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Law Approving The Agreement Between The Belgo-Luxembourg Economic Union And The Government Of The Republic Of Korea Concerning The Encouragement And Reciprocal Protection Of Investments, Signed In Brussels On December 12, 2006 (1) (2) (3).

Original Language Title: Loi portant assentiment à l'Accord entre l'Union économique belgo-luxembourgeoise et le Gouvernement de la République de Corée concernant l'encouragement et la protection réciproques des investissements, signé à Bruxelles le 12 décembre 2006 (1) (2) (3)

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belgiquelex.be - Carrefour Bank of Legislation

30 AOUT 2008. - An Act to approve the Agreement between the Belgian Economic Union and the Government of the Republic of Korea concerning the mutual encouragement and protection of investments, signed in Brussels on 12 December 2006 (1) (2) (3)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Agreement between the Belgian Economic Union and the Government of the Republic of Korea concerning the mutual encouragement and protection of investments, signed in Brussels on 12 December 2006, will come out its full and full effect.
Promulgate this law, order that it be clothed with the seal of the State and promulgated by the Belgian Monitor
Given in Brussels on 30 August 2008.
ALBERT
By the King:
Minister of Foreign Affairs,
K. DE GUCHT
Seal of the state seal:
Minister of Justice,
J. VANDEURZEN
____
Note
(1) Regular session 2007-2008.
Senate
Documents. - Bill tabled on 26 May 2008, No. 4.778/1. - Report, number 4.778/2.
Annales parliamentarians. - Discussion and voting. Session of July 3, 2008.
Room
Documents. - Project transmitted by the Senate, No. 52.1330/1. - Text adopted in plenary and subject to Royal Assent, No. 52.1330/2.
Annales parliamentarians. - Discussion and voting. Session of July 10, 2008.
(2) See also the decree of the Flemish Region of 20 June 2008 (Belgian Monitor of 28 August 2008 - Ed. 2), the decree of the Walloon Region of 30 April 2009 (Belgian Monitor of 28 May 2009) and the order of the Brussels-Capital Region of 4 September 2008 (Belgian Monitor of 30 September 2008 - Ed. 5).
(3) Pursuant to Article 12, this Agreement comes into force on 27 March 2011.

Agreement between the Belgian Economic Union and the Government of the Republic of Korea on mutual encouragement and protection of investments
The Government of the Kingdom of Belgium,
The Walloon Government,
The Flemish Government,
The Government of the Brussels-Capital Region,
As well as
The Government of the Grand Duchy of Luxembourg,
on the one hand,
and
The Government of the Republic of Korea,
on the other hand,
(hereinafter referred to as the Contracting Parties)
Desirous of creating favourable conditions for the development of investments by investors of one of the Contracting Parties in the territory of the other Contracting Party, on the basis of the principles of equality and mutual benefit,
Recognizing that the encouragement and protection of investments on the basis of this agreement will stimulate the individual business initiative and increase the prosperity of both States,
Recognizing that each Contracting Party has the right to establish its own level of environmental protection, to define its development policies and priorities and its own standards of labour protection, and to adopt or amend its environmental and labour legislation accordingly,
Considering that none of the Contracting Parties shall amend or relax its national environmental or labour legislation in a manner that infringes the universally recognized rights of workers for the purpose of encouraging investments or maintenance or expansion of investments to be made in its territory,
The following agreed:
Article 1er
Definitions
For the purposes of this Agreement:
1. The term "investment" means any assets held or controlled, directly or indirectly, by any investor of one of the Contracting Parties in the territory of the other Contracting Party, and in particular, but not exclusively:
(a) movable and immovable property and other property rights such as mortgages, privileges, leases or leases,
(b) shares, shares and obligations and all other forms of participation, even minority, in the capital of a corporation or commercial enterprise and the rights or interests arising therefrom,
(c) receivables and rights to any contractual benefits of economic value,
(d) intellectual property rights, including copyrights, patents, trademarks, registered names, industrial designs, technical processes, trade secrets, know-how and trade funds, and
(e) commercial concessions with an economic value granted by law or under a contract, including those relating to the prospecting, cultivation, extraction or exploitation of natural resources.
No change in the form in which assets have been invested or reinvested will affect their investment quality.
2. The term "income" refers to the amounts generated by investments and, in particular, not exclusively, profits, interests, capital increments, dividends, royalties and all types of compensation;
3. The term "investors" means any natural or legal person of one of the Contracting Parties that invests in the territory of the other Contracting Party:
(a) The term "physical person" means any natural person having the nationality of the Kingdom of Belgium, the Grand Duchy of Luxembourg, or the Republic of Korea, in accordance with their respective laws, and
(b) The term "legal entity" means all entities such as enterprises, public institutions, authorities, foundations, partnership, firms, institutions, organizations, capital corporations or associations established or constituted in accordance with the laws and regulations of the Kingdom of Belgium, the Grand Duchy of Luxembourg, or the Republic of Korea.
4. The term "territory" refers respectively to the territory of the Kingdom of Belgium, the territory of the Grand Duchy of Luxembourg, or the territory of the Republic of Korea, as well as their maritime zones, including the seabed and their subsoil, adjacent to the outer limits of the territorial sea, on which the State concerned exercises, in accordance with international law, its sovereign rights and jurisdiction for the exploration and exploitation of the natural resources of the said areas; and
5. The term "freely convertible currency" means any currency commonly used to settle international transactions and commonly traded in major international exchange markets.
Article 2
Promotion and protection of investments
1. Each Contracting Party shall encourage investment in its territory, create favourable conditions for its realization by investors of the other Contracting Party and admit such investments in accordance with its laws and regulations.
2. Investments made by investors from one of the Contracting Parties will at all times benefit from fair and equitable treatment and will enjoy, in the territory of the other Contracting Party, complete and consistent protection and security.
3. No Contracting Party shall, by arbitrary or discriminatory measures, interfere with the exploitation, management, maintenance, use, enjoyment or alienation of investments made in its territory by investors of the other Contracting Party.
Article 3
Treatment of investments
1. Each Contracting Party shall grant the investment and income of the investors of the other Contracting Party in its territory a treatment that shall not be less favourable than that accorded to the investments and income of its own investors or to the investments and revenues of the investors of any third State, following the most favourable treatment to the investors concerned.
2. With respect to the exploitation, management, maintenance, use, enjoyment and sale or any other form of investment alienation, each Contracting Party shall grant on its territory to investors of the other Contracting Party a treatment that will not be less favourable than that granted to its own investors or investors of any third State, following the most favourable treatment to the investors concerned.
3. Such treatment shall not extend to the privileges granted by one or the other Contracting Party to investors of third States, by virtue of its current or future participation or association in a customs or economic union, a common market or a free trade zone or a similar international agreement.
4. The provisions of paragraphs 1 and 2 of this Article shall not be construed as requiring a Contracting Party to extend to the investments of investors of the other Contracting Party the benefit of any treatment, preference or privilege resulting from any international agreement or arrangement relating primarily or exclusively to taxation, including any agreement to avoid double taxation.
Article 4
Compensation for losses
Investors of one of the Contracting Parties whose investments would have suffered losses due to war or other armed conflict, national state of emergency, revolt, insurrection, riot or any other similar situation occurring in the territory of the other Contracting Party, shall benefit, on the part of the latter, from a treatment, with respect to restitution, compensation, compensation or other types of compensation granted to the other Contracting Party, which shall not be less favourable to the investor The resulting payments will be freely transferable without undue delay.
Article 5
Expropriation
1. Investments of investors in each Contracting Party shall not be nationalized, expropriated or subject to any other measure having an effect equivalent to nationalization or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party, except in the public interest and subject to payment without delay of adequate and effective compensation. Expropriations will be carried out on a non-discriminatory basis and on a legal basis.
2. The amount of the allowances will be the fair market value of the expropriated investments immediately before the time the expropriation decision was made or the intention to expropriate was made public, following the first situation that arises; the allowances will bear interest to the commercial rate applicable from the date of expropriation to that of their payment, they will be paid without undue delay, will effectively be feasible and freely transferable. As far as expropriation and compensation is concerned, the treatment granted will not be less favourable than that granted by the Contracting Party concerned to its own investors or investors of any third State.
3. Investors of one of the Contracting Parties affected by the expropriation will be allowed to request a review as soon as possible, by a judicial authority or by any other independent authority of the other Contracting Party, their case and the valuation of investments, in accordance with the principles set out in this Article.
4. Where a Contracting Party expropriates the assets of a corporation established or incorporated in accordance with its laws and regulations, in which investors of the other Contracting Party hold shares, obligations or other forms of participation, the provisions of this Article shall apply.
Article 6
Transfers
1. Each Contracting Party shall guarantee to investors of the other Contracting Party the free transfer of their investments and revenues. These transfers will include, but not limited to:
(a) net profits, capital increments, dividends, interest, royalties, allowances and any other common income of investments,
(b) the proceeds of the total or partial sale or liquidation of investments,
(c) the amounts necessary for the reimbursement of borrowings related to investments,
(d) the remuneration of nationals of the other Contracting Party authorized to work in the context of investments in its territory,
(e) additional amounts required for the maintenance or expansion of existing investments,
(f) amounts intended for the management of the investment in the territory of the other Contracting Party or a third State, and
(g) compensation paid under Articles 4 and 5.
2. All transfers under this Agreement shall be made in a freely convertible currency, without restriction or undue delay, at the exchange rate applicable to the date of transfer.
3. Notwithstanding any provision to the contrary of this Agreement, each Contracting Party may, in accordance with its laws and regulations, adopt or maintain measures incompatible with its obligations under this Article:
(a) in the event of serious difficulties or threats of serious difficulties in the balance of payments or the external financial situation, or
(b) where, in exceptional circumstances, capital movements lead to or may result in serious macroeconomic management challenges, including monetary and foreign exchange policy.
4. The measures referred to in paragraph 3 above:
(a) shall comply with the statutes of the International Monetary Fund,
(b) will not exceed what is necessary to deal with the circumstances described in paragraph 3 above,
(c) will be temporary and deleted as soon as the situation permits,
(d) shall be notified promptly to the other Contracting Party.
Article 7
Subrogation
1. If one of the Contracting Parties or an agency designated by the Contracting Party shall pay compensation to its own investors under a deposit in respect of investments made in the territory of the other Contracting Party, that other Contracting Party shall recognize:
(a) the transfer, by legal provision or by means of a legal act in the State concerned, to the first Contracting Party or to the agency designated by the State concerned, of any rights or receivables owned by investors, as well as,
(b) the first Contracting Party or the agency designated by the latter has the right, under subrogation, to exercise the rights and to claim the receivables of the said investors.
2. The rights or receivables transferred will not be extended more than the initial rights or receivables of investors.
Article 8
Settlement of investment disputes between a contracting party and an investor of the other contracting party
1. Any dispute between one of the Contracting Parties and an investor of the other Contracting Party as a result of a presumed breach of an obligation arising out of this Agreement, including as part of an expropriation or nationalization of investments, shall be notified in writing by the most expeditious party and, if possible, shall be settled amicably between the parties to the disputes. The notification will be accompanied by a sufficiently detailed aide-memoire.
2. The national remedies provided for by the laws and regulations of one of the Contracting Parties in the territory of which the investment was made will be open to investors of the other Contracting Party on the basis of a treatment that will not be less favourable than that granted to the investments of its own investors or investors of any third State, following the most favorable treatment to the investors concerned.
3. If the dispute is not resolved within six (6) months of the date on which it was raised by one of the parties, and if the investor waives the right to use any of the remedies referred to in paragraph 2 of this Article in respect of that same dispute, the investor shall, at the request of the investor of the Contracting Party concerned:
(a) at the International Centre for the Settlement of Investment Disputes (IRDI), established by the Washington Convention of 18 March 1965 for the Settlement of Investment Disputes between States and Nationals of Other States, or
(b) the Centre's Supplementary Mechanism, if it cannot be used by ICSID, or
(c) the UNCITRAL Arbitration Rules, or
(d) any other arbitration institution or other arbitration by agreement of both parties to the dispute.
4. Notwithstanding the fact that the investor would have submitted the dispute to international arbitration in accordance with paragraph 3, he or she may bring a preliminary order proceeding not involving the payment of damages, to the judicial or administrative courts of the Contracting Party party to the dispute, with a view to preserving his or her rights and interests.
5. Each Contracting Party hereby consents to the submission of the dispute to arbitration in accordance with the procedures set out in this Agreement. This consent implies that both Parties waive the requirement to exhaust all domestic administrative or judicial remedies.
6. The awards made in respect of international arbitration pursuant to this Article shall be final and binding for the parties to the dispute. Each Contracting Party undertakes to recognize and enforce awards in accordance with its applicable laws and regulations.
7. The investor will not be allowed to submit a dispute to arbitration in accordance with this Article if more than five years have elapsed from the date on which the investor has become aware, or should have known the facts that are at the origin of the dispute.
Article 9
Settlement of disputes between Contracting Parties
1. Disputes between Contracting Parties relating to the interpretation or application of this Agreement shall be settled, if possible, through consultations or through diplomatic channels.
2. In the absence of a settlement within six (6) months, the dispute shall be submitted, at the request of either Contracting Party, to an ad hoc arbitral tribunal in accordance with the provisions of this Article.
3. The arbitral tribunal shall be constituted for each particular case in the following manner: Within two (2) months from receipt of the request for arbitration, each Contracting Party shall designate a member of the court. These two members will then choose a third-country national who will be appointed as President of the Court, with the agreement of the two Contracting Parties. The President will be appointed within two (2) months of the date on which the other two members were appointed.
4. If the designations have not taken place within the time limits specified in paragraph 3 of this Article, either Contracting Party may request the President of the International Court of Justice to make the necessary appointments. If the President of the Court is a national of either Contracting Party or if, for another reason, he or she is unable to exercise that function, the Vice-President will be invited to make the necessary appointments. If the Vice-President of the Court is also a national of one or the other Contracting Party, or if he or she is also unable to exercise that function, the highest member in the International Court of Justice and who is not a national of either Contracting Party will be invited to make the necessary appointments.
5. The arbitral tribunal shall make its decisions by a majority vote. Its decisions will be mandatory for both Contracting Parties.
6. The arbitral tribunal shall establish its own rules of procedure.
7. Each Contracting Party shall bear the costs of the member it has designated, and the costs of its representation in the arbitration proceedings. The President ' s fees and other costs shall be borne equally by the two Contracting Parties. The arbitral tribunal may, however, stipulate in its decision that a greater portion of these costs will be borne by one of the two Contracting Parties.
Article 10
Application of other rules
1. Where a matter is governed both by this Agreement and by an international convention to which both Contracting Parties are parties, or by general principles of international law, no provision of this Agreement shall prevent one or the other Contracting Party or one of their investors from taking advantage of the rules that are most favourable to them.
2. If the treatment granted by one of the Contracting Parties to investors of the other Contracting Party in accordance with its laws and regulations or other specific provisions or contracts is more favourable than that granted under this Agreement, the most favourable treatment will be granted.
3. Each Contracting Party shall comply with any other written obligation that would have come into force with respect to investments made in its territory by investors from the other Contracting Party.
Article 11
Application of the agreement
This Agreement will apply to all investments, whether they have been made before or after it comes into force. However, this agreement will not apply to investment disputes that are the subject of a dispute settlement procedure under the Agreement concerning the mutual encouragement and protection of investments between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Republic of Korea, signed on 20 December 1974 in Brussels. The latter agreement will continue to apply to such investments as it is a dispute referred to above.
Article 12
Entry into force, hard and denunciation
1. This Agreement shall enter into force thirty (30) days after the date on which the Contracting Parties have notified in writing that their respective legal procedures for this purpose have been completed.
2. This Agreement shall remain in force for a period of twenty (20) years. Upon the expiration of this period, it shall remain in force for an indefinite period, unless one of the Contracting Parties notify the other Contracting Party in writing, one year before the expiry of that period, of its intention to denounce the Agreement.
3. Investments made prior to the expiry date of this Agreement will continue to be governed by the provisions of Articles 1 to 11 for a further period of twenty (20) years from the expiry date.
4. At the entry into force of this Agreement, the Agreement concerning the mutual encouragement and protection of investments between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Republic of Korea, signed on 20 December 1974 in Brussels, will be denounced and replaced by this Agreement.
In faith, the undersigned, duly authorized to do so by their respective Governments, have signed this Agreement.
Done in Brussels on 12 December 2006, in two original copies, each in French, Dutch, Korean and English, all texts being equally authentic. The English language text will prevail in the event of a discrepancy of interpretation.