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Investment Agreements in the Western Hemisphere: A Compendium

Trade and Integration Agreements


III. Treatment | C. Other Aspects | 2. Others

North American Free Trade Agreement (NAFTA)

Without prejudice to Article 1105(1) and notwithstanding Article 1108(7)(b) [exceptions to Art. 1102 on National Treatment, Art. 1103 on the MFN treatment and Art. 1107 on Senior Management and Boards of Directors], each Party shall accord to investors of another Party, and to investments of investors of another Party, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife. (Art. 1105(2)). Paragraph 2 does no apply to existing measures relating to subsidies or grants that would be inconsistent with Art. 1102 but for Art. 1108(7)(b). (Article 1105(3)).

No Party may require that an enterprise of that Party that is an investment of an investor of another Party appoint to senior management positions individuals of any particular nationality. (Article 1107(1)).

A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is an investment of an investor of another Party, be of a particular nationality, or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment. (Article 1107(2)).

Nothing in NAFTA Chapter 11 on Investment shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. (Article 1114(1)).

The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that another Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. (Article 1114(2)).

Free Trade Agreement of the Group of Three among Mexico, Colombia, and Venezuela (Group of Three)

The provisions of paragraphs 1 and 2 shall extend to any measure adopted or maintained by a Party in relation to losses owing to armed conflict, civil strife, disturbances of the public order, acts of Gods or force majeure. (Article 17-03(3)).

Limits on the number or proportion of foreigners that may work in an enterprise or perform managerial or administrative duties under the laws of each Party may in no case prevent or hinder an investor from exercising control over its investment. (Article 17-05).

No Party shall eliminate domestic health, safety, or environmental measures, or shall undertake to waive the application thereof, as an encouragement for the establishment, acquisition, expansion, or retention in its territory, of an investment of an investor. If a Party considers that another Party has encouraged an investment in this way, it may request consultations with that other Party. (Article 17-13).

Common Market of the South (MERCOSUR)

Members:
Investors of a Contracting Party who suffered losses with respect to their investments in the territory of another Contracting Party due to war or other armed conflict, national emergency, revolt, insurrection or uprising, shall receive treatment, in regard to restitution, indemnification, compensation or other settlement, no less favorable than that accorded by the latter Contracting Party to its own investors or investors of any third State. (Article 4 (2) of the Colonia Protocol).

When the provisions of the legislation of either Contracting Party or obligations under international law existing at present or established hereafter or when an agreement between an investor of a Contracting Party and the other Contracting Party, in which territory the investment is made, contain rules entitling investments to a more favorable treatment than is provided in this Agreement, such rules shall, to the extent that they are more favorable, prevail over the present Agreement. (Article 7 of the Colonia Protocol).

Non-Members:
Investors of a third State who suffered losses with respect to their investments in the territory of a Member State due to war or other armed conflict, national emergency, revolt, insurrection or uprising, shall receive treatment, in regard to restitution, indemnification, compensation or other settlement, no less favorable than that accorded by the latter Party to its own investors or investors of any third State. (Article (D)(2) of the Buenos Aires Protocol).

Andean Pact


Caribbean Community and the Caribbean Common Market (CARICOM)


 
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