Article 29. Entry Into Force
This Protocol shall enter into force thirty (30) days after the deposit of instruments of ratification by at least two-thirds of all of the Member States.
Article 30. Accession
This Protocol shall remain open for accession by any Member State.
Article 31. Withdrawal
1. Any State Party may withdraw from this Protocol upon the expiration of twelve (12) months from the date of giving written notice to the Executive Secretary to that effect.
2. Any State Party that has withdrawn pursuant to paragraph 1 of this Article shall cease to enjoy all rights and benefits under this Protocol upon the withdrawal becoming effective.
3. Any State Party that has withdrawn pursuant to paragraph 1 of this Article shall remain bound by the obligations under this Protocol for a period of twelve (12) months from the date of giving notice.
Article 32. Depositary
1. This original text of this Protocol, all instruments of ratification and all instruments of accession shall be deposited with the Executive Secretary, who shall transmit certified copies thereof to all Member States.
2. The Executive Secretary shall notify the Member States of the dates on which instruments of ratification and instruments of accession have been deposited under paragraph 1.
3. The Executive Secretary shall register this Protocol with the Secretariat of the United Nations, the Commission of the African Union and such other organisations as the Council may determine.
Conclusion
IN WITNESS WHEREOF, WE, the Heads of State or Government, have signed this Protocol.
DONE at..... on 18 day of August 2006 in three (3) original texts in the English, French and Portuguese languages, all texts being equally authentic.
Republic of Angola
Republic of Botswana
Democratic Republic of Congo
Kingdom of Lesotho
Republic of Madagascar
Republic of Malawi
Republic of Mauritius
Republic of Mozambique
Republic of Namibia
Republic of South Africa
Kingdom of Swaziland
United Republic of Tanzania
Republic of Zambia
Republic of Zimbabwe
Annexes
Annex 1 . CO-OPERATION ON INVESTMENT
Preamble
The High Contracting Parties:
COMMITTED to achieving the broad objectives of the SADC as set out in the Treaty and specifically to achieving economic growth and sustainable development through regional integration and working through IPAs in the Region;
RECOGNISING the increasing importance of the role played by investment to advance productive capacity and increase economic growth and sustainable development and the importance of the link between investment and trade;
CONCERNED with the low levels of investment into the SADC, even though a number of measures have been taken to improve the investment environment;
AIMING to create new employment opportunities and improve living standards in our territories;
ACKNOWLEDGING that there is a need for greater regional cooperation among IPAs in the Region in order to enhance the attractiveness of the Region as an investment destination;
CONSCIOUS that without effective policies on investment protection and promotion, the Region will continue to be marginalised in terms of investment inflows and sustainable economic development; and
WISHING to be guided by the ideals, objectives and spirit of the Protocol in the facilitation and stimulation of investment flows and technology transfer and innovation into the Region
HEREBY AGREE as follows:
Article 1. Definitions
1. In this Annex, terms and expressions defined in Article 1 of the Protocol shall bear the same meaning unless the context otherwise requires.
2. In this Annex, unless the context otherwise requires:
"bond" means a debt instrument in terms of which the issuer thereof is obliged to re-pay, to the bondholder on a specified maturity date, the principal amount of a loan (and, ordinarily, interest thereon) made by the bondholder to the issuer;
"company" means any entity constituted or organised under the applicable laws of any State, whether or not for profit, and whether privately or governmentally owned or controlled, and includes a corporation, trust, partnership, sole proprietorship, branch, joint venture, association, or other such organisation;
"Host Government" means the government of the State Party in whose territory an investment is made or located;
"Host State" means the State Party in whose territory an investment is made or located;
"ICSID Convention" means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 1965;
"investment" means the purchase, acquisition or establishment of productive and portfolio investment assets, and in particular, though not exclusively, includes:
(a) movable and immovable property and any other property rights such as mortgages, liens or pledges;
(b) shares, stocks and debentures of companies or interest in the property of such companies;
(c) claims to money or to any performance under contract having a financial value, and loans;
(d) copyrights, know-how (goodwill) and industrial property rights such as patents for inventions, trade marks, industrial designs and trade names;
(e) rights conferred by law or under contract, including licences to search for, cultivate, extract or exploit natural resources:
Provided that nothing in this definition shall prevent a State Party from excluding short-term portfolio investments of a speculative nature or any sector sensitive to its development or which would have a negative effect on its economy. A State Party that has invoked this provision shall notify the Secretariat for information purposes within a period of three (3) months;
"IPAs" means the investment promotion agencies of State Parties that:
(a) actively promote and facilitate investments;
(b) proactively identify business opportunities for investments;
(c) encourage expansion of existing investments;
(d) develop a favourable investment image of their countries;
(e) make recommendations for improvements of their countries as investment destinations;
(f) keep track of all investors entering and leaving the country for the purpose of analysis in terms of investment performance; or
(g) play the role of advising investors upon request on the availability, choice or sustainability of partners in joint venture projects.
2. Nothing in this definition prevents a State Party from excluding short-term portfolio investments of a speculative nature or any sector sensitive to its development or which would have a negative effect on its economy. State Parties who have invoked this clause shall notify the SADC Secretariat for information purposes within a period of three (3) months.
"investor" means a person that has been admitted to make or has made an investment;
"least-developed means", for purposes of Article 19 of this Annex, those countries State Parties classified as such by the United Nations;
"MIGA" means the Multilateral Investment Guarantee Agency;
"MIGA Convention" means the Convention Establishing the Multilateral Investment Guarantee Agency
"New York Convention" means the United Nations Convention on the Convention Recognition and Enforcement of Foreign Arbitral Awards;
"person" means a natural person or a company;
"PPP" means Public Private Partnership;
"returns" means the amounts yielded by an investment and in particular, though not exclusively, includes profits, interest, capital gains, dividends, royalties and fees;
"SMME" means Small Micro and Medium Enterprises, as defined by each State Party in its relevant legislation as qualifying for such status;
"State entity" means, means, any agency, department or instrumentality of the Government of a State Party and any corporation, juristic person, institution, undertaking or entity which is directly or indirectly owned or controlled by that State Party, which are engaged in activities of a commercial nature;
"territory" means, in relation to a State Party, the total land area of that State Party and, in relation to a coastal State Party, includes, in addition, the territorial sea and any maritime area situated beyond the territorial sea of that coastal State Party which has been, or might in the future be, designated under the national law of that coastal State Party, in accordance with international law, as an area within which that coastal State Party may exercise rights with regard to the sea-bed, subsoil and natural resources;
"third State" means any state that is not a State Party; and
"UNCITRAL Arbitration Rules" means the arbitration rules of the United Nations Commission on International Trade Law.
Article 2. Promotion and Admission of Investments
1. Each State Party shall promote investments in its territory, and admit such investments in accordance with its laws and regulations.
2. The Host State shall facilitate and create favourable conditions to attract investments in its territory through suitable administrative measures and
In particular in the matter of expeditious clearance of authorisations in accordance with its laws and regulations.
3. For the purposes of creating a predictable investment climate, State Parties shall not arbitrarily, and without good reason, amend or otherwise modify to the detriment of investors, the terms, conditions and any benefits specified in the letter of authorisation.
Article 3. Promotion of Local and Regional Entrepreneurs
1. State Parties shall support the development of local and regional entrepreneurs and enhance regional productive capacity within the Region through, inter alia:
(a) skills development and enhancement programmes;
(b) SMME development;
(c) appropriate investments into supporting infrastructure; and
(d) other supply-side measures and policies necessary to enhance global competitiveness.
2. In providing support described in paragraph 1 of this Article, State Parties may place emphasis on industries that provide up-stream and down-stream linkages and have a favourable effect on attracting foreign direct investment and generating increased employment.
Article 4. Public Private Partnerships
State Parties shall co-operate on policies and other related issues that will encourage and facilitate the use of PPPs to ensure development in the Region.
Article 5. Investment Protection
Investments shall not be nationalised or expropriated in the territory of any State Party except for a public purpose, under due process of law, on a non-discriminatory basis and subject to the payment of prompt, adequate and effective compensation.
Article 6. Investors of the Third State
1. Investments and investors shall enjoy fair and equitable treatment in the territory of any State Party.
2. Treatment referred to in paragraph 1 shall be no less favourable than that granted to investors of the third State.
Article 7. General Exceptions
1. Notwithstanding the provisions of Article 6, State Parties may in accordance with their respective domestic legislation grant preferential treatment to qualifying investments and investors in order to achieve national development objectives.
2. State Parties undertake to eventually harmonize their respective domestic policies and legislation within the spirit of non-discrimination as set out in Article 6.
3. The provisions of Article 3 shall not apply to advantages, concessions or exemptions which may result from a bilateral investment treaty, Free Trade Area, Customs Union, Economic Union, Monetary Union or other multilateral arrangement for economic integration in which a State Party is participating or may participate.
Article 8. Transparency
State Parties shall promote and establish predictability, confidence, trust and integrity by adhering to and enforcing open and transparent policies, practices, regulations and procedures as they relate to investment.
Article 9. Repatriation of Investment and Returns
Each State Party shall ensure that investors are allowed facilities in relation to repatriation of investments and returns in accordance with the rules and regulations stipulated by the Host State.
Article 10. Corporate Responsibility
Foreign investors shall abide by the laws, regulations, administrative guidelines and policies of the Host State.
Article 11. Sourcing of Requisite Skills
State Parties shall, subject to their national laws and regulations, permit investors to engage key personnel and other necessary human resources of their choice, regardless of nationality under the following circumstances:
(a) where the skills do not exist in the Host State and the Region;
(b) where State Parties are satisfied that the sourcing of such skills will be in compliance with regional policies; and
Where such sourcing would enhance the development of local capacity through skills transfer.
Article 12. Optimal Use of Natural Resources
State Parties shall promote the use of their natural resources in a sustainable and an environmentally friendly manner.
Article 13. Environmental Measures
State Parties recognise that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures and agree not to waive or otherwise derogate from, international treaties they have ratified, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in their territories, of an investment.
Article 14. Right to Regulate
Nothing in this Annex shall be construed as preventing a State Party from exercising its right to regulate in the public interest and to adopt, maintain or enforce any measure that it considers appropriate to ensure that investment activity is undertaken in a manner sensitive to health, safety or environmental concerns.
Article 15. Capital Movements
1. State Parties shall encourage the free movement of capital.
2. Notwithstanding the provisions of paragraph 1, State Parties may regulate capital movements subject to their domestic laws and regulations, when necessitated by economic constraints.
3. State Parties that introduce new regulations in the circumstances described in paragraph 2 shall notify the Secretariat for information purposes within a period of three (3) months of introducing such regulations.
Article 16. Competition Policy
State Parties undertake through co-operation to advance a competition policy in the Region.
Article 17. Intra-regional and Extra-regional Agreements for the Avoidance of Double Taxation
1. With a view to encouraging the movement of capital within the Region, particularly to the least-developed countries, State Parties undertake, in line with their undertakings as set out in Annex 3, to conclude between themselves agreements for the avoidance of double taxation.
2. State Parties agree, in line with their undertakings as set out in the Annex 3, to approach their negotiations for agreements for the avoidance of double taxation with countries outside the region on the basis of mutually agreed principles.
Article 18. Trade, Investment and Industrial Policy
In recognizing the importance of the link between trade and investment, State Parties agree to pursue trade openness and intra-regional industrial policies and to reduce barriers to intra-regional trade in pursuance of the principles of the SADC Protocol on Trade and any other relevant SADC instruments.
Article 19. Harmonisation of Policies and Laws
State Parties shall pursue harmonisation with the objective of developing the region into a SADC investment zone, which shall, among others, include the harmonisation of investment regimes including policies, laws and practices in accordance with the best practices within the overall strategy towards regional integration.
Article 20. Conditions Favouring Least Developed Countries
1. State Parties shall establish conditions favouring the participation of least-developed countries of SADC in the economic integration process, based on the principles of non-reciprocity and mutual benefit.
2. For the purpose of ensuring that least-developed countries of SADC receive effective preferential treatment, State Parties shall investigate the establishment of market openings as well as the setting up of programmes and other specific forms of cooperation including in relation to derogations in respect of investment incentives.
Article 21. Adherence to International Conventions and Practices
State Parties may consider acceding to multilateral agreements on investment designed to promote or protect investments, such as:
(a) the ICSID Convention of 1965;
(b) the MIGA Convention, 1985; and
(c) the New York Convention, 1958.
Article 22. Regional Cooperation on Investment
State Parties shall through their relevant institutions promote regional cooperation in the area of investment, including PPPs, to ensure development in the Region;
Article 23. Investment Promotion Agencies
State Parties shall ensure that their IPAs:
(a) carry out their investment promotion activities, in line with their national and regional development priorities;
(b) advise the Government of that State Party, the private sector and other stakeholders in the formulation and review of policies and procedures that affect investment and trade; and
(c) increase awareness of their investment incentives, opportunities, legislation, practices, major events affecting investments and other relevant activities through regular exchange of information.
Article 24. The Role of the Secretariat
The Secretariat shall ensure close collaboration with State Parties and all relevant institutions on investment and other related matters in the Region.
Article 25. Relationship with other Organisations
State Parties shall pursue and promote policies that will increase cooperation with other regional and international organisations on issues relating to investment.