A G R E E M E
N T
between
the Republic of Austria and the Great Socialist People’s Libyan Arab Jamahiriya
for the Promotion and Protection of Investments
THE REPUBLIC OF AUSTRIA AND THE Great Socialist
People’s Libyan Arab Jamahiriya hereinafter referred to as „Contracting
Parties“,
DESIRING to create favourable conditions for greater
economic co-operation between the Contracting Parties,
RECOGNIZING that the promotion and protection of
investments may strengthen the readiness for such investments and hereby make
an important contribution to the development of economic relations,
HAVE AGREED AS FOLLOWS:
CHAPTER
ONE: GENERAL PROVISIONS
ARTICLE
1
Definitions
For the purpose of this Agreement
(1) „investor
of a Contracting Party“ means:
(a)
with
its applicable law; or
(b)
an
enterprise constituted or organised under the applicable law of a Contracting
Party;
making or having made an
investment in the other Contracting Party's territory.
(2) „investment
by an investor of a Contracting Party“ means every kind of asset in the
territory of one Contracting Party, owned or controlled, directly or
indirectly, by an investor of the other Contracting Party, including:
(a)
an
enterprise constituted or organised under the applicable law of the first
Contracting Party;
(b)
shares,
stocks and other forms of equity participation in an enterprise as referred to
in subparagraph (a), and rights derived therefrom;
(c)
bonds,
debentures, loans and other forms of debt and rights derived therefrom;
(d)
any
right whether conferred by law or contract, including turnkey contracts,
concessions, licences, authorisations or permits to undertake an economic
activity;
(e)
claims
to money and claims to performance pursuant to a contract having an economic
value;
(f)
intellectual
property rights as defined in the multilateral agreements concluded under the
auspices of the World Intellectual Property Organisation, including industrial
property rights, copyright, trademarks, patents, industrial designs and
technical processes, know-how, trade secrets, trade names and goodwill;
(g)
any
other tangible or intangible, movable or immovable property, or any related
property rights, such as leases, mortgages, liens, pledges or usufructs.
(3)
„enterprise“ means a legal person or any entity constituted or organised under
the applicable law of a Contracting Party and whether private or government
owned or controlled, including a corporation, trust, partnership, sole
proprietorship, branch, joint venture or association.
(4) „returns“
means the amounts yielded by an investment and, in particular, profits,
interests, capital gains, dividends, royalties, licence fees and other fees.
(5) „territory“
means with respect to each Contracting Party the land territory, internal
waters, maritime and airspace under its sovereignty, including the exclusive
economic zone and the continental shelf where the Contracting Party exercises,
in conformity with international law, sovereign rights and jurisdiction.
ARTICLE
2
Promotion
and Admission of Investments
(1) Each
Contracting Party shall, according to its laws and regulations, promote and
admit investments by investors of the other Contracting Party.
(2) Any
alteration of the form in which assets are invested or reinvested shall not
affect their character as an investment provided that such alteration is in
accordance with the laws and regulations of the Contracting Party in whose
territory the investment was made.
ARTICLE
3
Treatment
of Investments
(1) Each
Contracting Party shall accord to investments by investors of the other
Contracting Party fair and equitable treatment and full and constant protection
and security.
(2) A
Contracting Party shall not impair by unreasonable or discriminatory measures
the management, operation, maintenance, use, enjoyment, sale and liquidation of
an investment by investors of the
other Contracting Party.
(3) Each
Contracting Party shall accord to investors of the other Contracting Party and
to their investments treatment no less favourable than that it accords to its
own investors and their investments or to investors of any third country and
their investments with respect to the management, operation, maintenance, use,
enjoyment, sale and liquidation of an investment, whichever is more favourable
to the investor.
(4) No
provision of this Agreement shall be construed as to oblige a Contracting Party
to extend to the investors of the other Contracting Party and to their
investments the present or future benefit of any treatment, preference or
privilege resulting from
(a)
any
membership in a free trade area, customs union, common market, economic
community or any multilateral agreement on investment;
(b)
any
international agreement, international arrangement or domestic legislation
regarding taxation.
(5) Each
Contracting Party shall promptly publish, or otherwise make publicly available,
its laws, regulations, procedures as well as international agreements which may
affect the operation of the Agreement.
ARTICLE
4
Expropriation
and Compensation
(1) A
Contracting Party shall not expropriate or nationalise directly or indirectly
an investment of an investor of the other Contracting Party or take any
measures having equivalent effect (hereinafter referred to as “expropriation”)
except:
(a)
for
a purpose which is in the public interest,
(b)
on
a non-discriminatory basis,
(c)
in
accordance with due process of law, and
(d)
accompanied
by payment of prompt, adequate and effective compensation in accordance with
paragraphs (2) and (3) below.
(2)
Compensation shall:
(a)
be
paid without delay. In case of
delay any exchange rate loss arising from this delay shall be borne by
the host country.
(b)
be
equivalent to the fair market value of the expropriated investment immediately
before the expropriation occurred. The fair market value shall not reflect any
change in value occurring because the expropriation had become publicly known
earlier.
(c) be paid and made freely transferable to the
country designated by the claimants concerned and in the currency of the
country of which the claimants are nationals or in any freely convertible
currency accepted by the claimants.
(d)
include
interest at a commercial rate established on a market basis for the currency of
payment from the date of expropriation until the date of actual payment.
(3) An investor of a Contracting Party which claims
to be affected by expropriation by the other Contracting Party shall have the
right to prompt review of its case, including the valuation of its investment
and the payment of compensation in accordance with the provisions of this
Article, by a judicial authority or another competent and independent authority
of the latter Contracting Party.
ARTICLE
5
Compensation
for Losses
(1) An
investor of a Contracting Party who has suffered a loss relating to its
investment in the territory of the other Contracting Party due to war or to
other armed conflict, state of emergency, revolution, insurrection, civil
disturbance, or any other similar event, or acts of God or force majeure, in
the territory of the latter Contracting Party, shall be accorded by the latter
Contracting Party, as regards restitution, indemnification, compensation or any
other settlement, treatment no less favourable than that which it accords to
its own investors or to investors of any third state, whichever is most
favourable to the investor.
(2) An investor
of a Contracting Party who in any of the events referred to in paragraph
(1) suffers loss resulting from:
(a)
requisitioning
of its investment or part thereof by the forces or
authorities of the other Contracting Party, or
(b)
destruction
of its investment or part thereof by the forces or authorities of the other
Contracting Party, which was not required by the necessity of the situation,
shall in any case be accorded
by the latter Contracting Party restitution or compensation which in either
case shall be prompt, adequate and effective and, with respect to compensation,
shall be in accordance with Article 4 (2) and (3).
ARTICLE
6
Transfers
(1) Each
Contracting Party shall guarantee that all payments relating to an investment
by an investor of the other Contracting Party may be freely transferred into
and out of its territory without delay. Such transfers shall include, in
particular:
(a)
the
initial capital and additional amounts to maintain or increase an investment;
(b)
returns;
(c)
payments
made under a contract including a loan agreement;
(d)
proceeds
from the sale or liquidation of all or any part of an investment;
(e)
payments
of compensation under Articles 4 and 5;
(f)
payments
arising out of the settlement of a dispute.
(2) Transfers
shall be made in a freely convertible currency at the rate of exchange
applicable on the date of transfer pursuant to the exchange regulations in
force of the Contracting Party in whose territory the investment was made.
ARTICLE
7
Subrogation
If a Contracting Party or its designated agency makes
a payment under an indemnity, guarantee or contract of insurance given in
respect of an investment by an investor in the territory of the other
Contracting Party, the latter Contracting Party shall recognize without
prejudice to the rights of the investor under Chapter Two Part One the
assignment of any right or claim of such investor to the former Contracting
Party or its designated agency and the right of the former Contracting Party or
its designated agency to exercise by virtue of subrogation any such right and
claim to the same extent as its predecessor in title.
ARTICLE
8
Other
Obligations
(1) Each
Contracting Party shall observe any obligation it may have entered into with
regard to specific investments by investors of the other Contracting Party.
(2) If the laws
of either Contracting Party or obligations under international law existing at
present or established hereafter between the Contracting Parties in addition to
the present Agreement contain rules, whether general or specific, entitling
investments by nationals or enterprises of the other Contracting Party to a
treatment more favourable than is provided for by the present Agreement, such
rules shall to the extent that they are more favourable prevail over the
present Agreement.
ARTICLE
9
Denial
of Benefits
A Contracting Party may deny the benefits of this
Agreement to an investor of the other Contracting Party and to its investments,
if investors of a Non-Contracting Party own or control the first mentioned
investor and that investor has no substantial business activity in the
territory of the Contracting Party under whose law it is constituted or
organized.
CHAPTER
TWO: DISPUTE SETTLEMENT
PART
ONE: Settlement of Disputes between an Investor and a Contracting Party
ARTICLE
10
Scope
and Standing
This Part applies to disputes between a Contracting
Party and an investor of the other Contracting Party concerning an alleged
breach of an obligation of the former under this Agreement which causes loss or
damage to the investor or his investment.
ARTICLE
11
Means
of Settlement, Time Periods
(1) For the
purpose of solving disputes with respect to investments between a Contracting
Party and an investor of the other Contracting Party concerning an alleged
breach of an obligation under this Agreement consultation shall take place
between the parties concerned.
(2) If these
consultations do not result in a solution within three months from the date of
request for consultations, the investor may submit the dispute:
(a)
to
the competent courts or administrative tribunals of the Contracting Party in
whose territory the investment has been made;
(b)
in
accordance with any applicable previously agreed dispute settlement procedure; or
(c)
in
accordance with this Article to:
(i) the International Centre for
Settlement of Investment Disputes („the Centre“), established pursuant to the
Convention on the Settlement of Investment Disputes between States and
Nationals of Other States („the ICSID Convention“), if the Contracting Party of
the investor and the Contracting Party, party to the dispute, are both parties
to the ICSID Convention;
(ii) the Centre under the rules governing the
Additional Facility for the Administration of Proceedings by the Secretariat of
the Centre, if the Contracting Party of the investor or the Contracting Party,
party to the dispute, but not both, is a party to the ICSID Convention;
(iii) an ad hoc arbitration tribunal established
under the Arbitration Rules of the United Nations Commission on International
Trade Law („UNCITRAL“);
(iv) the International Chamber of Commerce, by a
sole arbitrator or an ad hoc tribunal under its rules of arbitration.
ARTICLE
12
Contracting
Party Consent
(1) Each
Contracting Party hereby gives its unconditional consent to the submission of a
dispute to international arbitration in accordance with this Part.
(2) The consent
referred to in paragraph (1) implies the renunciation of the requirement that
the internal administrative or juridical remedies should be exhausted.
ARTICLE
13
Indemnification
A Contracting Party shall not assert as a defence,
counter-claim, right of set-off or for any other reason, that indemnification
or other compensation for all or part of the alleged damages has been received
or will be received pursuant to an indemnity, guarantee or insurance contract.
ARTICLE
14
Applicable
Law
(1) A tribunal
established under this Part shall decide the dispute in accordance with this
Agreement and applicable rules and principles of international law.
(2) Issues in
dispute under Article 8 shall be decided, absent other agreement, in accordance
with the law of the Contracting Party, party to the dispute, the law governing
the authorization or agreement and such rules of international law as may be
applicable.
ARTICLE
15
Awards
and Enforcement
(1) Arbitration
awards, which may include an award of interest, shall be final and binding upon
the parties to the dispute and may provide the following forms of relief:
(a)
a
declaration that the Contracting Party has failed to comply with its
obligations under this Agreement;
(b)
pecuniary
compensation, which shall include interest from the time the loss or damage was
incurred until time of payment;
(c)
restitution
in kind in appropriate cases, provided that the Contracting Party may pay
pecuniary compensation in lieu thereof where restitution is not practicable;
and
(d)
with
the agreement of the parties to the dispute, any other form of relief.
(2) Each
Contracting Party shall make provision for the effective enforcement of awards
made pursuant to this Article and shall carry out without delay any such award
issued in a proceeding to which it is party.
PART
TWO: Settlement of Disputes between the Contracting Parties
ARTICLE
16
Scope,
Consultations, Mediation and Conciliation
Disputes between the Contracting Parties concerning
the interpretation or application of this Agreement shall, as far as possible,
be settled amicably or through consultations, mediation or conciliation.
ARTICLE
17
Initiation
of Proceedings
(1) At the
request of either Contracting Party a dispute concerning the interpretation or
application of this Agreement may be submitted to an arbitral tribunal for
decision not earlier than 90 days after such request has been notified to the
other Contracting Party.
(2) A
Contracting Party may not initiate proceedings under this Part for a dispute
regarding the infringement of rights of an investor which that investor has
submitted to arbitration under Part One of Chapter Two of this Agreement,
unless the other Contracting Party has failed to abide by and comply with the
award rendered in that dispute or those proceedings have terminated without
resolution by an arbitral tribunal of the investor's claim.
ARTICLE
18
Formation
of the Tribunal
(1) The
arbitral tribunal shall be constituted ad hoc as follows:
Each Contracting Party shall appoint one member and
these two members shall agree upon a national of a third state as their
chairman. Such members shall be appointed within two (2) months from the date
one Contracting Party has informed the other Contracting Party of its intention
to submit the dispute to an arbitral tribunal, the chairman of which shall be
appointed within two (2) further months.
(2) If the
periods specified in paragraph (1) of this Article are not observed, either
Contracting Party may, in the absence of any relevant arrangement, invite the
President of the International Court of Justice to make the necessary
appointments. If the President of the International Court of Justice is a
national of either of the Contracting Parties or if he/she is otherwise
prevented from discharging the said function, the Vice-President or in case of
his/her inability the member of the International Court of Justice next in
seniority should be invited under the same conditions to make the necessary
appointments.
(3) Members of
an arbitral tribunal shall be independent and impartial.
ARTICLE
19
Applicable
Law, Default Rules
(1) The
arbitral tribunal will decide disputes in accordance with this Agreement and
the applicable rules and principles of international law.
(2) Unless the
parties to the dispute decide otherwise, the Permanent Court of Arbitration
Optional Rules for Arbitrating Disputes shall apply to matters not governed by
other provisions of this Part.
ARTICLE
20
Awards
(1) The
tribunal, in its award, shall set out its findings of law and fact, together
with the reasons therefore, and may, at the request of a Contracting Party,
award the following forms of relief:
(a)
a
declaration that an action of a Contracting Party is in contravention of its
obligations under this Agreement;
(b)
a
recommendation that a Contracting Party brings its actions into conformity with
its obligations under this Agreement;
(c)
pecuniary
compensation for any loss or damage to the requesting Contracting Party's
investor or its investment; or
(d)
any
other form of relief to which the Contracting Party against whom the award is
made consents, including restitution in kind to an investor.
(2) The
arbitration award shall be final and binding upon the parties to the dispute.
ARTICLE
21
Costs
Each Contracting Party shall pay the cost of its
representation in the proceedings. The cost of the tribunal shall be paid for
equally by the Contracting Parties unless the tribunal directs that they be
shared differently.
ARTICLE
22
Enforcement
Pecuniary awards which have not been complied with
within one year from the date of the award may be enforced in the courts of
either Contracting Party with jurisdiction over assets of the defaulting Party.
CHAPTER
THREE: FINAL PROVISIONS
ARTICLE
23
Application
of the Agreement
(1) This
Agreement shall apply to investments made in the territory of either
Contracting Party in accordance with its legislation by investors of the other
Contracting Party prior as well as after the entry into force of this
Agreement.
(2) This Agreement
shall not apply to claims which have been settled or procedures which have been
initiated prior to its entry into force.
ARTICLE
24
Consultations
Each Contracting Party may propose to the other
Contracting Party consultations on any matter relating to this Agreement. These
consultations shall be held at a place and at a time agreed upon through
diplomatic channels.
ARTICLE
25
Entry
into Force and Duration
(1) This
Agreement is subject to ratification and shall enter into force on the first
day of the third month that follows the month during which the instruments of
ratification have been exchanged.
(2) This
Agreement shall remain in force for a period of ten years; it shall be extended
thereafter for an indefinite period and may be denounced in writing through
diplomatic channels by either Contracting Party giving twelve months' notice.
(3) In respect
of investments made prior to the date of termination of the present Agreement
the provisions of Articles 1 to 23 of the present Agreement shall continue to
be effective for a further period of ten years from the date of termination of
the present Agreement.
DONE in duplicate at Vienna, on 18/06/2002, which
corresponds to the 18/06/1370, in the German, Arabic and English languages, all
texts being equally authentic. In case of difference of interpretation the
English text shall prevail.
For the Republic of Austria: |
For the the Great Socialist People’s Libyan Arab Jamahiriya: |
Benita FERRERO-WALDNER |
Shukri GHANEM |