“IMF” means the International Monetary Fund;
“IMF Articles of Agreement” means the Articles of Agreement of the International Monetary Fund adopted at Bretton Woods on 22 July 1944;
“investment” means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise;
(c) bonds, debentures, loans, and other debt instruments, including debt instruments issued by a Party or an enterprise?!;
(d) futures, options and other derivatives;
(e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;
(f) intellectual property rights;
21 Some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the characteristics of an investment, while other forms of debt, such as claims to payment that are immediately due and result from the sale of goods or services, are less likely to have such characteristics.
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(g) licenses, authorizations, permits, and similar rights conferred pursuant to domestic lawâ â?; and
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.
âinvestment agreementâ means a written agreementâ* between a national authorityâ of a Party and a covered investment in the form of an enterprise or an investor of the other Party, on which the covered investment or the investor relies in establishing or acquiring a covered investment other than the written agreement itself, that grants rights to the covered investment or investor:
(a) with respect to natural resources that a national authority controls, such as for their exploration, extraction, refining, transportation, distribution, or sale;
(b) to supply services to the public on behalf of the Party, such as power generation or distribution, water treatment or distribution, or telecommunications; or
22 Whether a particular type of license, authorization, permit, or similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristics of an investment also depends on such factors as the nature and extent of the rights that the holder has under the law of the Party. Among the licenses, authorizations, permits, and similar instruments that do not have the characteristics of an investment are those that do not create any rights protected under domestic law. For greater certainty, the foregoing is without prejudice to whether any asset associated with the license, authorization, permit, or similar instrument has the characteristics of an investment.
23 The term âinvestmentâ does not include an order or judgment entered in a judicial or administrative action.
24 âWritten agreementâ refers to an agreement in writing, executed by both parties, whether in a single instrument or in multiple instruments, that creates an exchange of rights and obligations, binding on both parties under the law applicable under paragraph 2 of Article 3.29 (Governing Law). For greater certainty, (a) a unilateral act of an administrative or judicial authority, such as a permit, license, or authorization issued by a Party solely in its regulatory capacity, or a decree, order, or judgment, standing alone; and (b) an administrative or judicial consent decree or order, shall not be considered a written agreement.
5 For purposes of this definition, ânational authorityâ means (a) for the Republic of Belarus, Republican governmental body, other government organization subordinate to the Government of the Republic of Belarus, the Administrative Department of the President of the Republic of Belarus, Regional (Minsk City) executive committees and others envisaged in national legislation; and (b) for the Peopleâs Republic of China, an agency of the central government,
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(c) to undertake infrastructure projects, such as the construction of roads, bridges, canals, dams, or pipelines, that are not for the exclusive or predominant use and benefit of the government;
(d) otherwise, to implement an investment project in the territory of the Party under the terms, specified by the legislation of that Party;
âinvestor of a non-Partyâ means, with respect to a Party, an investor that attempts to make, is making, or has made an investment in the territory of that Party, that is not an investor of either Party;
âinvestor of a Partyâ means a Party, a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party;
âmeasureâ includes any law, regulation, procedure, requirement, or practice;
ânationalâ means:
(a) for the People's Republic of China, a natural person who is a national of the People's Republic of China as defined in the Nationality Law of the People's Republic of China; and
(b) for the Republic of Belarus, a natural person who is a citizen of the Republic of Belarus, as defined in the Law of the Republic of Belarus of 1 August 2002 No. 136-Z âOn Citizenship of the Republic of Belarusâ;
âNew York Conventionâ means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June, 1958;
ânon-disputing Partyâ means the Party that is not a party to an investment dispute;
26 For greater certainty, national of both Parties does not include permanent resident. 69
âperson of a Partyâ means a national or an enterprise of a Party;
âprotected informationâ means confidential business information or information that is privileged or otherwise protected from disclosure under a Partyâs law;
ârespondentâ means the Party that is a party to an investment dispute;
âSecretary-Generalâ means the Secretary-General of ICSID;
âterritoryâââ means: with respect to the People's Republic of China, (a) the customs territory of the Peopleâs Republic of Chinaâ*;
(b) the territorial sea thereof and any area beyond the territorial sea within which the Peopleâs Republic of China may exercise sovereign rights or jurisdiction under its law;
with respect to the Republic of Belarus, the territory under the sovereignty of the Republic of Belarus, in respect of which the Republic of Belarus exercises, in accordance with national legislation and international law, sovereign rights or jurisdiction;
âTRIPS Agreementâ means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreementââ; and
âUNCITRAL Arbitration Rulesâ means the arbitration rules of the United Nations Commission on International Trade Law.
27 For greater certainty, the definition of âterritoryâ for each Party is for the purposes of this Chapter only and is without prejudice to the position of either Party regarding the recognition of any territorial or maritime claims.
28 For purposes of this Chapter, âcustoms territory of the Peopleâs Republic of Chinaâ means the Peopleâs Republic of Chinaâs entire customs territory to which the World Trade Organization Agreement applies, as defined in paragraph 2(A)(1) of Part I of the Protocol on the Accession of the Peopleâs Republic of China to the WTO Agreement.
29 For greater certainty, âTRIPS Agreementâ includes any waiver in force between the Parties of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement.
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Article 3.2. Scope and Coverage
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and (b) covered investments.
2. A Partyâs obligations under Section A shall apply: (a) to all levels of government of that Party; and
(b) to any non-governmental body when it exercises any regulatory, administrative, or other governmental authority delegated to it by that Party®°.
3. This Chapter does not bind either Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement.
4. This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapter II (Trade in Services) or Chapter IV (Temporary Movement of Natural Persons).
5. Notwithstanding paragraph 4 of this Article, for the purpose of protection of investment with respect to the commercial presence mode of service supply, Articles 3.5 (Minimum Standard of Treatment), 3.6 (Compensation for Losses), 3.7 (Expropriation and Compensation), 3.8 (Transfers), 3.17 (Subrogation), 3.18 (Denial of Benefits) and Section B of this Chapter shall apply, mutatis mutandis, to any measure affecting the supply of a service by a service supplier of a Party through commercial presence in the territory of the other Party, only to the extent that it relates to a covered investment.
3° For greater certainty, governmental authority is delegated under the law of a Party, including through a legislative grant, and a government order, directive or other action transferring to the person, or authorizing the exercise by the person of, governmental authority. For greater certainty, âgovernmental authorityâ refers to the power that is vested in the government of a Party, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges.
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Article 3.3. National Treatment?!
1. Each Party shall accord to investors of the other Party treatment no less favorable 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 investments in its territory.
2. Each Party shall accord to covered investments treatment no less favorable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
Article 3.4. Most-Favored-Nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favorable than that it accords, in like circumstances, to investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favorable than that it accords, in like circumstances, to investments in its territory of investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. For the purposes of this Chapter, paragraphs 1 and 2 of this Article shall not be construed to oblige any Party to extend to the investors of the other Party or covered investment any treatment, preference or privilege by virtue of bilateral investment treaties in force or signed prior to the date of entry into force of this Agreement.
4. For the purposes of this Chapter, paragraphs 1 and 2 of this Article
31 For greater certainty, whether treatment is accorded in âlike circumstancesâ under Article 3.3 (National Treatment) or Article 3.4 (Most-Favoured-Nation Treatment) depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.
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shall not be construed to oblige any Party to extend to the investors of the other Party or covered investment any treatment, preference or privilege by virtue of any bilateral or multilateral agreement relating to:
(a) economic, customs and monetary unions;
(b) free trade areas;
(c) taxation;
(d) frontier traffic;
(e) fisheries, aviation, or maritime matters, including salvage.
5. For greater certainty, the treatment referred to in this Article does not encompass dispute resolution mechanisms or procedures, such as those included in Section B, that are provided for in international investment or trade agreements.
Article 3.5. Minimum Standard of Treatment
1. Each Party shall accord to covered investments fair and equitable treatment and full protection and security in accordance with customary international law.
2. Paragraph 1 of this Article prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of âfair and equitable treatmentâ and âfull protection and securityâ do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligation in paragraph 1 of this Article provides:
(a) âfair and equitable treatmentâ includes the obligation not to deny justice in criminal, civil, or administrative
2 Article 3.5 (Minimum standard of Treatment] shall be interpreted in accordance with Annex 3-1 Customary International Law. BB
adjudicatory proceedings in accordance with due process of law; and
(b) âfull protection and securityâ requires each Party to provide the level of police protection required under customary international law.
3. A determination that there has been a breach of another provision of this Chapter, or of a separate international agreement, does not establish that there has been a breach of this Article.
4. For greater certainty, the mere fact that a Party takes or fails to take an action that may be inconsistent with an investorâs expectations does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result.
5. For greater certainty, the mere fact that a subsidy or grant has not been issued, renewed or maintained, or has been modified or reduced, by a Party, does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result.
Article 3.6. Compensation for Losses
1. Notwithstanding subparagraph (b) of paragraph 5 of Article 3.14 (Non-Conforming Measures), each Party shall accord to investors of the other Party, and to covered investments, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict, a state of national emergency, or civil strife.
2. Notwithstanding paragraph 1 of this Article, if an investor of a Party, in the situations referred to in paragraph 1 of this Article, suffers a loss in the territory of the other Party resulting from:
(a) requisitioning of its covered investment or part thereof by the latterâs forces or authorities; or
(b) destruction of its covered investment or part thereof by the
latterâs forces or authorities, which was not required by the 74
necessity of the situation,
the latter Party shall provide the investor restitution, compensation, or both, as appropriate, for such loss. Any compensation shall be made in accordance with paragraphs 2 through 4 of Article 3.7 (Expropriation and Compensation), mutatis mutandis.
3. Paragraph 1 of this Article does not apply to existing measures relating to subsidies or grants that would be inconsistent with Article 3.3 (National Treatment) but for subparagraph (b) of paragraph 5 of Article 3.14 (Non-Conforming Measures).
Article 3.7. Expropriation and Compensation?
1. Neither Party may expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (hereinafter referred to as âexpropriationâ in this Chapter), except:
(a) for a public purpose; (b) in a non-discriminatory manner;
(c) on payment of compensation in accordance with this Article; and
(d) in accordance with due process of law.
2. The compensation referred to in subparagraph (c) of paragraph 1 of this Article shall:
(a) be paid without delay;
(b) be equivalent to the fair market value of the expropriated investment at prices on the date when the expropriation was publicly announced or when the expropriation took place (hereinafter referred to as âthe date of expropriationâ), whichever is earlier; and
33 Article 3.7 (Expropriation and Compensation) shall be interpreted in accordance with Annex 3-2 (Expropriation). 75
(c) be fully realizable and freely transferable.
3. If the fair market value is denominated in a freely usable currency, the compensation referred to in subparagraph (c) of paragraph 1 of this Article shall be no less than the fair market value at prices on the date of public announcement of expropriation or on the date of expropriation, whichever is earlier, plus interest at a commercially reasonable rate for that currency accrued from the date of expropriation until the date of payment.
4. If the fair market value is denominated in a currency that is not freely usable, the compensation referred to in subparagraph (c) of paragraph 1 of this Article â converted into the currency of payment at the market rate of exchange prevailing on the date of payment â shall be no less than:
(a) the fair market value at prices on the date of public announcement of expropriation or on the date of expropriation, whichever is earlier, converted into a freely usable currency at the market rate of exchange prevailing on that date; plus
(b) interest at a commercially reasonable rate for that freely usable currency accrued from the date of expropriation until the date of payment.
5. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights in accordance with the TRIPS Agreement, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such issuance, revocation, limitation, or creation is consistent with the TRIPS Agreement.
6. For greater certainty, the mere fact that a subsidy or grant has not been issued, renewed or maintained, or has been modified or reduced, by a Party, does not constitute an expropriation, even if there is loss or damage to the covered investment as a result.
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Article 3.8. Transfers*+
1. Each Party shall permit all transfers relating to a covered investment upon fulfillment of all tax obligations to be made freely and without delay into and out of its territory. Such transfers include:
(a) contributions to capital;
(b) profits, dividends, capital gains, and proceeds from the sale of all or any part of the covered investment or from the partial or complete liquidation of the covered investment;
(c) interest, royalty payments, management fees, and technical assistance and other fees;
(d) payments made under a contract, including a loan agreement;
(e) payments made pursuant to Article 3.6 (Compensation for Losses) and Article 3.7 (Expropriation and Compensation);
(f) payments arising out of a dispute; and
(g) earnings and remuneration of a national of a Party who works in a covered investment in the territory of the other
Party.
2. Each Party shall permit transfers relating to a covered investment to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.
3. Each Party shall permit returns in kind relating to a covered investment to be made as authorized or specified in a written agreement between the Party and a covered investment or an investor of the other Party.
4. Notwithstanding paragraphs 1 through 3 of this Article, a Party
34 Article 3.8 (Transfers) does not affect each Partyâs ability to administer its capital account for the maintenance of the stability and soundness of its financial system, such as the foreign exchange market, stock market, bond market and financial derivatives market.
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may prevent a transfer through the equitable, non-discriminatory, and good faith application of its laws and regulations relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in securities, futures, options, or other derivatives;
(c) criminal or penal offenses;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.
5. For greater certainty, provided that such measures are not applied in an arbitrary or unjustifiable manner, and provided that such measures do not constitute a disguised restriction on international trade or investment, paragraphs 1 through 3 of this Article shall not be construed to prevent a Party from adopting or maintaining measures that are necessary to secure compliance with laws and regulations, including those relating to the prevention of deceptive and fraudulent practices, that are not inconsistent with this Chapter.
Article 3.9. Performance Requirements
1. Neither Party may, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of the other Party or of a non-party in its territory, impose or enforce any requirement or enforce any commitment or undertaking*>:
(a) to export a given level or percentage of goods or services;
3 For greater certainty, a condition for the receipt or continued receipt of an advantage referred to in paragraph 2 of this Article does not constitute a âcommitment or undertakingâ for the purposes of paragraph 1 of this Article.
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(b) to achieve a given level or percentage of domestic content of goods or services;
(c) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory*®;
(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
(e) to restrict sales of goods or services in its territory that such investment produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) to transfer a particular technology, a production process, or other proprietary knowledge to a person in its territory;
(g) to supply exclusively from the territory of the Party the goods that such investment produces or the services that it supplies to a specific regional market or to the world market;
(h) to locate the headquarters for a specific region or the world market in its territory; or
(i) to achieve a given percentage or value of research and development in its territory.
2. Neither Party may condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory of an investor of the other Party or of a non-party, on compliance with any requirement:
(a) to achieve a given level or percentage of domestic content of goods or services;
36 This sub-paragraph does not in itself impose obligations for either Party to allow the cross- border supply of services.
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(b) to purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory;
(c) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
(d) to restrict sales of goods or services in its territory that such investment produces or supplies by relating such sales in any way to the volume or value of its exports or foreign exchange earnings.