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Decree No. 2010-866 Of 23 July 2010 On The Publication Of The Agreement Between The Government Of The French Republic And The Government Of The Republic Of Senegal On Reciprocal Investment Promotion And Protection, Signed To...

Original Language Title: Décret n° 2010-866 du 23 juillet 2010 portant publication de l'accord entre le Gouvernement de la République française et le Gouvernement de la République du Sénégal sur la promotion et la protection réciproques des investissements, signé à...

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Summary

Implementation of articles 52 to 55 of the Constitution.

Keywords

AFFAIRS AND EUROPEAN , INTERNATIONAL AGREEMENT , BILATERAL AGREEMENT , FRANCE , SENEGAL , ECONOMIC DEVELOPMENT , INVESTMENT , PROMOTION , RECIPROPOSAL PROTECTION , INVESTMENT PROTECTION , CAPITAL TRANSFER


JORF n°0171 of 27 July 2010 page 13839
text No. 8



Decree No. 2010-866 of 23 July 2010 on the publication of the agreement between the Government of the French Republic and the Government of the Republic of Senegal on the mutual promotion and protection of investments, signed in Dakar on 26 July 2007 (1)

NOR: MAEJ1019068D ELI: https://www.legifrance.gouv.fr/eli/decret/2010/7/23/MAEJ1019068D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2010/7/23/2010-866/jo/texte


President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Vu la Act No. 2010-203 of 2 March 2010 authorizing the approval of the agreement between the Government of the French Republic and the Government of the Republic of Senegal on the mutual promotion and protection of investments, signed in Dakar on 26 July 2007;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:

Article 1


The agreement between the Government of the French Republic and the Government of the Republic of Senegal on the promotion and mutual protection of investments, signed in Dakar on 26 July 2007, will be published in the Official Journal of the French Republic.

Article 2


The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.

  • Annex



    A C C O R D


    BETWEEN THE GOVERNMENT OF THE FRENCH REPUBLIC AND GOVERNMENT OF THE SENEGAL REPUBLIC ON THE PROMOTION AND PROTECTION OF INVESTMENTS
    The Government of the French Republic and the Government of the Republic of Senegal, referred to as the “contracting Parties”,
    Desirous of strengthening economic cooperation between the two States and creating favourable conditions for French investment in Senegal and Senegal in France,
    Persuaded that the encouragement and protection of these investments are likely to stimulate capital and technology transfers between the two countries, in the interest of their economic development,
    The following provisions were agreed:


    Article 1
    Definitions


    For the purposes of this Agreement:
    1. The term "investment" means all assets, such as property, rights and interests of all kinds and, in particular but not exclusively:
    (a) movable and immovable property, as well as other real rights such as mortgages, privileges, usufruits, bonds and similar rights;
    (b) shares, emission premiums and other forms of participation, whether minority or indirect, in companies incorporated in the territory of one of the Contracting Parties;
    (c) obligations, receivables and rights to all benefits of economic value;
    (d) intellectual, commercial and industrial property rights such as copyrights, invention patents, licences, trademarks, industrial models and models, technical processes, know-how, registered names and customers;
    (e) concessions granted by law or under contract, including concessions relating to the prospecting, cultivation, extraction or exploitation of natural wealth, including concessions in the maritime zone of Contracting Parties.
    It is understood that such assets shall be or have been invested in accordance with the laws of the Contracting Party in the territory or in the maritime area of which the investment is made, before or after the entry into force of this Agreement.
    No change in the form of investment of assets affects their investment qualification, provided that this amendment is not contrary to the laws of the Contracting Party in the territory or in the maritime area of which the investment is made.
    2. The term "investor" means:
    (a) Nationals, that is, natural persons with the nationality of one of the Contracting Parties;
    (b) Any legal person incorporated in the territory of one of the Contracting Parties in accordance with the law of that Contracting Party and having its head office there.
    Companies, on the one hand, and non-profit organizations with legal personality on the other, are considered to be legal entities within the meaning of this section.
    3. The term "income" means all amounts generated by an investment, such as profits, royalties or interests, during a given period of time.
    Investment income and, in the event of reinvestment, the income of their reinvestment enjoy the same protection as investment.
    4. This Agreement applies:
    For the French Republic: its territory and its maritime zone, as defined below as the economic zone and the continental shelf that extend beyond the limits of its territorial waters and on which it has, in accordance with international law, sovereign rights and a jurisdiction for the exploration, exploitation and preservation of natural resources.
    For the Republic of Senegal:
    (a) All the territories and islands which, in accordance with the laws of Senegal, constitute the state of Senegal;
    (b) Territorial waters;
    (c) Any area beyond territorial waters that, in accordance with international law, is or will be defined by Senegal's legislation as an area, including continental shelf, on which Senegal's rights with respect to the sea, the seabed, and their natural resources may be exercised.
    5. Nothing in this Agreement shall be construed as preventing one of the Contracting Parties from making any provision to govern investments made by foreign investors and the conditions of activity of such investors, in the framework of measures to preserve and encourage cultural and linguistic diversity, in accordance with the UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions.


    Article 2
    Scope of the agreement


    For the purposes of this Agreement, it is understood that Contracting Parties are responsible for the actions or omissions of their public authorities, including their federated States, regions, local authorities or any other entity on which the Contracting Party exercises guardianship, representation or responsibility for its international relations or sovereignty.
    This Agreement shall not apply to matters within the scope of the Bilateral Tax Convention, signed between the Contracting Parties on 29 March 1974 and to any agreement that follows it.
    This Agreement covers all investments made prior to or after its entry into force. It does not cover disputes arising prior to its entry into force. However, the parties to these disputes will endeavour to implement the provisions of the dispute.


    Article 3
    Encouragement and admission of investments


    Each Contracting Party shall encourage and accept, within the framework of its legislation and the provisions of this Agreement, the investments made by the investors of the other Party in its territory and in its maritime zone.


    Article 4
    Fair and equitable treatment


    Each Contracting Party undertakes to ensure, in its territory and in its maritime zone, fair and equitable treatment, in accordance with the principles of international law, investment by investors of the other Party and to ensure that the exercise of the law so recognized is not hindered in law or in fact.
    In particular, although not exclusively, are considered to be legal or de facto impediments to fair and equitable treatment, any restrictions on the purchase and transport of raw materials and auxiliary materials, energy and fuels, as well as any means of production and operation of any kind, any impediment to the sale and transport of products within and outside the country, as well as any other measures with similar effect.
    Contracting Parties shall facilitate, within the framework of their domestic legislation, applications for entry and authorization of stay, work, and traffic introduced by nationals of a Contracting Party, for an investment made in the territory or in the maritime zone of the other Contracting Party.


    Article 5
    National treatment and treatment of the Nation
    the most favoured


    Each Contracting Party shall apply, in its territory and in its maritime zone, to investors of the other Party, in respect of their investments and activities related to these investments, a treatment not less favourable than that granted to its investors, or the treatment granted to investors of the most-favoured Nation, if it is more advantageous.
    As such, nationals authorized to work in the territory and in the maritime area of one of the Contracting Parties must be able to benefit from the material facilities appropriate for the exercise of their professional activities.
    However, this treatment does not extend to the privileges granted by a Contracting Party to investors of a third State, by virtue of its participation or association in a free trade zone, a customs union, a common market or any other form of regional economic organization.
    The principles referred to in this article shall not apply in respect of the particular benefits granted to development financial institutions.


    Article 6
    Disposal and compensation


    1. Investments made by investors from either of the Contracting Parties shall, in the territory and in the maritime zone of the other Contracting Party, be given full and complete protection and security.
    2. Contracting Parties shall not take measures of expropriation or nationalization or any other measures whose effect is to dispossess, directly or indirectly, the investors of the other Party from the investments belonging to them, on their territory and in their maritime zone, except for public utility and provided that such measures are neither discriminatory nor contrary to a particular undertaking.
    Any dispossession measures that may be taken must result in the payment of a prompt and adequate compensation, the amount of which, equal to the real value of the investments concerned, must be assessed against a normal economic situation and prior to any threat of dispossession.
    This allowance, its amount and payment terms are determined by the date of dispossession. This allowance is effectively feasible, paid without delay and freely transferable. It produces, up to the date of payment, interest calculated at the appropriate market interest rate.
    3. Investors of one of the Contracting Parties whose investments have suffered losses due to war or other armed conflict, revolution, state of national emergency or revolt in the territory or in the maritime zone of the other Contracting Party will, on the part of the latter, benefit from treatment not less favourable than that granted to its own investors or to those of the most favoured Nation.


    Article 7
    Free transfer


    Each Contracting Party, in the territory or in the maritime area of which investments have been made by investors of the other Contracting Party, grants such investors free transfer:
    (a) interest, dividends, profits and other current income;
    (b) royalties arising from intangible rights referred to in Article 1 (1) (d) and (e);
    (c) payments made for the reimbursement of regularly contracted loans;
    (d) the proceeds of the disposal or total or partial liquidation of the investment, including the capital gains invested;
    (e) the dispossession or loss allowances provided for in Article 6, paragraphs 2 and 3 above.
    Nationals of each Contracting Party that have been authorized to work in the territory or in the maritime area of the other Contracting Party, under an approved investment, are also authorized to transfer an appropriate quotity of their remuneration to their country of origin.
    The transfers referred to in the preceding paragraphs shall be made without delay at the normal exchange rate officially applicable to the date of transfer.
    Where, in exceptional circumstances, capital movements from or to third countries cause or threaten to cause a serious imbalance in the balance of payments, each Contracting Party may temporarily apply safeguard measures relating to transfers, provided that these measures are strictly necessary, applied on a fair, non-discriminatory and in good faith basis and do not exceed a period of six months.
    The provisions of the preceding paragraphs of this Article shall not oppose the exercise in good faith, by a Contracting Party, of its international obligations and of its rights and obligations under its participation or association in a zone of free trade, a customs union, a common market, an economic and monetary union or any other form of regional cooperation or integration.


    Article 8
    Settlement of disputes between
    an investor and a Contracting Party


    Any dispute relating to investments between one Contracting Party and an investor of the other Contracting Party shall be settled amicably between the two parties concerned.
    If such a dispute could not be settled within a period of six months from the date on which amicable settlement was requested by either of the parties to the dispute, it shall be submitted to the investor's request for arbitration:
    (a) an ad hoc arbitral tribunal established under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL), or
    (b) the International Centre for Settlement of Investment Disputes (ICSID), established by the Convention for Settlement of Investment Disputes between States and Nationals of Other States, signed in Washington on 18 March 1965, or;
    (c) of the Joint Court of Justice and Arbitration established by the Treaty of the Organization for the Harmonization of Business Law in Africa of 17 October 1993 (OHADA), where the parties to the dispute fall under this Treaty.
    In the event that the dispute is likely to take responsibility for the actions or omissions of public authorities or bodies dependent on one of the two Contracting Parties, within the meaning of Article 2 of this Agreement, the said public community or agency shall give their consent unconditionally to the recourse to arbitration of the International Centre for the Settlement of Investment Disputes (ICIDRC), within the meaning of Article 25 of the Convention relating to Nationals


    Article 9
    Guarantee and subrogation


    1. To the extent that the regulation of one of the Contracting Parties provides a guarantee for investments made abroad, it may be granted, as part of a case-by-case review, to investments made by investors of that Party in the territory or in the maritime area of the other Party.
    2. Investments by investors of one of the Contracting Parties in the territory or in the maritime area of the other Party may only be guaranteed under the above paragraph if they have previously obtained the approval of the latter Party.
    3. If one of the Contracting Parties, under a certain guarantee for an investment made in the territory or in the maritime area of the other Party, makes payments to one of its investors, it is therefore subrogated in the rights and shares of that investor.
    4. Such payments do not affect the rights of the beneficiary of the guarantee to use the ICSID or to continue the actions brought before it until the outcome of the proceedings.


    Article 10
    Specific engagement


    Investments that have been the subject of a particular commitment by one of the Contracting Parties to the Investors of the other Contracting Party shall, without prejudice to the provisions of this Agreement, be governed by the terms of this commitment to the extent that it contains provisions more favourable than those provided for in this Agreement. The provisions of Article 8 of this Agreement apply even in the event of a specific undertaking providing for the waiver of international arbitration or appointing an arbitral proceeding different from that referred to in Article 8 of this Agreement.


    Article 11
    Settlement of disputes
    Contracting Parties


    1. Disputes relating to the interpretation or application of this Agreement shall be settled, if possible, by diplomatic means.
    2. If within a period of six months from the time it was raised by either of the Contracting Parties, the dispute shall not be settled, at the request of either Contracting Party, it shall be submitted to an arbitration tribunal.
    3. The said court shall be constituted for each particular case in the following manner: each Contracting Party shall designate a member within two months and the two members, so appointed, shall, by mutual agreement, designate a third State national who is appointed President of the court by the two Contracting Parties within two months, from the date of appointment of the last of the two members.
    4. If the time limits set out in paragraph 3 above have not been observed, one or the other Contracting Party, in the absence of any other agreement, invites the Secretary-General of the United Nations to make the necessary designations. If the Secretary-General is a national of one or the other Contracting Party or if, for another reason, he or she is unable to exercise that function, the oldest Under-Secretary-General who does not have the nationality of one of the Contracting Parties shall make the necessary designations.
    5. The arbitration tribunal shall make its decisions by a majority of votes. These decisions are final and enforceable in full law for Contracting Parties.
    The court determines its own rules It shall interpret the sentence at the request of either Contracting Party.
    Each Contracting Party shall pay the costs of the arbitrator designated by it, as well as half the costs of the President of the Court and the administrative costs of the arbitral proceedings.


    Article 12
    Prohibitions and restrictions


    Contracting Parties may, when developing or amending their laws and regulations, adopt the necessary measures to protect the environment, provided that such measures do not interfere with the application of the provisions of this Agreement.


    Article 13
    Entry into force and duration


    Each Party shall notify the other of the performance of the internal procedures required for the entry into force of this Agreement, which shall take effect one month after the day of receipt of the last notification.
    The Agreement shall be concluded for an initial period of ten years. It will remain in force after this term, unless one of the Parties denounces it through diplomatic channels with one year's notice.
    Upon the expiry of the period of validity of this Agreement, the investments made while in force will continue to be protected for an additional period of twenty years.
    In faith, the undersigned representatives, duly authorized by their respective Governments, have signed this Agreement.
    Signed in Dakar, Senegal, on 26 July 2007 in two originals in French.


    For the Government
    of the French Republic:
    Jean-Marie Bockel
    Secretary of State
    Minister
    Foreign Affairs,
    on Cooperation
    and La Francophonie
    For the Government
    of the Republic of Senegal:
    Sheikh Tidiane Gadio
    Minister of State,
    Minister of Foreign Affairs


Done in Paris, July 23, 2010.


Nicolas Sarkozy


By the President of the Republic:


The Prime Minister,

François Fillon

Minister for Foreign Affairs

and European,

Bernard Kouchner

(1) This Agreement entered into force on 30 May 2010.
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