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Law No. 114 Of 28 November 1994

Original Language Title:  LEGE nr. 114 din 28 noiembrie 1994

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LEGE No. 114 of 28 November 1994 for the ratification of the Agreement on the promotion and mutual protection of investments between the Government of Romania and the Government of the Kingdom of the Netherlands and of the Annex, signed in Bucharest on 19 April 1994
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR NO. 337 of 6 December 1994



The Romanian Parliament adopts this law + Article UNIC The Agreement on the promotion and mutual protection of investments between the Government of Romania and the Government of the Kingdom of the Netherlands and the Annex, signed in Bucharest on 19 April 1994, is ratified. This law was adopted by the Chamber of Deputies at the meeting of October 24, 1994, in compliance with the provisions of 74 74 para. (2) of the Romanian Constitution. CHAMBER OF DEPUTIES PRESIDENT ADRIAN NASTASE This law was adopted by the Senate at the meeting of 16 November 1994, in compliance with the provisions of art. 74 74 para. (2) of the Romanian Constitution. p. SENATE PRESIDENT ION SOLCANU + AGREEMENT on the promotion and mutual protection of investments between the Government of Romania and the Government of the Netherlands The Government of Romania and the Government of the Netherlands, hereinafter referred to as Contracting Parties, wishing to strengthen the traditional ties of friendship between their countries, to extend and enhance economic relations between them, in particular as regards the investments of the investors of a Contracting Party in the territory of the other Party contracting, recognising that the agreement on the treatment to be granted to these investments will stimulate the flow of capital and technology and the economic development of the contracting parties and that such fair and equitable treatment is desirable, agreed the following: + Article 1 For purposes of this Agreement: a) The term investment will include any assets invested by investors of a Contracting Party in the territory of the other Contracting Party, in accordance with the laws and regulations of the latter and, in particular, but not exclusively: ((i) proprietary rights to movable and immovable property, as well as any other real rights in relation to any kind of asset; (ii) rights arising from shares, bonds and other types of interests in joint ventures and companies; ((iii) securities or relating to other assets or to any provision of economic value; (iv) rights in the field of intellectual property, technical procedures, goodwill and know-how; (v) rights granted on the basis of public law or contracts, including rights of prospecting, exploration, extraction and gain of natural resources. b) The term investors will include, in relation to each contracting party: ((i) natural persons having the nationality or nationality of that Contracting Party, in accordance with its laws; (ii) legal persons constituted on the basis of the laws of that Contracting Party; ((iii) legal persons held or controlled, directly or indirectly, by natural persons defined in point ((i) or by legal persons defined in point (a) ((ii) above. c) The term of the territory includes maritime areas bordering the coasts of that State, in so far as that State exercises sovereign rights or jurisdiction over such areas, in accordance with international law. + Article 2 Each Contracting Party, within the framework of its laws and regulations, shall promote economic cooperation by protecting its territory, the investments of investors of the other Contracting Party. On the basis of its right to exercise its powers conferred by its laws or regulations, each contracting party will admit these investments. + Article 3 1. Each Contracting Party shall ensure fair and equitable treatment of investments to the investors of the other Contracting Party and shall not impede by unreasonable or discriminatory measures the operation, management, maintenance, use, capitalizing on investments or making them available by investors. Each contracting party will grant these investments safety and full protection. 2. In particular, each contracting party shall grant such investments, including in relation to tax matters, a treatment which, in any event, will not be less favourable than that granted to the investments of its own investors, as well as investments of investors of any third country or which is more favourable for that investor. Tax matters relate to taxes, duties, taxes, reductions and tax exemptions, other than those referred to in paragraph 3. 3. If a Contracting Party has granted special advantages to investors of any third State by virtue of agreements establishing customs unions, economic unions, monetary unions or other similar institutions, or on the basis of agreements interim, which lead to such unions or institutions, this contracting party will not be obliged to grant such advantages to the investors of the other contracting party. Such treatment will not be correlated with any advantage that each contracting party grants to investors of a third State by virtue of an agreement on the avoidance of double taxation or other agreement, on the basis of reciprocity on matters tax. 4. Each Contracting Party shall comply with any obligation it has undertaken on the investments of investors of the other Contracting Party. 5. If the legal provisions of each Contracting Party or the obligations under existing international agreements currently or subsequently established between the Contracting Parties, in addition to this Agreement, contain a general or specify, entitling the investment of investors of the other Contracting Party to a more favourable treatment than that provided for in this Agreement, this Regulation, in so far as it is more favourable, shall prevail over this Agreement. + Article 4 The contracting parties will ensure that payments relative to an investment can be transferred. Transfers will be made in freely convertible, without restriction or delay. These transfers include in particular, but not exclusively: a) profits, interest, dividends and other current income; b) the necessary funds: ((i) for the purchase of raw or auxiliary materials, semi-finished products or finished products, or ((ii) the replacement of capital assets in order to maintain the continuity of an investment; c) additional funds necessary for the development d) funds for repayment of loans; e) royalties or fees; f) the earnings to which individuals are entitled; g) amounts from the sale or liquidation of the investment; h) payments arising from the application of art. 6. + Article 5 The Contracting Parties will take no action, such as nationalization, expropriation, requisition or other measures with similar effect, to strip the investors of the other contracting party of their investments, unless they are satisfied. a) measures are taken in the public interest and on the basis of a proper legal procedure; b) the measures are not discriminatory or contrary to any commitment that the contracting party that takes such measures has taken; c) the measures are taken against a fair compensation. This compensation will represent the fair market value of the affected investments, immediately before the measures are taken or become known, will include interest at a normal commercial rate until the date of payment and, in order to become effective for applicants, will be paid and will be transferable, without delay, to the country designated by the respective applicants, in the currency of the country whose investors are applicants or in any freely convertible currency accepted by the applicants. + Article 6 Investors of a Contracting Party suffering losses in connection with their investments in the territory of the other Contracting Party, due to war or other armed conflict, revolution, state of national necessity, revolt, insurrection or the uprising, will be granted by the latter contracting party a treatment, in terms of restitution, compensation, compensation or other regulation, no less favourable than the one that this contracting party grants to its own its investors or investors of any third country, or which is more favourable for those investors. + Article 7 If the investments of an investor of a contracting party are insured against non-commercial risks, on the basis of a system established by law or regulations, any subrogation of the insured or reinsured in the rights of that investor, as following the terms of this insurance, will be recognized by the other contracting party. + Article 8 1. In order to resolve differences in relation to investments between a Contracting Party and an investor of the other Contracting Party, consultations will take place between the interested parties. 2. If these consultations do not lead to a solution within a period of 3 months, the investor may submit the dispute, at his or her choice, for regulation, to: a) the competent court of the contracting party in whose territory the investment was made; or b) International Centre for the Regulation of Investment Disputes (I.C.S.I.D.) established by the Convention for the Settlement of Relative Differences in Investments between States and Persons of Other States, of 18 March 1965; or c) an ad hoc arbitral tribunal which, unless otherwise agreed between the parties to the dispute, will be constituted on the basis of the arbitration rules of the United Nations Commission for International Commercial Law (UNCITRAL). 3. If the dispute is not settled in accordance with paragraph 2 a) within a period of 10 months, the investor may, by withdrawing the complaint from the courts of the respective contracting party, subject the dispute to the dispute. arbitration, in accordance with the provisions of paragraph 2 b) or c). 4. Each Contracting Party consents thereby to subject a relative dispute to international investment, conciliation or arbitration. 5. The contracting party which is a party to the dispute shall not be able, at any time during proceedings involving disputes concerning investments, to invoke as defence its immunity or the fact that the investor has received compensation on the basis of a insurance contract covering, in whole or in part, damage or loss. 6 6. A legal person who is an investor of a Contracting Party and who, before such a dispute may intervene, is controlled by the investors of the other Contracting Party, shall be treated as an investor of the other Contracting Party, according to the provisions of art. 25 paragraph 2 b) of the Convention for the purposes of the Convention + Article 9 The provisions of this agreement will also apply from the date of its entry into force, and the investments that were made before that date. However, the differences which occurred prior to its entry into force shall be governed in accordance with the Agreement on the Encouragement and Mutual Protection of Investment, concluded between the Contracting Parties on 27 October 1983. + Article 10 Each Contracting Party may propose to the other Party to hold consultations in relation to any matter concerning the interpretation or application of the Agreement. The other party will give consideration to the proposal and provide the appropriate opportunity for these consultations. + Article 11 1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement, which cannot be regulated within a reasonable period of time, through negotiations on diplomatic channels, shall be subject, if the parties have not otherwise agreed, to the request of any party, an arbitral tribunal, consisting of three members. Each party will designate an arbitrator and the two arbitrators, thus appointed, will jointly designate a third arbitrator, as president, who is not a citizen of one of the parties. 2. If one of the parties does not designate its arbitrator and does not in a period of 2 months, after an invitation of the other party to make this appointment, the latter may invite the President of the International Court of Justice to make the appointment necessary. 3. If the two arbitrators fail to reach an agreement within 2 months after their designation, in respect of the election of the third arbitrator, each party may invite the President of the International Court of Justice to make the necessary appointment. 4. If, in the cases provided for in paragraphs 2 and 3 of this article, the President of the International Court of Justice is prevented from fulfilling this position or is a citizen of one of the Contracting Parties, the Vice-Chair shall be invited to make the necessary appointments. If the Vice President is prevented from performing this function or is a citizen of one of the parties, the oldest available member of the Court, who is not a citizen of one of the parties, will be invited to make the necessary appointments. 5. The Tribunal will decide on the basis of compliance with the law, including on the basis of compliance with this agreement and other relevant agreements between the Contracting Parties, on the basis of the general principles of international law and domestic law in Before the tribunal has delivered its judgment, it may propose to the parties to the dispute at any stage of the proceedings that the dispute is amicably regulated. The previous provisions will not prejudice the power of the tribunal to decide on the dispute ex aequo et bono, if the parties so agree. 6. If the parties do not decide otherwise, the tribunal will determine its own procedure. 7. The Tribunal will take its decision by a majority of votes. This ruling will be final and binding on the parties. 8. Each Contracting Party shall bear the expenses of the arbitrator he has appointed and those of his representation in the arbitral proceedings. The President's expenses and the remaining expenses will be borne in equal parts by the Contracting Parties. + Article 12 As regards the Kingdom of the Netherlands, this Agreement will apply to the part of the Kingdom of Europe, the Netherlands Antilles and Arubei, if the notification provided for in art. 13 paragraph 1 does not stipulate otherwise. + Article 13 1. This Agreement shall enter into force on the first day of the second month following the date on which the Contracting Parties have notified each other, in writing, that the constitutional procedures required in those countries have been fulfilled, and shall remain. in force for a period of 15 years. 2. If the notice of denunciation has not been given by each contracting party at least 6 months before the expiry date of its validity, this Agreement will be tacitly extended for periods of 10 years, each Contracting Party reserving the right to denounce the agreement by a notification at least 6 months before the expiry date of the current period of validity. 3 3. With regard to investments made before the date of termination of this Agreement, previous articles shall continue to be effective for a period following 15 years from that date. 4 4. On the basis of the period referred to in paragraph 2 of this article, the Government of the Kingdom of the Netherlands shall be entitled to denounce the application of this Agreement, separately, in relation to any part of the Kingdom. 5 5. On the date of entry into force of this Agreement, the Agreement on the Encouragement and Mutual Protection of Investments, concluded on 27 October 1983 between the Kingdom of the Netherlands and Romania, shall be replaced by this Agreement, with the exception of disputes, provided in art. 9. This agreement will replace the 1983 agreement only in relations between Romania and those parts of the Kingdom of the Netherlands, to which the provisions of this Agreement apply in accordance with art. 12 12 of this agreement. As for which, the undersigned, fully authorized representatives have signed this Agreement. Made in two copies in Bucharest, on April 19, 1994, in Romanian, Dutch and English, the three texts being equally authentic. In case of difference in interpretation, the English text will prevail. For the Romanian Government, Teodor Viorel Melescanu, minister of foreign For the Government The Netherlands, Pieter Hendrik Kooijmans, minister of foreign + Annex 1 PROTOCOL to the Agreement on the Promotion and Mutual Protection of Investments between the Government of Romania and the Government of the Kingdom At the signing, between the Government of Romania and the Government of the Kingdom of the Netherlands, of the Agreement on the promotion and mutual protection of investments, the undersigned representatives agreed the following provision, which constitutes an integral part of the agreement: Ad. Article 4 Without prejudice to the provisions of art. 4, the Romanian Government will take the appropriate measures to improve the efficiency of the transfer provisions of investment-related payments. In no case, the Dutch investors will be treated less favourably than the investors of any third country. For the Romanian Government, Teodor Viorel Melescanu, minister of foreign For the Government The Netherlands, Pieter Hendrik Kooijmans, minister of foreign --------------------------