Key Benefits:
1198 OF 2008
(June 6)
Official Journal No. 47,012 of 6 June 2008
CONGRESS OF THE REPUBLIC
By means of which the "Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and its Protocol" is approved, made in Bern, Switzerland, on 17 May 2006.
COLOMBIA CONGRESS
Having regard to the text of the "Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and Their Protocol", made in Bern, Switzerland, on 17 May 2006, says:
(To be transferred: photocopy of the full text of the International Instrument mentioned).
AGREEMENT BETWEEN THE REPUBLIC OF COLOMBIA THE SWISS CONFEDERATION ON THE PROMOTION OF RECIPROCAL PROTECTION OF INVESTMENTS
The Government of the Republic of Colombia and the Swiss Federal Council, hereinafter the "Parties",
Wishing to intensify economic cooperation for the benefit of both states,
With the intention of creating and maintaining favorable conditions for a Party's investor in the territory of the other Party,
Recognizing the need to promote and protect foreign investments in the spirit of fostering the economic prosperity of both states,
You have agreed to the following:
For purposes of this Agreement:
(1) The term "investment" means all kinds of assets and particularly:
(a) Acquired movable or immovable property, as well as any in remrights, such as easement, mortgages, encumbrances, garment;
(b) Shares, participations or any other type of participation in companies;
(c) Claims of money or any activity that represents economic value, except for claims of money that come exclusively from commercial contracts for the sale of goods or services, or for credits related to a economic transaction, when the maturity date is less than three years;
(d) Copyright, industrial property rights (such as patents, utility models, industrial models or designs, trade or trade marks or service marks, registered names, indications of origin), know-how, good name, traditional knowledge, and folklore;
(e) Concessions under public law, including concessions for the exploration, extraction or exploitation of natural resources, as well as any rights given by law, by contract or by decision of the authority in accordance with the law.
(2) The term "investor", with respect to either Party, refers to:
(a) Natural persons who, according to the law of that Party, are considered to be their nationals;
(b) Legal entities, including companies, corporations, trade associations and other organizations, which are constituted or otherwise duly organized under the law of that Party and have their domicile as well as true economic activities in the territory of the same Party;
(c) Legal entities not established under the law of that Party but effectively controlled by natural persons as defined in paragraph (a) or by legal entities as defined in paragraph (b).
(3) The term "rents" means the amounts given by an investment, including, in particular, profits, interest, capital gains, dividends, rights and fees;
(4) The term "territory" means, in respect of each Party, the land territory, the inland waters, the airspace, and where applicable, the marine and underwater areas adjacent to the coast under its sovereignty, including the economic zone exclusive and continental shelf, on which the Party concerned exercises sovereign rights or jurisdiction in accordance with national and international law.
This Agreement shall apply to investments by investors of one Party, made in the territory of the other Party in accordance with its laws and regulations, either before or after the Agreement has entered into force. However, it should not apply to claims or disputes arising from events occurring prior to its entry into force.
ARTICLE 3. PROMOTION AND ADMISSION
(1) Each Party, in the spirit of increasing the flow of investor investment from the other Party, may make available information in reference to:
(a) Investment opportunities in your territory;
(b) Laws, regulations or provisions that, directly or indirectly, affect foreign investment including, inter alia, currency exchange and tax regimes; and
(c) Foreign investment statistics.
(2) Each Party shall admit investors ' investments of the other Party in accordance with its laws and regulations.
(3) When a Party has admitted an investment in its territory, it shall grant, in accordance with its laws and regulations, the permits related thereto, investments, including permits to carry out licensing agreements and contracts of technical, commercial or administrative assistance, as well as authorisations required for the activities of consultants or experts.
ARTICLE 4. PROMOTION AND TREATMENT
(1) Each Party shall protect within its territory the investments made in accordance with its laws and regulations by investors of the other Party and shall not be liable to prejudice any unreasonable or discriminatory measures of maintenance, use, enjoyment, extension, sale, and, where appropriate, the settlement of such investments.
(2) Each Party shall ensure fair and equitable treatment on its territory to investors ' investments of the other Party. This treatment may not be less favourable than that given by each of the Parties to the investments made within its territory by its own investors, or that given to the investors of the most favoured nation, if the latter treatment is more favourable.
(3) If a Party agrees to special advantages to investments of a third State under an agreement establishing a free trade area, a customs union or a common market or a similar regional agreement or under an agreement to avoid double taxation, should not be obliged to agree on such advantages to investments by investors of the other Party.
(1) Each Party shall grant to the investors of the other Party the transfers without delay, in a freely convertible currency, of payments in respect of an investment, in particular of:
(a) Rents;
(b) Payments, made under a contract made by the investor or his investment,
including payments under a loan agreement;
(c) Earnings from the sale of all or part of the investment, or from the partial or total settlement of an investment;
(d) Payments from compensation for expropriation or loss, and
(e) Payments according to the application of dispute settlement related provisions.
(2) A transfer must be considered as "without delay" if it is effected within a period normally required for the completion of the transfer formalities, including reports of currency transfers. In no case shall this period exceed three months.
(3) Unless otherwise agreed with the investor, the transfers shall be made in accordance with the applicable exchange rates on the date of transfer, in accordance with the applicable exchange regulations of the Party on whose territory the made the investment.
(4) It is understood that paragraphs 1 to 3 above apply without prejudice to the fair, non-discriminatory and bona fide application of the laws relating to:
(a) Bankruptcy, insolvency or protection of creditors ' rights;
(b) Issue, Marketing with Guarantees;
(c) Criminal or criminal offences and recovery of proceeds from crimes;
(d) Ensure fault satisfaction for contentious gains.
ARTICLE 6. EXPROPRIATION AND COMPENSATION
No Party may take, either directly or indirectly, expropriation, nationalization or any other measure having the same nature or the same effect against investors ' investments of the other Party, unless otherwise provided for in this Article. that such measures are taken in the public interest, in a non-discriminatory manner and following due process of law, and provided that provisions are made to make early, effective and appropriate compensation. Such compensation shall correspond to the value of the investment market expropriated immediately before the expropriation action has been carried out or before it becomes public knowledge, whichever is the first. The amount of compensation shall include interest at a normal commercial rate from the date of dispossession to the date of payment, shall be agreed in a currency free of conversion, shall be paid without delay and shall be freely transferable. The affected investor shall have the right of review, under the law of the Party making the expropriation, by a judicial authority or other authority independent of the Party of its case and the valuation of its investment according to the principles agreed in this paragraph.
Investors of one of the Parties whose investments suffer losses due to war or other armed conflict, revolution, state of emergency, rebellion, civil insurrection, mutiny or any similar event in the territory of the other Party In the latter part, it must be granted a treatment which is no less favourable than the treatment granted by that Party for such losses to its own investors or to investors from a third State.
(1) This Agreement shall not apply to tax matters, except for Article 6or Article 10 paragraph 2.
(2) If an investor invokes Article 6or as the basis for a claim in Article 11, it must first refer to the Party's competent tax authorities. the question of whether the tax measure concerned involves an expropriation. In the case of such a referral, the competent authorities of the two Parties shall be consulted. If within six months of the referral, they do not reach an agreement that the measure does not imply an expropriation, the investor may continue the dispute settlement procedure.
(3) In the event of any inconsistency between this Agreement and any agreement of taxation between the Parties, the agreement shall prevail in the measure of inconsistency.
(1) If one of the Parties or its designated agency makes a payment in accordance with a financial guarantee against non-commercial risks relating to the investment of one of its investors in the territory of the other Party, the latter shall acknowledge the rights of the first Party under the principle of subrogation in the rights of the investor.
(2) If one of the Parties has made a payment to one of its investors and therefore enters into the investor's rights, the investor may not file a claim based on these rights against the other Party without the consent of the First Part.
(1) If the provisions of the legislation of either Party or of international agreements authorize investments made by investors of the other Party for more favourable treatment than is provided for in this Agreement, provisions, to the extent that they are more favourable, shall prevail over this Agreement.
(2) Each Party shall respect any obligation arising from a written agreement between its central government or agencies of the latter and an investor of the other Party with respect to a specific investment in which it may rely in good faith on the establishment, acquisition or expansion of an investment.
ARTICLE 11. RESOLVING DISPUTES BETWEEN A PARTY AND AN INVESTOR FROM THE OTHER PARTY
(1) If a Party investor considers that any measure applied by the other Party is inconsistent with an obligation to this Agreement, and this causes any damage or loss to him or his investment, he may request consultations with a view to can resolve the matter amicably.
(2) Any matter that has not been resolved within a period of six months from the date of the written request for consultations, may be referred to the courts or administrative courts of the relevant Party or international arbitration. In the latter case, the investor will have the option to choose from any of the following:
(a) The International Center for Settlement of Investment Disputes (ICSID), established by the Convention on the Settlement of Differences, Relating to Investments between States and Nationals of other States, opened for signature in Washington, the March 18, 1965 ("Washington Convention"); and
(b) An ad-hoc court that, unless a separate agreement between the parties to the dispute, is to be established under the United Nations Commission for International Trade Law (UNCITRAL) Arbitration Rules.
(3) Each Party gives its unconditional and irrevocable consent to the submission of an investment dispute to an international arbitration, in accordance with paragraph 2 above, except for disputes in reference to the article 10 paragraph 2 of this Agreement.
(4) Once the investor has referred the dispute, either to a national court or to any international arbitration mechanism provided for in paragraph 2 above, the choice of procedure shall be final.
(5) An investor may not submit a dispute for settlement in accordance with this article if more than five years has elapsed since the date the investor first acquired, or was due to acquire knowledge of the events that led to that dispute.
(6) The Party that is a party to a dispute may not at any time during the process assert as a defense its immunity, or the fact that the investor has received, by virtue of an insurance contract, a compensation covering the total or part of the damage incurred.
(7) Neither Party may promote a dispute referred to international arbitration through diplomatic channels unless the other Party does not comply with or comply with the arbitral judgment.
(8) The arbitral judgment shall be final for the parties to the dispute and shall be executed without delay, in accordance with the law of the Party concerned.
ARTICLE 12. DISPUTES BETWEEN THE PARTIES.
(1) The differences between the Parties related to the interpretation or application of this Agreement should be arranged as far as possible through direct negotiations.
(2) If both Parties cannot reach an agreement within six months of the beginning of the dispute between them, the latter shall, at the request of either Party, be referred to a 3-member arbitration tribunal. Each Party shall appoint an arbitrator and these two arbitrators shall appoint a chairperson, who shall be a national of a third State.
(3) If either Party has not designated its arbitrator and has not addressed the invitation of the other Party to make such a designation within a period of two months, the arbitrator shall be appointed at the request of the other Party by the President of the the International Court of Justice.
(4) If both arbitrators cannot agree on the appointment of the President within two months of his appointment, the latter shall be chosen at the request of any Party by the President of the International Court. of Justice.
(5) If in the cases specified in paragraphs 3 and 4 of this article, the President of the International Court of Justice is prevented from exercising such a function or if he is a national of either Party, the appointment shall be made by him. Vice-President and if the latter is also prevented from exercising such a function, or is a national of either Party, the appointment shall be made by the oldest Judge of the Court who is not a national of either Party.
(6) Subject to other provisions made by the Parties, the court shall determine its own rules and procedures. The court shall decide the matters in dispute in accordance with this Agreement, and the applicable rules and principles of international law. You will need to reach your decisions by a majority vote.
(7) Each Party shall bear the costs of its own member of the tribunal and its representation in the arbitration process. The cost of the President and the other costs shall be the equal of the equal parts of both Parties, unless the arbitral tribunal decides otherwise.
(8) Court decisions shall be final and binding for each Party.
This Agreement shall enter into force 60 days after the date on which both Parties have notified each other in writing of their respective constitutional requirements regarding the approval and entry into force of the Agreement. validity of this Agreement.
ARTICLE 14. DURATION AND TERMINATION.
(1) This Agreement shall enter into force for an initial period of ten years and shall be maintained for an indefinite period of time, unless terminated in accordance with paragraph 2 of this Article.
(2) Any Party may terminate this Agreement at the end of the initial period of ten years or later at any time, giving written notification twelve months in advance.
(3) With respect to investments made prior to the termination of this Agreement, its provisions shall continue to apply in respect of such investments, for a period of ten years, after the date of termination.
IN TESTIMONY OF WHICH, the undersigned signatories, having been duly authorized to do so, subscribe to this Agreement.
Done in duplicate in Bern, on May 17, 2006, in the Spanish, French and English languages, all texts being equally authentic. In case of divergence, the English text will prevail.
By the Government of the Republic of Colombia,
JORGE H. BOERO
Minister of Commerce, Industry and Tourism.
By the Swiss Federal Council,
JOSEPH DEISS
Federal Counsel
Head of the Federal Department of Economics.
Protocol
By signing this Agreement between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments, the undersigned Plenipotentiaries are additionally in accordance with the following provisions, which should be considered as an integral part of such an Agreement.
Adding Article 1 Paragraph 1 (c)
With respect to loans contracted abroad, this Agreement will only apply if such loan has been contracted following the entry into force of this Agreement. An obligation to pay, or the granting of credit to, the State or a State-owned company, is not considered an investment.
Adding Article 1 Paragraph 2 (a)
This Agreement may not apply to investments of natural persons who are nationals of both Parties, unless such persons have since the time of the investment and since then their domicile outside the territory of the Party where the investment was made.
Adding Article 1 Paragraph 2 (c)
An investor who intends to control an investment may be asked to test his claim. Acceptable proof could be evidence of the fact that the investor has the power to appoint the majority of directors or otherwise legally direct the actions of the legal entity concerned.
Adding Article 2
(1) It is understood that this Agreement is without prejudice to the measures taken by a Party in respect of the financial sector for prudential reasons, including measures to protect the investor, depositor, policyholder or trustees, or to safeguard the integrity or stability of the financial system.
(2) Colombia reserves the right to take measures for public order reasons in accordance with Article 100 of the Colombian Political Constitution (1991) that Colombia notifies Switzerland in writing of the adoption of the measure and that the measure:
(a) Be applied in accordance with the procedural requirements set forth in the Colombian Political Constitution (1991), as the requirements set forth in the articles 213, 214 , and 215 of the Colombian Political Constitution (1991);
(b) Be adopted and maintained only when there is a genuine and sufficiently serious threat to one of the main interests of society.
(3) When measures under previous numerals 1 and 2 are not in accordance with the provisions of this Agreement.
(a) Not be applied in an arbitrary or unjustified manner;
(b) not constitute a disguised restriction on investment; and,
(c) Be necessary and proportionate to the goals they seek to achieve.
Adding Article 4 Paragraph 2
(1) It is understood that the national standard of treatment as well as the most favoured nation treatment standard, as set out in the above provision, may allow for difference in treatment in case of different situations.
(2) For greater certainty, it is understood that the most favoured nation treatment referred to in that paragraph does not include the dispute resolution mechanisms regarding investments concluded by the concerned Party.
Adding Article 5
(1) Notwithstanding the provisions of Article 5, each Party, in circumstances of exceptional balance of payments difficulty or in circumstances of imminent threat to it, shall have the right, by a limited period of time, to exercise equally, in a non-discriminatory and in good faith manner, powers conferred by its laws to restrict or delay transfers; taking into account that such measures shall be taken in accordance with the relevant provisions of the Articles of the International Monetary Fund Agreement.
(2) With regard to the entry of capital, it is understood that the Parties may, in exceptional circumstances of macroeconomic imbalance and for a limited period of time, take measures in a fair and non-discriminatory manner with respect to loans contracted abroad, including charges for advance payments of such loans.
Adding Article 6
(1) It is understood that this article is without prejudice to the issuance of compulsory licenses, granted in relation to intellectual property rights or other measures taken in accordance with the WTO Agreement on the Aspects of the Rights of the Trade-related Intellectual Property.
(2) Regarding Colombia in addition, it is understood:
(a) The criterion of "public utility or social interest," contained in article 58 of the Political Constitution of Colombia (1991) is compatible with the term " Interest Public ", used in article 6 of this Agreement; and
(b) The establishment of monopolies that deprive investors of economic activities in accordance with Article 336 of the Colombian Political Constitution (1991) must be in compliance with the obligations of Article 6 of this Agreement.
Adding Item 11
(1) It is understood that an arbitral tribunal under that article shall not be competent to review the legality of a domestic law or regulation under the constitutional or legal order of the Party concerned.
(2) In respect of paragraph 3 of that Article, at the request of a Party five years after the entry into force of this Agreement or at any later time, the Parties shall consult with a view to assessing whether the provisions on consent to Article 10 paragraph 2 is appropriate considering the execution of this Agreement.
(3) With respect to Colombia, in order to submit a claim for its solution under that article, the gubernatively must be exhausted according to the applicable laws and regulations. That procedure shall in no case exceed six months from the date of its commencement by the investor and shall not prevent it from requiring consultations in accordance with paragraph 1 of that article.
IN TESTIMONY OF WHICH, the undersigned signatories, having been duly authorized to do so by their respective Governments, have signed this protocol.
Done in duplicate in Bern, on May 17, 2006, in the Spanish, French and English languages, all texts being equally authentic. In case of divergence, the English text will prevail.
By the Government of the Republic of Colombia,
JORGE H. BOERO
Minister of Commerce, Industry and Tourism.
By the Swiss Federal Council,
JOSEPH DEISS
Federal Counsel
Head of the Federal Department of Economics.
EXECUTIVE BRANCH OF PUBLIC POWER
REPUBLIC OF THE REPUBLIC
Bogotá, D. C.,
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Minister of Foreign Affairs (Fdo.),
Maria Consuelo Araujo Castro.
DECRETA:
Article 1o. Approve the Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and its Protocol, made in Bern on May 17, 2006.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and its Protocol, made in Bern on May 17, 2006, which is approved by Article 1 of this Law, 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.
Dada en Bogotá, D. C., a los
Presented to the honorable Congress of the Republic by the Minister of Foreign Affairs, the Minister of Finance and Public Credit and the Minister of Commerce, Industry and Tourism.
The Foreign Minister,
MARIA CONSOLATION ARAUJO CASTRO.
The Minister of Finance and Public Credit,
ALBERTO CARRASQUILLA BARRIER.
The Minister of Commerce, Industry and Tourism,
JORGE HUMBERTO BOTERO.
EXECUTIVE BRANCH OF PUBLIC POWER
REPUBLIC OF THE REPUBLIC
Bogotá, D. C.,
Approved. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Minister of Foreign Affairs (Fdo.),
Fernando Araujo Perdomo.
DECRETA:
Article 1o. Approve the Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and its Protocol, made in Bern on May 17, 2006.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the Convention between the Republic of Colombia and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments and its Protocol, made in Bern on May 17, 2006, which is approved by Article 1 of this Law, 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,
NANCY PATRICIA GUTIERREZ CASTANEDA.
The Secretary of the Honourable Senate of the Republic,
EMILIO RAMON OTERO DAJUD.
The President of the honorable House of Representatives,
OSCAR GROVE PALACIO.
The Secretary General (E.) of the honourable House of Representatives,
JESUS ALFONSO RODRIGUEZ CAMARGO.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon review of the Constitutional Court, pursuant to article 241-10 of the Political Constitution.
Dada en Bogotá, D. C., 6 June 2008.
ALVARO URIBE VELEZ
The Foreign Minister,
FERNANDO ARAÚJO PERDOMO.
The Minister of Commerce, Industry and Tourism,
LUIS GUILLERMO SILVER PAEZ.
