Title
Agreement Between Canada and Mali for the Promotion and Protection of Investments
Preamble
Canada and Mali, hereinafter referred to as the "Parties",
Recognizing that the promotion and the protection of investments of investors of one Party in the territory of the other Party are conducive to the stimulation of mutually beneficial business activity, to the development of economic cooperation between them and to the promotion of sustainable development,
Have agreed as follows:
Body
Section A. Definitions
Article 1. Definitions
For the purpose of this Agreement:
" central government "means,for Canada, the federal government, and, for Mali, the government of the Republic of Mali.
" competition authority " means:
(a) for Canada, the Commissioner of Competition or a successor to be notified to Mali by diplomatic note; and
(b) for Mali, the National Director of Trade and Competition or a successor to be notified to Canada by diplomatic note;
" confidential information " means confidential business information or information that is privileged or otherwise protected from disclosure under the law of a Party;
" covered investment " means
An investment in the territory of a Party of an investor of the other Party that exists on the date of entry into force of this Agreement, as well as investments made or acquired after that date;
" disputing investor " means
An investor that makes a claim under Section C (Settlement of Disputes between an Investor and the Host Party);
" disputing party " means the disputing investor or the respondent Party;
" enterprise " means:
(i) any entity constituted or organized under applicable law, whether or not for profit, whether privately-owned or
Governmentally-owned, including a corporation, trust, partnership, sole proprietorship, joint venture or other association; and
(ii) a branch of any such entity;
" existing "means
In effect on the date of entry into force of this Agreement;
" financial institution " means
A financial intermediary or other enterprise that is authorized to do business and that is regulated or supervised as a financial institution under the law of the Party in whose territory it is located;
" financial service "means
A service of a financial nature, including insurance, and a service incidental or auxiliary to a service of a financial nature;
" ICSID " means
The International Centre for the Settlement of Investment Disputes established by the ICSID Convention;
" ICSID Convention " means
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on 18 March 1965;
" information protected under its competition law " means
(a) for Canada, information within the scope of Section 29 of the Competition Act, R.S.C. 1985, c.34, or any successor provision, and
(b) for Mali, any provisions that are in force to the extent that it regulates any communication of information submitted to its competition authority, or obtained by it, to administer or to enforce its legislation on competition, or any successor provision;
" intellectual property rights " means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders' rights;
" investment " means:
(a) an enterprise;
(b) shares, stocks and other forms of equity participation in an enterprise;
(c) bonds, debentures, and other debt instruments of an enterprise;
(d) a loan to an enterprise;
(e) notwithstanding subparagraphs (c) and (d) above, a loan to or debt security issued by a financial institution is an investment only where the loan or debt security is treated as regulatory
Capital by the Party in whose territory the financial institution is located;
(f) an interest in an enterprise that entitles the owner to a share in income or profits of the enterprise;
(g) an interest in an enterprise that entitles the owner to share in the assets of that enterprise on dissolution;
(h) interests arising from the commitment of capital or other resources in the territory of a Party to economic activity in that territory, such as under:
(i) contracts involving the presence of an investor's property in the territory of the Party, including turnkey or construction contracts, and concessions such as to search for and extract oil and other natural resources, or
(ii) contracts where remuneration depends substantially on the production, revenues or profits of an enterprise;
(i) intellectual property rights; and
(j) any other tangible or intangible, moveable or immovable, property and related property rights acquired in the expectation of or used for the purpose of economic benefit or other business purpose;
But " investment " does not mean,
(k) claims to money that arise solely from:
(i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party, or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing, other than a loan covered by subparagraph (d); or
(l) any other claims to money,
That do not involve the kinds of interests set out in subparagraphs (a) to (j);
" investment of an investor of a Party " means an investment owned or controlled directly or indirectly by an investor of that Party;
" investor of a Party " means
A Party, a national or an enterprise of a Party, that seeks to make, is making or has made an investment;
" measure " includes any law, regulation, procedure, requirement, or practice;
" national " means:
(a) for Canada, a natural person who is a citizen or permanent resident of Canada;
(b) for Mali, a natural person who is a citizen of Mali;
Except that:
(c) a natural person who is a dual citizen of Canada and Mali shall be deemed to be exclusively a national of the Party of his or her dominant and effective nationality; and
(d) a natural person who is a citizen of one Party and a permanent resident of the other Party shall be deemed to be exclusively a national of the Party of his or her citizenship;
" New York Convention " means
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
" person "means
A natural person or an enterprise;
" respondent Party "means
A Party against which a claim is made under Section C (Settlement of Disputes between an Investor and the Host Party);
" sub-national government "means,
For Canada, provincial, territorial, or local governments;
" territory " means:
(a) the land territory, internal waters and territorial sea, including the air space above these areas, of the Party;
(b) the exclusive economic zone of the Party, as determined by its domestic law, consistent with Part V of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982 (UNCLOS); and
(c) the continental shelf of the Party, as determined by its domestic law, consistent with Part VI of UNCLOS;
" Tribunal " means
An arbitration tribunal established under Article 23 (Submission of a Claim to Arbitration) or Article 27 (Consolidation);
" TRIPS Agreement " means
The Agreement on Trade-Related Aspects of Intellectual Property Rights;
" UNCITRAL Arbitration Rules " means the arbitration rules of the United Nations Commission on International Trade Law, in their most recent form; and
" WTO Agreement " means
The Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Section B. Substantive Obligations
Article 2. Scope
1. This Agreement applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and
(b) covered investments.
2. The obligations in Section B (Substantive Obligations) apply to any person of a Party when it exercises a regulatory, administrative, or other governmental authority delegated to it by that Party.
Article 3. Promotion of Investment
Each Party shall encourage the creation of favourable conditions for investment in its territory by investors of the other Party. Each Party admits investments in conformity with its laws and regulations otherwise consistent with this Agreement.
Article 4. National Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment no less favourable than the treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of the Party of which it forms a part.
Article 5. Most-favoured-nation Treatment
1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of a nonParty 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 favourable than that it accords, in like circumstances, to investments of investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments in its territory.
3. For greater certainty, the treatment accorded by a Party under this Article means, with respect to a sub-national government, treatment accorded, in like circumstances, by that sub-national government to investors, and to investments of investors, of a non-Party.
Article 6. Minimum Standard of Treatment
1. Each Party shall accord to covered investments treatment in accordance with the customary international law minimum standard of treatment of aliens, including fair and equitable treatment and full protection and security.
2. The concepts of "fair and equitable treatment" and "full protection and security" in paragraph 1 do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.
3. A breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
Article 7. Compensation for Losses
Notwithstanding Article 16(7) (Reservations and Exceptions), 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 compensation for losses incurred by investments in its territory as a result of armed conflict, civil strife, or a natural disaster.
Article 8. Senior Management, Boards of Directors and Entry of Personnel
1. A Party may not require that an enterprise of that Party, that is a covered investment, appoint to senior management positions individuals of a particular nationality.
2. A Party may require that a majority of the board of directors, or a committee thereof, of an enterprise of that Party that is a covered investment be of a particular nationality or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
3. Subject to its domestic law relating to the entry of aliens, each Party shall grant temporary entry to nationals employed by an investor of the other Party who seek to render managerial or executive services, or services that require specialized knowledge, to an investment of that investor in the territory of the Party.
Article 9. Performance Requirements
1. The Parties reaffirm their obligations under the WTO Agreement on Trade-Related Investment Measures, the provisions of which, as they may be amended from time to time, are incorporated into and are part of this Agreement.
2. A Party may not impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Party or of a non-Party in its territory:
(a) to export a given level or percentage of goods;
(b) to achieve a given level or percentage of domestic content;
(c) to transfer technology, a production process or other proprietary knowledge to a person in its territory except when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of competition laws or to act in a manner consistent with other provisions of this Agreement; or
(d) to supply exclusively from its territory a good that the investment produces or a service it provides to a specific regional market or to the world market.
3. For greater certainty, paragraph 2 does not prevent a Party from conditioning the receipt or continued receipt of an advantage in connection with an investment in its territory, on compliance with a requirement set out in that paragraph.
4. A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements sis not inconsistent with subparagraph 2(c).
Article 10. Expropriation
1. A Party shall not nationalize or expropriate a covered investment either directly or indirectly through measures having an effect equivalent to nationalization or expropriation ("expropriation") except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on payment of prompt, adequate and effective compensation. For greater certainty, this paragraph is interpreted in accordance with Annex B.10.
2. This compensation referred to in paragraph 1 must be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation"), and must not reflect a change in value occurring because the intended expropriation had become known earlier. Valuation criteria must include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.
3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be payable in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency from the date of expropriation until date of payment.
4. The affected investor shall have a right, under the law of the expropriating Party, to a prompt review of its case and of the valuation of its investment by a judicial or other independent authority of that Party in accordance with the principles set out in this Article.
5. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation, or creation of intellectual property rights, to the extent that the issuance, revocation, limitation, or creation is consistent with the WTO Agreement.
Article 11. Transfer
1. Each Party shall permit all transfers relating to a covered investment to be made freely and without delay, into and out of its territory. Those transfers include:
(a) contributions to capital;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other fees, returns in kind and other amounts derived from the covered investment;
(c) proceeds from the sale of all or any part of the covered investment or from the partial or complete liquidation of the covered investment;
(d) payments made under a contract entered into by the investor, or the covered investment, including payments made pursuant to a loan agreement;
(e) payments made pursuant to Articles 7 (Compensation for Losses) and 10 (Expropriation); and
(f) payments arising under Section C (Settlement of Disputes between an Investor and the Host Party).
2. Each Party shall permit transfers relating to a covered investment to be made in the convertible currency in which the capital was originally invested, or in any other convertible currency agreed to by the investor and the Party concerned. Unless otherwise agreed by the investor, transfers shall be made at the market rate of exchange in effect on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer through the equitable, non-discriminatory, and good faith application of its domestic law relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities;
(c) criminal or penal offences;
(d) reports of transfers of currency or other monetary instruments; or
(e) enforcement of orders or judgements in judicial or similar proceedings.
4. A Party may not require its investors to transfer, or penalize its investors for failing to transfer, the income, earnings, profits, or other amounts derived from, or attributable to, investments in the territory of the other Party.
5. Paragraph 4 does not prevent a Party from imposing a measure through the equitable, non-discriminatory, and good faith application of its domestic law relating to the matters in subparagraphs 3(a) through 3(e).
6. Notwithstanding paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 5, a Party may prevent or restrict transfers by a financial institution to, or for the benefit of, an affiliate of or person related to that institution, through the equitable, non-discriminatory and good faith application of measures relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions.
7. Notwithstanding paragraph 1, a Party may restrict transfers of returns-in-kind in circumstances where it could otherwise restrict transfers under the WTO Agreement, and as set out in paragraph 3.
Article 12. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. To the extent possible, each Party shall: