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Jamaica Bilateral Investment Treaty
Signed February 4, 1994; Entered into Force March 7, 1997
103rd CONGRESS 2nd Session
SENATE TREATY Doc. 103-35
TREATY BETWEEN THE UNITED STATES OF AMERICA AND JAMAICA CONCERNING THE RECIPROCAL ENCOURAGEMENT AND PROTECTION OF INVESTMENT, WITH ANNEX AND PROTOCOL
THE PRESIDENT OF THE UNITED STATES
TREATY BETWEEN THE UNITED STATES OF AMERICA AND JAMAICA CONCERNING THE RECIPROCAL ENCOURAGEMENT AND PROTECTION OF INVESTMENT, WITH ANNEX AND PROTOCOL, SIGNED AT WASHINGTON ON FEBRUARY 4, 1994
September 21, 1994.-Convention was read the first time and, together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate
U.S. GOVERNMENT PRINTING OFFICE
79-118 WASHINGTON : 1994
LETTER OF TRANSMITTAL
THE WHITE HOUSE, September 21, 1994.
To the Senate of the United States:
With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Treaty Between the United States of America and Jamaica Concerning the Reciprocal Encouragement and Protection of Investment, with Annex and Protocol, signed at Washington on February 4, 1994. Also transmitted for the information of the Senate is the report of the Department of State with respect to this Treaty.
This bilateral investment Treaty with Jamaica is the second such Treaty between the United States and a member of the Caribbean Community (CARICOM). This Treaty will protect U.S. investors and assist Jamaica in its efforts to develop its economy by creating conditions more favorable for U.S. private investment and thus strengthening the development of the private sector.
The Treaty is fully consistent with U.S. policy toward international and domestic investment. a specific tenet of U.S policy, reflected in this Treaty, is that U.S. investment abroad and foreign investment in the United States should receive national treatment. Under this Treaty, the Parties also agree to international law standards for expropriation and compensation for expropriation; free transfer of funds associated with investments; freedom of investments from performance requirements; fair, equitable and most-favored-nation treatment; and the investor or investment's freedom to choose to resolve disputes with the host government through international arbitration.
I recommend that the Senate consider this Treaty as own as possible, and give its advice and consent to ratification of the Treaty, with Annex and Protocol, at an early date.
WILLIAM J. CLINTON.
LETTER OF SUBMITTAL
DEPARTMENT OF STATE,
Washington, September 7, 1994.
The White House.
THE PRESIDENT: I have the honor to submit to you the Treaty Between the United States of America and Jamaica Concerning the Reciprocal Encouragement and Protection of Investment, with Protocol, signed at Washington on February 4, 1994. I recommend that this Treaty, with Protocol, be transmitted to the Senate for its advice and consent to ratification.
The bilateral investment treaty (BIT) with Jamaica is the second such treaty between the United States and a member of the Caribbean Community (CARICOM). The Treaty is based on the view that an open investment policy contributes to economic growth. This Treaty will assist Jamaica in its efforts to further develop its economy by creating conditions more favorable for U.S. private investment and thus strengthening the development of the private sector. It is U.S. policy, however, to advise potential treaty partners during BIT negotiations that conclusion of a BIT does not necessarily result in immediate increases in private U.S. investment flows.
To date, nineteen BITs are in force for the United States--with Bangladesh, Bulgaria, Cameroon, the Congo, the Czech Republic, Egypt, Grenada, Kazakhstan, Kyrgyzstan, Morocco, Panama, Poland, Romania, Senegal, Slovakia, Sri Lanka, Tunisia, Turkey, and Zaire. In addition to the Treaty with Jamaica, the United States has signed, but not yet brought into force, BITs with Argentina, Armenia, Belarus, Ecuador, Estonia, Haiti, Jamaica, Moldova, Russia, and Ukraine.
The Office of the United States Trade Representative and the Department of State jointly led this BIT negotiation, with assistance from the Departments of Commerce and Treasury.
THE U.S.-JAMAICA TREATY
The Treaty with Jamaica is based on the 1990 and 1991 U.S. prototype BITs. The Treaty contains in substance the protections and obligations that are contained in other U.S. BITs and achieves all of the prototype's objectives, which are:
-All forms of U.S. investment in the territory of the Jamaica are covered.
-Investments receive the better of national treatment or most favored-nation DUN) treatment both on establishment and thereafter, subject to certain specific exceptions.
-Performance requirements may not be imposed upon or enforced against investments.
-Expropriation can occur only in accordance with international law standards; that is, for a public purpose; in a nondiscriminatory manner, in accordance with due process of law; and upon payment of prompt, adequate, and effective compensation.
-The unrestricted transfer, in a freely usable currency, of funds related to an investment is guaranteed.
-Investment disputes with the host government may be brought by investors, or by their subsidiaries, to binding arbitration as an alternative to domestic courts.
These elements, and noteworthy variations in the body of the text, are further described below.
The following is an article-by-article analysis of the provisions of the Treaty:
The Preamble states the goals of the Treaty. The Treaty is premised on the view that an open investment policy leads to economic growth. These goals include economic cooperation, increased flow of capital, a stable framework for investment, and development of respect for internationally-recognized worker rights. While the Preamble does not impose binding obligations, its statement of goals may serve to assist in the interpretation of the Treaty.
Article I (Definitions)
Article I sets out definitions for terms used throughout the Treaty. As a general matter, they are designed to be broad and inclusive in nature.
The Treaty's definition of investment is broad, recognizing that investment can take a wide variety of forms. It covers investments that are owned or controlled by nationals or companies of one of the Treaty partners in the territory of the other. Investments can be made either directly or indirectly through one or more subsidiaries, including those of third countries. Control is not specifically defined in the Treaty. Ownership of over 50 percent of the voting stock of a company would normally convey control, but in many cases the requirement could be satisfied by less than that proportion.
The definition provides a non-exclusive list of assets, claims and rights that constitute investment. These include both tangible and intangible property, interests in a company or its assets, "a claim to money or performance having economic value, and associated with an investment," intellectual property rights, and any right conferred by law or contract (such as government-issued licenses and permits). The Jamaica BIT varies from the prototype by using "patentable inventions" and deleting "know-how" in the illustrative list. The requirement that a "claim to money" be associated with an investment excludes claims arising solely from trade transactions, such as a transaction involving only a cross-border sale of goods, from being considered investments covered by the Treaty.
Under paragraph 2 of Article 1, either country may deny the benefits of the Treaty to investments by companies established in the other that are owned or controlled by nationals of a third country if (1) the company is a mere shell, without substantial business activities in the home country, or (2) the third country is one with which the denying Party does not maintain normal economic relations. For example, at this time the United States does not maintain normal economic relations with, inter alia, Cuba or Libya.
Paragraph 3 confirms that any alteration in the form in which an asset is invested or reinvested shall not affect its character as investment. For example, a change in the corporate form of an investment will not deprive it of protection under the Treaty.
The definition of "company" is broad in order to cover virtually any type of legal entity, including any corporation, company, association, or other entity that is organized under the laws and regulations of a Party. The definition also ensures that companies of a Party that establish investments in the territory of the other Party have their investments covered by the Treaty, even if the parent company is ultimately owned by non-Party nationals, although the other Party may deny the benefits of the Treaty in the limited circumstances set forth in Article 1, paragraph 2. Likewise, a company of a third country that is owned or controlled by nationals or companies of a Party will also be covered. The definition also covers charitable and non-profit entities, as well as entities that are owned or controlled by the state.
The Treaty defines "national" as a natural person who is a national of a Party under its own laws. Under U.S. law, the term "national" is broader than the term "citizen;" for example, a native of American Samoa is a national of the United States, but not a citizen.
"Return" is defined as "an amount derived from or associated with an investment," and the Treaty provides a non-exclusive list of examples, including: profits; dividends; interest; capital gains; royalty payments; management, technical assistance or other fees; and returns in kind. The scope of this definition provides breadth to the Treaty's transfer provisions in Article IV.
The Treaty recognizes that the operation of an investment requires protections extending beyond the investment to numerous related activities. This definition provides a list of such investor activities, including operating a business facility, borrowing money, disposing of property, issuing stock and purchasing foreign exchange for imports. These activities are covered by Article II, paragraph 1, which guarantees the better of national or MFN treatment for investments and associated activities. While the wording of the Jamaica BIT varies slightly from that of the prototype, the use of "and other similar activities" ensures that this list is illustrative.
Article II (Treatment)
Article II contains the Treaty's major obligations with respect to the treatment of investment. Article II of the Jamaica Treaty rearranges the text of the prototype but contains all of its elements and obligations. By inserting the terms "national treatment" and "most favored nation treatment!" after the descriptions of these obligations in the text, the Jamaica Treaty makes these defined terms.
Article II, paragraph 1, was reorganized, without substantive effect, for greater clarity. This paragraph generally ensures the better of MFN or national treatment in both the entry and post-entry phases of investment. It thus prohibits both the screening of proposed foreign investment on the basis of nationality and discriminatory measures once the investment has been made, subject to specific exceptions provided for in a separate Annex. The United States and Jamaica have both reserved certain exceptions in the Annex to the Treaty, the provisions of which are discussed in the section entitled "Annex."
Paragraph 2 guarantees that investment shall be granted "fair and equitable" treatment. It prohibits Parties from impairing, through unreasonable or discriminatory means, the management, operation, maintenance, use, enjoyment, acquisition, expansion or disposal of investment. Rather than adding a sentence to clarify the mean of "arbitrary," the phrase "arbitrary and discriminatory" was replace by "unreasonable or discriminatory." This paragraph sets out a minimum standard of treatment based on customary international law.
In paragraph 2(c), each Party pledges to respect any obligations it may have entered into with respect to investments. Thus, in dispute settlement under Articles VI or VII, a Party would be foreclosed from arguing, on the basis of sovereignty, that it may unilaterally ignore its obligations to such investments.
Paragraph 3 allows, subject to each Party's immigration and employment laws and regulations, the entry of each Party's nationals into the territory of the other for purposes linked to investment and involving the commitment of a "substantial amount of capital." This paragraph serves to render nationals of a BIT partner eligible for treaty-investor visas under U.S. immigration law and guarantees similar treatment for U.S. investors. The reference to employment laws was called for, as Jamaica currently regulates the entry of aliens through such laws (rather than only through laws on immigration).
Paragraph 4 allows companies the right to engage top managerial personnel of their choice, regardless of nationality. The Jamaica BIT varies from the prototype in that this right is made subject to each Party's immigration and employment laws and regulations.
Under paragraph 5, neither Party may impose performance requirements such as those conditioning investment on the export of good produced or the local purchase of goods or services. Such requirements are major burdens on investors. The Jamaica BIT adds a provision to the BIT prototype clarifying what is implicit in this paragraph--that this agreement does not preclude such measures as a condition for receipt of an advantage.
Paragraph 6 provides that each Party must provide effective means of asserting rights and claims with respect to investment, investment agreements and any investment authorizations. The Jamaica BIT adds to the prototype language the clarification that "investment authorizations" refer to those granted by a Party's foreign investment authority. Under paragraph 7, each Party must make publicly available all laws, regulations, administrative practices and procedures and adjudicatory decisions pertaining to or affecting investments.
Paragraph 8 recognizes that under the U.S. federal system, States of the United States may, in some instances, treat out-of-State residents and corporations in a different manner than they treat in-State residents and corporations. The Treaty provides that the national treatment commitment, with respect to the States, means treatment no less favorable than that provided to U.S. out-of-State residents and corporations.
Paragraph 9 limits the Article's MFN obligation by providing that it will not apply to advantages accorded by either Party to third countries by virtue of a Party's membership in a free trade area or customs union or a multilateral agreement under the auspices of the General Agreement on Tariffs and Trade (GATT).
Article III (Expropriation)
Article III incorporates into the Treaty the international law standards for expropriation and compensation.
Paragraph 1 describes the general rights of investors and obligations of the Parties with respect to expropriation and nationalization. These rights also apply to direct or indirect state measures "tantamount to expropriation or nationalization," and thus apply to "creeping expropriations" that result in a substantial deprivation of the benefit of an investment without taking of the title to the investment. The Jamaica Treaty adds a sentence to the prototype language stating that the determination of fair market value should not reflect any change in the value of the investment attributable to the expropriation itself.
Paragraph 1 further bars all expropriations or nationalizations, except those that are for a public purpose; carried out in a non-discriminatory manner, subject to "prompt, adequate, and effective compensation"; subject to due process; and accorded the treatment provided in the standards of Article II (2). (These standards guarantee fair and equitable treatment and prohibit the arbitrary and discriminatory impairment of investment in its broadest sense.)
The second sentence of paragraph 1 clarifies the meaning of "prompt, adequate, and effective compensation." Compensation must be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known (whichever is earlier); be paid without delay, include interest at a commercially reasonable rate from the date of expropriation; be fully realizable; be freely transferable; and be calculated in a freely usable currency on the basis of the prevailing market rate of exchange.
Paragraph 2 entitles an investor claiming that an expropriation has occurred to prompt judicial or administrative review of the claim in the host country, including a determination of whether the expropriation and any compensation conform to the provisions of the Treaty.
Paragraph 3 entitles investors to the better of national or MFN treatment with respect to losses related to war or civil disturbances, but, unlike paragraph 1, does not specify an absolute obligation to pay compensation for such losses.
Article IV (Transfers)
Article IV protects investors from certain government exchange controls limiting current account and capital account transfers.
In paragraph 1, the Parties agree to permit "transfers related to an investment to be made freely and without delay into and out of its territory. Paragraph 1 also provides a non-exclusive list of transfers that must be allowed, including returns (as defined in Article I); payments made in compensation for expropriation (as defined in Article III); payments arising out of an investment dispute; payments made under a contract, including the amortization of principal and interest payments on a loan; proceeds from the liquidation or sale of all or part of an investment; and additional contributions to capital for the maintenance or development of an investment.
Paragraph 2 provides that transfers are to be paid in a "freely usable currency" at the prevailing market rate of exchange on the date of transfer with respect to spot transactions in the currency to be transferred. "Freely usable is a standard of the International Monetary Fund; at present there are five such "freely usable" currencies: the U.S. doIlar, Japanese yen, German mark, French franc and British pound sterling.
Paragraph 3 recognizes that notwithstanding these guarantees, Parties may maintain certain laws or obligations that could affect transfers with respect to investments. It provides that the Parties may require reports of currency transfers and impose income taxes by such means an a withholding tax on dividends. It also recognizes that Parties may protect the rights of creditors, ensure the satisfaction of judgments, transfers in adjudicatory proceedings through their laws, even if such measures interfere with transfers. Such laws must be applied in an equitable, nondiscriminatory and good faith manner.
Article V (State-State Consultations)
Article V provides for prompt consultation between the Parties, at either Party's request, on any matter relating to the interpretation or application of the Treaty.
Article VI (State-Investor Dispute Resolution)
Article VI, combining elements of the 1990 and 1992 prototypes, sets forth several means by which disputes between an investor and the host country may be settled.
Article VI procedures apply to an "investment dispute," a term which covers any dispute arising out of or relating to an investment authorization, or an agreement between the investor and the host government or to rights granted by the Treaty with respect to an investment.
When a dispute arises, Article VI, paragraph 2, provides that the disputants should initially seek to resolve the dispute by consultation and negotiation, which may include non binding third party procedures. Should such consultations fail, paragraphs 2 and 3 set forth the investor's range of choices of dispute settlement. Paragraph 2 permits the investor to make an exclusive and irrevocable choice to: (1) employ one of the several arbitration procedures outlined in the Treaty; (2) submit the dispute to procedures previously agreed upon by the investor and the host country government in an investment agreement or otherwise; or (3) submit the dispute to the local courts or administrative tribunals of the host country.
Under paragraph 3, if the investor has not submitted the dispute under the procedures in paragraph 2 and six months have elapsed from the date the dispute arose, the investor may consent to submission of the dispute for binding arbitration by either the International Centre for the Settlement of Investment Disputes (ICSID) or ad hoc arbitration using the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). Following the 1990 prototype, the Jamaica BIT does not refer to the Additional Facility of the Center. Paragraph 3 also recognizes that, by mutual agreement, the parties to the dispute may choose another arbitral institution or set of arbitral rules.
Paragraph 4 contains the consent of the United States and Jamaica to the submission of investment disputes to binding arbitration in accordance with the choice of the investor.
Paragraph 5 includes a separate commitment by each Party to enforce arbitral awards rendered pursuant to Article VI procedures.
Paragraph 6 provides that in any dispute settlement proceeding, a Party may not invoke as a defense, counterclaim, set-off or in any other manner the fact that the company or national concerned has received or will be reimbursed for the same damages under an insurance or guarantee contract.
Paragraph 7 is included in the Treaty to ensure that ICSID arbitration will be available for investors making investments in the form of companies created under the laws of the Party with which there is a dispute.
Paragraph 8, not found in the prototype, explicitly incorporates language pursuant to Article 27 of the ICSID Convention, preventing a Party from giving diplomatic protection or bringing an international claim for a dispute already submitted to arbitration under the Convention, (unless the other Party has failed to abide by or comply with the award rendered in that dispute). The article also makes clear, however, that informal diplomatic exchanges to facilitate settlement of a dispute are not limited by paragraph 8.
Article VII (State-State Arbitration)
Article VII provides for binding arbitration of disputes between the United States and Jamaica that are not resolved through consultations or other diplomatic channels. The article constitutes each Party's prior consent to arbitration.
Article VIII (Exclusions from Dispute Settlement)
Article VIII excludes from the dispute settlement provisions of the BIT those disputes arising under the export credit, guarantee or insurance programs of the Export-Import Bank of the United States, as well as those arising under any other such official programs pursuant to which the Parties agreed to other means of settling disputes.
Article IX (Preservation of Rights)
Article IX clarifies that the Treaty is meant only to establish a floor for the treatment of foreign investment. An investor may be entitled to more favorable treatment through domestic legislation, other international legal obligations, or a specific obligation assumed by a Party with respect to that investor. This provision ensures that the Treaty will not be interpreted to derogate from any entitlement to such more favorable treatment.
Article X (Measures Not Precluded)
The first paragraph of Article X reserves the right of a Party to take measures for the maintenance of public order, the fulfillment of its international obligations with respect to international peace and security, or those measures it regards as necessary for protection and security, or those measures it regards as necessary for the protection of its own essential security interests. These provisions are common in international investment agreements.
The maintenance of public order would include measures taken pursuant to a Party's police powers to ensure public health and safety. International obligations with respect to peace and security would include, for example, obligations arising out of Chapter VII of the United Nations Charter. The Jamaica BIT differs from the prototype in its explicit reference to the U.N. Charter. Measures permitted by the provision on the protection of a Party's essential security interests would include security-related actions taken in time of war or national emergency, actions not arising from a state of war or national emergency must have a clear and direct relationship to the essential security interest of the Party involved.
The second paragraph allows a Party to promulgate special formalities in connection with the establishment of investment, provided that the formalities do not impair the substance of any Treaty rights. Such formalities would include, for example, U.S. reporting requirements for certain inward investment.
Article XI (Tax Policies)
The Treaty exhorts both countries to provide fair and equitable treatment to investors with respect to tax policies. However, tax matters an generally excluded from the coverage of the prototype BIT, based on the assumption that tax matters are properly covered in bilateral tax treaties.
The Treaty, and particularly the dispute settlement provisions, do apply to tax matters in three areas, to the extent they are not subject to the dispute settlement provisions of a tax treaty, or, if so subject, have been raised under a tax treaty's dispute settlement procedures and are not resolved in a reasonable period of time.
The three areas where the Treaty could apply to tax matters are expropriation (Article III), transfers (Article IV) and the observance and enforcement of terms of an investment agreement or authorization (Article VI (1) (a) or (b)). These three areas are important for investors, and two of the three--expropriatory taxation and tax provisions contained in an investment agreement or authorization--are not typically addressed in tax treaties.
Article XII (Application to Political Subdivisions)
Article XII makes clear that the obligations of the Treaty are applicable to all Political subdivisions of the Parties, such as provincial, state and local governments.
Article XIII (Entry into Force, Duration and Termination)
The Treaty enters into force thirty days after exchange of instruments of ratification and continues in force for a period of ten years. From the date of its entry into force, the Treaty applies to existing and future investments. After the ten-year term, the Treaty will continue in force unless terminated by either Party upon one year's notice. If the Treaty is terminated, all existing investments would continue to be protected under the Treaty for ten years thereafter.
U.S. bilateral investment treaties allow for sectoral exceptions to national and MFN treatment. The U.S. exceptions are designed to protect governmental regulatory interests and to accommodate the derogations from national treatment and, in some cases, MFN treatment in existing federal law.
The U.S. portion of the Annex contains a list of sectors and matters in which, for various legal and historical reasons, the federal government or the States may not necessarily treat investments of nationals or companies of the other Party as they do U.S. investments or investments from a third country. The U.S. exceptions from national treatment are: air transportation; ocean and coastal shipping; banking; insurance; government grants; government insurance and loan programs; energy and power production; custom-house brokers; ownership of real property; ownership and operation of broadcast or common carrier radio and television stations; ownership of shares in the Communications Satellite Corporation; the provision of common carrier telephone and telegraph services; the provision of submarine cable services; use of land and natural resources; mining on the public domain; maritime and maritime-related services; and primary dealership in U.S. government securities.
Ownership of real property, mining on the public domain, maritime and maritime-related services, and primary dealership in U.S. government securities are excluded from MFN as well as national treatment commitments. The last three sectors are exempted by the United States from MFN treatment obligations because of U.S. laws that require reciprocity. Enforcement of reciprocity provisions could deny both national and MFN treatment.
The listing of a sector does not necessarily signify that domestic laws have entirely reserved it for nationals. Future restrictions or limitations on foreign investment are only permitted in the sectors listed; must be made on an MFN basis, unless otherwise specified in the Annex; and must appropriately notified. Any additional restrictions or limitations which a Party may adopt with respect to listed sectors may not affect existing investments.
Jamaica's exceptions to national treatment are: civil aviation; real estate; banking; shipping; communications (including postal and telegraph services and broadcasting); mining and natural resources; government grants and other assistance to small-scale enterprises with total assets of U.S. $50,000 or less; customs brokerages; car rental; real estate agencies; travel agencies; and gaming, betting and lotteries. Jamaica has reserved the right to make or maintain limited exceptions to MFN treatment in shipping.
In a Protocol specific to the Jamaica Treaty, the two sides confirm their Understanding that the term "regulations" in Article II (1)(b) includes, where appropriate, the provisions of a treaty to which one of the Parties has adhered. The two sides also confirm that neither Party shall use its laws or regulations to require that its nationals be employed as top managerial personnel by an "investment" (as defined by the Treaty). Finally, with respect to transfers, the Protocol confirms that if Jamaica's foreign exchange reserves do not permit the transfer of proceeds of the sale or liquidation of an investment as provided for in Article IV(1)(e), Jamaica shall allow the transfer of such proceeds to take place over a period not to exceed three years.
The other U.S. Government agencies which negotiated the Treaty join me in recommending that it be transmitted to the Senate at an early date.
TREATY BETWEEN THE UNITED STATES OF AMERICA AND JAMAICA CONCERNING THE RECIPROCAL ENCOURAGEMENT AND PROTECTION OF INVESTMENT
The United States of America and Jamaica (hereinafter "the Parties");
Desiring to promote greater economic cooperation between them, with respect to investment by nationals and companies of one Party in the territory of the other Party;
Recognizing that agreement upon the treatment to be accorded such investment will stimulate the flow of private capital and the economic development of the Parties;
Agreeing that fair and equitable treatment of investment is desirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources;
Recognizing that the development of economic and business ties can contribute to the well-being of workers in both Parties and promote respect for worker rights; and Having resolved to conclude a Treaty concerning the reciprocal encouragement and protection of investment;
Have agreed as follows:
1. For the purposes of this Treaty,
(a) "investment" means every kind of investment in the territory of one Party owned or controlled directly or indirectly by nationals or companies of the other Party, such as equity, debt, and service and investment contracts; and includes without limitation:
(i) tangible and intangible property, including rights such as mortgages, liens and pledges;
(ii) a company or shares of stock or other interests in a company assets thereof;
(iii) a claim to money or a claim to performance having economic value, and associated with an investment;
(iv) intellectual property which includes, inter alia, rights relating to:
literary and artistic works, including sound recordings, patentable inventions, industrial designs, semiconductor mask works, trade secrets and confidential business information, and trademarks, service marks, and trade names;
(v) any right conferred by law or contract, and any licenses and permits pursuant to law;
(b) "company" of a Party means any kind of corporation, company, association, partnership, or other organization, legally constituted under laws and regulations of a Party or a political subdivision thereof whether or not organized for pecuniary gain, or privately or governmentally owned or controlled;
(c) "national" of a Party means a natural person who is a national of a Party under its applicable law;
(d) "return" means an amount derived from or associated with an investment, including profit; dividend; interest; capital gain; royalty payment; management, technical assistance or other fee; or returns in kind;
(e) "associated activities" means the organization, control, operation, maintenance and disposition of companies, branches, agencies, offices, factories or other facilities for the conduct of business; the making, performance and enforcement of contracts; the acquisition, use, protection and disposition of property of all kinds including intellectual property rights; the borrowing of funds; the purchase, issuance, and sale of equity shares and other securities; the purchase of foreign exchange for imports; and other similar activities.
2. Each Party reserves the right to deny to any company the advantages of this Treaty if nationals of any third country control such company and, in the case of a company of the other Party, that company has no substantial business activities in the territory of the other Party or is controlled by nationals of a third country with which the denying Party does not maintain normal economic relations.
3. Any alteration of the form in which assets are invested or reinvested shall not affect their character as an investment.
1. (a) Each Party shall permit and treat investments, and activities associated therewith, on a basis no less favorable than that accorded in like situations to investments or associated activities of its own nationals or companies ("national treatment"), or of nationals or companies of any third country ("most favored nation treatment"), whichever is the most favorable, subject to the right of each Party to make or maintain exceptions falling within one of the sectors or matters listed in the Annex to this Treaty. The treatment accorded investments and activities associated therewith pursuant to any exceptions to national treatment shall be that of most favored nation treatment, unless specified otherwise in the Annex.
(b) Each Party agrees to notify the other Party before or on the date of entry into force of this Treaty of all such laws and regulations of which it is aware concerning the sectors or matters listed in the Annex. Moreover, each Party agrees to notify the other of any future exception with respect to the sectors or matters listed in the Annex, and to limit such exceptions to a minimum. Any future exception by either Party shall not apply to investments existing in that sector or matter at the time the exception becomes effective.
2. (a) Investments shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law.
(b) Neither Party shall in any way impair, by unreasonable or discriminatory measures the management, operation, maintenance, use, enjoyment, acquisition, expansion, or disposal of investments.
(c) Each Party shall observe any obligation it may have entered into with regard to investments.
3. Subject to the laws of each Party relating to the entry, sojourn and employment of aliens, nationals of either Party shall be permitted to enter and to remain in the territory of the other Party for the purpose of establishing, developing, administering or advising on the operation of an investment to which they, or a company of the first Party that employs them, have committed or are in the process of committing a substantial amount of capital or other resources.
4. Subject to the laws of each Party relating to entry, sojourn and employment of aliens, companies which are legally constituted under the applicable laws or regulations or one Party, and which are investments, shall be permitted to engage top managerial personnel of their choice, regardless of nationality.
5. Neither Party shall impose performance requirements as a condition of establishment, expansion or maintenance of investments, which require or enforce commitments to export goods produced, or which specify that goods or services must be purchased locally, or which impose any other similar requirements, provided, however, that nothing in this paragraph shall preclude a Party from providing benefits and incentives to investments which export a proportion of the goods produced.
6. Each Party shall provide effective means of asserting claims and enforcing rights with respect to investments, investment agreements, and investment authorizations granted by a Party's foreign investment authority.
7. Each Party shall make publicly available all laws, regulations, administrative practices and procedures, and adjudicatory decisions that pertain to or affect investments.
8. The treatment accorded by the United States of America to investments and associated activities of nationals and companies of Jamaica under the provisions of this Article shall in any State, Territory or possession of the United States of America be no less favorable than the treatment accorded therein to investments and associated activities of nationals of the United States of America resident in, and companies legally constituted under the laws and regulations of, other States, Territories or possessions of the United States of America.
9. The most favored nation provisions of this Agreement shall not apply to advantages accorded by either Party to nationals or companies of any third country by virtue of:
(a) that Party's binding obligations that derive from full membership in a free trade area or customs union, or from some other relationship which satisfies the requirements for a free trade area or customs union as set forth in Article XXIV of the General Agreement on Tariffs and Trade; or
(b) that Party's binding obligations under any multilateral international agreement under the framework of the General Agreement on Tariffs and Trade.
1. Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropriation or nationalization ("expropriation") except for a public purpose; in a nondiscriminatory manner; upon payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general principles of treatment provided for in Article II(2) Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or was made known by the authorities, whichever is earlier; be paid without delay; include interest at a commercially reasonable rate from the date of expropriation; be fully realizable; and be freely transferable at the prevailing market rate of exchange on the date of expropriation. The determination of fair market value shall no reflect any change in the value of the investment attributable to the expropriatory or to public knowledge of the expropriatory action before it was taken or made known by the authorities.
2. A national or company of either Party that asserts that all or part of its investment has been expropriated shall have a right to prompt review by the appropriate judicial or administrative authorities of the other Party to determine whether any such expropriation, and any compensation therefor, conforms to the provisions of this Treaty.
3. Nationals or companies of either Party whose investments suffer losses in the territory of the other Party owing to war or other armed conflict, revolution, state of national emergency, insurrection, civil disturbance or other similar events shall be accorded treatment by such other Party no less favorable than that accorded to its own nationals or companies or to nationals or companies of any third country, whichever is the most favorable treatment, as regards any measures it adopts in relation to such losses.
1. Each Party shall permit all transfers related to an investment to be made freely and without delay into and out of its territory. Such transfers include (a) returns; (b) compensation pursuant to Article III; (c) payments arising out of an investment dispute; (d) payments made under a contract, including amortization of principal and accrued interest payments made pursuant to a loan agreement; (e) proceeds from the sale or liquidation of all or any part of an investment; and (f) additional contributions to capital for the maintenance or development of an investment.
2. Except as provided in Article III paragraph 1, transfers shall be made in a freely usable currency at the prevailing market rate of exchange on the date of transfer with respect to spot transactions in the currency to be transferred.
3. Notwithstanding the provisions of paragraphs 1 and 2, either Party may maintain laws and regulations (a) requiring reports of currency transfer; and (b) imposing income taxes by such means as a withholding tax applicable to dividends or other transfers. Furthermore, either Party may protect the rights of creditors, or ensure the satisfaction of judgments in adjudicatory proceedings, or prevent fraudulent transfers, through the equitable, nondiscriminatory and good faith application of its law.
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 of the Treaty.
1. For purposes of this Article, an investment dispute is a dispute between a Party and a national or company of the other Party arising out of or relating to (a) an investment agreement between that Party and such national or company; (b) an investment authorization granted by that Party's foreign investment authority to such national or company; or (c) 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, the parties to the dispute should initially seek a resolution through consultation and negotiation. If the dispute cannot be settled amicably, the national or company concerned may choose to submit the dispute for resolution:
a) to the courts or administrative tribunals of the Party that is a party to the dispute; or
b) in accordance with any applicable previously agreed dispute settlement procedures; or
c) in accordance with the terms of paragraph 3. A party which elects one of the three procedures mentioned in this paragraph does so to the exclusion of the others.
3. a) Provided that the national or company concerned has not submitted the dispute for resolution under paragraph 2 (a) or (b) and that six months have elapsed from the date on which the dispute arose, the national or company concerned may choose to consent in writing to the submission of the dispute for settlement by binding arbitration:
(i) to the International Centre for the Settlement of Investment Disputes ("Centre") established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 1965 ("ICSID Convention"), provided that the Party is a party to such Convention; or
(ii) in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law; or
(iii) to any other arbitration institution, or in accordance with any other arbitration rules, as may be mutually agreed between the parties to the dispute.
b) Once the national or company concerned has so consented, either party to the dispute may initiate arbitration in accordance with the choice so specified in the consent.
4. Each Party hereby consents to the submission of any investment dispute for settlement by binding arbitration in accordance with the choice specified in the written consent of the national or company under paragraph 3. Such consent, together with the written consent of the national or company when given under paragraph 3 shall satisfy the requirement for written consent of the parties to the dispute for purposes of Chapter II of the ICSID Convention (Jurisdiction of the Centre).
5. Any arbitral award rendered pursuant to this Article shall be final and binding on the parties to the dispute. Each Party undertakes to carry out without delay the provisions of any such award and to provide in its territory for its enforcement.
6. In any proceeding involving an investment dispute, a Party shall not assert, as a defense, counterclaim, right of setoff or otherwise, that the national or company concerned has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.
7. For purposes of an arbitration held under paragraph 3 of this Article, any company legally constituted under the applicable laws and regulations of either Party or a political subdivision hereof but that, immediately before the occurrence of the event or events giving rise to the dispute, was an investment of nationals or companies of the other Party, shall be treated as a national or company of such other Party in accordance with Article 25(2)(b) of the ICSID Convention.
8. As provided for in Article 27 of the Convention, neither Party shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals or companies has consented to submit to arbitration under the Convention, unless the other Party which is party to the dispute shall have failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
1. Any dispute between the Parties concerning the interpretation or application of the Treaty which is not resolved through consultations or other diplomatic channels, shall be submitted, upon the request of either Party, to an arbitral tribunal for binding decision in accordance with the applicable rules of international law. In the absence of an agreement by the Parties to the contrary, the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL), except to the extent modified by the Parties or by the arbitrators with the consent of the Parties, shall govern.
2. Within two months of receipt of a request, each Party shall appoint an arbitrator. The two arbitrators shall select a third arbitrator as Chairman, who is a national of a third State. The UNCITRAL Rules for appointing members of three member panels shall apply mutatis mutandis to the appointment of the arbitral panel except that the appointing authority referenced in those rules shall be he Secretary General of the International Centre for the Settlement of Investment Disputes.
3. Unless otherwise agreed, all submissions shall be made and all hearings shall be completed within six months of the date of selection of the third arbitrator, and the Tribunal shall render its decisions within two months of the date of the final submissions or the date of the closing of the hearings, whichever is later.
4. Expenses incurred by the Chairman, the other arbitrators, and other costs of the proceedings shall be paid for equally by the Parties.
The provisions of Article VI and VII shall not apply to a dispute arising (a) under the export credit, guarantee or, insurance programs of the Export-Import Bank of the United States, or (b) under other official credit, guarantee or insurance arrangements pursuant to which the Parties have agreed to other means of settling disputes.
This Treaty shall not derogate from:
a) laws and regulations, administrative practices or procedures, or administrative or adjudicatory decisions of either Party;
b) international legal obligations; or
c) obligations assumed by either Party, including those contained in an investment agreement or an investment authorization granted by a Party's foreign investment authority, that entitle investments or associated activities to treatment more favorable than that accorded by this Treaty in like situations.
1. This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfillment of its obligations under the Chapter of the United Nations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
2. This Treaty shall not preclude either Party from prescribing special formalities in connection with the establishment of investments, 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 shall strive to accord fairness and equity in the treatment of investments of nationals and companies of the other Party.
2. Nevertheless, the provisions of this Treaty, and in particular Articles VI and VII, shall apply to matters of taxation only with respect to the following:
a) expropriation, pursuant to Article III;
b) transfers, pursuant to article IV; or
c) the observance and enforcement of terms of an investment agreement or authorization as referred to in Article VI (1) (a) or (b),
to the extent they are not subject to the dispute settlement provisions of a Convention for the avoidance of double taxation between the two Parties, or have been raised under such settlement provisions and are not resolved within a reasonable period of time.
This Treaty shall apply to the political subdivisions of the Parties.
1. This Treaty shall enter into force thirty days after the date of exchange of instruments of ratification. It shall remain in force for a period of ten years and shall continue in force unless terminated in accordance with paragraph 2 of this Article. It shall apply to investments existing at the time of entry into force as well as to investments made or acquired thereafter.
2. Either Party may, by giving one year's written notice to the other Party, terminate this Treaty at the end of the initial ten year period or at any time thereafter.
3. With respect to investments made or acquired prior to the date of termination of this Treaty and to which this Treaty otherwise applies, the provisions of all of the other Articles of this Treaty shall thereafter continue to be effective for a further period of ten years from such date of termination.
4. The Annex and Protocol shall form an integral part of the Treaty.
IN WITNESS WHEREOF, the respective plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington on the fourth day of February, 1994, in the English language.
1. The United States reserves the right to make or maintain limited exceptions to national treatment, as provided in Article II, paragraph 1, in the sectors or matters it has indicated below:
air transportation; ocean and coastal shipping; banking; insurance; government grants; government insurance and loan programs; energy and power production; customhouse brokers; ownership of real property; ownership and operation of broadcast or common carrier radio and television stations; ownership of shares in the Communications Satellite Corporation; the provision of common carrier telephone and telegraph services; the provision of submarine cable services; use of land and natural resources; mining on the public domain; maritime services and maritime related services; and primary dealership in United Stales government securities.
2. The United States reserves the right to make or maintain limited exceptions to most favored nation treatment, as provided in Article II, paragraph 1, in the sectors or matters it has indicated below:
ownership of real property; mining on the public domain; maritime services and maritime related services; and primary dealership in United States government: securities.
3. Jamaica reserves the right to make or maintain limited exceptions to national treatment, as provided in Article II, paragraph 1 in the sectors or matters it has indicated below:
civil aviation; real estate; banking; shipping; communications (including postal and telegraph services, and broadcasting); mining and natural resources; government grants and other assistance to small-scale enterprises with total assets of U.S. $50,000 or less; customs brokerages; car rental; real estate agencies; travel agencies; gaming; betting and lotteries.
4. Jamaica reserves the right to make or maintain limited exceptions to most favored nation treatment, as provided in Article II, paragraph 1, in the sectors or matters it has indicated below:
1. The Parties understand that the term "regulations" in Article II(l)(b) includes, where appropriate, the provisions of a treaty to which one of the Parties has adhered.
2. With respect to Article II(4), neither Party shall apply its laws and regulations to require that its nationals be engaged as top managerial personnel by investments.
3. If the foreign exchange reserves of Jamaica do not permit the transfer of the proceeds of the sale or of the liquidation of all or part of an investment as provided for in Article IV(l)(e), Jamaica shall allow the transfer of such proceeds to take place over a period not to exceed three years from the date the transfer is requested and shall guarantee the availability of at least one-third of the necessary freely usable currency during each of the first two years of the three year period. With respect to such transfers, Jamaica shall treat nationals and companies of the United States no less favorably than it treats nationals or companies of any third country. Jamaica shall ensure that the national or company has an opportunity to invest the proceeds of sale or liquidation in a manner designed to preserve its value until the transfer occurs. Pursuant to Article V of this Treaty, and without prejudice to the procedures set forth in Article VI and VII, the two Parties agree to consult at the request of either one of them concerning the implementation of Article IV and of this paragraph.
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