AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINAAND THE GOVERNMENT OF THE REPUBLIC OF CUBA CONCERNING THE ENCOURAGEMENTAND RECIPROCAL PROTECTION OF INVESTMENTS
AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINAAND THE GOVERNMENT OF THE REPUBLIC OF CUBA CONCERNING THE ENCOURAGEMENTAND RECIPROCAL PROTECTION OF INVESTMENTS
Whole document
The Government of the People's Republic of China and the Government of
the Republic of Cuba (hereinafter referred to as the Contracting Parties);
Intending to create favorable conditions for investments by investors
of one Contracting Party in the territory of the other Contracting Party;
Recognizing that the reciprocal encouragement, promotion and
protection of such investments will be conducive to stimulating business
initiative of the investors and will increase prosperity in both States;
Desiring to intensify the economic cooperation of both States on the
basis of equality and mutual benefits;
Have agreed as follows:
Article 1
For the purpose of this Agreement,
1. The term "investment" means every kind of asset invested by
investors of one Contracting Party in accordance with the laws and
regulations of the other Contracting Party in the territory of the Latter,
and in particular, though not exclusively, includes:
(a) movable, immovable property and other property rights such as
mortgages and pledges;
(b) shares, stock and any other kind of participation in companies;
(c) claims to money or to any other performance having an economic
value;
(d) copyrights, industrial property, Know-How and technological
process;
(e) concessions conferred by law, including concessions to search for
or exploit natural resources.
2. The term "investors" means:
in respect of the People's Republic of China:
(a) natural persons who have nationality of the People's Republic of
China in accordance with its laws;
(b) economic entities established in accordance with the laws of the
People's Republic of China and domiciled in the territory of the People's
Republic of China;
in respect of the Republic of Cuba:
(a) natural persons who have nationality of the Republic of Cuba in
accordance with its laws;
(b) any entity established in its territory and recognized by it such
as public institutions, partnerships, corporations, foundations and
associations, irrespective of whether or not their liabilities are limited
or otherwise.
3. The term "returns" means the amounts yielded by investments, such
as profits, dividends, interests, royalties or other legitimate income.
4. The term "territory" means the territory of each Contracting Party
as defined in its laws and the adjacent areas over which each Contracting
Party exercises sovereign rights or jurisdiction in accordance with
international law.
Article 2
1. Each Contracting Party shall encourage investors of the other
Contracting Party to make investments in its territory and admit such
investments in accordance with its laws and regulations.
2. Each Contracting Party shall grant assistance in and provide
facilities for obtaining visa and working permit to nationals of the other
Contracting Party to or in the territory of the Former in connection with
activities associated with such investments.
Article 3
1. Investments and activities associated with investments of investors
of either Contracting Party shall be accorded fair and equitable treatment
and shall enjoy protection in the territory of the other Contracting
Party.
2. The treatment and protection referred to in Paragraph 1 of this
Article shall not be less favorable than that accorded to investments and
activities associated with such investments of investors of a third State.
3. The treatment and protection as mentioned in Paragraphs 1 and 2 of
this Article shall not include any preferential treatment accorded by the
other Contracting Party to investments of investors of a third State based
on customs union, free trade zone, economic union, agreement relating to
avoidance of double taxation or for facilitating frontier trade.
Article 4
1. Neither Contracting Party shall expropriate, nationalize or take
similar measures (hereinafter referred to as "expropriation") against
investments of investors of the other Contracting Party in its territory,
unless the following conditions are met:
(a) for the public interests;
(b) under domestic legal procedure;
(c) without discrimination;
(d) against compensation.
2. The compensation mentioned in Paragraph 1, (d) of this Article
shall be equivalent to the value of the expropriated investments at the
time when expropriation is proclaimed, be convertible and freely
transferable. The compensation shall be paid without unreasonable delay.
Article 5
Investors of one Contracting Party who suffer losses in respect of
their investments in the territory of the other Contracting Party owing to
war, a state of national emergency, insurrection, riot or other similar
events, shall be accorded by the latter Contracting Party, if it takes
relevant measures, treatment no less favorable than that accorded to
investors of a third State.
Article 6
1. Each Contracting Party shall, subject to its laws and regulations,
guarantee investors of the other Contracting Party the transfer of their
investments and returns held in the territory of the one Contracting
Party, including:
(a) profits, dividends, interests and other legitimate income;
(b) amounts from total or partial liquidation of investments;
(c) payment made pursuant to a loan agreement in connection with
investment;
(d) royalties in Paragraph 1, (d) of Article 1;
(e) payments of technical assistance or technical service fee,
management fee;
(f) payments in connection with projects on contract;
(g) earnings of nationals of the other Contracting Party who work in
connection with an investment in the territory of the one Contracting
Party.
2. The transfers mentioned above shall be made at the prevailing
exchange rate of the Contracting Party accepting investment on the date of
transfer.
Article 7
If a Contracting Party or its Agency makes payment to an investor
under a guarantee against non-commercial risks it has granted to an
investment of such 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 or
its Agency 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 8
1. Any dispute between the Contracting Parties concerning the
interpretation or application of this Agreement shall, as far as possible,
be settled by consultation through diplomatic channel.
2. If a dispute cannot thus be settled within six months, it shall,
upon the request of either Contracting Party, be submitted to an ad hoc
arbitral tribunal.
3. Such tribunal comprises of three arbitrators. Within two months
from the date on which either Contracting Party receives the written
notice requesting for arbitration from the other Contracting Party, each
Contracting Party shall appoint one arbitrator. Those two arbitrators
shall, within further two months, together select a third arbitrator who
is a national of a third State which has diplomatic relations with both
Contracting Parties. The third arbitrator shall be appointed by the two
Contracting Parties as Chairman of the arbitral tribunal.
4. If the arbitral tribunal has not been constituted within four
months from the date of the receipt of the written notice for arbitration,
either Contracting Party may, in the absence of any other agreement,
invite the President of the International Court of Justice to appoint the
arbitrator(s) who has or have not yet been appointed. If the President is
a national of either Contracting Party or is otherwise prevented from
discharging the said function, the next most senior member of the
International Court of Justice who is not a national of either Contracting
Party shall be invited to make the necessary appointment(s).
5. The arbitral tribunal shall determine its own procedure. The
tribunal shall reach its award in accordance with the provisions of this
Agreement and the principles of international law recognized by both
Contracting Parties.
6. The tribunal shall reach its award by a majority of votes. Such
award shall be final and binding on both Contracting Parties. The ad hoc
arbitral tribunal shall, upon the request of either Contracting Party,
explain the reasons of its award.
7. Each Contracting Party shall bear the cost of its appointed
arbitrator and of its representation in arbitral proceedings. The relevant
costs of the Chairman and the tribunal shall be borne in equal parts by
the Contracting Parties.
Article 9
1. Any dispute between an investor of one Contracting Party and the
other Contracting Party in connection with an investment in the territory
of the other Contracting Party shall, as far as possible, be settled
amicably through negotiations between the parties to the dispute.
2. If the dispute cannot be settled through negotiations within six
months, either party to the dispute shall be entitled to submit the
dispute to the competent court of the Contracting Party accepting the
investment.
3. If a dispute involving the amount of compensation for expropriation
cannot be settled within six months after resort to negotiations as
specified in Paragraph 1 of this Article, it may be submitted at the
request of either party to an ad hoc arbitral tribunal. The provisions of
this Paragraph shall not apply if the investor concerned has resorted to
the procedure specified in Paragraph 2 of this Article.
4. Such an arbitral tribunal shall be constituted for each individual
case in the following way: each party to the dispute shall appoint an
arbitrator, and these two shall select a national of a third State which
has diplomatic relations with the two Contracting Parties as Chairman. The
first two arbitrators shall be appointed within two months of the written
notice for arbitration by either party to the dispute to the other, and
the Chairman be selected within four months. If within the period
specified above, the tribunal has not been constituted, either party to
the dispute may invite the President of the International Court of Justice
to make the necessary appointments.
5. The tribunal shall determine its own procedure. However, the
tribunal may, in the course of determination of procedure take as guidance
the Arbitration Rules of the United Nations Commission of International
Trade Law.
6. The tribunal shall reach its decision by a majority of votes. Such
decision shall be final and binding on both parties to the dispute. Both
Contracting Parties shall commit themselves to the enforcement of the
decision in accordance with their respective domestic law.
7. The tribunal shall adjudicate in accordance with the law of the
Contracting Party to the dispute accepting the investment including its
rules on the conflict of laws, the provisions of this Agreement as well as
the generally recognized principles of international law accepted by both
Contracting Parties.
8. Each party to the dispute shall bear the cost of its appointed
member of the tribunal and of its representation in the proceedings. The
cost of the appointed Chairman and the remaining costs shall be borne in
equal parts by the parties to the dispute.
Article 10
If the treatment to be accorded by one Contracting Party in accordance
with its laws and regulations to investments or activities associated with
such investments of investors of the other Contracting Party is more
favorable than the treatment provided for in this Agreement, the more
favorable treatment shall be applicable.
Article 11
This Agreement shall apply to investments which are made prior to or
after its entry into force by investors of either Contracting Party in
accordance with the laws and regulations of the other Contracting Party in
the territory of the Latter.
Article 12
1. The representatives of the two Contracting Parties shall hold
meetings from time to time for the purpose of:
(a) reviewing the implementation of this Agreement;
(b) exchanging legal information and investment opportunities;
(c) resolving dispute arising out of investments;
(d) forwarding proposals on promotion of investment;
(e) studying other issues in connection with investments.
2. Where either Contracting Party requests consultation on any matters
of Paragraph 1 of this Article, the other Contracting Party shall give
prompt response and the consultation be held alternately in Beijing and
Havana City.
Article 13
1. This Agreement shall enter into force on the first day of the
following month after the date on which both Contracting Parties have
notified each other in writing that their respective internal legal
procedures have been fulfilled, and shall remain in force for a period of
five years.
2. This Agreement shall continue in force if either Contracting Party
fails to give a written notice to the other Contracting Party to terminate
this Agreement one year before the expiration specified in Paragraph 1 of
this Article.
3. After the expiration of the initial five year period, either
Contracting Party may at any time thereafter terminate this Agreement by
giving at least one year's written notice to the other Contracting Party.
4. With respect to investments made prior to the date of termination
of this Agreement, the provisions of Article 1 to 12 shall continue to be
effective for a further period of ten years from such date of termination.
In witness whereof, the duly authorized representatives of their
respective Governments have signed this Agreement.
Done in duplicate at Beijing on April 24, 1995 in the Chinese, Spanish
and English languages, all texts being equally authentic. In case of
divergence of interpretation, the English text shall prevail.
For the Government of For the Government of
the People's Republic the Republic of Cuba
of China
e written notice for arbitration,
either Contracting Party may, in the absence of any other agreement,
invite the President of the International Court of Justice to appoint the
arbitrator(s) who has or have not yet been appointed. If the President is
a national of either Contracting Party or is otherwise prevented from
discharging the said function, the next most senior member of the
International Court of Justice who is not a national of either Contracting
Party shall be invited to make the necessary appointment(s).
5. The arbitral tribunal shall determine its own procedure. The
tribunal shall reach its award in accordance with the provisions of this
Agreement and the principles of international law recognized by both
Contracting Parties.
6. The tribunal shall reach its award by a majority of votes. Such
award shall be final and binding on both Contracting Parties. The ad hoc
arbitral tribunal shall, upon the request of either Contracting Party,
explain the reasons of its award.
7. Each Contracting Party shall bear the cost of its appointed
arbitrator and of its representation in arbitral proceedings. The relevant
costs of the Chairman and the tribunal shall be borne in equal parts by
the Contracting Parties.
Article 9
1. Any dispute between an investor of one Contracting Party and the
other Contracting Party in connection with an investment in the territory
of the other Contracting Party shall, as far as possible, be settled
amicably through negotiations between the parties to the dispute.
2. If the dispute cannot be settled through negotiations within six
months, either party to the dispute shall be entitled to submit the
dispute to the competent court of the Contracting Party accepting the
investment.
3. If a dispute involving the amount of compensation for expropriation
cannot be settled within six months after resort to negotiations as
specified in Paragraph 1 of this Article, it may be submitted at the
request of either party to an ad hoc arbitral tribunal. The provisions of
this Paragraph shall not apply if the investor concerned has resorted to
the procedure specified in Paragraph 2 of this Article.
4. Such an arbitral tribunal shall be constituted for each individual
case in the following way: each party to the dispute shall appoint an
arbitrator, and these two shall select a national of a third State which
has diplomatic relations with the two Contracting Parties as Chairman. The
first two arbitrators shall be appointed within two months of the written
notice for arbitration by either party to the dispute to the other, and
the Chairman be selected within four months. If within the period
specified above, the tribunal has not been constituted, either party to
the dispute may invite the President of the International Court of Justice
to make the necessary appointments.
5. The tribunal shall determine its own procedure. However, the
tribunal may, in the course of determination of procedure take as guidance
the Arbitration Rules of the United Nations Commission of International
Trade Law.
6. The tribunal shall reach its decision by a majority of votes. Such
decision shall be final and binding on both parties to the dispute. Both
Contracting Parties shall commit themselves to the enforcement of the
decision in accordance with their respective domestic law.
7. The tribunal shall adjudicate in accordance with the law of the
Contracting Party to the dispute accepting the investment including its
rules on the conflict of laws, the provisions of this Agreement as well as
the generally recognized principles of international law accepted by both
Contracting Parties.
8. Each party to the dispute shall bear the cost of its appointed
member of the tribunal and of its representation in the proceedings. The
cost of the appointed Chairman and the remaining costs shall be borne in
equal parts by the parties to the dispute.
Article 10
If the treatment to be accorded by one Contracting Party in accordance
with its laws and regulations to investments or activities associated with
such investments of investors of the other Contracting Party is more
favorable than the treatment provided for in this Agreement, the more
favorable treatment shall be applicable.
Article 11
This Agreement shall apply to investments which are made prior to or
after its entry into force by investors of either Contracting Party in
accordance with the laws and regulations of the other Contracting Party in
the territory of the Latter.
Article 12
1. The representatives of the two Contracting Parties shall hold
meetings from time to time for the purpose of:
(a) reviewing the implementation of this Agreement;
(b) exchanging legal information and investment opportunities;
(c) resolving dispute arising out of investments;
(d) forwarding proposals on promotion of investment;
(e) studying other issues in connection with investments.
2. Where either Contracting Party requests consultation on any matters
of Paragraph 1 of this Article, the other Contracting Party shall give
prompt response and the consultation be held alternately in Beijing and
Havana City.
Article 13
1. This Agreement shall enter into force on the first day of the
following month after the date on which both Contracting Parties have
notified each other in writing that their respective internal legal
procedures have been fulfilled, and shall remain in force for a period of
five years.
2. This Agreement shall continue in force if either Contracting Party
fails to give a written notice to the other Contracting Party to terminate
this Agreement one year before the expiration specified in Paragraph 1 of
this Article.
3. After the expiration of the initial five year period, either
Contracting Party may at any time thereafter terminate this Agreement by
giving at least one year's written notice to the other Contracting Party.
4. With respect to investments made prior to the date of termination
of this Agreement, the provisions of Article 1 to 12 shall continue to be
effective for a further period of ten years from such date of termination.
In witness whereof, the duly authorized representatives of their
respective Governments have signed this Agreement.
Done in duplicate at Beijing on April 24, 1995 in the Chinese, Spanish
and English languages, all texts being equally authentic. In case of
divergence of interpretation, the English text shall prevail.
For the Government of For the Government of
the People's Republic the Republic of Cuba
of China
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