Switzerland - Zimbabwe BIT (1996) - Electronic Database of Investment Treaties (EDIT)

EDIT - Electronic Database of Investment Treaties

Try a new search | Analytics

Switzerland - Zimbabwe BIT (1996)

Title

Agreement between the Swiss Confederation and the Republic of Zimbabwe on the Promotion and Reciprocal Protection of Investments

Preamble

The Swiss Federal Council and the Government of the Republic of Zimbabwe, Desiring to intensify economic cooperation to the mutual benefit of both States;

Intending to create and maintain favourable conditions for investments by investors of one Contracting Party in the territory of the other Contracting Party;

Recognizing the need to promote and protect foreign investments with the aiio to foster the economic prosperity of both States,

Have agreed as follows:

Body

Article 1. Definitions

For the purposes of this Agreement:

(1) the term means investor in respect of either Contracting Party,

(a) Natural persons who, according to the law of that Contracting Party, are considered to be its nationals;

(b) Legal entities, including companies registered partnerships, corporations or other organizations, which are constituted or otherwise organised under the law of that Contracting Party and have their seat in the territory of that same Contracting Party;

(c) Legal entities which are not established in accordance with the laws of that Contracting Party but which are effectively controlled by natural persons or legal entities, respectively in accordance with subparagraph (a) and (b) of this paragraph.

(2) The term "investment" includes all categories of assets and in particular:

(a) Ownership of movable and immovable property as well as any other rights in rem servitudes, charges, such as movable and immovable property, pledges;

(b) The actions, and other forms of participation shares in companies;

(d) Copyrights, industrial property rights, such as patents, utility models, industrial designs or models, trade marks, trademarks, trade names, indication of origin), know-how and goodwill;

(e) The concessions under public law, including extract concessions to search for or exploit natural resources, as well as any other rights conferred by law, by contract or by decision of the Authority in accordance with the law.

A change in the form in which assets are invested shall not affect their character as investments.

(3) The term "returns" means the returns derived from an investment amounts and shall include in particular, though not exclusively, interests, capital gains, profits, dividends, royalties and fees.

(4) The term "territory" means the territory of each Contracting Party in which that State may exercise sovereign rights or jurisdiction in accordance with international law.

(5) The term "law" includes laws as well as published administrative rules and regulations.

Article 2. Scope

This Agreement shall apply to investments made in the territory of a Contracting Party in accordance with its legislation by investors of the other contracting party prior to or after its entry into force.

Article 3. Encouragement , Admission

(1) Each Contracting Party shall promote as far as possible investments by investors of the other contracting party in its territory and admit such investments in accordance with its legislation.

(2) Each Contracting Party shall issue, in accordance with its laws, the necessary permits in connection with such investments and with the carrying out of licensing agreements, commercial, administrative or technical assistance, as well as the required authorisations for the activities of consultants and experts.

Article 4. Protection , Treatment

(1) Returns of investments and investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy protection and security in the territory of the other contracting party. neither of the contracting parties will not in any way, unjustified or discriminatory measures by the management, maintenance, use, enjoyment, or disposal of increased investments in its territory by investors of the other contracting party.

(2) Each Contracting Party shall accord in its territory to returns of investments and investors of the other contracting party treatment no less favourable than that which it accords to its own and returns of investments or investors to returns of investments and investors of any third State, more favourable treatment to the investor concerned is crucial.

(3) Each Contracting Party shall accord to investors in its territory of the other contracting party treatment no less favourable than that it accords to its own investors to investors or of any third State, more favourable treatment to the investor concerned is crucial.

(4) If a Contracting Party accords special advantages to investors of any third State by virtue of an agreement establishing a Free Trade Area (libreéchange, a customs union, a common market or a similar regional organization or by virtue of an agreement for the avoidance of double taxation, it shall not be obliged to accord such advantages to investors of the other contracting party.

Article 5. Free Transfer

Contracting Party in whose territory investments have been made by investors of the Contracting Party shall grant those investors the free transfer of the payments relating e investments, particularly of:

(a) returns;

(b) Payment of loans;

(d) Royalties and other payments deriving from rights enumerated in article 1, paragraph (2), letters (c), (d) and (e) of this Agreement;

(e) additional contributions of capital necessary for the maintenance or development of the investments;

(f) The proceeds of the sale of or the partial or total liquidation of an investment, including possible investment values.

Article 6. Expropriation

(1) Investments of investors of each Contracting Party shall not be subject to any measure of expropriation, nationalization or having an effect equivalent to nationalization or expropriation (hereinafter referred to as expropriation) in the territory of the other Contracting Party unless they are taken for a public purpose related to the internal needs of that Contracting Party, are non-discriminatory and that it gives rise to a prompt, effective and adequate compensation. the compensation shall be commensurate with the actual value of the investment immediately before the expropriation or before the impending public knowledge, it became the first of those events in determining. it shall include interest at a normal commercial rate until the date of payment, shall be paid without delay and shall be effectively realizable and freely transferable. the Investor affected shall have a right under the law of the contracting party making the expropriation, to prompt review of its case and of the valuation of its investment by a judicial or other independent authority of that Contracting Party in accordance with the principles set out in this paragraph.

(2) If a Contracting Party expropriating the assets of a company which is incorporated or constituted under the law in force in any part of its own territory, and in which investors of the other contracting party own shares, it shall ensure, to the extent necessary and in accordance with its laws, that the compensation referred to in paragraph (1) of this article shall be made available to those investors.

Article 7. Compensation for Losses

(1) Investors of one Contracting Party whose investments in the territory of the other contracting party have suffered losses due to a war or any other armed conflict, revolution, state of emergency, national revolt riot, insurrection or occurring in the territory of the latter Contracting Party, shall receive, as regards restitution, indemnification, compensation or other settlement, a treatment no less favourable than that which that Contracting Party accords to its own investors to investors or of any third State, more favourable treatment to the investor concerned is crucial. resulting payments shall be freely transferable.

(2) Without prejudice to paragraph (1) of this article, investors of one Contracting Party who, in any of the situations referred to in that paragraph, suffer losses in the territory of the other Contracting Party resulting from:

(a) Requisition of property by their forces or the authorities of the latter or

(b) destruction of their property by its forces or authorities, which was not caused in combat action or was not required by the necessity of the situation,

shall be accorded restitution or adequate compensation. Resulting payments shall be freely transferable.

Article 8. Other Obligations

(1) If provisions in the laws of either Contracting Party or in international agreements entitle investments by investors of the other Contracting Party to treatment more favourable than is provided for by this Agreement, such provisions shall to the extent that they are more favourable prevail over this Agreement.

(2) Each Contracting Party shall observe any other obligation it has assumed with regard to investments inits territory by investors of the other Contracting Party.

Article 9. Principle of Subrogation

Where a Contracting Party has provided any financial guarantee against non-commercial risks with regard to an investment by one of its investors in the territory of the other contracting party, the latter shall recognize the rights of the first Contracting Party on the basis of the principle of subrogation to the rights of the investor if payment has been made under this first guaranteed by the contracting party.

Article 10. Disputes between a Contracting Party and an Investor of the other Contracting Party

(1) For the purpose of solving disputes with respect to investments between a Contracting Party and an investor of the other Contracting Party and without prejudice to Article 11 of this Agreement (Disputes between Contracting Parties), consultations will take place between the parties concerned.

(2) If these consultations do not result in a solution within six months and if the investor concerned gives written consent, the dispute shall be submitted to the arbitration of the International Centre for Settlement of Investment Disputes, instituted by the Convention of Washington of March 18, 1965, for the settlement of disputes regarding investments between States and nationals of other States.

Each party may start the procedure by addressing a request to that effect to the Secretary-General of the. Centre as foreseen by Article 28 and 36 of the above-mentioned Convention. Should the parties disagree·on whether conciliation or arbitration is the most appropriate procedure, the investor concerned shall have the final decision.

(3) The arbitral tribunal shall decide on the basis of the present Agreement,and other relevant agreements between the Contracting Parties; the terms of any particular agreement that has been concluded with respect to the investment; the law of the Contracting State party to the dispute, including its rules on the conflict of laws; such rules of international law as may be applicable.

(4) The Contracting Party which is a party to the dispute shall not at any time during the procedures assert as a defence its immunity or the fact that the investor has received compensation under an insurance contract covering the whole or part of the incurred damage or loss.

(5) Neither Contracting Party shall pursue through diplomatic channels a dispute submitted to the arbitration of the Centre unless the other Contracting Party does not abide by and comply with the award rendered by the arbitral tribunal.

(6) The arbitral award shall be final and binding for the parties involved in the dispute and shall be enforceable in accordance with the laws of the Contracting Party in which the investment in question is located.

Article 11. Disputes between Contracting Parties

(1) Where a dispute arises concerning this Agreement, the Parties agree to consult and negotiate on any matter related to its interpretation or application. The Parties shall accord the necessary consideration and opportunity for such consultations and negotiations.

(2) In the event that the consultations and negotiations fail to .resolve the dispute within a period of six months from the date of request for consultations and negotiations, either of the Parties may, unless they have otherwise agreed, submit the dispute to an arbitral tribunal composed of three members. Each Party shall appoint one arbitrator. The third arbitrator, who will be the Chairman of the arbitral tribunal and a national of a third State, shall be appointed by agreement of the other two arbitrators. If any of the arbitrators are unable to perform the duties, a substituting arbitrator shall be appointed as provided for in this Article.

(3) Should one of the Parties fail to appoint its arbitrator within two months after the other Party has submitted the dispute to arbitration and has appointed its arbitra- tor, the latter Party may request the President of the International Court of Justice to make the corresponding appointment. If the latter is prevented from making such appointment or is a national of either Party, the Vice President or the most senior member of the Court shall make such an appointment.

(4) In the event that the two arbitrators appointed by the Parties are unable to reach an agreement concerning the third arbitrator within two months after their appointment, either Party may request the President of the International Court of Justice to make the corresponding appointment. If the latter is prevented from making such an appointment or is a national·of either Party, the Vice President or the most senior member of the Court shall make such an appointment.

(5) The tribunal shall determine its own procedures, unless the Parties agree other- wise. The tribunal shall decide the dispute according to this Agreement and to other relevant agreements between the Parties and to the other rules of interna- tional law and shall take into account, as may be appropriate, relevant domestic laws. The tribunal shall reach its decision by a majority of votes. Such a decision shall be final and binding for both Parties.

(6) Each Party shall bear the cost of its own member of the tribunal and of its representation in the arbitral proceedings. The cost of the Chairman and the remaining costs shall be borne in equal parts by the Parties.

Article 12. Final Provisions

(1) This Agreement shall enter into force on the day when both Governments have notified each other.that they have compliedwith the constitutional requirements for the conclusion and entry into force of international agreements, and shall remain binding for a period of ten years. Unless written notice of termination is given six months before the expiration of this period, the Agreement shall be considered as renewed on the same terms for a period of two years, and so forth.

(2) In case of official notice as to the termination of the present Agreement, the provisions of Articles 1 to 11 shall continue to be effective for a farther period of ten years for investments made before official notice was given.

Protocol

On signing the Agreement between the Swiss Confederation and the Republic of Zimbabwe on the Promotion and Reciprocal Protection of Investments, the undersigned plenipotentia- ries have agreed on the following clarifications, which shall be regarded as an integral part of the said Agreement.

Ad Article 5

Notwithstanding the provision of paragraph (1), letter (f) of this Article, in respect of the Republic of Zimbabwe, the transfer of the proceeds of the sale or liquidation of investments admitted prior to I May 1993 shall be: subject to the conditions for such transfer which existed at the time of admission of the investment. The Government of the Republic of Zimbabwe shall use its best endeavors to reduce any restrictions on these payments and shall guarantee the unrestricted transfer for all payments mentioned in paragraph (1) of this Article not later than on l January 1999.