1. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of the other Party and to investments of that investor if persons of a non-party own or control the enterprise and the denying Party 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 to its investments.
2. A Party may deny the benefits of this Agreement to an investor of the other Party that is an enterprise of the other Party, and to investments of that investor, if the enterprise is owned or controlled, directly or indirectly, by persons of a non-party or of the denying Party, provided that, prior to invoking its rights under this paragraph, the denying Party shall consult with the other Party.
Article 12. 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 that prescribes special formalities in connection with a covered investment, such as a residency requirement for registration or a requirement that covered investments be legally constituted under the law of the Party, provided that these formalities do not materially impair the protections afforded by the Party to investors of the other Party and covered investments pursuant to this Agreement.
2. Notwithstanding Article 3 (National Treatment) and Article 4 (Most-Favoured-Nation Treatment), a Party may require an investor of the other Party or its covered investment to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect such information that is confidential from any disclosure that would prejudice the competitive position of the investor or its covered investment, pursuant to applicable law.
Article 13. Non-Conforming Measures
1. Article 3 (National Treatment), Article 4 (Most-Favoured-Nation Treatment), Article 9 (Prohibition of Performance Requirements), and Article 10 (Senior Management and Board of Directors) shall not apply to:
(a) any existing non-conforming measure that is maintained by a Party;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with the Articles listed in paragraph 1.
2. Article 3 (National Treatment), Article 4 (Most-Favoured-Nation Treatment), Article 9 (Prohibition of Performance Requirements), and Article 10 (Senior Management and Board of Directors) shall not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities as set out in its Schedule.
Article 14. Corporate Social Responsibility
1. Each Party reaffirms the importance of encouraging investors operating within its territory or subject to its jurisdiction voluntarily to incorporate into their internal policies those internationally recognised standards, guidelines, and principles of corporate social responsibility that have been endorsed or are supported by that Party, such as the OECD Guidelines for Multinational Enterprises done at Paris on 21 June 1976 and the United Nations Guiding Principles on Business and Human Rights done at Geneva on 16 June 2011.
2. Each Party should encourage investors or enterprises operating within its territory to undertake and maintain meaningful engagement and dialogue with First Nations people, in accordance with international responsible business conduct standards, guidelines and principles that have been endorsed or are supported by that Party, such as the UN Declaration on the Rights of Indigenous Peoples of 13 September 2007.
Section C. Exceptions
Article 15. Prudential Measures
1. Nothing in this Agreement shall prevent a Party from adopting or maintaining measures for prudential reasons, (10) including the protection of investors, depositors, policyholders, or persons to whom a fiduciary duty is owed by a financial service supplier to ensure the integrity and stability of the financial system.
2. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the Party’s commitments or obligations under this Agreement.
Article 16. General Exceptions
1. For the purposes of this Agreement and subject to the requirement that such measures are not applied in a manner which would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international investment, nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect human, animal, or plant life or health;
(b) necessary to protect public morals or to maintain public order (11);
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on a contract;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; or
(iii) safety;
(d) imposed for the protection of national treasures of artistic, historical, or archaeological value; or
(e) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
2. The Parties understand that the measures referred to in paragraph 1(a) include environmental measures necessary to protect human, animal or plant life or health.
Article 17. Security Exception
Nothing in this Agreement shall be construed to:
(a) require a Party to furnish or allow access to any information, the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Section D. Settlement of Disputes between the Parties
Article 18. Settlement of Disputes between the Parties
1. Each Party shall afford adequate opportunity for prompt and friendly consultation regarding any dispute with the other Party connected with this Agreement.
2. If a dispute connected with this Agreement is not resolved, by such means in accordance with paragraph 1, within a period of six months from the date of a Party’s written request for negotiations or consultations, it shall be submitted upon the request of either Party to an Arbitral Tribunal established in accordance with the provisions of this Article of this Agreement or, as agreed by the Parties, to any other international tribunal.
3. The Arbitral Tribunal referred to in paragraph 2 shall consist of three persons appointed as follows:
(a) each Party shall appoint an arbitrator;
(b) the two arbitrators appointed by the Parties shall, within 30 days of the appointment of the second of them, or such longer period as otherwise agreed, select a third arbitrator, by agreement, who shall be a citizen or permanent resident of a non-party which has diplomatic relations with both Parties; and
(c) the Parties shall, within 30 days of the selection of the third arbitrator, approve the selection of that arbitrator who shall act as Chair of the Arbitral Tribunal.
4. Arbitration proceedings shall be instituted upon notice of arbitration being given through diplomatic channels by the Party instituting such proceedings to the other Party. Such notice of arbitration shall:
(a) specify for each claim, the provision of this Agreement alleged to have been breached and any other relevant provisions;
(b) specify the legal and factual basis for each claim, including where relevant, details of an investment;
(c) specify the relief sought; and
(d) contain the name of the arbitrator appointed by the Party instituting such proceedings.
Within 60 days after giving such notice of arbitration the respondent Party shall notify the Party instituting proceedings of the name of the arbitrator appointed by the respondent Party.
5. If, within the time limits provided for in paragraph 3(b), paragraph 3(c) and paragraph 4, the required appointment has not been made or the required approval has not been given, either Party may request the President of the International Court of Justice to make the necessary appointment. If the President is a citizen or permanent resident of either Party or is otherwise unable to act, the Vice-President shall be invited to make the appointment. If the Vice-President is a citizen or permanent resident of either Party or is unable to act, the Member of the International Court of Justice next in seniority who is not a citizen or permanent resident of either Party shall be invited to make the appointment (12).
6. In case any arbitrator appointed as provided for in this Article shall resign or become unable to act, a successor arbitrator shall be appointed in the same manner as prescribed for the appointment of the original arbitrator and the successor shall have all the powers and duties of the original arbitrator.
7. The Arbitral Tribunal shall convene at such time and place as shall be fixed by the Chair of the Tribunal. Thereafter, the Arbitral Tribunal shall determine where and when it shall sit. The Arbitration shall be held in a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958.
8. The Arbitral Tribunal shall decide all questions relating to its competence, in accordance with Annex VI (Code of Conduct for Panellists and Others Engaged in Dispute Settlement Proceedings Under this Agreement), and shall determine its own procedure, subject to any agreement between the Parties.
9. Before the Arbitral Tribunal makes a decision, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably. The Arbitral Tribunal shall reach its award by majority vote, taking into account the provisions of this Agreement, the international agreements that both Parties have concluded and the generally recognised principles of international law.
10. Each Party shall bear the cost of its appointed arbitrator. The cost of the Chair of the Arbitral Tribunal and the other expenses associated with the conduct of the arbitration board shall be borne, in equal parts, by both Parties.
11. The Arbitral Tribunal shall afford to the Parties a fair hearing. It may render an award on the default of a Party. Any award shall be rendered in writing and shall state its legal basis. A signed counterpart of the award shall be transmitted to each Party.
12. An award shall be final and binding on the Parties.
Section E. Institutional Provisions
Article 19. Council on Investment (13)
1. The Parties hereby establish an Australia-United Arab Emirates Council on Investment (“the Council”).
2. The Council will promote and enhance economic cooperation between the Parties on investment including in relation to any investment priorities as may be identified by the Parties in accordance with the role and objectives of the Council set out in Article 20 (Role and Objectives of the Council).
3. The Council shall be convened at Ministerial or senior official level within 12 months of entry into force of this Agreement and thereafter at least once every two years. In principle, the Council shall be convened alternately in Australia and the UAE, unless agreed otherwise by the Parties.
4. When convened, the Council shall be co-chaired:
(a) for Australia, jointly by the Treasurer and Minister for Trade and Tourism or their authorised representatives; and
(b) for the UAE, jointly by the Minister of Investment and the Minister of Finance or their authorised representatives.
Article 20. Role and Objectives of the Council
1. The objectives of the Council are to enhance communication, exchanges and practical economic cooperation between Australia and the UAE, with a focus on the following areas:
(a) macroeconomic environments and settings in Australia, the UAE, and globally;
(b) economic challenges and reform policies;
(c) investment trends and policies; and
(d) other mutually beneficial topics and areas of cooperation as may be agreed between the Co-Chairs.
2. Senior officials may take forward the work of the Council, pursuant to Article 19 (Council on Investment), by:
(a) promoting and enhancing engagement and partnership with First Nations people in relation to investment;
(b) monitoring trade and investment relations, identifying opportunities for expanding investment, and identifying issues relevant to investment that may be appropriate for negotiation in an appropriate forum;
(c) holding consultations on specific investment policy matters of interest to the Parties;
(d) working toward the enhancement of investment flows under investment projects;
(e) identifying and working toward the removal of impediments of investment flows under investment projects;
(f) seeking the views of the private sector, where appropriate, on matters related to the work of the Council;
(g) establishing or maintaining contact points in their designated agency to provide assistance and advisory services to investors;
(h) discussing matters of mutual interest to the investment relationship, as may be agreed between the Co-Chairs; and
(i) establishing mechanisms to make recommendations to its relevant government bodies addressing recurrent issues affecting investors of the other Party.
3. A Party may refer specific investment matters to the Council by delivering a written request to the other Party that includes a description of the matter concerned. The Council may take up the matter promptly after the request is delivered unless the requesting Party agrees to postpone discussion of the matter.
4. Each Party shall endeavour to provide for an opportunity for the Council to discuss a matter before taking actions that could affect adversely the trade or investment interests of the other Party.
Article 21. Amendment
The Parties may agree in writing to amend this Agreement, upon the request of a Party. Such amendments shall enter into force in accordance with the procedures required for the entry into force of this Agreement or as otherwise agreed by the Parties.
Article 22. Entry Into Force, Duration and Termination
1. This Agreement shall enter into force 60 days after the date on which the Parties exchange written notifications that they have completed their respective internal procedures necessary for the entry into force of this Agreement, or on such other date as the Parties may agree. This Agreement shall remain in force for a period of 10 years after its entry into force and shall continue to be in force unless replaced by the mutual consent of the Parties or terminated as provided for in paragraph 2.
2. A Party may terminate this Agreement at the end of the initial 10 year period or at any time thereafter by giving a one-year's advance written notice of termination to the other Party through diplomatic channels. Such termination shall become effective twelve months after the date of receipt of such notice of termination by the other Party.
3. Where the Agreement is terminated in accordance with paragraph 2, in respect of investments made prior to the date of termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of 10 years from the date of termination of this Agreement.
4. The Annexes and Footnotes to this Agreement shall constitute an integral part of this Agreement.
Conclusion
Signed at , this day of two thousand and twenty-four, in the Arabic and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.
Attachments
Annex I. Expropriation
The Parties confirm their shared understanding that:
1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
2. Paragraph 1 of Article 7 (Expropriation and Compensation) addresses two situations. The first is direct expropriation, in which an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.
3. The second situation addressed by paragraph 1 of Article 7 (Expropriation and Compensation) is indirect expropriation, in which an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
4. The determination of whether an action or series of actions by a Party constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:
(a) the economic impact of the government action, although the fact that an action or actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(b) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; (14) and
(c) the character of the government action.
5. Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health (15), safety, and the environment, do not constitute indirect expropriations, except in rare circumstances.
Annex II. Temporary Safeguard Measures
1. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers relating to the movements of capital:
(a) in the event of serious balance-of-payments and external financial difficulties or threat thereof; or
(b) if, in exceptional cases, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for macroeconomic management.
2. Any measure adopted or maintained under paragraph 1 shall:
(a) not be inconsistent with Article 4 (National Treatment) and Article 5 (Most-Favoured-Nation Treatment);
(b) not exceed those necessary to deal with the circumstances set out in paragraph 1;
(c) be temporary and be phased out progressively as the situations specified in paragraph 1 improve;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Party; and
(e) be consistent with the Articles of Agreement of the International Monetary Fund.
3. A Party adopting or maintaining measures under paragraph 1 shall:
(a) promptly notify, in writing, the other Party of the measures, including any changes therein; and
(b) on request of the other Party, promptly commence consultations with the other Party to review the measures adopted or maintained under paragraph 1, provided that:
(i) in the case of capital movements, such consultations are not otherwise taking place outside of this Agreement; or
(ii) in the case of current account restrictions, such consultations are not otherwise taking place outside this Agreement.
Annex III. Foreign Investment Framework of Australia
Notwithstanding any other provision of this Agreement, Australia reserves the right to adopt or maintain any measure (16) with respect to its Foreign Investment Framework.
A decision or requirement under Australia’s Foreign Investment Framework, which comprises Australia’s Foreign Investment Policy; Foreign Acquisitions and Takeovers Act 1975 (Cth); Foreign Acquisitions and Takeovers Regulation 2015 (Cth); Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth); Foreign Acquisitions and Takeovers Fees Imposition Regulation 2020 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); and Ministerial Statements and Guidance Notes as statements of policy, shall not be subject to dispute settlement under Article 18 (Settlement of Disputes Between the Parties).
Annex IV. Foreign Investment Framework of the United Arab Emirates
UAE reserves the right to adopt or maintain any measure within the scope of the Cabinet Resolution No. (55) of 2021 and Federal Decree Law No. (32) of 2021 on Commercial Companies. Those measures are applicable to investors of Australia and their investments, and those Ministerial Statements and Guidance Notes as statements of policy, shall not be subject to dispute settlement under Article 18 (Settlement of Disputes Between the Parties).
Annex V. Investment Related to Digital Trade
1. Definitions
For the purposes of this Agreement:
computing facilities means computer servers and storage devices for processing or storing information for commercial use;
covered person means, as defined in Section A (Definitions) of this Agreement, a covered investment or an investor of the other Party; and
personal data means any information, including data, about an identified or identifiable natural person.
2. General Provisions and Scope
1. This Annex shall apply to measures adopted or maintained by a Party that affect data used by an investor in the conduct of business associated with a covered investment, including with regard to the cross-border transfer of such data by electronic means.
2. This Annex shall not apply to:
(a) information held or processed by or on behalf of a Party, or measures related to such information, including measures related to its collection;
(b) a measure to the extent that the measure is not subject to an obligation of this Agreement by reason of:
(i) Article 12 (Non-Conforming Measures) of Section B (Investment Promotion and Protection) of this Agreement; or
(ii) any exception that is applicable to that obligation.
3. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognise that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.
2. Neither Party shall prohibit or restrict the cross-border transfer of information by electronic means, including personal data, if this activity is for the conduct of the business of a covered person.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination, or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information greater than are required to achieve the objective.
4. Location of Computing Facilities
1. The Parties recognise that each Party may have its own regulatory requirements regarding the use of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. Neither Party shall require a covered person to use or locate computing facilities in that Party’s territory as a condition for conducting business in that territory.