Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs and International Development,
Considering the Constitution, in particular articles 52 to 55;
Vu la Act No. 2004-1114 of 20 October 2004 authorizing the approval of the agreement between the Government of the French Republic and the Government of the Republic of Zambia on mutual encouragement and protection of investments;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:
The agreement between the Government of the French Republic and the Government of the Republic of Zambia on mutual encouragement and protection of investments, signed in Lusaka on 14 August 2002, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign Affairs and International Development are responsible, each with respect to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.
A C C O R D
BETWEEN THE GOVERNMENT OF THE FRANÇAISE REPUBLIC AND THE GOVERNMENT OF THE ZAMBIA REPUBLIC ON ENCOURAGEMENT AND RECIPROCORD OF INVESTMENTS
The Government of the French Republic and the Government of the Republic of Zambia, hereafter referred to as “the Contracting Parties”,
Desirous of strengthening economic cooperation between the two States and creating favourable conditions for French investment in Zambia and Zambia in France.
Persuaded that the encouragement and protection of these investments are conducive to stimulating capital and technology transfers between the two countries, in the interest of their economic development,
agreed on the following provisions:
Article 1
Definitions and fields
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) Furniture and immovables, as well as any other real rights such as mortgages, privileges, usufruits, bonding and any similar rights;
(b) Shares, emission premiums and other forms of participation, whether minority or indirect, to 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 legislation of the Contracting Party in the territory or in the maritime area of which the investment is made.
2. The term "nationals" means natural persons with the nationality of one of the Contracting Parties.
3. The term "societies" means any legal person incorporated in the territory of one of the Contracting Parties, in accordance with the laws of that Contracting Party and having its head office, or controlled directly or indirectly by nationals of one of the Contracting Parties, or by legal persons having their head office in the territory of one of the Contracting Parties and constituted in accordance with the law of that Contracting Party.
4. 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.
5. The term "territory" refers to the territory in which each Party exercises sovereign rights and jurisdiction in accordance with international law.
The term "sea zone" is defined as the economic zone and the continental shelf that extend beyond the territorial waters of each Contracting Party and on which they, in accordance with international law, have sovereign rights and a jurisdiction for exploration, exploitation and preservation of natural resources.
6. 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, as part of measures to preserve and encourage cultural and linguistic diversity.
7. 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.
Article 2
Encouragement and admission of investments
Each Contracting Party shall encourage and admit, within the framework of its legislation and the provisions of this Agreement, the investments made by the nationals and companies of the other Party in its territory and in its maritime zone.
Article 3
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, the investments of nationals and societies 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 free movement, purchase and sale of goods and services, as well as any other measures that have a similar effect.
Contracting Parties shall consider, in the context of their domestic legislation, applications for entry and authorization of stay, work and movement by nationals of a Contracting Party, for an investment made in the territory or in the maritime zone of the other Contracting Party.
Article 4
National treatment
and treatment of the most favoured nation
Each Contracting Party shall apply, in its territory and in its maritime zone, to nationals or companies of the other Party, with respect to their investments and activities related to these investments, a treatment not less favourable than that accorded to its nationals or societies, or the treatment granted to nationals or societies 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 nationals or companies 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 provisions of this section do not apply to tax matters.
Article 5
Disposal and compensation
1. Investments made by nationals or companies of 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. The Contracting Parties shall not take measures of expropriation or nationalization or any other measures whose effect is to dispossess, directly or indirectly, the nationals and societies of the other Party from the investments belonging to them, in 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. Nationals or societies of one of the Contracting Parties whose investments have suffered losses due to war or any other armed conflict, revolution, state of national emergency or revolt in the territory or in the maritime zone of the other Contracting Party shall, on the part of the latter, be treated no less favourable than that granted to its own nationals or societies or to those of the most favoured nation.
Article 6
Free transfer
Each Contracting Party, in the territory or in the maritime area of which investments have been made by nationals or companies of the other Contracting Party, shall guarantee to these nationals or companies the free transfer:
(a) Common interests, dividends, profits and other incomes;
(b) royalties arising from the intangible rights referred to in paragraph 1, letters d and e of section 1;
(c) Payments made for the reimbursement of regular borrowings;
(d) From the proceeds of the total or partial disposal of the investment, including the surplus-values of the invested capital;
(e) Dispossession or loss allowances provided for in Article 5, 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.
In the event of exceptional difficulties in the balance of payments and external financial difficulties or such a threat, each Contracting Party may temporarily restrict transfers, provided that this restriction: (i) is promptly notified to the other Party; (ii) be consistent with the statutes of the International Monetary Fund; (iii) does not exceed in any case a period of six months; (iv) be implemented in a fair, non-discriminatory and in good faith.
Article 7
Guarantee and subrogation
1. To the extent that the regulation of one of the Contracting Parties provides a guarantee for investments made abroad, the latter may be granted, as part of a case-by-case review, to investments made by nationals or companies of that Party in the territory or in the maritime area of the other Party.
2. Investments of nationals and companies of one of the Contracting Parties in the territory or in the maritime area of the other Party shall not be eligible for the guarantee referred to in the above paragraph unless they have previously obtained the approval of the latter Party.
3. If one of the Contracting Parties, by virtue of 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 nationals or to one of its companies, it is, therefore, subrogated in the rights and shares of that national or that corporation.
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 8
Specific engagement
Investments that have been the subject of a particular undertaking by one of the Contracting Parties with respect to nationals and companies of the other Contracting Party shall be governed, without prejudice to the provisions of this Agreement, by the terms of that undertaking to the extent that it contains provisions more favourable than those provided for in this Agreement.
The provisions of Article 7 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 7 of this Agreement.
Article 9
Settlement of disputes between an investor
and a Contracting Party
Any dispute relating to investments between one Contracting Party and one national or a corporation of the other Contracting Party shall be settled amicably between the two Parties concerned.
If such a dispute could not be settled within six months from the time it was raised by either of the Parties to the dispute, it shall be submitted at the request of either of these Parties, unconditionally and notwithstanding any other contractual provision or waiver of international arbitration, to the arbitration of the International Centre for the Settlement of Disputes relating to Investments (CIRDI 1965),
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 1, paragraph 7, of this Agreement, the said public community or agency shall give their unconditional consent to the recourse to arbitration of the International Centre for the Settlement of Investment Disputes (CIRDI), within the meaning of Article 1965
Article 10
Settlement of disputes between Contracting Parties
1. Disputes relating to the interpretation or application of this Agreement, excluding investment disputes referred to in Article 8 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 is not settled, it shall, at the request of either Contracting Party, 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, and the two members shall, by mutual agreement, designate a third State that is appointed President of the Court by the two Contracting Parties. All members shall be appointed within two months of the date on which one of the Contracting Parties has communicated to the other Contracting Party its intention to submit the dispute to arbitration.
4. If the deadlines 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 itself sets its rules. It shall interpret the award at the request of either Contracting Party. Unless otherwise provided by the court, in the light of specific circumstances, the costs of the arbitral proceedings, including the vacations of the arbitrators, shall also be apportioned among the Contracting Parties.
Article 11
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 twenty 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.
Done in Lusaka on 14 August 2002 in two originals, each in French and English, both texts being equally authentic.
Done on April 22, 2014.
François Hollande
By the President of the Republic:
The Prime Minister,
Manuel Valls
Minister for Foreign Affairs
and International Development,
Laurent Fabius
For the Government
of the French Republic:
Jean-Paul Monchau
Ambassador of France
Zambia
For the Government
of the Republic of Zambia:
Bates Namuyamba
Minister of Trade
and Industry
