AGREEMENT FOR THE RECIPROCAL PROMOTION AND PROTECTION OF INVESTMENTS BETWEEN THE UNITED MEXICAN STATES AND THE KINGDOM OF SPAIN

Transcription

1 AGREEMENT FOR THE RECIPROCAL PROMOTION AND PROTECTION OF INVESTMENTS BETWEEN THE UNITED MEXICAN STATES AND THE KINGDOM OF SPAIN The Mexican United States and the Kingdom of Spain, hereinafter The Contracting Parties, DESIRING to intensify the economic cooperation for the mutual benefit of both countries; PROPOSING to create favourable conditions for investments made by investors a Contracting Party in the territory of the other; and RECOGNIZING that the promotion and protection of investment under this Agreement encourages initiatives in this field, Have agreed as follows: CHAPTER I: GENERAL PROVISIONS For purposes of this Agreement, the term: Article I DEFINITIONS 1. ICSID means the International Centre for the Settlement of Investment Disputes; 2. ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States; 3. New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards; 4. Investment means, among others, the following assets owned or controlled by investors of one Contracting Party and established in the territory of the other Contracting Party in accordance with the laws of the latter: a) an enterprise; b) shares, equity and other forms of participation in the capital of an enterprise; c) debt securities of an enterprise (i) (ii) when the enterprise is an affiliate of the investor, or when the original maturity of the debt instrument is at least three years, but does not include a debt security of a Contracting Party or a state enterprise, regardless of its original maturity; - 1 -

2 d) a loan to an enterprise (i) (ii) when the enterprise is an affiliate of the investor, or when the due date [term] of the original loan is at least three years, but does not include a loan to a Contracting Party or a state enterprise, regardless of the original maturity date; e) movable or immovable assets, as well as mortgages, pledged rights, usufruct or other tangible or intangible property, including intellectual and industrial property, acquired or used for economic activities or other business objectives; f) rights acquired through contributions of capital or other resources in the territory of a Contracting Party for the purpose of conducting an economic activity in the territory of the other Contracting Party, including, those derived from a contract or a concession; Excluded from this definition are claims to money that arise solely from: (i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Contracting Party to an enterprise in the territory of the other Contracting Party; or (ii) the extension of credit in connection with a commercial transaction, such as trade financing, except a loan covered under subparagraph d); 5. Investors mean: a) physical persons who hold the nationality of a Contracting Party pursuant to its legislation; or b) enterprises, understanding as such, juridical persons including companies, joint ventures, trading companies, branches and other organizations constituted, or otherwise dully organized under the laws of a Contracting Party, with headquarters located in the territory of that Contracting Party; That have made an investment in the territory of the other Contracting Party. 6. Territory means, the land territory, the interior territorial waters and territorial sea of each Contracting Party, as well as the exclusive economic area and the continental platform extending beyond the limits of the territorial sea of each Contracting Party, over which they have or may have jurisdiction or sovereign rights in accordance with international law; 7. UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law

3 Article II PROMOTION AND ADMISSION 1. Each Contracting Party will allow investments made by investors of the other Contracting Party in accordance with their legal provisions; 2. In order to promote the reciprocal flow of investments, the Contracting Parties will exchange information that facilitates knowledge of investment conditions and opportunities in their territories. CHAPTER II: INVESTMENT PROTECTION Article III NATIONAL TREATMENT AND MOST FAVOURED NATION TREATMENT 1. Each Contracting Party will accord in its territory to investments of investors of the other Contracting Party treatment no less favourable than it accords, in like circumstances, to investments of its own investors or to investments of investors of any third state, whichever is the most favourable for the investor; 2. Each Contracting Party will accord to investors of the other Contracting Party with respect to the management, maintenance, use, enjoyment and sale or, in its case, the liquidation of investments made in its territory, treatment no less favourable than it accords, in like circumstances, to its own investors or investors of any third state, whichever is the most favourable for the investor. 3. The treatment accorded by virtue of foregoing paragraphs 1 and 2 will not be interpreted as to oblige any of the Contracting Parties to extend to investors of the other Contracting Party and to their investments, the benefits of any treatment, preference or privilege arising from: a) its present or future association or participation in a free trade zone, customs economic or currency union or any other form of economic regional organization or international agreement of similar characteristics, or b) any international agreement totally or partially related to taxation or any other national law or provisions totally or partially related to taxation. Article IV MINIMUM STANDARD OF TREATMENT 1. Each Contracting Party will accord investments of investors of the other Contracting Party, treatment in accordance with customary international law, including fair and equitable treatment, as well as full protection and security. 2. A ruling in the sense that another provision in this Agreement or in another international agreement has been violated does not establish that this Article has been violated

4 Article V NATIONALIZATION AND EXPROPRIATION 1. Neither Contracting Party will expropriate or nationalize investments of investors of the other Contracting Party either directly or indirectly by means of measures equivalent to an expropriation or nationalization ( expropriation ), unless it is: a) for a public purpose; b) on a non-discriminatory basis; c) in accordance with due process of law; and d) on payment of compensation in accordance with the following paragraph 2; 2. Compensation: a) will be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place. The fair market value will not reflect any change in value due to the fact that the expropriation was publicly known in advance. Valuation criteria will include going concern value, asset value, including the declared tax value of tangible goods, as well as other appropriate criteria to determine the fair market value. b) will be paid without delay; c) will include interest at a reasonable commercial rate for the currency in which payment is made [calculated] from the date of expropriation until the date of payment; d) will be fully payable and freely transferable. 3. The affected investor will have the right, in accordance with the law of the Contracting Party that performs the expropriation, to the prompt review of its case by the judicial authority or other competent authority that is independent of said Contracting Party in order to determine whether the expropriation and valuation of its investment have been adopted in accordance with the principles established in this Article. Article VI DAMAGES Investors of a Contracting Party whose investments in the territory of the other Contracting Party suffer damages due to war, other armed conflicts, a state of national emergency, rebellion or riot, or other similar circumstances, will be accorded, in terms of restitution, indemnification, compensation or other agreement, treatment no less favourable than that accorded to its own investors and investors of any third state

5 Article VII TRANSFERS 1. Each Contracting Party will ensure that all transfers related to an investment of an investor of the other Contracting Party are made freely and without delay. Transfers will be made in a freely convertible currency, at the prevailing exchange rate in the market on the date of the transfer. Said transfers will include: a) profits, dividends, interest, capital gains, royalties management payments, technical assistance payments and other remunerations, as well as other sums arising from the investment; b) products arising from the total or partial sale of the investment, or total or partial liquidation of the investment; c) payments made pursuant to a contract to which the investor or its investment is a party, including those made pursuant to a loan agreement; d) payments arising from an indemnity for expropriation or compensation for losses; and e) payments arising from the application of provisions related to the settlement of disputes. 2. Notwithstanding the foregoing paragraph, a Contracting Party may impede a transfer through the non-discriminatory and good faith enforcement of its laws in the following cases: a) bankruptcy, insolvency or creditor protection; b) issuance, trade or operations involving securities; c) criminal or administrative violations; d) reports concerning currency transfers or other monetary instruments; or e) guarantee bonds for the compliance with rulings in contentious proceedings. 3. In the event of a fundamental imbalance or a threat to its balance of payments, a Contracting Party may temporarily restrict transfers, provided that said Contracting Party implements a programme or measures that comply with international standards. These restrictions would have to be imposed on an equitable and non-discriminatory basis and in good faith. Article VIII SUBROGATION In the event that a Contracting Party or the entity appointed by it, grants any kind of financial guarantee regarding non-commercial risks in relation to an investment made by its investors in the territory of the other Contracting Party, and from the moment in which the first - 5 -

6 Contracting Party or its appointed entity performs any payment against the guarantee offered, the first Contracting Party or its appointed entity will be the direct beneficiaries of all kinds of payments that the investor may receive. In the event of a dispute, only the investor may initiate or participate in the proceedings before the national tribunals or submit a claim to international arbitral tribunals pursuant to Chapter III. CHATPER III: DISPUTE SETTLEMENT SECTION FIRST: DISPUTES BETWEEN A CONTRACTING PARTY AND INVESTORS OF THE OTHER CONTRACTING PARTY Article IX NOTICE AND CONSULTATIONS 1. All disputes arising between a Contracting Party and an investor of the other Contracting Party arising from an alleged violation of an obligations established in this Agreement will be notified in writing by the investor to the Contracting Party that is the recipient of the investment. Insofar as it is possible, the parties to the dispute will endeavour to resolve their differences through an amicable agreement. 2. The notice of intent will specify: a) The name and address of the disputing investor and, when the claim is being brought on behalf of an enterprise pursuant to Article X, the name and address of the enterprise; b) The provisions of this Agreement that were allegedly breached, as well as any other applicable provision; c) A summary explanation of the issues of fact and law that form the basis of the claim; and d) The reparation sought and the approximate amount of damages claimed. The notice of intent will be filed together with the documentation necessary to establish the identity of the disputing investor and, if necessary, the identity of the enterprise. Likewise, the power of attorney of the disputing investor s legal representative, or the document demonstrating that he can act on behalf of the disputing investor, must be filed should it become necessary. 3. If the dispute cannot be resolved in this manner within a six month period commencing on the filing date of the written notice of intent referred to in paragraph 1 above, it will be submitted to dispute settlement under this Section

7 Article X OBJECTIVE, SCOPE AND TERMS 1. The investor that alleges before any judicial or administrative tribunal that the Contracting Party has breached an obligation established in this Agreement will not be able to submit a claim under this Section. Neither will the investor be able to submit a claim on behalf of an enterprise under this Section, if the latter alleges before any judicial or administrative tribunal that the Contracting Party has breached an obligation established in this Agreement. 2. An enterprise established pursuant to the legislation of a Contracting Party may not submit a claim to arbitration against that same Contracting Party. 3. An investor of a Contracting Party may, on its own behalf or on behalf of an enterprise it directly or indirectly owns or controls, submit a claim to arbitration alleging that the other Contracting Party has breached an obligation established in this Agreement, provided that the investor or its investment has suffered losses or damages by virtue of the alleged violation or as a consequence thereof. 4. An investor of a Contracting Party may not submit a claim under this Section if more than three years have elapsed from the date in which the investor first acquired, or should have first acquired, knowledge of the alleged breach, as well as the losses or damages suffered. 5. A disputing investor may submit a claim to arbitration only if: a) the investor consents to arbitration in accordance with the procedures established in this Section; and b) the investor waives the right to initiate or continue any proceedings before a judicial or administrative tribunal under the law of a Contracting Party, or any other dispute settlement proceedings with respect to the measure by the disputing Contracting Party that is allegedly in breach of an obligation under this Agreement, with the exception of proceedings before judicial or administrative tribunals under the law of a Contracting Party that seek the application of precautionary measures of a suspensive, declaratory or extraordinary nature that do not involve damages. When the claim refers to the loss or damages to a participation in an enterprise of the other Contracting Party that is a juridical person owned or controlled by the investor, the enterprise will also file said waiver. 6. A disputing investor may submit a claim to arbitration on behalf of an enterprise of the other Contracting Party that is a juridical person owned or controlled by the investor only if both the investor and the enterprise: a) consent to arbitration in accordance with the procedures established in this Section; and b) they waive the right to initiate or continue any proceedings before a judicial or administrative tribunal under the law of a Contracting Party, or any other dispute settlement proceedings with respect to the measure by the disputing Contracting Party that is allegedly in breach of an obligation under this Agreement, with the - 7 -

8 exception of proceedings before judicial or administrative tribunals under the law of a Contracting Party that seek the application of precautionary measures of a suspensive, declaratory or extraordinary nature that do not involve damages. 7. The consent and waiver required under this Article must be in writing, served to the disputing Contracting Party and included with the submission of the claim to arbitration. Article XI SUBMISSION TO ARBITRATION 1. Provided that six months have elapsed from the date of filing of the notice of intent to which Article IX refers, the investor may submit a claim to arbitration with accordance with: a) The ICSID Convention, provided that both Contracting Parties are member states; b) ICSID Additional Facility Rules, when one of the Contracting Parties, but not both, is a member State of the ICSID Convention; c) UNCITRAL Arbitration Rules; or d) Any other arbitration rules as agreed by the disputing parties. 2. The ICSID Convention or the cited rules will govern the arbitration, except as and to the extent they are modified in this Section. Article XII CONSENT 3. Each Contracting Party, will grant its unconditional consent to submit a dispute to international arbitration in accordance with the procedures established in this Section. 4. The consent to which the foregoing paragraph 1 refers and the submission of a claim to arbitration by a disputing investor must meet the requirements established in: a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID the Additional Facility Rules, which require written consent of the parties; and b) Article II of the New York Convention, which requires an agreement in writing. Article XIII NUMBER OF ARBITRATORS AND METHOD OF APPOINTMENT 1. The tribunal will be comprised of three arbitrators, unless the disputing parties otherwise agree on any other uneven number of arbitrators. Each of the disputing parties will appoint an arbitrator; the third arbitrator, who will preside over the arbitral tribunal, will be appointed by agreement of the disputing parties. 2. The arbitrators appointed under this Article, must have experience in international law and investment matters

9 3. If a tribunal under this Article cannot be constituted within 90 days of the date in which the claim was submitted to arbitration, either because a Contracting Party fails to appoint an arbitrator, or because the disputing parties fail to reach an agreement on the appointment of the presiding arbitrator, the ICSID Secretary-General, upon request by any of the disputing parties, will appoint the arbitrator or arbitrators that remain to be appointed exercising his own criteria. Notwithstanding the foregoing, when appointing the president of the tribunal, the ICSID Secretary-General shall ensure that the president is not a national of the Contracting Party or a national of the Contracting Party of the disputing investor. Article XIV CONSOLIDATION OF CLAIMS 1. Claims may be consolidated in the following cases: a) when a disputing investor files a claim on behalf of an enterprise under its direct or indirect control and, simultaneously, a non-controlling investor or investors participating in the same enterprise file a claim on their own behalf arising from the same breaches; or b) when two or more claims are submitted to arbitration arguing common questions of fact and law. 2. A disputing party seeking consolidation will request the Secretary-General of ICSID to establish a tribunal, and will specify in its request: a) the name of the Contracting Party or the disputing investors against which the consolidation order is sought; b) the nature of the requested consolidation order; and c) the basis for the request. 3. The consolidation tribunal will be established under the UNCITRAL Arbitration Rules and will proceed as contemplated in said rules, except as otherwise provided in this Section. 4. The consolidation tribunal will decide the issue of jurisdiction over the claims and will jointly examine such claims, unless it determines that the interests of any of the disputing parties would be injured. 5. If the consolidation tribunal determines that the proceedings or the claims submitted to arbitration pursuant to Title Third have common questions of fact or law, said tribunal, in the interest of arriving at a fair and efficient resolution, and having heard the disputing parties, may assume jurisdiction and decide: a) all or part of the claims jointly; or b) one or more claims from said proceedings on the basis that they contribute to the resolution of the others. 6. Within 60 days from the date of filing of the request, the ICSID Secretary-General, having heard the disputing parties against which the consolidation order is being sought, will - 9 -

10 establish a tribunal comprising three arbitrators. One arbitrator will be a national of the disputing Contracting Party; another will be a national of the Contracting Party of the disputing investors. A third arbitrator, who will preside over the tribunal, will not be a national of either Contracting Parties. Nothing in this paragraph will prevent the disputing investors and the Contracting Party from appointing the members of the tribunal pursuant to a special agreement. Article XV APPLICABLE LAW 1. Any tribunal established pursuant to this Appendix will decide all the disputes that are submitted to its consideration in conformity with the provisions in this Agreement and applicable rules of international law. 2. A joint interpretation by the Contracting Parties concerning a provision in this Agreement, will be binding for any tribunal established thereto. Article XVI FINAL AWARD 1. When a tribunal established pursuant to this Section issues an award that is unfavourable to a Contracting Party, the tribunal may only order, jointly or separately: a) payment of monetary damages and, as the case may be, the corresponding interest; b) restitution of the property, in which case, the award will indicate that the Contracting Party may opt to pay monetary damages, plus the corresponding interests, in lieu of restitution. 2. When the claim is filed by an investor on behalf of an enterprise: a) the award for monetary damages and, as the case may be, the corresponding interest, will determine the amount of money that will be paid to the enterprise; b) the award providing for restitution will provide that restitution be given to the enterprise. 3. The award will be issued without prejudice to the legal rights of any person to reparation in accordance with applicable local legislation. 4. The arbitral award will be public. Article XVII ENFORCEMENT OF THE AWARD 1. An award issued by any tribunal established under this Agreement shall be mandatory only for the disputing parties and only in regard to a particular case. 2. The disputing parties will obey and comply with the award without delay

11 3. The corresponding Contracting Party will provide for the appropriate enforcement of the award in its territory. 4. The disputing investor may petition the enforcement of an arbitral award under the ICSID Convention or under the New York Convention. 5. For the purposes of Article I of the New York Convention, the claim submitted to arbitration under this agreement will be considered as emerging from a commercial relation or operation. Article XVIII PAYMENTS PURSUANT TO INSURANCE CONTRACTS OR GUARANTEES In an arbitral proceeding established under this Section, a Contracting Party may not submit as a defence, counterclaim, right for compensation or otherwise, that the disputing investor has received or will receive partial or full compensation for damages suffered from an insurance contract or guarantee agreement. SECTION SECOND: DISPUTES BETWEEN THE CONTRACTING PARTIES Article XIX DISPUTES BETWEEN THE CONTRACTING PARTIES 1. Any dispute between the Contracting Parties in regards to the interpretation or enforcement of this Agreement will be resolved, insofar as possible, by amicable agreement. 2. If the dispute cannot be resolved in this manner within a period of six months from the commencement of negotiations it will be submitted to an arbitration tribunal, upon request of any of the two Contracting Parties,. 3. The arbitral tribunal will be constituted as follows: each Contracting Party will appoint an arbitrator, and these two arbitrators in turn will appoint a citizen from a third country as president of the tribunal. The arbitrators will be appointed within a period of three months, and the president within five months from the date in which any of the two Contracting Parties informs the other Contracting Party of its intention to submit the dispute to an arbitral tribunal. 4. If one of the Contracting Parties fails to designate its arbitrator within the established time frame, the other Contracting Party may request the President of the International Court of Justice to make the appointment. In the event that the two arbitrators fail to reach an agreement regarding the appointment of the third arbitrator within the established period of time, any Contracting Party may request the President of the International Court of Justice to make the appointment. 5. If, in the cases mentioned in paragraph 4 of this Article, the President of the Supreme Court of Justice cannot perform said task, or is a national of any of the Contracting Parties, the Vice-president shall be called to make the appropriate appointments. If the Vice-president cannot perform such task, or is a national of any of the Contracting Parties, the appointments will be performed by the most senior member of the above-mentioned Court who is not a national of any of the Contracting Parties

12 6. The arbitral tribunal established pursuant to this Section will render its award in accordance with this Agreement, as well as applicable rules and principles of International Law. 7. Unless the Contracting Parties decide otherwise, the tribunal will establish its own procedure. 8. The tribunal will adopt its decision by majority of votes and it will final and binding to both Contracting Parties. 9. Each Contracting Party will cover the expenses of the arbitrator it appoints and those related to their legal counsel during the arbitral proceedings. Both Contracting Parties will share equally in the rest of the expenses, including the President s expenses. CHAPTER IV: FINAL PROVISIONS Article XX OTHER OBLIGATIONS If the obligations derived from an international treaty to which both Contracting Parties are parties contain provisions mandating treatment no less favourable than that provided under this Agreement to investors and investments of investors of the other Contracting Party, said provisions will prevail over this Agreement insofar as they are more favourable. Article XXI SCOPE OF APPLICATION This Agreement will also apply to investments made before its entry into force by investors of a Contracting Party in accordance with the laws of the other Contracting Party in the territory of the latter. Article XXII ENTRY INTO FORCE 1. Each Contracting Party will notify the other in writing and through diplomatic means, the fulfilment of the constitutional requisites relating to the approval and entry into force of this Agreement. 2. This Agreement will enter into force 30 days after the last of the two notifications to which the foregoing paragraph 1 refers. Article XXIII DURATION AND TERMINATION This Agreement will be valid for 10 years. After that, it will remain in force until the expiration of a 12-month period following the date in which one of the Contracting Parties notifies the other in writing of its intention to terminate the Agreement. The provisions in this Agreement will remain in force with respect to investments made while the Agreement was valid

13 for a period of 10 years commencing on the date of termination and without prejudice to the subsequent application of general rules of international law. Article XXIV ABROGATION Upon entry into force, this Agreement substitutes and abrogates the Agreement for the Reciprocal Promotion and Protection of Investments between the Untied Mexican States and the Kingdom of Spain that entered into force on 18 December Notwithstanding the above, a claim submitted to arbitration before the entry into force of this Agreement shall be resolved pursuant to the previous Agreement. Done in Mexico City on 10 October 2006, in two original copies in Spanish, both texts being equally valid.- By the United Mexican States: The Secretary of the Economy, Sergio Alejandro García de Alba Zepeda.- Signature.- For the Kingdom of Spain: The Secretary of Turism and Commerce, Pedro Mejía Gómez.- Signature