(g) to supply exclusively from the territory of the Party the goods that such investment produces or the services that it supplies to a specific regional market or to the world market;
(h) (i) to purchase, use or accord preference to, in its territory, technology of the Party or of persons of the Party (11);
(ii) that prevents the purchase or use of, or the according of a preference to, in its territory, particular technology,
so as to afford protection on the basis of nationality to its own investors or investments or to technology of the Party or of persons of the Party;
(i) to locate the headquarters for a specific region or the world market in its territory; or
(j) to achieve a give percentage or value of research and development in its territory.
2. Neither Party may condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory of an investor of the other Party or of a non-Party, on compliance with any requirement:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) to restrict sales of goods or services in its territory that such investment produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange earnings.
3.(a)Nothing in paragraph 1 of this article shall be construed to prevent a Party, in connection with an investment in its territory of an investor of the other Party or of a non-Party, from imposing or enforcing a requirement or enforcing a commitment or undertaking to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory, provided that such measure is consistent with paragraph 1(f) of this article.
(b) Nothing in paragraph 2 shall be construed to prevent a Party, in comnection with an investment in its territory of an investor of the other Party or of a non-Party, from conditioning the receipt or continued receipt of an advantage on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
(c) Paragraphs 1(f) of this article does not apply:
(i) when a Party authorizes use of an intellectual property right in accordance with Article 31 of the TRIPS Agreement, or to measures requiring the disclosure of proprietary information that fall within the scope of, and are consistent with, Article 39 of the TRIPS Agreement; or
(ii) when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be anti-competitive under the Party's competition laws.
(d) Provided that such measures are not applied in an arbitrary or unjustifiable manner, and provided that such measures do not constitute a disguised restriction on international trade or investment, paragraph 1(b), (c), and (f), and 2(a) and (b), shall not be construed to prevent a Party from adopting or maintaining measures, including environmental measures:
(i) necessary to secure compliance with laws and regulations that are not inconsistent with this Agreement;
(ii) necessary to protect human, animal, or plant life or health; or
(iii)related to the conservation of living and non-living exhaustible natural resources.
(e) Paragraphs 1(a), (b) and (c), and 2(a) and (b), do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs.
(f) Paragraphs 1(b), (c), and (f), and 2(a) and (b), do not apply to government procurement.
(g) Paragraphs 2(a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
Article 10. Senior Management and Boards of Directors
1. Neither Party may require that an enterprise of that Party that is a covered investment appoint to senior management position natural persons of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is a covered investment, be of a particular nationality, or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
Article 11. Entry of Personnel
1. Subject to its measures relating to public health and safety and national security applicable to the entry and sojourn, a Party shall allow the entry and temporary stay of the following personnel:
(a) business visitors: nationals of the other Party who are establishing, or have established an enterprise in its territory to enter and remain temporarily in its territory, including nationals of the other Party working in a senior position in an enterprise of the other Party, who are responsible for setting up an enterprise in its territory.
(b) intra-corporate transferees: managers, executives and specialists defined as senior employees of an enterprise of the other Party that has established an enterprise in its territory, temporarily moving as intra-corporate transferees.
2. The permissible length of stay shall be up to 90 days for business visitors, and up to three years for intra-corporate transferees.
3. This article does not apply to business visitors and intra-corporate transferees employed by a non-profit organization.
Article 12. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made publicly available.
2. Publication of Proposed Investment-related Measures
(a) To the extent possible, each Party should:
(i) publish in advance any measure referred to in paragraph 1 of this Article that it proposes to adopt; and
(ii) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
(b) With respect to proposed laws and regulations of general application respecting any matter covered by this Agreement that are published in accordance with paragraph 1 of this Article, each Party:
(i) shall publish the proposed laws and regulations on an official website or in an official journal or national circulation;
(ii) should in most cases, publish the proposed laws and regulations no less than 30 days before the date public comments are due; and
(iii) shall endeavour to take into account the comments received from interested persons with respect to such proposed laws and regulations.
(c) With respect to laws and regulations of general application that are adopted respecting any matter covered by this Agreement, each Party shall:
(i) publish laws and regulations on an official website or in an official journal or national circulation; and
(ii) to the extent possible, ensure that there is reasonable time between publication and entry into force of the laws and regulations.
3. Publication of other Investment-related Information
Each Party shall make available via electronic means information of importance to investors, and keep the information updated, as appropriate. Such information includes:
(a) information on which sectors are open, restricted or prohibited to foreign direct investment;
(b) where practicable, information on the practical steps relevant to invest in its territory. This information should cover, inter alia, the requirements and procedures, where they exist, related to:
(i) company establishment and business registration;
(ii) connecting to essential infrastructure;
(iii) acquisition and registering of property;
(iv) construction permits;
(v) capital transfers and payments;
(vi) the payment of taxes;
(vii) public incentives available to investors; and
(viii) resolving insolvency;
(c) contact information of relevant competent authorities.
4. Single Information Portal
(a) To the extent practicable, each Party shall endeavor to make available measures and information referred to in paragraphs 1 to 3 through a single information portal, which includes making available the relevant web links to electronic publications.
(b) Each Party shall endeavour to ensure that the single information portal is kept updated.
5. No Fees Imposed for Access to Information
No fee shall be imposed on investor of the other Party for access to the measures or information provided under this Article.
Article 13. Licensing Requirements and Procedures
1. The following disciplines apply to measures adopted or maintained by a Party relating to licensing requirements and procedures that affect establishment and operation of covered investment in the territory of such Party.
2. These disciplines do not apply to applications for and extensions of visas, residence permits and work permits.
3. Each Party, with a view to precluding the competent authorities from exercising their power of assessment in an arbitrary manner, shall ensure that measures relating to licensing requirements and procedures are based on the following criteria:
(a) clear;
(b) objective and transparent;
(c) pre-established, made public in advance and accessible.
4. Licensing procedures shall be clear, as simple as feasible, made public in advance and shall not unduly complicate or delay the making of an investment.
5. Any authorization fees (12) charged by the competent authority from an applicant in connection with the establishment and acquisition of an enterprise, including those charged for the amendment or renewal of such authorization, should be reasonable and commensurate with the administrative cost of the authorization procedures in question. Each Party shall endeavor to periodically review its authorization fees with a view to reducing their number and diversity.
6. If an application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. The applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision.
7.Each Party shall ensure that a licence or an authorization, once granted, enters into effect without undue delay.
Article 14. Investment and Climate Change
Recognizing the importance of pursuing the ultimate objective of the UN Framework Convention on Climate Change of 1992, and the purpose and goals of the Paris Agreement adopted by the Conference of the Parties to the UNFCCC in 2015 in order to combat climate change and its impacts, and committed to enhance the contribution of investment to climate change mitigation and adaptation, each Party shall promote and facilitate investment of relevance for climate change mitigation and adaptation (13).
Article 15. Non-Conforming Measures
1. Articles 3 [National Treatment], 4 [Most-Favored-Nation Treatment], 9 [Performance Requirement] and 10 [Senior Management and Board of Directors] do not apply to:
(a) any existing non-conforming measures maintained within its territory;
(b) the continuation of any non-conforming measure referred to in subparagraph (a);
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not increase the non-conformity of the measure, as it existed immediately before the amendment, with those obligations.
2. Articles 3 [National Treatment] and 4 [Most-Favored-Nation Treatment] do not apply to any measure covered by an exception to, or derogation from, the obligations under Article 3 or 4 of the TRIPS Agreement, as specifically provided in those Articles and in Article 5 of the TRIPS Agreement.
3. Articles 3 [National Treatment] and 4 [Most-Favored-Nation Treatment] do not apply to subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance.
4. Articles 3 [National Treatment] and 4 [Most-Favored-Nation Treatment] do not apply to government procurement.
5.The Parties will endeavor to progressively remove the non-conforming measures.
Article 16. Special Formalities and Information Requirements
1. Nothing in Article 3 [National Treatment] shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with covered investments, such as a requirement on the filing for establishment of and changes to the covered investments of the other Party, provided that such formalities do not materially impair the protections afforded by a Party to investors of the other Party and covered investments pursuant to this Agreement.
2. Notwithstanding Articles 3 [National Treatment] and 4 [Most-Favored-Nation Treatment], a Party may require an investor of the other Party or its covered investment to provide information concerning that investment solely for informational or statistical or administrative purposes. The Party shall protect any confidential business information from any disclosure that would prejudice the competitive position of the investor or the covered investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law.
Article 17. Subrogation
If a Party (or any statutory body, governmental agency or institution, or corporation designated by the Party) makes a payment to an investor of the Party under a guarantee, a contract of insurance or other form of indemnity that it has entered into with respect to a covered investment, the other Party, in whose territory the covered investment was made, shall recognize the subrogation or transfer of any rights the investor would have possessed under this Agreement with respect to the covered investment but for the subrogation, including any rights under Section B, and the investor shall be precluded from pursuing such rights to the extent of the subrogation.
Article 18. Denial of Benefits
1. A Party may, at any time, including after the institution of arbitration proceedings in accordance with Section B of this Agreement, deny the benefits (14) of this Agreement to an investor of the other Party that is an enterprise of such other Party and to investments of that investor if a non-Party, or persons of a non-Party own or control the enterprise and the denying Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or to its investments.
2. A Party may, at any time, including after the institution of arbitration proceedings in accordance with Section B of this Agreement, deny the benefits of this Agreement to an investor of the other Party that is an enterprise of such other Party and to investments of that investor if the enterprise has no substantial business activities in the territory of the other Party and a non-Party, persons of a non-Party, or of the denying Party, own or control the enterprise.
Article 19. Disclosure of Information
Nothing in this Agreement shall be construed to require a Party to furnish or allow access to protected information, or other confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 20. Essential Security
1. Nothing in this Agreement shall be construed:
(a) to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
2. With respect to investors of the other Party and covered investments affected by such measures, each Party shall accord non-discriminatory treatment to them, regardless of whether they are governmentally or privately owned.
Article 21. Prudential Measures
1. Notwithstanding any other provision of this Agreement, a Party shall not be prevented from adopting or maintaining measures relating to financial services for prudential reasons, including for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial services supplier, or to ensure the integrity and stability of the financial system. (15)
2. Nothing in this Agreement applies to non-discriminatory measures of general application in pursuit of monetary and related credit policies or exchange rate policies (16). This paragraph shall not affect a Party's obligations under Article 8 [Transfers].
Article 22. Entry Into Force, Duration, and Termination
1. The Parties shall notify each other in writing through diplomatic channels of the fulfillment of their domestic legal procedures in relation to the ratification and entry into force of this Agreement. This Agreement shall enter into force on the thirtieth day after the receipt of the later of the two notifications. It shall remain in force for a period of fifteen years and shall continue in force thereafter unless terminated in accordance with paragraph 2.
2. A Party may terminate this Agreement at the end of the initial fifteen-year period or at any time thereafter by giving written notice to the other Party one year in advance. Termination shall take effect one year after the date of receipt of the written notice.
3. With respect to covered investments made prior to the date of termination of this Agreement, all other Articles shall continue to be effective for an additional fifteen-year period from the date of termination.
4. Upon entry into force of this Agreement, Agreement between the Government of the Peopleâs Republic of China and the Government of the Republic of Tajikistan for the Promotion and Reciprocal Protection of Investments, signed on 9 March 1993, shall automatically terminate.
Section B. Investor-State Dispute Settlement
Article 23. Consultations
1. In the event of an investment dispute, if the claimant intends to submit the dispute to arbitration, it shall deliver a request for consultations to the respondent at least 180 days prior to submission of the dispute to arbitration. The request shall:
(a) specify the name and address of the claimant;
(b) for each claim, identify the provision of this Agreement or the investment agreement alleged to have been breached and any other relevant provisions;
(c) for each claim, identify the measures or events giving rise to the claim;
(d) specify the relief sought and the approximate amount of damages claimed.
2. After a request for consultations is made pursuant to this Section, the claimant and the respondent shall enter into consultations (17) with a view to reaching a mutually satisfactory solution.
Article 24. Submission of a Claim to Arbitration
1. In the event that the claimant considers that an investment dispute cannot be settled by consultations pursuant to Article 23 [Consultations] and 180 days have elapsed since the date of the request for consultations, the claimant may submit to arbitration under this Section a claim:
(a) that the respondent has breached
(i) an obligation under Article 3 [National Treatment], Article 4. [Most-Favored Nation Treatment], provided that the claim does not in any way relate to treatment with respect to establishment, acquisition or expansion of investments in the territory of the respondent;
(ii) an obligation under Article 5 [Minimum Standard of Treatment], Article 6 [Compensation for Losses], Article 7 [Expropriation and Compensation], Article 8 [Transfers], Article 9 [Performance Requirement], and Article 10 [Senior Management and Board of Directors]; or
(iii) an investment agreement; and
(b) that the claimant has incurred loss or damage by reason of, or arising out of, that breach.
2. An investor of a Party may not initiate or continue a claim under this Section if a claim involving the same measure or measures alleged to constitute a breach under this Article and arising from the same events or circumstances is initiated or continued pursuant to an agreement between the respondent and a non-Party by:
(a) an enterprise of a non-Party that owns or controls, directly or indirectly, the investor of a Party; or
(b) an enterprise of a non-Party that is owned or controlled, directly or indirectly, by the investor of a Party.
Notwithstanding this paragraph, the claim may proceed if the respondent agrees that the claim may proceed, or if the investor of a Party and the enterprise of a non-Party agree to consolidate the claims under the respective agreements before a tribunal constituted under this Section.
3. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to in paragraph 1 of this article:
(a) under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the non-disputing Party are parties to the ICSID Convention;
(b) under the ICSID Additional Facility Rules, provided that either the respondent or the non-disputing Party is a party to the ICSID Convention;
(c) under the UNCITRAL Arbitration Rules (18); or
(d) if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.
4. The arbitration rules applicable under paragraph 3 of this article, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Agreement.
Article 25. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than six years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under Article 24 [Submission of a Claim to Arbitration] 1(a) and knowledge that the claimant has incurred loss or damage.
2. No claim may be submitted to arbitration under this Section unless:
(a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement;
(b) the claim arises from measures included in the request for consultations submitted by the claimant in accordance with Article 23 [Consultations]; and
(c) the notice of arbitration is accompanied by the claimant's written waiver, of any right to initiate or continue before any administrative tribunal or court under the law of a Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 24 [Submission of a Claim to Arbitration].