Rs 0.975.252.3 November 19, 2008 Agreement Between The Swiss Confederation And The Republic Of Madagascar Concerning The Promotion And Reciprocal Protection Of Investments

Original Language Title: RS 0.975.252.3 Accord du 19 novembre 2008 entre la Confédération suisse et la République de Madagascar concernant la promotion et la protection réciproque des investissements

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0.975.252.3 original text agreement between the Swiss Confederation and the Republic of Madagascar concerning the promotion and reciprocal protection of investments signed on November 19, 2008, approved by the Federal Assembly on 10 March 2009 entered into force by Exchange of notes may 7, 2015 (State on May 7, 2015) preamble the Swiss federal Council and the Government of the Republic of Madagascar wishing to intensify economic cooperation in the mutual interest of both States, with the intention to create and maintain favourable conditions for investments by investors of a Contracting Party in the territory of the other Contracting Party, recognizing the need to encourage and protect foreign investment to stimulate the flow of capital and technology, and promote the prosperity of both States convinced that these goals can be achieved without lowering the standards of general application relating to health, safety and the environment, have agreed to the following: art. 1 definitions for the purposes of this agreement: (1) the term "investment" means all categories of assets and includes in particular, but not exclusively: (a) movable and immovable property, as well as all the other real rights, such as easements, land charges, hired real estate and movable, usufruct and all analogous rights; (b) stocks, share social and other forms of participation in companies; (c) monetary and claims rights to any benefits with economic value; (d) rights of author, the industrial property rights (such as patents of invention, utility models, designs, trademarks of trade, service marks, trade names, indications of source), know-how and customer; (e) concessions under public law, including concessions for exploration, 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 Act.

Any change in the form of investment of assets does not affect their qualification of investment, provided that this change is not contrary to the approval given, if any, regarding the originally invested assets.
(2) the term "investor" means, with respect to each Contracting Party: (a) the natural persons who, in accordance with the legislation of that Contracting Party, are considered its nationals; (b) the legal entities, including corporations, registered companies, corporations, individuals and other organizations, which are incorporated or organized in any other manner in accordance with the legislation of that Contracting Party and who exercise some real economic activities on the territory of the same Contracting Party.

(3) the term "income" means an investment from amounts and includes in particular, but not exclusively, profits, interest, capital gains, dividends, royalties and fees.
(4) the term "territory" includes the maritime area of the Contracting Party concerned, hereinafter defined as the economic zone and the continental shelf that extend beyond the limits of the territorial waters of the Contracting Party concerned and that it has, in accordance with international law, sovereign rights or jurisdiction.

Art. 2 scope this Agreement shall apply to investments made in the territory of a Contracting Party in accordance with its laws and regulations, which are owned or controlled, directly or indirectly, by investors of the other Contracting Party. It applies to such investments, made before or after its entry into force, but does not apply to disputes concerning events before that date.

Art. 3 encouragement, admission (1) each Contracting Party will encourage, to the extent possible, the investments of investors of the other Contracting Party in its territory, including through the exchange of information between the Contracting Parties on investment opportunities, and admit such investments in accordance with its laws and regulations.
(2) where she will be admitted an investment on its territory, each Contracting Party shall issue, in accordance with its laws and regulations, all permits and permissions required in connection with this investment, including those required for the execution of license agreements, technical, commercial or administrative assistance, and for the activities of senior executives and experts chosen by the investor.
(3) each Contracting Party will issue quickly or will be otherwise publicly available, its laws, regulations, procedures and administrative decisions of general application as well as international agreements which may affect the investments of investors of the other Contracting Party.

Art. 4 protection and general treatment (1) each Contracting Party will grant to investments in its territory by investors of the other Contracting Party fair and equitable treatment and protection and full and constant security. No Contracting Party will impede a somehow by unjustified or discriminatory measures the operation, management, maintenance, use, enjoyment, expansion or disposition of such investments.
(2) no provision of this agreement will be construed as preventing a Contracting Party from taking any action which also comply with this agreement, is in the public interest, such measures relating to health, safety or the environment.

Art. 5 national treatment and most-favoured nation (1) each Contracting Party treatment will give its territory investments of investors of the other Contracting Party treatment no less favourable than that it grants to investments of its own investors or investments of investors of a any third State, investor-friendly treatment in question being decisive.
(2) each Contracting Party will grant to investors of the other Contracting Party with regard to exploitation, management, maintenance, use, enjoyment or disposal of their investments, a treatment no less favourable than that it grants to its own investors or to investors of a any third State, investor-friendly treatment in question being decisive.
(3) 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 is not obliged to grant such benefits to investors of the other Contracting Party.

Art. 6 free transfer (1) each Contracting Party will grant to investors of the other Contracting Party the transfer without any restriction or delay in a currency freely convertible, the amounts relating to their investments, particularly, but not exclusively: (a) income; (b) amounts related to contractual obligations, including loan contracts; (c) the amounts intended to cover the costs of the investment management; (d) wages and other remuneration of personnel engaged from abroad in connection with investment;) (e) capital initial and additional capital flows necessary to the maintenance or development of investment; (e) the product sale or liquidation partial or total investment, including potential capital gains; (g) payments arising from the art. 7 and 8 of this agreement.

(2) unless it is agreed otherwise with the investor, transfers will take place at the exchange rate applicable on the date of the transfer in accordance with the rules of exchange of the Contracting Party on whose territory the investment has been made.
(3) a transfer will be considered as having been carried out "without delay" when it has been achieved in a period considered normal for the completion of transfer formalities. The period begins on the day of the presentation of the request for transfer and shall in no case exceed three months.

Art. 7 expropriation, compensation (1) any Contracting Party will take, directly or indirectly, the measures of expropriation, nationalization or any other measure having the same character or the equivalent effects, against investments of investors of the other Contracting Party, if not for reasons of public interest, and provided that these measures are not discriminatory, that they comply with the legal requirements and that they give rise to the payment of adequate and effective compensation. Compensation will correspond to the market value of the investment expropriated immediately before the expropriation decision is announced or that it is known in the public, the first of these events being decisive. The amount of compensation will be paid in a currency freely convertible and paid without undue delay to the person entitled, regardless of residence or at his home.

(2) the investor concerned with expropriation shall have the right, under the law of the Contracting Party which expropriated, to conduct a prompt review by a judicial authority or another independent authority of that Contracting Party, his case and the estimation of its investment in accordance with the principles set out in this article.
(3) If a Contracting Party expropriates the assets of a company registered or established in accordance with the legislation in force on any part of its territory, and in which investors of the other Contracting Party own shares, it will ensure, to the extent necessary and in accordance with its legislation, that the compensation referred to in para. (1) of this section to be paid to these investors.

Art. 8 compensation for losses investors of one Contracting Party whose investments have suffered losses due to war or other armed conflict, revolution, State of emergency, insurrection, civil unrest or other similar events on the territory of the other Contracting Party, will benefit, on the part of the latter, treatment consistent with art. 5 of this agreement regarding restitution, compensation, compensation or any other regulation.

Art. 9. other commitments each Contracting Party to comply with any other obligation to which it has subscribed to a specific investment of an investor of the other Contracting Party, and to which the investor could rely in good faith by, by acquiring or increasing investment.

Art. 10 more favourable provisions if provisions of the legislation of a Contracting Party or the rules of international law grant to investments of investors of the other Contracting Party a treatment more favourable than that provided for by this agreement, they will prevail over the latter insofar as they are more favourable.

Art. 11 principle of subrogation if a Contracting Party or a body designated by it has made a payment under a financial guarantee against non-commercial risks regarding an investment from one of its investors in the territory of the other Contracting Party, the latter will recognize the rights of the first Contracting Party according to the principle of subrogation in the rights of the investor.

Art. 12 disputes between a Contracting Party and an investor of the other Contracting Party (1) in order to find a solution to disputes concerning investments between a Contracting Party and an investor of the other Contracting Party, and without prejudice to art. 13 of the agreement (disputes between the Contracting Parties), consultations will be held between the parties concerned.
(2) if these consultations do not solution within six months from the request written to engage, the investor may submit the dispute either judicial or administrative courts of the Contracting Party on whose territory the investment has been made, or to international arbitration. In the latter case, the investor will have the choice between: (a) the international Centre for the settlement of disputes concerning investments (ICSID), established by the Convention for the settlement of disputes between States and nationals of other States, opened for signature at Washington on 18 March 1965 (hereinafter the "Washington Convention"); and (b) an ad hoc arbitral tribunal which, unless the parties to the dispute otherwise, will be formed in accordance with the arbitration rules of the Commission on international trade law (UNCITRAL) Nations.

(3) each Contracting Party gives its consent to the submission to the international arbitration of any dispute relating to an investment.
(4) a company which has been registered or constituted in accordance with the laws in force in the territory of a Contracting Party and who, before the birth of the dispute, was controlled by investors of the other Contracting Party, shall be considered, within the meaning of art. 25 (2) (b) of the Washington Convention, as a company of the other Contracting Party.
(5) the Contracting Party which is party to the dispute may at any time in the procedure, plead immunity or that the investor has received, under a contract of insurance, an indemnity to cover all or part of the damage suffered.
(6) any Contracting Party not continue through diplomatic channels a dispute submitted to international arbitration, unless the other Contracting Party does not comply with the arbitration award.
(7) the arbitral award shall be final and binding for the parties to the dispute; It will be executed without delay in accordance with the legislation of the Contracting Party concerned.

SR 0.975.2 art. 13 disputes between Parties Contracting (1) disputes between the Contracting Parties relating to the interpretation or the application of the provisions of this agreement will be, if possible, resolved through diplomatic channels.
(2) if the two Contracting Parties do not reach a settlement within six months from the time when the dispute was raised by one or the other Contracting Party, the latter will be submitted, at the request of the one or the other Contracting Party, to an arbitral tribunal composed of three members. Each Contracting Party shall appoint one arbitrator, and the two appointed arbitrators will appoint a president, who will be a national of a third State.
(3) if one of the Contracting Parties has not designated its arbitrator and has not responded with the invitation addressed by the other Contracting Party to make that appointment within two months, the arbitrator shall, at the request of the last Contracting Party, by the President of the International Court of justice.
(4) if the two arbitrators cannot agree on the choice of the Chairman within two months following their appointment, the latter will be appointed at the request of the one or the other Contracting Party, by the President of the International Court of justice.
(5) If, in the cases referred to in paras. (3) and (4) of this article, the President of the International Court of justice is prevented from exercising this function, or if he is a national of one of the Contracting Parties, appointments will be made by the Vice President and, if the latter is prevented, or if he is a national of one of the Contracting Parties, they will be by the senior member of the Court who is a national of any of the Contracting Parties.
(6) unless the Contracting Parties otherwise, the tribunal shall determine its own rules of procedure. Each Contracting Party will bear the costs of the Member of the tribunal and of its representation in the arbitral proceedings. Expenses of the Chairman and the remaining costs will be borne equally by the Contracting Parties, unless the arbitral tribunal decides otherwise.
(7) the decisions of the tribunal will be final and binding to each Contracting Party.

Art. 14 final provisions (1) this Agreement shall enter into force the day where the two Governments will be notified that the legal formalities required for the entry into force of international agreements have been completed; It will remain valid for a period of ten years. If it is not terminated in writing with a notice period of six months before the expiry of this period, it will be deemed to be renewed on the same terms for a period of two years, and so on.
(2) in the event of termination, the provisions of the art. 1 to 13 of this agreement will continue to apply for a further period of ten years to investments made before its expiry.
(3) this Agreement replaces the art. 7 ("protection of investments") and 8 ("Clause arbitration for the protection of investments") of the agreement of trade, protection of investments and technical cooperation of March 17, 1964, between the Confederation of Switzerland and the Republic of Madagascar.
In faith whereof, the undersigned, duly authorized by their respective Governments, have signed this agreement.
Done in Antananarivo, on November 19, 2008, in two originals in the French language.

To the Swiss federal Council: Carlos Orga for the Government of the Republic of Madagascar: Northerns Razafimahefa RS 0.946.295.231 RO 2015 1573; FF 2009 573 RO 2015 1571 State on May 7, 2015

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