Scope of Application [Return to the top of the page]

DEFINITION OF INVESTMENT

The term “investment” comprises any kind of asset held or invested, either directly or indirectly through an investor of a third State, by an investor of one Contracting Party in the territory of the other Contracting Party, according to the latter’s laws and regulations. This general definition is illustrated by a non exhaustive list of six groups of specific rights, including:

• traditional property rights;
• rights in companies;
• monetary claims and titles to performance;
• goodwill;
• intellectual property rights; and,
• concessions and similar rights. (Article I (f)).

DEFINITION OF INVESTOR

Nationals

The term “investor” comprises:

1. in the case of Canada, any natural person possessing the citizenship of or permanently residing in Canada in accordance with its laws;

2. in the case of Trinidad and Tobago, any natural person possessing the citizenship of or permanently residing in the Republic of Trinidad and Tobago, in accordance with its laws, who makes the investment in the territory of Canada and who does not possess the citizenship of Canada. (Article I (g)).

Companies

The term “investor” comprises:

1. in the case of Canada, any enterprise incorporated or duly constituted in accordance with applicable laws of Canada;
2. in the case of Trinidad and Tobago, any enterprise incorporated or duly constituted in accordance with applicable laws of the Republic of Trinidad and Tobago. (Article I (g)).

Application in Time (Entry into Force and Duration: Applicability to Investments made Prior to Entry into Force)

Date of signature: September 11, 1995
Entry into force: July 8, 1996
Duration: The Agreement shall remain in force until the expiration of one year from the date that either Party notifies the other Party of its decision to terminate the Agreement.

Admission [Return to the top of the page]

Each Contracting Party shall permit establishment of a new business enterprise or acquisition of an existing enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favorable than that which, in like circumstances, it permits such acquisition or establishment by its own investors or prospective investors; or investors or prospective investors of any third state. (Article II (3)).

Decisions by either Contracting Party, pursuant to measures not inconsistent with this Agreement, as to whether or not to permit an acquisition, shall not be subject to the provisions of Articles XIII [Settlement of Disputes between an Investor and the Host Contracting Party] or XV [Disputes between the Contracting Parties]. (Article II (4) (a).

Decisions by either Contracting Party not to permit establishment of a new business or acquisition of an existing business enterprise or a share of such enterprise by investors or prospective investors shall not be subject to the provisions of Article XIII of this Agreement. (Article II (4) (b)).

Neither Contracting Party may impose any of the following requirements in connection with permitting the establishment or acquisition of an investment or enforce any of the following requirements in connection with the subsequent regulation of that investment:

1. to export a given level or percentage of goods;
2. to achieve a given level or percentage of domestic content;
3. to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from persons in its territory;
4. to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
5. to transfer technology, a production process or other proprietary knowledge to a person in its territory unaffiliated with the transferor, except when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority, either to remedy an alleged violation of competition laws or acting in a manner not inconsistent with other provisions of this Agreement. (Article V (2)).

The provisions of Articles II [Establishment, Acquisition and Protection of Investment], III [MFN Treatment after Establishment and Exceptions to MFN], IV [National Treatment after Establishment and Exceptions to National Treatment] and V [Other Measures] do not apply to:

1. procurement by a government or state enterprise;
2. subsidies or grants provided by a government or a state enterprise, including government-supported loans, guarantees and insurance;
3. any measure denying investors of the other Contracting Party and their investments any rights or preferences provided to the aboriginal peoples of Canada; or
4. any current or future decision aid program to promote economic development, whether under a bilateral agreement, or pursuant to a multilateral arrangement or agreement, such as the OECD Agreement on Export Credits. (Article VI (2)).

Investments in cultural industries are exempt from the provisions of this Agreement, “Cultural industries” means natural persons or enterprises engaged in any of the following activities:

1. the publication, distribution, or sale of books, magazines, periodicals or newspapers in print or machine readable form but not including the sole activity of printing or typesetting any of the foregoing;
2. the production, distribution, sale or exhibition of film or video recordings;
3. the production, distribution, sale or exhibition of audio or video music recordings;
4. the publication, distribution, sale or exhibition of music in print or machine readable form; or
5. radiocommunications in which the transmissions are intended for direct reception by the general public, in all radio, television or cable broadcasting undertakings and all satellite programming and broadcast network services. (Article VI (3)).

Treatment [Return to the top of the page]

STANDARDS

Fair and Equitable Treatment

Yes. Each Contracting Party shall accord investments or returns of investors of the other Contracting Party fair and equitable treatment in accordance with principles of international law. (Article II (2) (a)).

Full Protection and Security

Yes. Each Contracting Party shall accord investments or returns of investors of the other Contracting Party full protection and security. (Article II (2) (b)).

Non-Discrimination

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National Treatment

Yes. Each Contracting Party shall permit establishment of a new business enterprise or acquisition of an existing business enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favorable than that which, in like circumstances, it permits such acquisition or establishment by its own investors or prospective investors. (Article II (3) (a)).

Each Contracting Party shall grant to investments or returns of investors of the other Contracting Party treatment no less favorable than that which, in like circumstances, it grants to investments or returns of its own investors with respect to the expansion, management, conduct, operation and sale or disposition of investments. (Article IV (1)).

Most-Favored Nation Treatment

Yes. Each Contracting Party shall permit establishment of a new business enterprise or acquisition of an existing enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favorable than that which, in like circumstances, it permits such acquisition or establishment by investors or prospective investors of any third State. (Article II (3) (b)).

Each Contracting Party shall grant to investments, or returns of investors of the other Contracting Party, treatment no less favorable than that which, in like circumstances, it grants to investments or returns of investors of any third State. (Article III (1)).

Each Contracting Party shall grant investors of the other Contracting Party, as regards their management, use, enjoyment or disposal of their investments or returns, treatment no less favorable than that which, in like circumstances, it grants to investors of any third State. (Article III (2)).

EXCEPTIONS

MFN provisions of Article III do not apply to treatment by a Contracting Party pursuant to any existing or future bilateral agreement:

1. establishing, strengthening or expanding a free trade area, common market or customs union;
2. negotiated within the framework of the GATT or its successor organization and liberalizing trade in services; or
3. relating to
   1. aviation;
   2. telecommunications transport networks and telecommunications transport services;
   3. fisheries;
   4. maritime matters, including salvage; or
   5. financial services. (Article III (3)).

Subparagraph (3) (a) of Article II and paragraph (1) of Article IV on national treatment, and paragraphs (1) and (2) of Article V [Other Measures] do not apply to:

1.  
   1. any existing non-conforming measures maintained within the territory of a Contracting Party; and
   2. any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of sale or other disposition of a government's equity interests in, or the assets of, an existing state enterprise or an existing governmental entity, prohibits or imposes limitations on the ownership of equity interests or assets or imposes nationally requirements relating to senior management or members of the board of directors;
2. the continuation or prompt renewal of any non-conforming measure referred to in subparagraph a);
3. an amendment to any non-conforming measure referred to in subparagraph a), to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with those obligations;
4. the right of each Contracting Party to make or maintain exceptions within the sectors or matters listed in the Annex to this Agreement. (Article IV (2)).

In respect of intellectual property rights, a Contracting Party may derogate from Articles III [MFN Treatment after Establishment and Exceptions to MFN] and IV [National Treatment after Establishment and Exceptions to National Treatment] in a manner that is consistent with the Final Act Embodying the Result of the Uruguay Round, done at Marrakesh on April 15, 1994. (Article VI).

The provisions of Articles II [Establishment, Acquisition and Protection of Investment], III [MFN Treatment after Establishment and Exceptions to MFN], IV [National Treatment after Establishment and Exceptions to National Treatment] and V [Other Measures] do not apply to:

1. procurement by a government or state enterprise;
2. subsidies or grants provided by a government or a state enterprise, including government-supported loans, guarantees and insurance;
3. any measure denying investors of the other Contracting Party and their investments any rights or preferences provided to the aboriginal peoples of Canada; or
4. any current or future foreign aid program to promote economic development, whether under a bilateral agreement, or pursuant to a multilateral arrangement or agreement, such as the OECD Agreement on Export Credits. (Article VI (2)).

Investments in cultural industries are exempt from the provisions of this Agreement, "cultural industries" means natural persons or enterprises engaged in any of the following activities:

1. the publication, distribution, or sale of books, magazines, periodicals or newspapers in print or machine readable form but not including the sole activity of printing or typesetting any of the foregoing;
2. the production, distribution, sale or exhibition of film or video recordings;
3. the production, distribution, sale or exhibition of audio or video music recordings;
4. the publication, distribution, sale or exhibition of music in print or machine readable form; or
5. radiocommunications in which the transmissions are intended for direct reception by the general public, in all radio, television or cable broadcasting undertakings and all satellite programming and broadcast network services. (Article VI (3)).

For Canada, the exceptions to National Treatment after Establishment are: social services (i.e. public law enforcement; correctional services; income security or insurance; social security or insurance; social welfare; public education; public training; health and child care); services in any other sector; government securities (as described in Statistics Canada's Standard Industrial Classification, SIC 8152); residency requirements for ownership of oceanfront land; measures implementing the Northwest Territories and the Yukon Oil and Gas Accords. (Paragraph 1 of the Annex).

For Trinidad and Tobago, the exceptions to National Treatment after Establishment are: civil aviation; real property; customs brokers and customs clerks; gambling, betting and lotteries. (Paragraph 2 of the Annex).

Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining reasonable measures for prudential reasons, such as:

1. the protection of investors, depositors, financial market participants, policy-holders, policy-claimants, or persons to whom a fiduciary duty is owed by a financial institution;
2. the maintenance of the safety, soundness, integrity or financial responsibility of financial institutions; and
3. ensuring the integrity and stability of a Contracting Party's financial system. (Article XI (1)).

Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting, maintaining or enforcing any measure otherwise consistent with this Agreement that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. (Art. XVII (2)).

Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining measures, including environmental measures:

1. necessary to ensure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement;
2. necessary to protect human, animal or plant life or health; or
3. relating to the conservation of living or non-living exhaustible natural resources. (Art. XVII (3)).

OTHER ASPECTS

Performance Requirements

Neither Contracting Party may impose any of the following requirements in connection with permitting the establishment or acquisition of an investment or enforce any of the following requirements in connection with the subsequent regulation of that investment:

1. to export a given level or percentage of goods;
2. to achieve a given level or percentage of domestic content;
3. to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from persons in its territory;
4. to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
5. to transfer technology, a production process or other proprietary knowledge to a person in its territory unaffiliated with the transferor, except when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority, either to remedy an alleged violation of competition laws or acting in a manner not inconsistent with other provisions of this Agreement. (Article V (2)).

A Contracting Party may not require that an enterprise of that Contracting Party, that is an investment under this Agreement, appoint to senior management positions individuals of any particular nationality. (Article V(1) (a)).

A Contracting Party may require that a majority of the board of directors, or any committee thereof, of an enterprise that is an investment under this Agreement be of a particular nationality, or resident in the territory of the Contracting Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment. (Article V (1) (b)).

Others

Investors of one Contracting Party who suffer losses because their investments or returns on the territory of the other Contracting Party are affected by an armed conflict, a national emergency or a natural disaster on that territory, shall be accorded by such latter Contracting Party, in respect of restitution, indemnification, compensation or other settlement, treatment no less favorable than that which it accords to its own investors or to investors of any third State. (Article VII).

Subject to its laws, regulations and policies relating to the entry of aliens, each Contracting Party shall grant temporary entry to citizens of the other Contracting Party employed by an enterprise who seek to render services to that enterprise or a subsidiary or affiliate thereof, in a capacity that is managerial or executive. (Article V (3)).

Transfers [Return to the top of the page]

TYPES OF PAYMENT

Returns

Yes. Each Contracting Party shall guarantee to an investor of the other Contracting Party the unrestricted transfer of investments and returns. Without limiting the generality of the foregoing, each Contracting Party shall also guarantee to the investor the unrestricted transfer of:

1. funds in repayment of loans related to an investment;
2. proceeds of the total or partial liquidation of any investment;
3. wages and other remuneration accruing to a citizen of the other Contracting Party who was permitted to work in connection with an investment in the territory of the other Contracting Party;
4. any compensation owed to an investor by virtue or Articles VII or VIII of the Agreement. (Article IX (1)).

Neither Contracting Party may require its investors to transfer, or penalize its investors that fail to transfer, the returns attributable to investments in the territory of the other Contracting Party. (Article IX (4)).

Repayment of Loans

Yes. (Article IX (1) (a)).

Proceeds of the Total or Partial Liquidation of an Investment

Yes. (Article IX (1) (b)).

Licenses and Other Fees

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Other Categories of Payment

Yes. (Article IX (1) (c), (d)).

CONVERTIBILITY, EXCHANGE RATES, AND TIMES OF TRANSFER

Currency

Transfers shall be effected without delay in the convertible currency in which the capital was originally invested or in any other convertible currency agreed by the investor and the Contracting Party concerned. (Article IX (2)).

Exchange Rates

Unless otherwise agreed by the investor, transfers shall be made at the rate of exchange applicable on the date of transfer. (Article IX (2)).

Time of Transfer

Transfers shall be effected without delay. (Article IX (2)).

Notwithstanding paragraphs 1 and 2 of Article IX, a Contracting Party may prevent a transfer through the equitable, non-discriminatory and good faith application of its laws relating to:

1. bankruptcy, insolvency or the protection of the rights of creditors;
2. issuing, trading or dealing in securities;
3. criminal or penal offenses;
4. reports or transfers of currency or other monetary instruments; or
5. ensuring the satisfaction of judgments in adjudicatory proceedings. (Article IX (3)).

Article IX (4) shall not be construed to prevent a Contracting Party from imposing any measure through the equitable, non-discriminatory and good faith application of its laws relating to the matters set out in sub-paragraphs (a) through (c) of Article IX (3). (Article IX (5)).

Notwithstanding paragraphs (1), (2) and (4) of Article IX, and without limiting the applicability of Article IX (3), a Contracting Party may prevent or limit transfers by a financial institution to, or for the benefit of, an affiliate of or person related to such institution or provider, through the equitable, non discriminatory and good faith application of measures relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions. (Article XI (2)).

Expropriation [Return to the top of the page]

DEFINITION

Covered Expropriatory Measures

Expropriation, nationalization or measures having an effect equivalent to nationalization or expropriation. (Article VIII (1)).

CONDITIONS

Public Purpose and Non-Discrimination

Yes. (Article VIII (1)).

Due Process of Law and Judicial Review

Yes. (Article VIII (2)).

Other

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Compensation Standard; Form and Time of Payment

“Prompt, adequate and effective compensation”

Compensation shall:

• amount to the fair market value of the investment immediately before the date of expropriation or before the proposed expropriation became public knowledge;
• include interests at a normal commercial rate from the date of expropriation;
• be made without delay;
• be effectively realizable and freely transferable.

Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value. (Art. VIII (1)).

Settlement of Disputes between Contracting Parties
[Return to the top of the page]

PRE-ARBITRATION NEGOTIATIONS

Any dispute between the Contracting Parties concerning the interpretation or application of the Agreement shall, whenever possible, be settled amicably through consultations. (Article XV (1)).

If it cannot be settled, the dispute shall, at the request of either Contracting Party, be submitted to an arbitral panel for decision. (Article XV (2)).

ARBITRATION

Constitution of the Tribunal

An arbitral tribunal shall be constituted for each dispute.

• Within two months of the request of arbitration, each Party shall appoint an arbitrator.
• The two arbitrators are required to select, within the next two months, a national of a third State who serves as Chairman of the tribunal. When agreement cannot be reached, the President of the International Court of Justice might be entrusted by either Contracting Party with the responsibility of making the appointments. There are also additional provisions to cover cases when the President is a national of either Party or is otherwise prevented from fulfilling this function.
• Regarding costs, each Party is required to bear the expenses of its own member of the tribunal and of its representation in the proceedings, while the costs related to the Chairman are to be paid for equally by the Parties. The Tribunal may, however, direct that a higher proportion of the costs be paid by one of the Parties. (Article XV (3) (4) (6)).

Procedural Rules of the Tribunal

The arbitral tribunal shall determine its own procedure.
Decisions of the tribunal shall be taken by a majority of votes and shall be binding on both Parties.
The decision shall be rendered within six months of the appointment of the Chairman. (Article XV (5)).

The Parties shall, within 60 days of the decision of the panel, reach agreement on the manner in which to resolve their dispute. Normally, such agreement shall implement the decision of the panel. If the Parties fail to do so, the Party in whose favor the decision was made shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel. (Article XV (7)).

Applicable Law

No reference.

Settlement of Disputes between a Contracting Party and an Investor [Return to the top of the page]

DEFINITION

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PREARBITRAL CONSULTATIONS AND DISPUTE SETTLEMENT MECHANISMS

Any dispute between one Contracting Party and an investor of the other Party, relating to a claim by the investor that a measure taken or not taken by the former Contracting Party is in breach of the Agreement, and that the investor has incurred loss or damage by reason of that breach, shall, to the extent possible, be settled amicably between them. (Article XIII (1)).

If the dispute has not been settled within a period of six months from the date it was initiated, it may be submitted by the investor to arbitration. (Article XIII (2)).

ARBITRAL SETTLEMENT OF DISPUTES

Conditions

An investor may submit a dispute to arbitration only if:

• the investor has consented in writing thereto;
• the investor has waived its right to submit the dispute to tribunals of the Contracting Party or dispute settlement procedures of any kind;
• no more than three years have elapsed since the investor acquired knowledge of the alleged breach and loss. (Article XIII (3)).

Consent

Consent set out explicitly in Article XIII (5).

Forms of Arbitration

The dispute may, at the election of the investor, be submitted to arbitration under:

1. ICSID, provided that both Contracting Parties are party to the ICSID Convention; or,
2. ICSID Additional Facility, provided that one Party, but not both, is a party to the ICSID Convention; or,
3. an international arbitrator or ad hoc arbitration tribunal established under the UNCITRAL Arbitration Rules. (Article XIII (4)).

Applicable Law

The tribunal shall decide the issues in dispute in accordance with the Agreement and applicable rules of international law. (Article XIII (7)).