On the ratification of the Agreement between the Government of the Republic of Kazakhstan and the Swiss Federal Council on the Promotion and Mutual Protection of Investments

Home / RLA / On the ratification of the Agreement between the Government of the Republic of Kazakhstan and the Swiss Federal Council on the Promotion and Mutual Protection of Investments

To ratify the Agreement between the Government of the Republic of Kazakhstan and the Swiss Federal Council on the Promotion and Mutual Protection of Investments, signed in Almaty on May 12, 1994.

President of the Republic of Kazakhstan

Agreement * between the Government of the Republic of Kazakhstan and the Swiss Federal Council on the Promotion and Mutual Protection of Investments

*(Entered into force on May 13, 1998 - Bulletin of International Treaties of the Republic of Kazakhstan, 2004, No. 4, Article 17)

The preamble

The Government of the Republic of Kazakhstan and the Swiss Federal Council, hereinafter referred to as the "Contracting Parties", desiring to expand economic cooperation in the mutual interests of both States, striving to create and further ensure favorable conditions for investors of one Contracting Party to make investments in the territory of the other Contracting Party, recognizing that the promotion and mutual protection of investments will contribute to the economic prosperity of both States, have agreed on the following:

Article 1 Definitions

For the purposes of this Agreement: 1. The term "investor" in relation to each of the Contracting Parties means: a) an individual who, in accordance with the current legislation of the Contracting Party, is its national; b) a legal entity, including companies, corporations, business associations and other organizational structures established or organized in accordance with the current legislation of a Contracting Party and having their permanent residence and actual business activities in the territory of the same Contracting Party; c) a legal entity established in accordance with the legislation of any country, which is directly or indirectly controlled by citizens of one of the Contracting Parties, or by legal entities that have their permanent residence and actual business activities in the territory of the State of this Contracting Party. 2. The term "Investment" means all types of property values and, in particular, includes: (a) movable and immovable property and any other property rights, such as easement, mortgage, right of restriction in possession of property, pledge; (b) shares, units or any other forms of participation in enterprises; (c) debt monetary obligations or profit-sharing rights; (d) intellectual property rights (including copyrighted objects, patents, trademarks, service marks, trade names, indication of place of origin), technologies, know-how and goodwill; (e) government concessions, including concessions for exploration, extraction and use of natural resources, as well as any other rights obtained by decision of legislative bodies, by contract, or by decision of an executive authority adopted in accordance with the law. 3. The term "territory" means the territory of any of the Contracting Parties and includes coastal waters over which the relevant Contracting Party exercises, in accordance with international law, its sovereign rights and jurisdiction.

Article 2 Promotion and protection of investments

1. Each of the Contracting Parties will, to the extent possible, promote investments by investors of the other Contracting Party in its territory and will ensure access to such investments within the framework of its legislation. 2. By granting access to a particular investment, the Contracting Party undertakes to provide all necessary permits and necessary approvals for the implementation of licensing agreements and contracts for the provision of technical, commercial and managerial assistance. Whenever necessary, each Contracting Party will issue the appropriate permits and assignments required to carry out the activities of consultants or other qualified specialists from among foreign nationals.

Article 3 Protection and legal regime of investments

1. Each Contracting Party protects in its territory investments made by investors of the other Contracting Party in accordance with its laws and regulations, and does not interfere, by applying unreasonable or discriminatory measures, with the management, possession, maintenance, use, expansion, sale, and, if this happens, liquidation of such investments. In particular, each Contracting Party issues the necessary permits and approvals specified in paragraph (2) of Article 2 of this Agreement. 2. Each of the Contracting Parties shall ensure fair and equal treatment in its territory in respect of investments by investors of the other Contracting Party. This regime cannot be less favorable than that provided by a Contracting Party on its territory to investments of its own investors. If the treatment provided to investors of the most favored country is even more favorable, then the treatment provided to investors of the other Contracting Party should not be less favorable than the specified regime. 3. The most-favored-nation regime should not be understood as the obligation of one Contracting Party to provide investors of the other Contracting Party with advantages arising from the regime, preferences or privileges under: (a) an existing or future free trade agreement, under the provisions of a customs or economic union or similar regional association of which the Contracting Party is or may become a member; (b)) international agreement on the avoidance of double taxation.

Article 4 Free transfer of payments

Each Contracting Party in whose territory investments are made by investors of the other Contracting Party grants such investors the right to freely transfer payments related to these investments, including: (a) interest, dividends, profits and current income; (b) amounts due to repayment of loans; (c) amounts to pay for investment management expenses; (d) royalties and other payments related to the property rights listed in paragraphs (c), (d) and (e) of paragraph (2) of Article 1 of this Agreement; (e) additional investments necessary to maintain or develop the investment; (f) income from the sale, partial or complete liquidation of the investment, including possible value gains.

Article 5 Compensation for damage

1. Each of the Contracting Parties undertakes not to take measures directly or indirectly aimed at expropriating or nationalizing the investments of investors of the other Contracting Party, as well as other measures of the same nature or final result. The exception is measures taken for the sake of observing the interests of society, and carried out, in this case, on equal grounds for all, in compliance with the rule of law, and with real and appropriate compensation. The amount of compensation must be determined in the currency of the country of origin of the investment, and must be paid promptly to the person entitled to it, regardless of the recipient's location or domicile. 2. Investors of one of the Contracting Parties, whose investments in the territory of the other Contracting Party have been damaged as a result of war, other armed conflict, state of emergency, civil clashes or other similar circumstances, - the return of property to the owner, compensation, compensation and other forms of liquidation of damage suffered by them as a result of the above circumstances, is carried out under the conditions of the regime, stipulated in paragraph (2) of Article 3 of this Agreement.

Article 6 Investments before signing the Agreement

This Agreement also applies to investments made by investors of one Contracting Party in the territory of the other Contracting Party in accordance with its laws and regulations prior to the entry into force of this Agreement.

Article 7 The principle of more favourable treatment

Such agreements may have been concluded in the past or may be concluded in the future between any of the Contracting Parties and the investor of the other Contracting Party, the terms of which are even more favorable than those specified in this Agreement.

Article 8 Subrogation

If one Contracting Party provides a financial guarantee for non-commercial risks to the investments of one of its investors in the territory of the other Contracting Party, then, by virtue of the principle of subrogation, the latter must recognize the rights of the first Contracting Party to the rights of the investor as having made payments under the guarantee issued by it.

Article 9 Disputes between a Contracting Party and an investor of the State of the second Contracting Party

1. In order to resolve a dispute between a Contracting Party and an investor of the State of the second Contracting Party in relation to an investment, negotiations will be conducted between the parties concerned with the aim of reaching an amicable agreement. 2. If these negotiations do not lead to a settlement of the dispute within twelve months, and subject to the written consent of the investor, the dispute is referred to the arbitration court of the International Center for Settlement of Investment Disputes (ICRIS), established by the Washington Convention of March 18, 1965 to resolve investment disputes between the United States and citizens of other states. 3. Each Contracting Party hereby agrees to submit investment disputes to the ICRIS court. 4. The Contracting Party, which is one of the parties to the dispute, should not assume throughout the proceedings and decision-making that the investor has received insurance for part or all of the loss incurred. 5. The decision of the arbitral tribunal is binding on the parties, is not subject to appeal, and cannot be a decision other than those provided for in the Washington Convention. The enforcement of a court decision is carried out in accordance with the legislation governing the execution of court decisions of the country where the decision is to be executed. 6. The parties shall not involve diplomatic channels in resolving the dispute, except in cases where the other party does not comply with or incorrectly implements the decision of the arbitral tribunal.

Article 10 Disputes between the Contracting Parties

1. Disputes between the Contracting Parties concerning the interpretation and application of the provisions of this Agreement will be resolved through diplomatic channels. 2. If no agreement is reached by the Contracting Parties within twelve months from the date of the dispute, the dispute shall, at the request of either Contracting Party, be referred to a three-member arbitral tribunal. Each of the Contracting Parties appoints one arbitrator, and these arbitrators select the chairman, who must be a citizen of a third country. 3. If one of the Contracting Parties does not appoint an arbitrator and does not respond to the invitation of the other Contracting Party to make such an appointment within two months, the arbitrator shall be appointed at the request of that Contracting Party by the President of the International Court of Justice in The Hague. 4. If the two arbitrators cannot reach agreement on the choice of a chairman within two months from the date of their appointment, he shall be appointed at the request of either Contracting Party by the President of the International Court of Justice. 5. If, in the cases specified in paragraphs 3 and 4 of this article, the President of the International Court of Justice is unable to perform the specified function or, if he is a national of one of the Contracting Parties, such appointment will be made by the Vice-President, and if he is unable to perform the relevant functions or is a national of one of the Contracting Parties, then The appointment will be made by the most senior judge of the International Court of Justice, who is not a citizen of either Contracting Party. 6. Without violating other decisions between the Contracting Parties, the arbitration court independently establishes the procedure for considering the claim. 7. The court's decisions are final and binding on each of the Contracting Parties.

Article 11 Compliance with obligations

Each of the Contracting Parties guarantees compliance with its obligations regarding investments made by investors of the other Contracting Party in its territory for the entire period of existence of each of such investments.

Article 12 Final Provisions

1. The date of entry into force of this Agreement is the date on which both Governments exchange notes on the implementation of the legal procedures provided for by the national legislation of each of the Contracting Parties with respect to the entry into force of international agreements. The Agreement is valid for 10 years after its entry into force. If the Agreement is not terminated by written notification six months before the end of this period, the Agreement is considered extended on the same terms for the next two years, then two more years, and so on. 2. With respect to those investments that were made prior to the possible termination of this Agreement, the provisions of articles 1 to 11 of this Agreement will remain in force for a period of 10 years from the date of notification of termination. Done in Almaty on May 12, 1994, in two original copies in the Kazakh, French and English languages, all texts being equally authentic. In case of discrepancies in the interpretation of the provisions of this Agreement, the Contracting Parties will be guided by the text of the Agreement in English.

This Law establishes the rules for registering the pledge of movable property in order to realize and protect the rights of individuals and legal entities who have legitimate rights to this property.

The Law of the Republic of Kazakhstan dated June 30, 1998 No. 254.

President

Republic of Kazakhstan

Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases