Treaty Between the United States of America and Jamaica
Concerning the Reciprocal Encouragement and Protection of Investment
The United States of America and Jamaica (hereinafter "the
Desiring to promote greater economic cooperation between them,
with respect to investment by nationals and companies of one Party
in the territory of the other Party;
Recognizing that agreement upon the treatment to be accorded such
investment will stimulate the flow of private capital and the
economic development of the Parties;
Agreeing that fair and equitable treatment of investment is desirable
in order to maintain a stable framework for investment and maximum
effective utilization of economic resources;
Recognizing that the development of economic and business ties
can contribute to the well-being of workers in both Parties and
promote respect for worker rights; and
Having resolved to conclude a Treaty concerning the reciprocal
encouragement and protection of investment;
Have agreed as follows:
1. For the purposes of this Treaty,
a) "investment" means every kind of investment
in the territory of one Party owned or controlled directly or
indirectly by nationals or companies of the other Party, such
as equity, debt, and service and investment contracts; and includes
(i) tangible and intangible property, including rights such
as mortgages, liens and pledges;
(ii) a company or shares of stock or other interests s in
a company assets thereof;
(iii) a claim to money or a claim to performance having economic
value, and associated with an investment;
(iv) intellectual property which includes, inter alia, rights
literary and artistic works, including sound recordings,
semiconductor mask works.
trade secrets and confidential business
trademarks, service marks, and trade names;
(v) any right conferred by law or contract, and any licenses and
permits pursuant to law.
b) "company" of a Party means any kind of corporation,
company, association, partnership, or other organization, legally
constituted under laws and
regulations of a Party or a political subdivision thereof whether
or not organized for pecuniary gain, or privately or governmentally
owned or controlled;
c) "national" of a Party means a natural person who
is a national of a Party under its applicable law;
d) "return" means an amount derived from or associated
with an investment, including profit; dividend; interest; capital
gain; royalty payment; management, technical assistance or other
fee; or returns in kind;
e) "associated activities" means the organization,
control, operation, maintenance and disposition of companies,
branches, agencies, offices, factories or other facilities for
the conduct of business; the making, performance and enforcement
of contracts; the acquisition, use, protection and disposition
of property of all kinds including intellectual property rights;
the borrowing of funds; the purchase, issuance, and sale of equity
shares and other securities; the purchase of foreign exchange
for imports; and other similar activities
2. Each Party reserves the right to deny to any company the
advantages of this Treaty if nationals of any third country control
such company and, in the case of a company of the other Party,
that company has no substantial business activities in the territory
of the other Party or is controlled by nationals of a third country
with which the denying Party does not maintain normal economic
3. Any alteration of the form in which assets are invested or
reinvested shall not affect their character as an investment.
a) Each Party shall permit and treat investments, and activities
associated therewith, on a basis no less favorable than that accorded
in like situations to investments or associated activities of
its own nationals or companies ("national treatment"),
or of nationals or companies of any third country ("most
favored nation treatment"), whichever is the most favorable,
subject to the right of each Party to make or maintain exceptions
falling within one of the sectors or matters listed in the Annex
to this Treaty. The treatment accorded investments and activities
associated therewith pursuant to any exceptions to national treatment
shall be that of most favored nation treatment, unless specified
otherwise in the Annex.
b) Each Party agrees to notify the other Party before or on the
date of entry into force of this Treaty of all such laws and regulations
of which it is aware concerning the sectors or matters listed
in the Annex. Moreover, each Party agrees to notify the other
of any future exception with respect to the sectors or matters
listed in the Annex, and to limit such exceptions to a minimum.
Any future exception by either Party shall not apply to investments
existing in that sector or matter at the time the exception
a) Investments shall at all times be accorded fair and equitable
treatment, shall enjoy full protection and security and shall
in no case be accorded treatment less than that required by international
b) Neither Party shall in any way impair, by unreasonable
or discriminatory measures the management, operation, maintenance,
use, enjoyment, acquisition, expansion, or disposal of investments.
c) Each Party shall observe any obligation it may have entered
into with regard to investments.
3. Subject to the laws of each Party relating to the entry,
sojourn and employment of aliens, nationals of either Party shall
be permitted to enter and to remain in the territory of the other
Party for the purpose of establishing, developing, administering
or advising on the operation of an investment to which they, or
a company of the first Party that employs them, have committed
or are in the process of committing a substantial amount of capital
or other resources.
4. Subject to the laws of each Party relating to entry, sojourn
and employment of aliens, companies which are legally constituted
under the applicable laws or regulations or one Party, and which
are investments, shall be permitted to engage top managerial personnel
of their choice, regardless of nationality.
5. Neither Party shall impose performance requirements as
a condition of establishment, expansion or maintenance of investments,
which require or enforce commitments to export goods produced,
or which specify that goods or services must be purchased locally,
or which impose any other similar requirements, provided, however,
that nothing in this paragraph shall preclude a Party from providing
benefits and incentives to investments which export a proportion
of the goods produced.
6. Each Party shall provide effective means of asserting claims
and enforcing rights with respect to investments, investment agreements,
and investment authorizations granted by a Party's foreign investment
7. Each Party shall make publicly available all laws, regulations,
administrative practices and procedures, and adjudicatory decisions
that pertain to or affect investments.
8. The treatment accorded by the United States of America
to investments and associated activities of nationals and companies
of Jamaica under the provisions of this Article shall in any
State, Territory or possession of the United States of America
be no less favorable than the treatment accorded therein to investments
and associated activities of nationals of the United States of
America resident in, and companies legally constituted under the
laws and regulations of, other States, Territories or possessions
of the United States of America.
9. The most favored nation provisions of this Agreement shall
not apply to advantages accorded by either Party to nationals
or companies of any third country by virtue of:
a) that Party's binding obligations that derive from full
membership in a free trade area or customs union, or from some
other relationship which satisfies the requirements for a free
trade area or customs union as set forth in Article XXIV of the
General Agreement on Tariffs and Trade; or
b) that Party's binding obligations under any multilateral
international agreement under the framework of the General Agreement
on Tariffs and Trade.
1. Investments shall not be expropriated or nationalized either
directly or indirectly through measures tantamount to expropriation
or nationalization ("expropriation") except for a public
purpose; in a nondiscriminatory manner; upon payment of prompt,
adequate and effective compensation; and in accordance with due
process of law and the general principles of treatment provided
for in Article II(2) Compensation shall be equivalent to the fair
market value of the expropriated investment immediately before
the expropriatory action was taken or was made known by
the authorities, whichever is earlier; be paid without delay;
include interest at a commercially reasonable rate from the date
of expropriation; be fully realizable; and be freely transferable
at the prevailing market rate of exchange on the date of expropriation.
The determination of fair market value shall no reflect any
change in the value of the investment attributable to the expropriatory
or to public knowledge of the expropriatory action before it was
taken or made known by the authorities.
2. A national or company of either Party that asserts that
all or part of its investment has been expropriated shall have
a right to prompt review by the appropriate judicial or administrative
authorities of the other Party to determine whether any such
expropriation, and any compensation therefor, conforms to the
provisions of this Treaty.
3. Nationals or companies of either Party whose investments
suffer losses in the territory of the other Party owing to war
or other armed conflict, revolution, state of national emergency,
insurrection, civil disturbance or other similar events shall
be accorded treatment by such other Party no less favorable than
that accorded to its own nationals or companies or to nationals
or companies of any third country, whichever is the most favorable
treatment, as regards any measures it adopts in relation to such
1. Each Party shall permit all transfers related to an investment
to be made freely and without delay into and out of its territory.
Such transfers include (a) returns; (b) compensation pursuant
to Article III; (c) payments arising out of an investment dispute;
(d) payments made under a contract, including amortization of
principal and accrued interest payments made pursuant to a loan
agreement; (e) proceeds from the sale or liquidation of all or
any part of an investment; and (f) additional contributions to
capital for the maintenance or development of an investment.
2. Except as provided in Article III paragraph 1, transfers shall
be made in a freely usable currency at the prevailing market rate
of exchange on the date of transfer with respect to spot transactions
in the currency to be transferred.
3. Notwithstanding the provisions of paragraphs 1 and 2, either
Party may maintain laws and regulations (a) requiring reports
of currency transfer; and (b) imposing income taxes by such means
as a withholding tax applicable to dividends or other transfers.
Furthermore, either Party may protect the rights of creditors,
or ensure the satisfaction of judgments in adjudicatory proceedings,
or prevent fraudulent transfers, through the equitable, nondiscriminatory
and good faith application of its law.
The Parties agree to consult promptly, on the request of either,
to resolve any disputes in connection with the Treaty, or to discuss
any matter relating to the interpretation or application of the
1. For purposes of this Article, an investment dispute is a dispute
between a Party and a national or company of the other Party arising
out of or relating to (a) an investment agreement between that
Party and such national or company; (b) an investment authorization
granted by that Party's foreign investment authority to such national
or company; or (c) an alleged breach of any right conferred
or created by this Treaty with respect to an investment.
2. In the event of an investment dispute, the parties to the
dispute should initially seek a resolution through consultation
and negotiation. If the dispute cannot be settled amicably, the
national or company concerned may choose to submit the dispute
a) to the courts
or administrative tribunals of the Party that is a party to the
b) in accordance with any applicable previously agreed disputesettlement
c) in accordance with the terms of paragraph 3.
A party which elects one of the three procedures mentioned in
this paragraph does so to the exclusion of the others.
a) Provided that the national or company concerned has
not submitted the dispute for resolution under paragraph 2 (a)
or (b) and that six months have elapsed from the date on which
the dispute arose, the national or company concerned may choose
to consent in writing to the submission of the dispute for settlement
by binding arbitration:
(i) to the International Centre for the Settlement of Investment
Disputes ("Centre") established by the Convention on
the Settlement of Investment Disputes between States and Nationals
of Other States, done at Washington, March 18, 1965 ("ICSID
Convention"), provided that the Party is a party to such
(ii) in accordance with the Arbitration Rules of the United
Nations Commission on International Trade Law; or
(iii) to any other arbitration institution, or in accordance with
any other arbitration rules, as may be mutually agreed between
the parties to the dispute.
b) Once the national or company concerned has so consented, either
party to the dispute may initiate arbitration in accordance with
the choice so specified in the consent.
4. Each Party hereby consents to the submission of any investment
dispute for settlement by binding arbitration in accordance with
the choice specified in the written consent of the national or
company under paragraph 3. Such consent, together with the written
consent of the national or company when given under paragraph
3 shall satisfy the requirement for written consent of the parties
to the dispute for purposes of Chapter II of the ICSID Convention
(Jurisdiction of the Centre).
5. Any arbitral award rendered pursuant to this Article shall
be final and binding on the parties to the dispute. Each Party
undertakes to carry out without delay the provisions of any such
award and to provide in its territory for its enforcement.
6. In any proceeding involving an investment dispute, a Party
shall not assert, as a defense, counterclaim, right of setoff
or otherwise, that the national or company concerned has received
or will receive, pursuant to an insurance or guarantee contract,
indemnification or other compensation for all or part of its alleged
7. For purposes of an arbitration held under paragraph 3 of
this Article, any company legally constituted under the applicable
laws and regulations of either Party or a political subdivision
hereof but that, immediately before the occurrence of the event
or events giving rise to the dispute, was an investment of nationals
or companies of the other Party, shall be treated as a national
or company of such other Party in accordance with Article 25(2)(b)
of the ICSID Convention.
8. As provided for in Article 27 of the Convention, neither
Party shall give diplomatic protection, or bring an international
claim, in respect of a dispute which one of its nationals or companies
has consented to submit to arbitration under the Convention, unless
the other Party which is party to the dispute shall have failed
to abide by and comply with the award rendered in such dispute.
Diplomatic protection, for the purposes of this paragraph, shall
not include informal diplomatic exchanges for the sole purpose
of facilitating a settlement of the dispute.
1. Any dispute between the Parties concerning the interpretation
or application of the Treaty which is not resolved through consultations
or other diplomatic channels, shall be submitted, upon the request
of either Party, to an arbitral tribunal for binding decision
in accordance with the applicable rules of international law.
In the absence of an agreement by the Parties to the contrary,
the arbitration rules of the United Nations Commission on International
Trade Law (UNCITRAL), except to the extent modified by the Parties
or by the arbitrators with the consent of the Parties, shall govern.
2. Within two months of receipt of a request, each Party shall
appoint an arbitrator. The two arbitrators shall select a third
arbitrator as Chairman, who is a national of a third State. The
UNCITRAL Rules for appointing members of three member panels shall
apply mutatis mutandis
to the appointment of the arbitral panel except
that the appointing authority referenced in those rules shall
be he Secretary General of the International Centre for the Settlement
of Investment Disputes.
3. Unless otherwise agreed, all submissions shall be made
and all hearings shall be completed within six months of the date
of selection of the third arbitrator, and the Tribunal shall render
its decisions within two months of the date of the final submissions
or the date of the closing of the hearings, whichever is later.
4. Expenses incurred by the Chairman, the other arbitrators,
and other costs of the proceedings shall be paid for equally by
The provisions of Article VI and VII shall not apply to a dispute
arising (a) under the export credit, guarantee or, insurance programs
of the Export-Import Bank of the United States, or (b) under other
official credit, guarantee or insurance arrangements pursuant
to which the Parties have atreed to other means of settling disputes.
This Treaty shall not derogate from:
a) laws and regulations, administrative practices or procedures,
or administrative or adjudicatory decisions of either Party;
b) international legal obligations; or
c) obligations assumed by either Party, including those contained
in an investment agreement or an investment authorization granted
by a Party's foreign investment authority,
that entitle investments or associated activities to treatment
more favorable than that accorded by this Treaty in like situations.
1. This Treaty shall not preclude the application by either
Party of measures necessary for the maintenance of public order,
the fulfillment of its obligations under the Chapter of the United
Nations with respect to the maintenance or restoration of international
peace or security, or the protection of its own essential security
2. This Treaty shall not preclude either Party from prescribing
special formalities in connection with the establishment of investments,
but such formalities shall not impair the substance of any of
the rights set forth in this Treaty.
1. With respect to its tax policies, each Party shall strive
to accord fairness and equity in the treatment of investments
of nationals and companies of the other Party.
2. Nevertheless, the provisions of this Treaty, and in particular
Articles VI and VII, shall apply to matters of taxation only with
respect to the following:
a) expropriation, pursuant to Article III;
b) transfers, pursuant to article IV; or
c) the observance and enforcement of terms of an investment agreement
or authorization as referred to in Article VI (1) (a) or (b),
to the extent they are not subject to the dispute settlement provisions
of a Convention for the avoidance of double taxation between the
two Parties, or have been raised under such settlement provisions
and are not resolved within a reasonable period of time.
This Treaty shall apply to the political subdivisions of the Parties.
1. This Treaty shall enter into force thirty days after the date
of exchange of instruments of ratification. It shall remain in
force for a period of ten years and shall continue in force unless
terminated in accordance with paragraph 2 of this Article. It
shall apply to investments existing at the time of entry into
force as well as to investments made or acquired thereafter.
2. Either Party may, by giving one year's written notice to
the other Party, terminate this Treaty at the end of the initial
ten year period or at any time thereafter.
3. With respect to investments made or acquired prior
to the date of termination of this Treaty and
to which this Treaty otherwise applies, the provisions of all
of the other Articles of this Treaty shall thereafter continue
to be effective for a further period of ten years from such date
4. The Annex and Protocol shall form an integral part of the
IN WITNESS WHEREOF, the respective plenipotentiaries have signed
DONE in duplicate at Washington on the fourth day of February,
1994, in the English language.
FOR THE UNITED STATES OF AMERICA:
1. The United States reserves the right to make or maintain
limited exceptions to national treatment, as provided in Article
II, paragraph 1, in the sectors or matters it has indicated
air transportation; ocean and coastal shipping; banking; insurance;
government grants; government insurance and loan programs; energy
and power production; customhouse brokers; ownership of real property;
ownership and operation of broadcast or common carrier radio and
television stations; ownership of
shares in the Communications Satellite Corporation;
the provision of common carrier telephone and telegraph services;
the provision of submarine cable services; use of land and natural
resources; mining on the public domain; maritime services and
maritime related services; and primary dealership in United Stales
2. The United States reserves the right to make or maintain
limited exceptions to most favored nation treatment, as provided
in Article II, paragraph 1, in the sectors or matters it has indicated
ownership of real property; mining on the public domain; maritime
services and maritime related services; and primary dealership
in United States government: securities.
3. Jamaica reserves the right to make or maintain limited exceptions
to national treatment, as provided in Article II, paragraph 1
in the sectors or matters it has indicated below:
civil aviation; real estate; banking; shipping; communications
(including postal and telegraph services, and broadcasting); mining
and natural resources; government grants and other assistance
to small-scale enterprises with total assets of U.S. $50,000 or
less; customs brokerages; car rental; real estate agencies; travel
agencies; gaming; betting and lotteries.
4. Jamaica reserves the right to make or maintain limited
exceptions to most favored nation treatment, as provided in Article
II, paragraph 1, in the sectors or matters it has indicated below:
1. The Parties understand that the term "regulations"
in Article II(l)(b) includes, where appropriate, the provisions
of a treaty to which one of the Parties has adhered.
2. With respect to Article II(4), neither Party shall apply
its laws and regulations to require that its nationals be engaged
as top managerial personnel by investments.
3. If the foreign exchange reserves of Jamaica do not permit
the transfer of the proceeds of the sale or of the liquidation
of all or part of an investment as provided for in Article IV(l)(e),
Jamaica shall allow the transfer of such proceeds to take place
over a period not to exceed three years from the date the transfer
is requested and shall guarantee the availability of at least
one-third of the necessary freely usable currency during each of
the first two years of the three year period. With respect to
such transfers, Jamaica shall treat nationals and companies of
the United States no less favorably than it treats nationals or
companies of any third country. Jamaica shall ensure that the
national or company has an opportunity to invest the proceeds
of sale or liquidation in a manner designed to preserve its value
until the transfer occurs. Pursuant to Article V of this
Treaty, and without prejudice to the procedures set forth in
Article VI and VII, the two Parties agree to consult at the request
of either one of them concerning the implementation of Article
IV and of this paragraph.