Sanctioned: November 1, 2000.
Cast: November 29, 2000.
The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:ARTICLE 1 Approval of the agreement between the Government of the ARCENTINA REPUBLIC and the Government of the SUDAFRICA REPUBLIC on PROMOTION AND PROTECTION RECIPROCA DE INVERSIONS, signed in Buenos Aires on 23 July 1998, which consists of ONCE (11) articles and UN (1) protocol, whose authenticated photocopy forms part of the present law. ARTICLE 2 Contact the national executive branch.
IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, THE FIRST DAY OF THE MONTH OF NOVEMBER OF THE YEAR DOS MIL.
PASCUAL RAFAEL. . MARIO A. LOSADA. . Guillermo Aramburu. . Alejandro L. Colombo.
THE GOVERNMENT OF THE ARGENTINA REPUBLIC
THE GOVERNMENT OF THE REPUBLIC OF SUDAFRICA
PROMOTION AND PROTECTION RECIPROCA DE INVERSIONS
The Government of the Argentine Republic and the Government of the Republic of South Africa (hereinafter referred to as the "Parts" and individually the "Part"):
With the desire to intensify economic cooperation between the two States.
In order to create favourable conditions for investments made by investors of one Party in the territory of the other Party.
Recognizing that the promotion and protection of such investments on the basis of an agreement will lead to the stimulus of individual entrepreneurship and increase the prosperity of both States,
They hereby agree that:
For the purposes of this Agreement:
The term "investment" designates, in accordance with the laws and regulations of the Party, in whose territory the investment was made, any kind of asset invested by investors of a Party in the territory of the other Party, in accordance with the laws and regulations of the latter and includes in particular, but not exclusively:
(a) ownership of movable and immovable property, as well as other property rights, such as mortgages, captions and clothing rights;
(b) shares, social quotas and any type of participation in societies;
(c) credit titles and entitlements to benefits that have an economic value: loans will be included only when they are directly linked to a specific investment;
(d) intellectual property rights, including in particular copyrights, patents, industrial designs, brands, trade names, technical processes, "know-how" and key rights;
(e) Economic concessions granted by law or contract, including concessions for the exploration, cultivation, extraction or exploitation of natural resources.
Any alteration in the legal form under which assets have been invested or reinvested shall not affect their investment quality in accordance with this Agreement.
The term "inverter" designates:
(a) Any natural person who is a national of the Parties in accordance with their legislation;
(b) any legal person constituted in accordance with the laws of a Party and having its seat in the territory of that Party.
The term "gains" designates all amounts produced by an investment, such as profits, dividends, interests, royalties and other current incomes, as well as capital gains.
The term "territory" designates the national territory of each Party, including the territorial sea and maritime areas adjacent to the outer boundary of the territorial sea, on which each Party exercises, in accordance with international law, the rights of sovereignty or jurisdiction.
1. Each Party shall promote investments made by investors of the other Party in its territory, and shall admit such investments in accordance with its laws.
2. Each Party shall grant, in accordance with its laws, the necessary permits for such investments and the implementation of licensing agreements and contracts for technical, commercial or administrative assistance.
3. Nationals of each Party and employees, and their families, of an investor of one Party may, subject to the law of the other Party, enter, stay and leave the country of the last Party appointed for the purpose of carrying out activities in respect of investments in the territory of that Party.
1. Each Party shall, at all times, ensure fair and equitable treatment of investments made by investors of the other Party and shall not hinder its management, maintenance, use, enjoyment or disposal through unjustified or discriminatory measures.
2. Each Party, once it has admitted investments made by investors of the other Party in its territory, shall grant full legal protection to such investments and shall accord them treatment no less favourable than that accorded to investments made by its own investors or third-party investors.
3. Notwithstanding the provisions of paragraph (2) of this Article, the most-favoured-nation treatment shall not apply to the privileges that each Party accords to investors of a third State due to its membership or its association with a free trade zone, customs union, common market or regional agreement.
4. The provisions of paragraph (2) of this Article shall not be interpreted in the sense of forcing a Party to extend to investors of the other Party the benefits of any treatment, preference or privilege resulting from an international agreement relative entirely or partially to tax matters.
Expropriation and compensation
1. None of the Parties shall directly or indirectly take any measure of nationalization or expropriation or any other measure that has an equivalent effect against investments in their territory that belong to investors of the other Party, unless the measures are taken for reasons of public utility, which are not discriminatory, under due legal process and are accompanied by provisions for the payment of prompt, adequate and effective compensation. Such compensation shall correspond to the market value that the expropriated investment had immediately prior to expropriation or before the impending expropriation is of public knowledge, shall include interest from the date of expropriation to a normal commercial rate, shall be paid without delay and shall be effectively realizable and freely transferable.
2. Investors of a Party whose investments in the territory of the other Party suffered losses due to war or other armed conflict, state of national emergency, rebellion, insurrection or disturbance shall receive, in respect of restitution, compensation, compensation or other restitution, treatment no less favourable than that accorded to its own investors or to investors of a third State.
1. Each Party shall grant investors of the other Party the unrestricted transfer of investments and profits and in particular, but not exclusively, of:
(a) the capital and additional amounts necessary for the maintenance and development of investments;
(b) earnings, benefits, interests, dividends and other current incomes;
(c) funds for repayment of loans that are directly related to a specific investment;
(d) royalties and fees;
(e) the production of a total or partial sale or settlement of an investment;
(f) the compensations provided for in Article 4;
(g) the net income of the nationals of one Party allowed to work on an investment in the territory of the other.
2. Transfers shall be made without delay in a freely convertible currency, to the normal exchange rate applicable to the date of the transfer, in accordance with the procedures established by the Party in whose territory the investment was made, which may not affect the substance of the rights provided for in this Article. In the absence of a free market for foreign exchange, this exchange rate will no longer differ from the reciprocal rate of exchange rates that the International Monetary Fund (IMF) would apply on the date on which the transfer was made, if the money of the countries concerned for Special Rights of Giro (DEG) changes.
1. If a Party or its designated agency shall make a payment to any of its investors under a collateral or insurance contract with respect to an investment, the other Party shall recognize the validity of the subrogation in favour of the first Party or its designated agency with respect to any right or title of the investor.
The Party or its designated agency, within the limits of the subrogation, shall be entitled to exercise the same rights as the investor may exercise.
2. In the event that the subrogation takes place in accordance with the preceding paragraph (1), the investor shall not lodge any claim unless it has the authorization of the Party or its designated agency to do so.
Implementation of other standards
If the legal provisions of any Party or obligations under current or existing international law between the Parties in addition to this Agreement or if any agreement between an investor of one Party and the other Party shall include rules, whether general or specific, empowering the investors of the other Party to a more favourable treatment than that agreed by this Agreement, such rules, to the extent that they are more favourable, shall prevail over this Agreement.
Dispute settlement between Parties
1. Disputes between Parties relating to the interpretation or application of this Agreement shall, to the extent possible, be settled through diplomatic channels through friendly consultations.
2. If a dispute between the Parties could not have been resolved within six months of the commencement of the negotiations, it shall, at the request of any Party, be submitted to an Arbitral Tribunal.
3. The arbitral tribunal shall be composed for each particular case as follows. Within two months of receipt of the request for arbitration, each Party shall designate a member of the court. These two members shall then elect a national of a third State who, with the approval of the two Parties, shall be appointed President of the court. The President shall be appointed within two months of the date of appointment of the other two members.
4. If, within the time limits set out in paragraph 3 of this Article, the necessary designations have not been made, any Party, in the absence of any other agreement, may request the President of the International Court of Justice to make the necessary designations. If the President is a national of either Party or is unable to perform such a role, the Vice-President shall be requested to make the necessary designations. If the Vice-President is a national of one of the Parties or could not perform such a function, the member of the International Court of Justice shall be invited to follow him in a hierarchy which is not a national of any of the Parties, to make the necessary appointment.
5. The Arbitral Tribunal will take its decision by a majority vote. Such a decision shall be binding on both Parties. Each Party shall bear the expenses of its own member of the court and its representation in the arbitration proceedings; the expenses of the President of the Tribunal as well as the other expenses shall in principle be borne in equal parts by the Parties. However, the Tribunal may, in its decision, establish that a greater proportion of expenditures is borne by one of the two Parties, and this decision shall be binding on both Parties. The Tribunal shall determine its procedure.
Dispute Settlement between an Investor and the Receptive Party of Investment
1. Any dispute arising within the terms of this Agreement between a Party and an investor of the other Party shall be resolved, to the extent possible, in a friendly manner.
2. If the dispute could not have been resolved within six months of the date on which either party raised the dispute, it may be submitted, at the request of the investor:
; to the competent court of the Party in whose territory the investment was made; or
con to international arbitration in accordance with the provisions of paragraph 3.
In the event that an investor has submitted or agreed to submit a dispute to the aforementioned competent court of the Party in which the investment or international arbitration was made, this election shall be final.
3. In the case of international arbitration, the dispute shall be subject to the choice of the investor:
. to the International Centre for Settlement of Investment Disputes (ICSID) established by the Convention on Settlement of Investment Disputes between States and Nationals of other States, once both Parties herein are members of it. If this provision is not complied with, each Party shall give its consent to the dispute being subject to arbitration under the rules of the ICSID Complementary Mechanism for the Administration of Conciliation, Arbitration and Investigation Procedures, or
tribunal a court of arbitration created for each case in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).
4. The arbitral tribunal shall decide in accordance with the provisions of this Agreement, the law of the Party involved in the dispute, including its rules relating to conflicts of law, the terms of any specific agreement concluded with respect to investment and the relevant principles of international law.
5. The arbitral ruling shall be final and binding on the parties to the dispute. Each Party shall execute it in accordance with its legislation.
Scope of the Agreement
This Agreement shall apply to all investments made prior to or after the entry into force of the Agreement, but the provisions of this Agreement shall not apply to any dispute, claim or dispute arising prior to its entry into force.
Entry into force, duration, modification and termination
1. This Agreement shall enter into force on the first day of the second month from the date on which the Parties have been notified in writing that they have complied with the constitutional requirements for the entry into force of this Agreement. It will last ten years. Subsequently, it shall remain in force until the end of a period of twelve months from the date on which one Party notifies in writing to the other its decision to terminate it.
2. With respect to investments made prior to the date on which the termination notification is effective, the provisions of Articles 1 to 9 shall remain in force for an additional period of fifteen years from that date.
In faith of which the undersigned have subscribed to this Agreement in two originals, in Spanish and English languages, both equally authentic.
Made in Buenos Aires, July 23, 1998.
By signing the Agreement between the Government of the Argentine Republic and the Government of the Republic of South Africa for the Promotion and Reciprocal Protection of Investment, the undersigned agreed on the following provisions, which constitute an integral part of the Agreement:
I. With regard to Article 1, Paragraph 1:
The provisions of this Agreement shall not apply to investments made by natural persons who are nationals of the Republic of South Africa and are in the territory of the Argentine Republic if such persons had been, at the time of the investment, domiciled in the Argentine Republic for more than two years, unless it is proved that the investment was admitted from abroad.
II. With regard to Articles 4 (1) and 5;
The provisions of this Agreement relating to transfers shall not apply to nationals of the Argentine Republic who have obtained permanent residence in the Republic of South Africa and have decided to immigrate to the Republic of South Africa, completing the required form of exchange control, once a period of five years has expired from the date of immigration.
This provision will be invalid at the time when the Republic of South Africa removes the limitations of exchange control.
III. With regard to Article 3:
(i) It will not be construed that the provisions of Article 3, paragraph 2, extend to investors of the Republic of South Africa the benefit of treatment, preference or privilege resulting from bilateral agreements that stipulate concessional financing concluded by the Argentine Republic with the Republic of Italy on 10 December 1987, and with the Kingdom of Spain on 3 June 1988.
(ii) If the Republic of South Africa agrees on special advantages for financial development institutions with foreign participation and created for the exclusive purpose of development assistance but mainly for non-profit activities, the Republic of South Africa will not be obliged to agree on such advantages to other development financial institutions or investors in the Argentine Republic.
IV. In order to create favourable conditions for assessing the financial situation and results of investment activities in a Party ' s territory, that Party shall, notwithstanding its own accounting and audit requirements, provide that the investment is also subject to the accounting and audit governed by standards to which the investor is subject on the basis of its national requirements or internationally accepted rules (e.g.: International Standards of Accounting (IAS).
The result of such accounting and auditing will be freely transferred to the investor.
In faith, the undersigned have signed this Protocol, in two originals in Spanish and English, both equally authentic.
Made in Buenos Aires, July 23, 1998.