Title
Agreement Between the Government of Canada and the Government of the Hong Kong Special Administrative Region of the People's Republic of China for the Promotion and Protection of Investments
Preamble
THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA (the "Parties"), the latter Party having been duly authorized to conclude this Agreement by the Central People's Government of the People's Republic of China,
RECOGNIZING that the promotion and the protection of investments of investors of one Party in the area of the other Party are conducive to the stimulation of mutually beneficial business activities and to the development of economic cooperation between them,
RECOGNIZING the need to promote investments based on the principles of sustainable development,
HAVE AGREED as follows:
Body
Section A. Definitions
Article 1.
Definitions
For the purpose of this Agreement:
"area" means:
(a) in respect of the Hong Kong Special Administrative Region, the Hong Kong Special Administrative Region as delineated by the Order of State Council of the People's Republic of China No. 221, which includes Hong Kong Island, Kowloon and the New Territories;
(b) in respect of Canada:
(i) the land territory, internal waters and territorial sea, including the air space above these areas, over which Canada exercises sovereignty;
(ii) the exclusive economic zone of Canada, as determined by its law, pursuant to Part V of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982 (UNCLOS); and
(iii) the continental shelf of Canada, as determined by its law, pursuant to Part VI of UNCLOS;
"competition authority"means:
(a) for Canada, the Commissioner of Competition or a successor to be notified to the Hong Kong Special Administrative Region in writing; and
(b) for the Hong Kong Special Administrative Region, the Competition Commission established under the Competition Ordinance (Cap. 619) or a successor to be notified to Canada in writing;
"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, with respect to a Party, an investment in its area that is owned or controlled, directly or indirectly, by an investor of the other Party, and exists on the date of entry into force of this Agreement or is made or acquired thereafter;
"disputing party" means either the respondent Party or the investor that has made a claim under Section C (Settlement of Disputes between an Investor and the Host Party);
"enterprise" means an 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 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 provide financial service and regulated or supervised as a financial institution under the law of the Party in whose area it is located;
"financial service" has the same meaning as in subparagraph 5(a) of the Annex on Financial Services of the General Agreement on Trade in Services, contained in Annex 1B to the WTO Agreement;
"freely convertible currency" means a currency free of all currency exchange controls and widely traded in international foreign exchange markets;
"Government" means:
(a) for Canada, the federal government; and
(b) for the Hong Kong Special Administrative Region, the government of the Hong Kong Special Administrative Region;
"Government enterprise" means an enterprise that is owned or controlled, directly or indirectly, by a government or, if applicable, a sub-national government;
"information protected under its competition laws" means:
(a) for Canada, information within the scope of Section 29 of the Competition Act, R.S.C., 1985, c. C-34, or a successor provision; and
(b) for the Hong Kong Special Administrative Region, information protected under the Competition Ordinance (Cap. 619);
"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) a share, stock or other form of equity participation in an enterprise;
(c) a bond, debenture or other debt instrument 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, 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 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) an interest 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) a contract involving the presence of an investor's property in the territory of the Party, including a turnkey or construction contract, or a concession, or
(ii) a contract where remuneration depends substantially on the production, revenues or profits of an enterprise;
(i) an intellectual property right; and
(j) any other tangible or intangible, moveable or immovable, property and any related property right acquired in the expectation of or used for the purpose of economic benefit or other business purpose;
But "investment" does not mean:
(k) a claim to money that arises solely from:
(i) a commercial contract for the sale of a good or service 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, including bank loans, in connection with a commercial transaction, such as trade financing; or
(l) any other claim to money,
That does not involve the kinds of assets set out in subparagraphs (a) to (j);
For greater clarity, any alteration of the form in which an asset is invested shall not affect its character as an investment.
"investor of a Party" means a Party, or a person or a Government enterprise of such Party, that seeks to make, is making or has made an investment. For greater certainty, it is understood that an investor "seeks to make an investment" only when the investor has taken concrete steps necessary to make the said investment;
"measure" includes a law, regulation, procedure, requirement or practice;
"natural person" means:
(a) for Canada, a citizen or permanent resident of Canada; and
(b) for the Hong Kong Special Administrative Region, a permanent resident of the Hong Kong Special Administrative Region;
A natural person that is both a permanent resident of the Hong Kong Special Administrative Region and a citizen or permanent resident of Canada shall be deemed to be exclusively a natural person of the Party with which he or she has a predominant link, taking into account factors including, but not limited to, the individual's permanent home, centre of vital interests (i.e. where the individual's personal and economic relations are closer), and habitual abode.
"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;
"PCA" means the Permanent Court of Arbitration established by the Conventions for the Pacific Settlement of International Disputes, done at The Hague on 29 July 1899 and 18 October 1907;
"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);
"returns-in-kind" means returns in the form of an article or commodity, for example in goods or in natural produce, as opposed to money;
"sub-national government" means, for Canada, a provincial, territorial or local government;
"tax convention" means a convention for the avoidance of double taxation or other international taxation agreement or arrangement;
"Tribunal" means an arbitration tribunal constituted under Article 23 (Submission of a Claim to Arbitration) or Article 26 (Consolidation);
"TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C of the WTO Agreement;
"UNCITRAL Arbitration Rules" means the arbitration rules of the United Nations Commission on International Trade Law; 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 shall apply to measures adopted or maintained by a Party relating to:
(a) an investor of the other Party; and
(b) a covered investment.
2. The obligations in Section B (Substantive Obligations) apply to a 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 area by investors of the other Party and shall admit those investments in accordance with its laws, regulations, and rules.
Article 4. Non-discriminatory Treatment as Compared with a Party's Own Investors
1. Each Party shall accord to an investor of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the expansion, management, conduct, operation and sale or other disposition of an investment in its area.
2. Each Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the expansion, management, conduct, operation and sale or other disposition of an investment in its area.
3. For greater certainty, the treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that subnational government to investors, and to investments of investors, of the Party of which it forms a part.
4. The concept of "expansion" in this Article applies only with respect to sectors not subject to a prior approval process or admission requirements under the relevant sectorial guidelines and applicable laws, regulations and rules in force at the time of expansion. The expansion may be subject to prescribed formalities and other information requirements.
Article 5. Non-discriminatory Treatment as Compared with a Non-party's Investors
1. Each Party shall accord to an investor of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its area.
2. Each Party shall accord to a covered investment 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 an investment in its area.
3. For greater certainty, the treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that subnational government to investors, and to investments of investors, of a non-Party.
4. For greater certainty, the treatment referred to in paragraphs 1 and 2 does not encompass the dispute resolution mechanisms, such as those in Section C (Settlement of Disputes between an Investor and the Host Party), in other international investment or trade agreements.
Article 6. Minimum Standard of Treatment
1. Each Party shall accord to a covered investment 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(5)(b) (Reservations and Exceptions), each Party shall accord to an investor of the other Party, and to a covered investment, non-discriminatory treatment with respect to measures it adopts or maintains relating to compensation for losses incurred by investments in its area as a result of war or other armed conflict, revolution, revolt, insurrection, riot, civil strife, a state of national emergency or a natural disaster. Any resulting monetary compensation shall be made in a freely convertible currency.
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 a senior management position an individual of any 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 area of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
3. Each Party shall, subject to its relevant laws and regulations, grant temporary entry and stay to natural persons 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 area of the Party.
Article 9. Performance Requirements
1. A Party may not impose the following requirements in connection with the establishment, acquisition, expansion, management, conduct or operation of a covered investment or any other investment in its territory:
(a) to export a given level or percentage of a good or service;
(b) to achieve a given level or percentage, in terms of volume or value, of domestic content;
(c) to purchase, use or accord a preference to a good produced or service provided in its territory, or to purchase a good or service from a person in its territory;
(d) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment;
(e) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings;
(f) to transfer technology, a production process or other proprietary knowledge to a person in its territory; or
(g) to supply exclusively from the territory of the Party a good that the investment produces or a service it provides to a specific regional market or to the world market.
2. A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements is not inconsistent with subparagraph 1(f).
3. A Party may not condition the receipt or continued receipt of an advantage, in connection with an investment made in its territory by an investor of the other Party or a non-Party investor, on compliance with the following requirements:
(a) to achieve a given level or percentage, in terms of volume or value, of domestic content;
(b) to purchase, use or accord a preference to a good produced in its territory, or to purchase a good from a producer in its territory;
(c) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with that investment; or
(d) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings.
4.(a) Paragraph 3 does not prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment made in its territory by an investor of the other Party or of a non-Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
(b) Subparagraph 1(f) does not apply if 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 domestic competition law.
5. Paragraphs 1 and 3 only apply to requirements set out in those paragraphs.
6. The provisions of:
(a) subparagraphs 1(a), (b) and (c), and 3(a) and (b), do not apply to a qualification requirement for a good or service with respect to export promotion and foreign aid programs;
(b) subparagraphs 1(b), (c), (f) and (g), and 3(a) and (b), do not apply to procurement by a Party or a State enterprise; and
(c) subparagraphs 3(a) and (b) do not apply to a requirement imposed by an importing Party relating to the content of a good necessary to qualify for a preferential tariff or preferential quota.
Article 10. Expropriation
1. A Party may not expropriate a covered investment either directly or indirectly through measures having an effect equivalent to expropriation, except for a public purpose, in accordance with due process of law, in a non-discriminatory manner and on payment of compensation in accordance with paragraphs 2 and 3. For greater certainty, this paragraph shall be interpreted in accordance with Annex I.
2. The compensation referred to in paragraph 1 must be equivalent to the real 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 the declared tax value of tangible property, and other criteria, as appropriate, to determine the real value.
3. Compensation shall be paid without delay and shall be fully realizable and freely transferable. Compensation shall be paid in a freely convertible currency and shall include interest at a commercially reasonable rate for that currency accrued from the date of expropriation until the date of payment.
4. The affected investor shall have a right under the law of the expropriating Party to 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 a compulsory licence granted in relation to intellectual property rights, or to the revocation, limitation or creation of an intellectual property right, to the extent that the issuance, revocation, limitation or creation is consistent with the WTO Agreement.
Article 11. Transfers
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 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 under 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 another 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 a creditor;
(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; or
(e) ensuring compliance with an order or judgment in judicial or administrative proceedings.
4. A Party may not require one of its investors to transfer, or penalize one of its investors for failing to transfer, the income, earnings, profits or other amounts derived from, or attributable to, an investment 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 the provisions of paragraphs 1, 2 and 4, and without limiting the applicability of paragraph 5, a Party may prevent or limit 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 a measure 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 those transfers under the WTO Agreement and as set out in paragraph 3.