3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a transfer through the equitable, non-discriminatory and good faith application of its law relating to:
a) Bankruptcy, insolvency, or the protection of the rights of creditors;
b) Criminal or penal offences and the recovery of the proceeds of crime; and
c) Ensuring compliance with orders or judgments in judicial or administrative proceedings.
4. Safeguard provisions:
a) In the event of serious balance-of-payment and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on payments and transfers for transactions related to commitments undertaken under this Agreement;
b) The restrictions referred to in sub-paragraph (i) shall not be discriminatory, shall be consistent with the articles of the Agreement of the International Monetary Fund and shall avoid unnecessary damage to the commercial, economic and financial interests of the other Party. Restrictions shall be adequate to deal with the circumstances described in sub-paragraph (i), shall be temporary and shall be phased out progressively as the situation specified in sub-paragraph (i) improves; and
c) Nothing in the foregoing shall affect a Partys right to take regulatory measures related to balance of payments during balance of payment crisis, nor affect the rights and obligations of the members of the International Monetary Fund under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement.
Article 13. Disputes Prevention
1. The National Focal Points, or Ombudsmen, shall act in coordination with each other and with the Joint Committee in order to resolve any disputes between the Parties.
2. Before initiating an arbitration procedure, any dispute between the Parties shall be assessed through consultations and negotiations between the Parties and previously examined by the Joint Committee.
3. A Party may submit a specific question of interest of an investor to the Joint Committee:
a) To initiate the procedure, the Party of the interested investor shall submit, in writing, its request to the Joint Committee, specifying the name of the interested investor and the encountered challenges and difficulties;
b) The Joint Committee shall have 60 days, extendable by mutual agreement by 60 additional days, upon justification, to submit relevant information about the presented case;
c) In order to facilitate the search for a solution between the Parties, whenever possible, the following shall participate in the bilateral meeting:
i) Representatives of the interested investor;
ii) Representatives of the governmental or non-governmental entities involved in the measure or situation under consultation.
d) The procedure for dialogue and bilateral consultation ends by the initiative of any Party upon presentation of a summarized report in the subsequent Joint Committee meeting, that shall include:
i) Identification of the Party;
ii) Identification of the interested investors;
iii) Description of the measure under consultation; and
iv) Position of the Parties concerning the measure.
e) The Joint Committee shall, whenever possible, call for special meetings to review the submitted matters.
5. The meeting of the Joint Committee and all documentation, as well as steps taken in the context of the mechanism established in this Article, shall remain confidential, except for the submitted reports.
6. If the dispute cannot be resolved, the Parties to the exclusion of the investors may resort to arbitration mechanisms between States, which are to be agreed upon by the Joint Committee, whenever the Parties find it appropriate
Part IV. General and Final Provisions
Article 14. General Amendments and Final Provisions
1. Considering the wide range of investment issues, the Parties agree that the ultimate purpose of the Joint Committee and Focal Points, or Ombudsmen, is the fostering of institutional governance, through the establishment of a specific forum and technical channels and by acting as facilitators between Governments and the private sector.
2. Neither the Joint Committee nor the Focal Points or Ombudsmen shall replace or impair, in any way, any other agreement or the diplomatic channels existing between the Parties.
3. Without prejudice to its regular meetings, after 10 (ten) years of entering into force of this Agreeement the Joint Committee will undertake a general review of its implementation and make further recommendations if necessary.
4. This Agreement shall enter into force 90 (ninety) days after the date of the receipt of the second diplomatic note indicating that all necessary internal procedures with regard to the conclusion and the entering into force of international agreements have been completed by both Parties.
5. At any time, either of the Parties may terminate this Agreement by providing written notice of termination to the other Party. The termination shall take effect on a date the Parties agree on or, if the parties are unable to reach an agreement, 180 (a hundred and eighty) days after the date on which the termination notice is delivered
Conclusion
IN WITNESS WHEREOF the undersigned, duly authorized thereto by their respective Governments, have signed this Agreement.
DONE at Maputo, on the 25 June 2015 in duplicate in the English and Portuguese languages, both texts being equally authentic. For the purpose of dispute resolution, the English version shall be used.
FOR THE FEDERATIVE REPUBLIC OF BRAZIL
FOR THE REPUBLIC OF MALAWI
Attachments
The agenda listed below represents an initial effort to improve investment cooperation and facilitation between the Parties and may be expanded and modified at any time by the Joint Committee.
a. Payments and transfers
i. The cooperation between the financial authorities shall aim at facilitating capital and currency remittances between the Parties.
b. Visas
i. Each Party shall seek, whenever possible and convenient, to facilitate the free movement of managers, executives and skilled employees of economic agents, entities, businesses and investors of the other Party.
ii. Respecting national legislation, immigration and work authorities of each Party shall seek a common understanding in order to reduce time, requirements and costs to grant appropriate visas to investors of the other Party.
iii. The Parties will negotiate a mutually acceptable agreement to facilitate visas for investors with a view to extend its duration and stay.
c. Technical and environmental regulations
i. Subject to their national legislation, the Parties shall establish expeditious, transparent and agile procedures for the issuing of documents, licenses and certificates related to the prompt establishment and maintenance of the investment of the other Party.
ii. Any query from the Parties, or from their economic agents and investors concerning commercial registration, technical requirements and environmental standards shall receive diligent and timely treatment from the other Party.
d. Cooperation on Regulation and Institutional Exchange
i. The Parties shall promote institutional cooperation for the exchange of experiences on the development and management of regulatory frameworks.
ii. The Parties hereby undertake to promote technological, scientific and cultural cooperation through the implementation of actions, programs and projects for the exchange of knowledge and experience, in accordance with their mutual interests and development strategies.
The Parties agree that the access and the eventual technology transfer will be carried out, whenever possible, without charge and aimed at contributing with effective trade of goods, services and related investment.
iii. The parties hereby undertake to promote, foster, coordinate and implement cooperation for professional qualification through greater interaction between relevant national institutions.
iv. Forums for cooperation and exchange of experiences on solidarity economy shall be created, evaluating fostering mechanisms for cooperatives, family farms and other solidary economic enterprises related to current and future investment.
v. The parties shall also promote institutional cooperation for greater integration of logistics and transports in order to open new air routes and increase, whenever possible and appropriate, their connections and maritime merchant fleets.