Investment Agreements (Guatemala) - Full Text Of The Norm

Original Language Title: ACUERDOS INVERSIONES (GUATEMALA) - Texto completo de la norma

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ACUERDOS Law 25.350 Approved an Agreement for the Promotion and Reciprocal Protection of Investments signed with the Republic of Guatemala.

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 Appropriate the agreement between the ARGENTINA REPUBLIC and the GUATEMALA REPUBLIC for the promotion and protection of the INVERSIONS, signed in Buenos Aires on 21 April 1998, which consists of DOCE (12) articles, whose authenticated photocopy is part of this 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.

# 25,350 EL

PASCUAL RAFAEL. . MARIO A. LOSADA. . Guillermo Aramburu. . Alejandro L. Colombo.

Agreed to the ARGENTINA REPUBLIC AND the GUATEMALA REPUBLIC FOR THE PROMOTION AND PROTECTION OF INVERSIONS

The Government of the Argentine Republic and the Government of the Republic of Guatemala, henceforth "the Contracting Parties";

Encouraged by the desire to intensify economic cooperation between the two States;

In order to create favourable conditions for the investments of nationals or societies of one of the two States in the territory of the other State, involving transfers of capital;

Recognizing that the promotion and protection of such investments through an agreement can serve to stimulate private economic initiative and enhance the well-being of both peoples,

They agreed on the following:

ARTICLE I

DEFINITIONS

For the purposes of this Agreement:

1. The concept "investment" designates, in accordance with the legal order of the receiving country, any property that the investor of a Contracting Party invests in the territory of the other Contracting Party and which directly or indirectly is owned or controlled by nationals or societies of the other party, in accordance with the law of the other party, in particular, but not exclusively.

(a) ownership of movable and immovable property and other real rights, such as mortgages and property rights;

(b) actions, rights of participation in societies and other types of participation in societies, as well as the capitalization of profits entitled to be transferred abroad;

(c) obligations, credits or loans directly linked to an investment, regularly contracted and documented according to the provisions in the country where such investment is made;

(d) intellectual property rights, including copyright and industrial property rights, such as patents, technical processes, trademarks or trademarks, trade names, industrial designs, knowhow, social reason and key rights;

(e) concessions granted by public law entities, either by law, administrative act or under a contract, including concessions to explore, cultivate, extract or exploit natural resources.

No change in the legal form whereby assets and capitals have been invested or reinvested will affect their investment rating in accordance with this Agreement.

2. Gains, incomes or returns mean the sums obtained from an investment in a given period, such as profit shares, dividends, interests, licensing rights or other remuneration.

3. The term "inverter" designates:

(a) Any natural person who is a national of one of the Contracting Parties, in accordance with their legislation.

(b) Any legal person, including corporations, corporations, trade associations or any other person constituted in accordance with the laws and regulations of a Contracting Party and which has its headquarters, as well as its effective economic activities, in the territory of that Contracting Party.

4. The term "territory" designates the territory of each Contracting Party, including the territorial sea and maritime areas adjacent to the outer boundary of the territorial sea, on which each Contracting Party exercises, in accordance with international law, sovereign rights or jurisdiction.

ARTICLE II

APPLICATION

1. This Agreement shall apply to investments made before or after their entry into force by investors of a Contracting Party, in accordance with the legal provisions of the other Contracting Party, in the territory of the latter.

2. Notwithstanding this Agreement, it shall not apply to divergences or disputes that have arisen prior to their validity or are directly related to events produced prior to their entry into force.

3. The provisions of this Agreement shall not apply to investments made by natural persons who are nationals of a Contracting Party in the territory of the other Contracting Party, if such persons, at the date of the investment, have been domiciled for more than two years in the latter Contracting Party, unless it is proved that the investment was admitted to its territory from abroad.

ARTICLE III

PROMOTION, ADMISSION AND PROTECTION OF INVERSIONS

1. Each Contracting Party shall, subject to its general policy in the field of foreign investment, encourage investments by investors of another Contracting Party in its territory and admit them in accordance with its laws and regulations.

2. Each Contracting Party shall protect within its territory investments made in accordance with its laws and regulations by investors of the other Contracting Party and shall not hinder the administration, maintenance, use, usufruct, extension, sale and liquidation of such investments through unjustified or discriminatory measures.

ARTICLE IV

TREATMENT OF INVERSIONS

1. Each Contracting Party shall ensure fair and equitable treatment within its territory of investments from investors of the other Contracting Party.

2. Each Contracting Party, once it has admitted to its territory investments of investors of the other Contracting Party, shall grant full legal protection to such investments and shall accord them treatment no less favourable than that accorded to investments of its own national investors or third-party investors.

3. Without prejudice to the provisions of paragraph (2) of this Article, the treatment of the most favoured nation shall not apply to the privileges that each Contracting Party agrees to investors of a third State as a result of its participation or association in 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 compelling a Contracting Party to extend to investors of the other Contracting Party the benefits of any treatment, preference or privilege resulting from an international agreement total or partly related to tax matters.

5. The provisions of Paragraph (2) of this Article shall not be interpreted in the sense of extending to investors of the other Contracting Party the benefit of any treatment, preference or privilege resulting from bilateral agreements providing concessional financing signed between the Argentine Republic and Italy on 10 December 1987 and Spain on 3 June 1988.

ARTICLE V

AND INDEMNIZATION

1. Investments of nationals or societies of one Contracting Party shall enjoy full protection and legal security in the territory of the other Contracting Party.

2. None of the Contracting Parties shall take measures of nationalization or expropriation or any other measure having the same effect, against investments in their territory and which belong directly or indirectly to investors of the other Contracting Party, unless such measures are taken for reasons of utility or public necessity, on a non-discriminatory basis and under due process of law.

3. The measures referred to in paragraph (2) of this article shall be accompanied by provisions for the payment of prompt, adequate and effective compensation or compensation. It will be paid without delay and will be effectively realizable and freely transferable. The amount of such compensation or compensation shall correspond to the market value that the expropriated investment had immediately prior to the expropriation or before the impending expropriation became public.

Where it is difficult to determine such value, compensation or compensation may be set in accordance with generally recognized valuation principles as equitable, taking into account the invested capital, its depreciation, the repatriated capital to date, the replenishment value and other relevant factors. In the face of any delay in the payment of compensation or compensation, interest will be accumulated at a commercial rate established on the basis of the market value, from the date of expropriation or loss to the date of payment.

4. The legality of nationalization, expropriation or any other measure having an equivalent effect and the amount of compensation or compensation may be claimed in ordinary judicial proceedings.

5. The investors of each Contracting Party whose investments in the territory of the other Contracting Party suffer losses due to war or any armed conflict; a state of national emergency; civil disturbances or other similar events in the territory of the other Contracting Party shall receive from the latter, in respect of reparation, compensation, compensation and other settlement, a treatment no less favourable than that accorded by the Contracting Party to national investors or any third State.

ARTICLE VI

LIBRE TRANSFER

1. Each Contracting Party shall guarantee to investors of the other Contracting Party the unrestricted transfer of investments and profits, and in particular, but not exclusively from:

(a) the capital and additional amounts required for the maintenance and development of investments;

(b) Benefits, profits, interests, dividends and other current incomes;

(c) funds for the reimbursement of loans as defined in Article 1, paragraph (1) (c);

(d) royalties and fees;

(e) the proceeds of a total or partial sale or settlement of the investment;

(f) Compensation or compensation provided for in Article 4;

(g) funds arising from the settlement of a dispute.

2. Transfers shall be made without delay, in freely convertible monda, to the normal rate of exchange applicable to the date of the transfer, in accordance with the procedures established by the Contracting Party in whose territory the investment was made, which shall not affect the substance of the rights provided for in this Article.

ARTICLE VII

SUBROGATION

1. Where a Contracting Party or an agency authorized by it has granted a insurance contract or any other financial guarantee against non-commercial risks, with respect to any investment of one of its investors in the territory of the other Contracting Party, the latter shall recognize the rights of the first Contracting Party, to be subrogated in the rights of the investor, where it has made a payment under that contract or warranty.

2. Where a Contracting Party has paid its investor and in such virtue has assumed its rights, the investor may not claim such rights to the other Contracting Party, unless expressly authorized by the first Contracting Party.

ARTICLE VIII

IMPLEMENTATION OF OTHER MATTERS

1. If the legal provisions of one of the Contracting Parties or the obligations arising from international law not covered by this Agreement, current or future, among the Contracting Parties, constitute a general or special regulation under which the investments of nationals or societies of the other Contracting Party shall be accorded more favourable treatment than that provided for in this Agreement, such regulation shall prevail over this Agreement, as far as it is more favourable.

2. Each Contracting Party shall fulfil any other undertaking it has made in connection with the investments of nationals or companies of the other Contracting Party in its territory.

ARTICLE IX

REQUEST FOR CONTROVERSING PART OF A CONTRACTING PART AND INVERSOR OF THE OTHER CONTRACTING PART

1. Disputes arising under this Agreement, between one Contracting Party and an investor of the other Contracting Party that has made investments in the territory of the first Contracting Party, shall, to the extent possible, be resolved through friendly consultations.

2. If such consultations did not reach a settlement within three months of the date of request for settlement, the investor may refer the dispute:

(a) The competent courts of the Contracting Party in whose territory the investment was made;

(b) International arbitration of the International Centre for Settlement of Investment Disputes (ICSID), established by the Agreement on Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington on 18 March 1965.

To this end, each Contracting Party gives its advance and irrevocable consent so that any difference may be subject to this arbitration.

3. Once the investor has submitted or agreed to submit the dispute to the competent court of the Contracting Party in whose territory the investment or arbitral tribunal has been made, the choice of one or another procedure shall be final.

4. For the purposes of this article, any legal person who has been constituted in accordance with the law of one of the Contracting Parties and whose actions, prior to the emergence of the dispute, are mostly held by investors of the other Contracting Party, shall be treated, in accordance with Article 25(2)(b) of the Washington Convention, as a legal person of the other Contracting Party.

5. Arbitral judgements shall be final and binding on the parties concerned and shall be executed in accordance with the domestic law of the Contracting Party in whose territory the investment has been made.

6. The Contracting Parties shall refrain from dealing, through diplomatic channels, matters relating to disputes subject to judicial proceedings or to international arbitration, in accordance with this article, until such proceedings are completed, except in the case where the other party to the dispute has not complied with the court ruling or the decision of the Arbitral Tribunal, in the terms established in the respective judgement or decision.

ARTICLE X

REQUEST FOR CONTROVERSING PARTIES

1. The differences between the Contracting Parties regarding the interpretation and application of this Agreement shall be resolved, to the extent possible, through friendly negotiations.

2. If an understanding is not reached within six months of the date of the notification of the dispute, any Contracting Party may submit it to an Ad-Hoc Arbitral Tribunal, in accordance with the provisions of this article.

3. The Arbitral Tribunal shall consist of three members and shall be constituted as follows: within two months from the date of notification of the request for arbitration, each Contracting Party shall designate an arbitrator. These two arbitrators, within one month of their appointment, shall elect a third member to be a national of a third State, who shall preside over the Tribunal.

The designation of the President shall be approved by the Contracting Parties within one month from the date of its nomination.

4. If, within the time limits set out in paragraph 3 of this Article, the designation has not been made, or the required approval has not been granted, any Contracting Party may request the President of the International Court of Justice to make the designation. If the President of the International Court of Justice is prevented from playing such a role or if he is a national of any of the Contracting Parties, the Vice-President shall make the appointment, and if the latter is prevented from doing so or is a national of any of the Contracting Parties, the Judge of the Court who follows him in antiquity and who is not a national of any of the Contracting Parties shall make the appointment.

5. The President of the Tribunal shall be a national of a third State with which both Contracting Parties maintain diplomatic relations.

6. The Arbitral Tribunal shall decide on the basis of the provisions of this Agreement, the principles of International Law in the field and the General Principles of Law recognized by the Contracting Parties. The Tribunal shall decide by a majority vote and determine its own procedural rules.

7. Each Contracting Party shall bear the expenses of the respective arbitrator as well as those relating to their representation in the arbitral proceedings. The costs of the President and the other costs of the process shall be met equally by the Contracting Parties, unless otherwise agreed.

8. The decisions of the Tribunal shall be final and binding on both Contracting Parties.

ARTICLE XI

CONSULTATIONS

The Contracting Parties shall consult on any matter related to the application or interpretation of this Agreement.

ARTICLE XII

FINAL PROVISIONS

1. This Agreement is subject to ratification and will enter into force thirty days after the exchange of instruments of ratification.

2. This Agreement shall remain in force for a period of 10 years and shall be extended for indefinite periods. After ten years, the Agreement may be denounced at any time by each Contracting Party, with a notice of twelve months, communicated by diplomatic channels.

3. With respect to investments made prior to the date on which the notice of termination of this Agreement is made, its provisions shall remain in force for an additional period of 10 years from that date.

4. The present Agreement shall apply irrespective of whether diplomatic relations exist between both Contracting Parties.

Made in Buenos Aires, April 21, 1998, in two originals in Spanish, both equally authentic.