Title
AGREEMENT BETWEEN CANADA AND THE REPUBLIC OF CAMEROON FOR THE PROMOTION AND PROTECTION OF INVESTMENTS
Preamble
CANADA AND THE REPUBLIC OF CAMEROON (the Parties),
RECOGNIZING that the promotion and the protection of investments of investors of one Party in the territory of the other Party will be conducive to the stimulation of mutually beneficial business activity, to the development of economic cooperation between them and to the promotion of sustainable development,
HAVE AGREED as follows:
Body
Section A. Definitions
Article 1. Definitions
For the purpose of this Agreement:
"Competition authority" means:
(a) for Canada, the Commissioner of Competition or a successor to be notified to the Republic of Cameroon by diplomatic note; and
(b) for the Republic of Cameroon, the Minister of Trade or a successor to be notified to Canada by diplomatic note;
"Confidential information" means confidential business information or information that is privileged or otherwise protected from disclosure under the law of a Party;
"Covered investment" means, with respect to a Party, an investment:
(a) in its territory;
(b) by an investor of the other Party;
(c) existing on the date of entry into force of this Agreement, as well as an investment made or acquired thereafter;
(d) that has been admitted in accordance with the first-mentioned Partys laws and regulations;
"Disputing party" means either the respondent Party or the investor that has made a claim under Section C;
"Enterprise" means an entity constituted or organized under applicable law, whether or not for profit, whether privately owned or governmentally owned, including a corporation, trust, partnership, sole proprietorship, joint venture or other association and a branch of any such entity;
"Existing" means in effect on the date of entry into force of this Agreement;
"Financial institution" means a financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located;
"Financial service" means a service of a financial nature, including insurance, and a service incidental or auxiliary to a service of a financial nature;
"ICSID" means the International Centre for Settlement of Investment Disputes established by the ICSID Convention;
"ICSID Convention" means the Convention on the settlement of investment disputes between States and nationals of other States, done at Washington on 18 March 1965;
"Information protected under its competition laws" means:
(a) for Canada, information within the scope of Section 29 of the Competition Act, R.S.C. 1985, c. C-34, or a successor provision;
(b) for the Republic of Cameroon, information within the scope of Competition Law No. 98/103 of 14 July 1998, or a successor provision;
"Intellectual property rights" means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders rights;
"Investment" means:
(a) an enterprise;
(b) a share, stock or other form of equity participation in an enterprise;
(c) a bond, debenture or other debt instrument of an enterprise;
(d) a loan to an enterprise;
(e) notwithstanding subparagraphs (c) and (d) above, a loan to or debt security issued by a financial institution is an investment only where the loan or debt security is treated as regulatory capital by the Party in whose territory the financial institution is located;
(f) an interest in an enterprise that entitles the owner to a share in income or profits of the enterprise;
(g) an interest in an enterprise that entitles the owner to share in the assets of that enterprise on dissolution;
(h) an interest arising from the commitment of capital or other resources in the territory of a Party to economic activity in that territory, such as under:
(i) a contract involving the presence of an investors property in the territory of the Party, including a turnkey or construction contract, or a concession, or
(ii) a contract where remuneration depends substantially on the production, revenues or profits of an enterprise;
(i) intellectual property rights; and
(j) any other tangible or intangible, moveable or immovable, property and related property rights acquired in the expectation of or used for the purpose of economic benefit or other business purpose;
But "investment" does not mean:
(k) a claim to money that arises solely from:
(i) a commercial contract for the sale of a good or service by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party, or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing; or
(l) any other claim to money,
That does not involve the kinds of interests set out in subparagraphs (a) to (j);
"Investment of an investor of a Party" means an investment owned or controlled directly or indirectly by an investor of that Party;
"Investor of a Party" means a Party, or a national or an enterprise of a Party, that seeks to make, is making or has made an investment. For greater certainty, it is understood that an investor seeks to make an investment only when the investor has taken concrete steps necessary to make the investment;
"Measure" includes a law, regulation, procedure, requirement, or practice;
"National" means:
(a) for Canada, a natural person who has the citizenship or is a permanent resident of Canada; and
(b) for the Republic of Cameroon, a natural person who has the nationality of the Republic of Cameroon;
A natural person who has the citizenship or nationality of one Party and is a permanent resident of the other Party shall be deemed to be exclusively a national of the Party of his or her citizenship or nationality;
"National government" means:
(a) for Canada, the federal government; and
(b) for the Republic of Cameroon, the government of the Republic of Cameroon;
"New York Convention" means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
"Person" means a natural person or an enterprise;
"Respondent Party" means a Party against which a claim is made under Section C;
"Sub-national government" means, for Canada, a provincial, territorial or local government;
"Territory" means:
(a) in the case of Canada:
(i) the land territory, internal waters and territorial sea, and including the air space above these areas,
(ii) the exclusive economic zone of Canada, as determined by its domestic law, consistent with Part V of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982 (UNCLOS), and
(iii) the continental shelf of Canada, as determined by its domestic law, consistent with Part VI of UNCLOS;
(b) in the case of the Republic of Cameroon: the territory of the Republic of Cameroon, including the territorial sea, the air space and any other maritime area of the Republic of Cameroon that has been or may be designated under the laws in force in its territory, and in accordance with international law, as an area within which the Republic of Cameroon has sovereignty and jurisdiction;
"TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights;
"UNCITRAL Arbitration Rules" means the arbitration rules of the United Nations Commission on International Trade Law, in their most recent form; and
"WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Section B. Substantive Obligations
Article 2. Scope
1. This Agreement shall apply to measures adopted or maintained by a Party relating to:
(a) an investor of the other Party; or
(b) a covered investment.
2. The obligations in Section B apply to a person of a Party when it exercises a regulatory, administrative or other governmental authority delegated to it by that Party.
Article 3. Promotion of Investment
1. Each Party shall encourage the creation of favourable conditions for investment in its territory by investors of the other Party and shall admit such investments in accordance with this Agreement.
2. The Parties shall encourage the creation of jobs in Canada through Cameroonian investments and the creation of jobs in the Republic of Cameroon through Canadian investments.
Article 4. National Treatment
1. Each Party shall accord to an investor of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
2. Each Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of a non-Party.
Article 5. Most-favoured-nation Treatment
1. Each Party shall accord to an investor of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
2. Each Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
3. For greater certainty, the treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of a non-Party.
Article 6. Minimum Standard of Treatment
1. Each Party shall accord to a covered investment treatment in accordance with the customary international law minimum standard of treatment of aliens, including fair and equitable treatment and full protection and security.
2. The concepts of fair and equitable treatment and full protection and security in paragraph 1 do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.
3. A breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
Article 7. Compensation for Losses
Notwithstanding subparagraph 5(b) of Article 16 (Reservations and Exceptions), each Party shall accord to an investor of the other Party, and to a covered investment, non-discriminatory treatment with respect to measures it adopts or maintains relating to compensation for losses incurred by investments in its territory as a result of armed conflict, civil strife or a natural disaster.
Article 8. Senior Management, Boards of Directors and Entry of Personnel
1. A Party shall not require that an enterprise of that Party that is a covered investment appoint to a senior management position an individual of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of enterprises that are covered investments 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.
3. Subject to its domestic law relating to the entry of aliens, each Party shall grant temporary entry to nationals employed by an investor of the other Party who seek to render managerial or executive services, or services that require specialized knowledge, to an investment of that investor in the territory of the Party.
Article 9. Performance Requirements
1. A Party may not impose the following requirements in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Party in its territory:
(a) to export a given level or percentage of a good or service;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to a good produced or service provided in its territory, or to purchase a good or service from a person in its territory;
(d) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment;
(e) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings;
(f) to transfer technology, a production process or other proprietary knowledge to a person in its territory; or
(g) to supply exclusively from the territory of the Party a good that the investment produces or a service it provides to a specific regional market or to the world market.
2. A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements is not inconsistent with subparagraph 1(f).
3. A Party may not, without the investors consent, condition the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party, on compliance with the following requirements:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use or accord a preference to a good produced in its territory, or to purchase a good from a producer in its territory;
(c) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment; or
(d) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings.
4. (a) Paragraph 3 does not prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
(b) Subparagraph 1(f) does not apply if the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of domestic competition law.
5. Paragraphs 1 and 3 do not apply to a requirement other than the requirements set out in those paragraphs.
6. The provisions of:
(a) subparagraphs 1(a), (b) and (c), and 3(a) and (b), do not apply to a qualification requirement for a good or service with respect to export promotion and foreign aid programs;
(b) subparagraphs 1(b), (c), (f) and (g), and 3(a) and (b), do not apply to procurement by a Party or a State enterprise; and
(c) subparagraphs 3(a) and (b) do not apply to a requirement imposed by an importing Party relating to the content of a good necessary to qualify for a preferential tariff or preferential quota.
Article 10. Expropriation
1. Neither Party shall nationalize or expropriate a covered investment either directly or indirectly through measures having an effect equivalent to nationalization or expropriation (expropriation) except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on payment of compensation in accordance with paragraphs 2 and 3. For greater certainty, this paragraph shall be interpreted in accordance with paragraph 6.
2. The compensation referred to in paragraph 1 must be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (date of expropriation), and must not reflect a change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.
3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be paid in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency from the date of expropriation until date of payment.
4. The affected investor shall have a right under the law of the expropriating Party to prompt review of its case and of the valuation of its investment by a judicial or other independent authority of that Party in accordance with the principles set out in this Article.
5. This Article does not apply to the issuance of a compulsory licence granted in relation to intellectual property rights, or to the revocation, limitation or creation of an intellectual property right, to the extent that such issuance, revocation, limitation or creation is consistent with the WTO Agreement.
6. The Parties confirm their shared understanding that:
(a) indirect expropriation results from a measure or series of measures of a Party that have an effect equivalent to direct expropriation without formal transfer of title or outright seizure;
(b) the determination of whether a measure or series of measures of a Party constitute an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred,
(ii) the extent to which the measure or series of measures interferes with distinct, reasonable, investment-backed expectations, and
(iii) the character of the measure or series of measures;
(c) except in rare circumstances, such as when a measure or series of measures is so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.
Article 11. Transfers
1. Each Party shall permit all transfers relating to a covered investment to be made freely, and without delay, into and out of its territory. Those transfers include:
(a) contributions to capital;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other fees, returns in kind and other amounts derived from the covered investment;
(c) proceeds from the sale of all or any part of the covered investment or from the partial or complete liquidation of the covered investment;
(d) payments made under a contract entered into by the investor or the covered investment, including payments made pursuant to a loan agreement;
(e) payments made under Articles 7 (Compensation for Losses) and 10 (Expropriation); and
(f) payments arising under Section C.
2. Each Party shall permit transfers relating to a covered investment to be made in the convertible currency in which the capital was originally invested, or in any other convertible currency agreed to by the investor and the Party concerned. Unless otherwise agreed by the investor, transfers shall be made at the market rate of exchange in effect on the date of transfer.
3. For greater certainty, this Agreement does not prevent a Party from requiring, prior to transfers relating to a covered investment, investors to meet their tax obligations arising from the investment in question.
4. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer through the equitable, non-discriminatory and good faith application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of a creditor;
(b) issuing, trading or dealing in securities;
(c) a criminal or penal offence;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or
(e) ensuring compliance with an order or judgment in judicial or administrative proceedings.