Brazil - São Tomé and Príncipe BIT (2023) - Electronic Database of Investment Treaties (EDIT)

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Brazil - São Tomé and Príncipe BIT (2023)

b) discuss investment issues and publicize opportunities for the expansion of mutual investment;

c) to coordinate the implementation of the Agendas for Cooperation and Investment Facilitation, in accordance with Article 26 of the Agreement;

d) consult with the private sector and civil society, where appropriate, on their views on specific issues related to the work of the Joint Committee;

e) seek to resolve any issues or disputes relating to investments by investors of one of the Parties in an amicable manner; and

f) supplement the rules for arbitration disputes between the Parties, if necessary.

The Parties may establish ad hoc working groups, which shall meet jointly with the Joint Committee or separately.

6. The private sector may be invited to join the ad hoc working groups when so authorized by the Joint Committee.

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

Article 19. National Focal Points or Ombudspersons

1. Each Party shall designate a single body or authority as a National Focal Point or Ombudsperson, whose main function shall be to provide support to the other Party's investors in its territory.

2. In the Federative Republic of Brazil, the National Focal Point or Ombudsperson will be the Direct Investment Ombudsman (0ID) of the Executive Secretariat of the Chamber of Foreign Trade (CAM EX).

3. In the Democratic Republic of São Tomé and Príncipe, the National Focal Point or Ombudsperson will be the Trade and Investment Promotion Agency (APCI).

4. The National Focal Point/Ombudsperson shall, among other duties:

a) seek to comply with the recommendations of the Joint Committee and interact with the National Focal Point of the other Party, in accordance with this Agreement;

b) follow up on requests and consultations from the other Party or the other Party's investors with the competent authorities and inform the interested parties of the results of their suggestions;

c) evaluate, in consultation with the competent government authorities, suggestions and complaints received from the other Party or investors of the other Party and recommend, where appropriate, actions to improve the investment environment;

d) seek to prevent investment disputes, in coordination with relevant government authorities and private entities;

e) provide timely and useful information on regulatory issues related to investments in general or to specific projects; and

f) report to the Joint Committee on its activities and actions, where appropriate.

5. The National Focal Points or Ombudspersons shall cooperate with each other and with the Joint Committee with a view to assisting in the prevention of disputes between the Parties.

6. Each Party shall determine the deadlines for the implementation of each of its duties and responsibilities, which shall be communicated to the other Party.

Article 20. Exchange of Information between the Parties

1. The Parties shall exchange information, whenever possible and relevant to reciprocal investments, regarding business opportunities and procedures and requirements for investments, in particular through the Joint Committee and their National Focal Points.

2. To this end, upon request, a Party shall provide, in a timely manner and respecting the applicable level of protection, information on, in particular, the following matters:

a) regulatory conditions for investments;

b) government programs and possible incentives related to them;

c) public policies and regulatory frameworks that may affect investments;

d) legal framework for investments, including legislation on the establishment of companies and joint ventures;

e) relevant international treaties;

f) customs procedures and tax regimes;

g) statistical information on markets for goods and services;

h) available infrastructure and public services;

i) government procurement and public concessions;

j) social and labor legislation;

k) migration legislation;

l) foreign exchange legislation;

m) legislation relating to specific economic sectors previously identified by the Parties;

n) regional investment projects and agreements; and

o) Public-Private Partnerships (PPPs).

Article 21. Treatment of Protected Information

1. Each Party shall respect the level of protection of information established by the Party that provided the information, in accordance with its respective legislation on the matter.

2. Nothing in this Agreement shall be construed to require either Party to provide protected information the disclosure of which would compromise compliance with the law or otherwise be contrary to the public interest or violate privacy or legitimate business interests. For the purposes of this paragraph, protected information includes trade secret information or information considered privileged or protected from disclosure under the applicable laws of a Party.

Article 22. Interaction with the Private Sector

Recognizing the fundamental role played by the private sector, the Parties shall disseminate, among the relevant business sectors, information of a general nature on investments, regulatory frameworks and business opportunities in the territory of the other Party.

Article 23. Cooperation between Agencies Responsible for Investment Promotion

The Parties shall promote cooperation between their investment promotion agencies with a view to facilitating investments in the territory of the other Party.

Article 24. Dispute Prevention Procedures

1. If a Party considers that a specific measure adopted by the other Party constitutes a violation of this Agreement, it may invoke this Article to initiate a dispute settlement procedure within the Joint Committee.

2. The following rules shall apply to the above-mentioned procedure:

a) to initiate the procedure, the Party concerned shall submit a written request to the other Party, in which it shall identify the specific measure at issue and state the findings of fact and conclusions of law underlying the allegation. The Joint Committee shall meet within sixty (60) days from the date of the request;

b) The Joint Committee shall have sixty (60) days from the date of the first meeting, which may be extended by mutual agreement, to evaluate the allegation and prepare a report;

c) The report of the Joint Committee shall include:

i) the identification of the Party that alleged the violation;

ii) a description of the measure in question and the alleged violation of the Agreement; and

iii) the conclusions of the Joint Committee. In the event that the dispute is not resolved after the expiration of the time limits set forth in this Article or a Party does not participate in the meetings of the Joint Committee convened in accordance with this Article, the dispute may be submitted by a Party to arbitration in accordance with Article 25 of this Agreement.

3. If the measure in question concerns a specific investor, the following additional rules shall apply:

a) the initial claim shall identify the affected investor;

b) representatives of the affected investor may be invited to appear before the Joint Committee.

4. Where relevant to the consideration of the measure in question, the Joint Committee may invite other interested parties to appear before the Joint Committee and present their views on the measure.

5. The minutes of the meetings held under the Dispute Settlement Procedure and all related documentation shall be kept confidential, with the exception of the report submitted by the Joint Committee pursuant to paragraph 2, subject to each Party's legislation on the disclosure of information.

Article 25. Settlement of Disputes between the Parties

1. Once the procedure provided for in paragraph 2 of Article 24 has been exhausted and the dispute has not been resolved, either Party may submit it to an ad hoc Arbitral Tribunal in accordance with the provisions of this Article. Alternatively, the Parties may agree to submit the dispute to a permanent arbitral institution for the settlement of investment disputes. Unless the Parties decide otherwise, this institution shall apply the provisions of this Article.

2. The purpose of the arbitration is to determine the conformity with this Agreement of a measure claimed by a Party to be inconsistent with this Agreement.

3. Article 13 (Security Exceptions), Article 14 (Internal Law), Article 15 (Corporate Social Responsibility), paragraph 1 of Article 16 (Measures on Investments and the Fight against Corruption and Illegality) and paragraph 2 of Article 17 (Provisions on Investments and the Environment, Labor Affairs and Health) shall not be subject to arbitration.

4. This Article shall not apply to any dispute concerning any facts occurred or any measures adopted before the entry into force of this Agreement.

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

6. The Arbitral Tribunal shall be composed of three arbitrators. Each Party shall appoint, within three (3) months of receiving the "notice of arbitration", one member of the Arbitral Tribunal. The two members shall, within a period of three (3) months from the appointment of the second arbitrator, appoint a national of a third State with which both Parties maintain diplomatic relations, who, after approval by both Parties, shall be appointed Chairman of the Arbitral Tribunal. The appointment of the President must be approved by the Parties within one (1) month from the date of his appointment.

7. If, within the time limits specified in paragraph 6 of this Article, the necessary appointments have not been made, either Party may request the President of the International Court of Justice to make the necessary appointments. If the President of the International Court of Justice is a national of one of the Parties or is prevented from exercising that function, the most senior member of the International Court of Justice who is not a national of either Party shall be invited to make the necessary appointments.

8. The Arbitrators shall:

a) have the necessary experience or expertise in public international law, international rules on investment or international trade, or in the settlement of disputes relating to international investment agreements;

b) be independent and not linked, directly or indirectly, to any of the Parties or the other arbitrators or potential witnesses, nor receive instructions from the Parties; and

c) comply with the World Trade Organization's "Rules of Conduct for Understanding Dispute Rules and Procedures" (WTO/DSB/RC/1, dated 11/12/1996), as applicable to the dispute or any other standard of conduct established by the Joint Committee.

9. The "Notice of Arbitration" and other documents related to the settlement of the dispute shall be submitted to the places to be designated by each Party.

10. The Arbitral Tribunal shall determine its own procedures, in consultation with the Parties and in accordance with this Article and, in the alternative, to the extent not in conflict with this Agreement, with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) in force on the date of entry into force of this Agreement. The Arbitral Tribunal shall make its decision by majority vote and shall decide on the basis of the provisions of this Agreement and the principles and rules of international law recognized by both Parties. Unless otherwise agreed, the decision of the Arbitral Tribunal shall be rendered within nine (9) months, extendable by ninety (90) days after the appointment of the Chairman, in accordance with paragraphs 6 and 7 of this Article.

11. The decision of the Arbitral Tribunal shall be final and binding on the Parties, who shall comply with it without delay.

12. The Joint Committee shall adopt the general rule for fixing the remuneration of arbitrators, taking into account the practices of relevant international organizations. The Parties shall bear the expenses of the arbitrators and other costs of the procedure, unless otherwise decided.

13. Without prejudice to paragraph 2 of this Article, the Parties may request, by means of a specific arbitration agreement, that the arbitrators examine the existence of damage caused by the measure in question in accordance with this Agreement and that they establish, by means of an award, compensation for such damage. In this case, in addition to the provisions of the preceding paragraphs of this Article, the following provisions shall be observed:

a) the arbitral commitment to examine damages shall be equivalent to the "Notice of Arbitration" within the meaning of paragraph 9 of this Article.

b) this paragraph shall not apply to a dispute relating to a specific investor which has been previously resolved and in which there is res judicata protection. If an investor has submitted to local courts or to an arbitration tribunal of the Host State a claim on the measure questioned in the Joint Committee, the arbitration examining damages may only be initiated after the investor has waived its claim before local courts or arbitration tribunal of the Host State. If, after the arbitration has been established, it comes to the attention of the arbitrators or the Parties that there are claims before local courts or arbitral tribunals concerning the disputed measure, the arbitration shall be suspended.

c) if the arbitral award establishes monetary compensation, the Party wishing to receive such compensation shall transfer it to the holders of the investment rights in question, after deducting the costs of the dispute, in accordance with the internal procedures of each Party. The Party whose claims are upheld may request the Arbitral Tribunal to order the transfer of compensation directly to the holders of the investment rights affected and the payment of costs to those who have borne them.

Part IV. Agenda for Investment Cooperation and Facilitation

Article 26. Agenda for Investment Cooperation and Facilitation

1. The Joint Committee shall develop and discuss an Agenda for Investment Cooperation and Facilitation on issues relevant to the promotion and improvement of the bilateral investment environment.

2. The issues to be initially dealt with by the Parties shall be agreed at the first meeting of the Joint Committee.

3. As a result of the discussions within the Joint Committee on Investment Cooperation and Facilitation, the Parties may adopt additional specific commitments.

Part V. Final Provisions

Article 27. Amendments

1. This Agreement may be amended at any time at the request of either Party. The Party requesting the adoption of an amendment shall submit its request in writing, in which it shall explain the reasons for the amendment. The other Party shall hold consultations with the Requesting Party regarding the proposed amendment and shall also respond in writing to the request.

2. Any agreement to amend this Agreement must be expressed in writing, either in a single instrument or through an exchange of diplomatic notes. Such amendments shall be binding on tribunals established under Article 25 of this Agreement, and the award of the tribunal shall be consistent with all amendments to this Agreement.

3. The amendments shall enter into force in accordance with the procedure laid down in the third paragraph of Article 28.

Article 28. Final Provisions

1. Neither the Joint Committee nor the Focal Points or Ombudspersons may replace or prejudice in any way any other agreement or diplomatic channel existing between the Parties.

2. Without prejudice to its regular meetings, after ten (10) years from the entry into force of this Agreement, the Joint Committee will conduct a general review of its implementation and make recommendations for possible amendments, if necessary.

3. This Agreement shall enter into force ninety (90) days after the date of receipt of the second diplomatic note indicating that all necessary internal procedures relating to the conclusion and entry into force of international agreements have been completed by both Parties.This Agreement shall remain in force for a period of ten (10) years and may be tacitly extended for an equal period.

4. Either Party may terminate this Agreement at any time, provided that it does so by giving written notice through diplomatic channels to the other Party. Termination shall take effect on a date to be agreed by the Parties or, if the Parties are unable to reach agreement, three hundred and sixty-five (365) days after the date on which the notice of termination is delivered.