Key Benefits:
1996 LAW 279
(May 13)
Official Journal No. 42,787 of 16 May 1996
By means of which the Convention between the Government of the Republic of Colombia and the Government of the Republic of Peru on the promotion and reciprocal protection of investments signed in Lima is approved on 26 April 1994.
COLOMBIA CONGRESS
DECRETA:
Having regard to the text of the Convention between the Government of the Republic of Colombia and the Government of the Republic of Peru on the Promotion and Reciprocal Protection of Investments, signed in Lima on 26 April 1994.
" AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF COLOMBIA
AND THE GOVERNMENT OF THE REPUBLIC OF PERU ON PROMOTION
AND INVESTMENTS RESCIPROAC PROTECTION
The Government of the Republic of Colombia and the Government of the Republic
of Peru, hereinafter referred to as "the Contracting Parties",
Eager to intensify economic cooperation for the mutual benefit of both states,
For the purpose of creating favorable conditions for investments made by nationals or companies of one of the Contracting Parties in the territory of the other Contracting Party,
Recognizing that the promotion and protection of these investments through a Convention can serve as a stimulus to the private 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" designates all types of assets and in particular, but not exclusively:
(a) Property of movable and immovable property and other real rights, such as mortgages and garment rights;
(b) Shares 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 prospecting, exploration and exploitation of natural resources;
(2) "Earnings" means the amounts obtained from an investment made in accordance with this Convention, such as profits, dividends, royalties and other income.
(3) Companies designates all legal persons, including civil and commercial companies, and also associations with or without legal persons who exercise an economic activity within the scope of this Convention and who are controlled, directly or indirectly, by nationals of one of the Contracting Parties.
(4) "Nationals" means natural persons who, according to the law of each Contracting Party, have the nationality of the same.
(5) "Territory" means, in addition to the areas marked on land limits, adjacent sea areas including soil and subsoil, and airspace, which make up the territory of each of the Contracting Parties according to its 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) The investments of nationals or companies of each Contracting Party shall, at all times, receive fair and equitable treatment, and shall enjoy full protection and security in accordance with the principles of International Law in a manner that is not less favourable to those who enjoy the investments of nationals or undertakings of the other Contracting Party on their own territory.
(2) Contracting Parties shall refrain from applying arbitrary or discriminatory measures in respect of the administration, maintenance, use, usufruct, or disposal of investments in their territory of nationals or companies of the other Party Contractor.
(3) Each Contracting Party shall comply with any other commitments it has made in respect of investments by nationals or companies of the other Contracting Party in its territory.
ARTICLE 4. NATIONAL TREATMENT AND MOST FAVOURED NATION CLAUSE.
(1) The Contracting Parties shall grant in their territory to the investments or to the profits of nationals or enterprises of the other Contracting Party a treatment no less favourable than that which they grant to the investments or the profits of their own (a) national or business investment or profits of nationals or undertakings of any third State.
(2) Contracting Parties shall grant nationals or undertakings of the other Contracting Party on their territory in respect of administration, maintenance, use, usufruct, or disposal of investments, a treatment no less favourable than the person who grants to his 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 which is granted to nationals or undertakings of any Contracting Party or of 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 related international agreement or arrangement in whole or in particular with taxation or any related domestic legislation in whole or in particular with 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) Investment capital and reinvestments that are made in accordance with the laws and regulations of the Contracting Party in which the investment was made;
(b) All proceeds;
(c) The product of the total or partial sale or liquidation of the investment.
(2) The transfer shall be made in currency freely convertible, at the exchange rate applicable on the day of the transfer, and without restriction or delay.
(3) By way of derogation from the preceding paragraph, the Contracting Parties may establish restrictions on the free transfer of payments related 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.
ARTICLE 7o. EXPROPRIATIONS AND EQUIVALENT MEASURES.
(1) Investments by nationals or companies of any Contracting Party shall not be subject, in the territory of the other Contracting Party, to:
(a) Nationalization or equivalent measures, by means of which one of the Contracting Parties takes control of certain activities considered to be strategic in accordance with its domestic law, or services; or
(b) Any other form of expropriation or measures having an equivalent effect, unless any such measure is made in accordance with the law, in a non-discriminatory manner for reasons expressly established in the Political Constitutions. which are referred to in the Ad Article (7) (1) of the Additional Protocol, related to the internal needs of that party and with prompt, adequate and effective compensation.
(2) Compensation for the acts referred to in paragraphs (1) (a) and (b) of this Article, in accordance with the principles of International Law, shall amount to the genuine value of the investment immediately before the measures are taken or before the imminent measures were public knowledge, whichever comes first. It must include interest up to the day of payment, must be paid without undue delay, be effectively realisable and freely transferable in accordance with the rules laid down in Article 6 on the repatriation of capital and profits from the investments, provided that, even in the event of exceptional balance of payments difficulties, the transfer of at least one third annual part is guaranteed.
(3) The affected national or company shall be entitled, in accordance with the law of the Contracting Party that adopts the relevant measure, to an early review by a competent authority of that Contracting Party, of its case and of the valuation of their investment in accordance with the principles set out in paragraphs (1) and (2) of this Article.
(4) If a Contracting Party adopts any of the measures referred to in paragraphs (1) (a) and (b) of this Article, in relation to the assets of an incorporated or incorporated undertaking in accordance with the law in force in any part of its territory, in which nationals or companies of the other Contracting Party are owners of shares, must ensure that the provisions of paragraphs (1) to (3) of this article are applied in such a way as to ensure prompt, adequate and effective compensation with respect to the investment of these nationals or companies of the other Contracting Party owners of the actions.
(5) Nothing in this Convention will force any of the Contracting Parties to protect investments of persons engaged in serious criminal activities.
ARTICLE 8o. COMPENSATION FOR LOSSES.
(1) Nationals or companies of one of the Contracting Parties suffering losses in their investments by war or other armed conflict, revolution, state of national emergency, state of siege, insurrection or other similar events, in the territory of the other Contracting Party shall be treated by the other Contracting Party no 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.
(2) 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 the aforementioned paragraph, the occupation of their property by acts of force of the authorities of the other Contracting Party shall be returned to them. 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) If one of the Contracting Parties or its authorized agent makes payments to its nationals or undertakings under a guarantee granted by an investment against non-commercial risks in the territory of the other Contracting Party, the latter, without prejudice to the rights which under Article 13 would correspond to the first Contracting Party, shall recognise the subrogation in all the rights of those nationals or undertakings to the first Contracting Party or its authorised agent, either by legal or legal provision.
(2) Likewise, the other Contracting Party shall recognize the cause and scope of the subrogation of the first Contracting Party or its authorized agent in all the rights of the previous holder, conferred in accordance with this Convention.
ARTICLE 10. IMPLEMENTATION 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 before or after the entry into force of this Convention.
ARTICLE 11. MORE FAVOURABLE TREATMENT. If the legal provisions of one of the Contracting Parties or of the agreed upon by the Contracting Parties beyond the provisions of this Convention, result in a general or special regulation under which the investments of nationals or undertakings of the other Contracting Party must be accorded more favourable treatment than that provided for in this Convention; such rules shall prevail over the same, as far as is more favourable.
(1) Disputes of a legal nature arising between a Contracting Party and a national or undertaking of the other Contracting Party in relation to the investments in this Convention shall, as far as possible, be amicably the parties to the dispute.
(2) If a dispute could not be addressed amicably by the parties within three months of the date of the written notice of the claim, it may be submitted to the competent court of the Contracting Party on whose territory it is have made the investment, or the international arbitration of the International Centre for Settlement of Investment Disputes (hereinafter referred to as "the Centre").
(3) Each Contracting Party to this Convention consents to submit to the Center any controversy of a legal nature arising between that Contracting Party and a national or undertaking of the other Contracting Party related to an investment of this in the territory of the first for its settlement by means of conciliation or arbitration, as provided for in the Convention on the Settlement of Investment between States and Nationals of Other Open States to be signed in Washington on 18 March 1965.
(4) A company that is incorporated or incorporated under the law in force in the territory of a Contracting Party and in which before the dispute arises, the majority of the shares were owned by the nationals or companies of the other Contracting Party shall be treated in accordance with Article 25 (2) (b) of the Convention as an undertaking of the other Contracting Party for the purposes of the said Convention.
(5) If the national or company concerned also consents in writing to submit the dispute to the Center for the resolution of the dispute through conciliation or arbitration in accordance with the Convention, either party may initiate the procedure. directing a request to that effect to the Secretary-General of the Centre as provided for in Articles 28 and 36 of the Convention. In case of disagreement on whether conciliation or arbitration is the most appropriate procedure, the national or company that is party to the difference shall have the right to choose. The Contracting Party which is a party to the dispute shall not present as an objection at any stage of the process or the fulfilment of the award, the fact that the national or company, which is the other party to the dispute, has received compensation. or partial of their losses, in compliance with an insurance contract.
(6) Notwithstanding the foregoing provisions, the Center shall not have jurisdiction if the party initiating the procedure has agreed, agrees to submit or submits the dispute to the Administrative or Judicial Courts of the Contracting Party that is part of the controversy.
(7) No Contracting Party shall seek to resolve by diplomatic means a dispute referred to the Center, unless:
(a) The Secretary-General of the Center or a conciliation commission or an arbitration tribunal constituted by him, decides that the difference is not within the jurisdiction of the Center, or
(b) The other Contracting Party fails to comply with an award given by an arbitration tribunal.
ARTICLE 13. SETTLEMENT OF DISPUTES BETWEEN CONTRACTING PARTIES.
(1) The disputes arising between the Contracting Parties concerning the interpretation or application of this Convention shall, as far as possible, be determined by the governments of both Contracting Parties, through their diplomatic channels.
(2) If a dispute cannot be resolved in such a way, within three months, counted from the date on which one of the Contracting Parties to the dispute has promoted it, it shall be submitted to an arbitral tribunal at the request of one of the the Contracting Parties.
(3) The arbitral tribunal shall be constituted ad-hoc. Each Contracting Party shall appoint a member and the two members shall agree to elect a third State national as President to be appointed by the Governments of both Contracting Parties. The members shall be appointed within a period of two months and the President shall be appointed within a period of three months, after one of the Contracting Parties has communicated to the other that he wishes to submit the dispute to an arbitral tribunal.
(4) If the time limits provided for in paragraph (3) are not observed, and in the absence of any other arrangement, each Contracting Party may 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 is prevented by another reason from making such appointments, it shall be for the Vice-President to carry out such appointments. If the Vice-President is also a national of one of the two Contracting Parties or if he is also prevented from making such appointments, it shall be for the member of the Court to follow immediately in the hierarchical order and not be a national of one of the Contracting Parties, to carry out the same.
(5) The arbitral tribunal shall take its decisions by a majority of votes. Their decisions will be binding. Each Contracting Party shall bear the costs incurred by the activity of its arbitrator, as well as the costs of its representation in the arbitral proceedings. The expenditure of the President, together with other expenditure, shall be borne in equal parts by the two Contracting Parties. The arbitral tribunal shall determine its own procedure.
ARTICLE 14. INTERRUPTION OF DIPLOMATIC OR CONSULAR CLAIMS. 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 legislations for the entry into force of this Convention have been met.
(2) This Convention shall enter into force thirty 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 ten years following that date.
IN FE OF THE CUAL, the undersigned, duly
authorized for effect by their respective governments,
have subscribed to this Convention.
FACT in the city of Lima, on the twenty-sixth day of April
of 1994, in two copies in Spanish language,
being both texts equally authentic.
By the Government of the Republic of Colombia,
The Foreign Minister,
NOEMI SANIN DE RUBIO.
By the Government of the Republic of Peru,
The President of the Council of Ministers
and Minister of Foreign Affairs,
EFRAIN GOLDENBERG SCHREIBER.
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 Peru on the Promotion and Reciprocal Protection of Investments made in Lima on 26 March. April 1994, which rests in the archives of the Legal Office of this Ministry.
Dada en Santa Fe de Bogota, D.C., a los thirty y un (31) dias
of the month of October of a thousand nine hundred and ninety-four (1994).
The Chief Legal Officer (E.),
JOSE JOAQUIN GORI CABRERA.
EXECUTIVE BRANCH OF PUBLIC POWER
REPUBLIC OF THE REPUBLIC
Santa Fe de Bogota, D.C.
Approved. Submit to the honorable consideration
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 Peru on the Promotion and Reciprocal Protection of Investments, signed in Lima on 26 November. of April 1994.
ARTICLE 2A. Pursuant to article 1o. of Law 7a of 1994, the Convention between the Government of the Republic of Colombia and the Government of the Republic of Peru on the Promotion and Reciprocal Protection of Investments, signed in Lima on 26 April 1994, as provided for in Article 1. of this law will be approved, will force the country from the date on which the international link with respect to it is perfected.
ARTICLE 3A. This Law governs from 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
Contact and post.
Execute previous Constitutional Court review,
pursuant to Article 241-10 of the Political Constitution.
Dada en Santa Fe de Bogota, D.C., a 13 de mayo de 1996.
ERNESTO SAMPER PIZANO
The Foreign Minister,
RODRIGO PARDO GARCIA-PENA.
The Minister of Foreign Trade,
MORRIS HARF MEYER.
