ACT 437 OF 1998
Official Gazette No. 43,241, of February 19, 1998
Through which the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic approved of Colombia and the Kingdom of Spain ", signed in Bogotá DC, on 9 June 1995. Summary
THE CONGRESS OF COLOMBIA
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 DC, on June 9, 1995 .
(to be transliterated: 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 attached).
AGREEMENT FOR THE PROMOTION AND PROTECTION
MUTUAL INVESTMENT BETWEEN THE REPUBLIC OF COLOMBIA AND THE KINGDOM OF SPAIN
The Republic of Colombia and the Kingdom of Spain, hereinafter "the Contracting Parties", desiring to intensify cooperation economic mutual benefit of both countries,
Intending to create favorable conditions for investments by investors of each Contracting Party in the territory of the other, and
recognizing that the promotion and protection of investments under this Agreement stimulate initiatives in this field, they have agreed as follows: Article I. DEFINITIONS
For the purposes of this Agreement:
1. For "investors" means:
a) Individuals who are nationals of one of the Contracting Parties in accordance with its laws and make investments in the territory of the other Contracting Party;
B) Legal persons, including companies, associations of companies, trading companies; branches and other organizations that are incorporated or, in any event, duly organized under the law of that Contracting Party and have their headquarters in the territory of that same Contracting Party.
2. The term "investment" designates all types of assets and particularly, but not exclusively, the following:
- Shares and other forms of participation in companies.
- Rights to money or to any performance under contract having a financial value.
- Movable and immovable property and other rights such as mortgages, liens, usufructs and similar rights.
- All kinds of rights in the field of intellectual property, including patents expressly and trademarks, as well as manufacturing licenses, know-how and goodwill or good name.
- Concessions or similar figures conferred by law or under contract to exercise an economic or commercial activity including concessions for prospecting, exploration and exploitation of natural resources.
Notwithstanding the foregoing, for the purposes of this Agreement, loans shall not be considered as investments.
3. By "investment income" income derived from an investment in accordance with the definition contained in the preceding paragraph and includes in particular understood, though not exclusively, profits, dividends, interest, capital gains, royalties and fees.
4. The term "territory" designates the land territory of each of the Contracting Parties and those marine areas, including the seabed and subsoil adjacent to the territorial sea over which each Contracting Party exercises, in accordance with international law, rights for the purpose of exploring and exploiting natural resources in those areas.
ARTICLE II. PROMOTION, ADMISSION.
1. Each Contracting Party shall promote investments in its territory of investors of the other Contracting Party and admit such investments in accordance with its laws.
2. This Agreement shall also apply to investments made before its entry into force by investors of a Contracting Party under the laws 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 Contracting Parties shall exchange information to facilitate the understanding of the conditions and opportunities for investment in its territory.
ARTICLE III. PROTECTION.
1. Each Contracting Party shall, under international law, full protection and security in its territory to investments made by investors of the other Contracting Party and shall not impair by unreasonable or discriminatory measures the management, maintenance, development, use, enjoyment, extension, sale or, where appropriate, liquidation of such investments.
2. Necessary authorizations and permits for the development of investments and execution of employment contracts, manufacturing licenses, technical, commercial, financial and administrative assistance will be awarded and implemented in accordance with the laws of each Contracting Party.
3. Each Contracting Party shall fulfill any obligations had contracted respect to investments made by the other Contracting Party.
ARTICLE IV. TREATMENT.
1. Investments and returns of investors of each Contracting Party shall at all times, receive fair and equitable treatment.
2. This treatment no less favorable than that accorded by each Contracting Party in its territory to investments and returns of investors of any third State.
3. This treatment, however, will not extend to privileges which a Contracting Party accords to investors of a third State, by virtue of their association or current or future participation in a customs union, a common market or under any other agreement international wholly or partially related to taxation.
4. Each Contracting Party shall, subject to the provisions of national law, investments and returns of investors of the other Contracting Party treatment no less favorable than that accorded to its own investors.
nationalization and expropriation.
1. Investments of investors of either Contracting Party shall not be subjected in the territory of the other Contracting Party:
a) Nationalization or equivalent measures, through which one of the Contracting Parties to take control of certain strategic activities or services or
b) any other form of expropriation or measures having equivalent effect except that any such measures are implemented in accordance with the law, non-discriminatory on grounds of public utility or social interest related internal of that Party and prompt, adequate and effective compensation needs.
2. According to the principles of international law, compensation for the acts referred to in paragraphs 1 a) and b) of this Article shall amount to the real value of the investment immediately before the measures were taken or before the impending measures are of public knowledge, whichever comes first. The compensation shall be paid without undue delay, it is effectively realizable and be freely transferable.
3. The investor shall be entitled, in accordance with the law of the Contracting Party adopting the relevant measure, to prompt review, by a judicial or other independent authority of that Party, of its case and of valuation of its investment accordance with the principles set out in paragraphs 1 and 2 of this article. The exercise of this right does not prevent you from accessing the arbitration mechanisms provided for in Article XI of this Agreement.
4. If a Contracting Party to take any of the measures referred to in paragraph 1 a) and b) of this section, in relation to the assets of an incorporated or constituted under the law in force in any part of its territory, a company in which the investors of the other Contracting Party are owners of shares must ensure that the provisions of paragraphs 1 to 3 of this Article are applied so as to guarantee prompt, adequate and effective compensation with respect to the investment of these investors of the other Party Contracting, owners of the shares.
5. Nothing in this Agreement shall oblige either Contracting Party to protect investments of people involved in criminal activities.
ARTICLE VI. COMPENSATION FOR LOSSES.
1. Investors of one Contracting Party whose investments or investment income in the territory of the other Contracting Party suffer losses owing to war, other armed conflicts, a state of national emergency, rebellion or mutiny or other similar circumstances, including losses due to requisitioning , they will be granted, as regards restitution, indemnification, compensation or other settlement, treatment no less favorable than that which the latter Contracting Party accords to its own investors and investors of any third State. Any payment made under this article shall be prompt, adequate, effective and freely transferable in accordance with Article VII of this Agreement.
ARTICLE VII. TRANSFER.
1. Each Contracting Party shall guarantee to investors of the other Contracting Party with respect to investments made in its territory, the free transfer of payments related to them and particularly, but not exclusively, the following:
- Income investment, as they have been defined in Article I;
- The compensation provided for in Article V;
- The compensation provided for in Article VI;
- The proceeds of the sale or liquidation of all or part of the investment;
- Amounts necessary for the reimbursement of cash contributions linked to an investment;
- The sums necessary for the maintenance and development investment.
2. The Contracting Party receiving the investment will not establish discriminatory measures for access to the exchange market or to acquire needed for transfers covered by this Article currencies.
3. Transfers to which this Agreement shall be made in freely convertible currency, without prejudice to the tax obligations established by law in the Contracting Party receiving the investment. Unless otherwise agreed by the investor, transfers shall be made at the rate of exchange applicable on the day of the transfer, in accordance with exchange regulations.
4. Transfers shall be made without delay or restrictions in accordance with the practices of commercial banks internationally accepted. Each Contracting Party undertakes to facilitate rapid completion of the necessary formalities within their competence for the effective implementation of transfers.
5. Contracting Parties shall accord to transfers which this article refers treatment no less favorable than that accorded to transfers originating from investors of any third State.
6. In circumstances of exceptional difficulties of balance of payments each Contracting Party shall be entitled, for a limited period of time, to exercise in an equitable, non-discriminatory and good faith powers conferred by its laws and procedures for the free transfer of investments and yields.
7. In the case of the compensation provided in Article V, always will ensure the free transfer of at least thirty-three and one third percent.
ARTICLE VIII. More favorable conditions.
1. If the laws of one Contracting Party or of the obligations under international law independently of this Agreement, current or future, between the Parties, whether general or special regulations under which must be granted to investments by investors of the other Contracting Party a more favorable treatment than that provided in this Agreement, such regulation shall prevail over this Agreement, as soon as more favorable.
2. The more favorable than those of this Agreement which have been agreed to by one of the Contracting Parties with investors of the other Contracting Party shall not be affected by this Agreement conditions.
Article IX. PRINCIPLE OF SUBROGATION.
1. In the event that a Contracting Party or its designated agency shall have granted any guarantee against non-commercial risks relating to an investment made by its investors in the territory of the other Contracting Party, the latter shall accept the subrogation of the former Contracting Party or its entity in the economic rights of the investor from the time when the first Contracting Party or its entity have made a first payment charged to the guarantee issued. This subrogation will enable the former Contracting Party or its entity are direct beneficiaries of all compensation payments to which the investor could be a creditor.
2. With regard to property rights, use, enjoyment or any other property right, subrogation only after obtaining the necessary authorizations, in accordance with the law of the Contracting Party where the investment was made may occur.
ARTICLE X DISPUTES BETWEEN THE CONTRACTING PARTIES.
1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall be settled, as far as possible through diplomatic channels.
2. If the dispute can not be thus settled within six months from the start of negotiations, shall, at the request of either Contracting Party, to an arbitration tribunal.
3. The arbitral tribunal shall be constituted as follows: each Contracting Party shall appoint one arbitrator and these two arbitrators shall select a national of a third State as president. The arbitrators shall be appointed within three months and the president within five months from the date on which either Contracting Party has informed the other Contracting Party of its intention to submit the dispute to an arbitration tribunal .
4. If one of the Contracting Parties has not appointed its arbitrator within the period specified, the other Contracting Party may invite the President of the International Court of Justice to make the appointment. Should two arbitrators fail to agree on the appointment of the third arbitrator in the period specified, either Contracting Party may invite the President of the International Court of Justice to make the relevant appointment.
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 that function or is a national of either Contracting Party, the Vice President will be invited to make the necessary appointments. If the Vice President is not prevented from acting or national of any of the Contracting Parties to the appointments shall be made by the oldest of the Court not a national of either Contracting Party member.
6. The Arbitral Tribunal shall deliver its opinion on the basis of respect for the rules contained in this Agreement or in other agreements in force between the Contracting Parties and the universally recognized principles of international law.
7. Unless the Contracting Parties decide otherwise, the tribunal shall determine its own procedure.
8. The Tribunal shall decide by majority vote and shall be final and binding on both Contracting Parties.
9. Each Contracting Party shall bear the expenses of the arbitrator appointed by it and its representation in the arbitration proceedings. Other charges, the President shall be borne equally by the two Contracting Parties.
ARTICLE XI. DISPUTES BETWEEN A CONTRACTING PARTY AND INVESTORS OF THE OTHER CONTRACTING PARTY.
1. Any dispute concerning investments arising between a Contracting Party and an investor of the other Contracting Party on matters covered by this Agreement shall be notified in writing, including a detailed information, by the investor to the host Contracting Party of the investment. As far as possible, the parties shall endeavor to settle these differences by mutual agreement.
2. If the dispute can not be settled in this way within six months from the date of written notification mentioned in paragraph 1 shall be subject to investor choice:
- A competent courts of the Contracting Party whose territory the investment was made;
- Al ad hoc arbitration tribunal established by the Arbitration Rules of the United Nations Commission for International Trade Law;
- The International Centre for Settlement of Investment Disputes (ICSID) created by the "Convention on Settlement of Investment Disputes between States and Nationals of other States", opened for signature in Washington on March 18, 1965, when each State party to this Agreement has acceded to it;
- Or the ICSID Additional Facility for the Administration of Conciliation, Arbitration and Fact-Finding if one of the Contracting Parties has not acceded to the Convention.
3. The arbitration will be based on:
- The provisions of this Agreement and other agreements concluded between the Contracting Parties.
- The rules and principles of international law generally recognized.
- The national law of the Contracting Party in whose territory the investment was made, including rules on conflicts of law.
4. Arbitration rulings are final and binding on the parties to the dispute. Each Contracting Party undertakes to execute the decisions in accordance with their national legislation.
Article XII. ENTRY INTO FORCE, RENEWAL, WITHDRAWAL.
1. This Agreement shall enter into force on the day 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 ten years and shall be renewed by tacit agreement for successive periods of two years.
Each Contracting Party may terminate this Agreement by prior notification in writing, six months before its expiry date.
2. In the event of termination, the provisions of Articles I to XI of this Agreement shall apply for a period of ten years to investments made before the complaint.
Made in Santafe de Bogota, DC, nine (9) days of June 1995 in two (2) original in Spanish language and being equally authentic.
For the Republic of Colombia,
For the Kingdom of Spain,
(illegible signatures) ¯.
The undersigned Head of the Legal Office of the Ministry of Foreign Affairs
That this reproduction is faithful copy of the original "Agreement on the Reciprocal Promotion and Protection of Inversions between Republic of Colombia and the Kingdom of Spain "made in Bogotá, on June 9, 1995, a document that is on file in the Legal Office of the Ministry.
Given in Santa Fe de Bogota, DC, within thirty (30) days of July
in 1996 (1996).
Chief Legal Office, Hector Adolfo
Sintura Varela. RAMA
PUBLIC POWER EXECUTIVE PRESIDENCY OF THE REPUBLIC
Santa Fe de Bogota, DC, September 15, 1995 Approved
. Submit to the consideration of the honorable National Congress for constitutional purposes
Ernesto Samper Pizano.
The Ministry of Foreign Affairs,
(Sgd.) Rodrigo Pardo Garcia-Peña. DECREES
ARTICLE 1o. To approve the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Colombia and the Kingdom of Spain", signed in Bogota, DC on June 9 in 1995 (1995). Article 2.
. In accordance with the provisions of article 1. 7a Act. 1944, the "Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Colombia and the Kingdom of Spain", signed in Bogota, DC on June 9 in 1995 (1995), which Article 1o. of this Act is approved, it will force the country from the date the international link is perfect therefrom.
ARTICLE 3o. this law governs from the date of publication.
The President of the honorable Senate,
Amylkar Acosta Medina.
The Secretary General of the honorable Senate, Pedro Pumarejo
The President of the honorable House of Representatives, Carlos Ardila
The Secretary General of the honorable House of Representatives,
Diego Vivas Tafur.
REPUBLIC OF COLOMBIA - NATIONAL GOVERNMENT
communication and publication. Run
prior review by the Constitutional Court, under Article
241-10 of the Constitution.
Given in Santa Fe de Bogota, DC, on 17 February 1998.
Ernesto Samper Pizano Minister of Foreign Affairs, Emma Mejia Velez
The Minister of Foreign Trade, Carlos Eduardo Ronderos