a) no investor may invoke Article 811 (Investment - Expropriation) as the basis for a claim where it has been determined pursuant to this paragraph that the measure is not an expropriation;
b) an investor that seeks to invoke Article 811 (Investment - Expropriation) with respect to a taxation measure must first refer to the designated authorities of the Parties at the time that it gives its notice of intent under subparagraph 1(c) of Article 822 (Investment - Submission of a Claim to Arbitration) the issue of whether that taxation measure is not an expropriation; and
c) the designated authorities of the Parties shall agree to consider the issue. If the designated authorities fail to agree that the measure is not an expropriation within a period of six months of such referral, the investor may submit its claim to arbitration under Article 822 (Submission of a Claim to Arbitration).
8. In order to give effect to paragraphs 1 to 3:
(a) Where in a dispute between Parties, an issue arises as to whether a measure of a Party is a taxation measure, either Party may refer the issue to the designated authorities of the Parties. The designated authorities shall decide the issue of whether the measure is a taxation measure, and their decision shall bind any panel established under Article 2106 (Dispute Settlement - Establishment of a Panel) for the dispute. Where the designated authorities have been referred the issue and have not decided the issue within six months of the referral, the panel shall decide the issue;
(b) Where in connection with a claim by an investor of a Party, an issue arises as to whether a measure is a taxation measure, the Party that has received notice of intention to submit a claim or against which an investor of a Party has submitted a claim may refer the issue to the designated authorities of the Parties. The designated authorities shall decide the issue of whether the measure is a taxation measure, and their decision shall bind any Tribunal formed pursuant to Section B of Chapter Eight (Investment - Settlement of Disputes Between an Investor and the Host Party) with jurisdiction over the claim. A Tribunal seized of a claim in which the issue arises may not proceed pending receipt of the decision of the designated authorities. Where the designated authorities have been referred the issue and have not decided the issue within six months of the referral, the Tribunal shall decide the issue;
(c) Where in a dispute between Parties, an issue arises as to whether a tax convention prevails over this Agreement, a Party to the dispute may refer the issue to the designated authorities of the Parties. The designated authorities shall consider the issue and decide whether the tax convention prevails. If within six months of the referral of the issue to the designated authorities, they decide with respect to the measure that gives rise to the issue that the tax convention prevails, no procedures concerning that measure may be initiated under Article 2106 (Dispute Settlement - Establishment of a Panel). No procedures concerning the measure may be initiated during the period that the issue is under consideration by the designated authorities. Where the designated authorities have been referred the issue and have not decided the issue within six months of the referral, the panel shall decide the issue; and
(d) Where prior to the submission of a claim by an investor of a Party, an issue arises as to whether a tax convention prevails over this Agreement, the Party that has received notice of intention to submit a claim may refer the issue to the designated authorities of the Parties. The designated authorities shall consider the issue and decide whether the tax convention prevails. If within six months of the referral of the issue to the designated authorities, they decide with respect to the measure that gives rise to the issue that the tax convention prevails, no claim concerning that measure may be submitted under Article 822 (Investment - Submission of a Claim to Arbitration). No claim concerning the measure may be submitted during the period that the issue is under consideration by the designated authorities. An investor of a Party that fails to identify a taxation measure in its notice of intention to submit a claim may not submit a claim concerning that measure under Article 822 (Investment - Submission of a Claim to Arbitration). Where the designated authorities have been referred the issue and have not decided the issue within six months of the referral, the Tribunal shall decide the issue.
9. Where an investor invokes Article 811 (Investment - Expropriation) as the basis for a claim under Article 819 (Investment - Claim by an Investor of a Party on its Own Behalf) or 820 (Investment - Claim by an Investor of a Party on Behalf of an Enterprise), any determination under paragraph 7 of whether a measure is an expropriation shall be made concurrently with any decision by the designated authorities under subparagraph 8(b) of the issue whether the measure is a taxation measure.
10. The designated authorities seized of an issue under paragraphs 7 or 8 may agree to modify the time period allowed for their consideration of the issue.
11. Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information the disclosure of which would be contrary to the Party's law protecting information concerning the taxation affairs of a taxpayer.
Article 2205. Disclosure of Information
1. Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information the disclosure of which would impede law enforcement, or would be contrary to the Party's law protecting the deliberative and policy-making processes of the executive branch of government at the cabinet level, personal privacy or the financial affairs and accounts of individual customers of financial institutions.
2. Nothing in this Agreement shall be construed to require, during the course of any dispute settlement procedure under this Agreement, a Party to furnish or allow access to information protected under its competition laws, or a competition authority of a Party to furnish or allow access to any other information that is privileged or otherwise protected from disclosure.
Article 2206. Cultural Industries
Nothing in this Agreement shall be construed to apply to measures adopted or maintained by either Party with respect to cultural industries except as specifically provided in Article 203 (National Treatment and Market Access for Goods - Tariff Elimination).
Article 2207. World Trade Organization Waivers
To the extent that there are overlapping rights and obligations in this Agreement and the WTO Agreement, the Parties agree that any measures adopted by a Party in conformity with a waiver decision adopted by the WTO pursuant to Article IX:3 of the WTO Agreement shall be deemed to be also in conformity with the present Agreement, except as otherwise agreed by the Parties. Such conforming measures of either Party may not give rise to legal actions by an investor of one Party against the other under Section B of Chapter Eight (Investment - Settlement of Disputes Between an Investor and the Host Party).
Article 2208. Definitions
For purposes of this Chapter:
competition authority means:
(a) for Canada, the Commissioner of Competition or any successor, and,
(b) for Colombia, the Superintendencia de Industria y Comercio, the Superintendencia Financiera, the Superintendencia de Servicios Públicos Domiciliarios, the Comisión Nacional de Televisión, the Aeronaútica Civil, or any successor agencies, when they address matters relating to the administration or enforcement of their competition laws.
cultural industries means persons engaged in any of the following activities:
(a) the publication, distribution, or sale of books, magazines, periodicals or newspapers in print or machine readable form but not including the sole activity of printing or typesetting any of the foregoing;
(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 and cable broadcasting undertakings and all satellite programming and broadcast network services;
(f) production and presentation of performing arts; (g) production and exhibition of visual arts; or
(h) design, production, distribution and sale of handicrafts.
designated authority means:
(a) in the case of Canada, the Assistant Deputy Minister for Tax Policy, Department of Finance, or any successor authority;
(b) in the case of Colombia, the Viceministerio Técnico del Ministerio de Hacienda y Crédito Público or any successor authority.
information protected under its competition laws means
(a) for Canada, information within the scope of section 29 of the Competition Act, R.S. 1985, c.34, or any successor provision; and
(b) for Colombia, information protected in accordance with numeral 3 of Article 4 and Article 13 of Ley 155 de 1959, or any successor provisions.
tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
taxes and taxation measures do not include:
(a) a "customs duty" as defined in Article 222 (National Treatment and Market Access for Goods - Definitions);
(b) the measures listed in exceptions (b) and (c) to that definition.
Chapter Twenty-Three. Final Provisions
Article 2301. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement constitute integral parts of this Agreement.
Article 2302. Amendments
1. Any amendment of this Agreement shall be done in writing.
2. When so agreed, such an amendment shall enter into force and constitute an integral part of this Agreement following an exchange of written notifications by the Parties certifying the completion of their respective necessary legal procedures and on such date or dates as may be agreed between the Parties.
Article 2303. Reservations
This Agreement shall not be subject to unilateral reservations.
Article 2304. Entry Into Force
Each Party shall notify the other Party in writing of the completion of its domestic procedures required for the entry into force of this Agreement. This Agreement shall enter into force 60 days from the date of the second of these notifications.
Article 2305. Termination
This Agreement shall remain in force unless terminated by either Party on six months' written notice to the other Party.
Article 2306. Accession
Any country or group of countries may accede to this Agreement subject to such terms and conditions as may be agreed between such country or countries and the Parties, and following approval in accordance with the legal requirements of each Party and acceding country.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE in duplicate at , this day of 2008, in the English, Spanish and French languages, each version being equally authentic.
FOR CANADA
FOR THE REPUBLIC OF COLOMBIA
Attachments
Annex I. Headnote
1. The Schedule of a Party sets out, pursuant to Article 809 (Investment - Non-Conforming Measures) and Article 906 (Cross-Border Trade in Services - Non-Conforming Measures), the reservations taken by that Party with respect to existing measures by a Party that do not conform with obligations imposed by:
- (a) Articles 803, 902 (Investment, Cross-Border Trade in Services - National Treatment);
- (b) Articles 804, 903 (Investment, Cross-Border Trade in Services - Most-Favoured-Nation Treatment);
- (c) Article 905 (Cross-Border Trade in Services - Local Presence);
- (d) Article 807 (Investment - Performance Requirements);
- (e) Article 808 (Investment - Senior Management and Boards of Directors);
- (f) Article 904 (Cross-Border Trade in Services - Market Access);
and, in certain cases, sets out commitments for immediate or future liberalization.
2. Each reservation sets out the following elements:
- (a) Sector refers to the general sector in which the reservation is taken;
- (b) Sub-Sector refers to the specific sector in which the reservation is taken;
- (c) Industry Classification refers, where applicable, to the activity covered by the reservation according to domestic industry classification codes;
- (d) Type of Reservation specifies the obligation referred to in paragraph 1 for which a reservation is taken;
- (e) Measures identifies the laws, regulations or other measures, as qualified, where indicated, by the Description element, for which the reservation is taken. A measure cited in the Measureselement:(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;
- (i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and
- (ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;
- (f) Description sets out commitments, if any, for liberalization on the date of entry into force of this Agreement, and the remaining non-conforming aspects of the existing measures for which the reservation is taken.
3. In the interpretation of a reservation, all elements of the reservation, with the exception of Industry Classification, shall be considered. A reservation shall be interpreted in the light of the relevant provisions of the Articles against which the reservation is taken. To the extent that:
- (a) the Measures element is qualified by a liberalization commitment from the Description element, the Measures element as so qualified shall prevail over all other elements; and
- (b) the Measures element is not so qualified, the Measures element shall prevail over all other elements, unless any discrepancy between the Measures element and the other elements considered in their totality is so substantial and material that it would be unreasonable to conclude that the Measures element should prevail, in which case the other elements shall prevail to the extent of that discrepancy.
4. Where a Party maintains a measure that requires a service provider be a citizen, permanent resident or resident of its territory as a condition to the provision of a service in its territory, a reservation for that measure taken with respect to Article 902, 903 or 905 (Cross-Border Trade in Services – National Treatment, Most-Favoured Nation Treatment or Local Presence) shall operate as a reservation with respect to Article 803, 804 or 807 (Investment - National Treatment, Most-Favoured Nation Treatment or Performance Requirements) to the extent of that measure.
5. The listing of a measure in this Annex is without prejudice to a future claim that Annex II may apply to the measure or some application of the measure.
6. For purposes of this Annex:
CPC means Central Product Classification (CPC) numbers as set out in Statistical Office of the United Nations, Statistical Papers, Series M, No. 77, Provisional Central Product Classification, 1991; and
SIC means Standard Industrial Classification (SIC) numbers as set out in Statistics Canada, Standard Industrial Classification, fourth edition, 1980.
Annex I. Schedule of Canada
Sector: All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation:National Treatment (Article 803)Performance Requirements (Article 807)Senior Management and Boards of Directors (Article 808)
Measures:Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.)Investment Canada Regulations, SOR/85-611, as qualified by paragraphs 8 through 12 of the Description element
Description:Investment
1.Under the Investment Canada Act, the following acquisitions of Canadian businesses by “non-Canadians” are subject to review by the Director of Investments:
- a. All direct acquisitions of Canadian businesses with assets of C$5 million or more;
- b. All indirect acquisitions of Canadian businesses with assets of C$50 million or more; and
- c. Indirect acquisitions of Canadian businesses with assets between C$5 million and C$50 million that represent more than 50 per cent of the value of the assets of all the entities the control of which is being acquired, directly or indirectly, in the transaction in question.
2. A “non-Canadian” is an individual, government or agency thereof or an entity that is not “Canadian”. “Canadian” means a Canadian citizen or permanent resident, government in Canada or agency thereof orCanadian-controlled entity as provided for in the Investment Canada Act.
3.In addition, specific acquisitions or establishment of new businesses in designated types of business activities relating to Canada’s cultural heritage or national identity, which are normally notifiable, may be reviewed if the Governor-in-Council authorizes a review in the public interest.
4. An investment subject to review under the Investment Canada Act may not be implemented unless the Minister responsible for the Investment Canada Act advises the applicant that the investment is likely to be of netbenefit to Canada. Such a determination is made in accordance with six factors described in the Act, summarized as follows:
- a. The effect of the investment on the level and nature of economic activity in Canada, including the effect on employment, on the utilization of parts, components and services produced in Canada, and on exports from Canada;
- b. The degree and significance of participation by Canadians in the investment;
- c. The effect of the investment on productivity, industrial efficiency, technological development and product innovation in Canada;
- d. The effect of the investment on competition within any industry or industries in Canada;
- e. The compatibility of the investment with national industrial, economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected by the investment; and
- f. The contribution of the investment to Canada's ability to compete in world markets.
5. In making a net benefit determination, the Minister, through the Director of Investments, may review plans under which the applicant demonstrates the net benefit to Canada of the proposed acquisition. An applicant may also submit undertakings to the Minister in connection with any proposed acquisition which is the subject of review. In the event of noncompliance with an undertaking by an applicant, the Minister may seek a court order directing compliance or any other remedy authorized under the Act.
6. Non-Canadians who establish or acquire Canadian businesses, other than those that are subject to review, as described above, must notify the Director of Investments.
7. The Director of Investments will review an “acquisition of control”, as defined in the Investment Canada Act, of a Canadian business by an investor of Colombia if the value of the gross assets of the Canadian business is not less than the applicable threshold.
8. The higher review threshold, calculated as set out in paragraph 13, does not apply to acquisitions in thefollowing sectors: uranium production and ownership of uranium producing properties; financial services; transportation services; and cultural businesses.
9. Notwithstanding the definition of “investor of a party” in Article 838, only investors who are nationals, or entities controlled by nationals as provided for in the Investment Canada Act, of Colombia may benefit from the higher review threshold.
10. An indirect “acquisition of control” of a Canadian business in any sector other than those sectors identified in paragraph 8 by an investor of Colombia is not reviewable.
11. Notwithstanding Article 807, Canada may impose requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, conduct or operation of an investment of an investor of Colombia or of a non-Party for the transfer of technology, production process or other proprietary knowledge to a national or enterprise, affiliated to the transferor, in Canada, in connection with the review of an acquisition of an investment under the Investment Canada Act.
12. Except for requirements, commitments or undertakings relating to technology transfer as set out in paragraph 11, Article 807 shall apply to requirements, commitments or undertakings imposed or enforced under the Investment Canada Act. Article 807 shall not be construed to apply to any requirement, commitment or undertaking imposed or enforced in connection with a review under the Investment Canada Act, to locate production, carry out research and development, employ or train workers, or to construct or expand particular facilities, in Canada.
13. For direct acquisitions of control by investors of Colombia or for investors of a non-Party where the Canadian business is controlled by an investor of Colombia, the applicable threshold for review is C$295 million for the year 2008 and for each year thereafter the amount determined by the Minister in January of that year arrived at by using the following formula:
Annual Adjustment =Current Nominal GDP at Market Prices
------------------------------------------------------
Previous Year Nominal GDPXamount determined
for previous year at
Market Prices
"Current Nominal GDP at Market Prices” means the average of the Nominal Gross Domestic Products at Market Prices for the most recent four consecutive quarters.
“Previous Year Nominal GDP at Market Prices” means the average of the Nominal Gross Domestic Product for the four consecutive quarters for the comparable period in the year preceding the year used in calculating the “Current Nominal GDP at Market Prices”.
The amounts determined in this manner will be rounded to the nearest million dollars.
Phase-Out:None
Sector:All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation: National Treatment (Article 803)Senior Management and Boards of Directors (Article 808)
Measures:As set out in the Description element
Description:Investment
Canada or any province, when selling or disposing of its equity interests in, or the assets of, an existing state enterprise or an existing governmental entity, may prohibit or impose limitations on the ownership of such interests or assets, and on the ability of owners of such interests or assets to control any resulting enterprise, by investors of Colombia or of a non-Party or their investments. With respect to such a sale or other disposition, Canada or any province may adopt or maintain any measure relating to the nationality of senior management or members of the board of directors.
For purposes of this reservation:
any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition, prohibits or imposes limitations on the ownership of equity interests or assets or imposes nationality requirements described in this reservation shall be deemed to be an existing measure; and
“state enterprise” means an enterprise owned or controlled through ownership interests by Canada or any province and includes an enterprise established after the date of entry into force of this Agreement solely for the purposes of selling or disposing of equity interests in, or the assets of, an existing state enterprise or governmental entity.
Phase-Out:None
Sector:All sectors
Sub-Sector:
Industry Classification:
Type of Reservation:National Treatment (Article 803)
Measures:Canada Business Corporations Act, R.S.C. 1985, c. C-44Canada Corporations Act, R.S.C. 1970, c. C-32Canada Business Corporations Act Regulations, SOR/79-316
Description:Investment
“Constraints” may be placed on the issue, transfer and ownership of shares in federally incorporated corporations. The object is to permit corporations to meet Canadian ownership requirements, under certain laws set out in the Canada Business Corporations Act Regulations, in sectors where ownership is required as a condition to operate or to receive licenses, permits, grants, payments or other benefits. In order to maintain certain “Canadian” ownership levels, a corporation is permitted to sell shareholders’ shares without the consent of those shareholders, and to purchase its own shares on the open market. “Canadian” is defined in the Canada Business Corporations Act Regulations.
Phase-Out: None
Sector:All sectors
Sub-Sector:
Industry Classification:
Type of Reservation: Senior Management and Boards of Directors (Article 808)
Measures: Canada Business Corporations Act, R.S.C. 1985, c. C-44Canada Business Corporations Act Regulations, SOR/79-316Canada Corporations Act, R.S.C. 1970, c. C-32
Special Acts of Parliament incorporating specific companies
Description:Investment
The Canada Business Corporations Act requires, for most federally-incorporated corporations, that 25 per cent of directors be resident Canadians. A simple majority of resident Canadian directors is required for corporations in prescribed sectors.These sectors are: uranium mining; book publishing or distribution; book sales, where the sale of books is the primary part of the corporation’s business; and film or video distribution. Similarly, corporations that, by an Act of Parliament or Regulation, are individually subject to minimum Canadian ownership requirements are required to have a majority of resident Canadians directors.
For purposes of the Act, “resident Canadian” means an individual who is a Canadian citizen ordinarily resident in Canada, a citizen who is a member of a class set out in the Canada Business Corporations Act Regulations, or a permanent resident as defined in the Immigration and Refugee Protection Act other than one who has been ordinarily resident in Canada for more than one year after he or she became eligible to apply for Canadian citizenship.
In the case of a holding corporation, not more than one-third of the directors need be resident Canadians if the earnings in Canada of the holding corporation and its subsidiaries are less than five per cent of the gross earnings of the holding corporation and its subsidiaries.
Under Part IV of the Canada Corporations Act, a simple majority of the elected directors of a Special Act corporation must be resident in Canada and citizens of a Commonwealth country. This requirement applies to every joint stock company incorporated subsequent to 22 June 1869 by any Special Act of Parliament.
Phase-Out:None
Sector:All Sectors
Sub-Sector:
Industry Classification:
Type of Reservation: National Treatment (Article 803)
Measures:Citizenship Act, R.S.C. 1985, c. C-29Foreign Ownership of Land Regulations, SOR/79-416
Description:Investment
The Foreign Ownership of Land Regulations are made pursuant to the Citizenship Act and the Alberta Agricultural and Recreational Land Ownership Act. In Alberta, an ineligible person or foreign-owned or controlled corporation may only hold an interest in controlled land consisting of not more than two parcels containing, in the aggregate, not more than 20 acres. An “ineligible person” is:
- a. an individual who is not a Canadian citizen or permanent resident;
- b. a foreign government or agency thereof; or
- c. a corporation incorporated elsewhere than in Canada.
“Controlled land” means land in Alberta but does not include: