Article 31. Environmental Protection and Social Impact Assessment
1. COMESA Investors and their investments shall, in performing their activities, protect the environment and where such activity causes damages to the environment; take reasonable steps to restore it as far as possible, and to ensure fair compensation is paid to those impacted by the environmental damages.
2. COMESA Investors or their investments shall comply with environmental and social assessment screening criteria 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.
3. The impact assessments required under paragraph 2 shall include assessments of the impacts on the human rights of the persons in the areas potentially impacted by the investment.
4. COMESA Investors or their investments shall make the environmental and social impact assessments:
(a) public; and
(b) accessible to the local communities, or other areas with potentially affected interests, in an effective and sufficiently timely manner so as to allow comments to be made to the investor, investment and/or government prior to the completion of the host state processes for establishing an investment.
5. COMESA Investors, their investments and the 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. The application of the precautionary principle by investors and investments shall be described in the environmental impact assessment.
Article 32. Environmental Management and Improvement
1. COMESA investments shall, in keeping with good practice requirements relating to the size and nature of the investment, and as required under the domestic laws, maintain an environmental management system consistent with recognized international environmental management standards and good business practice standards.
2. Emergency response and decommissioning plans shall be included, and regularly reviewed and updated in the environmental management system process, and made accessible to the host state and the public.
3. A closure fund to ensure that resources are available to implement the decommissioning plan shall be established and maintained by the Investor or its Investment in accordance with good industry practice for such funds.
4. Environmental management plans shall include provision for the continued improvement of environmental management technologies and practices over the life of the Investment. Such improvements shall be consistent with applicable laws, but shall strive to exceed legally applicable standards and always maintain high levels of environmental performance consistent with best industry practice.
Article 33. Implications of Breach of Investors' Obligations
Without prejudice to other rights and remedies of a host state or its population, a host state may initiate a proceeding against a COMESA investor or its investment in the courts of the host state for breaches of its obligations under this Agreement. By specific written agreement, the disputing parties may submit the dispute to an arbitral tribunal in accordance with Article 36.
Part Five. DISPUTE SETTLEMENT
Article 34. Negotiation and Mediation
1. In the event that a dispute arises from the interpretation or application of this Agreement between Member States, or between a Member State and a COMESA investor, the party wishing to raise the dispute shall issue a notice of intention to initiate a claim under the dispute resolution process provided for under Articles 35 or 36 under this Agreement to the other potential disputing party ("notice of intention").
2. For the purposes of this Agreement, there shall be the minimum of a six-month cooling-off period between the date of a notice of intention under this Agreement ("the cooling-off period"), and the date a party may formally initiate a dispute under Articles 35 or 36.
3. The parties shall seek to resolve potential disputes through amicable means, both prior to and during the cooling-off period.
4. Where amicable means fail, the disputing parties shall seek the assistance of a mediator to resolve disputes during the cooling-off period required under this Agreement between the notice of intention and the initiation of dispute settlement proceedings under Articles 35 or 36. The potential disputants shall use a mediator from the list established by the COMESA Secretariat for this purpose, or another one of their joint choosing. Recourse to mediation does not alter the minimum cooling-off period.
5. If no mediator is chosen by the disputing parties prior to three months before the expiration of the cooling-off period, the President of the COMESA Court of Justice or his/her designate shall appoint a mediator from the COMESA Secretariat's list who is not a national of the Member State of the COMESA investor or the Member State(s) party to the dispute. The appointment shall be binding on the disputing parties.
6. If the parties accept a mediation ruling, the ruling shall immediately be implemented thereafter.
Article 35. Settlement of Disputes between Member States
1. Any dispute between Member States as to the interpretation or application of this Agreement not satisfactorily settled through amicable means in the cooling-off period may be referred for decision to the COMESA Court of Justice sitting as a court of arbitration, in accordance with Article 28(b) of the COMESA Treaty.
2. The decision under paragraphs 1 shall be final and binding.
Article 36. Investor-State Disputes
1. In the event that a dispute between a COMESA investor and a Member State has not been resolved, pursuant to Article 34, a COMESA investor may, subject to the exhaustion of local remedies in the host state, submit a claim to the COMESA Court of Justice under Article 26 (1) of the Treaty.
2. Paragraph 1 shall apply unless the disputing parties, by specific written agreement, submit the dispute to the following arbitral fora:
(a) an African international arbitration institution; or
(b) under any other arbitration institution or under any other arbitration rules, as both parties to the dispute agree.
3. A COMESA investor or its investment may submit a claim to arbitration pursuant to this Agreement, provided that the COMESA investor or investment, as appropriate:
(a) has first submitted a claim before the domestic courts of the Host State for the purpose of pursuing local remedies, after the exhaustion of any administrative remedies, relating to the measure underlying the claim under this Agreement, and a resolution has not been reached within a reasonable period of time from its submission to a local court of the host state; or
(b) demonstrates on a motion to permit arbitration that there are no reasonably available legal remedies capable of providing effective remedies for the dispute concerning the underlying measure, or the legal remedies provide no reasonable possibility of such remedies in a reasonable period of time.
4. No claim shall be submitted to arbitration if more than three (3) years have elapsed from the date on which the COMESA investor or its investment first acquired, or should have first acquired, knowledge of the breach and knowledge that the COMESA investor or its investment has incurred loss or damage.
5. If the COMESA investor elects to submit a claim at one of the fora set out in paragraph 1 of this Article, that election shall be definitive and the investor may not thereafter submit a claim relating to the same subject matter or underlying measure to other fora.
6. Each Member State consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions. Each COMESA investor or its investment, by virtue of establishing or continuing to operate or own an investment subject to this Agreement, consents to the terms of the submission of a claim to dispute resolution under this Agreement.
7. A Member State against whom a claim is brought by a COMESA investor or its investment under this Article, may assert as a defence, counterclaim, right of set off or other similar claim, that the COMESA investor or its investment bringing the claim has not fulfilled its obligations under this Agreement, including the obligations to comply with all applicable domestic measures or that it has not taken all reasonable steps to mitigate possible damages.
Article 37. Enforceability of Final Awards and other Decisions
Enforceability of final awards and other decisions shall be governed by the rules of civil procedure in force in the Member State in which execution is to take place.
Part Six. FINAL PROVISIONS
Article 38. Other Agreements
1. This Agreement or any action taken under it shall not affect the rights and obligations of the Member States under existing agreements to which they are party.
2. Nothing in this Agreement shall affect the rights of the Member States to enter into other agreements not contrary to the principles, objectives and terms of this Agreement.
3. In the event of inconsistency between this Agreement and such other agreements between Member States mentioned in paragraph 2 of this Article, this Agreement shall prevail to the extent of the inconsistency, and in so far as it is more favorable to the investor.
Article 39. Amendments
Any amendments to this Agreement shall be adopted by the Council and shall enter into force when ratified by two thirds of the Member States that have ratified or acceded to the Agreement.
Article 40. Supplementary Arrangements
Annexes and any other arrangements arising under this Agreement shall form an integral part of this Agreement.
Article 41. Adoption of Regulations
The Council may on the recommendation of the CCIA Committee adopt additional regulations to this Agreement, which shall come into force in accordance with the provisions of Article 43 of this Agreement.
Article 42. Entry Into Force
1. This Agreement shall enter into force when signed and ratified by at least two thirds Member States.
2. This Agreement shall enter into force in relation to an acceding Member State on the date its instrument of accession shall be deposited.
Article 43. Accession
Any Member State that has not ratified this Agreement on the date of its entry into force may accede to this Agreement.
Article 44. Depository
This Agreement and all instruments of ratification or accession shall be deposited with the Secretary General who shall transmit certified true copies of this Agreement to all the Member States.
Article 45. Withdrawal
1. This Agreement shall remain in force unless terminated by consensus of Member States.
2. A Member State may withdraw from this Agreement by written notification to the Secretary General who shall immediately inform all the Member States. The Agreement shall expire for that Member State one year after the date of such notification, provided that the rights of COMESA investors where an investment is substantially in the process of being established or has been established shall survive for a period of five years from such withdrawal.
Conclusion
IN WITNESS WHEREOF, the undersigned being duly authorised by their respective Governments, have signed this Investment Agreement for the COMESA Common Investment Area.
DONE at ............... this ................ day of .......... 2018, in the English, French and Arabic languages, all three texts being authentic.
The President of the Republic of Burundi
The President of the Union of the Comoros
The President of the Democratic Republic of Congo
The President of the Republic of Djibouti
The President of the Arab Republic of Egypt
The President of the State of Eritrea
His Majesty the King of the Kingdom of eSwatini
The President of the Federal Democratic Republic of Ethiopia
The President of the Republic of Kenya
The President of the State of Libya
The President of the Republic of Madagascar
The President of the Republic of Malawi
The Prime Minister of the Republic of Mauritius
The President of the Republic of Rwanda
The President of the Republic of Seychelles
The President of the Republic of Sudan
The President of the Republic of Uganda
The President of the Republic of Zambia
The President of the Republic of Zimbabwe
Attachments
Schedule I. CO-OPERATION AND FACILITATION PROGRAMME
In respect of the Co-operation and Facilitation Programme, Member States shall take:
(a) individual initiative to:
(i) increase transparency of Member State's investment rules, regulations, policies and procedures through the publication of Such information on a regular basis and making such information widely available;
(ii) simplify and expedite procedures for applications and approvals of investment projects at all levels; and
(iii) expand the number of bilateral Double Taxation Avoidance Agreements among COMESA Member States;
(b) collective initiative to:
(i) establish a Database for COMESA Supporting Industries and COMESA Technology Suppliers;
(ii) establish a COMESA database to enhance the flow of COMESA investment data and information on investment opportunities in COMESA:
(iii) promote public-private sector linkages through regular dialogues with the COMESA business community and other international organizations to identify investment impediments within and outside COMESA and propose ways to improve the COMESA investment environment;
(iv) identify target areas for technical co-operation, e.g. development of human resources, infrastructure, supporting industries, small and medium-sized enterprises, information technology, industrial technology, R & D and co-ordinate efforts within COMESA and other international organizations involved in technical co-operation;
(v) review and where possible improve the Investment Agreement for the COMESA Common Investment Area; and
(vi) examine the possibility of a COMESA Double Taxation Agreement.
Schedule II. PROMOTION AND AWARENESS PROGRAMME
In respect of the Promotion and Awareness programme, Member States shall:
(a) organise joint investment promotion activities e.g. seminars, workshops, inbound familiarization tours for investors from capital exporting countries, joint promotion of specific projects with active business sector participation;
(b) conduct regular consultation among investment agencies of COMESA on investment promotion matters;
(c) organize investment-related training programmes for officials of investment agencies of COMESA;
(d) exchange lists of promoted sectors/industries where member States could encourage investments from other member States and initiate promotional activities; and
(e) examine possible ways by which the investment agencies of Member States can support the promotion efforts of other member States.
Schedule III.
List of national authority contact points for Member States for the purposes of registering an investment under Article 3.