Brazil - Colombia CFIA (2015) - Electronic Database of Investment Treaties (EDIT)

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Brazil - Colombia CFIA (2015)

7. The Joint Committee shall draw up its own rules of procedure.

Article 17. National Focal or Ombudsmen Points

1. Each Party shall designate a National Focal Point or "Ombudsman", which will primarily function to support investors of the other Party in its territory.

2. In the case of the Federative Republic of Brazil, the "Ombudsman" will be established in the Foreign Trade Chamber (CAMEX), a Council of Government of the Presidency of the Federative Republic of Brazil, the interministerial nature.

3. In the case of Colombia, the National Focal Point will be established in the Ministry of Commerce, Industry and Tourism.

4. The National Focal Point or "Ombudsman", among other things, to:

(A) conform to the Joint Committee's recommendations and interact with the National Focal Point or "Ombudsman" of the other;

(B) Administer the queries and complaints of the other Party or investors of the other Party with the relevant government authorities; make, where appropriate, suggestions for solving the problem and inform the stakeholders about the results of their efforts;

(C) Find mitigate conflicts and facilitate their resolution in coordination with government authorities and in cooperation with relevant private entities;

(D) To provide timely and useful information on regulatory issues related to investments in general or to specific projects, on request, and

(E) Report to the Joint Committee activities and actions, if applicable.

5. Each Party shall draw up the rules for the operation of its National Focal Point or "Ombudsman", expressly provides, where appropriate, deadlines for implementation of each of its duties and powers.

6. Each Party shall appoint as its national focal point or "Ombudsman" just a body or authority, which should give accurate and timely responses to requests from government and investors of the other Party.

7. The Parties shall provide the means and resources to the National Focal Point or "Ombudsman" to perform their duties and to ensure its institutional access to other government bodies in charge of matters relating to investments.

Article 18. Information Exchange between the Parties

1. The Parties shall exchange information, whenever possible, on business opportunities, procedures and requirements for investments.

2. The Parties shall provide information on request, promptly and respect for internal standards of protection of information, in particular on the following aspects:

(A) The legal conditions for investment;

(B) specific incentives and related government programs;

(D) The legal framework for investment, including legislation on the establishment of companies and "joint ventures";

(E) relevant international treaties;

(F) customs procedures and tax regimes;

(G) Statistical information on goods and services markets;

(H) The available infrastructure and public services;

(I) government procurement and public concessions;

(J) the social and labor legislation;

(K) The immigration laws;

(L) exchange legislation;

(M) Regulatory Information specific economic sectors or areas previously identified by the Parties;

(N) Regional projects and agreements on investment, and

(O) Public information on Public-Private Partnerships.

Article 19. Protected Information Treatment

1. The Parties shall respect the information protection level set by the Party that has submitted it, subject to domestic laws on the subject.

2. Nothing set in the Agreement shall be construed to require teither Party to disclose protected information where disclosure would impede law enforcement or otherwise be contrary to the public interest or would harm the privacy or legitimate commercial interests. For purposes of this paragraph, the protected information includes confidential business information or privileged information or protected from disclosure in accordance with applicable law of a Party.

Article 20. Relationship with the Private Sector

Recognizing the vital role played by the private sector, the Parties will disseminate, in the relevant business sectors, the general information on investments, regulatory frameworks and business opportunities in the territory of the other Party.

Article 21. Cooperation between Bodies Entrusted with the Promotion of Investment

The Parties shall promote cooperation between their bodies to promote investment, in order to facilitate investment in the territory of the other Party.

Article 22. Dispute Prevention

1. The National Focal Points or "ombudsmen" will act in coordination with each other and with the Joint Committee, in order to prevent, manage and resolve disputes.

2. Before starting any arbitration between the parties, any dispute shall be assessed through consultations and negotiations and will be previously examined by the Joint Committee.

3. A Party may submit a specific issue that affects an investor and convene a meeting of the Joint Committee to be held within thirty (30) days from the date of request:

(A) To start the procedure, the Party shall submit in writing its request to the Joint Committee, specifying the affected investor's name and the challenges and difficulties faced;

(B) The Joint Committee shall have a period of sixty (60) days, renewable by mutual agreement, upon justification, to assess the relevant information submitted in the case and prepare a report;

(C) In order to facilitate the search for solution among the parties concerned, wherever possible, will participate in the Joint Committee meeting:

(i) representatives of the affected investors;

(ii) representatives of governmental or non-governmental entities involved in the measure or query object situation.

(D) The dialogue procedure and bilateral consultation will close at the initiative of either party involved, after expiry of the sixty (60) days provided for in paragraph 3. b) of this Article. The Joint Committee will present its report at the next meeting, to be convened fifteen (15) days from the date on which either party to request the termination of the dialogue and consultation procedure. The report shall include:

(i) identification of the Party;

(ii) the affected investor identified under clause 3 (a);

(iii) description of the measure query object;

(iv) Regarding the efforts made, and

(v) the position of the Parties concerning the measure.

(E) The Joint Committee shall, whenever possible, to convene special meetings to assess the issues that have been submitted.

(F) In the event that a party does not attend the Joint Committee meetings provided for in this Article, the dispute may be submitted to arbitration by the other Party under Article 23 of this Agreement.

4. Meetings of the Joint Committee referred to in this Article and all documentation, as well as the measures taken under the scheme established in this Article, will have reserved character, except the reports submitted.

Article 23. Settlement of Disputes between the Parties

1. Once exhausted the procedure referred to in paragraph 3 of Article 22 without the dispute has been resolved, either Party may submit it to an arbitral tribunal ad hoc, according to the provisions of this Article. Alternatively, the parties may choose, by mutual agreement, to submit the dispute to a permanent arbitration institution for the settlement of disputes regarding investments. Unless the parties agree otherwise, such an institution will apply the provisions of this Article.

2. The purpose of arbitration is to determine compliance with this Agreement as alleged by a Party as awry with this.

3. There may be submitted to arbitration Article 13 (Corporate Social Responsibility), paragraph 1 of Article 14 (Measures of Investment and Fight against Corruption) and paragraph 2 of Article 15 (Provisions on Investment and Environment, Affairs labor, Health and Safety).

4. This Article shall not apply to any dispute concerning the fact that it has occurred, nor any measure that has been adopted before the entry into force of this Agreement.

5. This Article shall not apply to any dispute if there elapsed more than five (5) years from the date on which the party knew or should have known of the facts giving rise to the dispute.

6. The tribunal shall consist of three arbitrators. Each Party shall designate, within a period of three (3) months after receiving the "notice of arbitration", a member of the arbitral tribunal. The two members, within a period of three (3) months from the appointment of the last of them, appoint a national of a third State with which both Parties maintain diplomatic relations, which, after approval by both Parties, will be appointed Chairman of the Arbitral Tribunal. The appointment of the President shall be approved by the parties in a period of one (1) month, counted from the date of his appointment.

7. If, within the time limits specified in paragraph 6 of this Article, have not been made the necessary appointments, either party may request the Secretary-General of the Permanent Court of Arbitration at The Hague to make the necessary appointments. If the Secretary General of the Permanent Court of Arbitration at The Hague is a national of either Party or is unable to discharge the said function, the member of the Permanent Court of Arbitration at The Hague of greater antiquity, which is not a national of either Party shall be invited to make the necessary appointments.

8. Referees should:

(A) have the necessary experience or expertise in public international law, international rules on investment or international trade, or resolution of disputes arising in relation to Investment International Agreements;

(B) be independent and not be bound by any of the parties or the other arbitrators or witnesses, directly or indirectly, nor take instructions from Parties; and

(C) comply with the "Rules of Conduct for the implementation of understanding the rules and procedures governing the settlement of disputes" the World Trade Organization (WTO / DSB / RC / 1 of 11 December 1996), as applicable to the dispute, or any other standard of conduct established by the Joint Committee.

9. The decision on any proposal to refuse an arbitrator shall be taken by the Secretary General of the Permanent Court of Arbitration at The Hague. If it is decided that the refusal to offer is well founded, the arbitrator shall be replaced.

10. The Parties shall designate the place where they will present the "Arbitration Notice" and other documents related to the resolution of the dispute, to occur in the place of the Party in Annex II (Document Delivery to the other Party).

11. The Arbitral Tribunal shall determine its own procedure in accordance with this Article and, secondarily, the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL / UNCITRAL). It will take its decision by majority vote and decide based on the provisions of this Agreement and the principles and applicable international law rules. Unless otherwise agreed, the decision of the arbitral tribunal shall be rendered within six (6) months after the appointment of the President, in accordance with paragraphs 6 and 7 of this Article.

12. The decision of the Arbitral Tribunal shall be final and binding on the Parties which shall fulfill it without delay.

13. The Joint Committee shall approve the general rule for determining the fees to be paid to the arbitrators, taking into account the relevant international organizations practices. Parties incur equally in arbitrators' expenses as well as in other process costs, unless is agreed otherwise.

14. Subject to paragraph 2 of this Article, the Parties, through a specific arbitration may request the arbitrators to examine the existence of damage caused by the measure questioned in accordance with the obligations under this Agreement and to establish, through the award, a compensation for such losses. In this case, besides the preceding paragraphs of this Article shall observe the following provisions:

(A) The arbitration agreement shall be equivalent to the "notice of arbitration" in paragraph 6 of meaning.

(B) This section shall not apply to a dispute relating to a specific investor, who has previously been resolved, where there is protection of res judicata. If an investor has submitted a complaint about the measure questioned in the Joint Committee to local courts or a Host State court of arbitration, the arbitration to examine losses can only be started after the resignation investor to its claim before local courts or arbitral tribunal Host State. If, after establishing arbitration, come to the attention of the referees or the parties the existence of complaints in local courts or arbitral tribunals on the measure in question, the arbitration shall be suspended.

(C) the recognition and enforcement of the report will be made as if it were a court final judgment, in accordance with the provisions of the procedural law of the State where it is desired such recognition and enforcement, in compliance with international agreements on the subject that is a party.

(D) If the arbitration award set monetary compensation, the Party receiving such compensation shall transfer it to the holders of investment rights in question, after deducting the costs of the dispute in accordance with the internal procedures of each Party. Part whose claims are accepted may request the Arbitral Tribunal to order the transfer of the indemnity directly to the holders of the affected investment rights and the payment of the costs to those who have the assumed.

Section IV. Agenda for Cooperation and Investment Facilitation

Article 24. Agenda for Cooperation and Investment Facilitation

1. The Joint Committee will develop and discuss an Agenda for Cooperation and Investment Facilitation on topics relevant to the promotion of bilateral investments. The topics to be treated initially and objectives are listed in Annex I - "Agenda for Cooperation and Investment Facilitation".

2. At any time, the Joint Committee may extend or modify the "Agenda for Cooperation and Investment Facilitation" Annex I. The Joint Committee may invite, when appropriate, additional government authorities to already designated by both parties, for agenda discussions.

3. The results that may arise from discussions under Agenda, will provide additional protocols to this Agreement or specific legal instruments, as appropriate.

4. The Joint Committee shall establish activities and timelines to achieve greater cooperation, investment facilitation and specific commitments.

5. The Parties shall submit to the Joint Committee the names of government agencies and their officials involved in these activities.

6. For greater certainty, cooperation means in a broad sense and not in the sense of cooperation or technical assistance or similar.

Section V. General and Final Provisions

Article 25. Final Provisions

1. Neither the Joint Committee or the National Focal Points or "Ombudsmen" established under the Agreement supersede or prejudice existing diplomatic channels between the Parties.

2. Notwithstanding their regular meetings, five (5) years after the entry into force of this Agreement, the Joint Committee will conduct a general review of its application and, if necessary, make additional recommendations.

3. This Agreement shall enter into force sixty (60) days after the date of receipt of the last notification by which a Party informs the other of the completion of the internal requirements for the entry into force of the Agreement.

4. This Agreement shall remain in force for a period of ten (10) years and shall be automatically extended indefinitely. At any time, either party may terminate this Agreement through diplomatic channels. The denunciation shall take effect on the date the Parties agree or, if the parties do not reach an agreement, one (1) year after the date of delivery of notice of termination.

Conclusion

DONE at Bogota in nine October October of 2015, in two originals in the Spanish and Portuguese languages, both texts being equally authentic.

Attachments

The schedule below is an initial effort to improve cooperation and investment facilitation between the Parties.

a. Visas

i. The Parties shall cooperate to facilitate the entry and residence of managers, executives and skilled employees of economic agents, entities, companies and investors of the other Party.

b. Technical and Environmental Regulations

i. The Parties will discuss the shipping documents, licenses and certificates related to the investment of the other Party.

c. Cooperation on Regulatory and Institutional Exchange

i. The Parties shall seek to strengthen institutional cooperation for the exchange of experiences on the development and application of regulation.

d. Productive Chaining

i. The Parties shall cooperate in promoting strategic alliances, including production linkages between private enterprises of the Parties favoring alliances with micro, small and medium enterprises.