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r-----~ ~ '.'----.~ :.~' i BLATERAL AGREEMENT FOR THE PROMOTON AND PROTECTON OF '! il... r,i NVESTMENTS BETWEEN THE GOVERNMENT OF THE REPUBLC OF [ COLOMBA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLC OF ;i : CHNA,\ r [, i : PREAMBLE!! 11 The Government of the Republic of Colombia and the Government of the People's :1 i Republic of China hereinafter referred to as the Contracting Parties;,; f:!f t Desiring to intensify the economic cooperation to the mutual benefit of both :,,'.! Contracting Parties,, L! if t i ~ ) t, ntending to create and maintain favorable conditions for the investments of investors of one Contracting Party in the territory of the other Contracting Party; Recognizing that the reciprocal encouragement, promotion and protection of such investment will be conducive to stimulating business initiative oflhe investors and will increase prosperity in both States; Have agreed as follows: For the purposes of this /\g'3ement: 1. nvestment ARTCLE 1 DEFNTONS 1.1 The term nvestment means every kind of economic asset thai has been invested by investors of a Contracting Party in the territory of the other Contracting Party in accordance with the law' of the latter including in particular, but not exclusively, the following: a. Movable and immovable property, and other property rights such as mortgages, pledges and similar rights; b, Shares, stock and any other kind of economic participation in corporations; c, Claims to money or to any other performance, including debentures, having an economic value associated with an investment; d, ntellectual property rights, including, in particular, copyrights and related rights, and industrial property rights such as patents, technical processes, manufacturers' brands and trademarks, trade names, industrial designs, know-how and goodwill; e, Concessions conferred by law or administrative act, or under contract permitted by law, including concessions to search for, cultivate, extract or exploit natural resources. : :: 1 With re$per~l 10 1his Agreement. tile term law' refers to 1!1e rcsp ~c tive le~~()! sys! r.m of the Contrac!ing Parties. f. All oper;1!lon;, of fr'n: iiltl O~ln with nlclturily over three y(~;:lr:.. S est:l.blislwcl t: ~ th8 r!'...,r C'Flr..h Ccntr;]C!:r~D.:1: y rr '! aied to ;1;' investmr!ni nvc~;tf11cnl docs not Hlc l1rclc, ii c1 1iny', ~ mono,v ;~~:,iy1 so: ;'1 [ :': 11 : (J Commrrcl']l cc r::':)::~, 101 ' :-,;,,1,- of ~j(.'c '-, ;11 H :,epjir::::. hy :1 l1(jtional or i(~rfll 0.ntlty n!he \f1r:'rt(':y or -,,':cntr;v:lirl(l r);ty t(l, iOll:11 or.1 l(.'l(pi (:nlily ill 1''1(' : :rnlnr~' ~) i tlv,):h,;[ Cnrill tl,:l:rv;!';)'!~: or b Crc(ill~~ O'P1l 1tr~d n rc\:1':rn V/;il :'j :(.'~' ':, ',:,' tr;ln~~.1r.t'nll 1.21\ny ch:mgc in the kj!'lll;n V/hlCh :\ ~ ~~}e~.~;, ~,., :~:'. ~; ',J (,.,' rf: -:lv,.:):;tcd dco::~, pot (lffec\ their chm.lctp.f as :p\lf;fmr:;lt, pro'jlch:d fhat :,LJch ch::1n~lc ~) ill.1ccordnnc0 wit~ h(~ l{lw of hr C0f\tr~)GL:l!J P.11'i j in v,hc:?,r; lerr;lnry U; ';!nv(lstmnnt has br:r.,'1 ;-:t:!m!ltcc! 1.3 \11 ij ccorcjanc.. : lith pzlrjgrap!l 1 (-,t :1':, /;.i:','; '.e: n');'llr,lljtl1 cl:-h.lct( ~ n:,ti(~:; rd :-n invp.~lm0.nt ~t l :lll be' a. TliC commitmi )\ cf r.ilp l!,11 or OH1':)' i\' 'llrcc' b. Th,:; expect8ti.) of r';:1in or pro~it c, The assurrnfi; :1 r..f ri~; for the i~'/e~1r\:' 2. 1 nvest~r 2.1 Tho Ann lnvas 'r me. '1S: (, Nt:llur =1 p fjrs,.ll:; \1'1110, h;1vc lrj!!pr'!,1!ity cf (ilhcf ConlJ2'!cting party in accordance wllh he law of 11al COl1lrnClln(J 1 1,,: Ll. Legal entilies incluclin~j corr:'1ll'\lt:~). a ssor:i~l tio ns, p~:r:llcrs)lir.:.s :')ld o t!-:r;r or~t1r.izcltlons,!ncljrpor~ \ ccj Oi con:.::tutccl l : n:~'~r the; 1::1':1 of either Contracting rjarty ':'n''! hava their [.edt, (l~, weh 3!:, subs~'lntial business rlc:t ivi,it':!f, in hr' territory of the s;.:!nl(! Contracting Pnrty: c. Legal entities not established un!ler he law of h 3~ 'arty bul effactively conlroll::od, by nal..!,,!! persons,, c' def:ned in parnqnlph 2.1.a or by 100'11 entities ~o d'incci ;n parjgr 1pl1 2.1.b T,his Ag reemen~ shall not appbl to :nvestm('q~:, mnde by nrltur8! plsons '1hn have nationality of both Contncting Parhp'S. 3. Relurns The term returns me? '1S he amounls yieldec! from an investment, in cluding profits, dividends, inlere,. .. capital gains, royilllles, fees and other legilimijle income. 4. Territory,. l, 5 \, j \-_.... The term trrilory rmmns he territory of cilhc,r Contracling 'arty, ':';clu(ln,) he land territory, inten;::i, the terri!'''ial sea anc' 1hE: ':Jir:'iJ3Ce ubove them, ~J~;,..,...,..._...,.. ---'_. 3 -_.. i r l' \ i.' i t! : l'! h ' d, r L 1 '., ' ',. ~! :!. i',. j, well as any maritime area beyond tile territorial sea that, in accordanoe with international law and its domestic law, either Contracting Party exercises sovere~gn rights,or jurisdiction with respect to ttle waters, seabed and subsoil and natural resources thereof. ARTCLE 2 PROMOTON, ADMSSON AND PROTECTON OF NVESTMENTS 1. Each Contracting Party shall promote in its territory investments of investors of the other Contracting Party and shall admit th em in accordance with its law. 2. Without prejudice to its law neither Contracting Party shall take unreasonable or discriminatory measures against the management, maintenance, use, enjoyment, disposal and liquidation of said investments. 3. Each Party shall accord fair and equitable treatment in accordance with customary international law, and full protection and security in its territory to investment of investors of the other Contracting Party. 4. For greater certainty, a) The concepts of fair ane, eq uitable treatment and full protection and security do not require addit.ional treatment to that required under the minimum standard of treatment of aliens in accordance with the standard of customary international law. b) A determination that there has been a breach of another provision of this Agreement or another international agreement does not imply that the minimum standard of treatment of aliens has been breached. c) Fair and equitable treatment includes the prohibition against denial of justice in criminal, civil, or administrative proceedings in accordance with the general accepted principles of customary international law. d) The Full protection and security standard does not imply, in any case, a better treatment to that accorded to nationals of the Contracting Party where the investment has been made. \!! f /1 t n ~!f.,j! ~,., 5. SUbject to its laws, one Contracting Party shall provide assistance in and facilities for entry and obtaining working permit to nationals of the other Contracting Party engaging in activities associated with investments made in the territory of that Contracting Party. ARTCLE 3 TREATMENT OF NVESTMENT 1. Without prejudice to its law at the time the investment is made, each Contracting Party shall accord to investments of the investors of the other Contracting Party treatment not less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the operation, management, use, enjoyment or disposal of investments. 2. Eilctl Contracting r -Hly SEl ar.cdru to i'lvcstmc-ll:s of ','18 11'/C'l;!ors of til(] o:cl Contracting Party treatment no n~ f1voclble hcln t',al, 1(;t.Ords. n!-(', ci rcumstances, to investments of the in'lr ;,!ors of any thirr! party with respect to 1!f.' operalion, m~nagement, usc, nnjoyment or di,poc,ill of nvcc,,,tmr.n!t; 3. The most fc:jv013b llj treatllh~nt!0 bc: g rl1 :~t ~ J n k0. c:r::l~~',iilncc:, rp.f0rr ( ~ n n thi~ Agreement docs not,); l SS mcch:jnr~~rn~ f:jr d,:] sr 1 ;:l :rl1(:rl l (f.. w\~ ';trll (:ll t displlt0s, such a~ ho:--.0. conl.1tn(xl in.'\j' ' ;':C'~ ~ ;)r ~ 9 ~)f li:. r\~p r.c'l:lc[l t. \1~lch.!l' provid0.d for in trcnlies or intr.rn tlt. r m:~1 :;wr;:-,~m('r,t :. l ~FCr~r ~lr n t ; 4. The pf()v i :~ions of hl~ A: W.'f' n11... '..! r.n rir:(:rn i' lrj ljo: ~ qr ;\f l!,rvl d ;1 no c~. ) Li\l()r::ll!, ; treatment than that acc:orcjcu to mv (~:.~lrnc n t'~ 0: j'lv( ~. l llr~ (}f i!rlch Conlrtlctlnp fj 1r1\' or of Clny third party,,11:111 not be c'lnslnl(! so 'S to 0,,],, ;r COlltl ~C:'() ;,riv to cxlf)nci 10 investments of invr.,lors r ~ he oll,,r COlltra c: 1'0 Party the he'wilts 0 1 any trrnlment, preference or rriviloqo rr c,,,lllr.(j from,\ny r:'.!inn or luturf) free' trade area, customs L1nion, common marlu-:t, '-!r::()n~m;ir: llnioll flnd nny internation~t1 aqreement resullinn in simiinr m ~~U' JKH1S: :1nv rnh~fll;llionul agree/llcrh or chffl ngement relnting wholly or ; \. :;n ly t ~ tijxtllron (lr,1m' :i~tcrn;)tional.1grccment!,' facll ltatp. frontier tr~d (~ ill bord(~r.1rc;1 :;, '.'/ h,1 Conlr,... t.. '''~~J 'lrly r::l or bcr.onh~ ~ i1 Party to. A ~ rrc:lf: 4 [XPfV '''''\,1 'ne.; \Ni) COilir'f, ls\ton 1. Nilher Contracting Par',: sl1all r :propa te, dir''',cily 0 '- indircstly, nation~;/8 or tnke other ~,jn,jlar measures (here j1~ fl cr r;f(~rr~!rl to (1S expropriation) fjgllins\ tl1(' investments of the investors of tilf r;: lher Contr:'l stino Party n its territory. unless the fol lowing conuitions are met: a) for the public interrosts, public purpose or social interc.t; ill under domestic legal procedure and respecting dul.' process; c) without discrimination; Clnd () against compensation. 2. t is understood h nt: :1) ndirect C'xpropriation results from a mea .u re or series o'f measures of Q Contracting Party having 8n equivalent crfcoct tn direct expropriation without form al transfer of til e or outright seizure; b) The determ ination of whether a mcasur' or ser'r:s of measures of a Contracting Parly constitute indirect expropri.,uon requires a case by case, r:,cl basprj inquiry con!',idcrin!:r i) The economic impact of tho m,~slre or seri :.:s of mc~,jsures; however, til) sale fact of a measure Qr series of measures having adverse efrects on the economic value of an investment cloes not imply that an indirect expropriation has occurred; ii) The scope of the measure or series of measures and their interference on the reasonable,mri distinguishable expect8tions concerning the investment; c) Non-discriminatory mea 5~.l res of a Contracting Pa,t)' designed ano applied for puhlic purposes or 50cj ;'11! ~t c rest or with objec~ives :.lch as pcblic health, ::;afety 5,.-...,..---~ ~-. 5': 1 : i,!' i! and environment protection, do not constitute indirect C'xpropriation, Except in rare circumstances, such as a measure or series 01 measures being so severe in light of their purpo'se that fheiy' cannol be reasonably viewed as 118vlng be,en adopted and applied in good faith, 3, The compensation mentioned in paragraph 1 of this Article shall be adequate, n this regard, the compensation shall be equivalent to the fair market vallie of the expropriated investments immediately before the expropriation is taken or the impending expropriation becomes public knowledge, whichever is earlier, (11ereinafter the date of valuation), The compensation shall also be made without delay, and be effectively realizable and freely transferable, 4, The fa ir market value wi ll be calculated in a freely convertible currency, per the exchange, rate on the date of valuation, The compensation shall incl ud e interests al a commercially rate fixed in accordance viith the market criteria 'for that currency, accrued from the date of expropriation until the date of payment. The compensation shall be paid without unjustified delay, be fully realizable and freely transferable. 5, Subject to the present Article, the Contracting Parties may establish state monopolies provided that it is for public purposes or social interest. n this event, the investor shall receive a prompt, adequate and effective compensation, considering the conditions prescribed in the present Article, :r 6, The Contracting Parties confirm that issuance of compulsory licenses granted in accordance with Article 30 and Article 31 of the TR PS Agreement of the WTO, may not be challenged under the pro~isions set out in this Article, ARTCLE 5 COMPENSATON FOR DAMAGES OR LOSSES nvestors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses due to war, armed conflict, revolution, a state of national emergency; insurrection, riot or other similar events, shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation and olher settlements no less favorable th an that accorded to the investors of its own or any third party, whichever is more favorable to the investor concerned, ' f' ARTCLE 6 TRANSFERS 1. Each Contracting Party, prior fulfillment of the requirements under its law and without unjustified delay, shall allow investors of the other Contracting Party to effect, in a freely convertible currency, transfers of:.', a) The principal amount and additional sums necessary for maintaining, increasing and developing the investment; b) Returns as defined in Article 1 ; c) Payments made pursuant to a loan agreement in connection with investments; d) Nothing in Paragraph 1 of this Article sha ll affect the free transfer of compensation paid under Article 4 and 5 of this Agreement e) Proceeds obtained from the total or partial sale or liquidation of investments; f) Earnings of nationals of the other Contracting Party who work in connection (.? The rc)! 1r(l r~, n1cnt0r; r! ~bov c ::,tl li :,l': i1),ldc in. ;1 fr Ply (;onv0 rlibe' r;ulrr-!ih:y and ;'t the rr~vjilinfl rn:h! el fnlp :Jf p.x(.h;m~lc -;-:;, 11' '!l\!/' le~ Con1lnclmq P;Jrty nccrptw.g ~)f' nll''nt~. 1',rJ,...,..,. ~ ):' d:1!r '11 t!:!n';j(~! J Tle rrovl~1 i {)ns in tllc p;1rrl~~nph r; ;::;c\'c of t:1c ; )r(;':,(-~rlt (\r:iclc ~h{lll 110t rr(~cltl(ll~ either Contri\cting Party from 11[. 0,n9 e:(:h~njc rf.'slli ~n~'. 111 ~ccor(\anc(' With lis appli~;lhle laws and re~ll:1tions. 1\1 C ',. ~)lf~!-'r!{ ~/\! ON f one Conlrf1ctinq f'1:1rty or t~ ;:':rw','!lldht:~; :1 j);jyrrl{; r.1 to its!llv0 ~,!ur:,. undp. r a rjl::lrantec or 0 con tr ~'lc l.~r :;1:1 t'dl)r0..~r l l;: ls t lrn -colnmrrc:lal n':..k; h:!. accorcled in resp0cl of at') invcstm('nl m,1(jp in 1:1 ( t r~ 'jtor\1 r.! tle nli}(~r Contr;l;:;!inu Pnrty. the laller Contmctrng rty ';h 11! cee''1 ' a) the asslonment. whether under t)l~ la\'/ ur jl ' /::;J illl! to, k:pl trzln~',c J( )J1 n!he former Conlracling Party. of any ri'l:'!s or c:irn~; by the nveslors to he iormer Contmr.!ing Parly or to ils rjcc~a t r:ci 'leney. C'~ well a~;. 0) hallhe fontll,r ContmrtinCl Pnrly 0:' it'; dcsign8t:~d is enliur by virlue of subrogation to exerrise the rlghlr,. 0n fo;r. o the cinims of h8t investor and ~5ump. the obligations : ::'!'~'d 10 th e! invest;n(~nt to ~he same extenl as th e nvestor. \RTCLE 8 SETTLEMe'T Or: DSPUTES RETNED THE CONTR~,CTNG PARTES 1. Disputes nrising belween he Contrncting Parties rc~ilrding the interpretation nnd Jppllcation of this Agreement. ndudlng a chim allqing th~i h' clhr Contractin g Party has b«')acheel an o\)!:;f,llon 01 lhe presenl Agreemenl and has consequently generated dami3q E~2' to (n inves~m. shall be settled, ns Ln as possihle. with consultation th rough ciip!omallc ehilnnel. 2. f a disr'lir., cannot be settled within SX (0) months il shall. UpN he requesl of either Contracting Party be sublllil~cd to ;1n ael -he Arbllrallon Tribunal. in acc()rd~nce with the provlt;nnc of thi'; Arl:clc 3. The Arbitration Tribunal s\1 111 Je co~rised of three l11el11bers Clnd. unless otherwise agreed bc' l.ween the Partir:s. shall be established as follows: wilhin two (2) months from the d.'1ta of nolificlliion of tile mb;-.:on request. each Contracling Party shall A['point an arbitralor. Those 1'.' 10 arbitrators shall then. within hree (3) months from tile date of the last aproin!ment, wee upon a third member who shall be a national of a lhird St3tc wilh ''''hich both Conlracting Parties maintain diplomatic relations. and who shall preside over the tribunal. 4. f the /\rijitwlion Tribllnal 118S not been C(llstJl:eci within five months from the receipl of he wnllen nolice requ c~;ling arbilration. eilhc,r Conlracting Pilrty. may in the absence of any olher apreement, request the President of the nternational Court of Justice to make the necessary aproinlments. f the Presidenl is a nalional of either Contmcling Party or is olerwise prevented from discharging the said functions, the member of the nternational Court of Justice next in seniority who is not a national of either Contracting or is not otherwise prevented from discharging 7 the said functions shall be requested to make such necessary appointments. 5. The Arbitration'tribunal shali' rule based on the provisions of,this Agreement and principles of nternational Law applicable to the subject matter. The Tribunal shall reach its decisions by ~a -majority of votes and shall determine its own proced ural rules. Such award shall be final and binding upon both Contracting Parties. The arbitral tribunal shall, upon the request of eitl1er Contracting Party, explain the reasons of its award. 6. Each of the Contracting Parties shall bear the costs of its appointed arbitrator and of its representation in the arbitral proceedings. The relevant costs of the Chairman and tribunal sllall be borne in equal parts by the Contracting Parties. ARTCLE 9 SETLEMENT OF DSPUTES BETWEEN ONE CONTRACTNG PARTY AND AN NVESTOR OF THE OTHER CONTRACTNG PARTY 1. With regard to acts of a governmental authority, in order to submit a claim to arbitration under this article or to domestic court, domestic administrative remedies shall be exhausted, should it be required by the law of the Contracting Party. Such procedure shall in no case exceed six months from the date of its initiation by the investor and shall not prevent the investor from requesting consultations as referred to in paragraph 3 of the present Article, '. ii j 1., 2. Any dispute between an investor of one Contracting Party and the otller Contracting Party in connection with an investment in the territory of the other Contracting Party shall be settled, as far as possible, amicably. Any dispute shall be notified by sllbmitting a notice of intent in writing, including detailed information of the facts and legal basis, by the investor to the Contracting Party receiving the investment. 3. Nothing in tllis Article shall be construed as to prevent the parties of a ciispute from referring their dispute, by mutual agreement, to ad hoc or institutional mediation or conciliation before or during the arbitral proceeding. 4. f the dispute has not been settled within nine (9) months from the date of the written notification mentioned in paragraph 2 of this Article, it may be submitted, by the choice of the investor to: a) The competent court of the Contracting Party that is a party to the dispute; b) The nternational Centre for Settlement of nvestment Disputes (CSD), under the rules of the Convention on Settlement of Disputes between States and Nationals of olier States, open for signature in Washington D.C. on March 18, n the event that one of the Contracting Partie~. is not a party of tile mentioned Convention, the dispute may be resolved in accordance with the CSD Rules Governing the Ad ditional Facility for the Administration of Procedures for Conciliation, Arbitration and Fact-Finding; or.!. c) An arbitral tribunal under any other arbitration institution or any other arbitration rules, agreed by the Contracting Parties, ~i Tlp. disputing investor nl[ly only suhmlt ;' Cl~ ir'l to () hltrzli l::l f the tr~rm cs lilbllshed in parag!~ lp!1 4 nf lilr. 1 1r':::. (~ r,t \rllcle h,::~ r;lap ~ '-v!, ilnd tile di,pljllnq 1vestor has notified, in writin'l and 'ncty :';0) d~,, :n C1dv~ '1c,. th,~ Con tr~ c ll ng Party of his intention to wbmit l claim 10 D! tr;.,o'l S!:ch Q notir.r ehql1 1l1dicClc the name nnri adrlw0s of tll() c!it.pll':r.n nv:,:,',' r, ~L~ ('! ;~rovi~;lon~... f 1h0. \grc~(~ltlcnl which he deems to be l
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