Taking account of the need to facilitate the movement of labour resources in the CCIA, Member States shall accord to investors the right to hire technically qualified persons from any country. Such persons shall have full rights to enter and receive the necessary authorisations to reside in the Member State subject to the laws in force in that Member State promptly and without burdensome requirements. However, COMESA investors shall accord a priority to workers who possess the same qualifications and are available in the Member State or any other Member State.
Article 17. National Treatment
1. Subject to Article 18, 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 establishment, acquisition, expansion, 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; and
(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. Exceptions to National Treatment and other Obligations
1. This Agreement shall not apply to the Temporary Exclusion List and/or Sensitive List which a Member State may submit provided the Temporary Exclusion List and/or Sensitive List is submitted to the CCIA Committee within six months after the date of ratification and accession to this Agreement.
2. Any Temporary Exclusion List and/or Sensitive List submitted by a Member State shall be included in Annexes C and D to this Agreement.
3. In the event that a Member State, for justifiable reasons, is unable to provide any list within the stipulated period, it may seek an extension from the CCIA Committee. The CCIA Committee shall determine the length of the extension which shall not be longer than one year.
4. The Sensitive and Temporary Exclusion Lists shall be reviewed every two years and at such subsequent periodic intervals as may be decided by the CCIA Committee.
Article 19. 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 favorable than that it accords, in like circumstances, to investors and their investments from any third country with respect to the establishment, acquisition, expansion, 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. The provisions of Article 17(3) shall apply with the necessary modification to this Article.
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; or
(b) any matter, including international agreements, pertaining wholly or mainly to taxation.
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;
(a) on a non-discriminatory basis;
(b) in accordance with due process of law; and
(c) on payment of prompt adequate compensation.
2. Appropriate compensation shall normally be equivalent 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. Compensation may be adjusted to reflect the aggravating conduct by a COMESA investor or such conduct that does not seek to mitigate damages.
3. If payment is made in a currency of the host or home state, compensation shall include interest at a commercially reasonable rate for that currency from the date of expropriation until the date of actual payment.
4. 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 interest had accrued at a commercially reasonable rate for that host or home state currency from the date of expropriation until the date of payment.
5. 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.
6. 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.
7. 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. Consistent with the right of states to regulate and the customary international law principles on police powers, bona fide regulatory measures taken by 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 indirect 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.
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, indemnifcation, 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 rate of exchange 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 investor 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:
(a) designed and applied to protect national security and public morals;
(b) designed and applied to protect human, animal or plant life or health;
(c) designed and applied to protect the environment; or
(d) any other measures as may from time to time be determined by a Member State, subject to approval by the CCIA Committee.
2. Nothing in this Agreement shall be construed to prevent a Member State from adopting, maintaining or enforcing any measure that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to the principles outlined in sub-paragraphs 1(a) to (c) above.
3. Nothing in this Agreement shall be construed to:
(a) preclude a Member State from applying measures that it considers necessary for the fulfillment of its obligations under the United Nations Charter with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests; or
(b) 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.
Article 23. Non-application to Taxation Measures
1. This Agreement shall not apply to taxation measures except as provided for in paragraph 2 of this Article.
2. Article 20 shall apply to a taxation measure alleged to be an expropriation. However, no investor may invoke Article 20 as the basis of a claim where it has been determined pursuant to this Paragraph that the measure is not an expropriation. An investor that seeks to invoke Article 20 with respect to a taxation measure must refer to the Secretary General of the COMESA at the time that it gives its notice of intention to arbitrate under Article 28 the issue of whether that taxation measure involves an expropriation. The Secretary General shall ask the competent authorities of the host state and home state whether they do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of such referral, in which case the investor may submit its claim to arbitration, if the other conditions of Article 28 have been fulfilled as well.
Article 24. Emergency Safeguard Measures
1. If, as a result of opening up of economic activities in accordance with this Agreement, a Member State suffers or is threatened with any serious injury, the Member State may take emergency safeguard measures to the extent and for such period as may be necessary to prevent or to remedy such injury. The measures taken shall be provisional and without discrimination.
2. Where emergency safeguard measures are taken pursuant to this Article, notice of such measures shall be given to the CCIA Committee within
14 days from the date they are taken. The notice shall include justification of such action supported by evidence gathered from an investigation.
3. The CCIA Committee shall determine what constitutes serious injury and threat of serious injury and the procedures of instituting emergency safeguard measures pursuant to this Article.
Article 25. 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:
(a) shall not discriminate among Member States;
(b) shall be consistent with Article VIII of the Agreement of the International Monetary Fund;
(c) shall avoid unnecessary damage to the commercial, economic and financial interests of any other Member State;
(d) shall not exceed those necessary to deal with the circumstances described in paragraph 1; and
(e) shall 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 THREE. Dispute Settlement
Article 26. Negotiation and Mediation
1. In the event that a dispute arises from the interpretation and 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 27 or 28 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 27 or 28.
3. The parties shall seek to resolve potential disputes through amicable means, both prior to and during the cooling-off period.
4. Where no alternative means of dispute settlement are agreed upon, a party 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 27 or 28. 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 designate shall appoint a mediator from the COMESA Secretariats 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 27. 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 negotiation within 6 months, may be referred for decision to either
(i) an arbitral tribunal constituted under the COMESA Court of Justice in accordance with Article 28(b) of the COMESA Treaty; or
(ii) an independent arbitral tribunal; or
(iii) the COMESA Court of Justice sitting as a court;
2. The arbitral tribunal shall be formed in accordance with the provisions on arbitration set out in Annex A.
3. All documents relating to a notice of intention to arbitrate, the settlement of any dispute pursuant to Article 27, the initiation of a panel, or the pleadings, evidence and decisions in them, shall be available to the public.
4. Procedural and substantive oral hearings shall be open to the public.
5. An arbitral tribunal may take such steps as are necessary, by exception, to protect confidential business information in written form or at oral hearings.
6. An arbitral tribunal shall be open to the receipt of amicus curiae submissions in accordance with the process set out in Annex A.
7. The forum that a Member State first uses to bring its claim under this Article shall be determinative and it shall not subsequently have the right to bring a claim before any other fora.
8. The decision of the COMESA Court of Justice sitting as a tribunal or the independent arbitral tribunal shall be final and binding subject to the right of appeal as set out in Annex A.
Article 28. Investor-state Disputes
1. In the event that a dispute between a COMESA investor and a Member State has not been resolved pursuant to good faith efforts in accordance with Article 26, a COMESA investor may submit to arbitration under this Agreement a claim that the Member State in whose territory it has made an investment has breached an obligation under Part Two of this Agreement and that the investment has incurred loss or damage by reason of, or arising out of, that breach by submitting that claim to any one of the following fora at a time:
(a) to the competent court of the Member State in whose territory the investment has been made;
(b) to the COMESA Court of Justice in accordance with Article 28(b) of the COMESA Treaty; or
(c) to international arbitration:
(i) under the International Centre for the Settlement of Investment Disputes (ICSID) Convention, provided that both the home state of an investor and Member State in whose territory the investment has been made are parties to the ICSID Convention;
(ii) under the ICSID Additional Facility Rules, provided that either the non-disputing Party or the respondent is a party to the ICSID Convention;
(iii) under the UNCITRAL Arbitration Rules; or
(iv) Under any other arbitration institution or under any other arbitration rules, if the both parties to the dispute agree.
2. No claim shall be submitted to arbitration if more than three (3) years have elapsed from the date on which the COMESA investor first acquired, or should have first acquired, knowledge of the breach and knowledge that the COMESA investor has incurred loss or damage.
3. If the COMESA investor elects to submit a claim at one of the fora set out in paragraph 1 of this, 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.
4. Each Member State consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions. Each investor, 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 if he exercises the right to bring a claim against a Member State under this Agreement.
5. All documents relating to a notice of intention to arbitrate, the settlement of any dispute pursuant to Article 28, the initiation of an arbitral tribunal, or the pleadings, evidence and decisions in them, shall be available to the public.
6. Procedural and substantive oral hearings shall be open to the public.
7. An arbitral tribunal may take such steps as are necessary, by exception, to protect confidential business information in written form or at oral hearings.
8. An arbitral tribunal shall be open to the receipt of amicus curiae submissions in accordance with the process set out in Annex A with
Necessary adaption for application to investor-state disputes under this Article.
9. A Member State against whom a claim is brought by a COMESA investor under this Article may assert as a defence, counterclaim, right of set off or other similar claim, that the COMESA investor 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 29. Enforceability of Final Awards
Member States shall adopt such domestic rules as are required to make final awards enforceable in domestic legal proceedings in their states.
Article 30. Roster of Arbitrators
The COMESA Secretariat shall maintain a roster of qualified arbitrators from which parties to an arbitration under this Agreement may select arbitrators
Article 31. Governing Law In Disputes
When a claim is submitted to an arbitral tribunal, it shall be decided in accordance with this Agreement, the COMESA Treaty, national law of the host state, and the general principles of international law.
Part FOUR. Final Provisions
Article 32. 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 parties.
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, except as otherwise provided in this Agreement.
4. This Agreement shall not cover matters relating to investments covered by non-COMESA Agreements.
5. Where Member States have an international investment agreement with a third party, they shall strive to renegotiate that agreement to make it consistent with the present Agreement.
Article 33. Amendments
Any amendments to this Agreement shall be adopted by the Council and shall enter into force when ratified by fifty per cent of the Member States that have ratified or acceded to the Agreement.
Article 34. Supplementary Agreements or Arrangements
The Schedules, Action Plans, Annexes, and any other arrangements or agreements arising under this Agreement shall form an integral part of this Agreement.
Article 35. Adoption of Protocols
The Council may on the recommendation of the CCIA Committee adopt additional protocols to this Agreement which shall come into force in accordance with the provisions of Article 37of this Agreement.
Article 36. Accession of New Members
New members of COMESA shall accede to this Agreement on terms and conditions agreed between them and signatories to this Agreement.
Article 37. Entry Into Force
1. This Agreement shall enter into force when signed and ratified by at least six Member States.
2. Any Member State that has not ratified the agreement on the date of its entry into force may accede to this Agreement.
3. This Agreement shall enter into force in relation to an acceding Member State on the date its instrument of accession shall be deposited.
Article 38. 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 39. Withdrawal and Renewal
1. This Agreement shall remain in force for a period of ten years and shall continue in force for the same period unless terminated by consensus of Member States.
2. Notwithstanding Article 39, for ten years from the date of termination, the Agreement shall continue to apply to investments of COMESA investors established and acquired prior to the date of termination.
3. 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 InvestmentAgreement for the COMESA Common Investment Area.
DONE at..... this 23 day of May 2007, in the English and French languages both texts being authentic.
Attachments
SCHEDULE I. CO-OPERATION AND FACILITATION PROGRAMME
SCHEDULE I. CO-OPERATION AND FACILITATION PROGRAMME