Title
AGREEMENT BETWEEN JAPAN AND THE REPUBLIC OF UZBEKISTAN FOR THE LIBERALIZATION, PROMOTION AND PROTECTION OF INVESTMENT
Preamble
Japan and the Republic of Uzbekistan (hereinafter referred to as "the Contracting Parties"),
Desiring to further promote investment in order to strengthen the economic relationship between the two countries;
Intending to further create stable, equitable, favorable and transparent conditions for greater investment by investors of one country in the Area of the other country;
Recognizing the growing importance of the progressive liberalization of investment for stimulating initiative of investors and for promoting prosperity in both countries;
Recognizing that these objectives can be achieved without relaxing health, safety and environmental measures of general application;
Recognizing the importance of the cooperative relationship between labor and management in promoting investment between both countries;
Wishing that this Agreement will contribute to the strengthening of international cooperation with respect to the development of international rules on foreign investment; and
Believing that this Agreement marks the beginning of new economic partnership between the two countries;
Have agreed as follows:
Body
Article 1.
For the purposes of this Agreement,
(1) The term "investments" means every kind of asset owned or controlled, directly or indirectly, by an investor of a Contracting Party, including:
(a) An enterprise and a branch of an enterprise;
(b) Shares, stocks or other forms of equity participation in an enterprise, including rights derived therefrom;
(c) Bonds, debentures, loans and other forms of debt, including rights derived therefrom;
(d) Rights under contracts, including turnkey, construction, management, production or revenue-sharing contracts which are associated with investment;
(e) Claims to money and to any performance under contract having a financial value which are associated with investment;
(f) Intellectual property rights, including copy rights and related rights, patent rights and rights relating to utility models, trademarks, industrial designs, layout-designs of integrated circuits, new varieties of plants, trade names, indications of source or geographical indications and undisclosed information;
(g) Rights conferred pursuant to laws and regulations or contracts such as concessions, licenses, authorizations, and permits, including those for the exploration and exploitation of natural resources; and
(h) Any other tangible and intangible, movable and immovable property, and any related property rights, such as leases, mortgages, liens and pledges.
Investments include revenues. A change in the form in which assets are invested does not affect their character as investments.
(2) The term "revenues" means the amounts yielded by investments, in particular, profit, interest, capital gains, dividends, royalties and fees.
(3) The term "investor of a Contracting Party" means:
(a) A natural person having the nationality of that Contracting Party in accordance with its laws and regulations; or
(b) An enterprise of that Contracting Party, that seeks to make, is making, or has made investments in the Area of the other Contracting Party.
(4) The term "an enterprise of a Contracting Party" means any legal person or any other entity duly constituted or organized under the laws and regulations of that Contracting Party, whether or not for profit, and whether private or government owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association, organization or company.
(5) An enterprise is:
(a) "owned" by an investor if more than fifty (50) percent of the equity interest in it is owned by the investor; and
(b) "controlled" by an investor if the investor has the power to name a majority of its directors or otherwise to legally direct its actions.
(6) The term "Area" means with respect to a Contracting Party (a) the territory of that Contracting Party; and (b) the exclusive economic zone and the continental shelf with respect to which that Contracting Party exercises sovereign rights or jurisdiction in accordance with international law.
(7) The term "the WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh, April 15, 1994, as may be amended.
Article 2.
1. Each Contracting Party shall in its Area accord to investors of the other Contracting Party and to their investments treatment no less favorable than the treatment it accords in like circumstances to its own investors and their investments with respect to the establishment, acquisition, expansion, operation, management, maintenance, use, enjoyment, and sale or other disposal of investments (hereinafter referred to as "investment activities").
2. Notwithstanding paragraph 1 above, each Contracting Party may prescribe special formalities in connection with investment activities of investors of the other Contracting Party in its Area, provided that such special formalities do not impair the substance of the rights of such investors under this Agreement.
3. Each Contracting Party shall in its Area accord to investors of the other Contracting Party and to their investments treatment no less favorable than the treatment it accords in like circumstances to investors of a non-Contracting Party and to their investments with respect to investment activities.
4. The provisions of paragraph 1 above do not prevent either Contracting Party from differentiating between treatments accorded in accordance with its laws and regulations relating to taxes and custom duties.
5. The provisions of paragraph 3 above shall not be construed so as to oblige a Contracting Party to extend to investors of the other Contracting Party special tax advantages accorded to investors of a non-Contracting Party, on the basis of reciprocity with the non-Contracting Party or by virtue of any agreement relating to taxes and custom duties in force between the former Contracting Party and the non-Contracting Party.
Article 3.
1. Each Contracting Party shall accord to investments of the other Contracting Party fair and equitable treatment as well as full protection and security.
2. Neither Contracting Party shall, within its Area, in any way impair the operation, management, maintenance, use, enjoyment and sale or other disposal of investments of investors of the other Contracting Party by arbitrary measures.
3. Each Contracting Party shall observe any obligation it may have entered into with regard to investments and investment activities of investors of the other Contracting Party.
Article 4.
Each Contracting Party shall in its Area accord to investors of the other Contracting Party treatment no less favorable than the treatment which it accords in like circumstances to its own investors or investors of a non-Contracting Party with respect to access to the courts of justice and administrative tribunals and agencies in all degrees of jurisdiction, both in pursuit and in defense of such investors' rights.
Article 5.
1. Neither Contracting Party shall impose or enforce, as a condition for investment activities in its Area of an investor of the other Contracting Party, any of the following requirements:
(a) To export a given level or percentage of goods or services;
(b) To achieve a given level or percentage of domestic content;
(c) To purchase, use or accord a preference to goods produced or services provided in its Area, or to purchase goods or services from natural or legal persons or any other entity in its Area;
(d) To relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with investments of that investor;
(e) To restrict sales of goods or services in its Area that investments of that investor produce or provide by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
(f) To restrict the exportation or sale for export;
(g) To appoint, as executives, managers or members of boards of directors, individuals of any particular nationality;
(h) To transfer technology, a production process or other proprietary knowledge to a natural or legal person or any other entity in its Area, except when the requirement (i) is imposed or enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of competition laws; or (ii) concerns the transfer of intellectual property rights which is undertaken in a manner not inconsistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreement (hereinafter referred to as "the TRIPS Agreement");
(i) To locate the headquarters of that investor for a specific region or the world market in its Area;
(j) To hire a given number or percentage of its nationals;
(k) To achieve a given level or value of research and development in its Area; or
(l) To supply one or more of the goods that the investor produces or the services that the investor provides to a specific region or the world market, exclusively from the Area of the former Contracting Party.
2. The provisions of paragraph 1 above do not preclude Japan from conditioning the receipt of an advantage, in connection with investment activities in its Area of an investor of the Republic of Uzbekistan, on compliance with any of the requirements set forth in paragraph 1 (g) through (l) above.
3. The provisions of paragraph 1 above do not preclude the Republic of Uzbekistan from conditioning the receipt of an advantage, in connection with investment activities in its Area of an investor of Japan, on compliance with any of the requirements set forth in paragraph 1 above.
Article 6.
1. Paragraphs 1 and 3 of Article 2 and Article 5 shall not apply to:
(a) Any existing non-conforming measure that is maintained by the following, as set out in its Schedule in Annex I:
(i) The central government of a Contracting Party; or
(ii) A prefecture of Japan or a province of the Republic of Uzbekistan;
(b) Any existing non-conforming measure that is maintained by a local government other than a prefecture and a province referred to in subparagraph (a)(ii);
(c) The continuation or prompt renewal of any non-conforming measure referred to in subparagraphs (a) and (b); or
(d) An amendment or modification to any non-conforming measure referred to in subparagraphs (a) and (b), provided that the amendment or modification does not decrease the conformity of the measure as it existed immediately before the amendment or modification, with paragraphs 1 and 3 of Article 2 and Article 5.
2. Paragraphs 1 and 3 of Article 2 and Article 5 shall not apply to any measure that a Contracting Party adopts or maintains with respect to sectors, sub-sectors or activities set out in its Schedule in Annex II.
3. Neither Contracting Party shall, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule in Annex II, require an investor of the other Contracting Party, by reason of its nationality, to sell or otherwise dispose of investments that exists at the time the measure becomes effective.
4. In cases where a Contracting Party makes an amendment or a modification to any existing non-conforming measure set out in its Schedule in Annex I or where a Contracting Party adopts any new or more restrictive measure with respect to sectors, sub-sectors or activities set out in its Schedule in Annex II after the entry into force of this Agreement, the Contracting Party shall, prior to the implementation of the amendment or modification or the new or more restrictive measure, or in exceptional circumstances, as soon as possible thereafter:
(a) Notify the other Contracting Party of detailed information on such amendment, modification or measure; and
(b) Hold, upon request by the other Contracting Party, consultations in good-faith with that other Contracting Party with a view to achieving mutual satisfaction.
5. Each Contracting Party shall endeavor, where appropriate, to reduce or eliminate the reservations specified in its Schedules in Annexes I and II respectively.
6. Paragraphs 1 and 3 of Article 2 and Article 5 shall not apply to any measure covered by the exceptions to, or derogations from, obligations under Articles 3 and 4 of the TRIPS Agreement, as specifically provided in Articles 3 through 5 of the TRIPS Agreement.
7. Paragraphs 1 and 3 of Article 2 and Article 5 shall not apply to any measure that a Contracting Party adopts or maintains with respect to government procurement.
Article 7.
1. Each Contracting Party shall promptly publish, or otherwise make publicly available, its laws, regulations, administrative procedures, administrative rulings of general application and international agreements as well as, in accordance with its laws and regulations, judicial decisions of general application, which pertain to or affect investment activities.
2. Each Contracting Party shall, upon request by the other Contracting Party, promptly respond to specific questions and provide that other Contracting Party with information on matters set out in paragraph 1 above, including that relating to contract each Contracting Party enters into with regard to investment.
3. The provisions of paragraphs 1 and 2 above shall not be construed so as to oblige either Contracting Party to disclose confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice privacy or legitimate commercial interests.
Article 8.
The Government of each Contracting Party shall, in accordance with the laws and regulations of the Contracting Party, endeavor to provide, except in cases of emergency or of purely minor nature, a reasonable opportunity for comments by the public before the adoption, amendment or repeal of regulations of general application that affect any matter covered by this Agreement.
Article 9.
Each Contracting Party shall ensure that measures and efforts are undertaken to prevent and combat corruption regarding matters covered by this Agreement in accordance with its laws and regulations.
Article 10.
Each Contracting Party shall, in accordance with its laws and regulations, give sympathetic consideration to applications for the entry, sojourn and residence of a natural person having the nationality of the other Contracting Party who wish to enter the territory of the former Contracting Party and remain therein for the purpose of investment activities.
Article 11.
1. Neither Contracting Party shall expropriate or nationalize investments in its Area of investors of the other Contracting Party or take any measure equivalent to expropriation or nationalization (hereinafter referred to as "expropriation") except:
(a) For a public purpose;
(b) In a non-discriminatory manner;
(c) Upon payment of prompt, adequate and effective compensation pursuant to paragraphs 2, 3, and 4; and
(d) In accordance with due process of law and Article 3.
2. Compensation shall be equivalent to the fair market value of the expropriated investments at the time when the expropriation was publicly announced or when the expropriation occurred, whichever is earlier. The fair market value shall not reflect any change in value occurring because the expropriation had become publicly known earlier.
3. The compensation shall be paid without delay and shall include interest at a commercially reasonable rate, taking into account the length of time until the time of payment. It shall be effectively realizable and freely transferable and shall be freely convertible into the currency of the Contracting Party of the investors concerned, and into freely usable currencies as defined in the Articles of Agreement of the International Monetary Fund, as may be amended, at the market exchange rate prevailing on the date of expropriation.
4. Without prejudice to the provisions of Article 16, the investors affected by expropriation shall have a right of access, in accordance with the procedures established by the laws and regulations of the Contracting Party making the expropriation, to its courts of justice or administrative tribunals or agencies to seek a prompt review of the investors' case and the amount of compensation in accordance with the principles set out in this Article.
Article 12.
1. Each Contracting Party shall accord to investors of the other Contracting Party that have suffered loss or damage relating to their investments in the Area of the former Contracting Party due to armed conflict or a state of emergency such as revolution, insurrection, civil disturbance or any other similar event in the Area of that former Contracting Party, treatment, as regards restitution, indemnification, compensation or any other settlement, that is no less favorable than that which it accords to its own investors or to investors of a non-Contracting Party, whichever is more favorable to the investors of the other Contracting Party.
2. Any payment as a means of settlement referred to in paragraph 1 above shall be effectively realizable, freely transferable and freely convertible at the market exchange rate prevailing at the time of payment into the currency of the Contracting Party of the investors concerned and freely usable currencies.
Article 13.
If a Contracting Party or its designated agency makes a payment to any investor of that Contracting Party under an indemnity, guarantee or insurance contract, made in accordance with its laws and regulations, pertaining to investments of such investor in the Area of the other Contracting Party, the latter Contracting Party shall recognize the assignment to the former Contracting Party or its designated agency of any right or claim of such investor on account of which such payment is made and shall recognize the right of the former Contracting Party or its designated agency to exercise by virtue of subrogation any such right or claim to the same extent as the original right or claim of the investor. As regards payment to be made to that former Contracting Party or its designated agency by virtue of such assignment of right or claim and the assignment of such payment, the provisions of Articles 11, 12 and 14 shall apply mutatis mutandis.
Article 14.
1. Each Contracting Party shall ensure that all transfers relating to investments in its Area of an investor of the other Contracting Party may be freely made into and out of its Area without delay. Such transfers shall include, in particular, though not exclusively:
(a) The initial capital and additional amounts to maintain or increase investments;
(b) Revenues;
(c) Payments made under a contract including loan payments in connection with investments;
(d) Proceeds of the total or partial sale or liquidation of investments;
(e) Earnings and remuneration of personnel engaged from the other Contracting Party who work in connection with investments in the Area of the former Contracting Party;
(f) Payments made in accordance with Articles 11 and 12; and
(g) Payments arising out of the settlement of a dispute under Article 16.
2. Each Contracting Party shall further ensure that such transfers may be made without delay in freely usable currencies at the market rate of exchange prevailing on the date of the transfer.
3. Notwithstanding paragraphs 1 and 2 above, a Contracting Party may delay or prevent a transfer through the equitable, non-discriminatory and good-faith application of its laws and regulations relating to:
(a) Bankruptcy, insolvency or the protection of the rights of creditors;
(b) Issuing, trading or dealing in securities;
(c) Criminal or penal offenses; or
(d) Ensuring compliance with orders or judgments in adjudicatory proceedings.
Article 15.
1. Each Contracting Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other Contracting Party may make with respect to any matter affecting the operation of this Agreement.
2. Any dispute between the Contracting Parties as to the interpretation or application of the provisions of this Agreement shall, as far as possible, be settled through diplomatic channels by means of negotiations.
3. If the dispute referred to in paragraph 2 above is not satisfactorily adjusted by diplomacy, it shall be referred for decision to an arbitration board. Such arbitration board shall be composed of three arbitrators, with each Contracting Party appointing one arbitrator within a period of thirty days from the date of receipt by either Contracting Party from the other Contracting Party of a note requesting arbitration of the dispute, and the third arbitrator to be agreed upon as President by the two arbitrators so chosen within a further period of thirty days, provided that the third arbitrator shall not be a national of either Contracting Party.
4. If the third arbitrator is not agreed upon between the arbitrators appointed by each Contracting Party within the further period of thirty days referred to in the provisions of paragraph 3 above, the Contracting Parties shall request the President of the International Court of Justice to appoint the third arbitrator who shall not be a national of either Contracting Party.
5. The arbitration board shall within a reasonable period of time reach its decisions by a majority of votes. Such decisions shall be final and binding.
6. Each Contracting Party shall bear the cost of its own arbitrator and its representation in the arbitral proceedings. The cost of the President of the arbitration board in discharging his or her duties and the remaining costs of the arbitration board shall be borne equally by the Contracting Parties.
Article 16.
1. For the purposes of this Article, an investment dispute is a dispute between a Contracting Party and an investor of the other Contracting Party that has incurred loss or damage by reason of, or arising out of, an alleged breach of any right conferred by this Agreement with respect to the investor of that other Contracting Party or its investments in the Area of the former Contracting Party.
2. Any investment dispute shall, as far as possible, be settled amicably through consultation between the parties to the investment dispute.
3. If the investment dispute cannot be settled through such consultations within three months from the date on which the investor requested the consultation in writing, the investment dispute shall at the request of the investor concerned be submitted to either:
(1) Conciliation or arbitration in accordance with the provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington D.C. on March 18, 1965 so long as the Convention is in force between the Contracting Parties, or conciliation or arbitration under the Additional Facility Rules of the International Center for Settlement of Investment Disputes so long as the Convention is not in force between the Contracting Parties; or
(2) Arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law, adopted by the United Nations Commission on International Trade Law on April 28, 1976.
4. A Contracting Party which is a party to an investment dispute hereby consents to the submission of the investment dispute to international conciliation or arbitration referred to in paragraph 3 above in accordance with the provisions of this Article.
5. The decision of arbitration shall be final and binding upon both parties to the investment dispute. This decision shall be executed by the laws and regulations concerning the execution of decision in force in the country in whose Area such execution is sought.
6. So long as an investor of either Contracting Party is seeking judicial or administrative settlement in the Area of the other Contracting Party or arbitral decision in accordance with any applicable previously agreed dispute-settlement procedures, concerning an investment dispute, or in the event that a final judicial settlement on such dispute has been made, such dispute shall not be submitted to arbitration referred to in the provisions of this Article.
7. Nothing in this Article shall be construed so as to prevent an investor from seeking judicial or administrative settlement in the Area of the Contracting Party which is a party to an investment dispute.
Article 17.
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Contracting Party, or a disguised restriction on investments of investors of the other Contracting Party in the Area of a Contracting Party, nothing in this Agreement other than Article 12 shall be construed to prevent a Contracting Party from adopting or enforcing measures:
(a) Necessary to protect human, animal or plant life or health;
(b) Necessary to protect public morals or to maintain public order;
Note: The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
(c) Necessary to secure compliance with the laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) The prevention of deceptive and fraudulent practices or to deal with the effects of a default on contract;
(ii) The protection of the privacy of the individual in relation to the processing and dissemination of personal data and the protection of confidentiality of personal records and accounts; or
(iii) Safety;
(d) Which it considers necessary for protection of its essential security interests:
(i) Taken in time of war, or armed conflict, or other emergency in that Contracting Party or in international relations; or
(ii) Relating to the implementation of national policies or international agreements respecting the non-proliferation of weapons;
(e) In pursuance of its obligations under United Nations Charter for the maintenance of international peace and security; or
(f) Imposed for the protection of national treasures of artistic, historic or archaeological value.
2. In cases where a Contracting Party takes any measure, pursuant to paragraph 1 above, that does not conform with the obligations of the provisions of this Agreement other than the provisions of Article 12, that Contracting Party shall, prior to the entry into force of the measure or as soon thereafter as possible, notify the other Contracting Party of the following elements of the measure: