Title
Agreement Between the Government of Canada and the Government of the Republic of Benin for the Promotion and Reciprocal Protection of Investments
Preamble
The Government of Canada and the Government of the People's Republic of Benin, referred to in this Agreement as the "Contracting Parties",
Considering the friendship and cooperation between the two countries and the two peoples;
Recognizing that the promotion and the protection of investments of investors of one Contracting Party in the territory of the other Contracting Party are conducive to the stimulation of mutually beneficial economic activity, the development of economic cooperation between both countries and the promotion of sustainable development;
Determined to create conditions to favour the establishment of a growing number of investments and companies of the Contracting Parties in their respective territories,
Have Agreed as follows:
Body
Chapter I. General Provisions
Article 1. Definitions
For the purpose of this Agreement, the following terms and expressions shall have the meanings herein assigned to them:
"competition authority" means:
(a) for Canada, the Commissioner of Competition or a successor to be notified to Benin by diplomatic note; and
(b) for Benin, the Director of Competition and Struggle Against Fraud or his Deputy, or a successor to be notified to Canada by diplomatic note;
"confidential information" means confidential business information or information that is privileged or otherwise protected from disclosure under the law of a Contracting Party;
"counterclaim" means an act by which, within the competence of a Tribunal constituted under Article 26 (Submission of a Claim to Arbitration) or Article 30 (Consolidation), a respondent Contracting Party submits its own claim, during the proceedings;
"covered investment" means, with respect to a Contracting Party, an investment in its territory of an investor of the other Contracting Party existing on the date of coming into force of this Agreement, as well as an investment made or acquired subsequently;
"disputing party" means the investor that has made a claim under Chapter III or the respondent Contracting Party;
"enterprise" means an entity constituted or organized under applicable law, whether or not for profit, whether privately owned or governmentally owned, including a corporation, trust, partnership, sole proprietorship, joint venture or other association and a branch of any such entity;
"existing" means in effect on the date of entry into force of this Agreement;
"financial institution" means a financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Contracting Party in whose territory it is located;
"financial service" means a service of a financial nature, including insurance, and a service accessory or auxiliary to a service of a financial nature;
"ICSID" means the International Centre for Settlement of Investment Disputes established by the ICSID Convention;
"ICSID Convention" means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on 18 March 1965;
"information protected under its competition laws" means:
(a) for Canada, information within the scope of section 29 of the Competition Act, R.S.C. 1985, c. C-34, or a successor provision; and
(b) for Benin, information prescribed by Order No. 20/PR/MFAEP of 05 July 1967 that regulates stock prices, information prescribed by the Act No. 90-005 of 15 May 1990 fixing the conditions for commercial activities in the Republic of Benin, or a successor provision;
"intellectual property rights" means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders' rights;
"investment" means:
(a) an enterprise;
(b) a share, stock or other form of equity participation in an enterprise;
(c) a bond, debenture or other debt instrument of an enterprise;
(d) a loan to an enterprise;
(e) notwithstanding subparagraphs (c) and (d) above, a loan to or debt security issued by a financial institution is an investment only where the loan or debt security is treated as regulatory capital by the Contracting Party in whose territory the financial institution is located;
(f) an interest in an enterprise that entitles the owner to share in income or profits of the enterprise;
(g) an interest in an enterprise that entitles the owner to share in the assets of that enterprise on dissolution;
(h) an interest arising from the commitment of capital or other resources in the territory of a Contracting Party to economic activity in that territory, such as under:
(i) a contract involving the presence of an investor's property in the territory of the Contracting Party, including a turnkey or construction contract, or a concession, or
(ii) a contract where remuneration depends substantially on the production, revenues or profits of an enterprise;
(i) intellectual property rights; and
(j) any other tangible or intangible, moveable or immovable, property and related property rights acquired in the expectation of or used for the purpose of economic benefit or other business purpose;
but "investment" does not mean:
(k) a claim to money that arises solely from:
(i) a commercial contract for the sale of a good or service by a national or enterprise in the territory of a Contracting Party to an enterprise in the territory of the other Contracting Party, or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing; or
(l) any other claim to money,
that does not involve the kinds of interests set out in subparagraphs (a) to (j);
"investment of an investor of a Contracting Party" means an investment owned or controlled directly or indirectly by an investor of that Contracting Party;
"investor of a Contracting Party" means a national or an enterprise of a Contracting Party, that seeks to make, is making or has made an investment;
"measure" includes a law, regulation, procedure, requirement or practice;
"national" means:
(a) for Canada, a natural person who is a citizen or permanent resident of Canada;
and (b) for Benin, a natural person who is a citizen or permanent resident of Benin;
except that:
(c) a natural person who is a dual citizen of Canada and Benin shall be deemed to be exclusively a national of the Contracting Party of their dominant and effective nationality; and
(d) a natural person who is a citizen of one Contracting Party and a permanent resident of the other Contracting Party shall be deemed to be exclusively a national of the Contracting Party of their citizenship;
"national government" means for Canada, the federal government; and for Benin, the Government of the Republic of Benin;
"New York Convention" means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
"person" means a natural person or an enterprise;
"person engaged in a cultural industry" means a person engaged in the following activities:
(a) the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine-readable form, except when printing or typesetting any of the foregoing is the only activity;
(b) the production, distribution, sale or exhibition of film or video recordings;
(c) the production, distribution, sale or exhibition of audio or video music recordings;
(d) the publication, distribution or sale of music in print or machine-readable form; or
(e) radiocommunications in which the transmissions are intended for direct reception by the general public, and all radio, television or cable broadcasting undertakings and all satellite programming and broadcast network services;
"respondent Contracting Party" means a Contracting Party against which a claim is made under Chapter III;
"right of setoff" means a procedural act by which, within the competence of a Tribunal constituted under Article 26 (Submission of a Claim to Arbitration) or Article 30 (Consolidation), a disputing party presents an application for compensation;
"special arbitral group" means a group of arbitrators constituted at the request of either of the Contracting Parties to render decisions on disputes with respect to the application or interpretation of this Agreement;
"sub-national government" means with respect to Canada, a provincial, territorial or local government;
"taxation authorities" means:
(a) for Canada, the Assistant Deputy Minister responsible for tax policy, Department of Finance, or a successor; and
(b) for Benin, the Director General of Taxes and Domains, and the Director General of Customs and Indirect Taxation, Ministry for Economy and Finance, or a successor;
"taxation measure" means any measure relating to direct taxes and indirect taxes;
"territory" means:
(a) the land territory, internal waters and territorial sea, including the air space above these areas, of the Contracting Party;
(b) the exclusive economic zone of the Contracting Party, as determined by its domestic law, consistent with Part V of theUnited Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982 (UNCLOS); and
(c) the continental shelf of the Contracting Party, as determined by its domestic law, consistent with Part VI of UNCLOS;
"Tribunal" means an arbitration tribunal established under Article 26 (Submission of a Claim to Arbitration) or Article 30 (Consolidation) of this Agreement;
"TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights; "UNCITRAL Arbitration Rules" means the Arbitration Rules of the United Nations Commission on International Trade Law, in their most recent form; and
"WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Article 2. Purpose:
Consistent with this Agreement, each Contracting Party endeavours to promote economic cooperation by encouraging and protecting the investments of investors of the other Contracting Party in its territory.
Article 3. Scope:
1. This Agreement shall apply to measures adopted or maintained by a Contracting Party relating to:
(a) an investor of the other Contracting Party; and
(b) a covered investment.
2. The obligations in Chapter II of this Agreement apply to a person of a Contracting Party who exercises a regulatory, administrative or any other public prerogative power delegated to that person by that Contracting Party.
Chapter II. Obligations of the Contracting Parties
Article 4. Guiding Principles:
Each of the Contracting Parties shall ensure the promotion of investments of investors of the other Contracting Party as well as the protection of those investments and investors in its territory, consistent with the provisions of the guiding principles of this Chapter, including national treatment, most-favoured-nation treatment, minimum standard of treatment, compensation for losses, compensation for expropriation, transparency, subrogation and corporate social responsibility.
Article 5. National Treatment:
1. Each Contracting Party shall accord to an investor of the other Contracting Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
2. Each Contracting Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
3. The treatment accorded by a Contracting Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of the Contracting Party of which it forms a part.
Article 6. Most-favoured-nation Treatment:
1. Each Contracting Party shall accord to an investor of the other Contracting Party treatment no less favourable than that it accords, in like circumstances, to investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
2. Each Contracting Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
3. For greater certainty, the treatment accorded by a Contracting Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of a non-Party.
Article 7. Minimum Standard of Treatment:
1. Each Contracting Party shall accord to a covered investment treatment in accordance with the customary international law minimum standard of treatment of aliens, including fair and equitable treatment and full protection and security.
2. The concepts of "fair and equitable treatment" and "full protection and security" in paragraph 1 do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.
3. A breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
Article 8. Compensation for Losses:
Notwithstanding subparagraph (2)(b) of Article 19 (Specific Exceptions), each Contracting Party shall accord to an investor of the other Contracting Party, and to a covered investment, non-discriminatory treatment with respect to measures it adopts or maintains relating to compensation for losses incurred by investments in its territory as a result of armed conflict, civil strife or a natural disaster.
Article 9. Senior Management, Boards of Directors and Entry of Personnel:
1. A Contracting Party may not require an enterprise of that Party that is a covered investment to appoint to a senior management position an individual of any particular nationality.
2. A Contracting Party may require that a majority of the board of directors, ora committee thereof, of an enterprise of that Contracting Party that is a covered investment, be of a particular nationality or a resident in the territory of the Contracting Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
3. Subject to its domestic law relating to the entry of aliens, each Contracting Party shall grant temporary entry to nationals employed by an investor of the other Contracting Party who seek to render managerial or executive services, or services that require specialized knowledge, to an investment of that investor in the territory of the Contracting Party.
Article 10. Performance Requirements:
1. A Contracting Party may not impose or enforce the following requirements, or enforce a commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Contracting Party or of a non-Party in its territory:
(a) to export a given level or percentage of a good or service;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use or accord a preference to a good produced or service provided in its territory, or to purchase a good or service from a person in its territory;
(d) to relate 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) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings;
(f) to transfer technology, a production process or other proprietary knowledge to a person in its territory; or
(g) to supply exclusively from its territory a good that the investment produces or a service it provides to a specific regional market or to the world market.
2. A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements is not inconsistent with subparagraph 1(f).
3. A Contracting Party may not condition the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Contracting Party or of a non-Party, on compliance with the following requirements:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use or accord a preference to a good produced in its territory, or to purchase a good from a producer in its territory;
(c) to relate 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; or
(d) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings.
4. (a) Paragraph 3 does not prevent a Contracting Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Contracting Party or of a non Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
(b) Subparagraph 1(f) does not apply if the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of domestic competition law.
5. Paragraphs 1 and 3 do not apply to a requirement other than the requirements set out in those paragraphs.
6. The provisions of:
(a) subparagraphs 1(a), (b) and (c), and 3(a) and (b), do not apply to a qualification requirement for a good or service with respect to export promotion and foreign aid programs;
(b) subparagraphs 1(b), (c), (f) and (g), and 3(a) and (b), do not apply to procurement by a Contracting Party or a State enterprise; and
(c) subparagraphs 3(a) and (b) do not apply to a requirement imposed by an importing Contracting Party relating to the content of a good necessary to qualify for a preferential tariff or preferential quota.
Article 11. Expropriation:
1. A Contracting Party may not nationalize or expropriate a covered investment either directly or indirectly through measures having an effect equivalent to nationalization or expropriation ("expropriation"), except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on payment of compensation in accordance with paragraphs 2 and 3. For greater certainty, this paragraph shall be interpreted in accordance with Annex I.
2. The compensation referred to in paragraph 1 must be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation"), and must not reflect a change in value occurring because the intended expropriation had become known earlier. Valuation criteria must include going concern value, asset value including the declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.
3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be paid in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency accrued from the date of expropriation until the date of payment.
4. The affected investor shall have a right under the law of the expropriating Contracting Party to prompt review of its case and of the valuation of its investment by a judicial or other independent authority of that Contracting Party in accordance with the principles set out in this Article.
5. This Article does not apply to the issuance of a compulsory licence granted in relation to intellectual property rights, or to the revocation, limitation or creation of an intellectual property right, to the extent that the issuance, revocation, limitation or creation is consistent with the WTO Agreement.
Article 12. Transfers:
1. Each Contracting Party shall permit all transfers relating to a covered investment to be made freely, and without delay, into and out of its territory. Those transfers include:
(a) contributions to capital;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other fees, returns in kind and other amounts derived from the covered investment;
(c) proceeds from the sale of all or part of the covered investment or from the partial or complete liquidation of the covered investment;
(d) payments made under a contract entered into by the investor or the covered investment, including payments made pursuant to a loan agreement;
(e) payments made under Articles 8 (Compensation for Losses) and 11 (Expropriation); and
(f) payments arising under Chapter III.
2. Each Contracting Party shall permit transfers relating to a covered investment to be made in the convertible currency in which the capital was originally invested, or in another convertible currency agreed to by the investor and the Contracting Party concerned. Unless otherwise agreed by the investor, transfers shall be made at the market rate of exchange in effect on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Contracting Party may prevent a transfer through the equitable, non discriminatory and good faith application of its domestic law relating to:
(a) bankruptcy, insolvency or the protection of the rights of a creditor;
(b) issuing, trading or dealing in securities;
(c) a criminal or penal offence;