Free Trade Area of the Americas - FTAA |
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Scope of Application [Return to the top of the page] DEFINITION OF INVESTMENT The term “investment” comprises every kind of asset, invested 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:
DEFINITION OF INVESTOR Nationals The term “investor” includes any natural person who is a national of one of the Contracting Parties under its law. (Article 1 (1)). Companies The term “investor” means any legal person constituted in accordance with the laws and regulations of a Contracting Party, including corporations, associations and other organizations, having its seat in the territory of that Contracting Party. (Article 1 (1)). Application in Time (Entry into Force and Duration: Applicability to Investments made Prior to Entry into Force) Date of signature: May 10, 1996 Admission [Return to the top of the page] Each Contracting Party shall promote in its territory investments of the other Contracting Party, and shall admit such investments in accordance with its laws and regulations. (Article 2(1)). Treatment [Return to the top of the page] STANDARDS Fair and Equitable Treatment Yes. Each Contracting Party shall ensure fair, equitable, and non-discriminatory treatment, in its territory, to investments of investors of the other Contracting Party, once admitted in its territory in accordance with its laws and regulations. (Article 2 (2)). Full Protection and Security Yes. Each Contracting Party, once it has admitted investments in its territory by investors of the other Contracting Party, shall accord such investments full protection and security. (Article 2 (3)). Non-Discrimination Yes. Each Contracting Party shall not impair the management, maintenance, use, enjoyment or disposal of investments of investors of the other Contracting Party through unjustified or discriminatory measures. (Article 2 (2)). National Treatment Yes. Each Contracting Party, once it has admitted investments in its territory by investors of the other Party, shall accord them treatment which is no less favorable than that accorded to investments by its own investors or by investors of third States. (Article 2 (3)). Most-Favored Nation Treatment Yes. Each Contracting Party, once it has admitted investments in its territory by investors of the other Party, shall accord them treatment which is no less favorable than that accorded to investments by its own investors or by investors of third States. (Article 2 (3)). Exceptions Notwithstanding the provisions of Article 2 (3), MFN treatment shall not apply to privileges accorded by each Party to investors of any third State by virtue of its participation or association in a free trade agreement, customs union, common market, or regional agreement. (Article 2 (4)). The treatment referred to in Article 2 (3) does not extend to benefits which either Party accords to investors of any third State under a taxation agreement. (Art. 2 (5)). The provisions of Article 2 (3) shall neither be construed so as to extend to investors of the other Party the benefit of any treatment, preference or privilege resulting from the bilateral agreements providing for concessional treatment concluded by the Argentine Republic and Italy on December 10, 1987 and with Spain on June 3, 1988. (Protocol). OTHER ASPECTS Performance Requirements --- Others If the provisions in the legislation of a Contracting Party, or if the existing or future obligations under international law between the Contracting Parties, or if an agreement between an investor of a Contracting Party and the other Contracting Party include provisions granting investments of investors of the first Contracting Party a more favorable treatment, these provisions shall prevail if they are more favorable. (Article 7). Investors of either Party who suffer losses of their investments in the territory of the other Party due to war or other armed conflict, a state of national emergency, insurrection, civil disturbances or other events shall be accorded in respect of restitution, indemnification, compensation or other settlement, a treatment which is no less favorable than that accorded to its own investors or to investors of any third state. (Article 4). Transfers [Return to the top of the page] TYPES OF PAYMENT Returns Yes. Each Contracting Party shall guarantee to investors of the other Contracting Party the unrestricted transfers of investments and returns and, in particular, but not exclusively:
Repayment of Loans Yes. (Article 5 (1) (c)). Proceeds of the Total or Partial Liquidation of an Investment Yes. (Article 5 (1) (e)). Licenses and Other Fees --- Other Categories of Payment Yes. (Article 5 (1) (a), (f), (g)). CONVERTIBILITY, EXCHANGE RATES, AND TIMES OF TRANSFER Currency Transfers shall be effected without delay in a freely convertible currency at the exchange rate applicable on the date of transfer, in accordance with the procedures established by the Contracting Party in which territory the investment was made, procedures which cannot affect the substance of the rights set forth in this Article. (Article 5 (2)). Exchange Rates Transfers shall be effected at the exchange rate applicable on the date of transfer. (Article 5 (2)). Time of Transfer Transfers shall be effected without delay. (Article 5 (2)). Expropriation [Return to the top of the page] DEFINITION Covered Expropriatory Measures Direct or indirect expropriation or nationalization, or any similar measure. (Article 3(1)). CONDITIONS Public Purpose and Non-Discrimination Yes. “Public use or social interest.” (Article 3(1)). Due Process of Law and Judicial Review Yes. (Article 3(1)). Other --- Compensation Standard; Form and Time of Payment “Prompt, adequate and effective compensation” Compensation shall:
Settlement of Disputes
between Contracting Parties PRE-ARBITRATION NEGOTIATIONS Any dispute between the Contracting Parties concerning the interpretation or application of the Agreement shall, to the extent possible, be settled through diplomatic channels. (Article 8 (1)). If it cannot be settled within six months from the start of negotiations, the dispute shall, at the request of either Contracting Party, be submitted to an arbitral tribunal. (Article 8 (2). ARBITRATION Constitution of the Tribunal An arbitral tribunal shall be constituted for each dispute as follows:
Procedural Rules of the Tribunal The tribunal shall determine its own
procedure. Applicable Law No reference. Settlement of Disputes between a Contracting Party and an Investor [Return to the top of the page] DEFINITION --- PREARBITRAL CONSULTATIONS AND DISPUTE SETTLEMENT MECHANISMS Any dispute relating to investments between an investor of one Contracting Party and the other Contracting Party will, to the extent possible, be settled through amicable consultations. (Art. 9 (1)). If it was not possible to settle the dispute within a period of six months, it may be submitted at the request of the investor:
Election by the investor of either one of these procedures shall be definitive. (Article 9 (2)). ARBITRAL SETTLEMENT OF DISPUTES Conditions --- Consent --- Forms of Arbitration When the dispute is referred to international arbitration, it may be submitted, at the choice of the investor, to:
Applicable Law The arbitral tribunal shall decide the dispute in accordance with the provisions of the Agreement; with reference to the laws of the Contracting Party involved in the dispute; terms of any specific agreement concluded in relation to such an investment; and, principles of international law. (Article 9 (4)). |
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