1. Member States shall ensure that investments of investors of another Member State are not subjected to measures that constitute:
(a) denial of justice in criminal, civil or administrative proceedings;
(b) un-remedied and egregious violations of due process;
(c) targeted discrimination on manifestly unjustified grounds, such as gender, race or religious belief; or
(d) manifestly abusive treatment, such as coercion, duress and harassment.
2. A determination that there has been a breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.
Article 15. Transfer of Assets
1. Taking account of the need to facilitate, promote and enhance the movement of capital in the CCIA, Member States shall accord to COMESA investors the right to freely and without any inordinate delay, and according to their laws and regulations:
(a) repatriate investment returns;
(b) repatriate funds for repayment of loans;
(c) repatriate proceeds from compensation upon expropriation, the liquidation or sale of the whole or part of the investment including an appreciation or increase of the value of the investment capital;
(d) transfer payments for maintaining or developing the investment project, such as funds for acquiring raw or auxiliary materials, semi-finished products as well as replacing capital assets; and
(e) remit the unspent earnings of expatriate staff of the investment project.
2. Notwithstanding provision in paragraph 1, a Member State may delay or prevent a transfer in a non-discriminatory manner and in good faith application of its laws relating to:
(a) fulfilment of tax obligations to the host state;
(b) bankruptcy, insolvency, or the protection of the rights of creditors;
(c) issuing, trading or dealing in securities, futures, options or derivatives;
(d) criminal or penal offences and the recovery of the proceeds of crime;
(e) financial reporting or record keeping of transactions when necessary to assist law enforcement or financial regulatory authorities;
(f) ensuring compliance with orders or judgments in judicial or administrative proceedings;
(g) social security, public retirement or compulsory savings schemes;
(h) severance entitlements of employees; or
(i) the formalities required to register and satisfy the central bank and other relevant authority of a host state.
Article 16. Movement of Labour
Taking account of the need to facilitate labour resources, in the CCIA and subject to the laws in force in the host state, Member States shall accord to investors the right to hire technically qualified persons, necessary for investment from any Member State. Such persons shall have the right to enter and receive the necessary authorisations to reside in the Member State. However, COMESA investors shall accord a priority to workers who possess the same qualifications or expertise and are available in the host Member State or any other Member State.
Article 17. National Treatment
1. Subject to Article 19, each Member State shall accord to COMESA investors and their investments treatment no less favourable than the treatment it accords, in like circumstance, to its own investors and to their investments with respect to the management, operation and disposition of investments in its territory.
2. For greater certainty, references to ?like circumstances? in paragraph 1 of this Article requires an overall examination on a case by case basis of all the circumstances of an investment including, inter alia:
(a) its effects on third persons and the local community;
(b) its effects on the local, regional or national environment, including the cumulative effects of all investments within a jurisdiction on the environment;
(c) the sector the investor is in;
(d) the aim of the measure concerned;
(e) the regulatory process generally applied in relation to the measure concerned; or
(f) other factors directly relating to the investment or investor in relation to the measure concerned, and the examination shall not be limited to or be biased towards any one factor.
Article 18. Most Favoured Nation Treatment
1. Subject to the exceptions provided for under paragraph 3 of this Article, each Member State shall accord to COMESA investors and their investments treatment no less favourable than that it accords, in like circumstances, to investors and their investments from any third country with respect to the management, operation and disposition of investments in its territory. This paragraph shall not apply to investment agreements entered into by Member States with non-Member States prior to the entry into force of this Agreement.
2. For greater certainty, references to "like circumstances? in paragraph 1 of this Article requires an overall examination on a case by case basis of all the circumstances of an investment including, inter alia:
(a) its effects on third persons and the local community;
(b) its effects on the local, regional or national environment, including the cumulative effects of all investments within a jurisdiction on the environment;
(c) the sector the investor is in;
(d) the aim of the measure concerned;
(e) the regulatory process generally applied in relation to the measure concerned; or
(f) other factors directly relating to the investment or investor in relation to the measure concerned, and the examination shall not be limited to or be biased towards any one factor.
3. Nothing in paragraph 1 of this Article shall oblige a Member State to extend to COMESA investors the benefits of any treatment, preference or privilege resulting from:
(a) any customs union, free trade area, common market or monetary union, or any similar international convention or other forms of regional preferential arrangements, present or future, of which any of the Member States is or may become a party;
(b) any matter, including international agreements, pertaining wholly or mainly to taxation;
(c) any other international agreements, or chapters of international agreements, pertaining to the promotion or protection of investment; or
(d) any dispute settlement procedures in any other treaty.
Article 19. Specific Exceptions
1. Articles 17 and 18 shall not apply to:
(a) any measures existing at the date of entry into force of this Agreement maintained by each Member State under its laws and regulations or any amendment or modification to such measures, provided that the amendment or modification does not decrease the conformity of the measure as it existed immediately before the amendment or modification;
(b) privileges available within the Member State's economy made for the exclusive benefit of its own nationals within the framework of its national development programmes;
(c) subsidies, incentives under Article 12 or grants provided by a government or a state enterprise, including government-supported loans, guaranties and insurance; or
(d) taxation measures aimed at ensuring the effective collection of taxes, except where this results in arbitrary discrimination.
2. Notwithstanding any other provision of this Agreement, a Member State may take measures necessary to address historically based economic disparities suffered by identifiable ethnic or cultural groups due to discriminatory or oppressive measures against such groups prior to the signing of this Agreement.
3. The implementation of these exceptions shall not entitle any investor or investment to compensation for any competitive disadvantages he may suffer.
4. For greater certainty, non-discriminatory measures taken by a Member State to comply with its international obligations under other treaties shall not constitute a breach of this Agreement.
Article 20. Expropriation
1. Member States shall not nationalize or expropriate investments in their territory or adopt any other measures tantamount to expropriation of investments except:
(a) in the public interest; and
(b) in accordance with due process of law.
2. Where expropriation has been carried out, prompt and adequate compensation shall be paid.
3. Adequate compensation shall normally be assessed in relation to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation") and shall not reflect any change in value occurring because the intended expropriation had become known earlier. However, where appropriate, the assessment of fair and adequate compensation shall be based on an equitable balance between the adequate compensation shall be based on an equitable balance between the public interest and interest of those affected, having regard for all relevant circumstances and taking account of the current and past use of the property, the history of its acquisition, the fair market value of the investment, the purpose of the expropriation, the extent of previous profit made by the foreign investor through the investment, and the duration of the investment. Compensation may be adjusted to reflect the aggravating conduct by a COMESA investor or such conduct that does not seek to mitigate damages.
4. If payment is made in a currency of the host or home state, compensation shall include simple interest at the 6-month average U.S. dollar LIBOR rate from the date of expropriation until the date of actual payment.
5. If a Member State elects to pay in a currency other than a host or home state currency, the amount paid on the date of payment, if converted into a host or home state currency at the market rate of exchange prevailing on that date, shall be no less than if the amount of compensation owed on the date of expropriation had been converted into that host or home state currency at the market rate of exchange prevailing on that date, and simple interest had accrued at the 6-month average U.S. dollar LIBOR rate from the date of expropriation until the date of payment.
6. On payment, compensation shall be freely transferable. Awards that are significantly burdensome on a host state may be paid yearly over a period agreed by the Parties, subject to interest at the rate established by agreement of the disputants or by a tribunal. Where the Parties do not agree on a specific period, the matter shall be referred to a competent tribunal to determine the period within which the award shall be paid.
7. This Article shall not apply to the issuance of compulsory licences granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with applicable international agreements on intellectual property.
8. A measure of general application shall not be considered an expropriation of a debt security or loan covered by this Agreement solely on the ground that the measure imposes costs on the debtor that cause it to default on the debt.
8. Bona fide regulatory measures taken by a Member State or awards by judicial bodies of a Member State that are designed and applied to protect or enhance legitimate public welfare objectives, such as public health, safety and the environment, shall not constitute an expropriation or measures tantamount to expropriation under this Article.
9. The investor affected by the expropriation shall have a right under the law of the Member State making the expropriation, to a review by a juridical or other independent authority of that Member State, of his/its case and the valuation of his/its investment in accordance with the principles set out in paragraphs (1) to (8) of this Article. The Member State making the expropriation shall ensure that such a review is carried out promptly.
10. The Parties confirm their shared understanding that:
(a) expropriation may be direct or indirect:
(i) direct expropriation occurs when an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure; and
(ii) indirect expropriation occurs if a measure or series of measures of a Party has an effect equivalent to direct expropriation, in that it substantially or permanently deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure; and
(b) the determination of whether a measure or a series of measures have an effect equivalent to expropriation requires a case-by-case, fact-based inquiry, that takes into consideration:
(i) the economic impact of the measure or series of measures, although the sole fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred;
(ii) the duration of the measure or series of measures of a Party;
(iii) the character of the measure or series of measures, notably their object, context and intent; and
(iv) whether a measure by a Party breaches the Party's prior binding written commitment to the investor whether by contract, licence or other legal document.
Article 21. Compensation for Losses
1. COMESA investors whose investments in the territory of the Member States suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot shall be accorded treatment, as regards restitution, indemnification, compensation or other settlement, not less favourable than that which Member States accord to their own investors or to investors of any third State. Resulting payments shall be freely transferable at the exchange rate applicable on the date of transfer pursuant to the exchange regulations in force.
2. Without derogating from the provisions of paragraph (1) of this Article, any investor who, in any of the situations referred to in that paragraph, suffers losses in a Member State resulting from:
(a) requisitioning of their property by the forces or authorities of the Member States, acting under and within the scope of the legal provisions relating to their competences, duties and command structures; or
(b) destruction of their property by the forces or authorities of the Member States, which was not caused in combat action or was not required by the necessity of the situation or observance of any legal requirement;
shall be accorded restitution, or adequate compensation not less favourable than that which the Member States accord to their own investors or to investors of any third State.
3. For the purposes of this Article, state of emergency excludes natural disaster.
Article 22. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between investors where like conditions prevail, or a disguised restriction on investment flows, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member State of measures designed and applied to protect or enhance legitimate public welfare objectives such as:
(a) national security and public morals;
(b) human, animal or plant life or health;
(c) environment; or
(d) public health and safety.
2. Nothing in this Agreement shall be construed to:
(a) preclude a Member State from applying measures that it considers necessary for the fulfilment of its obligations under the United Nations Charter with respect to the maintenance or restoration of international peace or security;
(b) preclude a Member State from applying measures that it considers necessary for the protection of its own national security interests; or
(c) require a Member State to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests.
3. A Member State reserves the right to deny an investor the benefits of this Agreement, and to grant special and differential treatment to any investor and investment in such cases, where the investor is engaged in activities inimical to the economic and security interest of the Member State.
Article 23. Taxation
1. This Agreement shall not apply to taxation measures except as provided for in paragraph 3 of this Article.
2. Member States, with a view to encouraging cross-border investments, may conclude between themselves double taxation avoidance agreements.
3. Noting in this Article prevent an investor from claiming that a taxation measure by a Member State is tantamount to an expropriation of investment that contravenes Article 20.
4. Where an investor makes a claim under paragraph 3, that investor shall refer the matter to the Secretary General who shall use his good offices with a view to assisting the Member State and the investor to reach to an amicable solution.
5. Where, within 6 months of a referral under paragraph 4, no amicable solution has been reached, the investor may refer the matter to arbitration in the manner provided for under this Agreement.
Article 24. Measures to Safeguard Balance of Payments
1. In the event of serious balance of payment and external financial difficulties or threat thereof, a Member State may adopt or maintain restrictions on investments on which it has undertaken commitments provided for in Articles 15, 17, 19 and 20, including on payments or transfers for transactions related to such commitments.
2. Where measures to safeguard balance of payments are taken pursuant to this Article, notice of such measures shall be given to the CCIA Committee within 14 days from the date such measures are taken.
3. The measures referred to in paragraph 1 shall:
(a) not discriminate among Member States;
(b) be consistent with Article VIII of the Agreement of the International Monetary Fund;
(c) avoid unnecessary damage to the commercial, economic and financial interests of any other Member State;
(d) not exceed those necessary to deal with the circumstances described in paragraph 1; and
(e) be temporary and be phased out progressively as the situation specified in paragraph 1 improves.
4. A Member State adopting the balance of payment measures shall commence consultations with Member States through the CCIA Committee within 90 days from the date of notification in order to review the balance of payment measures adopted by it.
5. The CCIA Committee shall determine the rules applicable to the procedures under this Article.
Part Four. INVESTOR AND INVESTMENT OBLIGATIONS
Article 25. Compliance with Domestic Laws
COMESA investors and their investments shall comply with all applicable domestic laws and measures of the host state.
Article 26. Framework for Corporate Governance
1. COMESA Investors and their investments shall meet or exceed national and internationally accepted standards of corporate governance for the sector involved, in particular for transparency and accounting practices. In this regard, Member States, public bodies and companies are encouraged to improve the legal, institutional and regulatory framework for corporate governance that result from the separation of ownership and control and any other issues relevant to a company's decision-making process, such as environmental or ethical concerns, as set forth in this Agreement.
2. COMESA Investors and their investments shall ensure that all transactions with related or affiliated companies shall be arm's length transactions at fair market price. Investors and their investments shall not undertake any transfer pricing practices between themselves or any other related or affiliated companies.
3. COMESA Investors and their investments shall, in accordance with domestic laws and regulations:
(a) ensure the equitable treatment of all shareholders, in accordance with national laws;
(b) encourage active co-operation between corporations and stakeholders in creating wealth, jobs and the sustainability of financially sound enterprises;
(c) ensure that timely and accurate disclosure is made on all material matters regarding a corporation, including the financial situation, performance, ownership, and governance of the company, risks related to environmental liabilities, and any other matters in accordance with the relevant regulations and requirements; and
(d) provide information relating to human resource policies, such as programs for human resource development.
Article 27. Socio-political Obligations
1. COMESA Investors and their investments shall adhere to socio-political obligations including, but not exclusively, the following:
(a) respect for national sovereignty and observance of domestic laws, regulations and administrative practices;
(b) respect for socio-cultural values;
(c) non-interference with internal political affairs; and
(d) non-interference with intergovernmental relations.
2. COMESA Investors and their investments shall refrain from influencing the appointment of persons to public office or finance political parties.
3. COMESA Investors and their investments shall refrain from all acts that may be prejudicial to public order, morals or to the public interest. The investor shall also to refrain from exercising restrictive practices and from trying to achieve gains through unlawful means.
Article 28. Bribery and Corruption
1. COMESA Investors and their investments shall not offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a public official of a Member State, or to an official's relative or business associate or other person in close proximity to an official, 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 other rights in relation to an investment.
2. COMESA Investors and their investments shall also not be complicit in any act described in paragraph 1 of this Article, including through incitement, aiding and abetting or conspiracy to commit or authorize such acts.
3. Member States shall adopt such legislative and other measures as may be necessary to establish jurisdiction and enforce laws and procedures against any criminal offence committed in whole or in part in their territory by a national, or a COMESA investor and investment or its agent, or by any other person acting in relation to an investment in a Member State.
4. A breach of this article by a COMESA investor or its investment is deemed to constitute a breach of the domestic law of the Host State concerning the establishment and operation of an investment.
Article 29. Business Ethics and Human Rights
1. COMESA investors and their investments shall observe the United Nations Guiding Principles on Business and Human Rights with modifications necessary for local circumstances.
2. COMESA investors and investments shall among others:
(a) support and respect the protection of internationally proclaimed human rights;
(b) ensure that they are not complicit in human rights abuses;
(c) uphold the freedom of association and the effective recognition of the right to collective bargaining;
(d) eliminate all forms of forced and compulsory labour, including the effective abolition of child labour; and
(e) eliminate discrimination in respect of employment and occupation.
Where it is necessary to prioritize actions to address actual and potential adverse human rights impacts, COMESA investors should first seek to prevent and mitigate those that are most severe or where delayed response would make them irremediable.
Article 30. Corporate Social Responsibility
1. In pursuit of their economic objectives, COMESA investors and their investments shall proceed in ways that do not conflict with the social and economic development of host countries. Investors shall be sensitive to changes in the social and economic goals of the host countries.
2. Investors and their investments should act in accordance with fair business, marketing and advertising practices when dealing with consumers and should ensure the safety and quality of goods and services they provide.