(b) In the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to Article 24(3)(d),
(i) 90 ays have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) A court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
7. Each Party shall provide for the enforcement of an award in its territory.
8. If the respondent fails to abide by or comply with a final award, on delivery of a request by the non-disputing Party, a tribunal shall be established under Article 37. Without prejudice to other remedies available under applicable rules of international law, the requesting Party may seek in such proceedings:
(a) A determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Treaty; and
(b) A recommendation that the respondent abide by or comply with the final award.
9. A disputing party may seek enforcement of an arbitration award under the ICSID Convention or the New York Convention regardless of whether proceedings have been taken under paragraph 8.
10. A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.
Article 35. Annexes and Footnotes
The Annexes and footnotes shall form an integral part of this Treaty.
Article 36. Service of Documents
Delivery of notice and other documents on a Party shall be made to the place named for that Party in Annex C.
Section C.
Article 37. State-state Dispute Settlement
1. Subject to paragraph 5, any dispute between the Parties concerning the interpretation or application of this Treaty, that is not resolved through consultations or other diplomatic channels, shall be submitted on the request of either Party to arbitration for a binding decision or award by a tribunal in accordance with applicable rules of international law. In the absence of an agreement by the Parties to the contrary, the UNCITRAL Arbitration Rules shall govern, except as modified by the Parties or this Treaty.
2. Unless the Parties otherwise agree, the tribunal shall comprise three arbitrators, one arbitrator appointed by each Party and the third, who shall be the presiding arbitrator, appointed by agreement of the Parties. If a tribunal has not been constituted within 75 days from the date that a claim is submitted to arbitration under this Section, the Secretary-General, on the request of either Party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed.
3. Expenses incurred by the arbitrators, and other costs of the proceedings, shall be paid for equally by the Parties. However, the tribunal may, in its discretion, direct that a higher proportion of the costs be paid by one of the Parties.
4. Articles 28(3), 29, 30(1) and (3), and 31 shall apply mutatis mutandis to arbitrations under this Article.
5. Paragraphs 1 through 4 shall not apply to a matter arising under Article 12 or Article 13.
Conclusion
IN WITNESS WHEREOF, the Parties have signed this Treaty.
DONE in two originals at Kigali this 19th day of February, 2008, in the English language.
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
FOR THE GOVERNMENT OF THE REPUBLIC OF RWANDA:
Attachments
Annex A. Customary International Law
The Parties confirm their shared understanding that "customary international law" generally and as specifically referenced in Article 5 and Annex B results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 5, the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.
Annex B. Expropriation
The Parties confirm their shared understanding that:
1. Article 6(1) is intended to reflect customary international law concerning the obligation of States with respect to expropriation.
2. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
3. Article 6(1) addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure.
4. The second situation addressed by Article 6(1) is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) The economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) The extent to which the government action interferes with distinct, reasonable investment-backed expectations; and
(iii) The character of the government action.
(b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.
Annex C. Service of Documents on a Party
United States
Notices and other documents shall be served on the United States by delivery to:
Executive Director (L/EX)
Office of the Legal Adviser
Department of State
Washington, D.C. 20520
United States of America
Rwanda
Notices and other documents shall be served on Rwanda by delivery to:
Director General
Rwanda Investment & Export Promotion Agency
Kimihurura, Avenue du Lac Muhazi
P.O Box 6239 Kigali – Rwanda
Annex D. Possibility of a Bilateral Appellate Mechanism
Within three years after the date of entry into force of this Treaty, the Parties shall consider whether to establish a bilateral appellate body or similar mechanism to review awards rendered under Article 34 in arbitrations commenced after they establish the appellate body or similar mechanism.
Annex I. Explanatory Notes
1. The Schedule of a Party to this Annex sets out, pursuant to Article 14 (Non-Conforming Measures), the Party's existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 3 (National Treatment);
(b) Article 4 (Most-Favored-Nation Treatment);
(c) Article 8 (Performance Requirements); or
(d) Article 9 (Senior Management and Boards of Directors).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Obligations Concerned specifies the article(s) referred to in paragraph 1 that, pursuant to Article 14.1(a), do not apply to the non-conforming aspects of the law, regulation, or other measure, as set out in paragraph 3;
(c) Level of Government indicates the level of government maintaining the scheduled measure(s);
(d) Measures identifies the laws, regulations, or other measures for which the entry is made. A measure cited in the Measures element:
(i) Means the measure as amended, continued, or renewed as of the date of entry into force of this Treaty, and
(ii) Includes any subordinate measure adopted or maintained under the authority of and consistent with the measure; and
(e) Description provides a general, nonbinding description of the measure for which the entry is made.
3. In accordance with Article 14.1(a), and subject to Article 14.1(c), the articles of this Treaty specified in the Obligations Concerned element of an entry do not apply to the nonconforming aspects of the law, regulation, or other measure identified in the Measures element of that entry.
Annex I. Schedule of Rwanda
Sector: All
Obligations Concerned: National Treatment (Article 3) Most-Favored-Nation Treatment (Article 4)
Level of Government: Central
Measures: Law No. 26/2005 of 17/12/2005 relating to investment and export promotion and facilitation, Articles 2(5) and 2(11)
Description: For purposes of investment registration under Law No. 26/2005 of 17/12/2005, a "local investor" as defined in Article 2(11) (which may include certain investors of Rwanda and COMESA Member States) is required to invest a minimum capital of USD 100,000, whereas a "foreign investor" as defined in Article 2(5) is required to invest a minimum capital of USD 250,000.
Sector: All
Obligations Concerned: National Treatment (Article 3)
Level of Government: Central
Measures: Law No. 20/2000 of 26/07/2000 relating to non-profit organizations
Description: Non-profit-making organizations registered outside Rwanda are subject to differential registration and approval requirements and procedures pursuant to Articles 32-36, Law No. 20/2000. Non-profit-making organizations registered outside Rwanda are also granted permits that shall not exceed a renewable five-year term (Article 37, Law No. 20/2000), while non-profit-making organizations registered in Rwanda are constituted for an indefinite duration (Article 6, Law No. 20/2000).
Annex I. Schedule of the United States
Sector: Atomic Energy
Obligations Concerned: National Treatment (Article 3)
Level of Government: Central
Measures: Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 etseq.
Description: A license issued by the United States Nuclear Regulatory Commission is required for any person in the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, use, import, or export any nuclear "utilization or production facilities" for commercial or industrial purposes. Such a license may not be issued to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government (42 U.S.C. § 2133(d)). A license issued by the United States Nuclear Regulatory Commission is also required for nuclear "utilization and production facilities," for use in medical therapy, or for research and development activities. The issuance of such a license to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government is also prohibited (42 U.S.C. § 2134(d)).
Sector: Mining
Obligations Concerned: National Treatment (Article 3)
Most-Favored-Nation Treatment (Article 4)
Level of Government: Central
Measures: Mineral Lands Leasing Act of 1920, 30 U.S.C. Chapter 3A
10 U.S.C. § 7435
Description: Under the Mineral Lands Leasing Act of 1920, aliens and foreign corporations may not acquire rights-of-way for oil or gas pipelines, or pipelines carrying products refined from oil and gas, across on-shore federal lands or acquire leases or interests in certain minerals on on-shore federal lands, such as coal or oil. Non-U.S. citizens may own a 100 percent interest in a domestic corporation that acquires a right-of-way for oil or gas pipelines across on-shore federal lands, or that acquires a lease to develop mineral resources on on-shore federal lands, unless the foreign investor's home country denies similar or like privileges for the mineral or access in question to U.S. citizens or corporations, as compared with the privileges it accords to its own citizens or corporations or to the citizens or corporations of other countries (30 U.S.C. §§ 181, 185(a)).
Nationalization is not considered to be denial of similar or like privileges.
Foreign citizens, or corporations controlled by them, are restricted from obtaining access to federal leases on Naval Petroleum Reserves if the laws, customs, or regulations of their country deny the privilege of leasing public lands to citizens or corporations of the United States (10 U.S.C. § 7435).
Sector: All Sectors
Obligations Concerned: National Treatment (Article 3)
Most-Favored-Nation Treatment (Article 4)
Level of Government: Central
22 U.S.C. §§ 2194 and 2198(c)
Description: The Overseas Private Investment Corporation (OPIC) insurance and loan guarantees are not available to certain aliens, foreign enterprises, or foreign-controlled domestic enterprises.
Sector: Air Transportation
Obligations Concerned: National Treatment (Article 3)
Most-Favored-Nation Treatment (Article 4)
Senior Management and Boards of Directors (Article 9)
Level of Government: Central
49 U.S.C. Subtitle VII, Aviation Programs; 14 C.F.R. Part 297 (foreign freight forwarders); 14 C.F.R. Part 380, Subpart E (registration of foreign (passenger) charter operators)
Description: Only air carriers that are "citizens of the United States" may operate aircraft in domestic air service (cabotage) and may provide international scheduled and non-scheduled air service as U.S. air carriers.
U.S. citizens also have blanket authority to engage in indirect air transportation activities (air freight forwarding and passenger charter activities other than as actual operators of the aircraft). In order to conduct such activities, non-U.S. citizens must obtain authority from the Department of Transportation. Applications for such authority may be rejected for reasons relating to the failure of effective reciprocity, or if the Department of Transportation finds that it is in the public interest to do so.
Under 49 U.S.C. § 40102(a)(15), a citizen of the United States means an individual who is a U.S. citizen; a partnership in which each member is a U.S. citizen; or a U.S. corporation of which the president and at least two-thirds of the board of directors and other managing officers are U.S. citizens, which is under the actual control of U.S. citizens, and in which at least seventy-five percent of the voting interest in the corporation is owned or controlled by U.S. citizens.
Sector: Air Transportation
Obligations Concerned: National Treatment (Article 3)
Most-Favored-Nation Treatment (Article 4)
Senior Management and Boards of Directors (Article 9)
Level of Government: Central
49 U.S.C., Subtitle VII, Aviation Programs
49 U.S.C. § 41703
14 C.F.R. Part 375
Description: "Foreign civil aircraft" require authority from the Department of Transportation to conduct specialty air services in the territory of the United States. In determining whether to grant a particular application, the Department will consider, among other factors, the extent to which the country of the applicant's nationality accords U.S. civil aircraft operators effective reciprocity.
"Foreign civil aircraft" are aircraft of foreign registry or aircraft of U.S. registry that are owned, controlled, or operated by persons who are not citizens or permanent residents of the United States (14 C.F.R. § 375.1). Under 49 U.S.C. § 40102(a)(15), a citizen of the United States means an individual who is a U.S. citizen; a partnership in which each member is a U.S. citizen; or a U.S. corporation of which the president and at least two-thirds of the board of directors and other managing officers are U.S. citizens, which is under the actual control of U.S. citizens, and in which at least seventy-five percent of the voting interest in the corporation is owned or controlled by U.S. citizens.
Sector: Transportation Services - Customs Brokers
Obligations Concerned: National Treatment (Article 3)
Level of Government: Central
19 U.S.C. § 1641(b)
Description: A customs broker's license is required to conduct customs business on behalf of another person. Only U.S. citizens may obtain such a license. A corporation, association, or partnership established under the law of any state may receive a customs broker's license if at least one officer of the corporation or association, or one member of the partnership, holds a valid customs broker's license.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 3)
Most-Favored-Nation Treatment (Article 4)
Level of Government: Central
Measures: Securities Act of 1933, 15 U.S.C. §§ 77c(b), 77f, 77g, 77h, 77j, and 77s(a)
17 C.F.R. §§ 230.251 and 230.405
Securities Exchange Act of 1934, 15 U.S.C. §§ 78l, 78m, 78o(d), and 78w(a)
17 C.F.R. § 240.12b-2
Description: Foreign firms, except for certain Canadian issuers, may not use the small business registration forms under the Securities Act of 1933 to register public offerings of securities or the small business registration forms under the Securities Exchange Act of 1934 to register a class of securities or file annual reports.
Sector: Communications – Radiocommunications
Obligations Concerned: National Treatment (Article 3)
Level of Government: Central
47 U.S.C. § 310
Foreign Participation Order 12 FCC Rcd 23891 (1997)
Description: The United States reserves the right to restrict ownership of radio licenses in accordance with the above statutory and regulatory provisions. Radiocommunications consists of all communications by radio, including broadcasting.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 3)
Most-Favored-Nation Treatment (Article 4)
Performance Requirements (Article 8)
Senior Management and Boards of Directors (Article 9)
Level of Government: Regional
Measures: All existing non-conforming measures of all states of the United States, the District of Columbia, and Puerto Rico.
Annex II. Explanatory Notes
1. The Schedule of a Party to this Annex sets out, pursuant to Article 14 (Non-Conforming Measures), the specific sectors, subsectors, or activities for which the Party may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by: