Article 9. Performance Requirements
1. Neither Party may, with respect to the management, conduct, operation, sale or other disposal of an investment of an investor of the other Party or of a non-Party in its territory, impose or enforce any requirement or fulfil any undertaking or commitment:
a) export a certain level or percentage of goods or services;
b) achieve a certain level or percentage of national content of goods or services;
c) purchase, use or give preference to goods produced in its territory, or purchase goods from persons in its territory;
d) relate in any way 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) restricting the sales of goods or services in its territory which that investment produces or supplies, by relating those sales in any way to the volume or value of its exports or foreign exchange earnings;
f) transferring specific technology, a production process or other proprietary knowledge to a person in its territory;
g) supplying exclusively from the territory of the Party the goods that such investment produces or the services that it provides to a specific regional market or to the world market;
h) localising in its territory the headquarters of a specific region or of the world market:
i) achieving a certain percentage or value of research and development in its territory.
2. Neither Party may make the obtaining or maintaining of an advantage in relation to the establishment, acquisition, expansion, management, operation, sale or other disposal of an investment in its territory by an investor of the other Party or a non-Party conditional on the fulfilment of any requirement:
a) to reach a certain level or percentage of domestic content;
b) to acquire, use or give preference to goods produced in its territory, or to acquire goods from persons located in its territory;
c) relate in any way 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:
d) restrict the sales of goods or services within its territory which that investment produces or supplies, by relating those sales in any way to the volume or value of its exports or foreign exchange receipts.
3. a) Nothing in paragraph 1 of this Article shall be construed to prevent a Party, in respect of an investment in its territory by an investor of the other Party or a non-Party, from imposing or enforcing a requirement or a commitment or undertaking to localise production, provide a service, train or employ workers, construct or extend certain facilities or carry out research and development activities in its territory, provided that such a measure is compatible with paragraphs 1(f) and (i);
b) None of the provisions of paragraph 2 of this Article shall be construed to prevent a Party, in relation to an investment in its territory by an investor of the other Party or a non-Party, from making the obtaining or maintenance of a benefit conditional on the fulfilment of a requirement to locate production, provide a service, train or employ workers, construct or extend certain facilities or carry out research and development in its territory;
c) Paragraph 1(f) shall not apply:
i. Where a Party authorises the use of an intellectual property right in accordance with Article 31 of the TRIPS Agreement, or to measures requiring the disclosure of proprietary information falling within the scope of Article 39 of the TRIPS Agreement; ii;
ii. When the requirement is imposed or the commitment is applied by a Court, an Administrative Tribunal or a Competition Authority to correct a practice considered anti-competitive following judicial or administrative proceedings under the Party's competition law.
d) 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, subparagraphs (b), (c) and (f) of paragraph 1 and subparagraphs (a) and (b) of paragraph 2 shall not be construed to prevent a Party from adopting or maintaining measures, including environmental measures:
i. Necessary to ensure compliance with laws and regulations that are not inconsistent with this Agreement;
ii. Necessary to protect human, animal or plant life or health: or
iii. Related to the conservation of exhaustible living and non-living natural resources.
e) points (a), (b) and (c) of paragraph 1 and points (a) and (b) of paragraph 2 shall not apply to the qualification requirements for goods or services in respect of export promotion and external assistance programmes;
f) points (a) and (b) of paragraph 2 shall not apply to requirements imposed by an importing Party in relation to the content of goods necessary to qualify for preferential duties or preferential quotas.
4. For greater certainty, paragraphs 1 and 2 of this Article shall not apply to any undertaking, commitment or requirement other than those set out in those paragraphs.
5. This Article shall not preclude the application of any commitment, undertaking or requirement between private parties where a Party has not imposed or required the commitment, undertaking or requirement.
Article 10. Senior Management and Boards of Directors
1. Neither Party may require an enterprise of that Party, which is a covered investment, to appoint natural persons of a particular nationality to its Board of Directors.
2. A Party may require that a majority of the members of the Board of Directors, or any committee thereof, of an enterprise of that Party that is a covered investment be of a particular nationality or resident in the territory of the Party, provided that such requirement does not significantly impair the investor's ability to exercise control over its investment.
Article 11. Entry of Personnel
Subject to its measures relating to public health and safety and national security applicable to entry and stay, a Party shall authorise:
a) natural persons who are nationals of the other Party and are seeking to make, are making or have made an investment in its territory, to enter and remain temporarily in its territory;
b) managers, executives and specialists defined as senior executives of an enterprise of the other Party which has established a representative office, a branch or a subsidiary in its territory, who move temporarily as intra-corporate transferees, shall be authorised to enter its territory for an initial stay of three years;
c) managers, senior executives and specialists defined as senior executives of an enterprise of the other Party, who are assigned to foreign affiliates in its territory for the purpose of carrying out business activities, shall be granted a long-term stay authorisation, as provided for in the terms of the contracts concerned, or an initial stay of three years, whichever is the shorter.
Article 12. Transparency
1. Each Party shall ensure that its laws, regulations, procedures and administrative provisions of general application relating to any matter covered by this Agreement are promptly published or otherwise made public.
2. For the purposes of this Article, ‘administrative decision of general application’ means an administrative decision or interpretation which applies to all persons and factual situations generally falling within its scope and which lays down a rule of conduct, but does not include:
a) a determination or decision made in an administrative or quasi-judicial proceeding applicable to a particular covered investment or to an investor of the other Party in a specific case; or
b) a decision ruling with respect to a particular act or practice.
3. Publication:
a) To the extent possible, each Party shall:
i. Publish in advance any measure referred to in paragraph 1 of this Article that it proposes to adopt:
ii. Give interested persons and the other Party a reasonable opportunity to comment on the proposed measures.
b) With respect to proposals for laws and regulations of general application relating to any matter covered by this Agreement that are published in accordance with paragraph 1 of this Article, each Party shall:
i. Publish the proposed laws and regulations on an official website or in an official or nationally circulated newspaper;
ii. Shall, in most cases, publish proposed laws and regulations at least 30 days before the date on which public comments are due:
iii. It shall endeavour to take into account the comments received from interested persons regarding the proposed laws and regulations.
c) With respect to laws and regulations of general application adopted in relation to any matter covered by this Agreement, each Party shall:
i. Publish the laws and regulations on an official website or in an official or nationally circulated newspaper:
ii. To the extent possible, ensure a reasonable period of time between the publication and the entry into force of the laws and regulations.
4. Provision of information:
a) At the request of the other Party, a Party shall, within a reasonable time, provide information and answer questions on any measure referred to in paragraph 1 of this Article that the requesting Party considers likely to significantly affect the functioning of this Agreement or substantially affect its interests under this Agreement;
b) Any request or information under this paragraph shall be provided to the other Party through the relevant contact points;
c) Information provided under this paragraph shall be without prejudice to the question of whether the measure is compatible with this Agreement.
5. Administrative procedures.
In order to administer in a consistent, impartial and reasonable manner all measures referred to in paragraph 1 of this Article, each Party shall ensure that, in its administrative procedures for applying such measures to certain covered investments or to investors of the other Party in specific cases:
a) Whenever possible, covered investments or investors of the other Party directly affected by a proceeding are given reasonable notice, in accordance with national procedures, of the initiation of a proceeding, including a description of the nature of the proceeding, a statement of the legal authority under which it was initiated, and a general description of any disputed issues;
b) Such persons are given a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, where time, the nature of the proceedings and the public interest so permit:
c) Their proceedings are in accordance with domestic law.
6. Review and Appeal:
a) Each Party shall establish or maintain judicial, quasi-judicial or administrative tribunals or procedures for the purpose of prompt review and, where appropriate, correction of final administrative acts relating to matters covered by this Agreement. Such tribunals shall be impartial and independent of the department or authority responsible for administrative implementation and shall have no substantial interest in the outcome of the matter;
b) Each Party shall ensure that, in such tribunals or proceedings, the parties to the proceedings have the right to:
i. A reasonable opportunity to support or defend their respective positions:
ii. A decision based on the evidence and submissions on the record or, where required by national law, on the record compiled by the administrative authority.
c) Each Party shall ensure, subject to appeal or other review under its domestic law, that such decisions are applied and govern the practice of the departments or authorities with respect to the administrative action in question;
d) This paragraph shall not be interpreted as requiring a Party to establish such courts or procedures where this would be incompatible with its constitutional structure or the nature of its legal system.
Article 13. Non-Conforming Measures
1. Article 3 (national treatment), Article 4 (most favoured nation treatment), Article 9 (performance requirements) and Article 10 (senior management and Board of Directors) shall not apply to:
a) Any existing non-compliant measures maintained by a Party in its territory;
b) The continuation of any non-compliant measure referred to in subparagraph (a);
c) To an amendment of any non-compliant measure referred to in subparagraph (a), to the extent that the amendment does not increase the non-compliance of the measure, as it existed immediately prior to the amendment, with those obligations.
2. Articles 3 (national treatment) and 4 (most-favoured-nation treatment) shall not apply to any measure covered by an exception or derogation from the obligations set out in Articles 3 (national treatment) and 4 (most-favoured-nation treatment).
3. Articles 3 (national treatment), 4 (most favoured nation treatment), 9 (performance requirements) and 10 (senior management and Board of Directors) shall not apply to subsidies or grants provided by a Party, including State-supported loans, guarantees and insurance.
4. Articles 3 (national treatment), 4 (most favoured nation treatment), 9 (performance requirements) and 10 (senior management and Board of Directors) shall not apply to public procurement.
5. The Parties shall endeavour to phase out non-compliant measures.
Article 14. Special Formalities and Information Requirements
1. Nothing in Article 3 (national treatment) shall be construed to prevent a Party from adopting or maintaining a measure prescribing special formalities with respect to covered investments, such as a requirement relating to the filing of an application for establishment and amendments to covered investments of the other Party, provided that such formalities do not materially impair the protections afforded by a Party to investors of the other Party and to covered investments under this Agreement.
2. Notwithstanding Articles 3 (national treatment) and 4 (most-favoured-nation treatment), a Party may require an investor of the other Party or its covered investment to provide information relating to that investment solely for informational, statistical or administrative purposes. The Party shall protect confidential business information from any disclosure that could harm the competitive position of the investor or covered investment. Nothing in this paragraph shall be construed to prevent a Party from obtaining or disclosing information in the fair and good faith application of its laws.
Article 15. Non Derogation
This Agreement shall not derogate from any of the following provisions which entitle a covered investment or, with respect to one Party, an investor of the other Party, to more favourable treatment than that granted by this Agreement:
a) laws or regulations, administrative practices or procedures, or administrative or adjudicatory decisions of a Party;
b) international legal obligations of a Party:
c) obligations undertaken by a Party, including those contained in an investment agreement.
Article 16. Subrogation
If a Party or any statutory body, government agency or institution or enterprise designated by it makes a payment to an investor of the Party under a guarantee, insurance contract or other form of indemnity it has entered into in respect of a covered investment, the other Party, in whose territory the covered investment was made, shall recognise the subrogation or transfer of any rights that the investor would have had under this Agreement in respect of the covered investment but for the subrogation, including any rights under Section B, and the investor shall be prevented from exercising those rights to the extent of the subrogation.
Article 17. Denial of Benefits
1. A Party may, at any time, including after the institution of arbitration proceedings in accordance with Section B of this Agreement, deny the benefits of this Agreement to an investor of the other Party that is an enterprise of that other Party and to the investments of that investor if a non-Party, or persons of a non-Party, own or control the enterprise and the Party denying the benefits:
a) does not maintain diplomatic relations with the non-Party:
b) adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Agreement were accorded to the enterprise or its investments.
2. A Party may, at any time, including after the institution of an arbitration proceeding in accordance with Section B of this Agreement, withhold the benefits of this Agreement from an investor of the other Party that is an enterprise of that other Party and from that investor's investments, if the enterprise does not have substantial business activities in the territory of the other Party and a non-Party, persons of a non-Party or of the denouncing Party own or control the enterprise.
3. For greater certainty, the benefits referred to in this Article include the rights of an investor of a Party to have recourse to the dispute settlement mechanism provided for in Section B of this Agreement.
Article 18. Protection of Confidential Information
Nothing in this Agreement shall be construed to require a Party to provide or allow access to protected or other confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would harm the legitimate business interests of certain undertakings, public or private.
Article 19. Essential Security
1. Nothing in this Agreement shall be construed to:
a) to require a Party to provide or allow access to any information the disclosure of which it considers contrary to its essential security interests:
b) to prevent a Party from implementing measures it considers necessary for the fulfilment of its obligations relating to the maintenance or restoration of international peace or security, or for the protection of its own essential security interests.
2. With respect to investors of the other Party and the covered investments affected by such measures, each Party shall accord them non-discriminatory treatment, regardless of whether they are publicly or privately owned.
Article 20. Financial Services
1. Notwithstanding any other provision of this Agreement, the Parties shall not be prevented from adopting or maintaining measures relating to financial services for prudential reasons, including the protection of investors, depositors, policy holders or persons to whom a financial service provider owes a fiduciary duty, or to ensure the integrity and stability of the financial system.
2. Nothing in this Agreement shall apply to non-discriminatory measures of general application adopted in the context of monetary policy and related credit policy or exchange rate policy. This paragraph shall not affect a Party's obligations under Article 8 (transfers).
3. Where an investor submits a request for arbitration pursuant to Section B of this Agreement and the disputing Party invokes paragraphs 1 and 2 of this Article, the Investor-State Tribunal established pursuant to Section B of this Agreement shall not decide whether and to what extent this is a valid defence to the investor's request. The Tribunal shall request a written report from the Parties on this issue. The Investor-State Tribunal may not proceed pending receipt of such a report or a decision by a State-State Arbitral Tribunal, if such a State-State Arbitral Tribunal is constituted.
4. Following a request for a report received in accordance with the previous paragraph, the financial services authorities of the Parties shall hold consultations. If the financial services authorities of the Parties reach a joint decision on whether and to what extent the relevant paragraphs of this Article constitute a valid defence to the investor's claim, they shall prepare a written report describing their joint decision. The report shall be transmitted to the Investor-State Tribunal and shall be binding on the Investor-State Tribunal.
5. If, after 120 days, the financial services authorities of the Parties are unable to reach a joint decision on whether and to what extent the relevant paragraphs of this Article constitute a valid defence to the investor's claim, the matter shall, within 30 days, be referred by either Party to a State Arbitral Tribunal constituted in accordance with Section C. In such a case, the provisions requiring consultations between the Parties provided for in Section C shall not apply. The decision of the State Arbitral Tribunal shall be transmitted to the Investor-State Tribunal and shall be binding on the Investor-State Tribunal. All members of a State Arbitral Tribunal shall have knowledge or experience in financial services law or practice, which may include the regulation of financial institutions.
6. If the Party complained against or the non-challenging Party has not referred such matter to arbitration in accordance with Section C pursuant to paragraph 5 within 10 days of the expiry of the 120-day period referred to in paragraph 5, the arbitration provided for in Section B may proceed with respect to the claim.
7. The term "prudential reasons" is understood to include maintaining the safety, soundness, integrity or financial responsibility of individual financial institutions or the financial system, as well as maintaining the security and financial and operational integrity of payment and clearing systems.
8. For greater certainty, measures of general application adopted in pursuance of related monetary and credit policies or exchange rate policies shall not include measures which expressly cancel or alter contractual provisions specifying the currency of denomination or the exchange rate of currencies.
Article 21. Taxation
1. Except as provided for in this Article, nothing in this Section shall impose obligations with regard to fiscal measures.
2. Article 7 (expropriation and compensation) applies to all tax measures, except that a claimant asserting that a tax measure involves an expropriation may only submit a request for arbitration under Section B if:
a) the claimant has previously submitted in writing to the competent tax authorities of both Parties the question of whether such tax measure involves an expropriation:
b) within 180 days from the date of such consultation, the competent tax authorities of both Parties do not agree that the tax measure does not constitute an expropriation.
3. Nothing in this Agreement shall affect the rights and obligations of a Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency. In the case of a tax treaty between the Parties, the competent authorities under that treaty shall be solely responsible for determining whether there is any inconsistency between this Agreement and that treaty.
4. For greater certainty, measures relating to the preservation of taxes or the punishment of illegal activities that are not discriminatory and are adopted or applied for the purpose of levying or collecting taxes fairly and effectively do not constitute expropriation as provided for in Article 7 (expropriation and compensation) of this Agreement.
5. For the purposes of this article, "competent tax authorities" shall mean:
a) For the Republic of Angola, the Ministry of Finance or an authorised representative of the Ministry of Finance:
b) For the People's Republic of China, the Ministry of Finance and the State Administration of Taxation or an authorised representative of the Ministry of Finance and the State Administration of Taxation.
Article 22. Entry Into Force, Duration and Termination
1. The Parties shall notify each other in writing, through diplomatic channels, of the fulfilment of their respective internal legal procedures regarding the ratification and entry into force of this Agreement. This Agreement shall enter into force on the thirtieth day following receipt of the latter of the two notifications. It shall remain in force for a period of 10 years and shall continue in force thereafter unless terminated in accordance with paragraph 2 of this Article.
2. Either Party may terminate this Agreement at the end of the initial ten-year period or at any time thereafter by giving one year's written notice to the other Party.
3. With regard to covered investments made before the date of termination of this Agreement, all other articles shall continue to have effect for a further period of ten years from the date of termination.
4. The Annexes to this Agreement constitute integral parts of this Agreement.
Section B.
Article 23. Consultations
1. In the case of an investment dispute, if the claimant wishes to submit the dispute to arbitration, it shall submit a request for consultations to the respondent at least 180 days before submitting the dispute to arbitration. The request must:
a) Specify the name and address of the claimant and, where a claim is brought on behalf of a company of the respondent which is a legal person that the claimant owns or controls, directly or indirectly, the name, address and place of incorporation of the company;
b) List the evidence that the claimant is an investor under this Agreement;
c) For each claim, identify the provision of this Agreement or the investment agreement allegedly violated and any other relevant provisions;
d) For each claim, identify the measures or events giving rise to the claim;
e) For each claim, provide a brief summary of the legal and factual basis:
f) Specify the redress sought and the approximate amount of damages claimed.
2. Following the submission of a request for consultations pursuant to this Section, the claimant and the defendant shall enter into consultations with a view to reaching a mutually satisfactory solution. Unless otherwise agreed by the Parties to the dispute, the venue of the consultations shall be the capital of the respondent.
3. If the Parties to the dispute reach a mutually agreed solution to a dispute or to certain claims formally submitted under this Section, they shall respect and comply with the mutually agreed solution reached under this Article without delay.
Article 24. Submission of a Request for Arbitration
1. Without prejudice to the consultation procedure provided for in Article 21 (taxation), if a disputing party considers that an investment dispute cannot be resolved through consultations pursuant to Article 23 (consultations) and 180 days have elapsed since the date of the request for consultations:
a) the claimant, on its own behalf, may submit a request for arbitration under this Section:
i. That the respondent has violated:
A) An obligation under Article 3 (national treatment), Article 4 (most favoured nation treatment), Article 5 (minimum standards of treatment), Article 6 (loss compensation), Article 7 (expropriation and compensation), Article 8 (transfers), Article 9 (performance requirements) and Article 10 (senior management and Board of Directors); or
B) An investment agreement.
ii. That the claimant has suffered loss or damage due to or arising out of such breach.
b) The claimant, on behalf of an undertaking of the respondent which is a legal person that the claimant owns or controls, directly or indirectly, may submit a claim to arbitration under this Section:
i. That the respondent has violated:
A) An obligation under Article 3 (national treatment), Article 4 (most favoured nation treatment), Article 5 (minimum standard of treatment), Article 6 (loss compensation), Article 7 (expropriation and compensation), Article 8 (transfers), Article 9 (performance requirements) and Article 10 (senior management and Board of Directors); or
B) An investment agreement.
ii. That the company has suffered loss or damage due to or arising from the offence.
Provided that a claimant may bring a claim under subparagraph (a)(i)(B) or subparagraph (b)(i)(B) for breach of an investment agreement only if the subject matter of the claim and the damages claimed are directly related to the covered investment that was established or acquired, or intended to be established or acquired, on the basis of the relevant investment agreement.
2. An investor of a Party may not initiate or pursue a claim under this Section if a claim involving the same measure or measures alleged to constitute a violation under this Article and arising out of the same events or circumstances is initiated or pursued pursuant to an agreement between the defendant and a Party that is not a Party: