givenpursuant to paragraph (4) shall be considered to satisfy the requirement for:(i) written consent of the parties to a dispute for purposes of Chapter II of the ICSID Conventionand for purposes of the Additional Facility Rules;24(ii) an “agreement in writing” for purposes of article II of the United Nations Convention on theRecognition and Enforcement of Foreign Arbitral Awards, done at New York, (hereinafter referredto as the “New York Convention”); and(iii) “the parties to a contract to have agreed in writing” for the purposes of article 1 of theUNCITRAL Arbitration Rules.(b) Any arbitration under this Article shall at the request of any party to the dispute be held in a statethat is a party to the New York Convention.
Claims submitted to arbitration hereunder shall beconsidered to arise out of a commercial relationship or transaction for the purposes of article I ofthat Convention.(6) A tribunal established under paragraph (4) shall decide the issues in dispute in accordance withthis Treaty and applicable rules and principles of international law as well as the spirit ofinternational agreements applicable to the subject. It is understood and agreed that this stipulationshall have no retroactive force and that any tribunal shall apply the principles of international lawand of international agreements which were in force and binding on the Contracting Parties at themoment when the dispute arose.(7) An Investor other than a natural person which has the nationality of a Contracting Party to thedispute on the date of the consent in writing referred to in paragraph (4) and which, before a disputebetween it and that Contracting Party arises, is controlled by Investors of another Contracting Party,shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a “national ofanother Contracting State” and shall for the purpose of article 1(6) of the Additional Facility Rulesbe treated as a “national of another State”.25(8) The awards of arbitration, which may include an award of interest, shall be final and bindingupon the parties to the dispute. An award of arbitration concerning a measure of a sub-nationalgovernment or authority of the disputing Contracting Party shall provide that the Contracting Partymay pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carryout without delay any such award and shall make provision for the effective enforcement in its Areaof such awards.
…PART VIII FINAL PROVISIONS.
..ARTICLE 45PROVISIONAL APPLICATION(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for suchsignatory in accordance with Article 44, to the extent that such provisional application is notinconsistent with its constitution, laws or regulations.(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depositary adeclaration that it is not able to accept provisional application. The obligation contained inparagraph (1) shall not apply to a signatory making such a declaration. Any such signatory may atany time withdraw that declaration by written notification to the Depositary.
(b) either a signatory which makes a declaration in accordance with subparagraph (a) nor Investorsof that signatory may claim the benefits of provisional application under paragraph (1).26(3) (a) Any signatory may terminate its provisional application of this Treaty by written notificationto the Depositary of its intention not to become a Contracting Party to the Treaty. Termination ofprovisional application for any signatory shall take effect upon the expiration of 60 days from thedate on which such signatory’s written notification is received by the Depositary.(b) In the event that a signatory terminates provisional application under subparagraph (a), theobligation of the signatory under paragraph (1) to apply Parts III and V with respect to anyInvestments made in its Area during such provisional application by Investors of other signatoriesshall nevertheless remain in effect with respect to those Investments for twenty years following theeffective date of termination.