A G R E E M E N T
between the
Republic of Austria
and
the Republic of
Namibia
on the Promotion
and Protection of Investments
THE REPUBLIC OF
AUSTRIA AND THE REPUBLIC OF NAMIBIA
hereinafter referred to as
"Contracting Parties",
DESIRING
to create favourable conditions for greater economic co-operation between the Contracting
Parties,
RECOGNISING
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,
REAFFIRMING
their commitment to the observance of internationally recognised labour standards,
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) a natural person
having the nationality of a Contracting Party in accordance with its applicable
law, or
(b) a legal person or
entity including a corporation, trust, partnership, sole proprietorship,
association or organisation being incorporated or constituted in accordance
with the law of a Contracting Party and having its seat in the territory of
that 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) rights under
contracts, including turnkey, construction, management, production or
revenue-sharing contracts;
(e) claims to money and
claims to performance pursuant to a contract having an economic value and
associated with an investment;
(f) intellectual and
industrial property rights as defined in the multilateral agreements concluded
under the auspices of the World Intellectual Property Organisation, including copyright, trademarks, patents,
industrial designs and technical processes, know-how, trade secrets, trade
names and goodwill;
(g) rights conferred by law or contract such as
concessions, licenses, authorisations or permits to undertake an economic
activity;
(h) 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, whether or not for profit, and whether
private or government owned or controlled, including a corporation, trust,
partnership, sole proprietorship, branch, joint venture, association or organisation.
(4)
"returns" means the amounts yielded by an investment and, in
particular, profits, interests, capital gains, dividends, royalties, license
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
alternation of the form in which assets are invested or reinvested shall not
affect their character as an investment provided that such alternation is in
accordance with the laws and regulations of the Contracting Party in whose
territory the investment has been 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 or
(c) any regulation to facilitate frontier
traffic.
ARTICLE 4
Transparency
(1)
Each Contracting Party shall publish, or otherwise make publicly available, its
laws, regulations, procedures as well as international agreements which may
affect the operation of the Agreement.
(2) Each
Contracting Party shall promptly respond to specific questions and provide,
upon request, information to the other Contracting Party on matters referred to
in paragraph (1).
(3) No Contracting
Party shall be required to furnish or allow access to information concerning
particular investors or investments the disclosure of which would impede law
enforcement or would be contrary to its laws and regulations protecting
confidentiality.
ARTICLE 5
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) Due process of
law includes the right of an investor of a Contracting Party which claims to be
affected by expropriation by the other Contracting Party 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 6
Compensation for
Losses
(1) An
investor of a Contracting Party who has suffered a loss relating to his/her
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 more 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 his/her investment or part thereof by the forces or authorities of the other
Contracting Party, or
b) destruction of his/her 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 5 (2) and (3).
ARTICLE 7
Transfers
(1) Each
Contracting Party shall ensure and permit 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 5 and 6;
f) payments arising out of the
settlement of a dispute;
g) earnings and
other remuneration of personnel engaged from abroad in connection with an
investment.
(2) Each
Contracting Party shall further guarantee that such transfers may be made in a
freely convertible currency at the market rate of exchange prevailing on the
date of transfer in the territory of the Contracting Party from which the
transfer is made.
(3) In the absence
of a market for foreign exchange, the rate to be used shall be the most recent
exchange rate for conversion of currencies into Special Drawing Rights.
(4)
Notwithstanding paragraphs (1) to (3), a Contracting Party may prevent a
transfer through the equitable, non-discriminatory and good faith application
of measures to protect the rights of creditors, relating to or ensuring
compliance with laws and regulations on the issuing, trading and dealing in
securities, futures and derivatives, reports or records of transfer, or in
connection with criminal offences and orders or judgements in administrative
and adjudicatory proceedings, provided that such measures and their application
shall not be used as a means of avoiding the Contracting Party's commitments or
obligations under this Agreement.
ARTICLE 8
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 9
Other Obligations
Each Contracting
Party shall observe any obligation it may have entered into with regard to
specific investments by investors of the other Contracting Party.
ARTICLE 10
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 organised.
CHAPTER TWO:
DISPUTE SETTLEMENT
PART ONE: Settlement of Disputes between an Investor and
a Contracting Party
ARTICLE 11
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 its
investment.
ARTICLE 12
Means of
Settlement, Time Periods
(1) Such a dispute
should, if possible, be settled by negotiation or consultation. If it is not so
settled, the investor my choose to submit it for resolution:
a) to the competent courts or
administrative tribunals of the Contracting Party, party to the dispute;
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 established pursuant to the
Convention on the Settlement of Investment Disputes between States and
Nationals of other States opend for signature in Washington on 18th
March 1965 ("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)
a sole arbitrator or an ad hoc aritration tribunal established under the
Arbitration Rules of the United Nations Commission on International Trade Law
(“UNCITRAL”).
iii) the International Chamber of Commerce, by a sole
arbitrator or an ad hoc tribunal under its rules of arbitration.
(2) A dispute may
be submitted for resolution pursuant to paragraph 1 c) of this Article after 60
days from the date notice of intent to do so was provided to the Contracting
Party, party to the dispute, but not later than five years from the date the investor
first acquired or should have acquired knowledge of the events which gave rise
to the dispute.
ARTICLE 13
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.
(3) The investor
may choose to submit the dispute for resolution according to Article 12
paragraph (1) c) only until there has been a decision in the first instance in
the proceedings according to Article 12 paragraph (1) a).
ARTICLE 14
Place of
Arbitration
Any arbitration
under this Part shall, at the request of any party to the dispute, be held in a
state that is party to the United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards signed in New York on 10th June 1985 („the New York
Convention“). Claims submitted to arbitration under this Part shall be
considered to arise out of a commercial relationship or transaction for
purposes of Article 1 of the New York Convention.
ARTICLE 15
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 16
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 9 shall be decided, absent other agreement, in accordance
with the law of the Contracting Party, party to the dispute, the law governing
the authorisation or agreement and such rules of international law as may be
applicable.
ARTICLE 17
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 18
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 19
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 60 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 20
Formation of the
Tribunal
(1) The arbitral
tribunal shall be constituted ad hoc as follows:
Within 30 days
after receipt of a request for arbitration, each Contracting Party shall
appoint one member and the two members thus appointed shall select a national
of a third State who on approval by the Contracting Parties shall be appointed
chairperson of the tribunal.
(2) If the period
specified in paragraph (1) is not observed, either Party may, in the absence of
any other agreement, invite the Secretary General of ICSID to make the
necessary appointments.
(3) Members of an
arbitral tribunal shall be independent and impartial.
ARTICLE 21
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 22
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 Party, award the following
forms of relief:
a)
a declaration that an action of a Party is in contravention of its obligations
under this Agreement;
b)
a recommendation that a Party brings its actions into conformity with its
obligations under this Agreement;
c)
pecuniary compensation for any loss or damage to the requesting Party's
investor or its investment; or
d)
any other form of relief to which the 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 23
Costs
Each Party shall pay the cost
of its representation in the proceedings. The cost of the tribunal shall be
paid for equally by the Parties unless the tribunal directs that they be shared
differently.
ARTICLE 24
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 25
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 26
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 27
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 terminated 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 25 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.
For the
Republic of Austria: For
the Republic of Namibia:
Ernst
Strasser Saara
Kuugongelwa-Amadhila
PROTOCOL
Protocol to the Agreement between
the Republic of Austria and the Republic of Namibia for the Promotion and
Protection of Investments
In addition to the foregoing the
Contracting Parties have agreed on the following provisions which shall
constitute an integral part of the Agreement:
Ad Article 3 para 3
Article 3 (3) does not prevent a Contracting Party to grant limited
incentives to certain groups of own investors in order to stimulate the
creation of local industries, especially small and medium companies. The
principle of most favoured nation treatment shall be observed in case of
foreign participation in such investments. Each Contracting Party agrees to
notify such incentives in case of application to the other Contracting Party.
Such application shall not negatively affect the rights which at the time of
the application have already accrued to an investment or an investor of the other
Contracting Party.
Ad Article 7 para 1 lit. c
It is understood that the Republic of Namibia may require prior
information by an investor on the maturity schedule of a loan in which case the
transfer of payments as foreseen in such schedule shall be ensured in
accordance with Article 7 (1).
For the
Republic of Austria: For
the Republic of Namibia:
Ernst
Strasser Saara
Kuugongelwa-Amadhila