On the ratification of the Agreement between the Republic of Kazakhstan and the Kingdom of Spain on Mutual Promotion and Protection of Investments
Decree of the President of the Republic of Kazakhstan dated April 26, 1995 No. 2240
In accordance with article 2 of the Law of the Republic of Kazakhstan dated December 10, 1993.
Z933600_
"On the temporary delegation of additional powers to the President of the Republic of Kazakhstan and heads of local administrations"
I decree:
1. To ratify the Agreement between the Republic of Kazakhstan and the Kingdom of Spain on Mutual Promotion and Protection of Investments, signed in Madrid on March 23, 1994.
2. This Decree shall enter into force from the date of publication.
President of the Republic of Kazakhstan
application
Contract
between the Republic of Kazakhstan and the Kingdom of Spain
on mutual promotion and protection of investments*
(Bulletin of International Treaties, Agreements and Individual Legislative Acts of the Republic of Kazakhstan, 1995, No. 4, Article 68)
The Republic of Kazakhstan and the Kingdom of Spain, hereinafter referred to as the "Contracting Parties", wishing to strengthen economic cooperation between themselves for the mutual benefit of both countries, intending to create favorable conditions for investments of one Contracting Party in the territory of the other Contracting Party, recognizing that the promotion and protection of investments in accordance with this Treaty will stimulate initiatives in this field, We have agreed on the following:
Article 1 Definitions For the purposes of this Agreement:
1. The term "investor" in relation to any of the Contracting Parties means:
a) an individual who, in the case of the Spanish party, is a resident in accordance with its national legislation; in the case of the Kazakh party, is a citizen of the Republic of Kazakhstan;
b) any legal entity, including companies, associations of companies, commercial corporate facilities and other organizations that are registered as corporations, if established in accordance with the laws and regulations of the relevant Contracting Party and actually managed from the territory of that Contracting Party.
2. The term "investment" means any type of asset, such as all kinds of goods and rights acquired in accordance with the law of the country receiving the investment, and in particular, although not exclusively, the following:
- shares and other forms of participation in companies;
- rights arising from all types of deposits made for the purpose of creating economic value, including each loan provided for this purpose, either capitalized or uncapitalized;
- movable and immovable property, as well as any other rights, such as mortgages, the right to hold property for debts or liens;
- any intellectual property rights, including patents and trademarks, as well as production licenses and know-how;
- the rights to engage in economic and commercial activities permitted by law or in accordance with a contract, in particular, the rights to explore, develop, extract and exploit natural resources.
3. The term "income" refers to income derived from investments as defined above, and includes, in particular, profits, dividends and interest.
4. The term "territory" means the land area and territorial waters of each of the Contracting Parties, as well as the exclusive economic zone and continental shelf that extends beyond the boundaries of the territorial waters of each of the Contracting Parties over which they have or may have jurisdiction and sovereign rights for the purpose of exploitation, exploration and conservation of natural resources in accordance with international law.
Article 2 Assistance and acceptance
1. Each Contracting Party shall promote, as far as possible, investments made in its territory by investors of the other Contracting Party and shall accept these investments in accordance with its laws and regulations. 2. This Agreement also applies to investments made before its entry into force by investors of one Contracting Party in accordance with the legal conditions of the other Contracting Party in the territory of the latter.
Article 3 Protection
1. Each Contracting Party shall protect in its territory investments made in accordance with its laws and regulations by investors of the other Contracting Party and shall not impair by unjustified and discriminatory measures the management, development, maintenance, use, possession, expansion and sale and, if this is the case, liquidate such investments.
2. Each Contracting Party must issue the necessary permits related to these investments and must allow, within the framework of its legislation, the execution of work permits and contracts related to production licenses and technical, commercial, financial and administrative space.
3. Each Contracting Party shall also issue, where necessary, permits required in connection with the activities of consultants or experts employed by investors of the other Contracting Party.
Article 4 Regime
1. Each Contracting Party guarantees in its territory a fair and equitable treatment for investments made by investors of the other Contracting Party.
2. This regime should not be less favorable than the regime provided by each Contracting Party to investments made in its territory by investors of a third country.
3. However, this regime should not apply to privileges that one Contracting Party may grant to investors of a third country by virtue of its membership or association with any existing or future free trade area, customs union, common market or future free trade area, customs union, common market or similar international agreement in which any of the Of the Contracting Parties is or may become a Party.
4. The treatment provided in accordance with this Article does not apply to tax benefits and tax exemptions or other similar privileges granted by any of the Contracting Parties to investors of third countries by virtue of the agreement on the abolition of double taxation or any other agreement on taxation.
5. In addition to the provisions of paragraph 2 of this Article, each Contracting Party shall adopt, in accordance with its laws, no less favourable treatment for investments of investors of the other Contracting Party than the treatment provided to its own investors.
Article 5 Nationalization and expropriation
1. Nationalization, expropriation or any other measure of a similar nature or action that may be applied by the authorities of one Contracting Party against investments in its territory by investors of the other Contracting Party must be applied solely in the public interest in accordance with the law, and in no case must not be discriminatory. The Contracting Party taking such measures must pay the investor or his legal beneficiary, without undue delay, appropriate compensation in a convertible and freely transferable currency. 2. The payment must be equivalent to the market value, the amount of which must be determined before the decision on nationalization or expropriation is announced and/or published.
Article 6 Compensation of losses Investors of one Contracting Party whose investments or income in the territory of the other Contracting Party suffer losses as a result of war, other armed conflicts, a state of emergency, uprisings, riots or other similar circumstances, including losses resulting from requisitioning measures, should be provided with a regime no less favorable than that of compensation, compensation or other settlement., which the latter Contracting Party provides to investors of any third State. Any payment made in accordance with this Article must be prompt, sufficient, effective and freely transferable.
Article 7 Translation
1. With respect to investments made in the territory, each Contracting Party shall provide investors of the other Contracting Party with a free transfer of income derived from these investments and other payments related thereto, including, in particular, but not limited to the following:
- income from investments, as defined in Article 1;
- Compensation provided for in accordance with Articles 5 and 6;
- the proceeds received from the sale or liquidation, in whole or in part, of investments;
- loan repayment funds;
- payments for the maintenance or development of investments, such as funds for the purchase of raw materials or auxiliary materials, semi-finished or finished products, as well as for the replacement of fixed assets;
- salaries, salaries and other compensation received by citizens of one Contracting Party who have obtained appropriate work permits for investments in the territory of the other Contracting Party.
2. The Contracting Party accepting investments must allow an investor of the other Contracting Party or the company in which he has invested to have access to the foreign exchange market on a non-discriminatory basis, so that the investor can buy the necessary foreign currency to make transfers in accordance with this article.
3. Transfers carried out under this Agreement must be made in freely convertible currency in accordance with the tax legislation of the Party receiving the investment.
4. The Contracting Parties undertake to facilitate the procedures necessary to make these transfers without undue delay, in accordance with the practice in international financial centers. In particular, no more than three months must elapse from the date on which the investor duly submitted the necessary statements to make the transfer to the date on which the transfer actually took place. Consequently, both Contracting Parties undertake to carry out the necessary formalities both for the purchase of foreign currency and for its effective transfer abroad during this period of time. 5. The Contracting Parties agree to provide the transfers referred to in this Article with treatment no less favourable than that provided to transfers resulting from investments made by investors of a third State.
Article 8 More favorable conditions
More favorable terms than the terms of this Agreement, which were negotiated by one of the Contracting Parties with investors of the other Contracting Party, should not be affected by this Agreement.
Article 9 Subrogation
If one Contracting Party has provided a financial guarantee with respect to non-commercial risks in respect of investments made by its investors in the territory of the other Contracting Party, the latter must accept the subrogation of the first Contracting Party with respect to the economic rights of the investor from the moment when the first Contracting Party has made the first payment accrued on the issued guarantee. This subrogation will allow the first Contracting Party to become a direct beneficiary of all payments, for which the initial investor can become a creditor.
With respect to property rights, use, possession or any other property right, subrogation should take place only after the relevant legal requirements of the Contracting Party receiving the investment have been fulfilled.
Article 10 Settlement of disputes between the Contracting Parties
1. Any dispute between the Contracting Parties concerning the interpretation or application of this Treaty shall, to the extent possible, be settled by the Governments of the two Contracting Parties.
2. If it is impossible to resolve the dispute in this way within six months from the start of negotiations, it shall be referred to the Arbitral Tribunal at the request of either Contracting Party.
3. The arbitral tribunal should be formed as follows: each Contracting Party appoints an arbitrator, and these two arbitrators must select a citizen from a third Party as Chairman. The arbitrators must be appointed within three months and the Chairman within five months from the date on which one of the Contracting Parties informed the other Contracting Party of its intention to submit the dispute to Arbitration.
4. If one of the two Contracting Parties fails to appoint its arbitrator by the deadline, the other Contracting Party may request the President of the International Court of Justice to make the appointment. In the event that the two arbitrators do not reach an agreement on the appointment of a third arbitrator before the deadline, either Contracting Party may request the President of the International Court of Justice to make the appropriate appointment.
5. If, in the case provided for in paragraph 4 of this Article, the President of the International Court of Justice is prevented from performing this function or is a national of one of the Contracting Parties, the Vice-President should be invited to make the necessary appointments. If something prevents the Vice-President from performing this function or he is a citizen of one of the Contracting Parties, it is proposed to make the necessary appointments to the most senior Judge of the International Court of Justice, who is not a citizen of the Contracting Party.
6. The arbitral tribunal shall make its decision based on respect for the law, the provisions contained in this Treaty or in other agreements in force between the Contracting Parties, as well as the generally recognized principles of international law.
7. Unless the Contracting Parties decide otherwise, the court shall establish its own procedure.
8. The Court shall make a decision by a majority vote, and this decision shall be final and binding on both Contracting Parties.
9. Each Contracting Party shall bear the costs of the arbitrator appointed by it and the costs associated with his representation in the arbitration proceedings. Other expenses, including expenses for the Chairman, should be borne equally by both Contracting Parties.
Article 11 Disputes between one Party and investors of the other Contracting Party
1. Disputes that may arise between one of the Contracting Parties and an investor of the other Contracting Party in respect of investments under this Agreement, the investor must be notified in writing, including detailed information. Whenever possible, the Parties concerned should try to resolve these differences through a friendly agreement.
2. If these disputes cannot be resolved in this way within six months from the date of the written notification referred to in paragraph 1, the dispute may be referred at the investor's option.:
- the competent court of the Contracting Party in whose territory the investment was made;
- the Special Arbitration Court established in accordance with the Rules of Arbitration Procedure of the United Nations Commission on International Trade Law; - The International Center for Settlement of Investment Disputes established by the Convention on Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington on March 18, 1965, if both Contracting Parties become parties this Convention;
- The Arbitration Court of the Paris International Chamber of Commerce.
3. Arbitration should be based on:
- the provisions of this Agreement and other agreement in force between the Contracting Parties;
- Rules and generally accepted principles of international law;
- the national legislation of the Contracting Party in whose territory the investments were made, including rules relating to conflicts of law. 4. The arbitral awards are final and binding on the Parties to the dispute. Each Contracting Party undertakes to implement the decisions in accordance with its national law.
Article 12 Entry into force, extension and termination of the Agreement
1. This Treaty shall enter into force on the day of the exchange of notifications that the relevant constitutional procedures required for the entry into force of the Treaty have been completed. It remains in force for ten years and is renewed by tacit consent for subsequent two-year periods.
Each Contracting Party may terminate this Agreement by giving prior written notice six months before its expiration date.
2. With respect to investments that will be invested or acquired prior to the date of termination of this Agreement and to which this Agreement would apply if it remained in force, the provisions of all other articles of this Agreement will continue to apply for a further ten years from the date of termination.
Done in Madrid on March 23, 1994, in two copies in the Kazakh, Spanish and Russian languages, all texts being equally authentic.
President
Republic of Kazakhstan
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