A G R E E M E N T
between the Republic of Austria
and the Republic of Yemen
for
the Promotion and Protection of Investments
THE REPUBLIC OF
AUSTRIA AND THE REPUBLIC OF YEMEN
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)
any legal
person or entitiy 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;
(e) claims to money and
claims to performance pursuant to a contract having an economic value related
to an investment;
(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) "returns" means the amounts yielded by an investment
and, in particular, profits, interests, capital gains, dividends, royalties,
licence fees and other fees.
(4) "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.
ARTICLE 4
Transparency
(1) 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.
(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 and be calculated in
accordance with internationally accepted valuation principles taking into
account the case of delay of payment.
(b) be equivalent to the fair market value of
the expropriated investment immediately before the expropriation or the
impending expropriation has become publicly known, whichever is 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.
(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 6
Compensation for Losses
An investor of a
Contracting Party which 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.
ARTICLE 7
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 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
recognise 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
(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 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) A dispute between a Contracting Party and an
investor of the other Contracting Party, shall, if possible, be settled by
negotiation or consultation. If it is not so settled, the investor may 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 ("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) a sole arbitrator or 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.
(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. However, a dispute may not be
submitted to international arbitration if a local court in either Contracting
Party has rendered its decision on the dispute.
(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 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 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 shall be final and binding upon the parties
to the dispute.
(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:
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 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 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 23
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 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 and shall be automatically renewed thereafter for further
periods of ten years, unless one of the Contracting Parties notifies the other
in writing about its intention to the contrary, at least one year prior to the
expiration of the period of ten years in question.
(3) In respect of investments made prior to the
end of the validity 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 end of the validity of the present Agreement.
ARTICLE 28
Termination
After the end of the first period of ten years referred to in Article 27
(2) either Contracting Party may terminate the present Agreement by giving
notice at least six months before the end of each calendar year. Such
termination shall take effect at the end of the calendar year in question.