Title

AGREEMENT BETWEEN THE GOVERNMENT OF HUNGARY AND THE GOVERNMENT OF THE KYRGYZ REPUBLIC FOR THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS

Preamble

The Government of Hungary and the Government of the Kyrgyz Republic (hereinafter referred to as the "Contracting Parties"),

Desiring to intensify economic cooperation to the mutual benefit of both Contracting Parties,

Intending to create and maintain favourable conditions for investments of investors of one Contracting Party in the territory of the other Contracting Party, and

Seeking to ensure that investment is consistent with the protection of health, safety and the environment, the promotion and protection of internationally and domestically recognised human rights, labour rights, and internationally recognised standards of corporate social responsibility;

Desiring to promote investment that contributes to the sustainable development of the Contracting Parties; Aiming to secure an overall balance of rights and obligations between investors and the host state;

Being conscious that the promotion and reciprocal protection of investments, according to the present Agreement, stimulates the business initiatives in this field,

Have agreed as follows:

Body

Article 1. Definitions

For the purposes of this Agreement:

1. The term "investment" shall comprise every kind of asset invested in connection with economic activities by an investor of one Contracting Party in the territory of the other Contracting Party in accordance with the national  laws and regulations of the latter and shall include, in particular, such as:

a) movable and immovable property as well as any other rights in rem such as mortgages, liens, pledges and similar rights;

b) shares, stocks and debentures of companies or any other form of participation in a company;

c) claims to money or to any performance having an economic value associated with an investment;

d) intellectual property rights, including in particular industrial property rights, copyrights, trade marks, patents, industrial designs, rights of breeders, rights in layout-designs of integrated circuits; know-how, protection of undisclosed information, trade secrets, geographical indications, trade names and goodwill associated with an investment;

e) any right conferred by law or under contract and any licenses and permits pursuant to law, including the concessions to search for, extract, cultivate or exploit natural resources.

Any alteration of the form in which assets are invested shall not affect their character as investment on condition that this alteration is made in accordance with the national laws and regulations of the Contracting Party in the territory of which the investment has been made.

2. The term "investor" shall mean any natural or legal person of one Contracting Party that has made an investment  in the territory of the other Contracting Party.

a) The term "natural person" shall mean any individual having the citizenship of either Contracting Party in accordance with its national laws.

b) The term "legal person" shall mean with respect to either Contracting Party, any legal entity incorporated or constituted in accordance with its national laws having its central administration or principal place of business in the territory of one Contracting Party.

3. The term "returns" shall mean amounts yielded by an investment and in particular, such as: profits, interest,  capital gains, dividends, royalties or fees.

4. The term "territory" shall mean:

a) in the case of Hungary, the territory over which Hungary exercises, in conformity with international law, sovereignty, sovereign rights or jurisdiction;

b) in the case of the Kyrgyz Republic, the territory of the Kyrgyz Republic including the lands, internal waters and subsoil, the air space above it, which are subject to the sovereignty and jurisdiction in accordance with the terms of international law and national legislation of the Kyrgyz Republic;

5. The term "freely convertible currency" means the currency that is widely used to make payments for international transactions and widely exchanged in principal international exchange markets provided it is not contrary to the regulations of either of the Contracting Parties, and independently from how the International Monetary Fund determines the scope of freely convertible, or freely usable currency.

6. ICSID means the International Centre for Settlement of Investment Disputes established by the ICSID Convention;

7. 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;

8. ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;

9. UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law; and

10. UNCITRAL Transparency Rules means the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration;

Article 2. Promotion and Protection of Investments.

1. Each Contracting Party shall encourage and create favourable conditions for investors of the other Contracting Party to make investments in its territory and, shall admit such investments in accordance with its national laws and regulations.

2. Each Contracting Party shall accord in its territory to investments of the other Contracting Party and to investors with respect to their investments fair and equitable treatment and full protection and security in accordance with paragraphs 3 through 6 of this Article.

3. With respect to the investments the following measures or series of measures constitute breach of the obligation of fair and equitable treatment:

a) denial of justice in criminal, civil or administrative proceedings; or

b) fundamental breach of due process, including a fundamental breach of transparency and obstacles to effective access to justice, in judicial and administrative proceedings; or

c) manifest arbitrariness; or

d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; or

e) harassment, coercion, abuse of power or similar bad faith conduct;

Upon request of a Contracting Party, the Contracting Parties may review the content of the obligation to provide fair and equitable treatment.

4. For greater certainty, "full protection and security" refers to the Contracting Party's obligations relating to physical security of investors and investments which means ensuring foreign investors and their investments the same level of physical security as provided to domestic investors and their investments and not to any other obligation whatsoever.

5. A breach of another provision of this Agreement or of a separate international agreement does not establish a breach of this Article.

6. The fact that a measure breaches national law does not, in and of itself, establish a breach of this Article; a Tribunal must consider whether a Contracting Party has acted inconsistently with the obligations in paragraph 2.

7. The Contracting Party shall not encourage investment by lowering domestic environmental, labour or occupational health and safety legislation or by relaxing core labour standards. Where a Contracting Party considers that the other Contracting Party has offered such an encouragement, it may request consultations with the other Contracting Party and the two Contracting Parties shall consult with a view to avoiding any such encouragement.

Article 3. Investment and Regulatory Measures

1. The provisions of this Agreement shall not affect the right of the Contracting Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives, such as the protection of public health and child care, safety, environment or public morals, public education and public training, social or consumer protection or promotion and protection of cultural diversity.

2. The mere fact that a Contracting Party regulates, including through a modification to its national laws, in a manner which negatively affects an investment or interferes with an investor's expectations of profits, does not amount to a breach of an obligation under this Agreement.

3. For greater certainty a Contracting Party's decision not to issue, renew or maintain a subsidy

a) in the absence of any specific commitment under law or contract to issue, renew or maintain that subsidy; or

b) in accordance with terms or conditions attached to the issuance, renewal or maintenance of the subsidy,

does not constitute a breach of the provisions of this Agreement.

Nothing in this Agreement shall be construed as preventing a Contracting Party from discontinuing the granting of a subsidy or requesting its reimbursement where such measure is necessary in order to comply with international obligations between the Contracting Parties or has been ordered by a competent court, administrative tribunal or other competent authority, or requiring that Contracting Party to compensate the investor therefor.

Article 4. National and Most-Favoured-Nation Treatment

1. Each Contracting Party shall in its territory accord to an investor of the other Contracting Party and to an investment, treatment not less favourable than the treatment it accords, in like situations to its own investors and their investments with respect to the conduct, operation, management, maintenance, use, enjoyment and sale or disposal of their investments in its territory.

2. Each Contracting Party shall in its territory accord to investors of the other Contracting Party and their investments treatment no less favourable than that it accords, in like situations, to investors of a third country or to their investments with respect to the operation, conduct, management, maintenance, use, enjoyment and sale or disposal of their investments in its territory.

3. For greater certainty, the "treatment" referred to in paragraph 2 of this Article does not include procedures for the resolution of investment disputes between investors and states provided for in other international investment treaties and any other agreements. Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute "treatment", and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Contracting Party pursuant to those obligations.

4. The National Treatment and Most-Favoured-Nation Treatment provisions of this Agreement shall not apply to advantages accorded by a Contracting Party pursuant to its obligations as a member of a customs, economic, or monetary union, a common market or a free trade area.

5. The Contracting Parties understand the obligations of a Contracting Party as a member of a customs, economic, or monetary union, a common market or a free trade area to include obligations arising out of an international agreement or reciprocity arrangement of that customs, economic, or monetary union, common market or free trade area,

6. The provisions of this Article shall not be construed so as to oblige one Contracting Party to extend to the investors of the other Contracting Party, or to the investments or returns of investments of such investors the benefit of any treatment, preference or privilege, which may be extended by the former Contracting Party by virtue of:

a) any forms of multilateral agreements on investments to which either of the Contracting Parties is or may become a party;

b) any international agreement or arrangement relating wholly or mainly to taxation.

Article 5. Compensation for Losses.

1. When investments or returns of investments of investors of either Contracting Party suffer losses owing to war, armed conflict, a state of national emergency, revolt, insurrection, riot or other similar events in the territory of the other Contracting Party, they shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, not less favourable than that which the latter Contracting Party accords to its own investors or to investors of any third State whichever is more favourable.

2. Without prejudice to paragraph 1 of this Article, investors of one Contracting Party who in any of the events referred  to in that paragraph suffer losses in the territory of the other Contracting Party resulting from:

a) requisitioning of their investment or a part thereof by its forces or authorities;

b) destruction of their investment or a part thereof by its forces or authorities which was not caused in combat action or was not required by the necessity of the situation

shall be accorded by the Contracting Party, in whose territory the losses occurred, just, adequate and effective restitution or compensation.

Compensation shall include interest at a commercially reasonable rate from the date of losses occurred until the day of payment.

Article 6. Expropriation.

1. Investments or returns of investors of either Contracting Party shall not be subject to nationalisation, direct or indirect expropriation, or any measures having equivalent effect (hereinafter referred to as "expropriation") in the territory of the other Contracting Party except for a public purpose. The expropriation shall be carried out under due process of law, on a non-discriminatory basis and shall be accompanied by provisions for the payment of prompt, adequate and effective compensation. Such compensation shall amount to the market value of the investment expropriated immediately before expropriation or impending expropriation became public knowledge (whichever is earlier), shall include interest at a commercially reasonable rate from the date of expropriation to the date of actual payment and shall be made without delay, be effectively realizable and be freely transferable ina freely convertible currency.

2. For the purpose of this Agreement:

a) indirect expropriation results from a measure or series of measures of a Contracting Party having an equivalent effect to direct expropriation without formal transfer of title or outright seizure;

b) the determination of whether a measure or series of measures by a Contracting Party, in a given specific situation, constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors:

(i) the economic impact of the measure or series of measures, although the sole fact that a measure or series of a measure of a Contracting Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred,

(ii) the duration of the measure or series of measures by a Contracting Party,

(iii) the character of the measure or series of measures, notably their object and content.

c) non-discriminatory measures that the Contracting Parties take for reason of public purpose including for reasons of public health, safety, and environmental protection, which are taken in good faith, which are not arbitrary, and which are not disproportionate in light of their purpose, shall not constitute indirect expropriation.

Article 7. Transfers

1. The Contracting Parties shall permit the free transfer of payments related to investments and returns. The transfers shall be made in a freely convertible currency and in accordance with the national laws and regulations of the Contracting Party where investments were made without any restriction and undue delay. Such transfers shall include in particular, such as:

a) capital and additional amounts to maintain or increase the investment;

b) returns as defined in paragraph 3 of Article 1 of this Agreement;

c) the amounts required for payment of expenses which arise from the operation of the investment, such as payment of royalties and license fees or other similar expenses;

d) payments in connection with contracts, including loan agreements;

e) proceeds of the total or partial sale or liquidation of the investment;

f) the wages or other similar earnings of natural persons engaged from abroad, in connection with an investment, subject to the national laws and regulations of the Contracting Party, in which the investment has been made;

g) compensations owed pursuant to Articles 5. and 6. of this Agreement;

h) payments arising out of settlement of a dispute under Article 9. of this Agreement.

2. The transfers shall be made after the investor fulfilled all of its related financial obligations according to the national laws in force of the Contracting Party in the territory of which the investment was made.

3. Nothing in this Article shall be construed to prevent a Contracting Party from applying in an equitable and non-discriminatory manner and not in a way that would constitute a distinguished restriction on transfers, its national laws relating to:

a) bankruptcy, insolvency or protection of the rights of creditors;

b) issuing, trading or dealing in securities;

c) criminal or penal offences;

d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; and

e) the satisfaction of judgements in adjudicatory proceedings.

4. For the purpose of this Agreement, exchange rates shall be the rate published in accordance with the national laws and regulations of the Contracting Party, which has admitted the investment by the financial institution effecting the transfer unless otherwise agreed. Should such rate not exist the official rate has to be applied unless otherwise agreed.

Article 8. Subrogation

1. If a Contracting Party or its designated agency makes a payment to its own investors under a guarantee or insurance it has accorded in respect of an investment in the territory of the other Contracting Party, the latter Contracting Party shall recognize:

a) the assignment, whether under the law or pursuant to a legal transaction in that country, of any right or claim by the investor to the former Contracting Party or its designated agency, as well as,

b) that the former Contracting Party or its designated agency is entitled by virtue of subrogation to exercise the rights and enforce the claims of that investor and shall assume the obligations related to the investment.

2. The subrogated rights or claims shall not exceed the original rights or claims of the investor.

Article 9. Settlement of Investment Disputes between a Contracting Party and an Investor of the other Contracting Party

1. Any investment dispute which may arise between an investor of one Contracting Party and the other Contracting Party in connection with an investment in the territory of that other Contracting Party shall, if possible be settled amicably and be subject to negotiations between the parties in dispute.

2. The negotiations start on the date when the disputing investor of one Contracting Party requests negotiations in written notification from the other Contracting Party. In order to facilitate the amicable settlement of the dispute the written notice shall specify the issues, the factual basis of the dispute, the findings of the disputing investor (including any supporting documents) and their presumed legal basis. Unless otherwise agreed, at least one consultation shall be held within 90 days from the date on which the disputing investor of one Contracting Party has requested negotiations from the other Contracting Party in written notification.

3. If any dispute between an investor of one Contracting Party and the other Contracting Party can not be thus  settled within a period of twelve months following the date on which such negotiations were requested in written  notification, the investor shall be entitled to submit the dispute either to:

a) the competent court of the Contracting Party in the territory of which the investment has been made; or

b) the International Centre for Settlement of Investment Disputes (ICSID) pursuant to the applicable provisions of the ICSID Convention, in the event both Contracting Parties have become a party to this Convention; or

c) an ad hoc arbitral tribunal established under the UNCITRAL Arbitration Rules. The parties to the dispute may agree in writing to deviate from these arbitration Rules; or

d) under the Additional Facility Rules of ICSID, provided that either the disputing Contracting Party or the Contracting Party of the investor, but not both, is a party to the ICSID Convention; or

e) any other form of dispute settlement agreed upon by the parties to the dispute.

4. Once a dispute has been submitted to one of the tribunals mentioned in paragraph 3 a)-e) the investor shall have no recourse to the other dispute settlement fora listed in paragraph 3 a) - e) of this Article.

5. If any dispute between an investor of one Contracting Party and the other Contracting Party can not be thus  settled within a period of twelve months following the date on which such negotiations were requested in written notification as mentioned in paragraph 2 of this Article, and the disputing investor intends to submit the dispute to one of the fora listed under paragraphs 3 a)-e) of this Article the disputing investor shall at the very latest simultaneously to submitting any dispute to one of the tribunals, notify the other Contracting Party in a written notice of its intention.

6. An investor may submit a dispute as referred to in paragraph 1 and 2 of this Article to arbitration in accordance with paragraph 3 only if not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage.

7. When rendering its decision, the tribunal shall apply this Agreement as interpreted in accordance with the Vienna Convention on the Law of Treaties, and other rules and principles of international law applicable between the Parties. For greater certainty the national law of the Parties shall not constitute part of the applicable law. In case of Hungary the term "national law" comprises the law of the European Union.

8. The tribunal referred to in paragraph 3 b)-e) of this Article shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the national law of a Contracting Party. For greater certainty, in determining the consistency of a measure with this Agreement, the tribunal may consider, as appropriate, the national law of a Contracting Party as a matter of fact. In doing so, the tribunal shall follow the prevailing interpretation given to the national law by the courts or authorities of that Contracting Party and any meaning given to national law by the tribunal shall not be binding upon the courts or the authorities of that Contracting Party.

9. Arbitrators appointed as the members of the tribunal shall be independent. They shall not:

- affiliate with any government,

- take any instructions from any organisations or government with regard to matters related to the dispute,

- participate in the consideration of any disputes that would create a direct conflict of interest. Arbitrators shall comply with the International Bar Association Guidelines on Conflicts of Interest in International Arbitration. In addition, upon appointment, they shall refrain from acting as party appointed expert or witness in any pending or new investment dispute under this or any other international agreement. The Parties shall adopt a specific code of conduct for the arbitrators to be applied in disputes arising out of this Article in which the decisions on compliance with the code are taken by an outside party from the tribunal.

10. The award shall be final and binding on the parties to the dispute and shall be executed in accordance with the law of the Contracting Party in the territory of which the investment has been made and the award is relied upon, by the date indicated in the award.

11. The Parties shall pursue with each other and other trading partners the establishment of a multilateral investment tribunal and appellate mechanism for the resolution of investment disputes. Upon entry into force between the Contracting Parties of an international agreement providing for a multilateral investment tribunal and/or a multilateral appellate mechanism applicable to disputes under this Agreement, the relevant parts of this Agreement shall cease to apply.

Article 10. Settlement of Disputes between the Contracting Parties.

1. Disputes between the Contracting Parties concerning the interpretation or application of this Agreement shall, if possible, be settled through consultation or negotiation.

2. If the dispute cannot be thus settled within nine months, it shall upon the request of either Contracting Party, be submitted to an Arbitral Tribunal of three members, in accordance with the provisions of this Article.

3. The Arbitral Tribunal shall be constituted for each individual case in the following way. Within two months from the date of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the Tribunal. These two members shall then select a national of a third State who shall be appointed as the Chairman of the Tribunal (hereinafter referred to as the "Chairman"). The Chairman shall be appointed within three months from the date of appointment of the other two members.

4. If within the periods specified in paragraph 3 of this Article the necessary appointments have not been made, a request may be made to the President of the International Court of Justice to make the appointments. If the President happens to be a national of either Contracting Party, or if the President is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the appointments. If the Vice-President also happens to be a national of either Contracting Party or is prevented from discharging the said function, the member of the International Court of Justice next in seniority who is not a national of either Contracting Party shall be invited to make the appointments.

5. The Arbitral Tribunal shall reach its decision by a majority of votes.

6. The Tribunal shall issue its decision on the basis of respect for the law, the provisions of this Agreement, as well as of the universally accepted principles of international law.

7. Subject to other provisions made by the Contracting Parties, the Tribunal shall determine its procedure.

8. Each Contracting Party shall bear the cost of its own arbitrator and its representation in the arbitral proceedings; the cost of the Chair and the remaining costs shall be borne in equal parts by both Contracting Parties. The Arbitral Tribunal may make a different regulation concerning the costs.

9. The decisions of the Tribunal are final and binding for each Contracting Parties.

Article 11. Transparency

The "UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration" shall apply to disputes under this Agreement. With respect to regulations of general application adopted at central government level respecting any matter covered by this Agreement the Parties shall publish the regulation in their official gazette without delay, well before the entry into force of the regulations. On request of a Contracting Party to this Agreement consultation might be held on issues of transparency practices.

Article 12. Application of other Rules and Special Commitments

Nothing in this Agreement shall be taken to limit the rights of investors of the Contracting Parties from benefiting from any more favourable treatment that may be provided for in any existing or future bilateral or multilateral agreement to which they are parties.

Article 13. Applicability of this Agreement

This Agreement shall apply to investments made in the territory of one of the Contracting Parties in accordance with its national laws and regulations by investors of the other Contracting Party prior to as well as after the entry into force of this Agreement, but shall not apply to any dispute or claim concerning an investment which arose, or which was Settled before the entry into force of this Agreement.

Article 14. Consultations

Upon request by either Contracting Party, the other Contracting Party shall agree to consultations on the interpretation or application of this Agreement. Upon request by either Contracting Party, information shall be exchanged on the impact that the national laws, regulations, decisions, administrative practices or procedures, or policies of the other Contracting Party may have on investments covered by this Agreement.

Article 15. General Exceptions.

1. Nothing in this Agreement shall prevent a Contracting Party from adopting or maintaining measures for prudential reasons, including for:

a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; and

b) ensuring the integrity and stability of a Contracting Party's financial system.

Where such measures do not conform with the provisions of this Agreement, they shall not be used as means of avoiding the Contracting Party's commitments or obligations under the Agreement. Nothing in this Agreement

shall be construed as requiring a Contracting Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.

2. a) Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining measures that restrict transfers where the Contracting Party experiences serious balance of payments difficulties, or the threat thereof, and such restrictions are consistent with paragraph b).

b) Measures referred to in paragraph a. shall be equitable, neither arbitrary nor unjustifiably discriminatory, in good faith, of limited duration and may not go beyond what is necessary to remedy the balance of payments situation. A Contracting Party that imposes measures under this Article shall inform the other Contracting Party forthwith and present as soon as possible a time schedule for their removal. Such measures shall be taken in accordance with other international obligations of the Contracting Party concerned, including those under the WTO Agreement and the Articles of Agreement of the International Monetary Fund.

3. Nothing in this Agreement shall be construed: