Title
Agreement between the Government of the United Mexican States and the Government of the Republic of Haiti for the Promotion and reciprocal protection of investments
Preamble
The Government of the United Mexican States and the Government of the Republic of Haiti (hereinafter referred to as the contracting parties;
Desiring to intensify the economic cooperation for their mutual benefit;
Aim to create and maintain favourable conditions for investments by investors of one Contracting Party in the territory of the other contracting party;
Recognizing the need to promote and protect foreign investment in order to stimulate the flow of capital and productive economic prosperity;
Have agreed as follows:
Body
Article 1.
Definitions
For the purposes of this Agreement, the term:
1. "Company" means any entity incorporated or organized in accordance with the applicable legislation, whether or not for profit and whether private or government owned, including any society, trusts, Association, sole property, firms,joint venture, cooperations or other association
2. "ICSID" means the International Centre for Settlement of Investment Disputes;
3. "ICSID Additional Facility Rules" means the Rules of the additional facility for the administration of proceedings by the secretariat of the ICSID on its reforms;
4. "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, reforms;
5. "investment" means any of the following assets that are under control of the investors of one Contracting Party and that are established or acquired in accordance with the laws and regulations of the other Contracting Party in whose territory the investment is made:
(a) An enterprise;
(b) Actions, social partners and other forms of participation in the capital of an enterprise;
(c) Debt instruments of an enterprise:
(i) Where the enterprise is an affiliate of the investor, or
(ii) Where the original maturity of the debt instrument is at least three years,
But does not include a debt instrument of a Contracting Party or a state enterprise, regardless of original maturity date;
(d) A loan to an enterprise:
(i) Where the enterprise is an affiliate of the investor, or
(ii) Where the original maturity of the loan is at least three (3) years,
But does not include a loan to a contracting party or a state enterprise, regardless of original maturity date
(e) Real estate or other tangible or intangible property acquired or used for the purpose of obtaining an economic benefit or for other business purposes;
(f) Participation of capital or other resources in the Territory of a Contracting Party to economic activity in that territory, in accordance with
(i) Contracts involving the presence of an investor's property in the territory of the other contracting party, including turnkey or construction, or concessions,
(ii) Contracts where remuneration depends substantially on the production, income or profits of an enterprise;
(g) Monetary claims or that involve the kinds of interests set out in subparagraphs (a) to (f) above, but does not include monetary claims derived exclusively from
(i) Commercial contracts for the sale of goods or services by a national or enterprise in the territory of a contracting party to an enterprise in the territory of the other Contracting Party, or
(ii) The granting of credit in connection with a commercial transaction, such as trade financing, which are not concerning the loan covered by the dispositions under subparagraph (d) above;
(h) Intellectual Property Rights including, but not limited, to rights and related rights, patents, industrial designs, knowledge ("know-how"), trademarks, trade secrets and business, trade names, geographical indications and layout designs (topographies) of integrated circuits; rights as defined in plant varieties; or referred to in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at the World Trade Organization;
6. "investor of a Contracting Party" means:
(a) a natural person who has the nationality of a Contracting Party in accordance with its applicable law; or
(b) a company which is constituted or otherwise organised in accordance with the legislation of a Contracting Party and having substantive business operations in the territory of that Contracting Party, that has made an investment in the territory of the other Contracting party
7. "New York Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted at the United Nations framework at New York on 10 June 1958;
8. "UNCITRAL arbitration regulation" means the Arbitration Rules of the United Nations Comission for International Trade Law adopted by the General Assembly of the United Nations, on 15 December 1976
9. "State enterprise" means an enterprise owned or controlled through ownership interests, by a contracting party, and
10. " territory" means:
(a) With respect to the United Mexican States (also referred to as "Mexico"), the Territory of the United Mexican States including maritime areas adjacent to the territorial sea of the respective State i.e the exclusive economic zone and the continental shelf within which it exercises sovereign rights or jurisdiction over such areas in accordance with international law; and
(b) With respect to the Republic of Haiti, the territory of the Republic of Haiti that includes:
(i) In the western part of the island of Haiti and islands adjacent conave, the Tortue, Ile รก Vache caye them, mites, Grande caye other islands and the territorial sea;
(ii) Identified this by the Dominican Republic, in the North Atlantic Ocean, and South West and the Caribbean Sea;
(iii) And territorial sea and the exclusive economic zone, and the air space over the portion of land and sea.
Article 2. Admission of Investments
1. Each Contracting Party shall admit investments by investors of the other Contracting Party in accordance with its laws and regulations.
2. For greater certainty, the present agreement does not cover government procurement; subsidies or grants provided by a party or a state enterprise, including government support, collateral loans and insurance.
Article 3. Promotion and Facilitation of Investments
Contracting parties shall endeavour to cooperate with the aim of promoting and facilitating the investment flows between their territories.
This cooperation may include:
1. Proportionate information to its investors on the measures of the other contracting party to promote investment in its territory and information on the investment regime of the other contracting party.
2. The establishment of links between the Centre of Research and Training, Specialized agencies and business organizations of the Contracting Parties, Promote technology transfer and knowledge exchange on entrepreneurship, management, research and management of the centres, production and quality standards;
3. Periodic investment missions, supporting joint business councils and other cooperation activities to promote investment;
4. Facilitate information on investment of a contracting party in the territory of the other contracting party
5. Protect confidential information in compliance with the obligations set forth in this chapter.
Article 4. National Treatment and Most Favoured Nation Treatment
1. Each Contracting Party shall accord to investors of the other Contracting Party and their investments treatment no less favourable than that accorded in like circumstances to its own to investors and investments of its own investors with respect to the management, maintenance, use, enjoyment or disposal of investments.
2. Each Contracting Party shall accord to investors of the other Contracting Party and their investments treatment no less favourable than that accorded in like circumstances to investors and to investments of investors of any third State as regards the management, maintenance, use, enjoyment or disposal of investments.
3. For greater certainty, without prejudice to any other bilateral investment agreement which the contracting parties have signed with other States before or after the Entry into Force of this Agreement, the most favoured nation treatment shall not apply to matters or judicial proceedings.
4. This article shall not be construed as to oblige one contracting party to extend to investors of the other contracting party and to their investments, the benefit of any treatment, preference or privilege which may be extended by virtue of that Contracting Party by:
a) Any regional economic integration organization, free trade area, customs union, monetary union or other similar integration existing or future, of which one of the contracting parties is or becomes a party;
b) Any right or obligation of a contracting party under an international agreement or arrangement wholly or partially related to taxation. In the event of inconsistency between this Agreement and any international agreement or arrangement taxation, the latter shall prevail.
Article 5. Minimum Standard of Treatment
1. Each Contracting Party shall accord to investments of investors as of the other contracting party treatment pursuant to the customary International Law including fair and equitable treatment and full protection and security.
2. For greater certainty:
a) The concepts of Fair and Equitable Treatment and full protection and security do not require additional treatment to that required under the minimum standard of treatment of aliens own of customary international law;
b) and beyond the territory, and a determination that there is another provision of this has breached agreement, or of a separate international agreement does not establish that there has been a violation of this article.
Article 6. Compensation for Losses
Investors of one Contracting Party whose investments in the territory of the other contracting party suffer losses owing to war, armed conflict, a national state of emergency, revolt, insurrection or any other similar event shall be accorded, with respect to measures such as restitution, indemnification, compensation or other settlement, a treatment no less favourable than the treatment accorded by the other contracting party to its own investors investors or of any third State.
Article 7. Expropriation and Compensation
1. Neither Contracting Party shall expropriate or nationalize an investment, either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation), except:
a) For a public purpose;
b) On a non-discriminatory basis;
c) In accordance with the due process, and
d) Through the compensation in accordance with the following paragraph 2
2. The compensation shall:
b) Be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place. The fair market value shall not reflect any change in value because the intended expropriation had become publicly known in advance.
Valuation criteria shall include going concern value, including asset value declared tax value of tangible property as well as other criteria that are relevant to determine fair market value
b) Be paid without delay;
c) Include interest at a reasonable rate for that currency from the date of expropriation until the date of payment, and
d) Be completely realizable and be freely transferable.
Article 8. Transfers
1. Each Contracting Party shall permit all transfers relating to an investment of an investor of the other contracting party be made freely and without delay. Transfers shall be made in a freely convertible currency at the rate of exchange prevailing on the date of transfer. Such transfers shall include:
(a) returns, profits, dividends, interests, capital gains, payment of royalties, management fees;
(b) payments of fees or other technical assistance resulting from the investment products derived from the sale of all or part of the investment or from the partial or complete liquidation of the investment;
(c) Payments in accordance with a contract of which is a party to an investor or investment including its payments in accordance with a loan agreement;
(d) Payments arsing from the compensation for losses or expropriation, and
(e) Payments pursuant to Chapter IV, Section first
2. Notwithstanding paragraph 1, a Contracting Party may prevent a transfer through the equitable and non-discriminatory application in good faith of its laws relating to:
(a) Bankruptcy or insolvency or the protection of the rights of creditors;
(b) Issuance, trading or operations;
(c) Criminal or administrative offences;
(d) Reports of transfers of currency or other monetary instruments; or
(e) Guarantee of compliance with judgments in contentious proceedings.
3. In case of a fundamental imbalance in the balance of payments or a threat thereof, a Contracting Party may temporarily restrict transfers provided that such a contracting party incorporate measures or a programme in accordance with the articles of the agreement of the International Monetary Fund, and that the measures shall not exceed those necessary to deal with the circumstances set out in this paragraph. These restrictions should be imposed on an equitable, non-discriminatory basis and in good faith, and shall be notified to the other contracting party.
Article 9. Subrogation
1. If a Contracting Party or the entity designated by it has granted a financial guarantee against non-commercial risks with regard to an investment by one of its investors in the territory of the other contracting party, and makes a payment under such guarantee, or exercises its rights as subrogee, the latter Contracting Party shall recognize the subrogation of any right, title or claim, privilege or actions. The Contracting Party or its designated agency shall not assert greater rights than those of the person or entity from whom such rights were received.
2. In the event of any dispute arise, the Contracting Party or its designated agency which has been subrogated in the rights of the investor may not initiate or participate in proceedings before a national court, nor submit the dispute to international arbitration in accordance with chapter IV.
Article 10. Denial of Benefits
The Contracting Parties may decide jointly in consultation to deny the benefits of this agreement to a company of the other Contracting Party and to its investments, if a natural person or a company of a non-Contracting Party owns or controls such enterprise.
Section I. Settlement of Disputes between a Contracting Party and an Investor of the other Contracting Party
Article 11. Scope
This section shall apply to disputes between a Contracting Party and an investor of the other Contracting Party arising out of an alleged breach of an obligation under chapter III that has resulted in a loss or damage.
Article 12. Notification of Intention and Consultations
1. The Parties involved shall endeavour first to solve the dispute amicably through consultation or negotiation.
2. The combatant investor shall notify in writing to the combatant contracting party its intention to submit a claim to arbitration at least six months before the claim is submitted. The notice shall specify:
a) The name and address of the combatant investor and, when the claim is made by an investor on behalf of an enterprise, pursuant to article 13, the name and address of the enterprise;
b) The provisions of chapter III alleged to have been breached;
c) The legal and factual issues surrounding the claim;
d) The kind of investment involved in compliance with the definition established in article 1 and the relief sought and the approximate amount of damages claimed.
3. Additionally, the notification should be submitted; in accordance with the annex 12
Article 13. Submission of a Claim
1. An investor of a Contracting Party may submit to arbitration a claim that the other contracting party has breached an obligation established in chapter III and that the investor has incurred loss or damage by virtue of that breach or as a result of the latter
2. An investor of a Contracting Party on behalf of an enterprise legally constituted in accordance with the Iegislation the other Contracting Party that is a legal person that the investor owns or controls, may submit to arbitration a claim that the other contracting party has breached an obligation under chapter III and that the enterprise has incurred loss or damage by virtue of that breach or as a result of the latter.
3. A contending investor may submit the claim to arbitration in accordance with:
(a) the ICSID Convention provided that both the contracting party litigants as a contracting party of the investor are parties to the ICSID Convention;
(b) the ICSID Additional Facility Rules), if the contending contracting party or the contracting party of the investor, but not both, is a party to the ICSID Convention;
(c) the UNCITRAL Arbitration Rules; or
(d) any other arbitration rules if the parties involved so agree.
4. A contending investor may submit a claim to arbitration only if:
(a) the Investor expresses its consent to arbitration in accordance with the procedures forth in this section, and
(b) If the investor submits a claim for international arbitration regarding loss or damage of an enterprise that is a legal person that investor owns or control; in such a case the case cannot be submitted before any administrative tribunal or court under the domestic law of that Contracting Party, except for proceedings for injunctive, declaratory or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the disputing contracting party.
5. A disputing investor may submit a claim to arbitration on behalf of an enterprise of the other Contracting Party that is a legal person that the investor owns or controls, only if both the investor and the Enterprise:
(a) Express their consent to arbitration in accordance with the procedures set forth in this section; and
(b) waive their right to initiate or continue any proceedings before an administrative tribunal or court under the law of a contracting party or other dispute settlement procedures with respect to the measure of a contending Contracting Party that is alleged to be a breach of Chapter III, except for proceedings in which it is requested precautionary measures of suspensive effect, declaratory or special, not involving the payment of damages, before an administrative tribunal or court under the law of the disputing contracting party.
6. The consent and waiver required by this article shall be in writing, be delivered to the contending contracting party and included in the submission of a claim to arbitration.
7. The applicable arbitration rules shall govern the arbitration except to the extent modified by this section.
8. A dispute may be submitted to arbitration provided that the expiry of a period not exceeding three (3) years from the date on which the investor or enterprise of the other contracting party combatant that is a legal person that owns the investor or under its control, had for the first time or should have first acquired knowledge of the events which gave rise to the dispute.
9. A claim shall be deemed submitted to arbitration in accordance with this section when:
(a) The request for arbitration under paragraph (3) of article 36 of the ICSID Convention has been Registered by the Secretary-General;
(b) The (request) notice of arbitration in accordance with the article 4 of Schedule C of the ICSID Additional Facility Rules has been registered by the Secretary-General;
(c) The notice of arbitration given under the UNCITRAL Arbitration Rules is received by the disputing Contracting Party, or
(d) The notice of arbitration given under any other arbitration rules is received by the disputing Contracting Party.
10. If an investor or an enterprise owned or controlled by the investor submits the controversy referred to in paragraphs 1 or 2 above before a competent Court or Administrative Tribunal of the Contracting Party, the same dispute shall not be submitted to arbitration as set out in this section.
Article 14. Consent of the Contracting Party
1. Each Contracting Party consents to the submission of a dispute to international arbitration in accordance with this section.
2. The consent and the submission of a claim to arbitration by the investor combatant shall comply with the requirements set out in:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules on the written consent of the Parties, and
(b) Article 2 (ii) of the New York Convention on the "agreement in writing".
Article 15. Constitution of the Arbitral Tribunal
1. Unless the parties agree otherwise, the arbitral tribunal shall be composed of three arbitrators. Each Party shall appoint an arbitrator and litigants warring parties shall appoint by common agreement the third arbitrator who shall be the presidente of the arbitral tribunal.
2. Arbitrators shall have expertise or experience in International Law, international trade or international investment rules, or in the settlement of disputes arising under international trade or international investment agreements.
3. An arbitrator shall be independent and not be affiliated with or take instructions from either of the Contracting Parties or warring parties
4. If an arbitral tribunal has not been constituted within ninety (90) days from the date on which the claim was submitted to arbitration, either because a contending party does not appoint its arbitrator or the parties have not reached an agreement on the appointment of the Chairman of the Tribunal; the Secretary-General of ICSID, at the request of any of the Parties in conflict, shall be asked to appoint the arbitrator or arbitrators not yet appointed. However, the Secretary-General of ICSID, when appointing the President of the Tribunal, shall ensure that he or she is not a national of either of the Contracting Parties.
Article 16. Consolidation
1. The Secretary-General of ICSID shall establish a consolidation tribunal in accordance with the UNCITRAL Arbitration Rules, leading its proceedings in accordance with those rules, except as provided in this section.
2. In the interest of fair and efficient resolution except and unless the interests of any of the Parties in conflict would be seriously affected, a tribunal established in accordance with this article may consolidate the proceedings when: