In respect of the Co-operation Facilitation Programme, Member States shall take:
In respect of the Co-operation Facilitation Programme, Member States shall take:
(a) Individual initiative to:
(a) Individual initiative to:
(i) Increase transparency of Member States investment rules, regulations, policies and procedures through the publication of Such information on a regular basis and making such information widely available;
(i) Increase transparency of Member States 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
(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.
(iii) Expand the number of bilateral Double Taxation Avoidance Agreements among COMESA member States.
(b) Collective initiative to:
(b) Collective initiative to:
(i) Establish a Database for COMESA Supporting Industries and COMESA Technology Suppliers;
(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:
(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;
(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 and D and co-ordinate efforts within COMESA and other international organizations involved in technical co-operation;
(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 and 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
(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.
(vi) Examine the possibility of a COMESA Double Taxation Agreement.
SCHEDULE II. PROMOTION AND AWARENESS PROGRAMME
SCHEDULE II. PROMOTION AND AWARENESS PROGRAMME
In respect of the Promotion and Awareness programme, Member States shall;
In respect of the Promotion and Awareness programme, Member States shall;
1. 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.
1. 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.
2. Conduct regular consultation among investment agencies of COMESA on investment promotion matters;
2. Conduct regular consultation among investment agencies of COMESA on investment promotion matters;
3. Organize investment-related training programmes for officials of investment agencies of COMESA;
3. Organize investment-related training programmes for officials of investment agencies of COMESA;
4. Exchange lists of promoted sectors/industries where member States could encourage investments from other member States and initiate promotional activities; and
4. Exchange lists of promoted sectors/industries where member States could encourage investments from other member States and initiate promotional activities; and
5. examine possible ways by which the investment agencies of Member States can support the promotion efforts of other member States.
5. examine possible ways by which the investment agencies of Member States can support the promotion efforts of other member States.
SCHEDULE III. LIBERALISATION PROGRAMME
SCHEDULE III. LIBERALISATION PROGRAMME
In respect of the Liberalization Programme, Member States shall:
In respect of the Liberalization Programme, Member States shall:
1. Unilaterally reduce and eliminate restrictive investment measures and review their investment regimes regularly towards further liberalization. In this context, Member States may undertake actions to liberalise, among others:
1. Unilaterally reduce and eliminate restrictive investment measures and review their investment regimes regularly towards further liberalization. In this context, Member States may undertake actions to liberalise, among others:
(i) rules, regulations and policies relating to investment;
(i) rules, regulations and policies relating to investment;
(ii) rules on licensing conditions;
(ii) rules on licensing conditions;
(iii) rules relating to access to domestic finance; and
(iii) rules relating to access to domestic finance; and
(iv) Rules to facilitate payment, receipts and repatriation of profits by investors
(iv) Rules to facilitate payment, receipts and repatriation of profits by investors
2. Undertake individual action plans to:
2. Undertake individual action plans to:
(i) open up all industries for investment to COMESA investors by 2010 in accordance with the provisions of this Agreement; and
(i) open up all industries for investment to COMESA investors by 2010 in accordance with the provisions of this Agreement; and
(ii) extend national treatment to all COMESA investors by 2010 in accordance with the provisions of this Agreement; and
(ii) extend national treatment to all COMESA investors by 2010 in accordance with the provisions of this Agreement; and
3. Promote freer flow of capital, skilled labour, professionals and technology among COMESA member States.
3. Promote freer flow of capital, skilled labour, professionals and technology among COMESA member States.
Attachments
Attachments
1. Consultation and Negotiation
1. Consultation and Negotiation
In the event of a dispute under this Agreement, the claimant and the respondent shall seek to resolve the dispute in accordance with Article 28. The claimant and respondent constitute the disputing parties.
In the event of a dispute under this Agreement, the claimant and the respondent shall seek to resolve the dispute in accordance with Article 28. The claimant and respondent constitute the disputing parties.
2. Submission of a Claim to Arbitration
2. Submission of a Claim to Arbitration
(1) In the event that a disputing party considers that a dispute cannot be settled by alternative means, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled: A Member State may submit to arbitration under this Agreement a claim that the respondent has breached an obligation under this Agreement, and that the claimant or its investor has incurred loss or damage by reason of, or arising out of, that breach;
(1) In the event that a disputing party considers that a dispute cannot be settled by alternative means, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled: A Member State may submit to arbitration under this Agreement a claim that the respondent has breached an obligation under this Agreement, and that the claimant or its investor has incurred loss or damage by reason of, or arising out of, that breach;
(2) For greater certainty, a claimant may submit to arbitration a claim referred to in Paragraph (1) that the respondent has breached an obligation through the actions of a designated government monopoly, local or state government or a state enterprise exercising delegated government authority.
(2) For greater certainty, a claimant may submit to arbitration a claim referred to in Paragraph (1) that the respondent has breached an obligation through the actions of a designated government monopoly, local or state government or a state enterprise exercising delegated government authority.
(3) At least 180 days before submitting any claim to arbitration, a potential claimant shall deliver to the potential respondent a written notice of its intention to submit the claim to arbitration ("notice of intention). The notice shall specify:
(3) At least 180 days before submitting any claim to arbitration, a potential claimant shall deliver to the potential respondent a written notice of its intention to submit the claim to arbitration ("notice of intention). The notice shall specify:
(a) the name and address of the claimant and its legal representative;
(a) the name and address of the claimant and its legal representative;
(b) for each claim, the provision(s) of this Agreement alleged to have been breached and any other relevant provisions;
(b) for each claim, the provision(s) of this Agreement alleged to have been breached and any other relevant provisions;
(c) the legal and factual basis for each claim; and
(c) the legal and factual basis for each claim; and
(d) the relief sought and, where appropriate, the approximate amount of damages claimed.
(d) the relief sought and, where appropriate, the approximate amount of damages claimed.
The CCIA Committee may establish a specific form for this purpose and make it available through the Internet and other means.
The CCIA Committee may establish a specific form for this purpose and make it available through the Internet and other means.
(4) Provided that at least six months have elapsed since the events giving rise to the claim, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled, a claimant may formally submit a Notice of Arbitration to the respondent State and to the COMESA Secretariat.
(4) Provided that at least six months have elapsed since the events giving rise to the claim, and all other pre-conditions for such a dispute as required by the Agreement have been fulfilled, a claimant may formally submit a Notice of Arbitration to the respondent State and to the COMESA Secretariat.
(5) A claim shall be deemed submitted to arbitration when the claimants Notice of Arbitration is submitted to the respondents and to the COMESA Secretariat. The CCIA Committee may establish a specific form for this purpose and make it available through the internet and other means. The Notice of Arbitration shall include, at a minimum, the information required in Paragraph (3).
(5) A claim shall be deemed submitted to arbitration when the claimants Notice of Arbitration is submitted to the respondents and to the COMESA Secretariat. The CCIA Committee may establish a specific form for this purpose and make it available through the internet and other means. The Notice of Arbitration shall include, at a minimum, the information required in Paragraph (3).
3. Rules of Arbitration
3. Rules of Arbitration
The CCIA Committee shall establish Rules of Arbitration consistent with the provisions of this Agreement. Until the adoption of such Rules, the Rules of Arbitration of the International Centre for Settlement of Investment Disputes in effect on the date the claim or claims were submitted to arbitration under this Agreement, shall govern the arbitration except to the extent modified by this Agreement, irrespective of whether the host and home states are parties to the ICSID Convention.
The CCIA Committee shall establish Rules of Arbitration consistent with the provisions of this Agreement. Until the adoption of such Rules, the Rules of Arbitration of the International Centre for Settlement of Investment Disputes in effect on the date the claim or claims were submitted to arbitration under this Agreement, shall govern the arbitration except to the extent modified by this Agreement, irrespective of whether the host and home states are parties to the ICSID Convention.
4. Consent of Each Party to Arbitration
4. Consent of Each Party to Arbitration
Each Member State consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions.
Each Member State consents to the submission of a claim to arbitration under this Agreement in accordance with its provisions.
5. Conditions and Limitations on Consent of Each Party
5. Conditions and Limitations on Consent of Each Party
No claim may be submitted to arbitration if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged in the Notice of Arbitration.
No claim may be submitted to arbitration if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged in the Notice of Arbitration.
6. Selection of Arbitrators
6. Selection of Arbitrators
(1) The Secretary General of the COMESA Secretariat shall, within 30 days of the filing of a notice of arbitration, appoint the panel members from the standing roster of panelists. No panel member shall be from the host or home state.
(1) The Secretary General of the COMESA Secretariat shall, within 30 days of the filing of a notice of arbitration, appoint the panel members from the standing roster of panelists. No panel member shall be from the host or home state.
(2) A panel shall be composed of three members, with one designated as President of the panel.
(2) A panel shall be composed of three members, with one designated as President of the panel.
(3) A disputing party may contest the nomination of an arbitrator for good cause, including real or apparent conflict of interest. Any challenges shall be decided by the remaining two designated arbitrators. Such a challenge must be brought as soon as practicable after information leading to the challenge is made known to the challenging party.
(3) A disputing party may contest the nomination of an arbitrator for good cause, including real or apparent conflict of interest. Any challenges shall be decided by the remaining two designated arbitrators. Such a challenge must be brought as soon as practicable after information leading to the challenge is made known to the challenging party.
7. Conduct of the Arbitration
7. Conduct of the Arbitration
(1) Unless otherwise agreed by the disputing parties, the place of arbitration shall be at the COMESA Secretariat.
(1) Unless otherwise agreed by the disputing parties, the place of arbitration shall be at the COMESA Secretariat.
(2) Any non-disputing Member State may make oral and written submissions to the tribunal regarding the interpretation of this Agreement.
(2) Any non-disputing Member State may make oral and written submissions to the tribunal regarding the interpretation of this Agreement.
(3) Without prejudice to a tribunals authority to address other objections as a preliminary question, such as an objection that a dispute is not within a tribunals competence, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made.
(3) Without prejudice to a tribunals authority to address other objections as a preliminary question, such as an objection that a dispute is not within a tribunals competence, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made.
(a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its first written argument.
(a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event later than the date the tribunal fixes for the respondent to submit its first written argument.
(b) On receipt of an objection under this Paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds thereof.
(b) On receipt of an objection under this Paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds thereof.
(c) In deciding an objection under this Paragraph, the tribunal shall assume to be true claimants factual allegations in support of any claim in the notice of arbitration. The tribunal may also consider any relevant facts not in dispute.
(c) In deciding an objection under this Paragraph, the tribunal shall assume to be true claimants factual allegations in support of any claim in the notice of arbitration. The tribunal may also consider any relevant facts not in dispute.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because the respondent did or did not raise an objection under this Paragraph or make use of the expedited procedure set out in the following Paragraph.
(d) The respondent does not waive any objection as to competence or any argument on the merits merely because the respondent did or did not raise an objection under this Paragraph or make use of the expedited procedure set out in the following Paragraph.
(4) In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under Paragraph (3) or any objection that the dispute is not within the tribunals competence. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds thereof, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period of time, which may not exceed 30 days.
(4) In the event that the respondent so requests within 45 days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under Paragraph (3) or any objection that the dispute is not within the tribunals competence. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds thereof, no later than 150 days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional 30 days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period of time, which may not exceed 30 days.
(5) When it decides a respondents objection under Paragraph (3), the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorneys fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider
(5) When it decides a respondents objection under Paragraph (3), the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorneys fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider
Inter alia whether either the claimants claim or the respondents objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
Inter alia whether either the claimants claim or the respondents objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
(6) A respondent may not assert as a defense, counterclaim, right of setoff, or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
(6) A respondent may not assert as a defense, counterclaim, right of setoff, or for any other reason that the claimant has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an insurance or guarantee contract.
(7) A tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the tribunals jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the tribunals jurisdiction. A tribunal may not order attachment or enjoin the application of a measure alleged to constitute a breach of the relevant parts of this Agreement. The protection of the public welfare and public interests shall be considered when any interim measures are requested.
(7) A tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the tribunals jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the tribunals jurisdiction. A tribunal may not order attachment or enjoin the application of a measure alleged to constitute a breach of the relevant parts of this Agreement. The protection of the public welfare and public interests shall be considered when any interim measures are requested.
8. Amicus Curiae
8. Amicus Curiae
(1) The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party (the "submitter).
(1) The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party (the "submitter).
(2) The submissions shall be provided in English, French or Potugesesor in the principal language of the host state, and shall identify the submitter and any Party, other government, person, or organization, other than the submitter, that has provided, or will provide, any financial or other assistance in preparing the submission.
(2) The submissions shall be provided in English, French or Potugesesor in the principal language of the host state, and shall identify the submitter and any Party, other government, person, or organization, other than the submitter, that has provided, or will provide, any financial or other assistance in preparing the submission.
(3) The CCIA Committee may establish and make available to the public a standard form for applying for sta/tus as amicus curiae. This may include specific criteria which will help guide a tribunal in determining whether to accept a submission in any given instance.
(3) The CCIA Committee may establish and make available to the public a standard form for applying for sta/tus as amicus curiae. This may include specific criteria which will help guide a tribunal in determining whether to accept a submission in any given instance.
(4) Amicus curiae submissions may relate to any matter covered by this Agreement that is relevant to the claim before the tribunal.
(4) Amicus curiae submissions may relate to any matter covered by this Agreement that is relevant to the claim before the tribunal.
9. Transparency of Arbitral Proceedings
9. Transparency of Arbitral Proceedings
(1) Subject to Paragraphs (2) and (4), the claimant and respondent shall, after sending the following documents to the other disputing party, promptly transmit them to the Secretariat which shall make them available to the public including by Internet:
(1) Subject to Paragraphs (2) and (4), the claimant and respondent shall, after sending the following documents to the other disputing party, promptly transmit them to the Secretariat which shall make them available to the public including by Internet:
(a) the notice of intention;
(a) the notice of intention;