Article 15. Other Provisions

If the provisions of international law existing at present or establised hereafter contain rules, whether general or specific, entitling investments by investors of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such rules shall to the extent that they are more favourable prevail over the present Agreement.

Article 16. Consultations

The Contracting Parties shall consult with each other concerning any: matter related to the application or interpretation of this Agreement.

Article 17. Entry Into Force, Duration and Termination

1. The present Agreement shall come into force 60 days after the date on which the Contracting Parties have reciprocally notified each other that the respective constitutional formalities required for the coming into effect of international agreements have been complied with.

2. This Agreement shall remain in force for a period of 10 years. Thereafter it shall be deemed to have been automatically extended unless either Contracting Party gives to the other Contracting Party a written notice through diplomatic channels of its intention to terminate the Agreement. The Agreement shall stand terminated one year from the date of receipt of such written notice.

3. This Agreement may be amended at any time after its entry into force by mutual consent.

4. Notwithstanding termination of this Agreement pursuant to paragraph 2 of this Article, this Agreement shall continue to be effective for a further period of 10 years from the date of its termination in respect of investments made or acquired before the date of termination of this Agreement.

Conclusion

In witness whereof the undersigned, duly authorized thereto by their respective Governments, have signed this Agreement.

Signed in the city of New Delhi on the 10th day of the month of November of the year 2009 in three originals, each in the Spanish, English and Hindi languages, all the texts being equally authentic. In case of any divergence, the English text shall prevail.

For the Government of the Republic of Colombia

For the Government of the Republic of India

Attachments

Annex I. Presentation of documents to a Party regarding Article 9

INDIA

The place of presentation of the notice of intent and other documents concerning settlement of disputes regarding Article 9, in India is:

Department of Economic Affairs

Ministry of Finance

North Block, New Delhi 1 10001, India

COLOMBIA

The place of presentation of the notice of intent and other documents concerning settlement of disputes regarding Article 9, in Colombia is:

Dirección de Inversión Extranjera y Servicios

Ministerio de Comercio, Tndustria y Turismo

Calle 28 No. 13a-15

Bogota D,C, - Colombia.

JOINT INTERPRETATIVE DECLARATION BETWEEN THE REPUBLIC OF INDlA AND THE REPUBLIC OF COLOMBIA REGARDING THE AGREEMENT FOR THE PROMOTION AND PROTECTlON OF INVESTMENTS BETWEEN INDIA AND COLOMBIA, SIGNED ON NOVEMBER 10TH 2009

The Government of the Republic of India ("lndia"), and the Oovemmenr of the Republic of Colombia ("Colombia"), hereinafter referred as the Contracting Parties:

Recognizing the uncertainties and ambiguities that may arise regarding interpretation and application of the standards contained in the Agreement for the Promotion and Protection of Investments between India and Colombia signed on November 10th 2009 (the "Agreement"/APPI), with a duration of 10 years, entered in force on July 2nd 2012, 

Taking into account the power of the Contracting Parties to provide clarification on the object and purpose of the Agreement, whilst affirming their understanding of their mutual obligations enshrined therein, and

Recalling the requirement under customary international law and Article 31 (a) & (b) of the Vienna Convention of the Law of Treaties, that any interpretation of the Agreement must take into account the Contracting Parties' subsequent statements and practice reflecting their shared understanding of the meaning of that Agreement,

The Contracting Parties, while recognizing that additional uncertainties and ambiguities may remain and need to be li.trlher clarified al a future date, issue the following notes (the "Notes") to resolve certain questions regarding the scope and meaning of several of the Agreement's provisions.

NOTE I: General principles applicable for Interpretation of the APPI

1. This interpretative note shall be read together with the Agreement and shall form an integral part of the Agreement.

2. The term of this interpretative note shall be co-terminus with the Agreement.

3. Interpretation of this Agreement shall be done in accordance with the high level of deference inlernational law accords to States with regard to their development and implementation of domestic policies.

4. Interpretation and application of the Agreement shall also reflect the strong presumption of legitimacy and regularity international law provides lo domestic legislative, administrative and judicial determinations made by the Contracting Parties.

NOTE 2: Definition of "lnvestor" (Article 1.1)

1. For greater certainty regarding the definition of an "lnvestor"

a. The term "entity" referred to in Article I. l.b of this Agreement means only a company, corporation, firm or association of a Contracting Party that is incorporated or constin1tcd or otherwise duly established pursuant to the laws and regulations of that Contracting Party, and that has its seal in that Contracting Party and is engaged in substantial business activities in the territory of that Contracting Party. (1)

b. In the case of dual nationals the term 'physical person or nantral person", refers to his or her dominant and effective nationality.

2. The Contracting Parties affirm that the Agreement aims to protect investors that have direct real and transparent links with the economies of both Contracting Parties. The term "investor" therefore, does not include persons of one Contracting Party that (a) invest in another Contracting party through a person or a non-Party, or (b) are owned or controlled by persons of a non-Party, or persons of the other Contracting Party.

NOTE 3: Definition of "Investment" (Article 2)

1. The Contracting Pa1ties confirm their understanding that nothing in this Agreement covers pre-establishment or pre-investment activities.

2. The existence, scope and nature of the different assets that may be deemed an "Investment" shall be determined by the laws and regulations of the Contracting Party in the territory in which the investment is made.

3. For the purpose of Article 2.1 (d), the term 'Intellectual Property' shall be construed as categories of intellectual property that are the subject of Section I through 7 o C Part II of the Agreement on Trade-related Aspects of Intellectual Prope1ty Rights, Annex IC of the Marrakesh Agreement Establishing the World Trade Organization.

4. In accordance with Article 2.3, the minimum characteristics of an "Investment" are (a) the lasting contribution of capital or other resources; (b) the expectation of gain or profit; (c) the assumption of risk by the investor, and (d) significance for development of the Contracting Party receiving the investment. (2)

For the avoidance of doubt, an investor of one Contracting Party must make its investment in the territory of the other Contracting Party. This means, for example, that claims to money arising solely from cross-border commercial transaction, or other relationships or instruments not involving an investor's actual investment project in the territory of the other Contracting Party, do not constitute covered investment. Furthermore, the mere fact that an investment "benefits" the Contracting Party in which it is made is insufficient to establish that it is an investment "in the territory of" that Contracting Party.

NOTE 4: Promotion and Protection of Investments (Article 3)

1. The concept of "fair and equitable treatment" under Article 3 does not require treatment in addition or beyond that which is required by the customary international law minimum standard of treatment of aliens, and docs not create additional substantive rights. (3)

For greater certainty, a measure shall constitute a violation through customary international law minimum standard of treatment in case of:

(i) Denial ofjusrice in any judicial or administrntive proceedings; or

(ii) fundamental breach of due process; or

(iii) targeted discrimination on manifestly unjustified grounds, such as gender, race or religious belief; or

(iv) manifestly abusive treatment, such as coercion, duress and harassment.

2. For further clarification, the "Fair and Equitable Treatment" standard under Article 3 does not require compensation for measures designed or applied to further public policy objectives, including but not limited to:

a. protection or improvement of natural resources and the environment;

b. protection or improvement of human, animal or plant life or health;

c. protection or improvement of human capital conditions of work, and human rights;

d. protection or improvement of economic conditions and the integrity of the financial system;

e. implementation of fiscal policy measures, including taxation.

3. For further avoidance of doubt, "measures'" referred to under subparagraph (2) herein include new laws and regulations, amendments to existing laws and regulations, as well as changes in interpretation and application of existing laws and regulation, provided such changes or amendments are in accordance with the law of the Contracting Party taking the measure.

4. a) The "fair and equitable treatment" requirement does not, alone elevate alleged representations, contractual promises or other undertakings by the Contracting Party where the investment is made to the investor or investment to commitments binding or enforceable under the Agreement. The legal significance of those representations, contractual promises or other undertakings to the investor or investment are to be determined, (i) in the case of a written contract between the investor or investment and Contracting Party that specifies the applicable law, under that law; and (ii) in all other cases, under the law of the Contracting Party ut which the investment is made. For greater certainty, the "law of the Contracting Party" in which the investment is made means the law that a domestic court or tribunal of proper jurisdiction would apply in the same case.

b) Subparagraph (a) is without prejudice to the question of whether a Contracting Party has inappropriately interfered with representations, contractual promises or other undertakings in breach of the Agreement through, in particular, wilful and egregious abuse of law amounting to a violation of Article 3.

5. The Contracting Parties understand chat the obligation to provide "full protection and security" extends only to the physical security of the investor and to its investments and does not suppose any other obligation whatsoever.

NOTE 5: National Treatment and Most Favoured Nation Treatment (Article 4)

1. The most-favored-nation (MFN) and national treatment provisions under Article 4 are designed to protect against illegitimate and intentional discrimination against an investment, or investor with respect to its investment on the basis of nationality.

2. a) The Contracting Parties further affirm that the MFN obligation is not intended to alter the Agreement's substantive content by for example, permitting piecemeal incorporation of and reliance on provisions found in other treaties, investment or otherwise;

b) For greater certainty, the Contracting Parties note their agreement that the MFN obligation provided under Article 4 does not apply to the mechanism for settlement of investment disputes contained in this Agreement or to other procedural and jurisdictional issues under any circumstance.

3. a) Establishing a breach under Article 4 requires a comparison between investors and investments that are in "like circumstances".

b) Determining whether investors or investments are in "like circumstances" is a fact-specific inquiry that is highly dependent on context. It requires a case-by-case examination of all relevant factors, including:

i) the sectors and industries in which the investors and investments are operating;

ii) the activities and operations of the investors and investments;

iii) the nature of the enterprise in question, i.e.: whether it is a public, private or state-owned or -controlled enterprise;

iv) the nature of goods or services involved;

v) the legal and regulat0ry regimes governing the investors and investments and their activities;

vi) the actual and potential effects of the investments on third persons and the local community;

vii) the actual and potential effects of the investments on the local, regional or national environment including the cumulative effects of all investments within a jurisdiction on the environment;

viii) the aim of the policies or measures concerned; and

ix) other factors directly relating to the investors and investments in relation to the policies or measures concerned.

4. For greater certainty, legitimate exercises of prosecutorial discretion, including decisions regarding whether, when and how to enforce or not enforce a law or regulation, are not a violation of Article 4, provided such decisions are taken to further a policy, law or regulation that is not inconsistent with the Agreement.

NOTE 6: Expropriation (Article 6)

1. Article 6 addresses two situations. The first is direct expropriation, where an investment is nationalised or expropriated. The second is where a measure or series of measures have the effect of a nationalisation or expropriation.

2. The determination of whether a measure or series of measures have an effect equivalent to nationalisation or expropriation requires a case-by-case, fact-based inquiry considering the following factors, including whether:

a) the measures result in a total or near total and permanent destmction of the value of the investment,

b) the measures deprive the investor of its rights of management and control over the investment (4), and

c) there is an appropriation of the investment by a Contracting Party which results in transfer the investment, in whole or significant part, to that Contracting Party or to an agency or instrumentality of the Contracting Party or a third party.

3. Notwithstanding paragraph 2, legislative, executive, regulatory, administrative or judicial measures or actions or general applicability that are designed or applied to further a Contracting Party's public policy objectives shall not constitute expropriation. These public policy objectives include, but are not limited to:

a) protection and improvement of natural resources and the enviromnent;

b) protection and improvement of human, animal or plant life or health;

c) protection and improvement of human capital, conditions of work and human rights;

d) protection and improvement of economic conditions and the integrity of the financial system;

e) implementation of fiscal policy measures, including taxation.

NOTE 7: Settlement of Disputes between a Contracting Party and an Investor of the other Contracting Party (Artide 9)

1. For the purposes of this Agreement, ''[a]ny dispute between an investor of one Contracting Party and the other Contracting Party in relation to an investment under this Agreement or in connection to the interpretation or application of this Agreement" is a dispute between a Contracting Party and an investment, or an investor with respect its investment, arising of an alleged breach of an obligation of a Contracting Party under this Agreement. The Contracting Parties further confirm their understanding that to establish the existence or a dispute actionable under Article 9, a claimant bears the burden of demonstrating that the respondent has breached an obligation owed under the Agreement, and the claimant has:

i. Suffered actual and non-speculative damages,

ii. As a direct and foreseeable result of that breach, and 

iii. Its claims are ripe for adjudication under the Agreement. (5)

2. Absent express language to the contrary, nothing in this Agreement shall be interpreted to constitute a waiver or limitation of any rights or defences of either of the Contracting Parties under international law, including rights to regulate within their respective borders, and abilities to invoke defences of necessity, force majeure and sovereign immunity.

3. Any interpretation of this Agreement, including any interpretation contained in these Notes, which is jointly agreed to and issued as such by the Contracting Parties shall be binding on tribunals established under Article 9 upon issuance or that interpretation in accordance with the Vienna Convention on the Law of Treaties and customary international law, other evidence of the Contracting Parties' agreement and practice regarding interpretation or application or this Agreement, including subsequent agreement and practice manifested through submissions made to tribunals on issues of treaty interpretation, shall similarly constitute authoritative interpretations of this Agreement and must be taken into account as such by tribunals constituted under Article 9 and Article 10. (6)

NOTE 8: Denial of Benefits (Article 11)

1. The Contracting Parties affirm their understanding that they may deny the benefits of this Agreement pursuant to Article 11 at any time, including after the initiation of arbitration under Article 9.

NOTE 9: General Exceptions (Article 13)

1. Where the Contracting Party asserts as a defence that the measure alleged to be a breach of its obligations under this Agreement is for the protection of its "essential security interests" or in "circumstances of extreme emergency in accordance with its domestic laws applied on a reasonable basis" as set out in Article 13, any decision of such Contracting Party taken on such security considerations shall be non-justiciable in that it shall not be open to any arbitral tribunal to review the merits of any such decision, even where the arbitral proceedings concern an assessment of any claim for damages and/or compensation, or an adjudication of any other issues referred to the tribunal.

IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments, have signed this Joint Interpretative Declaration.

Signed at Bogota on 4th October, 2018 in two originals, each in the Hindi, the Spanish and the English languages, all texts being equally authentic. In case of divergence in interpretation, the English text shall prevail.

FOR THE GOVERNMENT OF THE REPUBLIC Of INDIA

Name: Ravi Baugar

Ambassador ofl India to Colombia and Ecuador

FOR THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA

Name: Carlos Holmes Trujillo

Minister of Foreign Affairs of Colombia