Free Trade Area of the Americas - FTAA |
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Scope of Application [Return to the top of the page] DEFINITION OF INVESTMENT The term “investment” comprises every kind of asset defined according to the host country’s laws and regulations. This general definition is illustrated by a non exhaustive list of five groups of specific rights, including:
DEFINITION OF INVESTOR Nationals “National” of a Party comprises any natural person who is a national of that Party under its law. (Article 1 (4) (a)). Companies “National” of a Party comprises companies constituted under the law of one of the Contracting Parties or that are controlled, directly or indirectly, by nationals of said Party. (Article 1 (4) (b)). Application in Time (Entry into Force and Duration: Applicability to Investments made Prior to Entry into Force) Date of Signature: July 30, 1993 Admission [Return to the top of the page] Each Contracting Party shall promote, in its territory, investments of nationals of the other Contracting Party, and shall admit these investments in accordance with its laws and regulations. (Article 2 (1)). Treatment [Return to the top of the page] STANDARDS Fair and Equitable Treatment Yes. (Article 3 (1)). Full Protection and Security Yes, full protection. (Article 2 (2)). Non-Discrimination Yes. Each Contracting Party shall not impair, with arbitrary and discriminatory measures, the management, utilization, use, enjoyment or disposal of investments of investors of the other Contracting Party. (Article 3 (1)). National Treatment Yes. Each Contracting Party shall accord to investments of investors of the other Contracting Party treatment no less favorable than that it accords to investments of its nationals or those of a third State, i.e. treatment that will be the most favorable to investments of nationals of the other Contracting Party. (Article 3 (2)). Most-Favored Nation Treatment Yes. Each Contracting Party shall accord to investments of investors of the other Contracting Party treatment no less favorable than that it accords to investments of its nationals or those of a third State, i.e. treatment that will be the most favorable to investments of nationals of the other Contracting Party. (Article 3 (2)). Nationals of a Contracting Party shall enjoy MFN treatment with respect to Articles 5 [expropriation] and 6 [compensation] in the territory of the other Contracting Party. (Article 7). EXCEPTIONS The treatment accorded in Article 3 (2) shall not be extended to the privileges that a Contracting Party accords to nationals of third States by virtue of a customs or economic union, a common market or free trade area, or other similar international agreements with third States for mutual economic assistance, or other forms of regional cooperation. (Article 3 (3)). National treatment and most-favored-nation treatment do not extend to the benefits or advantages that one of the Contracting Parties accords to nationals of third States as a result of a taxation agreement. (Article 3 (4)). Nothing in this Treaty shall prevent a Contracting Party from reserving some economic activities in accordance with its political Constitution. Moreover, nothing in this Treaty shall prevent a Contracting Party from adopting measures, if not discriminatory, for reasons of internal and external national security, public or moral order. (Article 3 (5)). OTHER ASPECTS Performance Requirements --- Others If the provisions in the legislation of a Contracting Party, or if the existing or future obligations under international law between the two Contracting Parties, or if an agreement between an investor of a Contracting Party and the other Contracting Party include provisions granting to investments of investors of the first Contracting Party a more favorable treatment, these provisions shall prevail if they are more favorable. (Article 10 (1)). Nationals of one Contracting Party, suffering losses due to war or armed conflict, revolution, national emergency, state of siege, insurrection or other similar events in the territory of the other Contracting Party, shall not be treated less favorably than investors of this Contracting Party with regard to restitution, compensation, indemnification or other settlement. These payments shall be transferable to the territory of the first Contracting Party or any third State. (Article 6). Each Contracting Party shall comply with the other commitments it has entered into with respect to investments of investors of the other Contracting Party. (Article 10 (2)). Transfers [Return to the top of the page] TYPES OF PAYMENT Returns Yes. Each Contracting Party shall guarantee to nationals of the other Contracting Party the free transfer to the territory of the latter Party or that of third States of payments related to an investment, especially:
Repayment of Loans Yes. (Article 4 (1) (c)). Proceeds of the Total or Partial Liquidation of an Investment Yes. (Article 4 (1) (d)). Licenses and Other Fees --- Other Categories of Payment Yes. (Article 4 (1) (a), (e), (f)). CONVERTIBILITY, EXCHANGE RATES, AND TIMES OF TRANSFER Currency Transfers shall be effected in convertible currency, without restrictions and delay. (Article 4 (2)). Exchange Rates --- Time of Transfer Transfers shall be effected without delay. (Article 4 (2)). Expropriation [Return to the top of the page] DEFINITION Covered Expropriatory Measures Expropriation, nationalization or measures which have a similar effect. (Article 5 (2)). CONDITIONS Public Purpose and Non-Discrimination Yes. “Public use or social interest.” (Article 5 (2)). There is no reiteration of the non-discrimination standard in the expropriation context. Due Process of Law and Judicial Review Yes. (Article 5 (4)). Other --- Compensation Standard; Form and Time of Payment Compensation shall:
Settlement of Disputes
between Contracting Parties PRE-ARBITRATION NEGOTIATIONS Any dispute between the Contracting Parties concerning the interpretation or application of the Agreement shall, whenever possible, be settled through diplomatic channels. (Article 12(1)). If it cannot be settled within six months, the dispute shall, at the request of either Contracting Party, be submitted to an arbitral tribunal for decision. (Article 12 (1) (2)). ARBITRATION Constitution of the Tribunal An arbitral tribunal shall be constituted ad hoc.
Procedural Rules of the Tribunal The arbitral tribunal shall determine its
own procedure. Applicable Law No reference. Settlement of Disputes between a Contracting Party and an Investor [Return to the top of the page] DEFINITION --- PREARBITRAL CONSULTATIONS AND DISPUTE SETTLEMENT MECHANISMS Disputes which arise between an investor of one Party and the other Party with regard to an investment under the Agreement, shall, to the extent possible, be settled amicably. (Article 11 (1)). If the dispute is not settled within a period of six months, it shall be submitted, at the request of one of the Parties involved, to the decision of the competent tribunal of the Party in whose territory the investment was made. Article 11 (2)). ARBITRAL SETTLEMENT OF DISPUTES Conditions Investment disputes may be submitted to international arbitration:
Consent --- Forms of Arbitration Disputes, in the sense of Article 11 (3), will be submitted to:
Applicable Law No reference. |
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