Title

Treaty between the Federal Republic of Germany and the Republic of Ghana concerning the Encouragement and Reciprocal Protection of Investments

Preamble

The Federal Republic of Germany and the Republic of Ghana

DESIRING to intensify economic co-operation between both States,

INTENDING to create favourable conditions for investments by nationals and companies of either State in the territory of the other State,

RECOGNIZING that the encouragement and contractual protection of such investments will be conducive to stimulation of private business initiative and to increase of prosperity of both nations,

HAVE AGREED AS FOLLOWS:

Body

Article 1.

Each Contracting Party shall in its territory promote as far as possible the investment of capital by nationals or companies of the other Contracting Party and admit such investments in accordance with its legislation. It shall in any case accord such investments fair and equitable treatment.

Article 2.

(1) Neither Contracting Party shall in its territory subject investments owned or Controlled by nationals or companies of the other Contracting Party, to treatment less favourable than it accords to investments of its own nationals or companies or to investments of nationals or companies of any third State.

(2) Neither Contracting Party shall in its territory subject nationals or companies of the other Contracting Party, as regards their activity in connexion with investments, to treatment less favourable than it accords to its own nationals or companies or to nationals or companies of any third State.

Article 3.

(1) Investments by nationals or companies of either Contracting Party shall enjoy full protection as well as security in the territory of the other Contracting Party..

(2) Investments by nationals or companies of either Contracting Party shall not be exproprialed in the territory of the other Contracting Party except for the public benefit and against compensation. Such compensation shall represent the equivalent of the investment expropriated; it shall be actually realizable, be made without delay, and shall be freely transterable. Provision shall have been made in an appropriate manner at or prior to the time of expropriation for the determination and the giving of such compensation. The legality of any such expropriation and the amount of compensation shall be subject to review by due process of law.

(3) Nationals or companies of either Contracting Party whose investments suffer losses in the territory of the other Contracting Party owing to war or other armed conflict, revolution, a state of national emergency, or revolt, shall be accorded treatment no less favourable by such other Contracting Party than that Party accords to its own nationals or companies, as regards restitution, indemnification, compensation or other valuable consideration. Such payments shall be freely transferable.

(4) Nationals or companies of either Contracting Party shall enjoy most-favoured nation treatment in the territory of the other Contracting Party in respect of the matters provided for in the present Article

Article 4.

Either Contracting Party shall in respect of investments guarantee to nationals or companies of the other Contracting Party the free transfer of the capital, of the returns from it and, in the event of liquidation, of the proceeds from such liquidation.

Article 5.

If either Contracting Party makes payment to any of its nationals or companies under a guarantee it has assumed in respect of an investment in the territory of the other Contracting Party, the latter Contracting Party shall, without prejudice to the rights of the former Contracting Party under Article 11, recognize the assignment, whether under a law or pursuant to a legal transaction, Of any right or claim from such national or company to the former Contracting Party as well as the subrogation of that Contracting Party to any such right or claim, which that Contracting Party shall be entitled to assert to the same extent as its predecessor in title. As regards the transfer of payments to be made to the Contracting Party concerned by virtue of such assignment, paragraphs 2 and 3 of Article 3 as well as Article 4 shall apply mutatis mutandis.

Article 6.

(1) To the extent that those concerned have not made another arrangement admitted by the appropriate agencies of the Contracting Party in whose territory the in vestment is situate, transfers under paragraph 2 or 3 of Article 3, under Article 4 or Article 5 shall be made without delay and at the rate of exchange effective for current transactions on the day the transfer is made.

(2) The rate of exchange effective for current transactions shall be based on the par value agreed with the International Monetary Fund and shall lie within the margins above or below parity admitted under section 3 of Article IV of the Articles of Agreement of the International Monetary Fund.

(3) If at the date of transfer no rate of exchange within the meaning of paragraph 2 above exists in respect of either Contracting Party, the official rate fixed by such Contracting Party for its currency in relation to the US Dollar or to another freely convertible currency or to gold shall be applied. If no such rate has been fixed, the appropriate agencies of the Contracting Party in whose territory the investment is situate shall admit a rate of exchange that is fair and equitable.

Article 7.

(1) If the legislation of either Contracting Party or international obligations existing at present or established hereafter between the Contracting Parties in addition to the present Treaty, contain a regulation, whether general or specific, entitling investments by nationals or companies of the other Contracting Party to a treatment more favourable than is provided for by the present Treaty, such regulation shall to the extent that it is more favourable prevail over the present Treaty.

(2) Either Contracting Party shall observe any other obligation it may have entered into with regard to investments in its territory by nationals or companies of the other Contracting Party.

Article 8.

(1) The term "investment" shall comprise every kind of asset, and more particularly, though not exclusively,

(a) Movable and immovable property as well as any other rights in rem, such as mortgages, liens, pledges. usufructs and similar rights;

(b) Shares of companies and other kinds of interest,

(c) Claims to money or to any performance having an economic value;

(d) Copyrights, industrial property rights, technical processes, trade-names, and good will;

(e) Business concessions under public law, including concessions to search for, extract or exploit natural resources.

Any alteration of the form in which assets are invested shall not affect their classification as investment.

(2) The term "returns" shall mean the amounts yielded by an investment for a definite period as profit or interest.

(3) The term "nationals" shall mean

(a) In respect of the Republic of Ghana:

All citizens of Ghana;

(b) In respect of the Federal Republic ol Germany:

Germans within the meaning of he Basic Law for the Federal Republic of Germany.

(4) The term "companies" shall mean

(a) In respect of the Republic of Ghana:

Any juridical person as well as unincorporated associations with or without legal personality, having its seat in the territory of the Republic of Ghana;

(b) In respect of the Federal Republic of Germany:

Any juridical person as well as any commercial or other company or association with or without legal personality, having its seat in the territory of the Federal Republic of Germany and lawfully existing consistent with legal provisions, irrespective of whether the liability of its partners, associates or members is limited or unlimited and whether or not its activities are directed at profit.

Article 9.

The present Treaty shall apply to investments lawfully made alter the 6th day of March 1957, by nationals or companies of either Contracting Party in the territory of the other Contracting Party.

Article 10.

Either Contratting Party shall grant national treatment within the framework of the present Treaty in consideration of the fact that national treatment in like matters is also granted by the other Contracting Party.

Article 11.

(1) Disputes concerning the interpretation or application of the present Treaty should, if possible, be settled by the Governments of the two Contracting Parties.

(2) If a dispute cannot thus be settled, it shall upon the request of either Contracting Party be submitted to an arbitral tribunal.

(3) Such arbitral tribunal shall be constituted for each individual case as follows: Each Contracting Party shall appoint one member, and these two members shall agree upon a national of a third State as their chairman to be appointed by the Governments of the two Contracting Parties. Such members shall be appointed within two months, and such chairman within three months, from the date on which either Contracting Party has informed the other Contracting Party that it wants to submit the dispute to an arbitral tribunal.

(4) If the periods specified in paragraph 3 above have not been observed, either Contracting Party may, in the absence of any other relevant agreement, invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Contracting Party or if he is otherwise prevented from discharging the said function, the Vice-President should make the necessary appointments. It the Vice-President is a national of either Contracting Party or it he, too, is prevented from discharging the said function, the Member of the international Court of Justice next in seniority who is not a national ol either Contracting Party should make the necessary appointments.

(5) The arbitral tribunal shall reach its decisions by a majority of votes. Such decisions shall be binding Each Contracting Party shall bear the cost of its own member and of its counsel in the arbitral proceedings; the cost of the chairman and the remaining costs shall be borne in equal parts by both Contracting Parties. The arbitral tribunal may make a different regulation concerning costs. In all other respects, the arbitral tribunal shall determine its own procedure.

Article 12.

The provisions of the present Treaty shall remain in force also in the event of a conflict arising between the Contracting Parties, without prejudice to the right of taking such temporary measures as are permitted under the general rules of international law. Measures of this kind shall be repealed not later than on the date of the actual termination of the conflict, irrespective of whether or not diplomatic relations have been re-established.

Article 13.

With the exception of the provisions in paragraph 7 of the Protocol, referring to air transport, the present Treaty shall also apply to Land Berlin, provided that the Government of the Federal Republic of Germany has not made a contrary declaration to the Government of the Republic of Ghana within three months from the entry into force of the present Treaty.

Article 14.

(1) The present Treaty shall be ratitied; the instruments of ratification shall be exchanged as soon as possible in Accra.

(2) The present Treaty shall enter into force one month after the date of exchange of the instruments of ratification. It shall remain in force for a period of ten years and shall continue in force thereafter for an unlimited period unless notice of termination is given in writing by either Contracting Party one year before its expiry. After the expiry of the period of ten years the present Treaty may be terminated at any time by either Contracting Party giving one year's notice.

(3) In respect of investments made prior to the date of termination of the present Treaty, the provisions of Articles 1 to 13 shall continue to be effective for a further period of fifteen years from the date of termination of the present Treaty.

Conclusion

Done at Bonn on the 19th day of May 1967 in two originals, one each in English and German languages, both texts being equally authentic.

For the Federal Republic of Germany

Klaus Schütz

For the Republic of Ghana

Albert Adomakoh

Attachments

Protocol

On signing the the Treaty concerning the Encouragement and Reciprocal Protection of Investments, concluded between the Republic of Ghana and the Federal Republic of Germany, the undersigned plenipotentiaiies have, in addition, agreed on the following provisions which should be regarded as an integral part of the said Treaty:

(1). Ad Article 1

Investments made in accordance with the laws and regulations of either Contracting Party within the area of application of that Party's legal system by nationals or companies of the other Contracting Party, shall enjoy the full protection of the present Treaty. To the extent that an admission procedure is required for making an investment, such investment shall enjoy this protection as from the date of the granting of the admission.

(2). Ad Article 2

(a) The following shall more particularly, though not exclusively, be deemed "activity" within the meaning of paragraph 2 of Article 2: the management, maintenance, use, and enjoyment of an investment. The following shall, in particular, be deemed "treatment less favourable" within the meaning of paragraph 2 of Article 2: restricting the purchase of raw or auxiliary materials, of power or fuel or of means of production or operation of any kind, impeding the marketing of products inside or outside the country, as well as any other measures having similar effects. Measures that have to be taken for reasons of public security and order, public health or morality shall not be deemed "treatment less favourable" within the meaning of Article 2.

(b) Either Contracting Party may, in admitting an investment by nationals or companies of the other Contracting Party, agree with them on specific stipulations deviating from the treatment provided for in Article 2. Such stipulations shall only be effective if the deviating measures have been described in detail and laid down individually in the document of admission or, if no such document of admission is required, in a special written agreement made with the nationals or companies of the other Contracting Party prior to effecting the investment. If specific stipulations of that nature have been agreed the provisions of Article 2 shall, to that extent, not be applicable.

(c) Article 2 shall not apply to entry, sojourn, and activity as an employee

(3). Ad Article 3

The provisions of paragraph 2 of Article 3 shall also apply to the transfer of an investment to public ownership, to the subjection of an investment to public control, or to similar interventions by public authorities. Expropriation shall mean the taking away or restricting of any property right which in itself or in conjunction with other rights constitutes an investment.

(4). Ad Article 4

(a) In deviation from Article 4 either Contracting Party may reserve the right to introduce restrictions on the free transfer of returns and liquidation proceeds, to the extent required by its balance of payments situation. To this end, either Contracting Party may subject nationals or companies of the other Contracting Party to restrictions on free transfer in the document of admission or, if no such document is required, in a special written agreement before the investment is made. Either Contracting Party shall apply such restrictions only to the extent required in specific cases by its balance of payments situation. In any event the following minimum transfer shall, however, be guaranteed:

(aa) Transfer of returns to the extent of annually twelve per cent of the value of the invest ment as at the date of the transfer;

(bb) Transfer, in the case of liquidation, of annually twenty per cent of the liquidation proceeds.

Furthermore, in the event that nationals or companies of the other Contracting Party make no transfer or no full transfer of these amounts within one year the transfer of the balances shall be guaranteed to be permissible in the following year.

(b) "Liquidation" within the meaning of Article 4 shall be deemed to include any disposal effected for the purpose of completely or partly giving up the investment concerned

(5). Ad Article 6

A transfer shall be deemed to have been made "without delay" within the meaning of paragraph 1 of Article 6 if made within such period as is normally required for the completion of transfer formalities. The said period shall commence on the day on which the relevant request has been submitted and may on no account exceed two months.

(6). Ad Article 8

(a) Returns from an investment, as well as returns from re-invested returns, shall enjoy the same protection as the original investment.

(b) Without prejudice to any other method of determining nationality, any person in possession of a national passport issued by the appropriate authorities of either Contracting Party shall be deemed to be a national of that Party.

(7)

Either Contracting Party shall refrain from any measures which, contrary to the principles of free competition, may prevent or hinder sea-going vessels or aircraft of the other Contracting Party from participating in the transport of goods intended for, or of persons travelling in connexion with, an investment within the meaning of the present Treaty. This also applies to goods acquired in the territory of either Contracting Party or of any third State with funds of an enterprise in which capital within the meaning of the present Treaty is invested; it applies furthermore to persons travelling on behalf of such an enterprise

(8). Ad Article 9

The provisions of the present Treaty shall apply to investments of nationals or companies of either Contracting Party in the territory of the other Contracting Party existing at the date of entry into force of the present Treaty and having been made after the 6th day of March 1957, provided that these nationals or companies file an application in this respect with the Government of the Contracting Party in whose territory the investment is situate and that this Government grants the application. The Government of the Contracting Party concerned shall accord sympathetic consideration to such applications.

Done at Bonn on the 19th day of May 1967 in two originals, one each in English and German languages, both texts being equally authentic.

For the Federal Republic of Germany

Klaus Schütz

For the Republic of Ghana

Albert Adomakoh

Attachments

The Leader of the Ghana Economic Delegation

Bonn, 19th May, 1967

Excellency,

Intending to facilitate and promote the making and developing of investments by German nationals or companies in Ghana, the Republic of Ghana will grant the necessary permits to German nationals who desire to enter and stay in Ghana and to carry on an activity there as an employee in connection with investments by German nationals or companies, except as reasons of public order and security, of public health or morality may warrant otherwise.

Accept, Your Excellency, the assurances of my highest consideration.

Albert Adomakoh

His Excellency

Mr. Klaus Schütz

State Secretary of the Federal Ministry for Foreign Affairs

Bonn

The State Secretary of the Federal Foreign Office

Bonn, May 19, 1967

Excellence,

I have the honor to confirm receipt of your letter today, which has the following wording in German translation:

"With the intention of facilitating and promoting the making and development of investments by German citizens or companies, the Republic of Ghana will become German citizens who enter and stay in Ghana and work as employees in connection with investments by German citizens or companies want to issue the necessary permits, unless there are reasons to oppose public policy, security, public health and morality. "

Approve, Your Excellency, my express respect.

Klaus Schütz

S.E. the Head of the Business Delegation from Ghana

Bonn