Communication from the Ministry of Foreign Affairs No. 162 / 1994 Coll.
Communication from the Ministry of Foreign Affairs on the negotiation of the Agreement between the Czech Republic and Australia on mutual support and protection of investment
Valid
International Treaty
Effective from 29.06.1994
162
COMMUNICATION
Ministry of Foreign Affairs
The Ministry of Foreign Affairs announces that the Agreement between the Czech Republic and Australia on mutual support and protection of investment was signed in Canberra on 30 September 1993.
The Parliament of the Czech Republic agreed to the Agreement and the President of the Republic ratified it.
The Agreement entered into force on 29 June 1994 pursuant to Article 14 (1) thereof.
The Czech version of the Agreement is hereby published at the same time.
AGREEMENT
between
Czech Republic and Australia
on mutual support and investment protection
Czech Republic and Australia ("Contracting Parties')
confirming the importance of promoting the movement of capital for economic activity and development and recognising its role in expanding economic relations and technical cooperation, in particular with regard to the investment of investors of one Contracting Party in the territory of the other Contracting Party; and
Recognising that the pursuit of these objectives would facilitate a clear identification of the principles relating to the protection of investment, together with rules which should ensure a more effective use of those principles in the territory of the Contracting Parties,
they have agreed as follows:
Definitions
(1) For the purposes of this Agreement:
(a) "investment" shall mean all types of property values owned or controlled by investors of a Party and which are made available by the other Party under its laws, regulations and policies in the field of investment as they are carried out from time to time, including investment related activities. The investment shall include in particular:
(i) movable and immovable property, including rights such as mortgages, liens and guarantees;
(ii) shares, securities, bonds and debt certificates and any other type of participation in the company;
(iii) a loan or other claim for money or entitlement to a performance of economic value;
(iv) intellectual property rights, including industrial rights, such as patents, trademarks, trade names, industrial designs, copyright, know- how and goodwill; and
(v) business authorisations and any other rights required to carry out an economic activity and which have an economic value, provided by law or contract, including the right to deal with agriculture, forestry, fish and other animals, to seek, exploit and exploit natural resources and to produce, use and sell products;
(b) "investor" means a citizen or a company of one of the Contracting Parties;
(c) "citizen" means:
(i) in relation to Australia, a natural person who is an Australian national or whose residence in Australia is not limited in time under Australian law;
(ii) in relation to the Czech Republic, a natural person who is a national of the Czech Republic;
(d) "company" means any association, association, holding company, trust or other legally recognised unit established, established or otherwise properly organised:
(i) under the laws of the Contracting Party; or
(ii) under the law of a third country and owned by the company referred to in paragraph 1 (d) (i) of this Article, or by a natural person who is a citizen of one of the Contracting Parties in accordance with its law;
irrespective of whether the company is established for gainful purposes, whether it is privately or otherwise owned or has limited or unlimited liability;
(e) "return" means the amount resulting from the investment and including profits, dividends, interest, capital gains, royalties, management and technical assistance fees, in kind and any other statutory revenue;
(f) "freely convertible currency" means the convertible currency thus determined by the International Monetary Fund;
(g) "territory" in relation to a Contracting Party includes territorial waters, maritime zones or continental shelf where that Contracting Party exercises its sovereignty, sovereignty or jurisdiction in accordance with international law.
(2) For the purposes of paragraph 1 of this Article, the proceeds to be invested shall be considered as investments and any change in the form of the asset being invested or reinvested shall not affect its nature of the investment.
(3) For the purposes of this Agreement, a natural person or a company shall be deemed to have control over another company or investment if the person or company has a substantial participation in that company or investment.
Application of the Agreement
(1) This Agreement shall apply to investments established after 1 January 1950.
(2) If a citizen or a third-country company owns or controls a company of one Contracting Party, the Contracting Parties may agree between themselves that the rights and benefits of this Agreement will not apply to such a company.
(3) A company duly constituted under the law of one Contracting Party shall not be regarded as an investor of the other Contracting Party, but investments made in that company by investors of the other Contracting Party shall benefit from the protection of this Agreement.
(4) This Agreement shall not apply to a company established under a third-country law pursuant to Article 1 (1) (d) (ii) where it has already been applied to the same case to the provisions of the Investment Protection Agreement negotiated with that third country.
(5) Where such a situation is possible in one of the Contracting Parties, this Agreement shall not apply to a person who is a citizen but does not have the nationality of one of the Contracting Parties if:
(a) the provisions of the Investment Protection Agreement, negotiated between the Contracting Party and between the country of which the person is a national, have already been applied to the same case; or
(b) that person is a national of the other Contracting Party.
Aid and investment protection
(1) Each Contracting Party will encourage and support investment within its territory by investors of the other Contracting Party and will make investment possible in accordance with its laws and investment policy.
(2) The Contracting Party shall ensure fair and fair treatment of investments in its territory.
(3) The Contracting Party shall ensure, in accordance with its laws, the protection and security of investment within its territory and shall not impede the administration, maintenance, use, use or disposal of investments.
(4) This Agreement shall not prevent an investor from taking advantage of the legal or political measures of the other Party which are more favourable than those provided for in this Agreement.
Most favoured nation clause
The Contracting Party shall always treat investments in its territory, including compensation under Article 7 and transfers under Article 8, at least as favourably as it treats investors in any third country, provided that the Contracting Party is not obliged to grant investment treatment and benefits resulting from:
(a) the customs union, economic union, free trade zone or regional economic integration agreement to which the Contracting Party belongs; or
(b) the provisions of double taxation agreements concluded with a third country.
Entry and residence of persons
(1) The Contracting Party shall, in accordance with its laws on the entry and residence of foreign nationals, authorise natural persons who are citizens of the other Contracting Party and persons employed by companies of that other Contracting Party to enter and reside in its national territory for the purpose of carrying out investment activities.
(2) The Contracting Party shall, in accordance with its laws, authorise investors of the other Contracting Party who have investments in the territory of the first Contracting Party to employ in the territory of the first Contracting Party key technical and management staff of their choice, irrespective of nationality.
Expropriation and nationalisation
(1) No Contracting Party shall carry out nationalisation, expropriation or other measures having the same effect as the nationalisation or expropriation ("expropriation ') of the investors of the other Contracting Party unless the following conditions are met:
(a) the expropriation is in the public interest relating to the internal needs of the Contracting Party and has been carried out under the law;
(b) the expropriation is not discriminatory; and
(c) the expropriation shall be accompanied by payment of an immediate, appropriate and full refund.
(2) The compensation referred to in paragraph 1 of this Article will be calculated on the basis of the market price of the investment just before the expropriation or before the forthcoming expropriation has become publicly known. If the price cannot be established reliably, the compensation shall be determined in accordance with generally accepted valuation principles and fair principles that take into account the capital invested, the depreciation, the capital recovered, the value of the capital replaced, the exchange rate changes and other serious circumstances.
(3) The refund will be paid without undue delay, including interest at a valid level of trade from the date on which the measures were implemented until the date of payment and shall be freely transferable between the territories of the Contracting Parties. The refund shall be paid either in the currency of the original investment or at the request of the investor in another freely convertible currency.
Loss compensation
(1) Where a Contracting Party takes measures relating to losses suffered on its territory by nationals or companies of any other country due to armed conflict, exceptional circumstances, civil unrest or other similar events, the treatment to be granted to investors of the other Party concerning restitution, compensation, compensation or other compensation shall not be less favourable than that accorded to nationals and companies of any third country by the first Contracting Party.
(2) The resulting payments shall be freely transferable between the territories of the Contracting Parties and shall be paid in freely convertible currency.
Transfers
(1) The Contracting Party shall, at the request of the investor of the other Contracting Party and subject to its right to exercise, in exceptional financial or economic circumstances, the rights conferred by its law and in good faith, the transfer of all funds of that investor relating to the investment in its territory, the wages and other assets of personnel hired from abroad in connection with that investment, freely without undue delay and in any event within a period not exceeding 45 days of the request. This appropriation is intended to cover, in particular:
(a) the original capital and the additional capital used to maintain or expand the investment;
(b) revenue;
(c) fees, including payments relating to intellectual property rights and industrial property rights;
(d) income from the sale, exemption or liquidation of an investment; and
(e) payments made under the loan agreement.
(2) If the investor does not agree with another solution, transfers of such funds and earnings of foreign personnel abroad will be made in freely convertible currency and at the rate applicable on the date of transfer under the laws of the Contracting Party that made the investment possible.
(3) A Contracting Party may protect the rights of creditors or ensure the enforceability of judgments in judicial proceedings by the proper, non-discriminatory and fair application of its laws.
Consultation between Contracting Parties
The Contracting Parties shall, upon request, consult any of them on questions relating to the interpretation or implementation of this Agreement.
Settlement of disputes between the Parties
(1) The Contracting Parties shall seek a friendly solution to any dispute between them relating to this Agreement.
(2) If the dispute is not resolved in such a way within 90 days of the date on which one Contracting Party has requested consultations or negotiations in writing, the dispute shall, at the request of any Contracting Party, be submitted to a court established under Appendix A to this Agreement or, if otherwise, to another international court.
Settlement of a dispute between a Party and an investor of the other Party
(1) In the event of a dispute between a Contracting Party and an investor of the other Contracting Party concerning an investment, the Parties shall first attempt to resolve the dispute in a friendly manner.
(2) If that dispute cannot be resolved in this way, each party in the dispute may, in accordance with the law of the Contracting Party which has made the investment possible, initiate proceedings before the competent judicial or administrative authority of that Contracting Party.
(3) Any party in the dispute may take the following action, whether a local device has already been used or used in accordance with paragraph 2 of this Article:
(a) if both Parties are at that time members of the Investment Dispute Settlement Convention between States and citizens of other States of 1965 (hereinafter referred to as "the Convention"), refer the dispute to the International Investment Dispute Settlement Centre (hereinafter referred to as "the Centre") for conciliation or arbitration pursuant to Article 28 or 36 of the Convention. If an investor of one Contracting Party takes this measure, the other Contracting Party will agree in writing to refer the dispute to the Centre within 30 days of receiving such a request from the investor;
(b) If the two Parties are not members of the Convention at that time, the dispute shall be referred to the arbitration panel established under Appendix B, or, if otherwise, to other arbitration powers.
(4) Where a dispute is referred to the Centre in accordance with paragraph 3 (a) of this Article:
(a) and the parties in the dispute cannot agree on whether conciliation or arbitration is more appropriate, the investor concerned shall have the right to choose; and
(b) a company which is established or established in accordance with the laws in force in the territory of one Contracting Party and in which investors of the other Contracting Party have the majority of the shares before a dispute arises shall be considered as a company of the other Contracting Party in accordance with Article 25 (2) (b) of the Convention.
(5) A Party shall not seek to resolve a dispute which is already resolved in accordance with paragraph 2 or 3 of this Article by diplomatic means if:
(a) according to the nature of the case, the competent judicial or administrative authority, the Secretary-General of the Centre, the body of the arbitration panel or the Conciliation Commission has not decided that that dispute does not concern its competence; or
(b) the other Contracting Party has not complied with or complied with the judgment, finding, order or other decision of that authority.
(6) In any proceedings relating to a dispute relating to an investment, a Party shall not, in its defence, raise a counterclaim, a right of consideration, and the like where the investor has received or received, under an insurance or guarantee contract, compensation or compensation for all or part of the damage suffered. However, the investor of the Contracting Party to which the dispute relates shall not be entitled to a higher remuneration for the investment which is the subject of the dispute than is the result of Article 6 (2); all sources of the refund guaranteed for payment of the refund in the territory of the Contracting Party shall be taken into account.
Settlement of disputes between the investors of the Contracting Parties
The Contracting Party shall, in accordance with its law:
(a) ensure that investors of the other Contracting Party who have set up investments in its territory and persons employed by them for investment related activities are fully involved in the competent judicial or administrative authorities in order to be able to claim and claim rights in the event of disputes with their own citizens or companies;
(b) allow its citizens and companies to make a choice to resolve disputes with investors of the other Party concerning investments, including arbitration in a third country; and
(c) ensure the recognition and enforceability of any final judgment or finding.
Subsidies
(1) Where one Contracting Party or the representative of a Contracting Party grants a payment to an investor of that Contracting Party on the basis of a guarantee, an insurance contract or other form of compensation granted in connection with an investment, the other Contracting Party shall recognise the transfer of any right or entitlement made in connection with that investment. The right or right transferred shall not exceed the original right or entitlement of the investor.
Entry into force, duration and termination
(1) This Agreement shall enter into force 30 days after the date on which the Contracting Parties notify each other that the constitutional requirements for the entry into force of this Agreement have been met. It shall remain in force for 15 years and shall then remain in force for an indefinite period, unless its validity is terminated in accordance with paragraph 2 of this Article.
(2) Each Contracting Party may terminate this Agreement at any time after 15 years of validity by one year of written notice to the other Party.
(3) Notwithstanding the termination of this Agreement pursuant to paragraph 2 of this Article, the Agreement shall remain in force for a period of 15 years from the date of its expiry for investments set up or acquired before the date of expiry of this Agreement.
In order to prove the signature below, duly authorised to do so, they have signed this Agreement.
Done at Canbera on 30 September 1993 in two original copies, each in Czech and English, each of which shall be equally authentic.
For the Czech Republic:
Doc. Ing. Karel Dyba CSc. v. r.
Minister for Economy
For Australia:
Peter Francis Salmon Cook v. r.
Minister for Trade
Appendix A
(1) The arbitration panel referred to in Article 10 shall be composed of three persons appointed as follows:
(a) each Party shall appoint one arbitrator;
(b) Arbitrators designated by the Parties shall agree within 30 days of the appointment of the second of them to appoint an arbitrator - the President of the Arbitration Court, who is a citizen of a third country having diplomatic relations with both Parties.
(2) The arbitration procedure will be initiated on the basis of the information given by the diplomatic channels by the Party initiating such proceedings, to the other Party. Such notification shall include a statement summarising the nature of the claim, the nature of the compensation sought and the name of the arbitrator appointed by the Party initiating the arbitration procedure. Within 60 days of such notification, the other Contracting Party shall inform the Contracting Party which initiated the arbitration procedure of the name of its arbitrator.
(3) If the required appointment is not made at the time referred to in paragraph 2 of this Appendix, each Contracting Party may request the President of the International Court of Justice to make the necessary appointment. If the President is a State citizen of a Contracting Party or cannot do so, the Vice-President shall be asked to make an appointment. If the Vice-President is a citizen of a Contracting Party or is unable to do so, the appointment of the oldest member of the International Court of Justice who is not a citizen of any Contracting Party shall be requested.
(4) If an arbitrator appointed in accordance with this Appendix renounces his office or is unable to act, he shall be appointed a successor who shall have the same powers and duties as the original arbitrator.
(5) The arbitration panel shall decide all questions within its jurisdiction and shall determine its procedural rules in accordance with the provisions of any agreement between the Parties.
(6) The arbitration panel shall issue the arbitration finding by a majority vote; take into account the provisions of this Agreement, international agreements concluded by both Parties and generally accepted principles of international law. It may issue an arbitration finding even if the Contracting Party does not participate.
(7) Each Contracting Party shall bear the costs of the designated arbitrator. The costs of the President of the arbitration panel and other costs incurred in connection with the conduct of the arbitration proceedings shall be borne by both Parties equally. However, the arbitration panel may determine that one Contracting Party shall bear a higher proportion of the costs.
(8) The arbitration panel shall be final and binding on both Parties.
APPENDIX B
(1) The arbitration panel referred to in Article 11 (3) (b) shall consist of three persons appointed as follows:
(a) each Party in a dispute shall appoint one arbitrator;
(b) the arbitrators designated by the Parties in the dispute shall, within 30 days of their appointment, appoint an arbitrator by agreement as President of the arbitration panel, who shall be a citizen of a third country having diplomatic relations with the two Parties.
(2) The arbitration procedure shall be initiated by a written notice stating the nature of the claim, the nature of the compensation sought and the name of the arbitrator appointed by the party initiating the arbitration procedure.
(3) If, in a dispute which has received a written notice from the other Party of the initiation of an arbitration procedure and the appointment of an arbitrator, the Party does not appoint its arbitrator within 30 days of receipt of the notification of the other Party, or if, within 60 days of the written notice of the initiation of the arbitration procedure, no agreement has been reached to appoint the President of the arbitration panel, each Party may in dispute request the Secretary-General of the International Investment Dispute Settlement Centre to make the necessary appointment.
(4) If an arbitrator appointed under this Appendix renounces his or her duties or is unable to act, the same manner as prescribed for the appointment of the original arbitrator shall be appointed as a successor having the same powers and duties as the original arbitrator.
(5) The arbitration panel shall decide all questions within its jurisdiction and, in accordance with the provisions of any agreement between the Parties, shall determine in the dispute its procedural rules, taking into account the procedural rules contained in the arbitration rules of the United Nations International Trade Law Commission.
(6) The arbitration panel shall issue the arbitration finding by a majority vote; take into account the provisions of this Agreement, any agreement between the Parties in the dispute and the applicable national law of the Contracting Party which has authorised the investment.
(7) Each Party shall bear the costs of the designated arbitrator in the dispute. The costs of the President of the arbitration panel and other costs incurred in connection with the conduct of the arbitration proceedings shall be borne equally by both parties in the dispute. However, the arbitration panel may determine that one party in the dispute shall bear a higher proportion of the costs.
(8) The arbitration panel shall be final and binding and shall be carried out in the territory of each Contracting Party in accordance with its law.
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Regulation Information
| Citation | Communication from the Ministry of Foreign Affairs No. 162 / 1994 Coll., on the negotiation of the Agreement between the Czech Republic and Australia on mutual support and protection of investment |
|---|---|
| Regulation Type | International Treaty |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.08.1994 |
|---|---|
| Effective from | 29.06.1994 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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