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RS 0.975.236.0 Agreement of 3 June 2014 between the Swiss Confederation and Georgia on the promotion and mutual protection of investments (with prot.)

Original Language Title: RS 0.975.236.0 Accord du 3 juin 2014 entre la Confédération suisse et la Géorgie concernant la promotion et la protection réciproque des investissements (avec prot.)

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0.975.236.0

Original text

Agreement between the Swiss Confederation and Georgia on the promotion and mutual protection of investment

Conclu June 3, 2014

Approved by the Federal Assembly on 9 March 2015 1

Entered into force by exchange of notes on 17 April 2015

(State on 17 April 2015)

Preamble

The Swiss Confederation and Georgia

Hereinafter "Contracting Parties",

Wishing to intensify economic cooperation in the mutual interest of the two States,

With the intention of creating and maintaining favourable conditions for the investments of investors of a Contracting Party in the territory of the other Contracting Party,

Recognizing the need to encourage and protect foreign investment with a view to promoting economic prosperity and the sustainable development of both States,

Convinced that these objectives are achievable without lowering the standards of general application relating to health, safety, work and the environment,

Affirming the mutual support of policies on investment, the environment and work in this regard,

Reaffirming their commitment to democracy, the rule of law, respect for human rights and fundamental freedoms in accordance with their obligations under international law,

Determined to encourage investors to respect internationally recognized standards and principles of corporate social responsibility,

Confirming their commitment to the prevention and fight against corruption in international investments,

Agreed to the following:

Art. 1 Definitions

For the purposes of this Agreement:

(1) The term "investor" means, in respect of each Contracting Party:

(a)
Natural persons who, in accordance with the law of that Contracting Party, are considered to be nationals of that Contracting Party;
(b)
Legal persons, including corporations, capital corporations, partnerships and other organizations, that are formed or organized in any other manner in accordance with the law of that Contracting Party and that have Their headquarters, as well as substantial commercial activities, in the territory of that Contracting Party;
(c)
Legal persons not established in accordance with the law of that Contracting Party but which are effectively controlled by natural persons within the meaning of the let. (a) above or by legal persons within the meaning of the let. (b) above.

(2) The term "investment" means all types of tangible or intangible assets invested in the territory of a Contracting Party by investors of the other Contracting Party in accordance with the law of the first Party Contracting, and includes in particular:

(a)
The ownership of movable and immovable property, as well as any other real rights, such as easements, land charges, real estate and movable property, usufruits;
(b)
Shares, shares and other forms of participation in corporations;
(c)
Monetary claims and entitlements to any economic benefit, other than claims arising exclusively from commercial contracts for the sale of goods and services;
(d)
Copyright, industrial property rights (such as patents, utility models, industrial designs, trademarks or service marks, trade names, indications of source), know-how and clientele; and
(e)
Concessions under public law, including concessions for prospecting, extraction or exploitation of natural resources, as well as any other right conferred by law, by contract or by decision of the authority under the law.

In order to be qualified as investments for the purposes of this Agreement, the assets shall have the characteristics of an investment, including the commitment of capital or other resources, the prospect of a gain or a profit, and the Burden of a risk.

(3) The term "income" refers to amounts derived from an investment and includes, in particular, profits, interest, capital gains, dividends, royalties and remuneration.

(4) The term "territory" means:

-
With regard to Georgia:
The territory of Georgia within its internationally recognised borders, including land, inland waters and the territorial sea, the underlying airspace, as well as the contiguous zone, the exclusive economic zone and the The continental shelf adjacent to its territorial sea on which Georgia can exercise its sovereign rights under international law;
-
With regard to the Swiss Confederation:
The territory of Switzerland as designated in its laws in accordance with international law.
Art. 2 Scope of application

This Agreement shall apply to investments made in the territory of a Contracting Party, in accordance with its law, by investors of the other Contracting Party, before or after its entry into force. However, it is not applicable to claims or disputes arising from events prior to its entry into force.

Art. 3 Promotion, admission

(1) Each Contracting Party shall encourage the investments of investors of the other Contracting Party in its territory, including the exchange of information between the Contracting Parties on investment opportunities, and shall admit such investment Investments in accordance with its legislation.

(2) Each Contracting Party shall, in accordance with its law, facilitate the issuance of the necessary permits in relation to an investment, including permits for the performance of licensing, technical assistance, commercial or Administrative, as well as the authorizations required for the activities of consultants and experts.

(3) The Contracting Parties acknowledge that it is inappropriate to weaken or lower the level of protection provided for in their laws, regulations and standards for health, safety, labour and the environment for the sole purpose of encouraging Investments. Consequently, a Contracting Party shall not waive or derogate in any other way or offer to waive or otherwise derogate from such laws, regulations and standards in order to encourage the investments of one investor of the other Contracting Party.

Art. 4 Protection, processing

(1) Investment by investors of each Contracting Party shall at all times enjoy fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. No Contracting Party shall in any way interfere with any unjustified or discriminatory measures relating to the management, maintenance, use, enjoyment, enhancement or alienation of such investments.

(2) Each Contracting Party shall accord in its territory to the investments of investors of the other Contracting Party treatment no less favourable than that it accords to the investments of its own investors or Investment by investors of any third country, the most favourable treatment to the investor in question being decisive.

(3) Each Contracting Party shall accord in its territory to investors of the other Contracting Party, in respect of the management, maintenance, use, enjoyment or alienation of their investments, treatment no less Which it grants to its own investors or to investors of any third country, the most favourable treatment to the investor in question being decisive.

(4) If a Contracting Party gives special advantages to investors of any third State under an agreement establishing a free trade area, a customs union or a common market, or under an agreement to avoid Double taxation, it shall not be required to grant such benefits to investors of the other Contracting Party.

(5) For greater certainty, the most-favoured-nation treatment referred to in paras. (2) and (3) does not apply to dispute settlement mechanisms relating to investments under this Agreement or other international agreements concluded by the Contracting Party concerned.

Art. 5 Free Transfer

(1) Each Contracting Party in the territory of which investors of the other Contracting Party have made investments shall without delay grant such investors the free transfer of the amounts relating to such investments, in In particular:

(a)
Income;
(b)
Loan repayments;
(c)
Amounts intended to cover investment management costs;
(d)
Royalties and other payments arising out of the rights listed in s. 1, para. (2), let. (c), (d) and (e) of this Agreement;
(e)
Additional capital requirements for the maintenance or development of the investment;
(f)
Proceeds from the sale or partial or total liquidation of the investment, including any capital gains.

(2) In order to remove any ambiguity, it is confirmed that a Contracting Party may delay and/or prevent a transfer by the equitable, non-discriminatory and bona fide application of measures relating to any tax liability, to the protection of Rights of creditors or compliance with judicial or administrative decisions.

Art. 6 Depossession, Indemnification

(1) No Contracting Party shall take, directly or indirectly, measures of expropriation, nationalization or any other measure having the same character or effect against the investments of investors of the other Party If it is not for reasons of public interest and provided that such measures are not discriminatory, that they comply with the legal requirements and that they give rise to the payment of an effective and adequate compensation. The compensation is equivalent to the market value of the expropriated investment immediately before the expropriation measure is taken or is known to the public, the first of which is decisive. The amount of the allowance, including an interest at a normal commercial rate, shall be paid in a freely convertible currency and paid without delay to the eligible person, regardless of residence or residence.

(2) The investors of a Contracting Party whose investments have suffered losses due to war or any other armed conflict, revolution, state of emergency or revolt, which have occurred in the territory of the other Contracting Party, shall benefit, from The latter's share of a treatment in accordance with s. 4 of this Agreement in respect of restitution, compensation, compensation or any other settlement.

Art. 7 Principle of subrogation

If an investor of a Contracting Party receives from an insurer constituted or organized in accordance with the law of that Contracting Party a payment under an insurance contract against non-commercial risks, the other Party shall Contracting Party acknowledges the assignment of the rights or claims of the investor to the Insurer, and the right of the insurer to exercise those rights or to assert those claims by subrogation to the same extent as the assignor.

Art. 8 Denial of benefits

A Contracting Party may refuse to grant the advantages of this Agreement to an investor of the other Contracting Party which is a legal person of that other Contracting Party and to its investments if that legal person does not exercise Of substantial commercial activities in the territory of the other Contracting Party and that it is held or controlled by natural or legal persons of a third State or of the Contracting Party which refuses to grant the benefits.

Art. Right to regulate

(1) Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting, maintaining or applying any measure in accordance with this Agreement that is in the public interest, such as measures relating to health, to Safety, work or the environment or reasonable prudential measures.

(2) Such measures may be adopted, maintained or applied on the condition that they are not implemented in an arbitrary or unjustifiable manner and that they do not constitute a disguised restriction on investors' investments in The other Contracting Party.

Art. 10 Disputes between a Contracting Party and an Investor of the Other Contracting Party

(1) Disputes between a Contracting Party and an investor of the other Contracting Party relating to an investment by the other Contracting Party in the territory of the former Contracting Party relating to an alleged infringement of this Agreement having caused Losses or damages to the investor of the other Contracting Party shall be settled, to the extent possible, amicably by means of consultations.

(2) If such consultations do not provide a solution within six months of the written request for such consultations, the investor may submit the dispute to the judicial or administrative courts of the Contracting Party on the Territory of which the investment was made, or to international arbitration. In the latter case, the investor has the choice of:

(a)
The International Centre for the Settlement of Investment Disputes (ICSID), established by the Convention for the Settlement of Investment Disputes between States and Nationals of Other States 1 Opened for signature in Washington on 18 March 1965 (hereinafter referred to as the "Washington Convention"); and
(b)
An ad hoc arbitral tribunal constituted in accordance with the UNCITRAL Arbitration Rules of the United Nations Commission on International Trade Law.

(3) The UNCITRAL Rules on Transparency in Arbitration between Investors and Treaty States shall apply to the settlement of disputes between a Contracting Party and an investor of the other Contracting Party referred to in para. (2), let. (a) and (b) of this section.

(4) Each Contracting Party shall give its consent to the submission to international arbitration of any dispute relating to an investment.

(5) No investment dispute shall be subject to international arbitration under para. (2), let. (a) or (b) in this section, if more than five years have elapsed since the date on which the investor had or should have been aware of the alleged violation and the loss or damage that the investor would have caused.

(6) A company which has been incorporated or incorporated in accordance with the laws in force in the territory of a Contracting Party and which, before the birth of the dispute, was controlled by investors of the other Contracting Party, shall be considered, Pursuant to s. 25, para. (2), let. (b) of the Washington Convention, as a company of the other Contracting Party.

(7) The Contracting Party which is a party to the dispute shall not, at any time in the proceedings, plead its immunity or the fact that the investor has received, under an insurance contract, an indemnity covering all or part of the damage suffered.

(8) No Contracting Party shall pursue by diplomatic means a dispute submitted to international arbitration, unless the other Contracting Party respects and does not comply with the arbitral award.

(9) The arbitral award shall be final and binding on the parties to the dispute, and shall be executed without delay in accordance with the law of the Contracting Party concerned.


Art. 11 Disputes between Contracting Parties

(1) Disputes between the Contracting Parties relating to the interpretation or application of the provisions of this Agreement shall be settled by diplomatic means.

(2) If the two Contracting Parties fail to reach a settlement within six months of the date of the dispute between the two Contracting Parties, the latter shall, at the request of either Contracting Party, submit to a arbitral tribunal composed of Three members. Each Contracting Party shall designate an arbitrator; the two arbitrators so appointed shall appoint a chairperson who shall be a national of a third State.

(3) If one of the Contracting Parties has not appointed its arbitrator and has not acted upon the invitation of the other Contracting Party to do so within two months of that designation, the arbitrator shall be appointed, at the request of the latter Contracting Party, by the President of the International Court of Justice.

(4) If the two arbitrators cannot agree on the choice of the President within two months after their appointment, the President shall be appointed, at the request of either Contracting Party, by the President of the International Court of Justice.

(5) If, in the cases referred to in s. (3) and (4) of this Article, the President of the International Court of Justice shall be prevented from performing that function or if he is a national of one of the Contracting Parties, the appointments shall be made by the Vice-President and, if the latter is Or if he is a national of one of the Contracting Parties, they shall be prevented by the oldest member of the Court who is not a national of any of the Contracting Parties.

(6) Unless otherwise provided by the Contracting Parties, the arbitral tribunal shall determine its rules of procedure. It shall make its decision by a majority of the votes. Each Contracting Party shall bear the costs of its own member of the court and its representation in the arbitral proceedings. The costs of the President and the remaining costs shall be borne equally by the Contracting Parties, unless the court decides otherwise.

(7) The decisions of the court shall be final and binding on the Contracting Parties.

Art. 12 Other commitments

(1) If provisions of the law of a Contracting Party or of the applicable international obligations between the Contracting Parties accord to the investments of investors of the other Contracting Party more favourable treatment That provided for in this Agreement, those provisions and obligations shall prevail over the latter to the extent that they are more favourable.

(2) Each Contracting Party shall comply with all obligations entered into by the Contracting Party in the exercise of its sovereign authority in respect of an investment made in its territory by an investor of the other Contracting Party and The investor could rely on good faith by making or modifying the investment.

Art. 13 Amendments and amendments

The Contracting Parties may, by mutual agreement, make amendments or amendments to this Agreement at any time. These amendments or amendments shall enter into force in accordance with Art. 14, para. (1) of this Agreement.

Art. 14 Final provisions

(1) Contracting Parties shall notify each other by diplomatic means that the legal formalities required for the implementation of this Agreement have been completed.

(2) This Agreement shall enter into force on the date of receipt of the last written notification provided for in para. (1) and the remainder for a period of ten years. Thereafter, it shall automatically be renewed for successive periods of two years, unless one or the other Contracting Party denounces it in writing with six months' notice before the expiry of the initial period or period Subsequent.

(3) In the event of termination of this Agreement officially notified, the provisions of s. 1 to 11 continue to apply for a further period of ten years to investments made prior to the expiration of the Agreement.

Done at Tbilisi on June 3, 2014, in two originals, each in French, Georgian and English, each text being equally authentic. In the event of a discrepancy of interpretation, the English text shall prevail.

For the Swiss Confederation:

Didier Burkhalter

For Georgia:

Irakli Gharibashvili

Protocol

In signing the Agreement between the Swiss Confederation and Georgia on the promotion and mutual protection of investments, the undersigned Plenipotentiaries also agreed to the following provisions.

Re art. 7 and 10, para. (7)

It is understood that these provisions do not allow for double indemnification of the investor.

Re art. 10, para. (7)

It is understood that the reference to immunity means immunity from jurisdiction.

For the Swiss Confederation:

Didier Burkhalter

For Georgia:

Irakli Gharibashvili


RO 2015 1377 ; FF 2015 1361 1547



Status on April 17, 2015