Why The "agreement For The Promotion And Reciprocal Protection Of Investments Between The Republic Of Colombia And The Kingdom Of Spain", Signed In Bogotá Dc On June 9, 1995 Is Approved

Original Language Title: Por la cual se aprueba el "Acuerdo para la Promoción y Protección Recíproca de Inversiones entre la República de Colombia y el Reino de España", suscrito en Santafé de Bogotá D. C. el 9 de junio de 1995

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1998 ACT 437

(February 17)

Official Journal No. 43,241 of 19 February 1998

By means of which the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Colombia and the Kingdom of Spain", signed in Santafe de Bogota D. C., is approved on June 9, 1995.

Vigency Notes Summary

COLOMBIA CONGRESS

Having regard to the text of the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Colombia and the Kingdom of Spain", signed in Santa Fe de Bogota D. C., on June 9, 1995.

(To be transcribed: attached photocopy of the full text of the international instrument mentioned duly authenticated by the Head of the Legal Office, of the Ministry of Foreign Affairs).

AGREEMENT FOR PROMOTION AND PROTECTION

RECIPROCAL INVESTMENT BETWEEN THE REPUBLIC OF COLOMBIA AND THE KINGDOM OF SPAIN

The Republic of Colombia and the Kingdom of Spain, hereinafter "the Contracting Parties", wishing to intensify economic cooperation for the mutual benefit of both countries,

Proposing to create favorable conditions for investments made by investors from each of the Contracting Parties in the territory of the other, and

recognizing that the promotion and protection of investments under this Agreement stimulates initiatives in this field, have agreed as follows:

ARTICLE I. DEFINITIONS.

For the purposes of this Agreement:

1. "investors" shall mean:

(a) Natural persons who are nationals of one of the Contracting Parties under their legislation and make investments in the territory of the other Contracting Party;

(b) Legal persons, including companies, associations of companies, commercial companies; branches and other organizations which are constituted or, in any case, duly organized in accordance with the law of that Contracting Party; and is based in the territory of that same Contracting Party.

2. "Investments" means all types of assets, and in particular, but not exclusively, the following:

-Actions and other forms of participation in companies.

-Rights to money or to benefits under contract that have a financial value.

-Furniture and real estate, as well as other real rights such as mortgages, garment rights, usufructs and similar rights.

-All rights in the field of intellectual property, including patent patents and trademarks, as well as manufacturing licenses, technical knowledge and goodwill or good name.

-Concessions or similar figures granted by law or under a contract for the exercise of an economic or commercial activity including concessions for prospecting, exploration and exploitation of natural resources.

However, for the purposes of this Agreement, loans shall not be considered as investments.

3. 'Investment income' means income derived from an investment in accordance with the definition contained in the previous point and includes in particular, but not exclusively, profits, dividends, interest, capital gains, royalties and royalties.

4. The term 'territory' means the land territory of each of the Contracting Parties as well as those marine areas including marine soil and subsoil adjacent to the territorial sea on which each of the Contracting Parties exercises, in accordance with international law, rights for the purpose of exploring and exploiting natural resources in these areas.

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ARTICLE II. PROMOTION, ADMISSION.

1. Each Contracting Party shall promote investments in its territory of investors of the other Contracting Party and shall support such investments in accordance with its legal provisions.

2. This Agreement shall also apply to investments made prior to the entry into force of this Agreement by investors of a Contracting Party in accordance with the legal provisions of the other Contracting Party in the territory of the latter. It shall not apply to disputes arising prior to the entry into force of the Agreement.

3. In order to promote mutual investment flows, the Contracting Parties shall exchange information to facilitate knowledge of the conditions and opportunities for investment in their territory.

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ARTICLE III. PROTECTION.

1. Each Contracting Party shall grant, in accordance with International Law, full protection and security on its territory to investments made by investors of the other Contracting Party and shall not impede, by unjustified measures or discrimination, management, maintenance, development, use, enjoyment, extension, sale or, where appropriate, the settlement of such investments.

2. The necessary authorizations and permits for the development of investments and the execution of labor contracts, of manufacturing license, technical, commercial, financial and administrative assistance will be granted and executed according to the legislation of each Contracting Party.

3. Each Contracting Party shall comply with any obligation it has incurred in respect of investments made by the other Contracting Party.

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ARTICLE IV. TREATMENT.

1. The investments and returns of investors from each Contracting Party shall, at all times, be treated fairly and fairly.

2. This treatment shall not be less favourable than that granted by each Contracting Party on its territory to the investments and returns of investors of any third State.

3. Such treatment shall not, however, extend to the privileges which a Contracting Party grants to investors of a third State, by virtue of its present or future association or participation in a customs union, a common market or under any other international agreements relating in whole or in part to taxation.

4. Each Contracting Party shall apply, with the exception of its national legislation, the investments and returns of investors of the other Contracting Party a treatment no less favourable than that accorded to its own investors.

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ARTICLE V. NATIONALIZATION AND EXPROPRIATION.

1. Investors ' investments of any of the Contracting Parties shall not be subject to the territory of the other Contracting Party to:

(a) Nationalisation or equivalent measures, by means of which one of the Contracting Parties takes control of certain strategic activities or services

or

(b) Any other form of expropriation or measures having an equivalent effect, unless any such measure is carried out in accordance with the law, in a non-discriminatory manner for reasons of public utility or social interest related to the internal needs of that Party and with prompt, appropriate and effective compensation.

2. In accordance with the principles of international law, the compensation for the acts referred to in paragraphs 1 (a) and (b) of this Article shall amount to the actual value of the investment immediately before the measures were taken or before the measures were taken. imminent measures would be public knowledge, whichever comes first. The compensation shall be paid without undue delay, shall be effectively realisable and shall be freely transferable.

3. The investor shall be entitled, in accordance with the law of the Contracting Party that adopts the relevant measure, to an early review, by a judicial authority or other authority independent of that Party, of his or her case and the assessment of his or her investment in accordance with the principles set out in paragraphs 1 and 2 of this Article. The exercise of this right shall not prevent it from accessing the arbitration mechanisms referred to in Article XI of this Agreement.

4. If a Contracting Party takes any of the measures referred to in paragraph 1 (a) and (b) of this Article, in relation to the assets of a company incorporated or incorporated in accordance with the law in force in any part of its territory, in which the investors of the other Contracting Party own 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 in respect of the investment by these investors of the other Contracting Party, owners of the shares.

5. Nothing in this Agreement shall require any of the Contracting Parties to protect investments of persons engaged in criminal activities.

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ARTICLE VI. COMPENSATION FOR LOSSES.

1. Investors of a Contracting Party whose investment or investment income in the territory of the other Contracting Party suffers losses due to war, other armed conflicts, a state of national emergency, rebellion or mutiny or other similar circumstances, including losses caused by requisitions, shall be granted to them, in the form of restitution, compensation, compensation or other agreement, treatment no less favourable than that which the last Contracting Party grants to its own investors and investors of any third state. Any payment made in accordance with this Article shall be made promptly, properly, effectively and freely transferable, in accordance with Article VII of this Agreement.

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ARTICLE VII. TRANSFER.

1. Each Contracting Party shall ensure that the investors of the other Contracting Party, in respect of investments made in its territory, are free to transfer payments relating to them, in particular, but not exclusively, to the investors. following:

-Investment income, as defined in Article I;

-The allowances provided for in Article V;

-The compensations provided for in Article VI;

-The product of the sale or liquidation, total or partial of investments;

-The sums required for the repayment of cash contributions linked to an investment;

-The sums required for the maintenance and development of the investment.

2. The Contracting Party receiving the investment shall not establish discriminatory measures for access to the foreign exchange market or for the acquisition of the foreign currency necessary to carry out the transfers covered by this Article.

3. The transfers referred to in this Agreement shall be made in freely convertible currencies, without prejudice to the tax obligations established by the legislation in force in the Contracting Party receiving the investment. Unless the investor agrees otherwise, the transfers will be made at the applicable exchange rate on the day of the transfer, in accordance with the currency regulations in force.

4. Transfers shall be made without delay or restrictions in accordance with internationally accepted commercial banking practices. Each Contracting Party undertakes to facilitate the rapid completion of the necessary formalities for the effective implementation of the transfers.

5. 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.

6. In circumstances of exceptional balance of payments difficulties each Contracting Party shall be entitled, for a limited period of time, to exercise in a fair, non-discriminatory and in good faith the powers conferred by its laws and procedures for the free transfer of investments and returns.

7. In the case of the allowances provided for in Article V, the free transfer of at least thirty-three and a third per cent a year shall always be ensured.

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ARTICLE VIII. MORE FAVOURABLE CONDITIONS.

1. If the legal provisions of one of the Contracting Parties or of the obligations arising out of international law outside the scope of this Agreement, current or future, between the Contracting Parties, result in a general or special regulation by virtue of which investment by investors of the other Contracting Party is to be accorded more favourable treatment than that provided for in this Agreement, such rules shall prevail over this Agreement as soon as it is more favourable.

2. The more favourable conditions than those of this Agreement which have been agreed by one of the Contracting Parties to the investors of the other Contracting Party shall not be affected by this Agreement.

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ARTICLE IX. SUBROGATION PRINCIPLE.

1. In the event that a Contracting Party or the entity designated by it has granted any guarantee on non-commercial risks in relation to an investment made by its investors in the territory of the other Contracting Party, it shall the latter shall accept the subrogation of the first Contracting Party or its entity in the economic rights of the investor, from the moment the first Contracting Party or its entity has made a first payment under the guarantee granted. This subrogation shall make it possible for the first Contracting Party or its entity to be directly beneficiaries of all types of compensation payments to which the investor may be a creditor.

2. As regards 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 made the investment.

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ARTICLE X. DISPUTES BETWEEN CONTRACTING PARTIES.

1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall be resolved, as far as possible, by diplomatic means.

2. If the dispute cannot be resolved in that way within six months of the start of the negotiations, it shall, at the request of either Contracting Party, be submitted to an arbitration tribunal.

3. The arbitration tribunal shall be constituted as follows: each Contracting Party shall appoint an arbitrator and these two arbitrators shall elect a third State national as president. The arbitrators shall be appointed within three months, and the Chairman shall within five months of the date on which either Contracting Party has informed the other Contracting Party of its intention to bring the conflict to a court of arbitration.

4. If one of the Contracting Parties has not designated its arbitrator within the prescribed period, the other Contracting Party may invite the President of the International Court of Justice to make such a designation. In the event that two arbitrators do not agree on the appointment of the third arbitrator, in the period laid down, either Contracting Party may invite the President of the International Court of Justice to make the appointment. relevant.

5. If, in the cases provided for in paragraph 4 of this Article, the President of the International Court of Justice is unable to perform such a function, or at the national level of any of the Contracting Parties, the Vice-President shall be invited to make the relevant designations. If the Vice-President is unable to perform such a function or is a national of any of the Contracting Parties, the designations shall be made by the oldest member of the Tribunal which is not a national of any of the Contracting Parties.

6. The Court of Arbitration shall deliver its opinion on the basis of compliance with the rules contained in this Agreement or in other agreements in force between the Contracting Parties, and on the universally recognised principles of International Law.

7. Unless otherwise decided by the Contracting Parties, the Court shall establish its own procedure.

8. The Court shall take its decision by a majority vote and shall be final and binding on both Contracting Parties.

9. Each Contracting Party shall bear the costs of the arbitrator designated by it and those related to its representation in the arbitral proceedings. The other expenditure included shall be borne by the President, in the same way, by both Contracting Parties.

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ARTICLE XI. DISPUTES BETWEEN A CONTRACTING PARTY AND INVESTORS OF THE OTHER CONTRACTING PARTY.

1. Any dispute relating to investments arising between a Contracting Party and an investor of the other Contracting Party in respect of matters governed by this Agreement shall be notified in writing, including detailed, by the investor to the Contracting Party receiving the investment. As far as possible, the parties to the dispute will try to settle these differences through a friendly agreement.

2. If the dispute cannot be resolved in this way within six months from the date of the written notification referred to in paragraph 1, it shall be subject to the choice of the investor:

-To the competent courts of the Contracting Party on whose territory the investment was made;

-To the ad hoc arbitration tribunal established by the Arbitration Rules of the United Nations Commission for International Trade Law;

-To the International Center for Settlement of Investment Disputes (ICSID) created by the "Convention on the Settlement of Differences Relating to Investments between States and Nationals of Other States," opened to the firm in Washington on 18 July. March 1965, when each State party to this Agreement has acceded to that Agreement;

-Or the ICSID Complementary Mechanism for the Administration of Conciliation, Arbitration and Fact-Checking Procedures in the event that one of the Contracting Parties has not acceded to the Convention.

3. The arbitration shall be based on:

-The provisions of this Agreement and those of other agreements concluded between the Contracting Parties.

-The rules and principles of International Law generally accepted.

-The national right of the Contracting Party in whose territory the investment has been made, including rules regarding conflicts of law.

4. The arbitration rulings will be final and binding on the parties to the dispute. Each Contracting Party undertakes to execute the judgments in accordance with its national law.

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ARTICLE XII. ENTRY INTO FORCE, EXTENSION, COMPLAINT.

1. This Agreement shall enter into force on the day on which the Contracting Parties have notified each other that the respective constitutional formalities required for the entry into force of international agreements have been completed. It shall remain in force for an initial period of 10 years and shall be renewed by tacit renewal for consecutive periods of two years.

Each Contracting Party may denounce this Agreement by prior written notification, six months before the date of its expiration.

2. In the event of a complaint, the provisions laid down in Articles I to XI of this Agreement shall continue to apply for a period of 10 years for investments made prior to the complaint.

Made in Santafe of Bogotá, D. C., at nine (9) days of June 1995, in two (2) original Spanish language and being both equally authentic.

By the Republic of Colombia,

By the Kingdom of Spain,

(unreadable signatures) ¯.

The undersigned Head of the Legal Office of the Ministry of Relations

Foreign

NOTES:

That the present reproduction is faithful photocopy of the original of the "Agreement for the Promotion and Reciprocal Protection of Inv Ersions between the Republic of Colombia and the Kingdom of Spain", made in Santafe de Bogota, on June 9, 1995, rests in the archives of the Legal Office of this Ministry.

Dada en Santa Fe de Bogotá, D. C., at thirty (30) days of July of

thousand nine hundred and ninety-six (1996).

the Chief Legal Officer,

Hector Adolfo Sintura Varela.

EXECUTIVE BRANCH OF PUBLIC POWER

REPUBLIC OF THE REPUBLIC

Santa Fe de Bogota, D. C., September 15, 1995

Approved. Submit to the consideration of the honorable National Congress for the

constitutional effects.

ERNESTO SAMPER PIZANO.

The Ministry of Foreign Affairs,

(Fdo.) Rodrigo Pardo Garcia-Pena.

DECRETA:

ARTICLE 1o. Approve the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Colombia and the Kingdom of Spain", signed in Santafe de Bogota, D. C., on June 9, thousand nine hundred and ninety-nine five (1995).

ARTICLE 2o. In accordance with the provisions of Article 1o. of Law 7a. In 1944, the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Colombia and the Kingdom of Spain", signed at Santafe in Bogotá, D. C., on 9 June 2000, nine hundred and ninety-five (1995), as provided for in Article 1. of this Law is approved, will force the country from the date on which the international link with respect to it is perfected.

ARTICLE 3o. this law governs from the date of its publication.

The President of the honorable Senate of the Republic,

Amylkar Acosta Medina.

The Secretary General of the honorable Senate of the Republic,

Pedro Pumarejo Vega.

The President of the honorable House of Representatives,

Carlos Ardila Ballesteros.

The Secretary General of the honorable House of Representatives,

Diego Vivas Tafur.

COLOMBIA-NATIONAL GOVERNMENT

Contact and publish.

Execute previous review of the Constitutional Court, according to the article

241-10 of the Political Constitution.

Dada en Santa Fe de Bogota, D. C., on 17 February 1998.

ERNESTO SAMPER PIZANO

The Foreign Minister,

Maria Emma Mejia Velez.

The Minister of Foreign Trade,

Carlos Eduardo Ronderos Torres.

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