Le modèle américain d'accord de protection et d'encouragement des investissements 2004

Annexe

TREATY BETWEEN

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

AND THE GOVERNMENT OF [Country]

CONCERNING THE ENCOURAGEMENT

AND RECIPROCAL PROTECTION OF INVESTMENT

The Government of the United States of America and the Government of [Country] (hereinafter the «Parties»);

Desiring to promote greater economic cooperation between them with respect to investment by nationals and enterprises 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 the importance of providing effective means of asserting claims and enforcing rights with respect to investment under national law as well as through international arbitration;

Desiring to achieve these objectives in a manner consistent with the protection of health, safety, and the environment, and the promotion of internationally recognized labor rights;

Having resolved to conclude a Treaty concerning the encouragement and reciprocal protection of investment;

Have agreed as follows:

SECTION A

Article 1: Definitions

For purposes of this Treaty:

«central level of government» means:

(a) for the United States, the federal level of government; and

(b) for [Country], [ ].

«Centre» means the International Centre for Settlement of Investment Disputes («ICSID») established by the ICSID Convention.

«claimant» means an investor of a Party that is a party to an investment dispute with the other Party.

«covered investment» means, with respect to a Party, an investment in its territory of an investor of the other Party in existence as of the date of entry into force of this Treaty or established, acquired, or expanded thereafter.

«disputing parties» means the claimant and the respondent.

«disputing party» means either the claimant or the respondent.

«enterprise» means any entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization; and a branch of an enterprise.

«enterprise of a Party» means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there.

«existing» means in effect on the date of entry into force of this Treaty.

«freely usable currency» means «freely usable currency» as determined by the International Monetary Fund under its Articles of Agreement.

«government procurement» means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale.

«ICSID Additional Facility Rules» means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes.

«ICSID Convention» means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 1965.

[«Inter-American Convention» means the Inter-American Convention on International Commercial Arbitration, done at Panama, January 30, 1975.]

«investment» means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:

(a) an enterprise;

(b) shares, stock, and other forms of equity participation in an enterprise;

(c) bonds, debentures, other debt instruments, and loans;^348(*)

(d) futures, options, and other derivatives;

(e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;

(f) intellectual property rights;

(g) licenses, authorizations, permits, and similar rights conferred pursuant to applicable domestic law;^{349(*), 350(*)} and

(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.

«investment agreement» means a written agreement^351(*) that takes effect on or after the date of entry into force of this Treaty between a national authority^352(*) of a Party and a covered investment or an investor of the other Party that grants the covered investment or investor rights:

(a) with respect to natural resources or other assets that a national authority controls; and

(b) upon which the covered investment or the investor relies in establishing or acquiring a covered investment other than the written agreement itself.

«investment authorization»^353(*) means an authorization that the foreign investment authority of a Party grants to a covered investment or an investor of the other Party.

«investor of a non-Party» means, with respect to a Party, an investor that attempts to make, is making, or has made an investment in the territory of that Party, that is not an investor of either Party.

«investor of a Party» means a Party or state enterprise thereof, or a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party; provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his/her dominant and effective nationality.

«measure» includes any law, regulation, procedure, requirement, or practice.

«national» means:

(a) for the United States, a natural person who is a national of the United States as defined in Title III of the Immigration and Nationality Act; and

(b) for [Country], [ ].

«New York Convention» means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958.

«non-disputing Party» means the Party that is not a party to an investment dispute.

«person» means a natural person or an enterprise.

«person of a Party» means a national or an enterprise of a Party.

«protected information» means confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law.

«regional level of government» means:

(a) for the United States, a state of the United States, the District of Columbia, or Puerto Rico; and

(b) for [Country], [ ].

«respondent» means the Party that is a party to an investment dispute.

«Secretary-General» means the Secretary-General of ICSID.

«state enterprise» means an enterprise owned, or controlled through ownership interests, by a Party.

«territory» means:

(a) with respect to the United States, [ ____].

(b) with respect to [Country,] [ ____].

«TRIPS Agreement» means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994.

«UNCITRAL Arbitration Rules» means the arbitration rules of the United Nations Commission on International Trade Law.

* ³⁴⁸ Some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the characteristics of an investment, while other forms of debt, such as claims to payment that are immediately due and result from the sale of goods or services, are less likely to have such characteristics.

* ³⁴⁹ Whether a particular type of license, authorization, permit, or similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristics of an investment depends on such factors as the nature and extent of the rights that the holder has under the domestic law of the Party. Among the licenses, authorizations, permits, and similar instruments that do not have the characteristics of an investment are those that do not create any rights protected under domestic law. For greater certainty, the foregoing is without prejudice to whether any asset associated with the license, authorization, permit, or similar instrument has the characteristics of an investment.

* ³⁵⁰ The term «investment» does not include an order or judgment entered in a judicial or administrative action.

* ³⁵¹ Written agreement refers to an agreement in writing, executed by both parties, whether in a single instrument or in multiple instruments, that creates an exchange of rights and obligations, binding on both parties under the law applicable under Article XX [Governing Law](2). For greater certainty, (a) a unilateral act of an administrative or judicial authority, such as a permit, license, or authorization issued by a Party solely in its regulatory capacity, or a decree, order, or judgment, standing alone; and (b) an administrative or judicial consent decree or order, shall not be considered a written agreement.

* ³⁵² For purposes of this definition, «national authority» means (a) for the United States, an authority at the central level of government; and (b) for [Country], [ ].

* ³⁵³ Actions taken by an agency of a Party to enforce laws of general application such as competition law do not come within this definition.