Investment treaty with Haiti : U.S. Pres. com. transmit. the treaty between United States of America and the Republic of...


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Investment treaty with Haiti : U.S. Pres. com. transmit. the treaty between United States of America and the Republic of Haiti concerning the reciprocal encouragement and protection of investment, … 1983.
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Mixed Material
Wash.: U.S. G.P.O., 1986.


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q": TIHE WHITE HOLUSE, Alorelh 2.. //SC,'.
q^'.'7To the Senate of the United States:
;, With a view to receiving the advice and consent or the Senate to
ratification, 1 transmit herewith the treaty between the United
States of America and the Republic of Haiti concerning the Recip-
rocal Encouragement and Protection of Investment, with Protocol.
signed December 1;3, 1983, at Washington. I transmit also, for the
rI*' j~*- information of the Senate, the report of the Department of State
with respect to this treaty.
This treaty is among the first six treaties to be transmitted to
the Senate under the Bilateral Investment Treaty iBITf program
that I initiated in 19S1. The BIT program is designed to encourage
and protect U.S. investment in developing county ies. The treaty is
:an integral part of U.S. efforts to encourage Haiti and other gov-
ernments to adopt macroeconomic and structural policies that will
promote economic growth. It is also fully consistent with U.S.
policy toward international investment. That policy holds that an
open international investment system in which participants re-
pr t spond to market forces provides the best and most efficient mecha-
nism to promote global economic development. A specific tenet, re-
elected in this treaty, is that U.S. direct investment abroad and for-
eign investment in the United States should receive fair, equitable,
and nondiscriminatory treatment. Under this treaty, the parties
,--ir L also agree to international law standards for expropriation and
compensation; free financial transfers; and procedures, including
international arbitration, for the settlement of investment disputes.
I recommend that the Senate consider this treaty as soon as pos-
sible, and give its advice and consent to ratification of the treaty,
with protocol, at an early date.
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STh'e. ,". ,Washington, February 19. 198/.
,- .The White House.
T HE PRESIDENT: I have the honor to submit to you the Treaty be-
twcen the United States and the Republic of Haiti concerning the
.^i Reciprocal Encouragement and Protection of Investment, with Pro-
tocol, signed at Washington, December 13,' 198:3. This treaty is
Among the first six treaties to be negotiated under the bilteral in-
l", ~vestment treaty (BIT) program which you initiated in 1981. Devel-
I.;W.?; *, opment of the BIT program and the negotiation of the individual
'' treaties have been pursued by the Office of the United States
Trade Representative and the Department of State with the active
V V;f participation of the Department of Commerce and the U.S. Treas-
a.n ury, in conjunction with other interested U.S. Government agen-
cies. I recommend that this treaty, as well as the others concluded
w' ith the Kingdom of Morocco, the Republic of Panama, the Repub-
lic of Senegal, the Republic of Turkey, and the Republic of Zaire,
U'- be transmitted to the Senate for its advice and consent to ratifica-
In 19S1 you initiated the global bilateral investment treaty (BIT)
ir ~program to encourage and protect U.S. investment in developing
Countries. By providing certain mutual guarantees and protections,
-.' a BIT creates a more stable and predictable legal framework for
.' ,foreign investors in each of the treaty Parties. The negotiation of a
--.- -. series of bilateral treaties with interested countries establishes
greater international discipline in the investment area.
.The six treaties which have been signed as well as others under
^ negotiation are an integral part of U.S. efforts to encourage other
governments to adopt macroeconomic and structural policies that
will promote economic growth. They are also fully .u.isi'"ent with
your policy statement on international investment of September 9,
.! 1983, which states that intei national direct investment flows
?. should be determined by private market forces and should receive
-': fair, equitable and non-discriminatory treatment.
.S Our experience to date has shown that interested countries are
.'- willing to provide U.S. investors with significant investment guar-
antees and assurances as a way of inducing additional foreign in-
., -. vestment. It is our policy to adviser, potential treaty partners that
-;:-' v.' .ab conclusion of BIT with the United States is an important and fa-
Svorable factor in the investment relationship, but does not in and
.' of itself result in immediate increases in U.S. investment flows.

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.(- Con-gri.-sional support for Ihe BIT program is reflected in Section
G'l; l a an;id Ibl of' the Foreigin A.\sistance Act. as amended, in par-
ti C tular at Section (;liii which provides:
II n order to enc( ur.age and facilitate p Irticipation by pri-
vate ent orplrse to th(e maximum extent practicable in
achieving any of the purposes of this Act., the President
Shall .: 1i accelerate .* prolr iram of negotiating treaties
Il or comr inerce and trade, including tax treaties., which
s hall include ,provisions to eLcourage andl faIcilitate the
f lo of p)Iivate investmelint to, and i;s eqiuit able investment
inl. friendly countries; a nd areas participation in programs
under this Act
-IT l''s a; i. consistent in purpose wilh the network of treaties of
SFriendship. Conmmerce and Navigation IF(Nsj which the United
SSat es negotiated from the early years of the Republic until the
'-:- last successful negotiations with Thailand and Togo in the late
...~ l! standards ol equitable treatment and protection of U.S. citizens
carrying on business abroad, and institutionalizing processes for
Sthe settlement of disputes between investors and host countries,
and between governments. We expect that a series of bilateral trea-
.* I ties with interested countries will establish greater international
disciplinee in the investment area.
:, The BIT was designed to protect investment not only by treaty
;. ".h but also by reinforcing traditional international legal principles
.-a and practice regard ing foreign direct private investment. In pursuit
of this objective, the model BIT adopts FCN language and concepts.
:Traditional FCN provisions granting rights which are not impor-
tiant t heo typical U.S. investor were eliminated and replaced with
Iv- more specific IanIuage concerning investment protection. Perhaps
Most sit"nilic:lntly. the BIT goes beyond the traditional FCN to pro-
'. vide inlvestlr-host country arbitration in instances where an invest-
ment dispute arises.
:-'"i Our BIT ,approach followed similar programs that had been un-
'. dertaken with considerable successs by a number of European coun-
..'.i. tries, including the Federal Republic of GCrmanv and the United
-KIingdom, since the early l!i;Is. Indeed. our industrialized partners
:a"-"I're already have nearly two hundred BITs in force, primarily with de-
veloping countries Our treaties, whicli draw upon language use'l in
'."l thle U.S. FC'N treaties as well a.,, Eurlopeian counterparts, are more
comprehenisie and lar-reaching than European BITs.
Ti" 'I: U.S -H11, AII N T''-..vryI
.. The tr.,eil with lin ilti i .was negotiated by an interagency team led
)y olicial rom tlhe Office ofl tihe United States Trade Representa-
trie aind the Depart I meni t (f State The treaty satis fies all f Iouri main
BI' ob ject ives:
--foreign investors are t'i be accorded treatment in accordance
wit I international I w and are to be treated no less favorably
.-'II than ii'. .estors fl' the lho nt country and no les favorna ly than
l-investors of thiid county i e. whichever is the most invorable

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-iitcrn;iationaI l lw s;Indll rdi .lr >ll apply Ho t. i lo.\propin.11tion of
-... f i l.'.tml s ; d l t tihe plymenl i Il co)nl 'll;lti()in ()r I.expro-
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a of---fr.e transfers shall he a.fl'urdrd lo funds associated with an iIn-
W_ .-. i v.lawt tmen-t into and mlt of the hoart country; andhe
.pro. i e-procedure i e re to be established which allow ri n investor ti
thi ke dispi ute Iwith a [n P rlt v iractly to binding third-e)irtty r-;
.- ,-on.h init rat ion. I
The p clauros, tli Ivions on tleitnt of oreit l invetenIt ind abitra-
.. tin. S nd in p fortiCiul ter I v iti's anceptaceli of internatinornal law as
--f:I--... hom ti he Uvernin ldlw, n trk In important achie-vemnnt lor the lilI lT'
1A +. i'., ^"7' I program and our investment and international arbitration policies.
:l-.lA ethnicall inenuorandumn explain inn h in detail the provisions io
i .- -,,this treaty will he transmitted separately to 'the Senate Committee'
on Foreign Relations. h'I'lIt technical tnenmoraindum explains, clau,,se
l-.tLR.,p^"*T by clue, the provisions of the treaty with Haiti.
Some provisions of the treaty with Haniti differ in minor rcspect:
from the U.S. model text. In general, however, the treaty clovlyv
follows the aInnguage contained in the U S. model text, the moa si. -g-
nilicant provisions of which are as follows.
:. ..... ..The model BIT's definition section ch.rifies terms such as "com-
.... pain' of a Party" and "investment." The BIT concept of "invest-
'r ,nmont" is broad and designed to be flexible; although numerous
9 j".^ INtypes of economic interests are enumerated, the intent is to include
'-i ;. all legitimate interests in the territory of either Party, whether di-
re~ lv or indirectly controlled by nationals of the other, having eco-
nomic value or "associated" with an investment. Protected "compa-
nles of a Party" are those incorporated or otherwise organized
under the laws of a Party in which nationals of that Party have a
substantial interest.
The model BIT accords the better of national or most-favored-
nation I MFNI treatment to foreign investment, subject to each
Party's exceptions wlich are listed in a separate Annex. The excep-
tions are designed to protect state regulatory interests and for the
U United States to accommodate the derogations from national treat-
ment in state or federal law relating to such areas as air transport,
shipping, banking, telecommunications, energy and power produc-
tion, insurance, and from national and MFN treatment in the case
of ownership of real property. Any future exceptions to these
standards which a Party adopts are not to affect existing invest-
ments. The BIT also includes general treatment protections de-
0ie signed to be a guide to interpretation and application of the treaty.
treatment" and "full protection and security" in no case "loss than
that required by international law." It specifically grants nationals
of a Party the right to establish investments in the territory of the
other Party, restricts the right to impose performance require-
ments, and obliges Parties to observe their contractual obligations
with investors. The U.S. model also provides that nationals and
companies of either Party shall in the territory of the other Party
i 't *'b he permitted to employ professional, technical and managerial per-
.-r sonnel of their choice regardless of nationality.

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The model BIT also confers protectio- from unlawful interfer-
: ( fence (I property intertets an d aZ ,ures compcipns. iion in accordance
: .. with international Ilaw; standards. It provides that any direct or in-
direct taking must be: for a public purpose; nondiscriminatory; ac-
comnpanied by the payment of prompt. adequate and effective con-
pensation; and in accordance with due process ol' lav and the gon-
... eral standards of treatment discussed above. The IT'"s definition of
S"expropriation" is bIroad and flexible: es-entiially "any measure
.regardless of form, which has the cl/i(ct of depriving an investor of
his management, control or economic value in n project can consti-
tut' expropriation requiring comlp)eniation equal to the "fair
.market value." Such compensation, which "''shill not rmilect any re-
duction in such fair market value due to the expropriatory
,_-;. ; action," must he "without delay," effectivelyy realizable," "freely
-..'^ ttransferable" and "bear current interest from the date of the ex-
propriation at a rate equal to current international rates." The BIT
.grants the right to "prompt review" by the relevant judicial or ad-
':;." ministrative authorities in order to determine whether the compen-
sation offered is consistent with these principles. It also extends na-
tional and MFN treatment to investors in cases of loss due to war
or other civil disturbance. The BIT does not provide, however, a
''-' specific valuation method for compensating such losses.
:. :. Tl'hie model BIT provides for free transfers "related to an invest-
.ment," specifically or returns, compensation for appropriation, cun-
tract payments, proceeds from sale, and contributions to capital for
maintenance or development of an investment Such transfers are
to be made in a "freely convertible currency at the prevailing
:., market rate of exchange on the date of transfer with respect to
spot transactions in the currency to be transferred." The model
text recognizes that notwithstanding this guarantee Parties can
Maintain certain laws and regulations rpg. rding transfers provided
These are applied in a non-discriminatory fashion. In particular,
",. .. the model BIT provides that Parties can require reports of curren-
... cy transfer. and impose income taxes by such means as a withhold-
"ing tax on dividends.
The model BIT provides that where certain defined investment
disputes arise between a Party and a national or company of the
:. other Party. including disputes as to the interpretation of an in-
."J-F vestment agreement, and the dispute cannot be solved through ne-
gotiation, it may be submitted to arbitration in accordance with
any dispute-settlement procedures to which the national or compa-
-i. ny and the host country have previously agree. Unless the national
Sor company has submitted the dispute to previously agreed dispute
settlement procedures or to adjudication by domestic courts or
other tribunals of the host country, the national or company may
.;'-. submit the dispute to the International Centre for the Settlement
..::: of Investment Disputes "[ICSID"I. Exhaustion of local remedies is
not required .n a separate provision, the BIT Parties also agree to
grant nationals and companies of the other Party access to their
domestic courts in order to assert claiwrs and enforce rights with
S; respect to investments.
r-- The model BIT provides for state-to-state arbitration between the
,i Pa.irtit-, in case of a dispute regarding the interpretation or applica-
ion ot the\. In the absence' ol an agreement that other rules

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apply, the BIT refeis the Parties to specific procedural rules which
must gcvern the arbitration. The BIT also outlines the procedures
for th,' creation of the arbitral panel.
The model BIT exhorts Parties to apply their tax policies fairly
and equitably. Because the United States specifically addresses tax
matters in tax treaties, the BIT generally excludes such matters. It
also specifically limits the arbitration provisions to only certain
taxation matters. Another BIT provision exempts disputes arising
under Export-Import Bank programs, or other credit guarantee or
insurance arrangements providing for alternative dispute settle-
ment arrangements, from the standard BIT arbitration clauses. -
The model BIT also states that the treaty shall not derogate from
any obligations that require more favorable treatment of invest-
ments and declares that the treaty shall not preclude measures
necessary for public order or essential security interests. The model
BIT enters into force :t days after exchange of ratifications and
continues in force for at least ten years. Thereafter, either Party
may terminate the treaty, subject to one year's written notice.
Each of these model provisions was developed after lengthy and
extensive consultations within the U.S. Government and with the
private sector. Nonetheless, in negotiating a particular treaty, the
U.S. Government retains, of course, some flexibility to adopt modi-
fications as necessary and in light of experience. While the U.S.
mode! text has recently been simplified, the provisions summarized
above have all been retained.
The Haiti text contains a number of minor modifications in the
model text. Noteworthy modifications are as follows:
ill Competilu'c equality.-The model U.S. text stipulates that
conditions of "competitive equality" shall be maintained be-
tween private investments of one Party and host-country pri-
vate and public-sector investments. The Haiti text (Article II,
paragraph Iii provides for "fair and equitable treatment" in
such situations, which is identical to the agreed language in
tne treaty with Panama. 'l
t21 Performance requirements.-The U.S. model text prohibits
performance requirements as a condition for establishing, ex-
panding or maintaining and investment. The Haiti text (Arti-
cle II. paragraph 71 exhorts the Parties to "seek to avoid" im-
position of performance requirements upon one another's in-
vestors. The less categorical language of the Haiti BIT regard-
ing performance requirements was judged to be necessary pri-
marily because of Haiti's existing incentive schemes for export
industries and regional development.
:(3 Cislromrs union exception to MFN treatment.--Haiti re-
quested that the treaty pe.-mit deviation from MFN treatment.
if this is required by membership in a regional customs union
(Article II, paragraph 12). Although Haiti does not presently
belong to a regional customs union, it wants to retain the
option of joining the Caribbean Community ICARICON). As
long as Haiti is not a member of a regional customs union, the
exception to MFN treatment is not applicable and the stand-
ard of treatment specified in the U.S. model text governs. The
concept of a customs union bor monetary union exception to
non-discriminatory treatment of foreign investment parallels

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si miilar provisions in the trade and monetary areas. specifically ,-
in the GAlTT iArticle XXVi,. the OECD Codes on Current In- .. _+ ,--
visible Operations iArticle (10 and Liberalization of Capital -',
Movements iArticle lii. ' DisI te Settllc n tcl .-- .,t't : ...
iiI The Haiti BIT specifies the International Chamber of
Commerce ilCCi as the forum for arbitration of disputes
between an investor and a Part:y IArticle VllI. The U.S.
model text specifies the ICSID or the Additional Facility of -- '-
ICSID as the arbitral forum. Haiti, however, is not a -:i 2
member of ICSID. !'j. :-i
The Paris-based ICC's Court of Arbitration was estab-
lished in '192. In 1!9.2 it considered 263 cases, nearly 40
percent of which involved amounts of at least one million
dollars. U.S. citizens were arbitrators in approximately 25 "
cases. The Department of State has determined that ICC -' : .
arbitral procedures are satisfactory for providing effective ,. .
dispute settlement procedures under the BIT. .
(ii) To ensure that arbi'ral awards will be enforced. Arti- l .I .
cle VII, paragraph :3d) states that the venue for arbitra- ,. ', ;
tion shall be in a State which is a Party to the New York
Convention on the Recognition and Enforcement of For-
eign Arbitral Awards. This requirement was included to
satisfy U.S. law, which mandates that U.S. courts enforce ,.
arbitral decisions made only in States which are party to
the New Yurk Convention. In addition, a final sentence is
added to Article VII, paragraph 3idi requiring the Parties.
to enforce arbitral awards within their territories. Haiti ;i-1-..
became a party to the New York Convention by accession
on December 5, 19S3. The United States is also a party to .
the Convention.
1~1 General scope o/ trcatY. -The Protocol to the Haiti treaty ".'; ,
specifies a detailed list of activities, such as the making, per-
formance and enforcement of contracts, which are activities ..
"associated" with an investment and therefore entitled to .-.- --
treaty protection.
i;i Exemptions from coct'ramPe.-In the Annex to the treaty. .; .
Haiti exempts from national treatment and the right of estab-
lishrnent banking; insurance; telecommunications; government ..
grants; energy production and trade: real estate: air. sea and ; :.
land transportation; natural resources and mining exploita- --''
tion: radio and television broadcast: production and distribu-
tion of basic commodities; professions, agro-industrial sector:;
and the chemical industry Ni."'"
Submission of this treaty, together with the other five noted
above, marks a significant development in our international in-
vestment policy I join with the United States Trade Represent-
ative and other U.S Government agencies in supporting these '.- ''
treaties and favor their approval by the Senate at an early ''--

Respect fully submitted. l,.; -.
G :.oncE P. SHnuL.TZ '-^ '+: "


'"The United States of America and the Republic of Haiti (each
hereinafter referred to as a "Party"),
_. Desiring to promote greater economic cooperation between them,
particularly with respect to investment by nationals and companies
of one Party in the territory of the other Party; and *
Recognizing that agreement upon the treatment to be accorded
such investment will stimulate the f'ow of private capital and the
-;, economic development of both Partie-.
Agreeing that discrimination on the basis of nationality by either
Party against investment in its territory by nationals or companies
of the other Party is not consistent with either a stable framework l
for investment or a maximum effect..e utilization of economic re-
'.. Having resolved to conclude a treaty concerning the encourage-
ment and reciprocal protection of investment, and
Have agreed as follows: 1
For the purposes of this Treaty,
(at "Company" means any kind of juridical entity, including any
corporation, company, association, or other organization, that is
V duly incorporated, constituted, or ctherwisc uly organized. regard.
less of whether or not the entity is organic for pecuniary gain,
privately or governmentally owned, or organized with limited or
l unlimited liability.
(b) "Company of a Party" means a company duly incorporated,
constituted or otherwise duly organized under the applicable laws
and regulations of a Party or a political subdivision thereof in
(i) natural persons who are 'itionals of such Party, or
ii) such Party or a poll subdivision thereof or their .
agencies or instrumentalities
have a substantial interest as determined by such Party. i
-. The juridical status of a comia?-y of a Party shall be recognized
,i-.-<. by the other Party and its polit. subdivisions.
S.f';'; .Each Party reserves the right to deny to any of its own compa-
nies or to a company of the other Party the advantages of this
Treaty, except with respect to recognition of juridical status and
access to courts, if nationals of any third country control such com-
-1. 1pany, provided that whenever one Party concludes that the bene-
fits of this Treaty should not be extended to a company of the other

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-.;. Party for this reason, it shall promptly consult with the other
S .Partv to seek a mutually satisatotor resolution to this matter.
,.: ,' "Investment' means every kind of investment, owned or con-
:-. C trolled directly or indirectly, including equity. debt, and service
and investment contracts; and includes:
i- tangible and intangible property, including rmhts, such as
Mortgages, liens and pledges: '
--. .. -' iil a company or shares of stock or other interest in a c1oin-
Sany.; 'or pany or interests in the assets thereof;
liii a claim to money or a claim to performance having ecoJ-
nomic value, and associated with an investment;
ivi intellectual and industrial property rights. including
rights with respect to copyrights, patents, trademarks, trade
names, industrial designs, trade secrets and know-how. and
'. !goodwill;
?-- ,t (y,'vi licenses and permits issued pursuant to law. including '= ..i
those issued for manufacture and sale of products;
Svil any right conferred by law or contract, including rights
,-," to search for or utilize natural resources, and rights to manu-
facture, use and sell products; and :
i" vii' returns which are reinvested.
'Any alteration of the form in which assets are invested or rein-
Svested shall not affect their character as investment. V
Id "Own or control" means ownership or control that is direct or.
indirect, including ownership or control exercised through subsidi-
aries or affiliates, wherever located.
i,...'..--- i tional of a Party under its applicable law.
1-: "Return" means an amount derived from or associated with
an investment, including profit. dividend: interest; capital gain: 3
royalty payment; management, technical assistance or other fee; ori
:returns in kind
,"-;'? i- ARTICLJ: II
T':-":" 7"rca me nt o1/ Ini'cstniclt
1. Each Party shall endeavor to maintain a favorable environ-
ment for invetm cents in its territory by nationals and companies of
the other Party and shall permit such invest:n nts to be estab-
: --. listed and acquired on terms and conditions that accord treatment '.
"*-: ". noi less favorable than the treatment it accords in like situations to
,investments of its own nationals or companies or to nationals and
,companies of any third country, whichever is the most favorable.
SEach Party hall accord existing or new investments, and asso- -
.' cited activity: es, in its territory, of nationals or companies of the
other Party, treatment no less favorable than that which it accords
'.- ,.-. in like situations t,-i investments, and associated activities, of its
-n,- nationals or o'inpanies or of nationals or companies of any "
:, ... thLird country, which cr is the most favorable.
:: m i Notwithstandinri the preceding provisions of this Article.
,each Party rt-esrves the rilit to maintain limited exceptions to the
.'" -;' stand rd of treatment otherwise required if such exceptions fall
Within one of the -ectoris or manitters listed in the Annex to this
"' -


' t. Hlach PI arty agrees to n1:tif y the other Party o)f all uch ez- '
o'pt.ii.ns at their imnc this Treat\ ,.nter- into lorce. Miri'ovei;', each *
-: rty agre'.s tn notil'y the other Party of anV future exceptions fall-
.i.,,'i within the sectors or matters listed in the Annex. arid to man n-
tain thth number of such exceptions at a minimum Other than *
1 ith respect to ownership of real property, lie treatment accorded
:...pursuant to this subparagraph shall not be less favorable than that
accorded in like situations to investments and associated activities
of national or companies of any third country However, either
Party may require that rights to engage in mining on the public
domlin shall be dependent on reciprocity
hbi No exception introduced alter the date of entry into force of
this treaty shall appl5 to investments of national'; or companies of'
the other Party existing in that sector at the time the exception
becomes effective.
4. Investment of nationals and companies of either Party shall at
all times be accorded fair and equitable treatment and shall enjoy.
full protection and security in the territory of the other Party. The
treatment, protection and security of investment shall be in accord- w
0- M ance with applicable national laws. and shall in no case be less
than that required by international law. Neither Party shall in any
way impair by arbitrary and discriminatory measures the manage-
ment, operation, maintenance, use. enjoyment, acquisition, expan- Ali;
Ssion. or disposal of investment made by nationals or companie- of
the other Party
.). at Subject to the laws relating to the entry and sojourn of
aliens, nationals ef either Party shall be permitted to enter and to
'- remain in the t erritor% ofh te other Party for the purpose of estab- '
lishirng, developing. directing,. administering or advising on the op-
eration of an in'.'estment to which they, or a company of the first
Party that employs them have committed or are in the process of ,
conmiltting a suostantial :amount of capital or other resources
1bt Nationals and companies of either Party shall be permitted to
engage. within the territory v of tl.e otier Party, professional, tech-
nical and managerial personnel of their choice. regardless, of na-
Stionality, Ir the particular puirp.os e of rendering professional, tech-
Snical and managerial assistance riect:essary for the planning and op-
Seration of investments. Companies which are incorporated. consti-
tuted. or otherwise organized under the applicable lahs or- ri-ula-
tio5s 0o one Party, and which are owned or controlled by nationals
ior companies of the ot her Party, hall be permitted to engage,
1 within the territory ,of the first Party, top manmiigerial per-j' nnel iof
their choice regardless of nationality
;i. Each Party agrees to provide fair and equitable tr eatment and.
in particular, tie treatment provided lor in paragraphs I and 2 of
this Article. to privately ow ned or controlled investnim-nt of nation-
als or companies of th t e other Pa t such in estnen t i1 it
Scormpetition, wit hin tle t errit i.ry of the Iirist Pa rty, v ithi invest -
inent owned or controlled by the First P irty (or its ageinclen or iIn-
''m t ,trumentalities In no case shall such treatment be less,- favorable 'i
S than that provided to any private l, owned or controlled investment
of nationals or companies f the t' lit Party which is al-, in compe-
titiion with ini'estmtent owned or controlled by thl Parts or its
l agenctiets C or inst'ru mnitalitf it -
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7. In order to maintain a climate favorable to investment, earh
Party shall seek to avoid interventions which would impose per-
formanc.' requirements upon the investment of national ar.d com-
panies of the other Party
8. In order to maintain a favorable environment for investments
in its territory by nationals or companies of the other Party, each
Party shall pro' ide effective means of asserting claims and erlforc-
ing rights with respect to investment agreements, investment au-
thorizations and properties. Each Party shall grant to nationals or
companies of the other Party, on terms and conditions no less ta-
vorable than those which it grants in like situations to its own na-
tior.".ts or companies or to nationals or companies of any third coun-
try, whichever is the most favorable treatment, the right of access
to its -2ourts of justice, administrative tribunals and agencies, and
all other bodies exercising adjudicatory authority, and the right to
employ persons of their choice. ..vho otherwise qualify under appli-
cable laws and regulations of the forum regardless of nationality,
for the purpose of asserting claims, and enforcing rights, with
respect to their investments.
9. Each Party shall make public all laws, regulations, administra-
tive practices and procedures, and adjudicatory decisions that per-
tain to or affect investments in its territory of nationals or compa-
nies of the other Party.
10. The treaimeit accorded by a Party to nationals or companies
of the other Party under the provisions of Paragraphs 1 and 2 of
this Article shall. in any State, Territory or possession of the Party,
be the treatment accorded therein to companies incorporated, con-
stituted or otherwise duly organized in other States, Territories or
possessions of the Party.
11. Except for the obligations specified in this Treaty, neither
Party is obliged to provide to the investments of the other Party
treatment more favorable than that granted to the investments of
its own nationals and companies or to investments of nationals and
companies of any third Party.
12. The most favored nation provisions of Article II, paragraph 3.
shall not apply to advantages accorded by either Party to nationals
cr companies of a third country by virtue of that Party's binding
obligations that derive from full membership in regional customs
SCnipensalion for Expropriatlon
1. No investment or any part of an investment of a national or a
company of either Party shall be expropriated or nationalized by
the other Party or subjected to any other measure or series of
measures. direct or indirect tantamount to expropriation including
the levying of taxation, the compulsory sale of all or part of an in-
vestment, o0 the impairment or deprivation of its management,
control or economic value!, dil such actions hereinafter referred to
as "e-..propriation". unless the expropriation:
lai is done for a public: purpose:
.tb is accomplished under due process of law;

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id' does not violate any specific provision on contractual t'ta-
hility or expropriation contained ill an investment agreement
b-t ween the national or company concerned and the Party
making the explropriation; and
re is accolnpanied by prompt, adequ;ote and effective co1l -
('npensatiln. will be equivalet to the fair market value of the in-
-A vestment, as determined according to different methods of' clcula-
tion as appropriate in each specific case. The calculation of con-
persation shall not reflect any reduction of the fair market value
hb reason of previous public knowledge or announcement of' the ex-
propriation or measures resulting in an exproprintion Such conm-
pensation shall be paid promptly: shall be effectively realizable,
eqLt:vahlent to current international rates, and shall be freely trans-
ferable at the official market rate of exchange on the date of expro-
V. If either Party expropriates the investment of any company
d duly incorporated, constituted or otherwise duly organized in its
tenory, io. id if nationals or companies of the other Party. directly
or indirectly., o% n. hold or have other rights with respect to the
equity of such company, then the Part' within whose territory the
expropriation occurs shall ensure that such nationals or comlpanies
of Ithe other Party, receive compensation in accordance with the
Provisions of the preceding paragraph.
3. Subject to the dispute settlement provisions of any applicable
agreement, a national or company of either Party' that asserts that
all or paat of its investment in the territory of the other Par ty has
been expropriated shall have a right to prompt review by the ap-
^t tepropriate judicial or administrative authorities of such other Party
to determine whether any such exprproiation has occurred and, if'
so, whether such expropriation, and any co mp nis.ition therefore.
conl frmn to thteprilcippl. of international law as set forth in this
A\ ZTicu.L-: I'
('.wn- yl.ation /I Dumn-o.: Due h) W'ar an(d S.ntilar Eleynts
1 Nationals or cor.mpanile of either Party whose investment. in
the t rritory of tho ote Ier Party su!ler
Ivij danaages due to iar or other ;rmned conflict beteen sutch
other Party and a third country, or
b i damages due to revolution. state of national emergency.
reonlt, inulirection or riot in the te trritor of such other Party,
shall be accorded treatment no less favorable than that which such
o their Party accords to its ovn nationals or compa nies or to nation-
al- or cnnipanies of an> third country, whichever s the ll,,t f'avor-
able treatment. hen nim king restitution, i ndcmpniafic.,tion, conm"i pen-
(Y Nsation or other appr,)printo settlement with 're .pect to Slch d m-ll-
2 In the event tlLhat such damageth re~ Pult from

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(a) a requisitioning of property by the other Party's forces or
authorities, or
,4 i(b) destruction of property by the other Party's forces or au-
thorities which was not caused in combat action or was not re-
.-<:',..-! quired by the necessity of the situation,
the national or company shall be accorded restitution or compensa-
,Ci.- tion consistent with Article III.
.3. The payment of any indemnification, compensation or other
appropriate settlement pursuant to this Article shall be freely
,. transferable.
v.'.:. ARTICLE V
,.: .- 1. Each Party shall permit all transfers related to an investment
in its territory of a national or company of the other Party to be
Made freely and without delay into and out ol its territory. Such
transfers include the following: returns; compensation; payments
made arising out of a dispute concerning an investment; payments
!A,. -Z made under a contract, including amortization of principal and ac-
crued interest payments made pursuant to a loan agreement;
-'. amounts to cover expenses relating to the management of the in-
--"i vestment; royalties and other payments derived from licenses, fran-
chises or other grants of rights or from administrative or technical
assistance agreements, including management fees; proceeds from
the sale of all or any part of an investment and from ,he partial or
complete liquidation of the company concerned, including any in-
cremental value; additional contributions to capital necessary or
appropriate for the maintenance or development of an investment.
2. To the extent that a national or company of either Party has
not made another arrangement with the appropriate authorities of
the other Party in whose territory the investment of such national
-. or company is situated, currency transfers made pursuant to Para-
graph 1 of this Article shall be permitted in a currency or curren-
"g cies to be selected by such national or company. Except as provided
in Article III, such transfers shall be made at the prevailing
market rate of exchange on the date of transfer with respect to
spot transactions in the currency or currencies to be transferred.
I *.- 3. Notwithstanding the preceding paragraphs, either Party may
maintain laws and regulations: iai requiring reports of currency
transfer; and (bi imposing income taxes by such means as a with-
holding tax applicable to dividends or other transfers. Further-
more, either Party may protect the rights of creditors, or ensure
the satisfaction of judgments in adjudicatory proceedings, through
; t, equitable, nondiscriminatory and good faith application of its

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 cf the

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Treaty. including any matter relating to the laws, regulations, ad-
ministrative practices or procedures, adjudicatory decisions, or poli-
cies of one Party that pertain to or alfect investments of nationals
or companies of the other Party.


Se.ttlmcnict of l,'uestuninl DIisput, s Betwe'cn One Party and a
N\alion:l ',r (ominpny of the Other Party
1. For purposes of this Article, an investment dispute is defined
as a dispute involving 'a) the interpretation or application of an in-
vestment agreement between a Party and a national or company of
the other Party; ibi the interpretation or application of any invest-
ment authorization granted by its investment authority to such na-
tional or company; or ic, 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 between a Party and a
national or company of the other Party with respect to an invest-
ment of such national or company in the territory of such Party,
the parties to the dispute shall initially seek to resolve the dispute
by consultation and negotiation. The p.,tic. may, upon the initia-
tive of either of them, agree to rely upon non-binding, third-party
procedures. If the dispute cannot be resolved through t1he above
procedures, then the dispute shall be submitted for settlement in
accordance with the applicable dispute-settlement procedure-s upon
which they have previously agreed. With respect to expropriation
by either Party, any dispute-settlement procedures specified in an
investment agreement between such Party and such national or
company shall remain binding and shall be enforceable in accord-
ance with the terms of the investment agreement and relevant pro-
visions of domestic laws of such Party and treaties and other inter-
national agreements regarding enforcement of arbitral awards to
which such Party has subscribed.
:' ai) The national or company concerned may choose to consent
in writing to the submission of the dispute to International :ham-
ber of Commerce W"ICC"i, for settlement by conciliation or binding
arbitration, at any time after six months from the date upon .vhich
the dispute arose, provided:
lii the dispute has not, for any reason, been submit ed for
resolution in accordance with applicable dis-pute settlement
procedures previously agreed to by the parties to the dispute;
(iii the national or company concerned has not brought the
dispute before the courts ol'justice or administrative tribunals
or agencies of competent jurisdiction of the Party that is a
party to the dispute. Once the national or company concerned
has so consented. either party to the dispute may institute pro-
ceedings before the ICC If the parties disagree over whether
conciliation or binding arbitration is the more appropriate pro-
cedure to be employed, the opinion of the national or company
concerned shall prevail

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(bi Each Party hereby consents '. the submission of an invest-
ment dispute to the ICC for settlement by conciliation oi binding
Ic) Conciliation or binding arbitration of such disputes shall be
done in accordance with the provisions of the Regulations a
Rules of the ICC.
Idi In case of arbitration between a Party and a national or com-
pany of the other Party, the ICC. consistent with its rules, shall de-
termine the venue for arbitration. The venue for arbitration shall
be in a State which is a party to the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards. More-
over, each Party shall provide for the enforcement within its terri-
tory of ICC arbitral awards.
4. In any proceeding. judicial, arbitral or otherwise, concerning
an investment dispute between it and a national or company of the
other Party, a Party shall not assert, as a defense, counter-claim,
right of set-off otherwise, that the national or company concerned
has received or will receive, pursuant to an insurance contract. in-
demnification or other compensation for all or part of its alleged
damages from any source whatsoever, including such other Party
and its political subdivisions, agencies and instrumentalities.
5. For the purpose of any proceedings initiated before the ICC in
accordance with this Article, any company duly incorporated, con-
stituted or otherwise duly organized under the applicable laws and
regulations of either Party or a political subdivision thereof but
that, before the occurrence of the event or events giving rise to the
dispute, was owned or controlled by nationals or companies of the
other Party, shall be treated as a national or company of such
other Party.
6. The provisions of this Article shall not apply to a dispute aris-
ing (al under the export credit, guarantee or insurance programs of
the Export-Import Bank of the United States or ibi under other of-
ficial credit, guarantee or insurance arrangements pursuant to
which the Parties have agreed to other means of settling disputes.
Settlement of Disputes Between the Parties Concerning
Interpretation or Application of This Treaty
1. Any dispute between the Parties concerning the interpretation
or application of this Treaty should, if possible, be resolved through
consultations between representatives of the two Parties, and if
this should fail, through other diplomatic channels.
2. If the dispute between the Parties cannot be resolved through
the aforesaid means, and unless there is agreement between the
Parties to submit the dispute to the International Court of Justice,
both Parties hereby agree to submit it upon the request of either
Party to an arbitral tribunal for binding decision in accordance
with the applicable rules and principles of international law.
3. The Tribunal shall be established for each case as follows.
Within two months of receipt of a request for arbitration, each
Party shall appoint an arbitrator. The two arbitrators so appointed
shall select a third arbitrator as Chairman, who is a national of a


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11:' ir1d State The C(. chairman -hall he appointed within two month- of
the date of appointment of the other two arbitrators
.. I1. 11 the required appollintlments have not been made within the
: time specified in parragraph 8 of thi.s Article. either of the Parties
ni ayi. in the absence of any other agreement, request that the Presi-
..,' .(ldent of the International Court of ,Justice make tile requilired a p-
. i .. .-pointments. If the President is a national f lone ol tlhe Parties or if
l.,h i.s unable to act, the Vice I)resident shall be asked to make the
S reuirei d alppoinltments. If the Vice President i. n ationainl of one of
the Partiews or if he cannot otherwise perform said duties, the next
most senior member of the International Court of Justice who is
.' not a iUational of one of the Parties and i able to perform said
dutie' s.lhall be asked to make the required appointments.
1.1." 3. In the eent that an arbitrator resigns or is lor any reason
u''.. n aunahle to peiltorm l is duties, a replacement shall be appointed
M-,-'-.J- n within thirty days. utilizing the same method by which the arbitra-
l.:-. htor being replaced was appointed. If the replacement is not ap-
*. pointed within the time limit specified above, either Party may
iM .i i e ite ti resident of thie International Court of Justice to mnke
the near appoint t. If the resident i a national of either
,..of t le Parties or is unable to act for any ireson. either Party may
invite the Vice President, or if he is also a national of either of the
.;'. Parties or is unable to act for any reason, tle next most senior
":-; member of the International Court of .Justice who is not a national
of one of tie Parties and is able to perform said duties, to make the
.- appointment.
P: 1G. Unless otherwise agreed to by the Parties, all submissions
--"' ,hall be made and all hearing shall be completed within six
.., months f lle date of the selection of the third arbitrator, and the
Tribunal shall render its decision within two months of tile date of
1,' the final submissionN or the date of the closing of the hearings,
Swhic ever is later.
7. The Tribunal shAll decide in all matters by majority vote Any
00- 1, such decision shall be binding on both Parties. Each Party shall
bear the expenses of its own representation in the arbitration pro-
,-1 ceedings Expens e incurred b\ tlie Chailman, tlie other arbitra-
-.- 'I : tors. ind tllher co-ts of the proceeding shall he paid for equally by
the Parties Tlhe Tribunal may. however, at it-d discretion, direct
that a higher proportion of the costs be paid by'' one of the P:rties.
Such a decision shall be. binding
: The P-artles man\ :uree ti, s)pecific all .al procedures In the
ab1 '..."e of such agreenini, the l Mi del Rule- on Arbitral Procedure
adopted by the United N1,itions International Law Comnmis.ion in
Sl. "Model I{ules"i and clommen'ded to MeRimber Slates by the
'U" lnitd Nationls General Assemibly in Resolution 12G'2'.' Xll shall
-g'. ovt.rin To the extent ht thatprocedural qtuet-tion are not re.solv\dl by
--'" .:": thi- articlee or the Model Rule-, they shall be resolved h\ the Tri
i'This article lhall rnot be apl)liCable to a dispute which has bi.,en
..-.:t'. submitted to the International Chamber of (' ..m erce pur.suant to
Article \'I! i.l Recour.=.e to) tlie procedure, set frt.ll in this Article
,~- O.' ~i il( t I)precluded, however, in the event .:in award tendered in -uch
.. M_... dispute is not hon tred by a Part\: ir an issue e it-'t related to a

dispute submitted to the ICC but not argued or decided in that pro-
10. The provisions of this Article shall not apply to a dispute
arising (a) under the export credit, guarantee or insurance pro-
grams of the Export-Import Bank of the United States, or (b) under
other official credit, guarantee or insurance arrangements pursu-
ant to which the Parties have agreed to other means of settling dis-
:.' Preservation of Righ ts
This Treaty shall not supersede, prejudice, or otherwise derogate
(a) law and regulations, administrative practices or proce-
., dures, or administrative or adjudicatory decisions of either
(b) international legal obligations; or
(c) obligations assumed by either Party, includingg those con-
tained in an investment agreement or an investment authori-
whether extant at the time of entry into force of this Treaty or
thereafter, that entitle investments, or associated activities, of na-
tionals or companies of the other Party to treatment more favor-
able than that accorded by this Treaty in like situations.
7. -Measures Not Precluded by This Treaty
1. This Treaty shall not preclude the application by either Party
of any and all measures necessary for the maintenance of public
order, the fulfillment of its obligations with respect to the mainte-
nance or restoration of international peace or security, or the pro-
Stection of its own essential security interests.
.' 2. This Treaty shall not preclude either Party from prescribing
special formalities in connection with the establishment of invest-
ments in its territory of nationals and companies of the other
Party. 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 should strive to
accord fairness and equity in the treatment of investment of na-
tionals and companies of the other Party.
2. Nevertheless, the provisions of this Treaty, and in particular
Articles VII arid VIII, shall apply to matters of taxation only with
S. respect to the following:
(a) expropriation, pursuant to Article ill;
(b) transfers, pursuant to Article V; or

(ci the observance and enforcement
ment agreement or authorization as r
(1) (a) or (b).
Matters covered by item 2(c) shall not I
they are subject to the dispute settlement
tion for the avoidance of double taxation
unless such matters are raised under suc
and are not resolved within a reasonable p
AiTriciL XII
Application of This Treaty to Political Sub
This Treaty shall apply to political subdi
Entry Into Force and Duration an
1. This Treaty shall be ratified by each
ratifications thereof shall be exchanged as
2. This Treaty shall enter into force their
exchange of ratifications. It shall remain
ten years and shall continue in force unle
ance with Paragraph 3 of this Article. It sh
existing a' the time of entry into force as
made or acquired thereafter.
3. Either Party may, by giving one yea
other Party, terminate this Treaty at the ec
period or at any time thereafter.
'I. With respect to investments made o
date of termination of this Treaty and to
wise applies, the provisions of all of the
Treaty shall thereafter continue to be effec
of ten years from such date of termination.
IN WITNESS WHEREOF, the respective
signed this Treaty.
DONE in duplicate at Washington on ti
member, 198:3 in the English and French
being equally authentic.
For the Government of the United States
For the Government of the Republic of H
Consistent with Article 11 paragraph 3,
right to maintain limited exceptions in tl
has indicated below:
The United States of America
Air transportation; ocean and coastal ship
government grants: government insuran
energy and power production; custom house
real estate; ownership and operation of bro



of terms of an invest-
eferred to in Article VII

be covered to the extent
provisions of a conven-
between the two parties,
*h settlement provisions
period of time.

-Dilvsions of the Parties
visions of the Parties.

d Trmination
of the Parties, and the
soon as possible.
ty days after the date of
in force for a period of
ss terminated in accord-
all apply to investments -
well as to investments

r's written notice to the
nd of the initial ten year

r acquired prior to the
which this Treaty other-
Sother Articles of this
:tive for a further period

e plenipotentiarie-s have -i .i.
ie thirteenth day of De-
1 languages, both texts

of America: Z'>'
E. BROCK, .Jr.

each Party reserves the
he sectors or matters it

iing; banking; insurance:
ce and loan programs;
se brokers; ownership of
adcast or common carri-

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er rac'io and television stations; ownership cf shares in the Commu-
Snications Satellite Corporation: the provision of common carrier
telephone and telegraph services: the provision of submarine cable
*':; :services; use of land and natural resources.
;. The Republic of Haiti :.
Banking, insurance, telecommunications; government grants;--
_.'-": energy production and trade; real estate; air, sea and land trans-
-:.t portation; natural resources and mining exploitation; radio and tel-
evision broadcast; production and distribution of basic commodities;
'-.."-1 professions; agro-industrial sector, chemical industry.'
Su.y-o r Protocol
o The duly authorized Plenipotentiaries of the Parties have agreed
upon the following provisions clarifying their intent in respect of
certain Articles of the Treaty Concerning Treatment and Protec-
tion of Investment signed this date, which shall be considered inte-
gral parts of the Treaty:
Each Party shall accord, under its laws and regulations, associat-
~. ed activities of existing or new investments in its territory of na-
tionals or companies of the other Party, treatment no less favor-
able than that which it accords in like situations to associated ac-
tivities of its own nationals or companies or of nationals or compa-
-: nies of any third country, whichever is the most favorable. With ".
respect to Article II paragraph 2 and Article IX, associated activi-
ties include:
(ai the establishment, control and maintenance of branches,
agencies, offices, factories or other facilities for the conduct of '
-b) the organization of companies under applicable laws and
regulations; the acquisition of companies or interests in compa-
nies or in their property; and the management, control, main.
tenance, use. enjoyment and expansion, and the sale, liquida- -
tion, dissolution or other disposition, of companies organized or
(c) the making, performance and enforcement of contracts; i_
(d) the acquisition whether by purchase, lease or otherwise),
ownership and disposition (whether by sale, testament or oth-
erwise), of personal property of all kinds, both tangible and in-
(ei the I .-inp. of rr.l property appropriate for the conduct of
(f) the acquisition, maintenance and protection of copyrights,
patents, trademarks, trade secrets, trade names, licenses and
J other approvals of products and manufacturing processes, and
other industrial property rights; and,
(g) the borrowing of funds, the purchase and inssuance of
equity shares, and the purchase of foreign exchange for im-


.. ..... 3