Title
AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF ANGOLA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA ON THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS
Preamble
Preamble
The Government of the Republic of Angola and the Government of the People's Republic of China (hereinafter referred to as the "Parties");
Desiring to promote greater economic cooperation between them in the field of investment;
Recognising that an agreement on the treatment of investment will stimulate the flow of capital and the economic development of the Parties;
Agreeing that a stable, transparent and non-discriminatory framework for investment will enhance the efficient use of economic resources and improve living standards;
Recognising the importance of providing effective means and procedures to protect investment rights and interests under national law as well as through international arbitration;
Desiring to achieve these objectives in a manner compatible with the protection of health, safety and the environment;
Recognising the right to regulate and deciding to preserve the flexibility of the Parties to protect legitimate public welfare objectives, including public morals, public health, safety, the environment and the conservation of living and non-living exhaustible natural resources;
Having decided to conclude an Agreement concerning the promotion and reciprocal protection of investments made by investors of one Party in the territory of the other Party;
Have agreed as follows:
Body
Section A.
Article 1. Definitions
For the purposes of this Agreement:
"Centre" - means the International Centre for Settlement of Investment Disputes (’ICSID") established by the ICSID Convention;
“Claimant” - means an investor of a Party that is a party to an investment dispute with the other Party;
“Covered Investment” - means, with respect to a Party, an investment in its territory of an investor of the other Party existing on the date of entry into force of this Agreement or established, acquired or extended thereafter;
"Parties to the Dispute" - means the claimant and the respondent;
“Party to the Dispute” - means either the claimant or the respondent;
“Enterprise” - means any entity incorporated or organised under applicable law, whether for profit or not, owned or controlled by private or governmental entities, including a corporation, trust, partnership, sole proprietorship, joint venture, association or similar organisation: and a branch of an enterprise;
"Enterprise of a Party" - an enterprise incorporated or organised under the laws of a Party and a branch located in the territory of a Party and carrying on business there;
"Existing" - means in force on the date of entry into force of this Agreement;
"Freely Usable Currency’ - the ‘freely usable currency’, as determined by the International Monetary Fund, in accordance with its Articles of Agreement; ‘GATS’ - the General Agreement on Trade in Services, contained in Annex 1B to the WTO Agreement;
"Government Procurement" - means the process by which a Government obtains the use of or procures goods or services, or any combination thereof, for governmental purposes and not for the purpose of commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale;
"ICSID Additional Mechanism Rules" - means the Rules Governing the Additional Mechanism for the Administration of Cases by the Secretariat of the International Centre for Settlement of Investment Disputes;
"ICSID Convention" - means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, concluded in Washington on 18 March 1965;
"Investment" - means any asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including characteristics such as
the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. The forms that an investment can take include:
a) An enterprise;
b) Shares, quotas and other forms of participation in the capital of an enterprise;
c) Bonds, debt securities, loans and other debt instruments, including debt instruments issued by a Party or an enterprise;
d) Futures, options and other derivative instruments;
e) turnkey, construction, management, production, concession, revenue sharing and other similar contracts;
f) Intellectual property rights;
g) Licences, authorisations, permits and similar rights granted under national legislation:
h) other tangible or intangible property, movable or immovable, and related property rights, such as leases, mortgages, pledges and liens.
For the purposes of this definition, the Parties confirm their understanding that:
a) Some forms of debt, such as bonds, debentures and long-term securities, are more likely to have the characteristics of an investment, while other forms of debt, such as claims for payment that are immediately due and arise from the sale of goods or services, are less likely to have such characteristics;
b) Whether or not a particular type of licence, authorisation, permit or similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristic of an investment also depends on factors such as the nature and extent of the rights that the holder has under the legislation of the Party. Among the licences, authorisations, permits and similar instruments that do not have the characteristics of an investment are those that do not create any rights protected by national legislation. For greater certainty, the foregoing is without prejudice to the question of whether any asset associated with the licence, authorisation, permit or similar instrument has the characteristics of an investment;
c) The term "investment" does not include an order or decision rendered in a judicial or administrative action.
"Investment Agreement" means a written agreement between a national authority of a Party and a covered investment or investor of the other Party, on which the covered investment or investor relies to establish or acquire a covered investment, other than the written agreement itself, that grants rights to the covered investment or investor:
a) with respect to natural resources that a national authority controls, including for their exploration, extraction, refining, transport, distribution or sale;
b) to provide services to the public on behalf of the Party, such as the production or distribution of electricity, the treatment or distribution of water or telecommunications:
c) undertaking infrastructure projects, such as the construction of roads, bridges, canals, dams or pipelines, other than for the exclusive or predominant use and benefit of the Government.
For the purposes of this definition, the Parties confirm their understanding that:
a) "Written Agreement" - means a written agreement, executed by both Parties, in a single instrument or multiple instruments, that creates an exchange of rights and obligations, binding on both Parties under applicable law, pursuant to Article 29(2) For greater certainty:
i. A unilateral act of an administrative or judicial authority, such as a permit, authorisation or licence issued by a Party solely in the exercise of its regulatory capacity, or a decree, order or judgment, by itself:
ii. An administrative or judicial consent decree or order shall not be considered a written agreement.
b) "National Authority" - means:
i. For the Republic of Angola, a Private Investment Agency of the Central Government:
ii. For the People's Republic of China, a Central Government Agency.
"Investor of a Non-Party" - means, with respect to a Party, an investor that is attempting to make, is making or has made an investment in the territory of that Party and is not an investor of either Party;
"Investor of a Party" - means a Party, national or enterprise of a Party, that is attempting to make, is making or has made an investment in the territory of the other Party;
"Measure" - includes any law, regulation, procedure, requirement or practice;
"National" - means:
a) For the Republic of Angola, a natural person who is a national of the Republic of Angola, as defined in the Nationality Law of the Republic of Angola;
b) for the People's Republic of China, a natural person who is a national of the People's Republic of China, as defined in the Nationality Law of the People's Republic of China.
For the purposes of this definition, the Parties confirm their understanding that the term ‘national’ does not include any natural person who is a national of the Party to the dispute on the date on which the Parties consented to submit that dispute to conciliation or arbitration pursuant to Article 24 [Submission of a Claim to Arbitration].
"New York Convention" - means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on 10 June 1958;
"Non-Disputing Party" - means a Party that is not a party to an investment dispute;
"Person" - means a natural person or a company;
"Person of a Party" - means a national or a company of a Party;
"Protected Information" - means confidential business information or information that is privileged or otherwise protected from disclosure under the laws of a Party;
"Respondent" - means the Party that is a party to an investment dispute;
"Secretary General" - means the Secretary General of ICSID;
"TRIPS Agreement" - means the Agreement on Trade-Related Aspects of Intellectual Property Rights contained in Annex 1C to the WTO Agreement;
"Territory" - means:
a) in respect of the Republic of Angola:
i. The territory in which the Republic of Angola exercises, in accordance with its national legislation and international law, rights of sovereignty and jurisdiction, including the land territory, the territorial sea and the airspace covering them, as well as the adjacent maritime zones at the limit of the territorial sea, including the seabed and the corresponding subsoil;
b) as regards the People's Republic of China:
i. The customs territory of the People's Republic of China;
ii. Its territorial sea and any area beyond the territorial sea in which the People's Republic of China may exercise sovereign rights or jurisdiction under its law.
For purposes of greater certainty, the definition of ‘territory’ for each Party is for the purposes of this Agreement only and is without prejudice to the position of either Party with respect to the recognition of any territorial or maritime claims.
For the purposes of this Agreement, "customs territory of the People's Republic of China" shall mean the entire customs territory of China to which the World Trade Organisation Agreement applies, as defined in paragraph 2(A)(1) of Part I of the Protocol of Accession of the People's Republic of China to the Marrakesh Agreement Establishing the World Trade Organisation.
"UNCITRAL Arbitration Rules" means the arbitration rules of the United Nations Commission on International Trade Law.
"WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organisation, concluded on 15 April 1994.
Article 2. Scope of Application
1. This Agreement shall apply to measures adopted or maintained by a Party with respect to
a) Investors of the other Party:
b) covered investments.
2. The obligations of a Party under Section A shall apply:
a) all levels of government of that Party:
b) to any non-governmental body when it exercises any regulatory, administrative or other governmental authority delegated to it by that Party.
3. For greater certainty, this Agreement shall not bind either Party in respect of any act or fact which has occurred or any situation which has ceased to exist prior to the date of entry into force of this Agreement.
4. For greater certainty, governmental authority is delegated under the laws of a Party, including through a legislative grant, and a governmental order, directive or other action that transfers to the person, or authorises the exercise by the person, of governmental authority.
5. For greater certainty, ‘Governmental Authority’ refers to the power vested in the Government of a Party, such as the power to expropriate, grant licences, approve commercial transactions or impose quotas, fees or other charges.
Article 3. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors in respect of the management, conduct, operation and sale or other disposal of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in identical circumstances, to investments in its territory of its own investors, in respect of the management, conduct, operation and sale or other disposal of the investments.
3. For greater certainty, the granting of ‘like treatment’ under Article 3 (national treatment) or Article 4 (most favoured nation treatment) depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.
Article 4. Most Favoured Nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of any other Party with respect to the management, conduct, operation and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments in its territory of investors of any other Party with respect to the management, conduct, operation and sale or other disposition of investments.
3. Paragraphs 1 and 2 of this Article shall not be construed to oblige either Party to accord to investors of the other Party or to the investment covered by it any treatment, preference or privilege by virtue of any bilateral or multilateral agreement relating to investment in force or signed prior to the date of entry into force of this Agreement.
4. For greater certainty, the treatment referred to in this Article shall not extend to dispute settlement mechanisms or procedures, such as those included in Section B, provided for in international investment or trade agreements.
Article 5. Minimum Standards of Treatment
1. Each Party shall accord to covered investments fair and equitable treatment and full protection and security in accordance with customary international law.
2. For greater certainty, paragraph 1 of this Article prescribes the minimum standard of customary international law relating to the treatment of aliens as the minimum standard of treatment to be accorded to covered investments. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment additional to or beyond that required by that standard and do not create additional substantive rights. The obligation under paragraph 1 of this Article to provide:
a) "Fair and equitable treatment" includes the obligation not to deny justice in criminal, civil or administrative proceedings in accordance with due process of law:
b) "Full protection and security" requires each Party to provide the level of police protection required by customary international law.
3. A determination that there has been a violation of another provision of this Agreement, or of a separate international agreement, does not establish the existence of a violation of this Article.
4. For greater certainty, the mere fact that a Party takes or fails to take a measure that may be incompatible with the expectations of an investor does not constitute a violation of this Article, even if it results in loss or damage to the investment covered.
5. For greater certainty, the mere fact that a grant or subsidy has not been awarded, renewed or maintained, or has been modified or reduced, by a Party shall not constitute a violation of this Article, even if it results in loss or damage to the investment covered.
6. This Article shall be interpreted in accordance with Annex A (Customary International Law).
Article 6. Compensation for Losses
1. Without prejudice to the provisions of paragraph 3 of Article 13 (non-conforming measures), each Party shall accord to investors of the other Party, as well as to the investments covered, non-discriminatory treatment with respect to the measures it adopts or maintains in relation to losses suffered by investments in its territory due to armed conflict, a state of national emergency or civil strife.
2. Notwithstanding paragraph 1 of this Article, if an investor of a Party, in the situations referred to in paragraph 1 of this Article, suffers a loss in the territory of the other Party as a result of:
a) the repossession of his covered investment or part thereof by the forces or authorities of the latter:
b) destruction of its covered investment or part thereof by the forces or authorities of the latter Party, which was not required by the necessity of the situation.
The latter Party shall grant the investor restitution, compensation, or both, as appropriate, for such loss. Any compensation shall be made in accordance with paragraphs 2 to 4 of Article 7 (Expropriation and Compensation), mutatis mutandis.
3. Paragraph 1 of this Article shall not apply to measures in force relating to subsidies or grants which would be incompatible with Article 3 (national treatment), except for Article 13(3) (non-compliant measures).
Article 7. Expropriation and Compensation
1. Neither Party may expropriate or nationalise a covered investment, directly or indirectly, through measures equivalent to expropriation or nationalisation (‘expropriation’), except:
a) for a public purpose;
b) on a non-discriminatory basis;
c) upon payment of compensation in accordance with this Article:
d) in accordance with due process of law.
2. The compensation referred to in paragraph 1(c) of this Article shall:
a) be paid without delay;
b) be equivalent to the fair market value of the expropriated investment at the time when the expropriation was publicly announced or when the expropriation took place ("date of expropriation"), whichever is the earlier:
c) be fully realisable and freely transferable.
3. If the fair market value is expressed in a freely usable currency, the compensation referred to in paragraph 1(c) of this Article shall not be less than the fair market value determined in accordance with paragraph 2(b) of this Article, plus interest at a commercially reasonable rate for that currency, accruing from the date of expropriation until the date of payment.
4. If the fair market value is expressed in a currency which is not freely usable, the compensation referred to in paragraph 1(c) of this Article - converted into the currency of a: payment at the market exchange rate prevailing on the date of payment - shall not be less than
a) the fair market value, determined in accordance with paragraph 2(b) of this Article, converted into a freely usable currency at the market exchange rate prevailing on that date, plus;
b) interest at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation until the date of payment.
5. This Article shall not apply to the issuance of compulsory licences granted in respect of intellectual property rights in accordance with the TRIPS Agreement or to the revocation, limitation or creation of intellectual property rights to the extent that such issuance, revocation, limitation or creation is compatible with the TRIPS Agreement.
6. For greater certainty, the mere fact that a grant or subsidy has not been granted, renewed or maintained, or has been modified or reduced, by a Party shall not constitute an expropriation, even if it results in loss or damage to the investment covered.
7. This Article shall be interpreted in accordance with Annex B (Expropriation).
Article 8. 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. Such transfers include:
a) Contributions to capital;
b) Profits, dividends, capital gains and proceeds from the sale of all or any part of the covered investment or from the partial or total liquidation of the covered investment;
c) Interest, royalty payments, management fees, technical assistance and other fees;
d) Payments made under a contract, including a loan agreement;
e) Payments made under Article 6 (loss compensation) and Article 7;
f) Payments resulting from a dispute:
g) the income and remuneration of a national of a Party working on a covered investment in the territory of the other Party.
2. Each Party shall allow transfers relating to a covered investment to be made in a freely usable currency at the market exchange rate in force at the time of the transfer.
3. Each Party shall permit repayments in kind in respect of a covered investment to be made as authorised or specified in a written agreement between the Party and a covered investment or an investor of the other Party.
4. Notwithstanding paragraphs 1 to 3 of this Article, a Party may prevent a transfer through the equitable, non-discriminatory and good faith application of its laws and regulations relating to:
a) bankruptcy, insolvency or protection of creditors' rights;
b) Issuing, trading or dealing in securities, futures, options or derivatives;
c) Criminal or penal offences;
d) drawing up financial reports or keeping transfer records, when necessary to assist the police or financial regulatory authorities:
e) ensuring compliance with orders or decisions in judicial or administrative proceedings.
5. For greater certainty, provided that such measures are not applied in an arbitrary or unjustifiable manner and provided that they do not constitute a disguised restriction on international trade or investment, paragraphs 1 to 3 of this Article shall not be construed to prevent a Party from adopting or maintaining measures necessary to ensure compliance with laws and regulations, including those relating to the prevention of deceptive and fraudulent practices, that are not inconsistent with this Agreement.
6. This Article shall not affect the ability of each Party to manage its capital account with a view to maintaining the stability and soundness of its financial system, including the foreign exchange market, the stock market, the bond market and the financial derivatives market. For greater certainty, Annex C (Temporary safeguard measures) shall apply to this Article.