belgiquelex.be - Carrefour Bank of Legislation 8 FEBRUARY 2007. - An Act to approve the Agreement between the Belgian Economic Union and the Government of the People's Republic of China concerning the mutual encouragement and protection of investments signed in Beijing on 6 June 2005 (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 1
er. 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 People's Republic of China on the mutual encouragement and protection of investments, signed in Beijing on 6 June 2005, will emerge its full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 8 February 2007.
ALBERT
By the King:
Minister of Foreign Affairs,
K. DE GUCHT
Minister of Foreign Trade,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
S. DECLERCK
Notes
(1) Session 2005-2006:
Senate:
Documents. - Bill tabled on 13 June 2006, No. 3-1751/1.
2006-2007 session:
Documents. - Report, number 3-1751/2.
Annales parliamentarians. - Discussion. Session of November 9, 2006. - Vote. Session of November 9, 2006.
House of Representatives:
Documents. - Project transmitted by the Seant, No. 51-2736/1 - Text adopted in plenary and subject to Royal Assent, No. 51-2736/2.
Annales parliamentarians. - Discussion. Meetings of 30 November 2006 and 7 December 2006. - Vote. Session of December 7, 2006.
(2) See Flemish Region Decree of 7 July 2006 (Belgian Monitor of 1
er September 2006), Decree of the Walloon Region of 15 January 2009 (Belgian Monitor of 6 February 2009), Order of the Brussels-Capital Region of 13 July 2006 (Belgian Monitor of 3 August 2006).
(3) The Agreement entered into force on 1
er December 2009.
Agreement between the Belgian Economic Union and the Government of the People's Republic of China on mutual encouragement and protection of investments
The Government of the Kingdom of Belgium,
acting both in his name and in the name
the Government of the Grand Duchy of Luxembourg, under existing agreements,
the Walloon Government,
the Flemish Government,
and the Government of the Brussels-Capital Region,
on the one hand,
and
The Government of the People ' s Republic of China,
on the other hand,
(hereinafter referred to as the Contracting Parties)
Desirous of strengthening their economic cooperation by creating favourable conditions for the realization of investments by investors of one of the Contracting Parties in the territory of the other Contracting Party;
Aware of the fact that mutual encouragement, promotion and protection of such investments will stimulate the commercial initiatives of investors and increase the prosperity of both Contracting Parties;
Desirous of intensifying cooperation between the two Contracting Parties on the basis of equality and mutual benefit;
agreed that:
Definitions
Article 1
er1. For the purposes of this Agreement, the term "investor" means:
(a) in respect of the Kingdom of Belgium or the Grand Duchy of Luxembourg,
(i) "nationals", that is, any natural person who, according to the laws of the Kingdom of Belgium or the Grand Duchy of Luxembourg is considered a citizen of the Kingdom of Belgium or of the Grand Duchy of Luxembourg;
(ii) "societies", that is, any legal entity incorporated in accordance with the laws of the Kingdom of Belgium or the Grand Duchy of Luxembourg and having its head office in the territory of the Kingdom of Belgium or the Grand Duchy of Luxembourg;
(b) with regard to the People ' s Republic of China,
(i) natural persons with the nationality of the People ' s Republic of China in accordance with the laws of the People ' s Republic of China;
(ii) legal entities, including companies, associations, partnerships and other organizations, established under the laws and regulations of the People ' s Republic of China and based in the People ' s Republic of China.
2. The term "investment" means any assets invested by investors of one of the Contracting Parties in accordance with the laws and regulations of the other Contracting Party in the territory of that Contracting Party, and includes in particular, but not exclusively:
(a) movable and immovable property and any other real rights such as mortgages, privileges, leases, usufruct and similar rights;
(b) shares, social shares and other forms of participation in corporate capital;
(c) receivables and rights to any other benefit with an economic value in relation to an investment;
(d) copyright, industrial property rights, technical processes, names deposited, know-how and trade funds;
(e) concessions granted by law or under a legal 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 quality of "investments" within the meaning of this Agreement.
3. The term "income" refers to amounts generated by an investment and, in particular, not exclusively, profits, interests, capital increments, dividends, royalties or allowances.
4. The term "territory" means:
(a) the territory of the Kingdom of Belgium and the territory of the Grand Duchy of Luxembourg, as well as the maritime zones, that is, the marine and submarine zones that extend beyond the territorial waters of the Kingdom of Belgium and on which the Kingdom of Belgium exercises, in accordance with international law, its sovereign rights and jurisdiction for the exploration, exploitation and conservation of natural resources;
(b) the territory of the People's Republic of China (including the territorial sea and the airspace above it), and beyond its territorial sea, any area on which, in accordance with Chinese law and international law, the People's Republic of China has sovereign rights for the exploration and exploitation of the resources of the seabed and its subsoil, and of the overlying waters.
Promotion and protection of investments
Article 2
1. Each Contracting Party shall encourage investment by investors of the other Contracting Party in its territory and shall admit such investments in accordance with its legislation.
2. All investments made by investors of one of the Contracting Parties shall enjoy fair and equitable treatment in the territory of the other Contracting Party.
3. Investments of investors in each Contracting Party shall enjoy, on the territory of the other Contracting Party, constant protection and security.
4. Without prejudice to its laws and regulations, no Contracting Party shall, by unreasonable or discriminatory measures, interfere with the management, maintenance, use, enjoyment or disposition of investments made by investors of the other Contracting Party.
Most-favoured national and national treatment
Article 3
1. Each Contracting Party shall grant investment by investors of the other Contracting Party as well as any activity associated with such investments, a treatment that will not be less favourable than that accorded to investments and activities associated with its own investors.
2. None of the Contracting Parties shall grant investment by investors of the other Contracting Party and any activity associated with such investments, less favourable than that accorded to investments and activities associated with investors of any third State.
3. The provisions of paragraph 2 of this Article shall not be construed as requiring a Contracting Party to extend to investors of the other Contracting Party the benefit of any treatment, preference or privilege resulting from:
(a) a customs union, a free trade zone, an economic union, a common market or any other form of regional economic organization or any international agreement creating such unions;
(b) any international agreement or arrangement relating primarily or exclusively to taxation;
(c) any arrangement to facilitate small-scale cross-border trade in border areas.
Private and restrictive measures of ownership
Article 4
1. Each Contracting Party undertakes not to take any measures of expropriation or nationalization or any other measure whose effect would be to dispossess directly or indirectly the investors of the other Contracting Party of their investments in its territory.
2. If public utility, security or national interest requirements require a derogation from paragraph 1
erthe following conditions shall be met:
(a) action will be taken on the basis of a legal procedure in national law;
(b) they will not be discriminatory;
(c) they shall be provided with provisions for payment of compensation.
3. The amount of compensation will correspond to the real value of the investments concerned on the day before the measures were taken or made public.
Allowances may be paid in any convertible currency. They will be paid promptly and freely transferable. They will be of interest to the normal commercial rate from the date of the fixing of their amount to that of their payment.
4. Investors of one of the Contracting Parties whose investments would have suffered damage as a result of a war or any other armed conflict, revolution, state of national emergency or revolt in the territory of the other Contracting Party, will benefit, on the part of the latter, in respect of restitution, compensation, compensation or other compensation, from a treatment at least equal to that granted to investors of the most favoured nation.
Transfers
Article 5
1. Each Contracting Party shall grant investors of the other Contracting Party the free transfer of all payments relating to an investment, including:
(a) amounts intended to establish, maintain or develop investment;
(b) amounts intended for the settlement of contractual obligations, including amounts required for the reimbursement of loans, royalties and other payments arising from licences, franchises, concessions and other similar rights;
(c) Investment income;
(d) total or partial liquidation of investments;
(e) remuneration of nationals of the other Contracting Party employed in the context of investment in its territory;
(f) compensation paid pursuant to section 4.
2. The above-mentioned transfers will be made in a freely convertible currency at the market exchange rate applicable to the territory of the Contracting Party having accepted the investments, and at the date of the transfer.
Subrogation
Article 6
If one of the Contracting Parties or an agency designated by the Contracting Party shall pay compensation to its own investors under a guarantee or contract of insurance against non-commercial risks granted under an investment 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, to the first Contracting Party or to the agency designated by the latter, of any rights or receivables owned by the investor, and,
(b) the first Contracting Party or the agency designated by the latter has the right, under subrogation, to exercise the rights and to assert the receivables owned by the investor and to assume the obligations therein under the same conditions as the investor.
Other obligations
Article 7
1. Where an investment issue is governed by both this Agreement and the national legislation of one of the Contracting Parties or by international conventions in force or subsequently contracted by the Contracting Parties, the investors of the other Contracting Party may avail themselves of the provisions that are most favourable to them.
2. Each Contracting Party undertakes to ensure at any time compliance with its obligations with respect to investors of the other Contracting Party.
Settlement of investment disputes
Article 8
1. Any investment dispute between an investor of one of the Contracting Parties and the other Contracting Party shall be notified in writing by one of the Contracting Parties.
To the extent possible, the parties will attempt to resolve the dispute through consultations, possibly using the expert advice of a third party, or by conciliation between the Contracting Parties through diplomatic channels.
2. If the dispute is not resolved, by consultation, within six months of the date of notification by one of the parties, each Contracting Party agrees that the dispute be submitted to the investor's choice:
(a) the competent jurisdiction of the Contracting Party which is a party to the dispute;
(b) the International Centre for the Settlement of Investment Disputes (C.I.R.D.I.), established by the Convention for the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington, D.C., on 18 March 1965.
Once the dispute submitted by the investor to the competent jurisdiction of the Contracting Party concerned or to the C.I.R.D.I., the choice of the procedure will be final.
3. Arbitration awards will be final and binding for the parties to the dispute. Each Contracting Party undertakes to enforce the awards in accordance with its national legislation.
Disputes between Contracting Parties
concerning the interpretation or application of this Agreement
Article 9
1. Any dispute relating to the interpretation or application of this Agreement shall be resolved, to the extent possible, by diplomatic means.
2. In the absence of a diplomatic settlement, the dispute shall be submitted to a joint commission composed of representatives of the two Contracting Parties; it shall meet without undue delay at the request of one of the Contracting Parties.
3. If the joint commission is unable to resolve the dispute within six months, it shall be submitted, at the request of one of the Contracting Parties, to an arbitral tribunal constituted, for each particular case, as follows:
(a) This court will be composed of three arbitrators. Each Contracting Party shall designate an arbitrator within two months of receipt of the written notification requesting arbitration. Within two months of their designation, these two arbitrators shall jointly appoint a national of a third State with diplomatic relations with the two Contracting Parties, who shall serve as President of the arbitral tribunal.
(b) If the arbitral tribunal has not been constituted within four months of receipt of the written notification calling for arbitration, one of the Contracting Parties may, failing any other agreement, invite the President of the International Court of Justice to make any necessary appointments. If the President of the International Court of Justice is a national of one of the Contracting Parties or if, for another reason, he or she is prevented from exercising that function, the highest member in the International Court of Justice who is not a national of either Contracting Party or who is not prevented from exercising that function for any other reason, will be invited to make any necessary appointment.
(c) The arbitral tribunal shall establish its own rules of procedure. It shall take its decisions in accordance with the provisions of this Agreement and the principles of international law recognized by the two Contracting Parties.
(d) The decisions of the arbitral tribunal shall be taken by a majority vote. These decisions will be final and binding for Contracting Parties. At the request of one of the Contracting Parties, the arbitral tribunal shall set out the grounds for such decisions.
4. Each Contracting Party shall bear the costs associated with the designation of its arbitrator and those arising from its representation in the arbitral proceedings. Costs relating to the President and the functioning of the Court shall be borne equally by the Contracting Parties.
Transition
Article 10
1. This Agreement supersedes the Agreement between the Belgian Economic Union and the Government of the People's Republic of China on mutual encouragement and protection of investment, signed in Brussels on 4 June 1984.
2. This Agreement shall apply to all investments made by investors of one of the Contracting Parties in the territory of the other Contracting Party, whether before or after the entry into force of this Agreement, but shall not apply to a dispute or claim concerning an investment that was already the subject of a legal or arbitration procedure before its entry into force. Such disputes or claims shall continue to be settled in accordance with the provisions of the 1984 Agreement referred to in paragraph 1 of this Article.
Entry into force and duration
Article 11
1. This Agreement shall enter into force on the first day of the month following the date on which the two Contracting Parties have notified in writing that their respective domestic legal procedures for this purpose have been completed. It will remain in force for a period of ten years.
2. This Agreement shall remain in force unless one of the Contracting Parties denounces it, by written notification to the other Contracting Party, one year before the expiry of its initial validity period of ten years or at any other time after that period.
3. Investments made prior to the expiry date of this Agreement will continue to be governed by the provisions of Articles 1
er 9 for a period of ten years from the said expiry date.
4. This Agreement may be amended by written agreement between the Contracting Parties. Any amendment shall enter into force on the same procedures as prescribed for the entry into force of this Agreement.
In faith, the undersigned representatives, duly authorized to do so by their respective Governments, have signed this Agreement.
Done at Beijing on 6 June 2005, in two original copies, each in French, Dutch, Chinese and English, all texts being equally authentic. The English language text will prevail in the event of a discrepancy of interpretation.
Protocol to the Agreement between the Luxembourg Economic Union and the Government of the People's Republic of China concerning the mutual encouragement and protection of investments
At the time of the signing of the Agreement between the Belgian Economic Union and the Government of the People's Republic of China on mutual encouragement and protection of investments, the undersigned representatives agreed on the following provisions, which are an integral part of the Agreement:
Concerning Article 1
erThe term "investments" referred to in paragraph 2 of Article 1
er includes investments of legal persons of a third State that are the property of investors of or under the control of a Contracting Party and that have been made in the territory of the other Contracting Party in accordance with the laws and regulations of the other Contracting Party. The relevant provisions of this Agreement shall apply to such investments only when the said third State does not have the right to claim compensation after the investments have been expropriated by the other Contracting Party, or waives that right.
Concerning Article 3
With respect to the People's Republic of China, section 3, paragraph 1, does not apply:
(a) any existing non-compliant measures applied in its territory;
(b) maintaining such a non-compliant measure;
(c) any modification of such a non-compliant measure, provided that the amendment does not increase the non-compliance of such measures.
The People's Republic of China will take all appropriate measures to phase out non-compliant measures.
Concerning Article 5
1. With respect to the People's Republic of China, transfers referred to in Article 5 of this Agreement will be carried out in accordance with the relevant formalities stipulated by the current Chinese laws and regulations concerning exchange control.
2. In this regard, the People's Republic of China will grant investors of the Belgian Economic Union a treatment that will not be less favourable than that granted to investors of any third State.
3. Such formalities shall not be used as a way to avoid the commitments or obligations of the Contracting Party under this Agreement.
4. The provisions of Article 5 of this Agreement shall not affect the rights and obligations with respect to exchange restrictions binding on either Contracting Party as a member of the International Monetary Fund.
Concerning Article 8
It is mutually understood that the People's Republic of China requires that the investor concerned exhaust the national administrative review procedure specified by the laws and regulations of the People's Republic of China, before submitting the dispute to international arbitration under Article 8, paragraph 2. The People ' s Republic of China states that this procedure will have a maximum duration of three months.
Done at Beijing on 6 June 2005, in two original copies, each in French, Dutch, Chinese and English, all texts being equally authentic. The English language text will prevail in the event of a discrepancy of interpretation.
