Treaty between the Government of the United States of America and the Government of the Republic of Trinidad
concerning the Encouragement and Reciprocal Protection of Investments
The Government of the United States of America and the Government of the Republic of Trinidad and Tobago (hereinafter referred to collectively) as "the Parties" and individually as "the Party";
Desiring to promote greater economic co-operation 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 a stable framework for investment will maximize effective utilization of economic resources and improve living standards:
Recognizing that the development of economic and business ties can promote respect for internationally recognized worker rights;
Agreeing that these objectives can be achieved without relaxing health, safety and environmental measures of general application;
Respecting the sovereignty and the laws of the Party within whose jurisdiction the investment falls; and
Having resolved to conclude a treaty concerning the Encouragement and Reciprocal Protection of investment
HAVE AGREED AS FOLLOWS:
ARTICLE I: Definitions
For the Purposes of this Treaty,
"Company" of a Party means any entity constituted or organized under the laws of that Party whether or not for profit, and whether privately or governmentally owned or controlled, and includes a corporation, trust, partnership, sole proprietorship, branch, joint venture, association, or other organization;
- "National" of a Party means a natural person who is a national of that Party under its applicable law;
- "Investment" of a national or company means every kind of investment owned or controlled directly or indirectly by that national or company, and includes consisting or taking the form of:
- Shares, stock, and other forms participation, and bonds, debentures, forms of debt interests, in a company;
- Contractual rights, such as under turnkey, construction or management contracts, production or revenue-sharing contracts, concessions, or other similar contracts;
- Tangible property and intangible property, including rights, such as mortgages, liens and pledges:
- Intellectual property, including:
Copyrights and related rights,
Rights in semi-conductor layout designs,
Trade secrets, including know-how and confidential business information,
Trade and Service marks, and
Trade names; and
- Rights conferred pursuant to law, such as licenses and permits;
"Covered Investment" means an investment of a national or company of a Party in the territory of the other Party;
- "State Enterprise" means a company owned or controlled through ownership interests, by a Party;
- "Investment Authorization" means an authorization granted by the foreign investment authority of a Party to a covered investment or a national or company of the other Party;
- "Investment Agreement" means a written agreement between the national authorities of a Party and a national or company of the other Party that:
Grants rights with respect to natural resources or other assets controlled by the national authorities; and
- Is relied upon by the national or company in establishing or acquiring a covered investment.
- "Territory" means the territory of each Contracting Party, as well as the maritime area of each Contracting Party, hereinafter defined as the exclusive economic zone and the continental shelf outwards the territorial sea of each Contracting Party over which they have in accordance with international Law sovereign rights and a jurisdiction with respect to the exploration, exploitation, conservation and management of the resources.
ARTICLE II: National and Most Favoured Nation Treatment
- With respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of covered investments, each Party shall accord treatment no less favourable than that it accords, in like situations, to investments in its territory of its own nationals or companies (hereinafter referred to as "National Treatment"'), or to investments in its territory of nationals or companies of a third country (hereinafter referred to as "Most Favoured Nation Treatment"), whichever is more favourable. Each Party shall ensure that its state enterprises, in the provision of their goods or services, accord national or more favoured nation treatment to covered investments whichever is more favourable.
- A Party may adopt or maintain exceptions to the obligations of paragraph I in the sectors or with respect to the matters specified in the Annex to this Treaty. In an exception, a Party may not require the divestment, in whole or in part, of covered investments existing at the time the exception becomes effective.
- The obligations of paragraph I do not apply to procedures provided in multilateral agreements concluded under the auspices of the World Intellectual Property Organization relating to the acquisition or maintenance of intellectual property rights.
- Such treatment shall not relate to privileges which either Party accords to nationals or companies of third states on account of its membership of, or association with, a customs or economic union, a common market or a free trade area.
- The treatment granted under this Article shall not relate to advantages which either Party accords to nationals or companies of third States by virtue of a double taxation agreement or other agreements regarding matters of taxation or any domestic legislation relating wholly or mainly to taxation.
- The treatment granted under this Article shall not relate to measures accorded the Government of the Republic of Trinidad and Tobago only to its nationals or companies within the framework of its development policy.
ARTICLE III: Protection of Investments
- Each Party shall at all times accord to covered investments fair and equitable treatment and full protection and security, and shall in no case accord treatment less favourable than that required by international law.
- Neither Party shall in any way impair by unreasonable and discriminatory measures the management, conduct, operation, and sale or other disposition of covered investments.
- Each Party shall provide effective means of asserting. Claims and enforcing rights with respect to covered investments.
- Each Party shall ensure that its laws, regulations, administrative practices and procedures of general application, and adjudicatory decisions, that pertain to or affect covered investments are promptly published or otherwise made publicly available.
ARTICLE IV: Expropriation
- Neither Party shall expropriate or nationalize a covered investment either directly or indirectly through measures tantamount to expropriation or nationalization (hereinafter referred to as "Expropriation") except for a public purpose: in a non-discriminatory 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 III (i).
Compensation shall be paid without delay and be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known, whichever is earlier; and be fully realizable and freely transferable. The fair market value shall not reflect any change in value occurring because the expropriatory action had become known before the date of expropriation.
- If the fair market value is denominated in a freely usable currency, the compensation paid shall be no less than the fair market value on the date of expropriation, plus interest at the normal commercial rate for that currency, accrued from the date of expropriation until the date of payment.
- If the fair market value is denominated in a currency that is not freely usable, the compensation paid shall be no less than:
- The fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing at that date; plus
- Interest, at the normal commercial rate for that freely usable currency, accrued from the date of expropriation until the date of payment.
converted into, the currency of payment at the market rate of exchange prevailing on the date of payment.
ARTICLE V: Compensation for Losses
- Each Party shall accord national or most favoured nation treatment whichever is more favorable to covered investments as regards any measure relating to losses that such investments suffer in its territory owing to war or other armed conflict, revolution, state of national emergency, insurrection, civil disturbance, or similar events.
- Each Party shall accord restitution, or pay compensation in accordance with paragraphs 2 through 4 of Article IV, in the event that covered investments suffer losses in its territory, owing to war or other armed conflict, revolution, state of national emergency, insurrection, civil disturbance, or similar events, that result from:
- Requisitioning of all or part of such investments by the Party's forces or authorities; or
- Destruction of all or part of such investments by the Party's forces or authorities that was not required by the necessity of the situation.
ARTICLE VI: Transfers
- Each Party shall permit all transfers relating to a covered investment to be made freely and without delay into and out of its territory. Such transfers include:
- Contributions to capital;
- Profits, dividends, capital gains, and proceeds from the sale of all or any part of the investment or from the partial or complete liquidation of the investment;
- Interest, royalty payments, management fees, technical assistance and other fees;
- Payments made under a contract, including a loan agreement; and
- Compensation pursuant to Articles IV and V and payments arising out of an investment dispute.
- Each Party shall permit transfers to be made in a freely usable currency at the market rate of exchange prevailing, on the date of transfer.
- Each Party shall permit returns in kind to be made as authorized or specified in an investment authorization, investment agreement, or other written agreement between the Party and a national or company of the other Party.
- Notwithstanding paragraphs I through 3, a Party may prevent a transfer through the equitable, non-discriminatory and good faith application of its laws relating to:
- Bankruptcy, insolvency or the protection of the rights of creditors;
- Issuing, trading or dealing in securities;
- Criminal or penal offenses; or
- Ensuring compliance with orders or judgements in adjudicatory proceedings.
ARTICLE VII: Performance Requirements
Neither Party shall mandate or enforce, as a condition for the establishment, acquisition, expansion, management, conduct or operation of a covered investment, any requirement (including any commitment or undertaking in connection with the receipt of a governmental permission or authorization).
- To achieve a particular level content or to purchase, use with the receipt of a or percentage of local content or to purchase, use or otherwise give a preference to products or services of domestic origin or from any domestic source;
- To limit imports by the investment of products or services in relation to a particular volume or value of production, exports or foreign exchange earnings;
- To export a particular type, level or percentage of products or services, either generally or to a specific market region;
- To limit sales by the investment of products or services in the Party's territory in relation to a particular volume or value of production, exports or foreign exchange earnings, except for investments admitted under the provisions of any legislation governing a Free Zone regime.
- To transfer technology, a production process or other proprietary knowledge to a national or company in the Party's territory, except pursuant to an order, commitment or undertaking that is enforced by a court, administrative tribunal or competition authority to remedy an alleged or adjudicated violation of competition laws; or
- To carry out a particular type, level or percentage of research and development in the Party's territory.
Nothing in this paragraph shall preclude a Party from providing benefits and incentives to investments in order to encourage the observance of any performance requirements including those listed at sub-paragraphs (a) to (f) herein.
ARTICLE VIII: Entry, Sojourn and Employment of Aliens
- Subject to its laws relating to the entry, sojourn and employment of aliens, each Party shall permit to enter and to remain in its territory nationals 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 other Party that employs them, have committed or are in the process of committing a substantial amount of capital or other resources.
- Neither Party shall, in granting entry under sub-paragraph (a), require a labor certification test or other procedures of similar effect.
- In respect of covered investments each Party shall permit a national or company of the other party to engage top managerial personnel of its choice, regardless of nationality.
ARTICLE IX: Settlement of Disputes Between a National or Company and a Host State
- For purposes of this Treaty, an investment dispute is a dispute between a Party and a national or company of the other Party arising out of or relating to any investment authorization, investment agreement or alleged breach of any right conferred, created or recognized by this Treaty with respect to a covered investment.
- Investment disputes should as far as possible be settled amicably, after consultation by the parties to the dispute.
- A national or company that is a Party to an investment dispute may submit the dispute for resolution under one of the following alternatives:
- To the courts or administrative tribunals of the Party that is a Party to the dispute; or
- In accordance with any applicable and previously agreed dispute settlement procedures; or
- In accordance with the terms of paragraph 3 below.
Where an investor has submitted a dispute for settlement in accordance with sub-paragraph (a), (b) or (c) above, the choice shall be final.
- Provided that the national or company concerned has not submitted the dispute for resolution under sub-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 submit the dispute for settlement by binding arbitration:
- To the International Centre for the Settlement of Investment Disputes (herein after referred to as "the centre") having regard to the provisions, where applicable, of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States done at Washington on March 18, 1965; or
- An Arbitral Tribunal established in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL); or
- If agreed by both parties to the dispute, to any other arbitration institution or in accordance with any other arbitration rules.
A national or company, notwithstanding that submitted a dispute to binding arbitration paragraph 3(a) may seek Interim injunctive under sub-paragraph 3(a) may seek interim injunctive relief, not involving the payment of damages, before the judicial or administrative tribunals of the Party that is a Party to the dispute, prior to the institution of the arbitral proceeding or during the proceeding, for the preservation of its rights and interests.
- Any arbitration under sub-paragraph 3(a) (i), (ii), or (iii) shall be held in a State that is a Party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958.
- Any arbitral award rendered pursuant to this Article shall be final and binding on the parties to the dispute. Each Party shall carry out without delay the provisions of any such award and provide in its territory for the enforcement of such award.
- In any proceeding involving an investment dispute, a Party shall not assert, as a defense, counterclaim, 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 by a national or company of the other Party pursuant to an insurance or guarantee contract.
ARTICLE X: Settlement of Disputes Between the Parties
- Any dispute between the Parties concerning the interpretation or application of the treaty, should, if possible, be resolved through consultations or other diplomatic channels. If the dispute has not been resolved within a period of six months from the date it was raised, it 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 UNCITRAL arbitration rules shall govern, except to the extent these rules are (a) modified by the Parties or (b) modified by the arbitrators unless either Party objects to the proposed modification.
- Within two months of receipt of a request, each Party shall appoint an arbitrator. The two arbitrators shall, within a period of two months, select a third arbitrator as chairman, who shall be a national of a third State. The UNCITRAL arbitration rules applicable to 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 the Secretary General of the Centre.
- Unless otherwise agreed, all submissions shall be made and all hearings shall be completed within six months of selection of the third arbitrator, and the arbitral hearings shall be completed within six months of the date of selection of the third arbitrator, and the arbitral panel shall render its decisions within two months of the date of the final submissions or the closing of the hearings, whichever is later.
- The tribunal shall reach its decisions by a majority of votes. These decisions shall be final and binding upon the Parties.
- Each Party shall bear the cost of its own member of the tribunal. The cost of the Chairman, the cost of the Chairman(sic), the cost of representation of the Parties in the arbitral proceedings and the remaining costs shall be apportioned by the arbitral panel as it deems reasonable. Awards shall be binding on both Parties.
ARTICLE XI: Applications of Other Rules and Obligations
This Treaty shall not derogate from any of the following that entitle covered investments to treatment more favourable than that accorded by this Treaty:
- Laws and regulations, administrative practices or procedures, or administrative or adjudicatory decisions of a Party;
- International legal obligations; or
- Obligations assumed by a Party, including those contained in an investment authorization or an investment agreement.
ARTICLE XII: Application of the Agreement
- This Agreement shall apply to all covered investments, whether made before or after its date of entry into force, but the provisions of this Agreement shall not apply to any dispute, claim or difference which arose before its entry into force.
- A Party's obligations under this Treaty shall apply to a state enterprise in the exercise of any regulatory, administrative or other governmental authority delegated to it by that Party.
- Each Party reserves the right to deny to a company of the other Party the benefits of this Treaty if nationals of a third country own or control the company; and
- The denying party does not maintain normal economic relations with the third country; or
- The company has no substantial business activities in the territory of the Party under whose laws it is constituted or organized.
ARTICLE XIII: Tax Disputes
- No provision of this Treaty shall impose respect to tax matters, except that:
- Articles IV, X and XI shall apply expropriation; and obligations with respect to
- Article X will apply with respect to an investment agreement or an investment authorization.
- A national or company that asserts in an investment dispute that a tax matter involves an expropriation, may submit that dispute to arbitration pursuant to Article X (3) only if:
- The national or company concerned has first referred to the competent tax authorities of both parties, the issue of whether the tax matter involves an expropriation; and
- The competent tax authorities have not both determined, within nine months from the time the national or company referred the issue, that the matter does not involve an expropriation.
ARTICLE XIV: Special Measures and Formalities
- This Treaty shall not preclude a Party from applying measures necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
- This Treaty shall not preclude a party from prescribing special formalities in connection with covered investments, such as a requirement that such investments be legally constituted under the laws and regulations of that Party, or a requirement that transfers of currency or other monetary instruments be reported, provided that such formalities shall not impair the substance of any of the rights set forth in this Treaty.
ARTICLE XV: Territorial Application
- The obligations of this treaty shall apply to the political subdivisions of the Parties.
- With respect to the treatment accorded by a state, territory of possession of the United States of America, national treatment means treatment no less favourable than the treatment accorded thereby, in like situations. To investments 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.
ARTICLE XVI: Amendment
Any provision of this Agreement may be amended by mutual agreements between the Parties. Any such amendment shall be confirmed by an Exchange of Diplomatic Notes.
ARTICLE XVII: Entry Into Force, Duration and Termination
- 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.
- A Party may terminate this Treaty at the end of the initial ten year period or at any ten year period or at any time thereafter by giving one year's written notice to the other Party.
- For ten years from the date of termination, all other Articles shall continue to apply to covered investments established or acquired prior to the date of termination, except insofar as those Articles extend to the establishment or acquisition of covered investments.
- The Annex shall form an integral part of the Treaty.
IN WITNESS WHEREOF, the respective plenipotentiaries have signed this Treaty.
DONE in duplicate at this day of
|FOR THE GOVERNMENT OF
THE REPUBLIC OF TRINIDAD AND TOBAGO
|FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA
- The Government of the United States of America may adopt or maintain exceptions to the obligation to accord national treatment to covered investments in the sectors or with respect to the matters specified below:
Atomic energy, Custom House Brokers; Licenses for Broadcast, Common Carrier, or Aeronautical radio stations; Comsat; Subsidies or Grants, including Government-supported loans, Guarantees and Insurance; State and local measures exempt from Article 1102 of the North American Free Trade Agreement pursuant to Article 1108 thereof; landing of submarine cables.
Most Favored Nation Treatment shall be accorded in the Sectors and matters indicated above.
- The Government of the United States of America may adopt or maintain exceptions to the obligation to accord National and Most Favored Nation Treatment to covered investments in the Sectors or with respect to the matters specified below:
Fisheries; Air and Maritime Transport, and related activities;
Banking: Insurance: Securities: and other Financial Services.
NOTE: If the Treaty partner undertakes acceptable commitments with respect to all or certain financial services, the Government of the United States of America will consider limiting these exceptions accordingly, so that, for example, particular obligations as to treatment would apply on no less favourable terms than in the North American Free Trade Agreement.
- The Government of the Republic of Trinidad and Tobago may adopt or maintain exceptions to the obligation to accord national treatment, to covered investments in the sectors or with respect to the matters specified below:
Civil aviation; real estate; real estate agencies: telecommunications: mining and natural resources, subsidies or grants including government-supported loans. guarantees, insurance and other assistance: custom house brokers. car rental: gaming, betting and lotteries.
Most Favoured Nation Treatment shall be accorded in the sectors and matters indicated above.