Title

Agreement between the Government of the Republic of Singapore and the Government of the Republic of Colombia on the promotion and protection of investments

Preamble

The Government of the Republic of Colombia and the Government of the Republic of Singapore, hereinafter referred to as "the parties";

Intending to create and maintain favourable conditions for investments of investors of a Party in the territory of the other party;

Desiring to intensify economic cooperation to the benefit of both parties;

Recognizing that the promotion and protection of foreign investments lead to encourage entrepreneurship and promote economic development and prosperity in both parties;

Have agreed as follows:

Body

Article 1. Definitions

For the purposes of this Agreement,

ICSID means the Centre for Settlement of Investment Disputes established by the ICSID Convention;

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;

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;

Enterprise means any entity constituted or organized under the applicable law, whether or not for profit and whether privately owned or controlled(1) by the government, including any society, Trust Company, participation, sole proprietorship, co-investment or other association and a branch of an foreign company

(1) An enterprise is "controled" by an investor if the investor has the power to name a majority of its directors or legally conduct its actions in a different way.

Investment means every asset owned or controlled directly or indirectly by an investor that has the characteristics of an investment such as the commitment of capital or other resources; the expectation of gain or profit and the assumption of risk and includes the following forms: (2)

(a) An enterprise;

(b) Actions and other forms of equity participation in an enterprise;

(c) Bonds, debentures and other debt instruments of an enterprise(3);

(d) Futures, options and other derivatives;

(e) Turnkey or construction, management, production of participation in the granting of earnings and other similar contracts;

(f) Monetary claims or any other provision of a contract associated with a business having an economic value, however, for greater certainty, does not include monetary claims arising solely on a commercial contract or the granting of credit in connection with a commercial contract for the sale of goods or services by a national or enterprise in the territory of the Party to a national or an enterprise in the territory of the other party, other than the duties or debt instruments referred to in subparagraph (c);

(g) Intellectual Property Rights and "goodwill";

(h) Licences, authorizations, permits and similar rights conferred in accordance with the applicable domestic legislation, including any concession to the exploration, cultivate, extract and exploitation of natural resources(4); and

(i) Any tangible or intangible property right in movable or immovable property and other property rights, such as leases, mortgages, liens and pledges guarantees

(2) The term "investment" does not include an order or judgment from a judicial or administrative action.

(3) For the purposes of this Agreement, "obligations and other debt instruments" described in subparagraph (c) and "monetary claims or any other provision of contract" described in subparagraph (f) refer to the assets which relate to a business activity and do not relate to the personal assets that are beyond any business activity.

(4) The fact that a type of licence, authorisation, permit or a similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristics of an investment depends of such factors as the nature and the extent of the Rights of the holder in accordance with the national legislation of the party. Between the licences, authorizations, permits or similar instruments that do not have the characteristics of an investment are those that do not create rights protected under domestic law. For greater certainty, this is without prejudice to an asset that associated with such authorisation, licence, permit or similar instrument has the characteristics of an investment.

Investment does not include public debt operations.

A change in the form in which assets have been invested or reinvested does not affect their character as an investment provided that such alteration is consistent with this Agreement.

Investor means a Party or a national or an enterprise of a Party that has made an investment in the territory of the other party;

Measure means any measure by a Party whether in the form of law, regulation, rule, procedure, administrative decision, act or in any other manner and includes measures taken 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;

Freely usable currency means a "freely usable currency" as determined by the International Monetary Fund under the Articles of the "Constitutive Agreement of the International Monetary Fund" and its amendments;

National means(5) a natural person who is a citizen or a permanent resident of a Party in accordance with its laws and regulations.

UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law, recommended by the United Nations General Assembly on 15 December 1976.

ICSID Additional Facility Rules means the Rules of the additional facility for the administration of proceedings by the secretariat of the Centre for Settlement of Investment Disputes; as amended and in force of 10 April 2006;

ICSID Arbitration Rules means procedural rules applicable to the arbitration proceedings (Rules of Arbitration), as amended and in force of 10 April 2006;

Returns means the amount produced or arising out of an investment, including profits, dividends, interests, capital gains, royalties, payments in connection with intellectual property rights and all other lawful income. The returns that are invested shall be treated as investments provided that such investment is consistent with this Agreement;

(5) For greater clarity, if the domestic legislation of a party establishes that a national or a citizen of that Party may hold dual nationality, this Agreement shall not apply to investments made by a natural person who is a national of the two parties.

Secretary-General means the Secretary-General of ICSID;

Territory means:

(a) With respect to the Republic of Singapore, the land territory, internal waters and the territorial sea, as well as any maritime area situated beyond the territorial sea which has been or might in the future be designated under its domestic law in accordance with international law as an area within which Singapore may exercise sovereign rights or jurisdiction with respect to the seabed and subsoil and natural resources.

(b) With respect to the Republic of Colombia, the mainland and island, internal waters and the territorial sea and the airspace over the maritime and other elements which it exercises sovereignty or sovereign rights or jurisdiction in accordance with its domestic law and international law, including applicable international treaties;

Article 2. Scope of Aplication

1. Each Party shall admit investments of investors of the other Party in accordance with its laws and regulations.

2. This Agreement shall apply to existing investments at the time of its Entry into Force, as well as to investments made thereafter in the territory of a party, in accordance with the legislation of the latter by investors of the other party. This Agreement shall not apply to claims or disputes that occurred before the date of Entry into Force of this Agreement or relate to events that occurred before the date of Entry into Force Agreement.

3. This agreement does not apply to:

(a) Subsidies or grants provided by a party, including loans, guarantees and insurance or to any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to the Party of investors or investments of investors of the Party;

(b) Tax matters. Such matters shall be governed by any agreement for the avoidance of double taxation among the parties, any applicable tax agreement between the parties and the national legislation of each party.

4. For greater certainty, nothing in this Agreement shall oblige a party to protect investments made with capital or assets resulting from serious crimes for which the investor has been or may be sentenced in accordance with the laws and regulations of the party.

Article 3. Investment Promotion

Each Party shall encourage investors of the other contracting party to make investments in its territory in accordance with its general economic policy.

Article 4. Minimum Standard of Treatment

1. Each Party shall accord to investments of investors of the other party a minimum standard of treatment of aliens(6) in accordance with customary international law, including fair and equitable treatment and full protection and security.

2. The concepts of "Fair and Equitable Treatment" and "full protection and security" set forth in paragraph 1 do not require additional treatment or beyond that required under the minimum standard of treatment of aliens in accordance with the International Law and do not create additional substantive rights.

(a) The obligation to provide Fair and Equitable Treatment includes the obligation to not deny justice in criminal, civil or administrative proceedings, in accordance with the principle of due process embodied in the principal legal systems of the world.

(b) The obligation to provide full protection and security requires each party to provide the level of police protection required under customary international law. For greater certainty, the standard of "full protection and security" does not imply that the receiving State investment of this obligation to provide the level of police protection to investors more favourable than that accorded to nationals of the Party where the investment has been made.

3. A determination that there has been a breach of another provision of this Agreement or another international agreement does not imply that there has been a separate breach of this article.

(6) Customary international law is the result of the general and consistent practice, that is followed by the States, as if this would be legally binding. With respect to this article, the minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.

Article 5. National Treatment

1. Each Party shall accord to investors of the other party treatment no less favourable than that accorded in like circumstances to its own investors with respect to the administration, management, operation and sale or other disposition of investments in its territory.

2. Each Party shall accord to investments of investors of the other party treatment no less favourable than that accorded to investments in like circumstances, in its territory of its own investors with respect to the administration, management, operation and sale or other disposition of investments.

3. For greater certainty, treatment accorded by a Party under paragraphs 1 and 2 means with respect to a local government, treatment no less favourable than the most favourable treatment accorded by that local government, in like circumstances, to investors and to investments of investors of the Party of which it forms a part.

Article 6. Most Favoured Nation Treatment

1. Each Party shall accord to investors of the other party treatment no less favourable than that accorded in like circumstances to investors of a country that is not a party, as regards the management, leadership, operation and sale or other disposition of investments in its territory.

2. Each Party shall accord to investments of investors of the other party treatment no less favourable than that accorded to investments in like circumstances, in its territory of investors of a country that is not a party, as regards the management, leadership, operation and sale or other disposition of investments.

3. The provisions of this Agreement shall not be construed so as to oblige one party to extend to investors of the other party and to investments of investors of the other party the benefit of any treatment, preference or privilege resulting from:

(a) Any free trade area, customs union, common market, economic union, free trade agreement or existing or future cooperation, which is or becomes a party or a party; the adoption of an agreement to the formation or extension of such a union or common market area, or agreement;

(b) Any existing bilateral investment agreement;

(c) Any international agreement on investment between two or more member States of ASEAN, existing or future, including investment agreements between ASEAN member States and any third State;

(d) Any arrangement with a third State or States in the same geographical region designed to promote, in the framework of specific projects, regional cooperation in the economic, social, employment, industrial or monetary.

4. For greater certainty, paragraphs 1 and 2 shall not be interpreted as conferring options on investors for dispute resolution procedures other than those set out in this Agreement.

Article 7. Expropriation

Footnote (7)

1. Neither party will nacionalise, expropriate or subject to measures tantamount to expropriation or nationalization (hereinafter referred to as "expropriation"), investments of investors of the other party unless such a measure is taken on a non-discriminatory basis, for a public purpose(8); in accordance with due process of law; and on payment of compensation in accordance with this article.

2. The expropriation shall be accompanied by the payment of prompt, effective and adequate compensation. The compensation shall be equivalent to the fair market value of the investment immediately before the adoption of the expropiatory measures or before the measure turns into the public sphere, whichever comes first (hereinafter referred to as "Valuation date"). Such compensation shall be paid without undue delay, be freely transferable realizable effectively and in accordance with article 9 (transfers).

3. The fair market value shall be calculated in a freely convertible currency. In calculating the fair market value, the parties agree to take into account the rate of exchange in effect on the valuation date. The compensation shall include interest at a commercially reasonable rate(9), calculated from the date of expropriation until the date of payment.

4. Notwithstanding the obligations established in paragraphs 1 and 2, any expropriatory measure relating to land shall be for a purpose and under the payment of a compensation in accordance with the applicable domestic law of the party making the expropriation(10).

(7) article 7 expropriation shall be interpreted in accordance with annex 2 (expropriation).

(8) In the case of the Republic of Colombia, the term "public purpose" used in this paragraph is a term used in international agreements and in the legal system of the Republic of Colombia, may be expressed through terms such as public purpose or social interest.

(9) In the case of the Republic of Colombia a commercially reasonable rate means the rate established on the market.

5. Any measure of compensation or expropriation may, at the request of the investor concerned, be reviewed by a judicial or other independent authority of the Party taking the measures in the manner prescribed by its laws.

6. For greater certainty, a Party may maintain or establish monopolies provided that this is done in accordance with this Agreement.

7. The provisions of this article shall not apply to the issuance of Compulsory Licenses granted in relation to Intellectual Property Rights, limitation or revocation, or creation of Intellectual Property Rights in the extent that such issuance, revocation, limitation or creation is consistent with the agreement on Intellectual Property Rights in Annex 1C to the WTO Agreement.

Article 8. Compensation for Losses

Investors of one party whose investments in the territory of the other party suffer losses owing to war or other armed conflict, a national state of emergency, revolt or riot, insurrection or other similar events shall be accorded by the latter party, as regards restitution, indemnification, compensation or other settlement, a treatment no less favourable than that granted by the investor of any other party or of a non-party or its own investors. Any resulting compensation shall be made in a freely convertible currency and freely transferable in accordance with article 9. (transfers)

Article 9. Free Transfer

1. Each Party shall allow investors of the other party the free transfer, in a freely convertible currency and without undue delay, such transfers include:

(a) Contributions to the capital, including the initial contribution;

(b) Revenues;

(c) Administration of technical assistance and other fees;

(10) The obligation in this agreement to grant most-favoured-nation treatment shall not apply to this paragraph.

(d) The proceeds from the sale of all or part of an investment or the proceeds of the total or partial liquidation of an investment;

(e) Payments arising out of payments made under a contract including a loan agreement;

(f) Earnings and remuneration of personnel engaged from abroad in connection with an investment;

(g) Payments made pursuant to article 7 (expropriation) and article 8 (compensation for losses); and

(h) Payments arising under Chapter III.

2. Each Party shall permit such transfers to be made in a freely convertible currency at the rate of exchange prevailing on the date of transfer.

3. Notwithstanding paragraph 1 and 2, a Party may prevent a transfer through the equitable and non-discriminatory and in good faith to its laws relating to:

(a) Bankruptcy or insolvency or the protection of the rights of creditors;

(b) Issuance, trade or operations of securities and futures, options or derivatives;

(c) Financial reports or records of transfers when necessary to assist law enforcement or with financial regulatory authorities.

(d) Criminal or penal offences;

(e) Ensuring compliance with orders, judgements or awards in arbitral or judicial or administrative procedures;

(f) Compulsory social security or pension savings plans.

4. Nothing in this Agreement shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of the Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Party shall not impose restrictions on capital transactions inconsistently with its obligations under this agreement regarding such transactions except under article 10 (restrictions to safeguard the balance of payments) at the request of the Fund.(12)

(11) In the case of the Republic of Colombia the rate of exchange prevailing at the time of transfer, means the rate of exchange in effect on the date of transfer.

(12) It is understood that the rights and obligations referred to in paragraph 4 includes the ability of either party from adopting or maintaining measures, in special circumstances where the movements of capital generated or threaten to cause serious difficulties for macroeconomic management, in particular for monetary and foreign exchange policies, provided that such measures are consistent with the Articles of the Agreement of the International Monetary Fund.

Article 10. Restrictions to Safeguard the Balance of Payments

1. In the event of serious difficulties in the balance of payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on payments or transfers relationship with investments. It is recognised that particular pressures on the balance of payments of a Party in the process of economic development may need the use of restrictions, to ensure inter- alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.

2. The restrictions referred to in paragraph 1:

(a) They shall be consistent with the Articles of Agreement of the International Monetary Fund;

(b) They shall avoid unnecessary damage to the economic, commercial or financial interests of the other party;

(c) Shall not exceed what is necessary to deal with the circumstances described in paragraph 1;

(d) They shall be temporary and progressively phased out as soon as conditions permit;

(e) They shall be applied on a national basis that such treatment and the other party is treated no less favourably than any non-party.

3. Any restrictions adopted or maintained under paragraph 1. or any changes thereto, shall be promptly notified to the other party.

4. The party adopting any restrictions under paragraph 1 shall commence consultations with the other party in order to review the restrictions adopted by it.

Article 11. Subrogation

Footnote (13)

1. When a Party or an agency designated by it makes a payment to any of its investors with respect to any of their claims under this Agreement pursuant to an indemnity, guarantee or contract of insurance against non-commercial risks with regard to an investment, the other party recognizes that such a Party or its designated agency is entitled by virtue of subrogation to exercise the rights and assert the claims of the investor under this Agreement. The rights and claims subrogated shall not exceed the original rights or claims of the investor

(13) For the purposes of this article, the term "agency" may include official enterprises, institutions or entities designated by the Party.

2. When a party or the agency designated by it has made a payment to an investor of that Party and has taken over rights and claims of the investor, the investor shall not give rise to assert such rights against the other party, unless authorization to act on behalf of the party or the agency designated to make the payment.

First section: settlement of disputes between an investor and a party of the other party

Article 12. Scope of Application

This section shall apply to disputes between an investor and a party of the other party concerning an alleged breach of an obligation of the party, other than article 3 (promotion of investment) under this Agreement, which causes losses or damages to the investor or its investment.

Article 13. Arbitral Proceeding

1. Nothing in this section shall be construed as preventing the contending investor seeking an administrative solution(14) to the dispute, available in the territory of the respondent party. To submit a claim to arbitration under this article the non-judicial administrative domestic remedies shall be exhausted if the legislation of the party so require. Such procedure shall in no case exceed six months from the date of its initiation by the investor and shall not prevent the investor to request consultations or submit the claim to arbitration under this section.

2. Any dispute between an investor and a party of the other party concerning an alleged breach of an obligation under this Agreement causing losses or damages to the investor or its investment, as soon as possible, be settled through consultations and negotiations, which may include the use of non-binding third-party procedures, such as mediation or conciliation to institutional or ad hoc. Such consultations shall be initiated by a written request sent by the contending investor to the respondent party. The request for consultations from the investor shall include a written notice (Notice of dispute), with a brief summary of the factual and legal basis of the investment complaint with enough information on what is claimed. The consultations and negotiations shall be carried out during a period of at least 6 months from the date on which the notification of the dispute is received by the respondent party, which may be extended by agreement between the parties.

(14) In the case of the Republic of Colombia administrative settlement refers to non-judicial administrative remedies, which means remedies against administrative acts.

3. If the dispute cannot be settled within a period of six months referred to in paragraph 2, the investor may submit its claim to arbitration under this section unless the parties agree otherwise.

4. To submit a claim to arbitration under this section, the contending investor shall notify its intention to submit the claim to arbitration (notice of intent). The notice shall specify:

(a) The name and address of the contending investor, when the notification is submitted on behalf of an enterprise, the name, address and place of incorporation of the enterprise;

(b) The provisions of this agreement that the contending investor considers that have been infringed;

(c) The information of the factual and legal issues underlying its claim; and the relief sought;

(d) The estimated value of the damages and compensation sought;

(e) One of the fora referred to in paragraph 5 that the investor combatant designated as the forum for dispute settlement; and

(f) The waive from the contending investor to its right to initiate any proceedings (excluding proceedings for interim measures of protection referred to in paragraph 1 of article 17) (Interim measures of protection and diplomatic channels), in relation to the matter under dispute before the Dispute Settlement of any other fora referred to in paragraph 5.

5. The notice of intent may only be submitted by the contending investor when it has elapsed the term of 6 months referred to in paragraph 2 of this article. If within at least 90 days from the date of the submission of the notice of intent, the investor may submit its claim:

(a) Before the competent courts of the Party in whose territory the investment was made;

(b) Under the ICSID Convention and the ICSID Arbitration Rules, when each State Party to this Agreement, the respondent party and the Party of the contending investor are parties to the ICSID Convention;

(c) Under the ICSID Additional Facility Rules, when the respondent party or the party from whom is a national the contending investor, either party to the ICSID Convention;

(d) Under the UNCITRAL Arbitration Rules;

(e) Any other arbitral institution or arbitral rules, if the parties so agree.

For greater clarity, the contending investor may submit the claim on its own behalf or on behalf of an enterprise of the respondent that is a juridical person owned or controlled by the contending investor directly or indirectly.

6. Nothing in this article shall be construed as preventing the parties involved, by mutual agreement, during the arbitration to submit the dispute to consultations or negotiations, including the use of non-binding third-party procedures such as ad hoc or institutional mediation or conciliation.

(b) The contending Investor expresses its written consent in accordance with this section.