Key Benefits:
Sanctioned: November 27, 2001.
Enacted: January 7, 2002.
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 ARGENTINA REPUBLIC and the Government of the INDIA REPUBLIC ON PROMOTION AND PROTECTION RECIPROCA DE INVERSIONS, signed in New Delhi .REPUBLICA DE LA INDIA. on 20 August 1999, consisting of fifteen (15) articles, whose photocopies form Spanish and Spanish. ARTICLE 2 Contact the National Executive.DADA IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE VEINTSIETE DAYS OF THE MONTH YEAR DOS MIL UNO.
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RAFAEL PASCUAL . MARIO A. LOSADA. . Guillermo Aramburu. . Juan C. Oyarzún.
Note: The English text is not published.
Agreed
ENTRE
THE GOVERNMENT OF THE REPUBLIC
ARGENTINA
And
THE GOVERNMENT OF THE REPUBLIC
OF INDIA
PROMOTION AND PROTECTION
RECIPROCA DE INVERSIONS
The Government of the Argentine Republic and the Government of the Republic of India (hereinafter referred to as the "Contracting Parties";
Wishing to create favourable conditions for further investment by investors of one State in the territory of the other State.
Recognizing that the promotion and mutual protection of investments based on an international agreement on such investments will help to stimulate the individual economic initiative and increase the prosperity of both States.
They agreed on the following:
ARTICLE 1
Definitions
For the purposes of this Agreement:
(a) The term "enterprises" refers to companies, firms and associations with legal personality, constituted or created under the laws and regulations of any Contracting Party and that carry out important economic activities in the territory of the same Contracting Party;
(b) The term "investment" refers to any type of asset constituted or acquired, including modifications of the form of such investment, in accordance with the national laws and regulations of the Contracting Party in whose territory the investment is made and in particular, but not exclusively, includes:
(i) movable and immovable property, as well as other rights such as mortgages, captions or clothing rights;
(ii) actions, titles and obligations of a company and any other type of participation in a society;
(iii) rights to sums of money or any benefit under a contract that has an economic value; loans shall be included only when they are directly linked to a specific investment;
(iv) intellectual property rights, key value, technical procedures and know-how in accordance with the relevant laws of the respective Contracting Party;
(v) Economic concessions granted by law or contract, including concessions for the exploration and extraction of oil and other minerals;
(c) The meaning and scope of the different assets shall be established by the laws and regulations of the Contracting Party in whose territory the investment was made.
(d) The term "investor" refers to any national or company of a Contracting Party.
(e) The term "national" refers to any natural person who is a national of the respective Contracting Party in accordance with its nationality laws;
(f) The term "gains" refers to all amounts produced by an investment such as profits, interest, capital gains, dividends, royalties, fees and other current income.
(g) The term "territory" refers to the national territory of any Contracting Party including the territorial waters of each Contracting Party and the airspace over it and other maritime areas including the Exclusive Economic Zone and the continental shelf extending beyond the territorial waters of each Contracting Party, over which they may, in accordance with their existing laws and with international law, exercise their sovereignty, sovereign rights or jurisdiction.
ARTICLE 2
Scope of the Agreement
(1) The present Agreement shall apply to all investments made by investors of any Contracting Party in the territory of the other Contracting Party, accepted as such in accordance with its laws and regulations, either made before or after the entry into force of this Agreement, but the provisions of this Agreement shall not apply to any dispute, claim or dispute arising prior to its entry into force.
(2) 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 time of the investment, had been domiciled or permanent residents of the latter Contracting Party for more than two years, unless it is proved that the investment was admitted to its territory from abroad.
ARTICLE 3
Investment Promotion and Protection
(1) Each Contracting Party shall promote and create favourable conditions for investors of the other Contracting Party to invest in its territory, and shall admit such investments in accordance with its laws, regulations and economic policy.
(2) The investments and profits of the investors of each Contracting Party shall at all times receive fair and equitable treatment and shall enjoy full legal protection and security in the territory of the other Contracting Party.
ARTICLE 4
Most Favored National and National Treatment
(1) Each Contracting Party, once it has admitted to its territory investments of investors of the other Contracting Party, shall grant investments a treatment no less favourable than that agreed either to the investments of its own investors or to investments of investors of a third State.
(2) Each Contracting Party shall, in its territory, subject investors of the other Contracting Party, with respect to the administration, maintenance, use, enjoyment or disposal of its investment or profits, to treatment no less favourable than that accorded to investors of a third State.
(3) The provisions of paragraphs 1 and 2 above shall not be construed as requiring a Contracting Party to extend to investors of the other the benefit of any treatment, preference or privilege resulting from:
(a) any existing or future agreement of free trade zone, customs union, common market or similar regional agreement in which any Contracting Party is or may be a party, or
(b) any international agreement or settlement relative, total or primarily to taxes, or any domestic legislation relating to total or mainly taxes, or
c) any bilateral agreement that provides special financing concluded by any Contracting Party with a third country.
ARTICLE 5
Expropriation
(1) Investments of investors of any Contracting Party shall not be nationalized, expropriated or subject to measures that have an effect equivalent to nationalization or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party, except for reasons of public utility in accordance with the law on a non-discriminatory basis and against payment of fair, equitable and effective compensation. Such compensation shall correspond to the genuine market value that the expropriated investment had immediately prior to the expropriation or before the impending expropriation was made public, which occurs first, shall comprise interests at a normal commercial rate until the date of payment, shall be paid without delay and shall be effectively realizable and freely transferable.
(2) The affected investor shall have the right, under the law of the Contracting Party which makes the expropriation, to a review, by a judicial authority or other independent authority of that Party, of its case and the valuation of its investment, in accordance with the principles set out in this paragraph. The Contracting Party that makes expropriation shall make every effort to ensure that such review is done promptly.
(3) Where a Contracting Party expropriates an enterprise ' s assets, which has legal status or is constituted in accordance with the legislation in force anywhere in its own territory and in which the investors of the other Contracting Party possess shares, it shall ensure that the provisions of paragraph (1) of this Article are applied to the extent necessary to ensure fair and equitable compensation, with respect to the investment of such investors of the other Contracting Party that are holders of such shares.
ARTICLE 6
Compensation for losses
(1) Investors of one of the Contracting Parties whose investments in the territory of the other Contracting Party suffer losses due to war or other armed conflict, state of national emergency or public disturbances in the territory of the latter Contracting Party shall be discounted, with respect to restitution, compensation, compensation or other restitution, a treatment no less favourable than that agreed by the latter to their own investors or to third-State investors. The resulting payments will be freely transferable.
(2) This agreement shall not prevent any Party from implementing the measures necessary for the maintenance of public order or the protection of its essential security interests.
ARTICLE 7
Repatriation of Investments and Gains
(1) Each Contracting Party shall grant investors of the other Contracting Party, on a non-discriminatory basis, the unrestricted transfer of all funds relating to an investment made in its territory, provided that it has fulfilled all obligations in accordance with its laws and regulations. Such funds may include:
(a) Capital and additional amounts used to maintain and increase investments;
(b) Net operating profits including dividends and interests proportional to their participation;
(c) Refunding any loan including the interest of the same directly related to the investment;
(d) Payment of royalties and fees for services related to investment;
(e) The production of the sales of their shares;
(f) The one produced by investors in case of sale or partial sale or liquidation of an investment;
(g) Income from nationals of a Contracting Party working on an investment in the territory of the other Contracting Party.
(2) None of the provisions of paragraph (1) of this Article shall affect the transfer of any compensation provided for in Articles 5 and 6 of this Agreement.
(3) Unless otherwise agreed between the Parties, transfers of money under paragraph 1 of this Article shall be made in the currency of the original investment or any other convertible currency. Such transfer shall be made at the applicable exchange rate at the date of the transfer.
(4) All transfers shall be made in accordance with the procedures established by the Contracting Party in whose territory the investment was made, which shall not affect the essence of the rights provided for in this Article.
ARTICLE 8
Subrogation
(1) Where a Contracting Party or the agency designated by the latter has guaranteed any compensation against civilian risks in respect of an investment made by any of its investors in the territory of the other Contracting Party and has paid such investors in respect of their claims under this Agreement, the other Contracting Party shall recognize that the first Contracting Party or agency designated by the latter is empowered by subrogation to exercise the rights and enforce claims. Subrogate rights and claims shall not exceed the original rights or claims of such investors.
(2) In the case of a subrogation, as defined in the preceding paragraph (1), the investor shall not lodge any claim unless authorized by the Contracting Party or the agency designated by it.
ARTICLE 9
Dispute Settlement between an Investor and a Contracting Party
(1) Any dispute arising within the terms of this Agreement between an investor of a Contracting Party and the other Contracting Party shall, to the extent possible, be amicably settled through negotiations between the parties to the dispute or through conciliation in accordance with mutually agreed procedures.
(2) If the dispute could not be settled through negotiations within six months of the date on which it had been raised by one Party or another, or the conciliation negotiations have ended otherwise than the signing of an agreement, it may be submitted:
(a) for settlement, in accordance with the law of the Contracting Party that has admitted the investment, to the competent judicial or administrative bodies of that Contracting Party; or
(b) to international arbitration in accordance with the provisions of paragraph 3.
If the parties fail to reach agreement on the (a) or (b) above, the opinion of the investor shall prevail.
(3) Where an investor or a Contracting Party has submitted a dispute to the aforementioned competent judicial or administrative bodies of the Contracting Party where the investment or international arbitration was made, the choice of one or another of these procedures shall be final.
(4) In the event of recourse to international arbitration, the dispute shall be submitted:
(a) to the International Centre for Settlement of Investment Disputes (C.I.A.D.I.), envisaging the appropriate provisions of the "Convention on Settlement of Investment Disputes between States and Nationals of Other States", open for signature in Washington, D.C. on 18 March 1965, provided that both Contracting Parties have acceded to that Convention, or
(b) if the paragraph (a) is not applicable to the Complementary Mechanism of the IC.A.D.I. for the Administration of Conciliation, Arbitration and Investigation Procedures, if each Party to the dispute gives its consent, or
(c) to the arbitration rules of the United Nations Commission on International Trade Law (C.N.U.D.M.I.) if within a three-month period following the decision to submit the dispute to arbitration, no agreement was reached on the choice of a forum in accordance with paragraphs (a) and (b).
(5) The arbitral tribunal shall decide in accordance with the provisions of this Agreement, the laws of the Contracting Party that are a party to the dispute, including its rules relating to conflicts of law, the terms of specific agreements concluded with respect to investment and the relevant principles of international law.
6) The arbitral ruling shall be final and binding on the parties to the dispute. Each Contracting Party shall execute it in accordance with its legislation.
ARTICLE 10
Disputes between Contracting Parties
(1) Disputes between Contracting Parties relating to the interpretation or application of this Agreement shall, as far as possible, be settled through negotiations.
(2) If a dispute between the Contracting Parties could not be settled in that manner within six months of the commencement of the dispute, the dispute shall, at the request of any Contracting Party, be submitted to an arbitral tribunal.
(3) The arbitral tribunal shall be constituted for each particular case in the following manner. Within two months of the receipt of the request for arbitration, each Contracting Party shall designate a member of the court. These two members shall elect a national of a third State who, with the approval of both Contracting Parties, shall be appointed President of the Tribunal. The President shall be appointed within two months from the date of the appointment of the other two members.
(4) If within the time limits provided for in paragraph (3) of this Article the necessary designations have not been made, any Contracting Party may, in the absence of another arrangement, invite the President of the International Court of Justice to proceed with the necessary appointments. If the President is a national of one of the Contracting Parties or, for any reason, is prevented from playing such a role, the Vice-President shall be invited to make the necessary appointments.
If the Vice-President is a national of one of the Contracting Parties, or if he is also prevented from playing such a role, the member of the International Court of Justice who follows him in order of precedence and is not a national of one of the Contracting Parties, shall be invited to make the necessary appointments.
(5) The arbitral tribunal shall make its decision by a majority of votes. Such a decision shall be binding on both Contracting Parties. Each Contracting Party shall bear the expenses of its member of the tribunal and its representation in the arbitral proceedings: the expenses of the President, as well as the other expenses shall be borne by equal share by the Contracting Parties. However, the court may determine in its decision that a greater proportion of the costs are borne by one of the two Contracting Parties, and this award shall be binding on both Contracting Parties. The court shall determine its own procedure.
ARTICLE 11
Input and staff stay
A Contracting Party shall, in accordance with its laws and regulations relating to the entry and stay of non-citizens, permit the natural persons of the other Contracting Party and the personnel employed by the companies of the other Contracting Party to enter and remain in its territory to engage in investment-related activities.
ARTICLE 12
Applicable legislation
All investments, under this Agreement, shall be governed by the legislation in force in the territory of the Contracting Party in which such investments are made.
ARTICLE 13
Implementation of other standards
If the provisions of the legislation of any Contracting Party or obligations under existing international law or which are established in the future between the Contracting Parties in addition to this Agreement contain rules, whether general or specific, that give to investments made by investors of the other Contracting Party a more favourable treatment than that established in this Agreement, those rules shall prevail over this Agreement to the extent that they are most favourable.
ARTICLE 14
Entry into force
This Agreement shall be subject to ratification and shall enter into force on the date of the exchange of the Instruments of Ratification.
ARTICLE 15
Duration and Termination
(1) This Agreement shall remain in force for a period of ten years and thereafter shall be deemed to have been automatically renewed unless one of the Contracting Parties notifies in writing to the other Contracting Party its intention to terminate this Agreement. The Agreement shall terminate one year after the date of receipt of such written notification.
(2) Notwithstanding the termination of this Agreement, as provided for in paragraph (1) of this Article, the provisions of Articles 1 to 13 of this Agreement shall continue to apply for an additional period of fifteen years from the date of its termination with respect to investments made or acquired prior to the date of termination of this Agreement.
In faith of which the subscribers, duly authorized to do so by their respective Governments, have signed this Agreement.
Made in NEW DELHI, on August 20, 1999, in two originals in Spanish, Hindi and English, these texts are equally authentic. In the event of divergence in the interpretation of the provisions, the English text will prevail.
