16 FEVRIER 2000. - An Act to approve the Agreement between the Belgian Economic Union and the Republic of South Africa concerning the mutual encouragement and protection of investments, signed in Pretoria on 14 August 1998 (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 Republic of South Africa on the mutual encouragement and protection of investments, signed in Pretoria on 14 August 1998, will emerge its full effect.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 16 February 2000.
ALBERT
By the King:
Minister of Foreign Affairs,
L. MICHEL
The Secretary of State for Foreign Trade,
P. CHEVALIER
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Session 1999-2000.
Senate.
Documents. - Bill, tabled on 24 September 1999, No. 2-80/1. - Report, no. 2-80/2. - Text adopted by the Commission, No. 2-80/3.
Annales parliamentarians. - Discussion, meeting of 15 December 1999 and Vote. Session of 16 December 1999.
Room.
Documents. - Project transmitted by the Senate, No. 50-333/1. - Text adopted in plenary and subject to Royal Assent, No. 50-333/2.
Annales parliamentarians. - Discussion. Session of 20 January 2000. - Vote. Session of 20 January 2000.
(2) Decree of the Walloon Region of 12 July 2001 (Moniteur belge of 11 August 2001); Flemish Region Decree of 17 July 2000 (Belgian Monitor of 11 August 2000); Order of the Brussels-Capital Region of 25 May 2000 (Belgian Monitor of 24 November 2000).
(3) The exchange of instruments of ratification took place on 14 February 2003. In accordance with the provisions of Article 12 of the Agreement, the Agreement shall enter into force on 14 March 2003.

Agreement between the Belgian Economic Union and the Republic of South Africa on mutual encouragement and protection of investments
Preamble
The Government of the Kingdom of Belgium,
acting both in his own 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 Republic of South Africa,
on the other hand,
(hereinafter referred to as the "Contracting Parties")
Desirous of creating conditions conducive to greater investment by investors of a Contracting Party in the territory of the other Contracting Party;
Recognizing that the mutual encouragement and protection of such investments by an international agreement will be conducive to the development of private economic initiatives and will increase prosperity in the territory of the two Contracting Parties;
The following agreed:
Article 1^er
Definitions
For the purposes of this Agreement:
(1) "Investissement" means any component of any asset and any direct or indirect contribution to digital, in-kind or in-service, invested or reinvested in any sector of economic activity, including, but not limited to,
(a) movable and immovable property and other real rights, such as mortgages, privileges, leases;
(b) the actions and obligations of a society and all other forms of participation in a society;
(c) receivables or rights to any contracted benefit with an economic value;
(d) intellectual property rights, trade funds, technical processes and know-how;
(e) trade concessions conferred by law or contract, including those relating to the research, culture, extraction or exploitation of natural resources, as well as all other rights given by law, contract or by decision of the authority in accordance with its legislation.
A change in the form in which assets are invested does not affect their qualification as investments.
(2) "Revenues" means amounts generated by an investment and includes, in particular, but not limited to, profits, interests, capital increments, dividends, royalties and fees.
(3) "Investors" means -
(a) "nationals" that is, any natural person who, according to the laws of the Kingdom of Belgium, the Grand Duchy of Luxembourg or the Republic of South Africa, is considered to be a citizen of the Kingdom of Belgium, the Grand Duchy of Luxembourg or the Republic of South Africa respectively;
(b) "societies", that is, any legal entity incorporated in accordance with the laws of the Kingdom of Belgium, the Grand Duchy of Luxembourg or the Republic of South Africa and having its head office in the territory of the Kingdom of Belgium, the Grand Duchy of Luxembourg or the Republic of South Africa respectively.
(4) The term "territory" means -
(a) in respect of the Belgian Economic Union, the territory of the Kingdom of Belgium, the territory of the Grand Duchy of Luxembourg and the maritime zones, that is, the marine and submarine zones that extend beyond the territorial waters of the States concerned and on which they exercise, in accordance with international law, their sovereign rights and their jurisdiction for the purposes of exploration, exploration, natural resources and and
(b) in respect of the Republic of South Africa, the territory of the Republic of South Africa and the maritime areas, that is, the marine and submarine areas that extend beyond the territorial waters of the Republic of South Africa and on which the Republic of South Africa exercises, in accordance with international law, its sovereign rights and jurisdiction for the exploration, exploitation and conservation of natural resources.
Article 2
Promotion, admission
(1) Each of the Contracting Parties shall encourage, within the framework of its laws, the investors of the other Contracting Party to make investments in its territory by creating favourable conditions for such investments and, subject to its rights to exercise the powers conferred on it by its legislation, shall admit such investments.
(2) Each Contracting Party shall grant, in accordance with its laws, the necessary authorizations relating to these investments and to the execution of licensing agreements and technical, commercial or administrative assistance contracts.
Article 3
Protection, treatment
(1) Investments and incomes of investors in each Contracting Party shall be granted, on a permanent basis, fair and equitable treatment in the territory of the other Contracting Party and shall enjoy constant protection and security. No Contracting Party shall, by unwarranted or discriminatory measures, interfere with the management, maintenance, use, enjoyment, extension or right to dispose of investments made in its territory by investors of the other Contracting Party.
(2) Each Contracting Party shall, in its territory, grant investment and income from investors of the other Contracting Party, 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 investors of any third State. The treatment granted will be the one that will be most favorable to the investor concerned. Such treatment would in no way be less favourable than that recognized by international law.
(3) Each Contracting Party shall, in its territory, grant to investors of the other Contracting Party a treatment that shall not be less favourable than that granted to its own investors or investors of any third State. The treatment granted will be the one that will be most favorable to the investor concerned. Such treatment would in no way be less favourable than that recognized by international law.
(4) The provisions of subsections (2) and (3) of this Article shall not be construed or applied in such a manner as to oblige one of the Contracting Parties to extend to investors of the other Contracting Party the benefit of any treatment, preference or privilege that may be granted by the first Contracting Party under:
(a) an agreement creating a free trade zone, a customs union, a common market or a similar regional organization; or
(b) any agreement or regulation relating primarily or exclusively to taxation, or any national legislation relating primarily or exclusively to taxation.
(5) In order to avoid doubts, it is confirmed that the principles set out in subsections (2) and (3) of this Article will apply to the provisions of Articles 1-11, but will not apply to special benefits, for example in the area of taxation, granted to the financial development institutions.
Article 4
Compensation for damage
(1) Investors of a Contracting Party whose investments, in the territory of the other Contracting Party, would have suffered damage due to a war or other armed conflict, revolution, state of national emergency, revolt, insurrection or riots in the territory of the other Contracting Party shall be granted treatment on the part of that Contracting Party, in respect of restitution, compensation, compensation or other compensations not less recent, The treatment granted will be the one that will be most favorable to the investors concerned. The resulting payments will be freely transferable in the market applicable to the date of transfer in accordance with the applicable exchange rules.
(2) Without prejudice to paragraph (1) of this Article, investors of a Contracting Party who, in any of the situations referred to in the above-mentioned paragraph, suffer losses in the territory of the other Contracting Party arising from:
(a) the requisition of their property by the armed forces or the authorities of the last Contracting Party, or
(b) the destruction of their property, by the armed forces or the authorities of the last Contracting Party, not in a combat action or not required by the necessity of the situation, shall be accorded adequate restitution or compensation. The resulting payments will be freely transferable in the market applicable to the date of transfer in accordance with the current exchange regulations.
Article 5
Expropriations
(1) Investments of investors of a 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 cause of public utility related to the internal needs of that Contracting Party, in accordance with a legal procedure, on a non-discriminatory basis and with prompt, adequate compensation. Such compensation shall correspond to the real value of the expropriated investment on the date immediately preceding the expropriation or the date on which the expropriation was made public, regardless of the first of these two dates, it shall include interest at the normal commercial rate up to the date of payment, shall be made without delay, shall be effectively feasible and freely transferable in the market applicable to the date of the transfer in accordance with the regulation of the exchanges. The investors concerned shall be entitled, under the legislation of the Contracting Party performing the expropriation, to obtain a prompt review by a judicial authority or other independent authority of that Contracting Party, their case and the assessment of their investments in accordance with the principles set out in that paragraph.
(2) When a Contracting Party expropriates the assets of a corporation that is incorporated or incorporated in the legislation in force in each part of its own territory, and in which investors of the other Contracting Party have shares, it shall, if necessary and within the framework of its laws, ensure that the compensation provided for in paragraph (1) of this Article is accessible to such investors.
Article 6
Investment and Revenue Transfers
(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 necessary for the reimbursement of borrowings, royalties and other payments arising from licences, franchises, concessions and other similar fees, as well as the remuneration of expatriated personnel;
(c) Investment income;
(d) income from the recovery of receivables or the total or partial liquidation of investments, including capital gains or increments invested;
(e) compensation paid pursuant to articles 4 and 5.
(2) Nationals of each Contracting Party authorized to work for an investment in the territory of the other Contracting Party are also authorized to transfer their net remuneration to their country of origin.
(3) Cash transfers will be made without delay in any convertible currency. Unless otherwise agreed by the investor, tranferts will be made in the market applicable to the date of the transfer in accordance with the applicable exchange regulations.
Article 7
Other obligations
(1) If provisions in the legislation of either Contracting Party or in international agreements grant investment by investors of the other Contracting Party a more favourable treatment than that provided for in this Agreement, investors of the other Contracting Party shall have the right to avail themselves of the provisions that are most favourable to them, subject to the provisions of paragraphs (4) and (5) of Article 3.
(2) Each Contracting Party shall respect any obligation it has assumed in respect of investments made in its territory by investors of the other Contracting Party.
Article 8
Investments prior to the entry into force of the Agreement
This Agreement shall also apply to investments made prior to its entry into force by investors of one of the Contracting Parties in the territory of the other Contracting Party in accordance with the laws and regulations of the other Contracting Party. However, it will not apply to a dispute that would have occurred prior to its entry into force.
Article 9
Subrogation
(1) If one of the Contracting Parties or a public body of the Contracting Party pays compensation to its own investors under a particular investment guarantee, the other Contracting Party recognizes that the rights and shares of investors are transferred to the Contracting Party or the public body concerned.
(2) With respect to transferred rights, the other Contracting Party may apply to the insurer, which is subrogated in the rights of compensation investors, the obligations that are legally or contractually binding on the insurers.
Article 10
Settlement of disputes between an investor and the other Contracting Party
(1) Any investment dispute between an investor of one of the Contracting Parties and the other Contracting Party shall be notified in writing, accompanied by a sufficiently detailed aide-memoire on the part of the most diligent party.
To the extent possible, the parties will attempt to settle the dispute amicably by negotiation, by resorting to the expertise of a third party, or by conciliation between the Contracting Parties by diplomatic means.
(2) In the absence of amicable settlement by direct arrangement between the parties to the dispute or by diplomatic conciliation within six months of its notification, the dispute shall be submitted, at the option of the investor, to the competent jurisdiction of the State where the investment has been made, or to international arbitration.
To this end, each Contracting Party shall give its early and irrevocable consent to any dispute being submitted to that arbitration.
(3) In the event of recourse to international arbitration, the dispute is submitted to one of the following arbitration bodies, at the investor's choice:
- to an ad hoc arbitration tribunal, established in accordance with the arbitration rules of the United Nations Commission on Commercial Law (C.N.U.D.C.I.),
- at 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, when each State Party to this Agreement shall be a member of it.
As long as this condition is not fulfilled, each Contracting Party agrees that the dispute is subject to arbitration in accordance with the Regulation of the Supplementary Mechanism of IRC.R.D.I.
- the Arbitration Tribunal of the International Chamber of Commerce in Paris.
If the arbitration procedure is introduced at the initiative of a Contracting Party, the Contracting Party shall, in writing, invite the investor concerned to express his or her choice with respect to the arbitration body that must be seized of the dispute.
(4) None of the Contracting Parties, a party to a dispute, shall raise any objection, at any stage of the arbitration proceedings or the execution of an arbitration award, as the investor, a party opposing the dispute, would have received compensation covering all or part of its losses in the execution of an insurance policy or the guarantee provided for in Article 9 of this Agreement.
(5) The arbitral tribunal shall rule on the basis of the domestic law of the Contracting Party party to the dispute in the territory of which the investment is located, including the rules relating to conflicts of laws, the provisions of this Agreement, the terms of the particular agreement that would have been reached with respect to the investment, as well as the principles of international law.
(6) Arbitration awards are final and binding for the parties to the dispute. Each Contracting Party undertakes to enforce the awards in accordance with its national legislation.
Article 11
Disputes between Contracting Parties
(1) If a dispute arises with respect to this Agreement, the Parties agree to consult and negotiate on any matter relating to its interpretation or application. Parties will give all necessary consideration and will seize all opportunities for such consultations and negotiations. If Parties agree on the controversial issue, a written agreement will be drawn up between the Parties.
(2) If consultations and negotiations are unable to resolve the dispute over a period of six months from the date of the request for consultations or negotiations, each Party may, unless agreed otherwise, submit the dispute to an arbitral tribunal composed of three members. Each Party shall designate an arbitrator. The third arbitrator, who will be the President of the Arbitral Tribunal and a national of a third State, will be jointly appointed by the other two arbitrators. If one of the arbitrators is unable to perform this task, an alternate arbitrator shall be designated as provided for in this Article.
(3) If one of the Parties fails to designate its arbitrator within two months after the other Contracting Party has designated its arbitrator, the latter Party may request the President of the International Court of Justice to make the appropriate designation. If the latter is unable to make such a designation or is a national of a Party, the Vice-President or the oldest member of the Court will be invited to make such a designation.
(4) In the event that the two arbitrators designated by the Parties are unable to reach an agreement within two months with respect to the third arbitrator, each Party may request the President of the International Court of Justice to proceed with the designation. If the latter is not in a position to make such a designation or is a national of a Party, the Vice-President or the oldest member of the Court will be invited to make such a designation.
(5) The court shall determine its own procedure, unless the Parties otherwise have it. The court shall settle the dispute in accordance with this Agreement and the principles of international law. The court shall make its decision by a majority vote. The decision will be final and binding for both Parties.
(6) Each Contracting Party shall bear the cost of its representative to the court and its representation in the arbitration proceedings. The cost of the President and other costs will be borne equally by Parties.
Article 12
Entry into force and duration
(1) This Agreement shall enter into force one month from the date on which the Contracting Parties have exchanged their instruments of ratification. It remains in force for a period of ten years.
Unless one of the Contracting Parties denounces it at least six months before the expiry of its validity period, it shall be automatically renewed for a further period of ten years, each Contracting Party reserves the right to denounce it by a notification introduced at least six months before the expiration date of the current validity period.
(2) The investments made prior to the expiry date of this Agreement shall remain subject to it for a period of ten years from that date.
In faith, the undersigned representatives, duly authorized by their respective Governments, have signed this Agreement.
Done in Pretoria on 14 August 1998 in two original copies, each in the French, Dutch and English language, all texts being equally authentic. The English-language text will be credible in the event of a discrepancy of interpretation.
For the Belgian Economic Union:
For the Government of the Kingdom of Belgium acting in its own name and on behalf of the Government of the Grand Duchy of Luxembourg,
For the Walloon Government,
For the Flemish Government,
For the Government of the Brussels-Capital Region,
L. WILLEMS
For the Republic of South Africa:
P. MLAMBO-MGCUKA