Title
Agreement for the Promotion and Reciprocal Protection of Investments between Canada and the Republic of Guinea
Preamble
Canada and the Republic of Guinea (the "Parties"),
Recognizing that the promotion and the protection of investments of investors of one Party in the territory of the other Party will be 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:
" Arbitral Tribunal " means an arbitral tribunal established under Article 24 (Submission of a Claim to Arbitration) or Article 28 (Consolidation) of this Agreement;
" competition authority " means:
a. For Canada, the Commissioner of Competition or a successor to be notified to the Republic of Guinea by diplomatic note; and
b. For the Republic of Guinea, the Minister of Commerce responsible for ensuring and controlling the implementation of competition law or any successor of such authority 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, with respect to a Party, an investment in its territory of an investor of the other Party existing on the date of entry into force of this Agreement, as well as an investment 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 do business and 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 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 laws " means:
a. For Canada, information within the scope of Section 29 of the Competition Act, R.S.C. 1985, c. 34, or a successor provision; and
b. For the Republic of Guinea, protected information provided pursuant to the Loi sur la concurrence et la liberte desprix, 28 December 1994 (L94/040/CTRN), or a 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. 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 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 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. 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. 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 in connection with a commercial transaction, such as trade financing; or
l. Any other claim to money,
That does 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, or a national or an enterprise of a Party, that seeks to make, is making or has made an investment;
" measure " includes a law, regulation, procedure, requirement or practice;
" national " means:
a. For Canada, a natural person who is a citizen or permanent resident of Canada; and
b. For the Republic of Guinea, a natural person who is a citizen or a permanent resident of the Republic of Guinea;
Except that:
3. a natural person who is a dual citizen of Canada and the Republic of Guinea shall be deemed to be exclusively a national of the Party of his or her dominant and effective nationality; and
4. 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;
" national government " means:
a. for Canada, the federal government; and
b. for the Republic of Guinea, the government of the Republic of Guinea;
" 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 with respect to Canada, a provincial, territorial or local government;
" territory " means:
1. the land territory, internal waters and territorial sea, including the air space above these areas, of the Party;
2. (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
3. (the continental shelf of the Party, as determined by its domestic law, consistent with Part VI of UNCLOS;
" 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 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 territory by investors of the other Party and shall admit those investments in accordance with this Agreement.
Article 4. National Treatment
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 establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
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 establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a subnational government, 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 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 territory.
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 territory.
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.
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 17(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 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 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 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. A Party may not impose or enforce the following requirements, or enforce a 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 a good or service;
b. to achieve a given level or percentage 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 providesby 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 in its territory of an investor of a Party or of a non-Party, on compliance with the following requirements:
a. to achieve a given level or percentage 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 in its territory of an investor of a Party or of a non-Party, on compliance with a requirement to locate production, providea 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 do not apply to a requirement other than the 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 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 compensation in accordance with paragraphs 2 and 3. For greater certainty, this paragraph shall be interpreted in accordance with Annex B.10.
2. The 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 the 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 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 toa 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. a criminal or penal offence;
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.
f. 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.
g. 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).
h. 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.
i. 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.
Article 12. Transparency
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a 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:
a. publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
b. provide interested persons and the other Party a reasonable opportunity to comment on that proposed measure.
c. Upon request by a Party, the other Party shall provide information on a measure that may have an impact on a covered investment.
Article 13. Subrogation
1. If a Party or an agency of a Party makes a payment to one of its investors under a guarantee or a contract of insurance it has entered into in respect of an investment, the other Party shall recognize the validity of the subrogation in favour of the first-mentioned Party or agency to a right or title held by the investor.