A) Investors or the investment shall comply with environmental assessment screening criteria (10) and assessment processes applicable to their proposed investments prior to their establishment, as required by the laws of the host state for such an investment or the laws of the home state for such an investment, whichever is more rigorous in relation to the investment in question. On all occasions, the investor or investment shall comply with the minimum standards on environmental impact assessment and screening that the Parties shall adopt at the first meeting of the Parties, to the extent these are applicable to the investment in question.
(B) Investors or the investment shall conduct a social impact assessment of the potential investment. The Parties shall adopt standards for this purpose at the first meeting of the Conference of the Parties.
(C) Investors or the investment shall make the environmental and social impact assessments public and accessible in the local community and to affected interests in the host state where the investment is intended to be made prior to the completion of the host state measures prescribing the formalities for establishing an investment.
(D) Investors, their investment and host state authorities shall apply the precautionary principle to their environmental impact assessment and to decisions taken in relation to a proposed investment, including any necessary mitigating or alternative approaches to the investment, or precluding the investment if necessary (11). The application of the precautionary principle by investors and investments shall be described in the environmental impact assessment they undertake.
Article 13. Anti-corruption
(A) Investors and their investments shall not, prior to the establishment of an investment or afterwards, offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a public official of the host state, for that official or for a third party, in order that the official or third party act or refrain from acting in relation to the performance of official duties, in order to achieve any favour in relation to a proposed investment or any licences, permits, contracts or other rights in relation to an investment.
(B) Investors and their investments shall not be complicit in any act described in Paragraph (A), including incitement, aiding and abetting, and conspiracy to commit or authorization of such acts.
Article 14. Post-establishment Obligations(a)
(A) Investments shall, in keeping with good practice requirements relating to the size and nature of the investment, maintain an environmental management system. Companies with over [250][500] employees, or in areas of resource exploitation or high-risk industrial enterprises shall maintain a current certification to ISO 14001 or an equivalent environmental management standard. Emergency response and decommissioning plans shall be included in the environmental management system process (12).
(B) Investors and investments should uphold human rights in the workplace and in the state and community in which they are located. Investors shall not undertake or cause to be undertaken, acts that breach such human rights. Investors and investments shall not by complicit with, or assist in, the violation of the human rights by others in the host state, including public authorities or during civil strife. The Parties shall, at their first meeting, adopt a list of international human rights and human rights instruments to assist investors in complying with this Provision.
(C) Investors and investments shall act in accordance with core labour standards as required by the ILO Declaration on Fundamental Principles and Rights of Work, 1998 (13).
(D) Investors and investments shall not manage or operate the investments in a manner that circumvents international environmental (14), labour and human rights obligations to which the host state and/or home state are Parties.
Article 15. Corporate Governance and Practices
In accordance with the size and nature of an Investment,
(A) Investments shall meet or exceed national and internationally accepted standards of corporate governance for the sector involved, in particular for transparency and accounting practices.
(B) Investors and investments shall make available to the public any investment contract or agreement with the host state government(s) involved in the investment authorization process, subject to the redaction of confidential business information. Investors or investments shall publish all information relating to payments made to host state public authorities, including taxes, royalties, surcharges, fees and all other payments.
(C) Investments shall establish and maintain, where appropriate, local community liaison processes, in accordance with internationally accepted standards when available.
(D) Where relevant internationally accepted standards of the type described in this Article are not available or have been developed without the participation of developing countries, the Conference of the Parties may establish such standards.
Article 16. Corporate Social Responsibility
(A) In addition to the obligation to comply with all applicable laws and regulations of the host state and the obligations in this Agreement, and in accordance with the size, capacities and nature of an investment, and taking into account the development plans and priorities of the host state, the Millennium Development Goals and the indicative list of key responsibilities provided in Annex F, investors and their investments should strive to make the maximum feasible contributions to the sustainable development of the host state and local community through high levels of socially responsible practices.
(B) Investors should apply the ILO Tripartite Declaration on Multinational Enterprises and Social Policy and the OECD Guidelines for Multinational Enterprises, as well as specific or sectoral standards of responsible practice where these exist.
(C) Where standards of corporate social responsibility increase, investors should strive to apply and achieve the higher level standards.
Article 17. Investor Liability
Investors shall be subject to civil actions for liability in the judicial process of their home state for the acts or decisions made in relation to the investment where such acts or decisions lead to significant damage, personal injuries or loss of life in the host state.
Article 18. Relation of this Part to Dispute Settlement
(A) Where an investor or its investment has breached Article 13 of this Agreement, neither the investor not investment shall be entitled to initiate any dispute settlement process established under this Agreement. A host or home state may raise this as an objection to jurisdiction in any dispute under this Agreement, or in the procedure set out in Part 9 of this Agreement.
(B) Where an investor or its investment is alleged by a host state or an intervener in a dispute settlement proceeding under this Agreement to have failed to comply with its obligation relating to pre-establish- ment impact assessment, the tribunal hearing such a dispute shall consider whether this breach, if proven, is materially relevant to the issues before it, and if so, what mitigating or off-setting effects this may have on the merits of a claim or on any damages awarded in the event of such award.
(C) Where a host state or home state believes that an investor or its investment has breached Article 13 or has persistently failed to comply with its obligations under Articles 14 or 15, and such investor or investment has been notified by the host state or home state, as appropriate, either the host state or the home state may initiate proceedings before a tribunal under Part 9 of this Agreement to have the rights of the investor or investment, as the case may be, abrogated.
(D) Where a persistent failure to comply with Articles 14 or 15 is raised by a host state defendant or an intervener in a dispute settlement proceeding under this Agreement, the tribunal hearing such a dispute shall consider whether this breach, if proven, is materially relevant to the issues before it, and if so, what mitigating or off-setting effects this may have on the merits of a claim or on any damages award in the event of such award.
(E) A host state may initiate a counterclaim before any tribunal established pursuant to this Agreement for damages resulting from an alleged breach of the Agreement.
(F) In accordance with the applicable domestic law, a host state or private person or organization, may initiate actions for damages under the domestic law of the host state, or the domestic law of the home state where such an action relates to the specific conduct of the investor, for damages arising from an alleged breach of the obligations set out in this Part.
Part 4. Host State Obligations
Article 19. Procedural Fairness
In Accordance with the Requirements of Article 7:
(A) Host states shall ensure that their administrative, legislative and judicial processes do not operate in a manner that is arbitrary or that denies administrative and procedural fairness to investors and investments. Investors or investments shall be notified in a timely fashion of administrative or judicial proceedings directly relating to them, unless such notice is contrary to domestic law on an exceptional basis (14).
(B) Hosts states shall act in a manner that does not create a denial of justice in judicial and administrative proceedings (15).
(C) Administrative decision-making processes shall include the right of administrative appeal of decisions, commensurate with the level of development of the host state. Judicial review of administrative decisions should also be available through domestic judicial review processes.
(D) For greater certainty, the Parties understand that different Parties have different forms of administrative, legislative and judicial systems, and that states at different levels of development may not achieve the same standards or qualities for their administrative and judicial processes. Paragraphs (A)-(C) of this Article do not establish a single international standard in this context.
(E) Host states should strive to improve the transparency, efficiency, independence and accountability of their legislative, regulatory, administrative and judicial processes, and shall provide review or appeal procedures to ensure that they operate in accordance with applicable domestic laws and regulations.
(F) Judicial and administrative review processes shall be open to the public and documents shall be accessible by the public unless prohibited in accordance with domestic law. Decisions of such bodies shall be made available to the public.
Article 20. Maintenance of Environmental and other Standards
The Parties recognize that it is inappropriate to encourage investment by relaxing domestic labour, public health, safety or environmental measures and thus shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in their territories, of an investment.
Article 21. Minimum Standards for Environmental, Labour and Human Rights Protection
(A) Recognizing the right of each Party to establish its own level of domestic environmental protection and its own sustainable development policies and priorities, and to adopt or modify its environmental laws and regulations, each Party shall ensure that its laws and regulations provide for high levels of environmental protection and shall strive to continue to improve those laws and regulations.
(B) Each Party shall ensure that its laws and regulations provide for high levels of labour and human rights protection appropriate to its economic and social situation, and shall strive to continue to improve these laws and regulations.
(C) All Parties shall have, as a soon as practicable, a domestic environmental impact assessment law and social impact assessment law that meets the minimum standards adopted by the Conference of the Parties on these matters.
(D) All Parties shall ensure that their domestic law and policies are consistent with the core labor requirements of the ILO Declaration on Fundamental Principles and Rights of Work, 1998.
(E) All parties shall ensure that their laws, policies and actions are consistent with the international human rights agreements to which they are a Party and, at a minimum, as soon as practicable with the list of human rights obligations and agreements to be adopted by the first meeting of the Parties.
Article 22. Anti-corruption
All Host States shall ensure that
(A) the offering, solicitation or acceptance of an offer, promise or gift of any pecuniary or other nature, whether directly or through intermediaries, to any public official of the host state, for that official or for a third party, in order that the official or third party act or refrain from acting in relation to the performance of official duties to achieve any favour in relation to a proposed investment or any licences, permits, contracts or other rights in relation to an investment; and
(B) any acts complicit in any act described in Paragraph (A), including incitement, aiding and abetting, conspiracy to commit or authorization of such acts;
shall be made criminal offences in the host state and subject to appropriate criminal enforcement and sanctions. Host states shall make every effort to prosecute such activities in accordance with domestic law.
Article 23. Publication of Information
Host states shall make available to the public any investment contracts or agreements with an investor or investment involved in the investment authorization process, subject to the redaction of confidential business information. Host states shall make available to the public all information relating to payments made to host state public authorities, including taxes, royalties, surcharges, fees and all other payments by investments.
Article 24. Subsidies
Potential host states should not compete for the achievement of foreign investment or investments through subsidies or other means, including tax relief, that distort international competition for investments. The Parties shall initiate negotiations on a Protocol to establish legally binding obligations in this issue, having due regard for the need for special and differential treatment of developing countries, particularly least-developed countries, in such obligations.
Part 5. Host State Rights
Article 25. Inherent Rights of States
(A) Host states have, in accordance with the general principles of international law, the right to pursue their own development objectives and priorities.
(B) In accordance with customary international law and other general principles of international law, host states have the right to take regulatory or other measures to ensure that development in their territory is consistent with the goals and principles of sustainable development, and with other social and economic policy objectives.
(C) Except where the rights of a host state are expressly stated as an exception to the obligations of this Agreement, the pursuit of these rights shall be understood as embodied within a balance of the rights and obligations of investors and investments and host states, as set out in this agreement, and consistent with other norms of customary international law.
(D) Bona fide, non-discriminatory, measures taken by a Party to comply with its international obligations under other treaties shall not constitute a breach of this Agreement.
(E) Host states may, through their applicable constitutional processes, fully incorporate this Agreement into their own domestic law so as to make the provisions herein enforceable before domestic courts or other appropriate processes.
Article 26. Performance Requirements
(A) The Parties recognize their obligations regarding trade-related investment measures established in other international agreements to which they are a Party.
(B) Subject to Paragraph (A), host states may impose performance requirements to promote domestic development benefits from investments. Measures adopted prior to the completion of the host state measures prescribing the formalities for establishing an investment shall be deemed to be in compliance with this Agreement. If such measures are taken after the completion of the host state measures prescribing the formalities for establishing an investment, they shall be subject to the provisions of this Agreement.
(C) Measures covered by this Article include requirements:
i) to export a given level or percentage of goods or services;
ii) to achieve a given level or percentage of domestic content;
iii) to purchase, use or accord a preference to goods produced or services provided in its territory;
iv) to purchase goods or services from persons in its territory;
v) to relate the volume or value of imports to the volume or value of exports or to the amount of foreign exchange flows associated with such investment;
vi) to restrict sales of goods or services in its territory that such investment produces by relating such sales to the volume or value of its exports or foreign exchange earnings; and
vii) similar measures intended to promote domestic development.
Article 27. Investment Promotion and Facilitation
Host States May Maintain and Develop Investment Promotion and Facilitation Agencies and Services.
(A) Host states have the right to seek information from a potential investor or its home state about its cor- porate governance history and its practices as an investor, including in its home state.
(B) Host states shall protect confidential business information they receive in this regard.
(C) Host states may make the information provided available to the public in the community where the investment may be located, subject to the protection of confidential business information and to other applicable domestic laws.
Article 28. Access to Investor Information
(A) Host states have the right to seek information from a potential investor or its home state about its corporate governance history and its practices as an investor, including in its home state.
(B) Host states shall protect confidential business information they receive in this regard.
(C) Host states may make the information provided available to the public in the community where the investment may be located, subject to the protection of confidential business information and to other applicable domestic laws.
Part 6. Home State Rights and Obligations
Article 29. Assistance and Facilitation for Foreign Investment
(A) Home states with the capacity to do so should assist developing and least-developed states in the promotion and facilitation of foreign investment into such states, in particular by their own investors. Such assistance shall be consistent with the development goals and priorities of the countries in question. Such assistance may include, inter alia:
i) capacity building with respect to host state agencies and programs on investment promotion and facilitation;
ii) insurance programs based on commercial principles;
iii) direct financial assistance in support of the investment or of feasibility studies prior to the investment being established;
iv) technical or financial support for environmental and social impact assessments of a potential investment;
v) technology transfer; and
vi) periodic trade missions, support for joint business councils and other cooperative efforts to promote sustainable investments.
(B) Home states shall inform host states of the form and extent of available assistance as appropriate for the type and size of different investments.
Article 30. Information
(A) Home states shall, on request, and in a timely manner, provide to a potential host state such information as is requested and available for the purposes of the host state to meet its obligations and perform its duties in relation to an investor or investment under this Agreement and the host state's domestic law. Home states shall protect confidential business information in this regard.
(B) Home states shall, on request, and in a timely manner, provide information relevant to the home state standards that might apply under like circumstances to the investment proposed by its investor, including but not limited to the home state environmental impact assessment process.
Article 31. Investor Liability In Home State
Home states shall ensure that their legal systems and rules allow for, or do not prevent or unduly restrict, the bringing of court actions on their merits before domestic courts relating to the civil liability of investors for damages resulting from alleged acts or decisions made by investors in relation to their investments in the territory of other Parties (16). The host state laws on liability shall apply to such proceedings.
Article 32. Anti-corruption
(A) All Home States shall ensure that:
i) the offer, promise or giving of any money or gift of any other nature, whether directly or through intermediaries, to any public official of the host state, for that official or for a third party, in order that the official or third party act or refrain from acting in relation to the performance of official duties to achieve any favour in relation to a proposed investment or any licences, permits, contracts or other rights in relation to an investment; and
ii) any acts complicit in any act described in Paragraph (i), including incitement, aiding and abetting, conspiracy to commit or authorization of such acts;
shall be made criminal offences in the home state and subject to appropriate criminal enforcement and sanctions. Home states shall make every effort to prosecute such activities in accordance with domestic law.
(B) All home states shall ensure that any money or other forms of benefits encompassed in Paragraph (A) shall not be recoverable or deductible in any fiscal or tax laws or policies.
(C) Home states shall, when possible, provide all available information that might assist a dispute settlement tribunal under this Agreement in determining whether a breach off an anti-corruption obligation has occurred.
Part 7. Relation to other Agreements
Article 33. Relation to other Investment Agreements and Obligations
(A) Upon the home and host states becoming Parties to this Agreement, all pre-existing international investment agreements to which they are a Party shall, as between such states, be deemed to be terminated by mutual consent and all the rights and obligations due shall be pursuant to this Agreement. Except as specified in Article 3(F), such termination shall be immediate notwithstanding any expiration period for the rights of investors or investments under such pre-existing agreements.
(B) Where states Party to this agreement have an international investment agreement with a non-Party, they shall strive to renegotiate those agreements to make them consistent with the present Agreement or to ensure that all Parties to the other Agreement become a Party to this Agreement.
(C) States Party to this agreement shall ensure that all future investment agreements to which they may become Party are fully consistent with the present Agreement, particularly with the balance of rights and obligations it establishes, and the principal features of the dispute settlement system. The Conference of the Parties may be called upon to assess compliance with this obligation on the request of a Party.
(D) Notwithstanding any of the above, any disputes that have been formally initiated under prior international investment agreements shall be decided in accordance with the rights and obligations of that agreement.
Article 34. Relation to other International Agreements
(A) The Parties agree that the provisions of other international trade agreements to which they are a Party are consistent with the provisions of this Agreement. The Parties shall seek to interpret such agreements in a mutually supportive manner.
(B) In the event of any dispute arising on this issue, the Parties shall seek to resolve such dispute within the mechanisms of this agreement as a first step.
(C) The Parties hereby re-affirm their obligations under international environmental and human rights agreements to which they are a Party.
Part 8. Institutions
Article 35. National Authority
(A) Each Party shall establish a National Authority as a contact point for purposes related to the Agreement. The functions of the National Authority shall include:
i) requesting or transmitting information from or to another Party;
ii) providing a contact for assistance in investment promotion and facilitation;
iii) maintaining statistics about inward and outward investment of the Party;
iv) handling enquiries in relation to the conduct of investments or investors of the Party;
v) investigating and seeking to resolve concerns or conflicts raised by individuals or civil society groups in relation to the conduct of investors or investments concerning their obligations under this Agreement or the additional responsibilities set out in the Agreement;
vi) reporting on any matters dealt with under Paragraph v; and
vii) any other functions the Party incorporates into its work.
(B) The National Authority shall operate in a visible, accessible, transparent and accountable manner. It shall receive and consider information, statements of concern or other information from government officials, non-governmental groups or individuals from the State Party in which it is established, or from the host state of an investor for which it is the home state.
Article 36. Conference of the Parties
(A) The Conference of the Parties will be the governing body of the Agreement. It shall meet within one year of the Agreement coming into force, and once every year after that.
(B) The Conference of the Parties shall adopt at its first meeting rules of procedure and financial rules for itself and any subsidiary bodies, as well as financial provisions governing the functioning of the Conference of the Parties and the Secretariat.
(C) All Parties shall have an equal voice on the Conference of the Parties. Decisions shall be taken by consensus. Where, after all efforts are exhausted, no consensus is deemed possible by the chair of a meeting, a decision may be taken by three-quarters of the Parties present and voting.
(D) The Conference of the Parties shall perform the tasks assigned by the Agreement and such additional tasks as it deems appropriate for the fulfillment of the purposes of the Agreement. These tasks shall include, inter alia:
i) appoint the Executive Director of the Secretariat, and instruct the Secretariat on its functions;
ii) adopt Protocols and Annexes to this Agreement;
iii) adopt the instruments or lists required of it in other Articles of this Agreement;
iv) promote the development of qualitative standards for sustainable investments;
v) establish qualitative criteria for measuring the effective contribution of investments to host state development;
vi) monitor the effectiveness of this Agreement, including undertaking of a three-year review of the operation and effectiveness of this Agreement and subsequent reviews every three years;
vii) establish a procedure for Parties to report on the implementation and effectiveness of the Agreement at the state level;
vill) appoint such sub-organs or committees as it determines necessary for the proper functioning of this Agreement, including an Executive Committee of regionally balanced representation to oversee the management and operation of this Agreement between meetings of the Conference of the Parties, and a review and monitoring body to assist in the monitoring of this Agreement; and
ix) adopt interpretative statements concerning the interpretation of this Agreement.
(E) The United Nations and its specialized agencies, the World Trade Organization, the World Bank and its component agencies, any other inter-governmental organization whose work is impacted by this Agreement, as well as any state not Party to this Convention, may be represented at meetings of the Conference of the Parties as observers. Any body or agency, whether national or international, governmental or non-governmental, qualified in matters covered by the Convention, and which has informed the Secretariat of its wish to be represented at a meeting of the Conference of the Parties as an observer, may be admitted unless at least two-thirds of the Parties present object. The admission and participation of observers shall be subject to the rules of procedure adopted by the Conference of the Parties.