Communication from the Ministry of Foreign Affairs No. 294 / 1999 Coll.
Communication from the Ministry of Foreign Affairs on the negotiation of the Agreement between the Czech Republic and South Africa on the promotion and mutual protection of investments
Valid
International Treaty
Effective from 17.09.1999
Text versions:
06.12.1999
294
COMMUNICATION
Ministry of Foreign Affairs
The Ministry of Foreign Affairs states that the Agreement between the Czech Republic and South Africa on the promotion and mutual protection of investments was signed in Prague on 14 December 1998.
The Parliament of the Czech Republic agreed to the Agreement and the President of the Republic ratified the Agreement.
The Agreement entered into force on 17 September 1999 pursuant to Article 12 (1) thereof.
The Czech version of the Agreement is hereby published at the same time.
AGREEMENT
between the Czech Republic and South Africa on the promotion and mutual protection of investment
Preamble
Czech Republic and South Africa (hereinafter jointly referred to as "the Parties', individually referred to as" the Party '),
led by the desire to develop economic cooperation for the mutual benefit of both States,
DESIRING to create and maintain favourable conditions for investment by investors of one State in the territory of the other State; and
Recognising that the promotion and mutual protection of investments within the meaning of this Agreement encourages business initiatives in this area,
agree on the following:
Definitions
For the purposes of this Agreement:
"investment 'means any asset value invested in connection with economic activities by an investor of one Party in the territory of the other Party in accordance with the law of the other Party and includes in particular, but not exclusively:
(a) movable and immovable property, as well as any property rights such as mortgages, bonds or guarantees;
(b) shares, bonds, unsecured bonds or any other form of participation in the company;
(c) cash claims or claims on any performance under a contract having an economic value and related to the investment;
(d) intellectual property rights, including copyright, trademark rights, patents, industrial designs, technical procedures, know-how, business secrets, business names and goodwill, linked to investment;
(e) any rights arising from a law or contractual arrangement and any licence and licence issued under the law, including concessions for exploration, extraction, cultivation or exploitation of natural resources.
Any change in the form in which values are invested shall not affect their nature as investments.
"investor 'means any natural or legal person who invests in the territory of the other Party.
"natural person 'means any natural person having citizenship of one of the Parties in accordance with its laws.
"legal person 'means, in relation to a Party, any company registered or established in accordance with its laws and recognised by them as having its registered office in the territory of that Party.
"income 'means amounts resulting from the investment and includes in particular, but not limited to, profits, interest, interest on loans, capital gains, shares, dividends, royalties or other charges.
"territory 'means:
- in respect of the Czech Republic, the territory of the Czech Republic over which the Czech Republic exercises sovereignty, sovereignty and jurisdiction in accordance with international law;
- in relation to South Africa, the territory of South Africa, including the coastal sea and any marine or underwater areas over which South Africa exercises, in accordance with international law, sovereign rights and jurisdiction for the purpose of research, exploitation and protection of seabed, subsoil and natural resources.
Aid and investment protection
1. Each Party shall promote and create favourable conditions for investors of the other Party to invest in its territory and shall recognise such investments in accordance with its own legal order.
2. Investment by investors in each of the Parties shall, in any case, be granted due and fair treatment and shall enjoy full protection and security within the territory of the other Party.
3. Each Party shall grant, in accordance with its own law, the necessary authorisations related to such investments and the implementation of licensing agreements and technical, commercial or administrative assistance contracts.
4. In order to create favourable conditions for determining the financial position and the results of investment activities in the territory of one Party, this Party shall, irrespective of its own requirements for accounting and auditing, allow the investment to be subject to accounting and be audited according to the standard required by the State of investment or internationally accepted standards [e.g. International Accounting Standards (IAS) developed by the International Accounting Standards Committee (IASC)]. The results of such accounting and audit will be freely available to the investor.
National treatment and most favoured nation clause
1. Each Party shall grant on its territory investment and investors' returns to the other Party treatment which is proper and fair and is no less favourable than that which it provides for the investment and returns of its own investors or the investment and returns of investors of any third State.
2. Each Party shall grant on its territory to investors of the other Party, in respect of the management, maintenance, use, use or handling of their investment, treatment which is fair and fair and not less favourable than that provided to its own investors or investors of any third State.
3. The provisions of paragraphs 1 and 2 of this Article shall not be construed as obliging one Party to grant to investors of the other Party such treatment, benefits or privileges as may be granted by the first Party on the basis of:
(a) any customs union or free trade area or monetary union or similar international agreement leading to such Union or institutions or other forms of regional cooperation, of which one of the Parties is or may be a member;
(b) any international agreements or other arrangements relating wholly or principally to taxation;
(c) any law or measure designed to promote, in its own territory, equality between persons or categories of persons previously disadvantaged by unfair discrimination or intended to protect or promote such persons or their categories.
Compensation
1. If an investment by investors of one or the other Party suffers damage as a result of war, armed conflict, exceptional situation, riot, insurrection, mutiny or other similar events on the territory of the other Party, that Party shall provide them with treatment no less favourable than that provided by that Party to its own investors or to investors of any third State.
2. Without prejudice to the provisions of paragraph 1 of this Article, investors of one Party who, in any of the events referred to in the preceding paragraph, will suffer damage within the territory of the other Party as a result of:
(a) seizure of their property by the armed forces or authorities of the other Party; or
(b) destruction of their property by the armed forces or authorities of the other Party, which was not caused by a combat operation or was not caused by the necessity of the situation;
a restitution or fair and proportionate compensation for damage suffered as a result of the occupation or destruction of property. The resulting payments shall be freely transferable in freely convertible currency without undue delay.
Expropriation
1. Investment by investors of either Party shall not be nationalised, expropriated or subject to measures having a similar effect to that of nationalisation or expropriation ("expropriation ') in the territory of the other Party, with the exception of the public interest. Expropriation will be carried out under the law, on a non-discriminatory basis and will be accompanied by measures to pay immediate, proportionate and effective compensation. Such compensation shall be at least equal to the value of the expropriated investment immediately before the expropriation or before the intended expropriation has become known to the public, shall include interest from the date of expropriation at the normal commercial rate, shall be effected without undue delay, shall be effectively feasible and freely transferable in freely convertible currency.
2. The investor concerned shall have the right to review his case promptly and to evaluate his investment by a judicial or other independent and impartial body of that party in accordance with the principles contained in this Article.
Transfers
1. Each Party shall guarantee the investors of the other Party free transfer of payments associated with their investments and revenues, which shall include, in particular, but not exclusively:
(a) capital and additional amounts to maintain or increase the investment;
(b) profits, interest, dividends and other current income;
(c) the amounts to be recovered;
(d) royalties or other charges;
(e) proceeds from the sale or liquidation of the investment;
(f) the income of natural persons under the legal order of the party where the investment is made;
(g) refunds paid under Articles 4 and 5.
2. All transfers shall be made without undue delay in any convertible currency at the market exchange rate in force on the day of the transfer. Where there is no foreign exchange market exchange rate, the last foreign exchange rate applicable to the exchange of the relevant convertible currency in the special drawing right shall be used.
3. Transfers made "without undue delay 'within the meaning of paragraph 2 of this Article shall be considered as transfers made within the time limit normally necessary for the execution of the transfer. Such a period shall under no circumstances exceed two months.
Transfer of rights
1. Where a Party or an agency authorised by that Party makes payment to its own investor on the grounds of a guarantee it has provided in relation to an investment in the territory of the other Party, the other Party shall recognise:
(a) the assignment of any right or claim of the investor to the first party or to the agency authorised by that party, whether by law or by legal arrangement in the territory of the first party, and,
(b) that the first party or agency authorised by that party is entitled, by way of transfer of rights, to exercise the rights and to exercise the rights of that investor and to assume the obligations relating to the investment.
2. The transferred rights or rights shall not exceed the original rights or rights of the investor.
Settlement of investment disputes between the party and the investor of the other party
1. Any dispute which may arise between an investor of one Party and the other in connection with an investment in the territory of that Party shall be the subject of a dispute between the parties.
2. If a dispute between an investor of one Party and the other cannot be settled in this way within six months of the written notification of the claim, the investor shall be entitled to submit a dispute to resolve either:
(a) the competent courts or administrative tribunals of the Party which is a party to the dispute; or
(b) the International Investment Dispute Settlement Centre (ICSID), taking into account the applicable provisions of the Investment Dispute Settlement Convention between States and citizens of other States, open for signature in Washington D.C. on 18 March 1965, in the event that both parties are parties to this Convention.
If this requirement is not met, both parties agree that the dispute may be settled under the Additional Rules on the Procedure, issued by the ICSID Secretariat; or
(c) an arbitrator or an international arbitration panel set up on an ad hoc basis, established under the arbitration rules of the United Nations International Trade Law Commission (UNCITRAL). The Parties in the dispute may agree in writing to amend these rules.
Such arbitration findings shall be final and binding on both parties in the dispute.
3. Each Party shall recognise the validity of the arbitration finding under its national law.
Dispute settlement between the Parties
1. Disputes between the Parties concerning the interpretation or application of this Agreement shall, where possible, be resolved by consultations or negotiations.
2. If the dispute is not resolved in this way within six months of the date on which a party has requested such consultation or negotiation, the dispute shall be submitted to the arbitration panel at the request of one of the parties in accordance with the provisions of this Article.
3. The arbitration panel shall be established in the following manner for each individual case. Each Party shall designate one arbitrator within two months of receipt of the request for arbitration. The two arbitrators shall then select a citizen of a third State who shall, with the agreement of the two Parties, be appointed President of the Court (hereinafter referred to as "the President '). The President shall be appointed within three months of the date of the appointment of the two arbitrators.
4. If the necessary appointments have not been made within one of the time limits referred to in paragraph 3 of this Article, the President of the International Court of Justice may be asked to make an appointment. If the President is a citizen of a party or for any other reason is unable to perform this task, the Vice-President shall be asked to be appointed. If the Vice-President is also a citizen of a party or is unable to perform this task, the oldest member of the International Court of Justice, who is not a citizen of any party, will be asked to make the appointment.
5. The arbitration panel shall take its decision by a majority vote. Such a decision will be binding on both sides. Each Party shall pay the costs of its arbitrator and its participation in the arbitration procedure. The costs of the Chair and the remaining expenses shall be borne by the Parties equally. The arbitration panel shall determine its own rules of procedure.
Application of other provisions and specific commitments
1. Where a question is governed by this Agreement at the same time and by another international agreement to which both parties are parties, nothing in this Agreement shall prevent any party or any investor of that Party having investment in the territory of the other Party from making use of any rules which are more favourable to it.
2. If treatment granted by one party to investors of the other Party in accordance with its legal order or other specific contractual provisions is more favourable than that provided for by this Agreement, more favourable treatment shall be granted.
Application of the Agreement
The provisions of this Agreement shall apply to future investments made by investors of one Party in the territory of the other Party and also to investments existing in accordance with the laws of the Parties on the date of entry into force of this Agreement. However, the provisions of this Agreement shall not apply to claims arising from events which occurred before its entry into force and to claims which have been settled before its entry into force.
Entry into force, duration, termination and amendment
1. Each Party shall notify the other Party of the fulfilment of the requirements of its legal order for the entry into force of this Agreement. This Agreement shall enter into force on the date of the second notification.
2. This Agreement shall remain in force for a period of 10 years. It shall then remain in force until the expiry of the 12-month period running from the date on which either Party notifies the other Party in writing of its intention to terminate the Agreement.
3. For investments made before the expiry of this Agreement, the provisions of this Agreement shall remain effective for a period of 15 years from the date of expiry.
In order to prove the signature below, duly authorised, they signed this agreement.
In two copies in Prague on 14 December 1998, in Czech and English, both texts are equally authentic.
For the Czech Republic:
Mgr. Ivo Svoboda v. r.
Minister for Finance
For South Africa:
Thomas Langley v. r.
extraordinary and authorised ambassador
PROTOCOL
The Czech Republic and South Africa agreed, when signing the Agreement between the Czech Republic and South Africa on the promotion and mutual protection of investment, on the following provisions, which will form an integral part of the said Agreement:
Ad Article 6:
1. The provisions on transfers of investment and income referred to in Article 6 shall not apply to residents of South Africa subject to South African foreign exchange regulations. In accordance with the rules governing foreign exchange regulation in force in South Africa, residents of another State who are natural persons and who have lived in South Africa for more than five years and have fulfilled the required formalities regarding foreign exchange regulation associated with the transfer to South Africa are deemed to be resident in South Africa.
2. Exemptions from Article 6 referred to in paragraph 1 of this Protocol shall automatically terminate their validity in respect of any restriction as soon as that restriction has been removed from the national legal order of South Africa.
3. The Republic of South Africa shall make every effort to remove the said restrictions from the national legal order as quickly as possible.
4. Paragraph 1 of this Protocol shall not apply or restrict transfers of replacement payments made pursuant to Articles 4 and 5 of this Agreement.
5. This Protocol shall enter into force at the same time as the Agreement.
In evidence of the undersigned, duly authorised, they signed this Protocol in two originals in the Czech and English languages, both texts being equally authentic.
Dane in Prague on 14 December 1998.
For the Czech Republic:
Mgr. Ivo Svoboda v. r.
Minister for Finance
For South Africa:
Thomas Langley v. r.
extraordinary and authorised ambassador
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Regulation Information
| Citation | Communication from the Ministry of Foreign Affairs No. 294 / 1999 Coll., on the negotiation of the Agreement between the Czech Republic and South Africa on the promotion and mutual protection of investments |
|---|---|
| Regulation Type | International Treaty |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.12.1999 |
|---|---|
| Effective from | 17.09.1999 |
| Effective until | - |
| Status | Valid |
Legal Areas:
International law
International public law
The regulation text is for informational purposes only.
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