(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges. (13)
investor of a non-Party means, with respect to a Party, an investor that attempts to make, is making, or has made an investment in the territory of that Party, that is not an investor of either Party;
investor of a Party means a Party or state enterprise thereof, or a national or an enterprise of a Party, that attempts (14) to make, is making, or has made an investment in the territory of the other Party; provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958;
non-disputing Party means the Party that is not a party to an investment dispute;
protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party’s law;
respondent means the Party that is a party to an investment dispute;
Secretary General means the Secretary General of ICSID; and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, as revised in 2010 or as subsequently agreed between the Parties.
Section D. Termination of Bilateral Investment Treaties
Article 9.30. TERMINATION OF BILATERAL INVESTMENT TREATIES
1. Subject to paragraph 2, as of the entry into force of this Agreement between the Republic of Korea and each of the Republics of Central America, the Parties hereby agree that the following Agreements for the Promotion and Protection of Investment (hereinafter referred to as the “Investment Promotion and Protection Agreements”), as well as all the rights and obligations derived from the Investment Promotion and Protection Agreements, will cease to have effect:
(a) Agreement between the Government of the Republic of Korea and the Government of the Republic of Costa Rica for the Promotion and Protection of Investments, signed in San José on August 11th, 2000 and entered into force on August 25th, 2002.
(b) Agreement between the Government of the Republic of Korea and the Government of the Republic of El Salvador for the Reciprocal Promotion and Protection of Investments, signed in Seoul, on July 6th, 1998 and entered into force on May 25th, 2002.
(c) Agreement between the Government of the Republic of Korea and the Government of the Republic of Honduras for the Promotion and Protection of Investments, signed in Tegucigalpa on October 24th, 2000 and entered into force on July 19th, 2001.
(d) Agreement between the Government of the Republic of Korea and the Government of the Republic of Nicaragua for the Promotion and Protection of Investments, signed on May 15th, 2000 and entered into force on June 22th, 2001.
(e) Agreement between the Government of the Republic of Korea and the Government of the Republic of Panama for the Promotion and Protection of Investments, signed in Seoul on July 10th, 2001 and entered into force on February 8, 2002.
2. Regarding claims made while the Investments Promotion and Protection Agreement was in force, any and all investments made pursuant to the Investment Promotion and Protection Agreement will be governed by the rules and procedures of the applicable Investment Promotion and Protection Agreement. An investor may only submit an arbitration claim pursuant to the Investment Promotion and Protection Agreement, regarding any matter arising while the Investment Promotion and Protection Agreement was in force, in accordance with the rules and procedures established in it, and provided that no more than three years have elapsed since the date of entry into force of this Agreement.
Annex 9-A. CUSTOMARY INTERNATIONAL LAW
The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Articles 9.5 and 9.6, and Annex 9-C results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 9.5, 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 9-B. PUBLIC PURPOSE
For the effects of Article 9.7.1 (a), “public purpose” shall be understood as:
(a) for Costa Rica: public utility or public interest;
(b) for El Salvador: public utility or social interest;
(c) for Honduras: public purpose or public interest;
(d) for Nicaragua: public utility or social interest; and
(e) for Panama: the concept of public purpose includes public order or social interest.
Annex 9-C. EXPROPRIATION
The Parties confirm their shared understanding that:
1. Article 9.7.1 is intended to reflect customary international law set out in Annex 9-A concerning the obligations 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 in an investment.
3. Article 9.7.1 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 9.7.1 is indirect expropriation, where an action or a 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 a series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-bycase, fact-based inquiry that considers all relevant factors relating to the investment, including:
(i) the economic impact of the government action, although the fact that an action or a 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; (15) and
(iii) the character of the government action, including its objectives and context. (16)
(b) Except in rare circumstances, such as, for example, when an action or a series of actions is extremely severe or disproportionate in light of its purpose or effect, 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. (17)
Annex 9-D. SERVICE OF DOCUMENTS ON A PARTY UNDER SECTION B
Korea
Notices and other documents in disputes under Section B shall be served on Korea by delivery to:
Office of International Legal Affairs
Ministry of Justice of the Republic of Korea
Government Complex, Gwacheon
Korea.
Costa Rica
Notices and other documents in disputes under Section B shall be served on Costa Rica by delivery to:
General Directorate of Foreign Trade (Dirección General de Comercio Exterior)
Ministry of Foreign Trade (Ministerio de Comercio Exterior)
Plaza Tempo, Escazú,
San José, Costa Rica.
El Salvador
Notices and other documents in disputes under Section B shall be served on El Salvador by delivery to:
The Trade Administration Bureau (Dirección de Administración de Tratados Comerciales)
Ministry of Economy (Ministerio de Economía)
Alameda Juan Pablo II y Calle Guadalupe,
Edificio C1- C2, Plan Maestro, Centro de Gobierno,
San Salvador, El Salvador.
Honduras
Notices and other documents in disputes under Section B shall be served on Honduras by delivery to:
General Directorate of Administration and Negotiation of Agreements (Dirección General de Administración y Negociación de Tratados)
Secretariat of State in the Office of Economic Development (Tercer Nivel de la Secretaría de Estado en el Despacho de Desarrollo Económico)
Colonia Humuya, Edificio San José, sobre el Boulevard José Cecilio del Valle,
Tegucigalpa, Honduras.
Nicaragua
Notices and other documents in disputes under Section B shall be served on Nicaragua by delivery to:
General Directorate of Foreign Trade (Dirección General de Comercio Exterior)
Ministry of Development, Industry and Trade (Ministerio de Fomento Industria y Comercio)
Km. 6, Carretera a Masaya,
Managua, Nicaragua.
Panama
Notices and other documents in disputes under Section B shall be served on Panama by delivery to:
National Directorate for the Administration of International Trade Agreements and Trade Defense (Dirección Nacional de Administración de Tratados Internacionales y Defensa Comercial)
Ministry of Commerce and Industries (Ministerio de Comercio e Industrias)
Plaza Edison, Segundo Piso,
Avenida Ricardo J. Alfaro y Vía El Paical,
Panamá, República de Panamá.
Annex 9-E. TAXATION AND EXPROPRIATION
The determination of whether a taxation measure, in a specific fact situation, constitutes an expropriation requires a case-by-case, fact-based inquiry that considers all relevant factors relating to the investment, including the factors listed in Annex 9-B and the following considerations:
(a) the imposition of taxes does not generally constitute an expropriation. The mere introduction of a new taxation measure or the imposition of a taxation measure in more than one jurisdiction in respect of an investment generally does not in and of itself constitute an expropriation;
(b) a taxation measure that is consistent with internationally recognized tax policies, principles, and practices should not constitute an expropriation. In particular, a taxation measure aimed at preventing the avoidance or evasion of taxation measures generally does not constitute an expropriation;
(c) a taxation measure that is applied on a non-discriminatory basis, as opposed to a taxation measure that is targeted at investors of a particular nationality or at specific taxpayers, is less likely to constitute an expropriation; and
(d) a taxation measure does not constitute an expropriation if it was already in force when the investment was made and information about the measure was publicly available.
Annex 9-F. TRANSFERS
1. Nothing in this Chapter, Chapter 10 (Cross-Border Trade in Services), or Chapter 11 (Financial Services) shall be construed to prevent a Party from adopting or maintaining temporary safeguard measures pursuant to the Party’s laws and regulations with regard to payments and capital movements:
(a) in the event of serious balance of payments and external financial difficulties or under threat thereof; or
(b) in cases where, in exceptional circumstances, payments and capital movements cause or threaten to cause serious difficulties for the operation of monetary or exchange rate policies in the Party concerned.
2. The measures referred to in paragraph 1 shall:
(a) be in effect for a period not to exceed one year; however, if extremely exceptional circumstances arise such that the Party seeks to extend such measures, such Party will coordinate in advance with the other Party concerning the implementation of any proposed extension; (18)
(b) not constitute a dual or multiple exchange rate practice except as prescribed by the Articles of Agreement of the International Monetary Fund;
(c) avoid unnecessary damage to the commercial, economic, or financial interests of the other Party;
(d) be temporary and phased out progressively as the situation calling for imposition of such measures improves;
(e) be applied on a national treatment basis and MFN Treatment basis;
(f) be promptly notified to the other Party;
(g) not exceed those necessary to deal with the circumstances described in paragraph 1;
(h) be consistent with the Articles of Agreement of the International Monetary Fund, as may be amended; and
(i) not restrict payments or transfers for current transactions, unless the imposition of such measures complies with the procedures stipulated in the Articles of Agreement of the International Monetary Fund.
Annex 9-G. AMICUS CURIAE
The Tribunal may receive amicus curiae briefs from interested natural persons of a Party or legal persons, established in the territory of the Parties.
1. The briefs submitted to the Tribunal shall:
(a) be dated and signed by the interested person or its representative, and include the contact information of such person;
(b) be addressed to the chair person and shall be also communicated to the disputing parties in the language or languages chosen by the disputing parties; and
(c) be concise and in no case exceed 15 typed pages, including any annexes.
2. The briefs shall be accompanied by a written declaration clearly indicating
(a) a description of the interested persons who present them, including their place of incorporation in case of legal persons and address in case of natural persons, the nature of their activities, their sources of financing and, where relevant, documentation corroborating said information;
(b) whether the interested persons have any direct or indirect relation with any of the disputing parties as well as if they have received any financial or other type of contribution from any of the disputing parties, another government, natural persons or legal persons, generally or in the preparation of the brief; and
(c) a brief summary of how the interested persons brief would assist the tribunal in the determination of a factual or legal issue related to the proceeding.
3. The Tribunal shall not consider amicus curiae briefs which do not conform to the above rules.
Chapter 10. CROSS-BORDER TRADE IN SERVICES
Article 10.1. SCOPE
1. This Chapter shall apply to measures adopted or maintained by a Party affecting cross-border trade in services by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, sale, and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of distribution, transport, or telecommunications networks and services in connection with the supply of a service;
(d) the presence in its territory of a service supplier of the other Party; and
(e) the provision of a bond or other form of financial security as a condition for the supply of a service.
2. For the purposes of this Chapter, measures adopted or maintained by a Party means measures adopted or maintained by:
(a) central or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, or local governments or authorities.
3. Notwithstanding paragraph 1, Articles 10.4, 10.7 and 10.8 shall also apply to measures adopted or maintained by a Party affecting the supply of a service in its territory by a covered investment. (1)
4. This Chapter shall not apply to:
(a) financial services as defined in Article 11.20 (Definitions), except as provided in paragraph 3;
(b) government procurement;
(c) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance; or
(d) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system (CRS) services.
5. This Chapter shall not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, and shall not confer any right on that national with respect to that access or employment.
6. This Chapter shall not apply to services supplied in the exercise of governmental authority. A service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.
Article 10.2. NATIONAL TREATMENT
Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own service suppliers.
Article 10.3. MOST-FAVORED-NATION TREATMENT
Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to service suppliers of a non-Party.
Article 10.4. MOST-FAVORED-NATION TREATMENT
Neither Party may adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
(a) impose limitations on:
(i) the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers, or the requirement of an economic needs test;
(ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) the total number of service operations or the total quantity of services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (2)
or
(iv) the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test; or
(b) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.