Title
AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA AND THE GOVERNMENT OF ______________________ CONCERNING THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS
Preamble
The government of the People's Republic of China and the government of __ (hereinafter referred to as the Contracting Parties);
Intending to create favourable conditions for investments by investors of ane Contracting Party in the territory of the other Contracting Party;
Recognizing that the reciprocal encouragement, promotion and protection of such investments will be conducive to stimulating business initiative of the investors and will increase prosperity in both States;
Desiring to intensify the economic cooperation of both States on the basis of equality and mutual benefits;
Have agreed as follows:
Body
Article 1.
For the purpose of this Agreement,
1. The term "investment" means every kind of asset invested by investors of one Contracting Party in accordance with the laws and regulations of the other Contracting Party in the territory of the latter, and in particular, though not exclusively, includes:
(a) movable, immovable property and other property rights such as mortgages and pledges;
(b) shares, stock and any other kind of participation in companies;
(c) claims to money or to any other performance having an economic value;
(d) copyrights, industrial property, know-how and technological process;
(e) concessions conferred by law, including concessions to search for or exploit natural resources.
2. The term "investors" means: In respect of the People's Republic of China:
(a) natural persons who have nationality of the People's Republic of China;
(b) economic entities established in accordance with the laws of the People's Republic of China and domiciled in the territory of the People's Republic of China;
In respect of : (Country Name):
(a)
(b)
3. The term "returns" means the amounts yielded by investments, such as profits, dividends, interests, royalties or other legitimate income.
Article 2.
1. Each Contracting Party shall encourage investors of the other Contracting Party to make investments in its territory and admit such investments in accordance with its laws and regulations.
2. Investments made by investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy constant protection and security in the territory of the other contracting party. Neither Contracting Party shall, without prejudice to its laws and regulations, in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of investors of the other Contracting Party. Each Contracting Party shall observe any obligations it may have entered into with regard to investments of investors of the other Contracting Party,
3. Each Contracting Party shall grant assistance in and provide facilities for obtaining visa and working permit to nationals of the other Contracting Party to or in the territory of the Former in connection with activities associated with such investments.
Article 3.
1. Neither Contracting Party shall, in its territory, subject investments or activities associated with investments of investors of the other contracting party to treatment less favourable than that accorded to investments or associated activities by investors of any third state.
2. Neither Contracting Party shall, in its territory, subject investors of the other contracting party, as regards their management, maintenance, use, enjoyment or disposal of their investments or activities related with investments, to treatment less favourable than that which it accords to investors of any third state.
3. In addition to the provisions of Paragraph 1 and 2 of this article, either Contracting Party shall, to the extent possible, accord treatment in accordance with the stipulations of its laws and regulations to the investments of investors of the other contracting party, the same as that accorded to its own investors.
4. The treatment as mentioned in Paragraphs 1, 2 and 3 of this Article shall not include any preferential treatment accorded by the other Contracting Party to investments of investors of a third State based on customs union, free trade zone, economic union, agreement relating to avoidance of double taxation or for facilitating frontier trade.
Article 4.
1. Neither Contracting Party shall expropriate, nationalize or take similar measures (hereinafter referred to as "expropriation") against investments of investors of the other Contracting Party in its territory, unless the following conditions are met:
(a) for the public interests;
(b) under appropriate legal procedure;
(c) without discrimination;
(d) against compensation.
2. The compensation shall be calculated on the basis of the market value of the investment expropriated immediately before the proclamation of the decision of expropriation or before the impending expropriation becomes public knowledge. Where the market value cannot be readily ascertained, the compensation shall be determined in accordance with generally recognized principles of valuation and equitable principles taking into account the capital invested, depreciation, capital already repatriated, replacement value and other relevant factors. The compensation shall include interest calculated at a normal rate applicable to the currency used in the original investment from the date of expropriation to the date of payment. The amount of compensation finally determined shall be paid to investors with convertible currencies and be freely transferable without undue delay.
Article 5.
1. Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, a state of national emergency, revolt or riot in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment no less favourable than that accorded to investors of any third state.
2. Without prejudice to paragraph 1 of this Article, investors of one Contracting Party who, in any of the situations referred to in that paragraph, suffer losses in the territory of the other Contracting Partys resulting from:
(a) Requisitioning of their property by its forces or authorities, or
(b) Destruction of their property by its forces or authorities, which was not caused in combat action or was not required by the necessity of the situation; shall be accorded restitution or appropriate fair and non-discriminatory compensation.
3. Resulting payments under this Article shall be made in convertible currency, freely transferable and without undue delay.
Article 6.
Each Contracting Party shall, subject to its laws and regulations, guarantee investors of the other Contracting Party the transfer of their investments and returns held in the territory of the one Contracting Party, including:
(a) profits, dividends, interests and other legitimate income;
(b) amounts from total or partial liquidation of investments;
(c) payment made pursuant to a loan agreement in connection with investment;
(d) royalties in Paragraph 1 (d) of Article 1;
(e) payments of technical assistance or technical service fee, management fees;
(f) payments in connection with projects on contract;
(f) earnings of nationals of the other Contracting Party who work in connection with an investment in the territory of the one Contracting Party.
2. The transfers mentioned above shall be made at the prevailing exchange rate of the Contracting Party accepting investment on the date of transfer.
Article 7.
If a Contracting Party or its agency makes payment to an investor under a guarantee it has granted to an investment of such investor in the territory of the other Contracting Party, such other Contracting Party shall recognize the transfer of any right or claim of such investor to the former Contracting Party or its Agency and recognize the subrogation of the former Contracting Party or its Agency to such right or claim. The subrogated right or claim shall not be greater than the original right or claim of the said investor.
Article 8.
1. Any dispute between the Contracting Parties concerning the interpretation or application of rhis Agreement shall, as far as possible, be settled by consultation through diplomatic channel.
2. If a dispute cannot thus be settled within six months, it shall, upon the request of either Contracting Party, be submitted to an ad hoc arbitral tribunal.
3. Such tribunal comprises of three arbitrators, Within two months from the date on which either Contracting Party receives the written notice requesting for arbitration from the other Contracting Party, each Contracting Party shall appoint one arbitrator. Those two arbitrators shall, within further two months, together select a third arbitrator who is a national of a third State which has diplomatic relations with both Contracting Parties. The third arbitrator shall be appointed by the two Contracting Parties as Chairman of the arbitral tribunal.
4. If the arbitral tribunal has not been constituted within four months from the date of the receipt of the written notice for arbitration, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to appoint the arbitrator(s) who has or have not yet been appointed. If the President is a national of either Contracting Party or is otherwise prevented from discharging the said function, the next most senior member of the International Court of Justice who is not a national of either Contracting Party shall be invited to make the necessary appointment(s).
5. The arbitral tribunal shall determine its own procedure. The tribunal shall reach its decision in accordance with the provisions of this Agreement and the principles of international law recognized by both Contracting Parties.
6. The tribunal shall reach its decision by a majority of votes, Such decision shall be final and binding on both Contracting Parties. The ad hoc arbitral tribunal shall, upon the request of either Contracting Party, explain the reasons of its decision.
7. Each Contracting Party shall bear the cost of its appointed arbitrator and of its representation in arbitral proccedings. The relevant costs of the Chairman and the tribunal shall be borne in equal parts by the Contracting Parties.
Article 9.
1. Any dispute between an investor of one Contracting Party and the other Contracting Party in connection with an investment in the territory of the other Contracting Party shall, as far as possible, be settled amicably through negotiations between the parties to the dispute.
2. If the dispute cannot be settled through negotiations within six months, cither party to the dispute shall be entitled to submit the dispute to the competent court of the Contracting Party accepting the investment.
3. If a dispute involving the amount of compensation for expropriation cannot be settled within six months after resorting to negotiations as specified in Paragraph 1 of this Article, it may be submitted at the request of either party to an ad hoc arbitral tribunal. The provisions of this Paragraph shall not apply if the investor concerned has resorted to the procedure specified in Paragraph 2 of this Article.
4. Such an arbitral tribunal shall be constituted for each individual case in the following way: each party to the dispute shall appoint an arbitrator, and these two shall select a national of a third State which has diplomatic relations with the two Contracting Parties as Chairman. The first two arbitrators shall be appointed within two months of the written notice for arbitration by either party to the dispute to the other, and the Chairman be selected within four months. If within the period specified above, the tribunal has not been constituted, either party to the dispute may invite the Secretary General of the International Centre for Settlement of Investment Disputes to make the necessary appointments.
5. The tribunal shall determine its own procedure, However, the tribunal may, in the course of determination of procedure take as guidance the Arbitration Rules of the International Centre for Settlement of Investment Disputes.
6. The tribunal shall reach its decision by a majority of votes. Such decision shall be final and binding on both parties to the dispute. Both Contracting Parties shall commit themselves to the enforcement of the decision in accordance with their respective domestic law.
7. The tribunal shall adjudicate in accordance with the law of the Contracting Party to the dispute accepting the investment including its rules on the conflict of laws, the provisions of this Agreement as well as the generally recognized principles of international law accepted by both Contracting Parties.
8. Each party to the dispute shall bear the costs of its appointed member of the tribunal and of its representation in the proceedings. The cost of the appointed Chairman and the remaining costs shall be borne in equal parts by the parties to the dispute.
Article 10.
If the treatment to be accorded by one Contracting Party in accordance with its laws and regulations to investments or activities associated with such investments of investors of the other Contracting Party is more favourable than the treatment provided for in this Agreement, the more favourable treatment shall be applicable.
Article 11.
This Agreement shall apply to investments which are made prior to or after its entry into force by investors of either Contracting Party in accordance with the laws and regulations of the other Contracting Party in the territory of the latter.
Article 12.
1. The representatives of the two Contracting Parties shall hold meetings from time to time for the purpose of
(a) reviewing the implmentation of this Agreement;
(b) exchanging legal information and investment opportunities;
(c) resolving dispute arising out of investments;
(d) forwarding proposals on promotion of investment;
(e) studying other issues in connection with inyestinents.
2. Where either Contracting Party requests consultation on any matters of Paragraph 1 of this Article, the other Contracting Party shall give prompt response and the consultation be held alternately in Beijing and __________.
Article 13.
1. This Agreement shall enter into force on the first day of the following month after the date on which both Contracting Parties have notified each other in writing that their respective internal legal procedures have been fulfilled, and shall remain in force for a period of five years.
2. This Agreement shall continue in force if either Contracting Party fails to give a written notice to the other Contracting Party to terminate this Agreement one year before the expiration specified in Paragraph 1 of this Article.
3. After the expiration of the initial five year period, either Contracting Party may at any time thereafter terminate this Agreement by giving at least one year's written notice lo the other Contracting Party.
4. With respect to investments made prior to the termination of this Agreement, the provisions of Article I to XII shall continue to be effective for a further period of ten years from such date of termination.
Conclusion
Done in duplicate at _ on __ __ in the Chinese, ___ and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.
For the government of
For the government of the People's Republic of China