Key Benefits:
ACT 245 OF 1995
(December 29)
Official Journal No. 42,171., of December 29, 1995
By means of which the "Convention between the Government of the Republic of Colombia and the Government of the Republic of Cuba on the Promotion and Reciprocal Protection of Investments", signed at Santafe in Bogota on 16 July 1994, is approved.
COLOMBIA CONGRESS
Having regard to the text of the "AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA AND THE GOVERNMENT OF THE REPUBLIC OF CUBA ON THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS," signed at Santafe in Bogota on 16 July 1994.
CONVENTION:
Between the Government of the Republic of Colombia and the Government of the Republic of Cuba on the promotion and reciprocal protection of investments.
The Government of the Republic of Colombia and the Government of the Republic of Cuba, hereinafter referred to as "the Contracting Parties".
encouraged by the desire to create a climate of confidence to facilitate greater investment by nationals and companies of a State in the territory of the other State.
Acknowledging that the promotion and reciprocal protection of such an international agreement can serve to stimulate the economic initiative and increase the well-being of both peoples.
The following have been agreed:
ARTICLE 1o. DEFINITIONS. For the purposes of this Convention:
1. 'Investment' means any type of asset and in particular, but not exclusively:
(a) The ownership of movable and immovable property and other real rights, such as mortgages and garment rights;
(b) Actions and any other type of participation in companies or rights generated in risk-sharing contracts;
(c) Securities, securities, documents and financial papers and any other contractual obligations that have an economic value;
d) Intellectual and industrial property rights;
e) Concessions granted by law or under a contract for the pursuit of an economic activity, including concessions for the exploration, exploration and exploitation of natural resources.
However, for the purposes of this Convention, the Republic of Colombia does not consider loans as investments.
2. "Earnings" means the amounts obtained from an investment made in accordance with this Convention, in particular, but not exclusively, profits, dividends and royalties.
3. "Companies" means:
(a) As regards the Republic of Colombia, companies, firms and associations incorporated or incorporated in accordance with the legislation in force in Colombia and based in the Colombian territory;
(b) In the case of the Republic of Cuba, legal persons including companies, associations of companies, commercial companies and other organizations that are constituted or, in any case, duly organized according to the internal law and have its headquarters in the Cuban territory.
4. 'Nationals' means natural persons who, according to the legislation of each Contracting Party, have the nationality of the Contracting Party.
5. 'Territory' means in addition to the areas marked on land boundaries, adjacent sea areas including the soil and subsoil and the airspace that make up the territory of each of the Contracting Parties, according to their Political Constitution and the rules of international law.
ARTICLE 2o. PROMOTION AND PROTECTION OF INVESTMENTS. Each Contracting Party shall promote within its territory the investments of nationals or enterprises of the other Contracting Party and shall admit them in accordance with its laws and regulations.
ARTICLE 3o. TREATMENT TO THE INVERSION.
1. Investments by nationals or undertakings of each Contracting Party shall at all times be treated fairly and fairly and shall enjoy full protection and security in accordance with the principles of international law, in a manner not less than favourable to that which enjoys the investments of nationals or undertakings of the other Contracting Party in its own territory, in similar activities in accordance with the legislation in force.
2. The Contracting Parties shall, in accordance with the provisions of the Annex to this Convention, refrain from any arbitrary or discriminatory measures in respect of the administration, maintenance, use, use or disposal of investments in their territory of nationals or undertakings of the other Contracting Party.
ARTICLE 4. NATIONAL TREATMENT AND MOST FAVOURED NATION CLAUSE.
1. Each Contracting Party, in accordance with the provisions set out in the Annex to this Convention, shall grant in its territory for investments and for the profits of nationals or undertakings of the other Contracting Party, a treatment which is no less favourable to that Contracting Party. granted to investments and profits made by third-country investors.
2. Each Contracting Party shall grant to the investments and profits of nationals or companies of the other Contracting Party a treatment not less favourable in accordance with the legislation in force, than that established for investments and profits of its own investors in similar activities.
3. The Contracting Parties shall grant nationals or undertakings of the other Contracting Party on their territory similar activities and in accordance with the laws in force in respect of administration, maintenance, use, use, or (a) the sale of investments, a treatment no less favourable than that which they grant to their own nationals or undertakings or to nationals or undertakings of any third State.
ARTICLE 5o. EXCEPTIONS. The provisions of this Convention relating to the granting of a treatment no less favourable than that granted to nationals or undertakings of any Contracting Party or any third State shall not be construed as a means of obliging a Contracting Party to extend to nationals or undertakings of the other Contracting Party the benefit of any treatment, preference or privilege resulting from:
(a) Any customs union, common market, free trade zone or similar international agreement, existing or existing in the future, in which any Contracting Party is or becomes a party, or
(b) Any agreement, international arrangement or domestic law relating in whole or in part to taxation.
ARTICLE 6o. REPATRIATION OF CAPITAL AND INVESTMENT GAINS.
1. Each Contracting Party shall ensure that nationals or undertakings of the other Contracting Party are free to transfer payments related to an investment, in particular, but not exclusively of:
(a) Capital of investment and reinvestments that are made in accordance with the laws and regulations of the Contracting Party in which the investment was made;
b) All profits;
c) The product of the total or partial sale or liquidation of the investment.
2. The transfer shall be made in freely convertible currency, without restriction or delay.
3. By way of derogation from the preceding paragraph, the Contracting Parties may introduce restrictions on the free transfer of payments relating to an investment in the event of serious difficulties in their balance of payments. In any event, such power shall be exercised for a limited period, in a fair manner, in good faith and non-discriminatory.
4. The Contracting Parties shall grant to the transfers referred to in this Article a treatment which is no less favourable than that accorded to transfers originating from investors of any third State.
5. By way of derogation from paragraphs 1 and 2 of this Article, each Party may retain laws and regulations establishing taxes applicable to dividends or other transfers.
ARTICLE 7o. EXPROPRIATION AND EQUIVALENT MEASURES.
ARTICLE 8o. COMPENSATION FOR LOSSES.
1. Nationals or undertakings of one of the Contracting Parties suffering losses in their investments by war or other armed conflict, national state of emergency, state of siege, insurrection or other similar events in the territory of the another Contracting Party shall be treated by the latter not less favourably than its own nationals or undertakings, or nationals or undertakings of any third State in respect of refunds, compensation and compensation. The resulting refunds, compensation and compensation shall be freely transferable in accordance with Article 6. of this Convention.
Without prejudice to paragraph 1 of this article, in the event that nationals or companies of a Contracting Party suffer in any of the situations referred to in that paragraph, the occupation of their property by acts of force of authorities of the other Contracting Party, the other Contracting Party shall be restored. If losses are incurred for damage to property caused by acts of force of authorities of the other Contracting Party that were not required by the needs of the situation, appropriate compensation shall be granted to them. The resulting payments shall be freely transferable in accordance with Article 6. of this Convention.
1. Without prejudice to the provisions of paragraph 2 of this Article, if one of the Contracting Parties or its authorised agent makes payments to its nationals ... of a guarantee granted by an investment against non-commercial risks in the territory of the Contracting Parties, of the other Contracting Party, the latter, without prejudice to the rights which under Article 13 would correspond to the first Contracting Party, shall accept the subrogation of the first Contracting Party in the rights of the investor from the the time when the first Contracting Party has made a first payment under the guarantee granted . This subrogation shall make it possible for the first Contracting Party or its authorised agent to be a direct beneficiary of all types of compensation payments to which the investor may be a creditor.
Regarding the rights of property, use, enjoyment or any other real right, the subrogation may only occur after obtaining the relevant authorizations, in accordance with the laws in force of the Contracting Party where the investment was made.
ARTICLE 10. APPLICATION OF THE CONVENTION. This Convention shall apply to investments made by ... nationals or undertakings of a Contracting Party in the territory of the other Contracting Party prior to their entry into ..., provided that such investments are not investments are acting and when legally at that time, it shall apply to investments which are to be carried out successively in the field covered by this Convention.
ARTICLE 11. MORE FAVOURABLE TREATMENT. ... of the legal provisions of one of the Contracting Parties ... of the agreed upon by the Contracting Parties beyond what is agreed in this Convention, shall be a general or special regulation under the terms of the Agreement. Where investments by nationals or undertakings of the other Contracting Party are to be accorded more favourable treatment than that provided for in this Convention, such rules shall prevail as far as is more favourable.
1. Disputes which may arise between one of the Contracting Parties and an investor of the other Contracting Party in relation to the investments covered by this Convention shall, as soon as possible, be resolved amicably between the Parties to the dispute.
2. If a dispute cannot be resolved within six months of the date on which the written notification of the difference occurs, it may be submitted, at the choice of the investor, to:
(a) The competent court of the Contracting Party in whose territory the dispute has arisen;
(b) An Arbitral Tribunal in accordance with the provisions of paragraphs 3 to 5 of Article 13 concerning its composition and in other respects in accordance with the Rules of Arbitration of the United Nations Commission on International Trade Law "Cundmi Arbitration Rules"), adopted by the General Assembly of the United Nations, on 15 December 1976.
3. The Contracting Party involved in the dispute shall refrain during the arbitral proceedings or the execution of the award from the fact that the investor of the other Contracting Party has received compensation resulting from a policy of insurance with partial or full coverage of the damage.
ARTICLE 13. DISPUTES BETWEEN CONTRACTING PARTIES.
1. Disputes between the Contracting Parties relating to the interpretation or application of this Agreement should be as far as possible, resolved through diplomatic channels.
2. If a dispute between the Contracting Parties cannot be resolved in that manner in six months from the date on which the written notification of the difference occurs, it shall be submitted at the request of either Party. Contractors, to an arbitration tribunal in accordance with the provisions of this Article.
3. Such arbitration tribunal shall be constituted for each individual case as follows: within two months of receipt of the request for arbitration, each Contracting Party shall appoint a member of the court. Those two members shall at that time elect a third State national who, subject to the approval of the two Contracting Parties, shall be appointed President of the Court. The President shall be appointed within three months of the date of appointment of the other two members.
4. If, within the time limits laid down in paragraph 3 of this Article, no necessary appointments have been made, any Contracting Party may, in the absence of another agreement, invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of one of the Contracting Parties or if for another reason he is prevented from exercising that function, 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 exercising that function, the Member of the International Court of Justice who follows him in seniority and who is not a national of either Party Contractors will be invited to make the necessary appointments.
5. The court of arbitration must reach a decision by a majority of votes. This decision will be binding. Each Contracting Party shall bear the costs of its member in the tribunal and its representation in the arbitral proceedings; the cost of the President and the remaining costs shall be assumed in equal parts between the Contracting Parties. However, the court in its decision may provide that a greater ... to one of the two Contracting Parties and this decision shall be binding for the two Contracting Parties. The court will determine its own procedure.
ARTICLE 14. INTERRUPTION OF DIPLOMATIC OR CONSULAR RELATIONS. The provisions of this Convention shall continue to be fully applicable irrespective of whether or not there are diplomatic or consular relations between the Contracting Parties.
ARTICLE 15. ENTRY INTO FORCE, DURATION, AND TERMINATION OF THE CONVENTION.
1. The Contracting Parties shall notify each other when the requirements of their respective legislation for the entry into force of this Convention have been fulfilled.
2. This Convention shall enter into force 30 days after the date of the second notification. Its validity shall be ten years and shall be extended for an indefinite period thereafter, unless one of the Contracting Parties informs the other Contracting Party in writing of its intention to terminate it 12 months before its expiry.
3. For investments made before the date of termination of this Convention, it shall continue to be governed for the 10 years following that date.
In faith of which, the undersigned, duly
authorized for effect by their respective governments,
have subscribed to this Convention.
Made in the city of Santafe in Bogota,
D. C., on July 16, 1994
in two copies in Spanish language,
being both texts equally authentic.
By the Government of the Republic of Colombia,
The Director of the National Planning Department,
ARMANDO MONTENEGRO.
By the Government of the Republic of Cuba,
The Deputy Minister of the Ministry of Investment
Foreign and Economic Collaboration,
RAUL TALADRID.
The Chief (E) of the Legal Office
from the Ministry of Foreign Affairs,
NOTES:
That the present reproduction is faithful photocopy taken from the original text of the ® Convention between the Government of the Republic of Colombia and the Government of the Republic of Cuba on the Promotion and Reciprocal Protection of Inversiones¯, made in Santafe de Bogota on July 16, 1994, which rests in the archives of the Legal Office of this Ministry.
Dada en Santafe de Bogota, D.C., a los thirty y un (31)
days of the month of October of a thousand nine hundred and ninety-four (1994).
The Chief Legal Officer (E),
JOSE JOAQUIN GORI CABRERA.
Public Power Legislative Branch _ Presidency of the Republic.
Santafe de Bogota, D.C.
Approved. Submit to the Consideration of the Honourable
National Congress for Constitutional Effects.
(Fdo.) ERNESTO SAMPER PIZANO
The Foreign Minister,
(Fdo.) RODRIGO PARDO GARCIA-PENA.
DECRETA:
ARTICLE 1A. Approve the "Agreement between the Government of the Republic of Colombia and the Government of the Republic of Cuba on the Promotion and Reciprocal Protection of Investments" signed in Santafe de Bogota, 16 July 1994.
ARTICLE 2A. In accordance with the provisions of Article 1. of Law 7a. In 1944, the "Convention between the Government of the Republic of Colombia and the Government of the Republic of Cuba on the Promotion and Reciprocal Protection of Investments" signed at Santafe in Bogota on 16 July 1994, which is the first article of this Law is approved, shall be binding on the country from the date on which the international link with respect to it is perfected.
ARTICLE 3A. This law applies as of the date of its publication.
The President of the honorable Senate of the Republic,
JULIO CESAR GUERRA.
The Secretary General of the honorable Senate of the Republic,
PEDRO PUMAREJO VEGA.
The President of the honorable House of Representatives,
RODRIGO RIVERA SALAZAR.
The Secretary General of the honorable House of Representatives,
DIEGO VIVAS TAFUR.
COLOMBIA-NATIONAL GOVERNMENT
Execute previous Constitutional Court review,
pursuant to article 241-10 of the Political Constitution.
Dada en Santafe de Bogota, D.C., at 29 December 1995.
ERNESTO SAMPER PIZANO
The Foreign Minister,
RODRIGO PARDO GARCIA-PENA.
The Minister of Foreign Trade,
LUIS ALFREDO RAMOS BOTERO
