a. the investor has no substantial business activities in the territory of the Contracting Party under whose law it is constituted, or
b. the denying Contracting Party adopts or maintains measures with respect to the third state that prohibit transactions with such investor and its investments or that would be violated or circumvented if the benefits of the Agreement were accorded to the investments of investors.
5. A Contracting Party’s essential security interests may include interests and measures deriving from its membership in a customs, economic, or monetary union, a common market or a free trade area.
6. All references in the Agreement to measures of a Contracting Party shall include measures applicable in accordance with EU law in the territory of that Contracting Party pursuant to its membership in the European Union. References to “serious balance-of-payments difficulties, or the threat thereof,” shall include serious balance-of-payments difficulties, or the threat thereof, in the economic or monetary union of which a Contracting Party is a member.
7. The dispute settlement according to Article 9 shall not be considered as treatment, preference or privilege.
8. Subject to the requirement that such measures are not applied in a manner that would constitute arbitrary or unjustifiable discrimination between investments or between investors, nothing in Article 4 paragraphs 1 and 2 shall be construed to prevent a Contracting Party from adopting or enforcing measures necessary:
a. to protect public morals or public order;
b. to protect human, animal or plant life or health;
c. to ensure compliance with 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 contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety.
Article 17. Final Provisions, Entry Into Force, Duration, Termination and Amendments
1. This Agreement shall apply without prejudice to the rights and obligations deriving from Hungary’s membership in the European Union, and subject to those obligations. Consequently, the provisions of this Agreement may not be invoked or interpreted neither in whole nor in part in such a way as to invalidate, amend or otherwise affect the obligations of Hungary arising from the Treaties on which the European Union is founded.
2. The Contracting Parties shall notify each other through diplomatic channels that their internal procedure requirements for the entry into force of this Agreement have been complied with. This Agreement shall enter into force sixty (60) days after the receipt of the last notification.
3. This Agreement shall remain in force for a period of ten years and afterwards shall continue to be in force unless, either Contracting Party notifies in writing the other Contracting Party of its intention to terminate this Agreement. The notice of termination shall become effective one year after it has been received by the other Contracting Party but not earlier than the expiry of the initial period of ten years.
4. In respect of investments made prior to the termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten years from the date of termination.
5. This Agreement may be amended by written agreement between the Contracting Parties. Any amendment shall be integral part of the Agreement and enter into force under the same procedure required for entering into force of the present Agreement.
Conclusion
IN WITNESS WHEREOF, the undersigned duly authorized have signed this Agreement.
DONE in duplicate at NEW YORK, this 21 day of SEPTEMBER 2022, in the Hungarian, Italian and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
Attachments
Annex I. CODE OF CONDUCT FOR MEMBERS OF TRIBUNALS APPOINTED UNDER THE AGREEMENT BETWEEN THE GOVERNMENT OF HUNGARY AND THE GOVERNMENT OF THE REPUBLIC OF SAN MARINO FOR THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS
Article 1 Definitions
For the purpose of this Code of Conduct, the following definitions apply:
– “member” means a person who has been appointed to serve as a member of a tribunal established pursuant to the applicable provisions of Article 9 paragraph 3 of the Agreement between the Government of Hungary and the Government of the Republic of San Marino for the promotion and reciprocal protection of investments (the “Agreement”);
– “assistant” means a person who, under the terms of appointment of a member, assists the member, conducts research, or supports him or her in his or her duties;
– “candidate” means a person who is under consideration for appointment as member.
Article 2 Governing principles
Any candidate or member shall avoid impropriety and the appearance of impropriety, and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement proceeding is preserved.
Article 3 Disclosure Obligations
1. Prior to confirmation of their appointment as members under Article 9 paragraph 3 of this Agreement, candidates shall disclose to the disputing parties any past or present interest, relationship or matter that is likely to affect their independence or impartiality, or that might reasonably be seen as creating a direct or indirect conflict of interest, or that creates or might reasonably be seen as creating an appearance of impropriety or bias. To this end, candidates shall make all reasonable efforts to become aware of any such interests, relationships or matters. The disclosure of past interests, relationships or matters shall cover at least the last five years prior to a candidate becoming aware that he or she is under consideration for appointment as member in a dispute under this Agreement.
2. Following their appointment, members shall at all times continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in Article 3 paragraph 1 of this Code of Conduct. Members shall at all times disclose such interests, relationships or matters throughout the performance of their duties by informing the disputing parties and the Contracting Parties. They shall also communicate matters concerning actual or potential violations of this Code of Conduct to the disputing parties and the Contracting Parties.
Article 4 Independence, impartiality and other obligations of members
1. In addition to the obligations established pursuant to Articles 2 and 3 of this Code of Conduct, members shall:
a. get acquainted with this Code of Conduct;
b. be and appear to be, independent and impartial, and avoid any direct or indirect conflicts of interest;
c. not take instructions from any organisation or government with regard to matters before the tribunal for which they are appointed;
d. avoid creating an appearance of bias and not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Contracting Party, disputing party or any other person involved or participating in the proceeding, fear of criticism or financial, business, professional, family or social relationships or responsibilities;
e. not, directly or indirectly, incur any obligation, or accept any benefit, enter into any relationship, or acquire any financial interest that would in any way interfere, or appear to interfere, with the proper performance of their duties, or that is likely to affect their impartiality;
f. not use their position as a member to advance any personal or private interests and avoid actions that may create the impression that others are in a special position to influence them;
g. perform their duties thoroughly and expeditiously throughout the course of the proceeding, and with fairness and diligence;
h. avoid engaging in ex parte contacts concerning the proceeding;
i. consider only those issues raised in the proceeding and which are necessary for a decision or award and not delegate this duty to any other person.
2. Members shall take all appropriate steps to ensure that their assistants are aware of, and comply with, Articles 2 and 3, Article 4 paragraph 1 and Articles 5 and 6 of this Code of Conduct mutatis mutandis.
Article 5 Obligations of former members
1. Former members shall avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decisions or awards of the tribunal. $
2. Former members shall undertake that for a period of three years after the end of their duties in relation to a dispute settlement proceeding under this Agreement they shall not:
a. become involved in any manner whatsoever in investment disputes directly and clearly connected with disputes, including concluded disputes, that they have dealt with as members of a tribunal established under this Agreement;
b. act as party-appointed member, legal counsel or party-appointed witness or expert of any of the disputing parties, in relation to investment disputes under this or other bilateral or multilateral investment treaties.
3. If the Secretary General of the ICSID is informed or becomes otherwise aware that a former member is alleged to have acted inconsistently with the obligations established in Article 5 paragraphs 1 and 2, or any other part of this Code of Conduct while performing the duties of member of a tribunal in an investment dispute under this Agreement, it shall examine the matter, provide the opportunity to the former member to be heard, and after verification, inform:
a. the professional body or other such institution with which the former member is affiliated;
b. the Contracting Parties;
c. the disputing parties in the specific dispute;
d. any other relevant international court or tribunal.
4. The Secretary General of the ICSID shall make public its decision to take the actions referred in paragraphs 3 a. to 3 d. above, together with the reasons thereof.
Article 6 Confidentiality
1. No member or former member shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding, except for the purposes of that proceeding, and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to adversely affect the interest of others.
2. Members shall not disclose an order, decision, or award or parts thereof prior to adoption or publication.
3. Members or former members shall not at any time disclose the deliberations of the tribunal, or any views of other members forming part of the tribunal, except in an order, decision or award.
Article 7 Expenses
Each member shall keep a record and render a final account of the time devoted to the procedure and of the expenses incurred, as well as the time and expenses of their assistants.