f) Supplement the rules for arbitral dispute settlement between the Contracting Parties.
5. The Contracting Parties may establish ad hoc working groups, which shall meet jointly or separately from the Joint Committee.
6. The private sector may be invited to participate in the ad hoc working groups, whenever authorized by the Joint Committee.
7. The Joint Committee shall establish its own rules of procedure.
Article 18. National Focal Points or 'ombudsmen'
1. Each Contracting Party shall designate a National Focal Point, or "Ombudsman", which shall have as its main responsibility providing support for investors from the other Contracting Party in its territory.
2. Each Contracting Party shall designate a single agency or authority as its National Focal Point.
a) In Brazil, the "Ombudsman "/National Focal Point shall be the "Ombudsman de Investimentos Diretos (OID)" within the Chamber of Foreign Trade — CAMEX.
b) In the Federal Democratic Republic of Ethiopia, the "Ombudsman "/National Focal Point shall be the Ethiopian Investment Commission (EIC).
3. The National Focal Point, among other responsibilities, shall:
a) Endeavour to follow the recommendations of the Joint Committee and interact with the National Focal Point of the other Contracting Party, in accordance with this Agreement;
b) Follow up in a timely manner on requests and enquiries of the other Contracting Party or of investors of the other Contracting Party with the competent authorities and inform the stakeholders on the results of its actions;
c) Assess, in consultation with relevant government authorities, suggestions and complaints received from the other Contracting Party or investors of the other Contracting Party and recommend, as appropriate, actions to improve the investment environment;
d) Seek to prevent differences in investment matters, in collaboration with government authorities and relevant private entities;
e) Provide timely and useful information on regulatory issues on general investment or on specific projects; and
f) Report its activities and actions to the Joint Committee, when appropriate.
4. Each Contracting Party shall determine time limits for the implementation of each of its functions and responsibilities, which will be communicated to the other Contracting Party.
5. The National Focal Points, or "Ombudsmen", shall cooperate with each other and with the Joint Committee with a view to helping in the prevention of disputes between the Contracting Parties.
Article 19. Exchange of Information between the Contracting Parties
1. The Contracting Parties shall exchange information, whenever possible and relevant to reciprocal investments, concerning business opportunities, procedures, and requirements for investment, particularly through the Joint Committee and its National Focal Points.
2. For this purpose, the Contracting Party shall provide, when requested, in a timely fashion and with respect for the level of protection granted, information related, in particular, to the following items:
a) Regulatory conditions for investment;
b) Governmental programs and possible related incentives;
c) Public policies and legal frameworks that may affect investment;
d) Legal framework for investment, including legislation on the establishment of companies and joint ventures;
e) Related international treaties;
f) Customs procedures and tax regimes;
g) Statistical information on the market for goods and services;
h) Available infrastructure and public services;
i) Governmental procurement and public concessions;
j) Social and labor requirements;
k) Immigration legislation;
l) Currency exchange legislation;
m) Information on legislation of specific economic sectors or segments previously identified by the Contracting Parties; and
n) Regional projects and Agreements related to an investment.
3. The Contracting Parties shall also exchange information on Public-Private Partnerships (PPPs), especially through greater transparency and quick access to the information on the legislation.
Article 20. Treatment of Protected Information
1. The Contracting Parties shall respect the level of protection of information provided by the submitting Contracting Party, according to the respective national legislations on the matter.
2. None of the provisions of the Agreement shall be construed to require any Contracting Party to disclose protected information, the disclosure of which would jeopardize law enforcement or otherwise be contrary to the public interest or would violate the privacy or harm legitimate business interests. For the purposes of this paragraph, protected information includes confidential business information or information considered privileged or protected from disclosure under the applicable laws of a Contracting Party.
Article 21. Interaction with the Private Sector
Recognizing the key role played by the private sector, the Contracting Parties shall publicize, among the relevant business sectors, general information on investment, regulatory frameworks and business opportunities in the territory of the other Contracting Party.
Article 22. Cooperation between Agencies Responsible for Investment Promotion
The Contracting Parties shall promote cooperation between their investment promotion agencies in order to facilitate investment in the territory of the other Contracting Party.
Article 23. Dispute Prevention Procedure
1. If a Contracting Party considers that a specific measure adopted by the other Contracting Party constitutes a breach of this Agreement, it may invoke this Article to initiate a dispute prevention procedure within the Joint Committee.
2. The following rules apply to the aforementioned procedure:
a) To initiate the procedure, the interested Contracting Party shall submit a written request to the other Contracting Party, identifying the specific measure in question, and presenting the relevant allegations of fact and law. The Joint Committee shall meet within sixty (60) days from the date of the request;
b) The Joint Committee shall have sixty (60) days from the date of the first meeting, extendable by mutual agreement, to evaluate the submission presented and to prepare a report;
c) The report of the Joint Committee shall include:
i) Identification of the submitting Contracting Party;
ii) Description of the measure in question and the alleged breach of the Agreement; and
iii) Findings of the Joint Committee.
d) In the event that the dispute is not resolved upon the completion of the time frames set forth in this Article, or there is non-participation of a Contracting Party in the meetings of the Joint Committee convened according to this Article, the dispute may be submitted to arbitration by a Contracting Party in accordance with Article 24 of the Agreement.
3. If the measure in question pertains to a specific investor, the following additional rules shall apply:
a) The initial submission shall identify the affected investor;
b) Representatives of the affected investor may be invited to appear before the Joint Committee; and
c) A Contracting Party may refuse to discuss in the Dispute Prevention Procedure a question concerning an investment of a national of that Contracting Party in the territory of that Contracting Party.
4. Whenever relevant to the consideration of the measure in question, the Joint Committee may invite other interested stakeholders to appear before the Joint Committee and present their views on such measure.
5. The records of the meetings held under the Dispute Prevention Procedure and all other related documentation shall remain confidential, except for the report submitted by the Joint Committee under paragraph 2, subject to the law of each of the Contracting Parties regarding the disclosure of information.
Article 24. Settlement of Disputes between the Contracting Parties
1. Once the procedure under paragraph 2 of Article 23 has been exhausted and the dispute has not been resolved, either Contracting Party may submit the dispute to an ad hoc Arbitral Tribunal, in accordance with the provisions of this Article. Alternatively, the Contracting Parties may choose, by mutual agreement, to submit the dispute to a permanent arbitration institution for settlement of investment disputes. Unless the Contracting Parties decide otherwise, such institution shall apply the provisions of this Article.
2. The purpose of the arbitration is to determine the conformity with this Agreement of ameasure that a Contracting Party claims to be not in conformity with the Agreement.
3. The following may not be subject to arbitration: Article 13 - Security Exception, Article 14 Corporate Social Responsibility; Paragraph I of Article 15 — Investment Measures and Combating Corruption and Illegality; and paragraph 2 of Article 16 - Provisions on Investment and Environment, Labor Affairs and Health.
4. This Article shall not apply to any dispute if more than three (3) years have elapsed since the date on which the Contracting Party knew or should have known of the facts giving rise to the dispute.
5. The Arbitral Tribunal shall consist of three arbitrators. Each Contracting Party shall appoint, within three (3) months after receiving the "notice of arbitration", a member of the Arbitral Tribunal. Within three (3) months of the appointment of the second arbitrator, the two members shall appoint a national of a third State with which both Contracting Parties maintain diplomatic relations, who, upon approval by both Contracting Parties, shall be appointed chairperson of the Arbitral Tribunal. The appointment of the Chairperson must be approved by both Contracting Parties within one (1) month from the date of his/her nomination.
6. If, within the periods specified in paragraph 50fthis Article, the necessary appointments are not made; either Contracting Party may invite the President of the International Court of Justice to make the necessary appointments. If the President of the International Court of Justice is a national of one Contracting Party or is prevented from fulfilling the said function, the member of the International Court of Justice who has the most seniority who is not a national of a Contracting Party will be invited to make the necessary appointments.
7. Arbitrators must:
a) Have the necessary experience or expertise in Public International Law, international investment rules or international trade, or the resolution of disputes arising in relation to international investment agreements;
b) Be independent of and not be affiliated, directly or indirectly, with any of the Contracting Parties or with the other arbitrators or potential witnesses nor take instructions from the Contracting Parties; and
c) Comply with standard of conduct established by the Joint Committee;
8. The "Notice of Arbitration" and other documents relating to the resolution of the dispute shall be presented at the location to be designated by each Contracting Party. The Arbitral Tribunal shall determine its own procedure in accordance with this Article or, alternatively, the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). The Arbitral Tribunal will render its decision by majority vote and decide on the basis of the provisions of this Agreement and the applicable principles and rules of international law as recognized by both Contracting Parties. Unless otherwise agreed, the decision of the Arbitral Tribunal shall be rendered within six (6) months following the appointment of the Chairperson in accordance with paragraphs 5 and 6 of this Article.
9. The decision of the Arbitral Tribunal shall be final and binding upon both Contracting Parties, who shall comply with it without delay.
10. Each Contracting Party shall bear the cost of its own arbitrator and its representation in the arbitral proceedings; the cost of the Chairperson and the remaining costs shall be borne in equal parts by both Contracting Parties, unless otherwise agreed. The arbitral tribunal shall have the power to determine its procedures.
11. Notwithstanding paragraph 2 of this Article, the Contracting Parties may, through a specific arbitration agreement, request the arbitrators to examine the existence of damages caused by the measure in question under the obligations of this Agreement and to establish compensation for such damages through an arbitration award. In this case, in addition to the provisions of the preceding paragraphs of this Article, the following shall be observed:
a) The arbitration agreement to examine the existence of damages shall be taken as "notice of arbitration" within the meaning of paragraph 8;
b) This paragraph shall not be applied to a dispute concerning a particular investor which has been previously resolved and where protection of res judicata applies. If an investor had submitted claims regarding the measure at issue in the Joint Committee to local courts or an arbitration tribunal of the Host State, the arbitration to examine damages can only be initiated after the withdrawal of such claims by the investor in local courts or an arbitration tribunal of the Host State. If after the establishment of the arbitration, the existence of claims in local courts or arbitral tribunals over the contested measure is made known to the arbitrators or the Contracting Parties, the arbitration will be suspended.
c) If the arbitration award provides monetary compensation, the Contracting Party receiving such compensation shall transfer to the holders of the rights of the investment in question, after deducting the costs of the dispute in accordance with the internal procedures of each Contracting Party. The Contracting Party to whom restitution was granted may request the Arbitral Tribunal to order the transfer of the compensation directly to the holders of rights of the affected investment and the payment of costs to whoever has assumed them.
Section IV. Agenda for Further Investment Cooperation and Facilitation
Article 25. Agenda for Further Investment Cooperation and Facilitation
1. The Joint Committee shall develop and discuss an Agenda for Further Cooperation and Facilitation on relevant topics for the promotion and enhancement of bilateral investment. The issues to be initially discussed by the Contracting Parties will be agreed upon in the first meeting of the Joint Committee.
2. The agendas shall be discussed between the competent government authorities of both Contracting Parties. The Joint Committee shall invite, when applicable, additional competent government officials for both parties in the discussions of the agenda.
3. The results of such negotiations shall constitute additional protocols to this Agreement or specific legal instruments.
4. Joint Committee shall establish schedules for discussions of the Agenda for further Investment Cooperation and Facilitation, and if applicable, the negotiation of specific commitments.
5. The Contracting Parties shall submit to the Joint Committee the names of government bodies and its official representatives involved in these discussions.
Section V. General and Final Provisions
Article 26. Preservation of Diplomatic Channels
Neither the Joint Committee nor the Focal Points or Ombudsmen shall replace or impair, in any way, any other agreement or the diplomatic channels existing between the Contracting Parties.
Article 27. Entry Into Force, Duration and Termination
1. Each Contracting Party shall notify the other Contracting Party in writing of the completion of the constitutional procedure required for entry into force of this Agreement. This Agreement shall enter into force ninety (90) days after the date of the receipt of the second diplomatic note indicating that all necessary internal procedures with regard to the entry into force of international agreements have been completed by both Contracting Parties.
2. This Agreement shall remain in force for a period of ten (10) years and shall lapse thereafter unless the Contracting Parties expressly agree in writing that it shall be renewed for additional ten (10)-year period. On the last Joint Committee meeting immediately prior to the completion of such period and of any additional ten (10)-year period, the Contracting Parties shall discuss the matter.
3. Any Contracting Party may terminate this Agreement, at any time, by giving at least twelve (12) months prior written notice to the other Contracting Party.
4. In respect of investments made prior to the termination of this Agreement, the provisions of this Agreement shall continue in effect for a period of five (5) years from the date of termination.
Article 28. Amendment
1. This Agreement may be amended by mutual consent of the Contracting Parties, provided that one of the Contracting Parties presents to the other Contracting Party a written proposal for amendment.
2. Amendments shall be made by written agreement and shall enter into force ninety (90) days after the date of the receipt of the second diplomatic note indicating that all necessary internal procedures with regard to the conclusion and the entering into force of international agreements have been completed by both Contracting Parties.
Conclusion
In witness whereof, the undersigned duly authorized by their respective governments have this Agreement.
Done at Addis Ababa, on the 11thday of April of2018, in two originals in the Portuguese and English languages, both texts being equally authentic. In case of any divergence, the English text shall prevail.
FOR THE FEDERATIVE REPUBLIC OF BRAZIL
H.E. Amb. Fernando José Marroni de Abreu
Undersecretary-General for Africa and the Middle East
FOR THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA
H.E. Mrs. Hirut Zemene
State Minister of Foreign Affairs of the Federal Democratic Republic of Ethiopia
Attachments
I. Agenda for further investment cooperation and facilitation
The agenda listed below represents an initial effort to improve investment cooperation and facilitation between the Contracting Parties and may be expanded and modified at any time by the Joint Committee.
a. Payments and transfers
i. The cooperation between the financial authorities shall aim at facilitating capital and currency remittances between the Contracting Parties.
b. Visas
i. Each Contracting Party shall seek, whenever possible and convenient, to facilitate the free movement of managers, executives and skilled employees of economic agents, entities, businesses and investors of the other Contracting Party.
ii. While Respecting national legislation, immigration and labor authorities of each Contracting Party shall seek a common understanding in order to reduce time, requirements and costs to grant appropriate visas to investors of the other Contracting Party.
iii. The Contracting Parties will negotiate a mutually acceptable agreement to facilitate visas for investors with a view to extend its duration and stay.
c. Technical and environmental regulations
i. Subject to their national legislation, the Contracting Parties shall establish expeditious, transparent and agile procedures for issuing documents, licenses and certificates related to the prompt establishment and maintenance of the investment of the other Contracting Party.
ii. Any query from the Contracting Parties, or from their economic agents and investors concerning commercial registration, technical requirements and environmental standards shall receive diligent and timely treatment from the other Contracting Party.
d. Cooperation on Regulation and Institutional Exchange
i. The Contracting Parties shall promote institutional cooperation for the exchange of experiences on the development and management of regulatory frameworks.
ii. Contracting Parties hereby undertake to seek to promote technological, scientific and cultural cooperation through the implementation of actions, programs and projects for the exchange of knowledge and experience, in accordance with their mutual interests and development strategies.
iii. The Contracting Parties agree that access to technology should be promoted, whenever possible, and be aimed at contributing to mutual investment.
iv. The Contracting Parties shall seek to promote, foster, coordinate and implement cooperation in professional qualification through greater interaction between relevant national institutions.
vi. The Contracting Parties shall seek ways to promote greater integration of logistics and transports in order to open new air routes and increase, whenever possible and appropriate, their connections and maritime merchant fleets.
vii. The Joint Committee may identify other areas of mutual interest for cooperation in sectorial legislation and institutional exchange.