Poland - United States of America BIT (1990) - Electronic Database of Investment Treaties (EDIT)

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Poland - United States of America BIT (1990)

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For the Republic of Poland:

Tadeusz Mazowiecki.

Attachments

Annex

1. Consistent with Article II, paragraph 1, the United States reserves the right to make or maintain limited exceptions in the sectors or matters it has indicated below:

Air transportation; ocean and coastal shipping; banking; insurance; government rants; government insurance and loan programs; energy and power production; custom house brokers; ownership of real estate; ownership and operation of broadcast or common carrier radio and television stations; ownership of shares in the Communications Satellite Corporation; the provision of common carrier telephone and telegraph services; the provision of submarine cable services; use of land and natural resources;

2. Consistent with Article II, paragraphs 1 and 9, the United States shall accord treatment in accordance with its laws and regulations with respect to primary dealership in U.S. government securities; maritime related services; and the sale, offering for sale and acquisition of equity shares and other securities and all services and activities related thereto.

3. Consistent with Article III, paragraph 2, the United States reserves the right to make or maintain limited exceptions in the sectors or matters noted in paragraph 1 of this Annex.

4. Consistent with Article 11, paragraph 1, the Republic of Poland reserves the right to make or maintain limited exceptions in the sectors or matters it has indicated below:

Air transportation; ocean and coastal shipping; banking; insurance; government grants; government insurance and loan programs; energy and power production; custom house brokers; ownership and use of real estate; ownership and operation of broadcast or common carrier radio and television stations; the provision of postal, telephone, telegraph and other telecommunications services; exploitation of natural resources; commercial agency and broker activities performed for third parties; railway transportation; dealership in securities; the sale, offering for sale and acquisition of equity shares and other securities; maritime related services; publishing and printing activities; lotteries and games of chance; public utilities; spirits and alcoholic beverages; operation of ports and airports.

The Republic of Poland reaffirms its intention to eliminate the state monopoly status of a number of sectors and matters listed above. As the process of privatization and demonopolization progresses, the Republic of Poland intends to remove some of these sectors or matters from the list of exceptions in this Annex. The Republic of Poland will notify the Government of the United States the measures being taken in fulfillment of the Republic of Poland takes note of the particular interest in the sectors of telecommunications, publishing and printing, banking and other financial services (including insurance).

5. Consistent with Article II, paragraph 8(c), the Republic of Poland shall accord the treatment provided therein with respect to access to financial institutions and credit markets only to (i) nationals of the United States legally resident in the territory of the Republic of Poland; and (ii) companies incorporated in the republic of Poland which are owned or controlled directly or indirectly by nationals or companies of the United States. The Parties understand that these Limitations shall be eliminated upon the introduction of the full convertibility of the zloty.

6. Consistent with Article III, paragraphs 2(c) and 3, the Republic of Poland shall accord the treatment provided therein with respect to access to financial institutions, credit markets and foreign exchange only to (i) nationals of the United States legally resident in the territory of the Republic of Poland; and (ii) companies incorporated in the Republic of Poland which are owned or controlled directly or indirectly by nationals or companies of the United States. The Parties understand that these limitations shall be eliminated immediately upon the introduction of the full convertibility of the zloty.

7. During the period of transformation of Polish economic law but in no case beyond December 31, 1992, the Republic of Poland may add to the list of sectors or matters indicated in this Annex if needed in order to comply with changes in Polish law, provided that any such modifications shall be kept to a minimum and shall not significantly impair investment or commercial opportunities for nationals and companies of the United States under this Treaty. Any modifications under this paragraph shall not apply to investments and associated activities existing at the time such modifications become effective.

Protocol

1. The Republic of Poland agrees that nationals and companies of the United States shall be free to select commercial agents of their choice and to agree upon commission rates with such agents.

2. The Parties understand that with respect to transfers referred to in Article V, paragraph 1 of the Treaty, the term "without delay" means that transfers should be made in accordance with normal banking and commercial practices. The Parties further understand that normal banking and commercial practices in the Republic of Poland are generally governed by the National Bank of Poland. Under current provisions issued by the Bank, companies which are investments can obtain foreign exchange within three working days if such foreign exchange is obtained from a bank lised to conduct foreign exchange transactions, and eight working days in all other instances in connection with payments for imported goods and related services.

3. The Republic of Poland affirms its policy of ensuring that bank deposits held within the territory of Poland receive a positive real rate of interest.

4. Notwithstanding the provisions of Article V, paragraph with regard to the Republic of Poland the transfer of profits derived from an investment exceeding the amount transferrable under Article 19, paragraph 1, of the Law of December 23, 1988 on Economic Activity with the Participation of Foreign Parties shall be made according to the following schedule:

As of 1st January 1992: 20 percent of the remaining profits gained in 1990-1991 and not previously transferred.

As of lst January 1993: 35 percent of the remaining profits gained in 1990-1992 and not previously transferred.

As of lst January 1993: 50 percent of the remaining profits gained in 1990-1993 and not previously transferred.

As of lst January 1995: 80 percent of the remaining profits gained in 1990-1993 and not previously transferred.

As of lst January 1996: 100 percent of the remaining profits gained in 1990-1995 and not previously transferred, and 100 percent of profits gained thereafter.

If the Republic of Poland introduces full convertibility of its currency before 1st January 1996, transfers of profits shall be made without restrictions from the date of introduction of full convertibility.

5. The Republic of Poland shall ensure that the opportunity exists to invest profits which cannot be transferred in accordance with paragraph 3 of this Protocol in a bank account that yields a positive real rate of interest.

Correspondence

DEPARTMENT OF COMMERCE,

Washington, DC, March 21, 1990.

Mr. DARIUSZ LEDWOROWSKI,

Undersecretary of State,

Ministry of Foreign Economic Relations,

Warsaw, Poland

DEAR MR. MINISTER: I have the honor to confirm the following understanding in relation to United States companies and Polish companies which was reached between the delegations of the United States and the Republic of Poland in the course of negotiations of the Treaty Concerning Business and Economic Relations signed this day:

The Government of the Republic of Poland agrees to designate within the Agency for Foreign Investments a Deputy President to assist U.S. nationals and companies in deriving the full benefits of the Treaty in connection with their investment and associated activities.

The Deputy President will serve as the government coordinator and problem solver for investors experiencing difficulties with registration, licensing, nondiscriminatory access to utilities regulatory and other matters.

The office will provide the following types of services:

Information on current national and local business/investment regulations, including licensing and registration procedures, taxation, labor regulation, accounting standards and access to credit;

A notification procedure on proposed regulatory or legal changes affecting investors and circulation of notices on regulatory changes and their entry into force;

coordination with Polish government agencies at the national and local level to facilitate investment and resolve disputes;

Identification and dissemination of information on investment projects and their sources of finance;

Assistance to investors experiencing difficulties in repatriating profits and obtaining foreign exchange.

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business a Economic Relations.

I would be grateful if you would confirm that this understanding is shared by your Government.

Sincerely,

Robert A. Mosbacher

Secretary of Commerce.

Correspondence

[DEPARTMENT OF STATE, DIVISION OF LANGUAGE SERVICES-TRANSLATION LS No. 132108 A JS/AO Polish]

MINISTRY OF ECONOMIC COOPERATION WITH FOREIGN COUNTRIES,

Under Secretary of State.

Hon. ROBERT A. MOSBACHER,

Secretary of Commerce, US. Department of Commerce, Washington,

DEAR MR. SECRETARY: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States in the course of the negotiations of the Treaty Concerning Business and Economic Relations signed this day:

[The English translation of this letter agrees in all substantive respects with the text of Secretary Mosbacher's letter on assistance to investors.]

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding is shared by your Government.

Respectfully,

(S) D. LEDWOROWSKI.

WASHINGTON, March 21, 1990.

Correspondence

DEPARTMENT OF COMMERCE,

Washington DC, March 21, 1990.

Mr. DARIUSZ LEDWOROWSKI,

Under Secretary of State,

Ministry of Foreign Economic Relations,

Warsaw, Poland.

DEAR MR. MINISTER: I have the honor to confirm the following understanding in relation to United States companies and Polish companies providing tourism and travel-related services, which was reached between the delegations of the United States and the Republic of Poland in the course of negotiations of the Treaty Concerning Business and Economic Relations signed this day.

1. The Parties recognize the need to encourage and promote the growth of tourism and travel-related investment and trade between the United States of America and the Republic of Poland,

2. The Parties recognize the benefits to both economics of increased tourism and travel-related investment in and trade between their two territories.

3. Each Party shall ensure, within the scope of its legal authority, that any company owned, controlled or administered by that Party, or any joint venture therewith, which effectively controls a significant portion of supply of any travel or tourism services shall provide that service to the nationals and companies of the other Party on a fair and equitable basis.

In furtherance of the provisions of this letter, we take note of the Agreement between the Government of the United States of America and the Government of the Polish People's Republic on the Development and Facilitation of Tourism, signed on September 20, 1989.

Nothing in this understanding shall be construed to mean that tourism and travel-related services shall not receive the benefits from the Treaty Concerning Business and Economic Relations as fully as other industries and sectors.

I have the honor to propose that this understanding be treated as an integral party of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding is shared by your Government.

Sincerely,

ROBERT A. MOSBACHER,

Secretary of Commerce.

Correspondence

[DEPARTMENT OF STATE, DIVISION OF LANGUAGE SERVICES-TRANSLATION LS No. 132108 A JS/AO Polish]

MINISTRY OF ECONOMIC COOPERATION WITH FOREIGN COUNTRIES,

Under Secretary of State.

Hon. ROBERT A. MOSBACHER,

Secretary of Commerce,

U.S. Department of Commerce,

Washington, D.C.

DEAR MR. SECRETARY: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland the United States in the course of the negotiations of the Treaty Concerning Business and Economic Relations signed this day. [The English translation of this letter agrees in all substantive respects with the text of Secretary Mosbacher's letter on tourism.]

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding is shared by your Government.

Respectfully,

(S) D. LEDWOROWSKI.

WASHINGTON, March 21, 1990

Correspondence

U.S. TRADE REPRESENTATIVE,

EXECUTIVE OFFICE OF THE PRESIDENT,

Mr. DARIUSZ LEDWOROWSKI,

Under Secretary of State,

Ministry of Foreign Economic Relations,

Warsaw, Poland.

DEAR MR. MINISTER: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States of America in the course of negotiating the Treaty Concerning Business and Economic Relations signed on this day.

The Republic of Poland will adhere to the Paris Act of the Berne Convention for the Protection for Literary and Artistic Works before 1 January 1991.

The Republic of Poland will explicitly extend copyright protection to computer software before 31 December 1991. The terms of protection for computer software will be equivalent to that provided for other literary works.

The Republic of Poland will provide a term of protection of twenty years from filing for patents in all areas of technology will limit the scope of application of criteria of compulsory lice by 31 December 1991, as provided in the attached Annex 1.

The Republic of Poland will provide patent protection for food-stuffs, pharmaceutical products, and chemical products by 31 December 1992. The protection provided will have the characteristics enumerated in the attached Annex 1.

The Republic of Poland will provide adequate and effective protection for integrated circuit layout designs by 31 December 1991. The protection provided will have the characteristics enumerated in the attached Annex 2.

The Republic of Poland will provide adequate and effective protection against unfair competition, particularly protection for proprietary information by 31 December 1991. The protection provided will have the characteristics enumerated in the attached Annex 3.

The Republic of Poland will participate constructively in the Uruguay Round Negotiations on Trade-Related Aspects of Intellectual Property Protection.

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding is shared By your Government.

Sincerely,

CARLA A. HILLS,

U.S. Trade Representative.

Annex 1 - product protection

The Republic of Poland will provide adequate and effective Protection of patents, which includes the following characteristics:

1. Parties may limit the patent owner's exclusive rights solely through non-exclusive compulsory licenses and only to remedy an abuse of exclusive rights, such as adjudicated violation of competition laws or to address, during its existence, a declared national emergency. Compensation to the patent owner commensurate with the market value for the license of the patent shall be required when the compulsory license is issued. Such compulsory licenses shall be subject to judicial review.

2. The Parties may use patents for governmental purposes on a non-exclusive basis provided that such use does not substantially prejudice the legitimate economic interests of the patent owner.

3. For the purpose of satisfying the Polish market through local manufacture, if economically justifiable, the Republic of Poland shall provide transitional protection for products not currently patentable under Polish law which have the following characteristics:

(i) The product will be patentable after 31 December 1992 in the Republic of Poland;

(ii) A patent has been issued for the product in a country which currently grants product patents for that class of inventions; and

(iii) The product has not been marketed in the Republic of Poland.

Owners of products meeting these criteria shall have the right to obtain an exclusive registration to produce and market the product in the Republic of Poland if the patent owner applies for Polish marketing approval within six months of obtaining their first marketing approval in any country and if they meet Polish requirements for marketing approval.

The term of the exclusive right to produce and market in the Republic of Poland shall be the same as the unexpired term of the patent in the country of original registration.

Annex 2 - protection integrated circuit layout designs

The Republic of Poland will provide protection for integrated circuit layout designs. The protection will have the following characteristics.

1. Protection shall be granted to any original layout design incorporated in a semiconductor integrated circuit chip, however the layout design is fixed or encoded.

2. If protection is conditioned upon registration of the layout designs, the applicant for a registration must be given at least two years from first commercial exploitation of the layout design to apply for registration. If deposits of identifying material or other material related to the layout design are required, the applicant for registration must not be required to disclose sensitive or confidential information unless it is essential to allow identification of the layout design.

3. The term of protection shall be at least ten years from the date of registration or, if registration is not required, from the date first commercial exploitation, whichever is earlier.

4. The owner of the layout-design shall have the exclusive right to: reproduce the layout design; incorporate the layout design in a semiconductor integrated circuit chip; and import or distribute a semiconductor integrated circuit chip incorporating the layout design including products incorporating such chips.

5. Protection does not have to extend to layout-designs that are commonplace in the integrated circuit industry at the time of their creation, or to layout-designs that are exclusively dictated by the functions of the integrated circuit to which they apply.

6. Compulsory licenses shall be non-exclusive and shall only be granted to remedy an abuse of an exclusive right such as adjudicated violation of competition laws or to address, during its existence, a declared national emergency. Semiconductor integrated circuit layout-designs may be used for governmental purposes on a non-exclusive basis. Compensation commensurate with the market value of license of the semiconductor integrated circuit layout design shall be provided when the government uses a layout design for governmental purposes or grants a compulsory license during a declared, national emergency. Decisions to grant a compulsory license and the compensation provided shall be subject to judicial review

7. The following acts should be exempted from liability:

a. Reproduction of a layout design for purposes of teaching, analysis, or evaluation in the course of preparation of a layout design that is itself original;

b. Importation and distribution of semiconductor integrated circuit chips, incorporating a protected layout design, which were sold by or with the consent of the owner of the layout design; and

c. Importation or distribution of a semiconductor integrated circuit chip incorporating a protected layout design by a person who establishes that he or she did not know, and had no reasonable grounds to believe, that the layout design was protected, provided that such person is liable for reasonable royalties after notice is received.

Annex 3 - protection of proprietary information

The Republic of Poland will provide adequate and effective protection for proprietary information, which includes any formula, device, compilation of information, computer program, pattern, technique or process that is used or could be used in the owner's business and has actual or potential economic value from not being generally known. The protection will have the following characteristics.

1. The Republic of Poland will provide protection for proprietary information, whether such information is of a technical or commercial nature, provided that such proprietary information.

a. Has actual or potential commercial value from not being known to the relevant public;

b. Is not readily accessible; and

c. Has been subject to reasonable efforts, under the circumstances, by the rightful proprietor to maintain the secrecy.

2. a. The appropriation, disclosure, and use of proprietary information without the consent of the proprietor shall be unlawful.

b. The Republic of Poland shall provide a equate legal remedies in administrative, civil, and criminal law to deter unlawful appropriation, use, and disclosure of proprietary information and provide full compensation for injury incurred. The lifespan of proprietary information shall not be limited so long as the conditions in paragraph 1 are met.

3. a. The Republic of Poland shall not discourage or impede voluntary licensing of proprietary information by granting licensees legal permission to disclose such information to third parties or to the public without the consent of the proprietor or by imposing excessive or discriminatory conditions on such licenses.

b. The Republic of Poland, when requiring that proprietary information be submitted to carry out governmental functions, shall not use the information for the commercial or competitive benefit of the government or of any person other than the owner, except with the owner's consent, on payment of the reasonable value of the use, r if a reasonable period of exclusive use is given the owner.

c. The Republic of Poland may disclose such proprietary information, or require that the owners of the proprietary information disclose it to third parties, only with the owner's consent or to the degree required to carry out necessary government functions, or when the owner is given an opportunity to enter into confidentiality agreements with any non-government agency receiving proprietary information to prevent further disclosure.