AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINAAND THE GOVERNMENT OF MALAYSIA CONCERNING THE RECIPROCAL ENCOURAGEMENT ANDPROTECTION OF INVESTMENTS
AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINAAND THE GOVERNMENT OF MALAYSIA CONCERNING THE RECIPROCAL ENCOURAGEMENT ANDPROTECTION OF INVESTMENTS
Whole Doc.
The Government of the People's Republic of China and the Government
of Malaysia (each hereinafter referred to as a Contracting Party);
Desiring to encourage, protect and create favourable conditions for
investments by investors of one Contracting Party in the territory of the
other Contracting Party based on the principles of mutual respect for
sovereignty, equality and mutual benefit and for the purpose of the
development of economic co-operation between both States;
Have agreed as follows:
Article I Definitions
For the purpose of this Agreement:
(1) The term "investment" means every kind of asset made as
investment in accordance with the laws and regulations of the Contracting
Party accepting the investment in its territory and in particular, though
not exclusively, includes:
((1)) Movable and immovable property and any other property rights
such as mortgages, liens or pledges;
((2)) Shares, stocks and debentures of companies or other forms of
interest in such companies;
((3)) A claim to money or to any performance having a financial
value;
((4)) Copyrights, industrial property rights, know-how, technical
process, tra de- names and goodwill; and
((5)) Business concessions conferred by law, including concessions to
search for, or exploit natural resources.
The said term "investment" shall refer:
In respective of investments in the territory of Malaysia, to all
investments made in those assorted as "the approved items" by the
appropriate department of Malaysia in accordance with its legislation and
administrative practice.
In respect of investments in the territory of the People's Republic
of China, to all investments approved by the appropriate examination and
approval authority of the People's Republic of China in accordance with
its legislation and administrative practice; and investments approved by
the appropriate examination and approval authority of the People's
Republic of China in accordance with its legislation and administrative
practice.
Any alteration of the form in which assets are invested shall not
affect their classification as investments, provided that such alteration
is not contrary to the approval granted in respect of the assets
originally invested.
(2) The term "returns" means the amount yielded by an investment and
in particular, though not exclusively, includes profit, interest, capital
gains, dividends, royalties and fees.
(3) The term "investor" means:
In respect of the People's Republic of China-
((1)) Natural persons who have nationality of the People's Republic
of China;
((2)) In respect of investments in the territory of Malaysia, to all
investmen ts made in projects classified by the appropriate Ministry of
Malaysia in accordance with its legislation and administrative practice as
an "approved project".
In respect of Malaysia -
((1)) Any person who is a citizen of Malaysia according to its
Constitution;
((2)) Any company with or without limited liability, or any juridical
person, association of persons, partnership or sole proprietorship which
is incorporated or lawfully constituted in the territory of Malaysia.
(4) The term "freely convertible currency" means any currency which
is widely used to make payments for international transactions and for
which there are ready buyers in the principal markets.
Article II Promotion and Protection of Investments
(1) Each Contracting Party shall encourage and create favourable
conditions for investors of the other Contracting Party to invest in its
territory, and, subject to its rights to exercise powers conferred by its
laws, shall admit such investments.
(2) Investments of investors of either Contracting Party shall at all
times be accorded fair and equitable treatment and shall enjoy full
protection and security in the territory of the other Contracting Party.
Article III Most-Favoured Nation Provisions
(1) Investments made by investors of either Contracting Party in the
territory of the other Contracting Party shall not be subjected to a
treatment less favourable than that accorded to investments made by
investors of any third State.
(2) Investors of one Contracting Party whose investments in the
territory of the other Contracting Party suffer losses owing to war or
other armed conflict, a state of national emergency, revolt, insurrection
or riot in the territory of the latter Contracting Party, shall be
accorded by the latter Contracting Party treatment, as regards
restitution, indemnification, compensation or other settlement, if any, no
less favourable than that which the latter Contracting Party accords to
investors of any third State.
Article IV Exceptions
The provisions of this Agreement relative to the granting of
treatment not less favourable than that accorded to the investors of any
third State shall not be construed so as to oblige one Contracting Party
to extend to the investors of the other the benefit of any investment,
preference or privilege resulting from:
(1) Any existing or future customs union or free trade area or a
common external tariff area or a monetary union or similar international
agreement or other forms of regional cooperation to which either of the
Contracting Parties is or may become a party; or
(2) The adoption of an agreement designed to lead to the formation or
extension of such a union or area within a reasonable length of time; or
(3) Any international agreement or arrangement relating wholly or
mainly to taxation or any domestic legislation relating wholly or mainly
to taxation; or
(4) Arrangements concerning frontier trade.
Article V Expropriation
(1) Neither Contracting Party shall take any measures of
expropriation, nationalization or any dispossession having effect
equivalent to nationalization or expropriation against the investments of
investors of the other Contracting Party except under the following
conditions:
((1)) The measures are taken for a public purpose and in accordance
with the legal procedure of each Contracting Party taking the
expropriatory measures;
((2)) The measures are non-discriminatory;
((3)) The measures are accompanied by provisions for payment of fair
and reaso nable compensation.
(2) Such compensation shall be computed on the basis of the market
value of the investment immediately before the expropriation is proclaimed
or become publicly known. Where the market value cannot be readily
ascertained, the compensation shall be determined in accordance with
generally recognized principles of valuation and on equitable principles
taking into account, inter alia, the capital invested, depreciation,
capital already repatriated, replacement value and other relevant factors.
The compensation shall be freely transferable in freely convertible
currency and be paid without unreasonable delay.
Article VI Repatriation of Investments
(1) Each Contracting Party shall, subject to its laws and
regulations, allow without unreasonable delay the transfer in any freely
convertible currency:
((1)) The net profits, dividends, royalties, technical assistance and
technical services fees, interest and other current income, accruing from
any investment of the investors of the other Contracting Party;
((2)) The proceeds from the total or partial liquidation of any
investment made by investors of the other Contracting Party;
((3)) Funds in repayment of loans given by investors of one
Contracting Party to the investors of the other Contracting Party which
both Contracting Parties have recognized as investment;
((4)) Payments in connection with contracting projects; and
((5)) The earnings of nationals of the other Contracting Party who
are allowed to work in connection with an investment in its territory.
(2) Such transfer mentioned in paragraph 1 of this Article shall be
made:
((1)) In respect of Malaysia, at the exchange rate prevailing at the
time of transfer; and
((2)) In respect of the People's Republic of China, at the official
exchange rate of the People's Republic of China on the date of transfer.
(3) The Contracting Parties shall undertake to accord the transfer
referred to in paragraph 1 of this Article a treatment as favourable as
that accorded to the transfer originating from investments made by
investors of any third State.
Article VII Settlement of Investment Disputes
(1) If an investor challenges the amount of compensation for the
expropriated investment, he may file complaint with the competent
authority of the Contracting Party taking the expropriatory measures. If
it is not solved within 1 year after the complaint is filed, the competent
court of the Contracting Party taking the expropriatory measures or an
International Arbitral Tribunal shall, upon the request of the investor,
review the amount of compensation.
(2) Disputes or differences between one Contracting Party and an
investor of the other Contracting Party concerning an investment of that
investor in the territory of the former Contracting Party shall, if
possible, be settled amicably.
(3) If such disputes or differences cannot be settled according to
the provisions of paragraph 2 of this Article within a period of 6 months
from the date either party requested amicable settlement and the parties
have not agreed to any other dispute settlement procedures, the investor
concerned may choose one or both of the following means of resolutions:
((1)) File complaint with and seek relief from the competent
administrative authority or agency of the Contracting Party in whose
territory the investment was made;
((2)) File suit with the competent court of law of the Contracting
Party in whose territory the investment was made.
(4) The dispute relating to the amount of compensation and any other
disputes agreed upon by both parties may be submitted to an International
Arbitral Tribunal.
The International Arbitral Tribunal mentioned above shall be
especially constituted in the following way; each party to the dispute
shall appoint an arbitrator. The 2 arbitrators shall appoint an arbitrator
as Chairman who shall be a national of a third State which shall have
diplomatic relations with both Contracting Parties. The arbitrators shall
be appointed within 2 months and the Chairman within 4 months from the
date when the concerned party notified the other party of its submission
of the dispute to arbitration.
If the necessary appointments are not made within the period
specified in the previous paragraph, either party may, in the absence of
any other agreement, request the Chairman of the International Arbitration
Institute of the Stockholm Chamber of Commerce to make the necessary
appointments.
The Arbitral Tribunal shall determine its own arbitral procedures by
referring either to the Convention on the Settlement of Investment
Disputes between States and Nationals of other States done at Washington
on March 18, 1965 or the Arbitration Rules of the United Nations
Commission on International Trade Law (UNCITRAL).
The Arbitral Tribunal shall reach its award based upon the provisions
of this Agreement, the relevant domestic laws, the agreements both
Contracting Parties have concluded and the generally recognized principles
of international law.
The Arbitral Tribunal shall meet in a third State selected by common
accord by the parties concerned or, if the choice has not been made within
45 days of the appointment of the final member of the Tribunal, in
Stockholm. The Tribunal shall reach its decision by a majority of votes.
The award shall be final and binding on both parties.
When the Tribunal renders an award, it shall state its legal basis
and, upon request of either party, shall interpret it.
Each party shall bear the costs of the arbitrator it has appointed
and of its own expenses during the arbitration proceedings. The expenses
of the Chairman of the Tribunal and other costs shall be borne equally by
both parties.
(5) In addition to the foregoing provisions of this Article, disputes
between investors of a Contracting Party and the investors of the other
Contracting Party in whose territory the investment was made may be
settled by international arbitration in accordance with the arbitration
clause between the parties.
(6) Neither Contracting Party shall pursue through diplomatic
channels any matter referred to arbitration until the proceedings have
terminated and a Contracting Party has failed to abide by or to comply
with the award rendered by the Arbitral Tribunal.
Article VIII Settlement of Disputes Between Contracting Parties
(1) Disputes between the Contracting Parties concerning the
interpretation or application of this Agreement should, if possible, be
settled through diplomatic channels.
(2) If a dispute between the Contracting Parties cannot thus be
settled within 6 months, it shall upon the request of either Contracting
Party be submitted to an Arbitral Tribunal.
(3) Such an Arbitral Tribunal shall be constituted for each
individual case in the following way: Within 2 months of the receipt of
the request for arbitration, each Contracting Party shall appoint 1 member
of the Tribunal. Those 2 members shall then select a national of a third
State who on approval by the two Contracting Parties shall be appointed
Chairman of the Tribunal. The Chairman shall be appointed within 2 months
from the date of appointment of the other 2 members.
(4) If within the periods specified in paragraph 3 of this Article
the necessary appointments have not been made, either Contracting Party
may, in the absence of any other agreement, invite the President of the
International Court of Justice to make any necessary appointments. If the
President is a national of either Contracting Party or if he is otherwise
prevented from discharging the said function, the Vice-President shall be
invited to make the necessary appointments. If the Vice-President is a
national of either Contracting Party or if he too, is prevented from
discharging the said function, the member of the International Court of
Justice next in seniority who is not a national of either Contracting
Party shall be invited to make the necessary appointments.
(5) The Arbitral Tribunal shall determine its own procedure. The
Tribunal shall reach its decision in accordance with the provisions of
this Agreement and generally accepted principles of international law. The
Tribunal shall reach its award by a majority of votes. Such award shall be
final and binding on both Contracting Parties. The Tribunal shall, upon
the request of either Contracting Party, explain the basis of its award.
(6) Each Contracting Party shall bear the cost of its appointed
arbitrator. The relevant costs of the Chairman and the Tribunal shall be
borne in equal parts by the Contracting Parties.
Article IX Subrogation
If a Contracting Party or its Agency makes a payment to an investor
under a guarantee it has granted to an investment by its investor in the
territory of the other Contracting Party, such other Contracting Party
shall recognize the transfer of any right or claim of such investor to the
former Contracting Party or its Agency and recognize the subrogation of
the former Contracting Party to such right or claim. The subrogated right
or claim shall not be greater than the original right or claim of the said
investor.
Article X Third State Domiciled Investors
If a company which is owned or controlled by an investor of one
Contracting Party in a third State has made investments in accordance with
the laws and regulations of the other Contracting Party in the territory
of the latter, the relevant provisions of this Agreement shall apply to
such investments only on the assumption that such third State is not
entitled to exercise the right or abandons the right to request for
compensation.
Article XI More Favourable Treatment
If the treatment to be accorded by one Contracting Party in
accordance with its laws and regulations to investments of investors of
the other Contracting Party is more favourable than the treatment provided
for in this Agreement, the more favourable treatment shall be applicable.
Article XII Application to Investment
This Agreement shall apply to investments made in the territory of
either Contracting Party in accordance with its legislation or rules or
regulations by investors of the other Contracting Party prior to as well
as after the entry into force of this Agreement.
Article XIII Entry into Force, Duration and Termination
(1) This Agreement shall enter into force 30 days after the date on
which the Contracting Parties have notified each other that their internal
requirements for the entry into force of this Agreement have been
fulfilled.
(2) This Agreement shall remain in force for a period of 15 years,
and shall continue in force, unless terminated in accordance with
paragraph 3 of this Article.
(3) Either Contracting Party may by giving 1 year's written notice to
the other Contracting Party, terminate this Agreement at the end of the
initial 15 year period or any time thereafter.
(4) With respect to investments made or acquired prior to the date of
termination of this Agreement, the provisions of all of the other Articles
of this Agreement continue to be effective for a period of 15 years from
such date of termination.
In witness whereof, the undersigned, duly authorized thereto by their
respective Governments, have signed this Agreement.
Done in duplicate at Kuala Lumpur this 21st day of November, 1988 in
the Chinese, Bahasa Malaysia and English languages, all 3 texts being
equally authentic. In the case of divergence between the texts of this
Agreement, the English text shall prevail.
For the Government of
the People's Republic
of China
Zheng Tuobin
For the Government of
Malaysia Rafidah
Date: 21st November,1988
Letter 1
Excellency
With reference to Article 7 of the Agreement between the Government
of Malaysia and the Government of the People's Republic of China
concerning the Reciprocal Encouragement and Protection of Investments
signed today, I have the honour to state that it is the understanding
between the Parties that as soon as the Government of the People's
Republic of China becomes a party to the Convention on the Settlement of
Investment Disputes between States and Nationals of other States opened
for signature at Washington on 18 March, 1965 ("the Convention") the
Contracting Parties shall promptly enter into negotiations on the
possibility to expand the area of investment disputes which may be
submitted for conciliation and arbitration by the International Centre for
Settlement of Investment Disputes established by the Convention. In
relation to the expanded area agreed upon between the Contracting Parties
following such negotiations, the People's Republic of China shall accord
Malaysia treatment no less favourable than that which would be accorded by
it in the same circumstances to any other State. The new provision agreed
upon between the Contracting Parties shall replace Article 7.
Please let me have your confirmation that the above correctly sets out
the understanding between the two Parties.
Accept, Excellency, the renewed assurances of my highest considera-
tion.
Rafidah
Minister of Trade and Industry,
Government of Malaysia.
His Excellency,
Mr. Zheng Tuobin,
Minister of Foreign Economic
Relations and Trade,
People's Republic of China.
Date: 21st November,1988
Letter 2
Excellency
I have the honour to acknowledge receipt of your letter dated 21st
November, 1988 which reads as follows:
"With reference to Article 7 of the Agreement between the Government
of Malaysia and the Government of the People's Republic of China
concerning the Reciprocal Encouragement and Protection of Investments
signed today, I have the honour to state that it is the understanding
between the Parties that as soon as the Government of the People's
Republic of China becomes a party to the Convention on the Settlement of
Investment Disputes between States and Nationals of other States opened
for signature at Washington on 18 March, 1965 ("the Convention") the
Contracting Parties shall promptly enter into negotiations on the
possibility to expand the area of investment disputes which may be
submitted for conciliation and arbitration by the International Centre For
Settlement of Investment Disputes established by the Convention. In
relation to the expanded area agreed upon between the Contracting Parties
following such negotiations, the People's Republic of China shall accord
Malaysia treatment no less favourable than that which would be accorded by
it in the same circumstances to any other State. The new provision agreed
upon between the Contracting Parties shall replace Article 7.
Please let me have your confirmation that the above correctly sets out
the understanding between the two Parties."
I confirm the above understanding between the two Parties.
Accept, Excellency, the renewed assurances of my highest considera-
tion.
Zheng Tuobin
Minister of Foreign Economic
Relation and Trade,
People's Republic of China.
Her Excellency, Datin Paduka Rafidah Aziz,
Minister of Trade and Industry,
Government of Malaysia.
ts own expenses during the arbitration proceedings. The expenses
of the Chairman of the Tribunal and other costs shall be borne equally by
both parties.
(5) In addition to the foregoing provisions of this Article, disputes
between investors of a Contracting Party and the investors of the other
Contracting Party in whose territory the investment was made may be
settled by international arbitration in accordance with the arbitration
clause between the parties.
(6) Neither Contracting Party shall pursue through diplomatic
channels any matter referred to arbitration until the proceedings have
terminated and a Contracting Party has failed to abide by or to comply
with the award rendered by the Arbitral Tribunal.
Article VIII Settlement of Disputes Between Contracting Parties
(1) Disputes between the Contracting Parties concerning the
interpretation or application of this Agreement should, if possible, be
settled through diplomatic channels.
(2) If a dispute between the Contracting Parties cannot thus be
settled within 6 months, it shall upon the request of either Contracting
Party be submitted to an Arbitral Tribunal.
(3) Such an Arbitral Tribunal shall be constituted for each
individual case in the following way: Within 2 months of the receipt of
the request for arbitration, each Contracting Party shall appoint 1 member
of the Tribunal. Those 2 members shall then select a national of a third
State who on approval by the two Contracting Parties shall be appointed
Chairman of the Tribunal. The Chairman shall be appointed within 2 months
from the date of appointment of the other 2 members.
(4) If within the periods specified in paragraph 3 of this Article
the necessary appointments have not been made, either Contracting Party
may, in the absence of any other agreement, invite the President of the
International Court of Justice to make any necessary appointments. If the
President is a national of either Contracting Party or if he is otherwise
prevented from discharging the said function, the Vice-President shall be
invited to make the necessary appointments. If the Vice-President is a
national of either Contracting Party or if he too, is prevented from
discharging the said function, the member of the International Court of
Justice next in seniority who is not a national of either Contracting
Party shall be invited to make the necessary appointments.
(5) The Arbitral Tribunal shall determine its own procedure. The
Tribunal shall reach its decision in accordance with the provisions of
this Agreement and generally accepted principles of international law. The
Tribunal shall reach its award by a majority of votes. Such award shall be
final and binding on both Contracting Parties. The Tribunal shall, upon
the request of either Contracting Party, explain the basis of its award.
(6) Each Contracting Party shall bear the cost of its appointed
arbitrator. The relevant costs of the Chairman and the Tribunal shall be
borne in equal parts by the Contracting Parties.
Article IX Subrogation
If a Contracting Party or its Agency makes a payment to an investor
under a guarantee it has granted to an investment by its investor in the
territory of the other Contracting Party, such other Contracting Party
shall recognize the transfer of any right or claim of such investor to the
former Contracting Party or its Agency and recognize the subrogation of
the former Contracting Party to such right or claim. The subrogated right
or claim shall not be greater than the original right or claim of the said
investor.
Article X Third State Domiciled Investors
If a company which is owned or controlled by an investor of one
Contracting Party in a third State has made investments in accordance with
the laws and regulations of the other Contracting Party in the territory
of the latter, the relevant provisions of this Agreement shall apply to
such investments only on the assumption that such third State is not
entitled to exercise the right or abandons the right to request for
compensation.
Article XI More Favourable Treatment
If the treatment to be accorded by one Contracting Party in
accordance with its laws and regulations to investments of investors of
the other Contracting Party is more favourable than the treatment provided
for in this Agreement, the more favourable treatment shall be applicable.
Article XII Application to Investment
This Agreement shall apply to investments made in the territory of
either Contracting Party in accordance with its legislation or rules or
regulations by investors of the other Contracting Party prior to as well
as after the entry into force of this Agreement.
Article XIII Entry into Force, Duration and Termination
(1) This Agreement shall enter into force 30 days after the date on
which the Contracting Parties have notified each other that their internal
requirements for the entry into force of this Agreement have been
fulfilled.
(2) This Agreement shall remain in force for a period of 15 years,
and shall continue in force, unless terminated in accordance with
paragraph 3 of this Article.
(3) Either Contracting Party may by giving 1 year's written notice to
the other Contracting Party, terminate this Agreement at the end of the
initial 15 year period or any time thereafter.
(4) With respect to investments made or acquired prior to the date of
termination of this Agreement, the provisions of all of the other Articles
of this Agreement continue to be effective for a period of 15 years from
such date of termination.
In witness whereof, the undersigned, duly authorized thereto by their
respective Governments, have signed this Agreement.
Done in duplicate at Kuala Lumpur this 21st day of November, 1988 in
the Chinese, Bahasa Malaysia and English languages, all 3 texts being
equally authentic. In the case of divergence between the texts of this
Agreement, the English text shall prevail.
For the Government of
the People's Republic
of China
Zheng Tuobin
For the Government of
Malaysia Rafidah
Date: 21st November,1988
Letter 1
Excellency
With reference to Article 7 of the Agreement between the Government
of Malaysia and the Government of the People's Republic of China
concerning the Reciprocal Encouragement and Protection of Investments
signed today, I have the honour to state that it is the understanding
between the Parties that as soon as the Government of the People's
Republic of China becomes a party to the Convention on the Settlement of
Investment Disputes between States and Nationals of other States opened
for signature at Washington on 18 March, 1965 ("the Convention") the
Contracting Parties shall promptly enter into negotiations on the
possibility to expand the area of investment disputes which may be
submitted for conciliation and arbitration by the International Centre for
Settlement of Investment Disputes established by the Convention. In
relation to the expanded area agreed upon between the Contracting Parties
following such negotiations, the People's Republic of China shall accord
Malaysia treatment no less favourable than that which would be accorded by
it in the same circumstances to any other State. The new provision agreed
upon between the Contracting Parties shall replace Article 7.
Please let me have your confirmation that the above correctly sets out
the understanding between the two Parties.
Accept, Excellency, the renewed assurances of my highest considera-
tion.
Rafidah
Minister of Trade and Industry,
Government of Malaysia.
His Excellency,
Mr. Zheng Tuobin,
Minister of Foreign Economic
Relations and Trade,
People's Republic of China.
Date: 21st November,1988
Letter 2
Excellency
I have the honour to acknowledge receipt of your letter dated 21st
November, 1988 which reads as follows:
"With reference to Article 7 of the Agreement between the Government
of Malaysia and the Government of the People's Republic of China
concerning the Reciprocal Encouragement and Protection of Investments
signed today, I have the honour to state that it is the understanding
between the Parties that as soon as the Government of the People's
Republic of China becomes a party to the Convention on the Settlement of
Investment Disputes between States and Nationals of other States opened
for signature at Washington on 18 March, 1965 ("the Convention") the
Contracting Parties shall promptly enter into negotiations on the
possibility to expand the area of investment disputes which may be
submitted for conciliation and arbitration by the International Centre For
Settlement of Investment Disputes established by the Convention. In
relation to the expanded area agreed upon between the Contracting Parties
following such negotiations, the People's Republic of China shall accord
Malaysia treatment no less favourable than that which would be accorded by
it in the same circumstances to any other State. The new provision agreed
upon between the Contracting Parties shall replace Article 7.
Please let me have your confirmation that the above correctly sets out
the understanding between the two Parties."
I confirm the above understanding between the two Parties.
Accept, Excellency, the renewed assurances of my highest considera-
tion.
Zheng Tuobin
Minister of Foreign Economic
Relation and Trade,
People's Republic of China.
Her Excellency, Datin Paduka Rafidah Aziz,
Minister of Trade and Industry,
Government of Malaysia.
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