On the ratification of the Agreement between the Government of the RK and the Government of the Republic of Finland on the Promotion and Mutual Protection of Investments

Home / RLA / On the ratification of the Agreement between the Government of the RK and the Government of the Republic of Finland on the Promotion and Mutual Protection of Investments

Law of the Republic of Kazakhstan dated January 11, 2008 No. 16-IV

To ratify the Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Finland on the Promotion and Mutual Protection of Investments, signed in Astana on January 9, 2007.

President of the Republic of Kazakhstan

Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Finland on the Promotion and Mutual Protection of Investments

(Official website of the Ministry of Foreign Affairs of the Republic of Kazakhstan - Entered into force on May 1, 2003)

The Government of the Republic of Kazakhstan and the Government of the Republic of Finland, hereinafter referred to as the Parties, recognizing the need to protect the investments of investors of one Party in the territory of the State of the other Party on a non-discriminatory basis; wishing to encourage further economic cooperation among themselves in connection with investments of investors of one Party in the territory of the State of the other Party; recognizing that the agreement on the treatment provided to such investments, will stimulate the flow of private capital and economic development of the Parties; Agreeing that a stable investment framework will promote the most efficient use of economic resources and improve living standards; recognizing that the development of economic and business ties can promote respect for internationally recognized labor rights; agreeing that these goals can be achieved without general measures that weaken health, safety and environmental protection; Deciding to conclude Agreement on the Promotion and Mutual Protection of Investments; agreed as follows:

Article 1 Definitions

For the purposes of this Agreement: 1. The term "investment" means any property established or acquired in connection with business and entrepreneurial activities by an investor of one Party in the territory of the other Party in accordance with the national legislation of the latter Party, including in particular, but not exclusively: (a) movable and immovable property or any property rights such as mortgages, retention rights, collateral, rent; (b) Reinvested income; (c) shares, shares, debentures of a company or any other form of participation in companies; (d) monetary or performance claims having economic value; (e) intellectual property rights such as patents, copyrights, trademarks, industrial designs, business names, geographical indications, technical processes, Know-how and good will; (f) concessions granted in accordance with a law or administrative act or under contracts by competent authorities, including concessions for the exploration, development, extraction and exploitation of natural resources. Investments made in the territory of the State of one Party by a legal entity of the same Party, but actually owned or controlled directly or indirectly by investors of the other Party, should also be considered as investments by investors of the latter Party if they are carried out in accordance with the national legislation of the previous Party. Any further change in the form in which the property has been invested or reinvested should not affect its qualification as an investment. 2. The term "income" means the amounts received from investments, in particular, but not exclusively, including profits, dividends, interest, royalties, capital gains, or any in-kind payments related to the investment. 3. The term "investor" means for the Parties the following entities that invest in the territory of the State of the other Party in accordance with the national legislation of the State of the latter Party and the provisions of this Agreement: (a) any natural person who is a national of either Party in accordance with its legislation; (b) any legal entity, such as a company, corporation, firm, partnership, business association, institute or organization, registered or established in accordance with the national legislation of a Party, and having a registered office or central office or main place of business within the jurisdiction of such Party. 4. The term "territory" means the land territory, internal waters and territorial sea of a State of a Party and the airspace above them, as well as the maritime zone outside the territorial sea, including the seabed and subsoil, over which such Party exercises sovereign rights and jurisdiction in accordance with its national laws and international law for the purpose of exploration and exploitation of natural resources of such States. spaces.

Article 2 Promotion and protection of investments

1. Each Party shall encourage investments by investors of the other Party in its territory and, in accordance with its national legislation, allow such investments. 2. Each Party in its territory provides investments and income from investments of investors of the other Party with a fair and equitable investment regime, as well as full and permanent protection and security. 3. Neither Party shall, on its territory, impair by unreasonable or arbitrary measures the acquisition, expansion, operation, management, maintenance, use, possession and sale or other disposal of investments by investors of the other Party.

Article 3 Investment regime

1. Each Party shall provide investors of the other Party and their investments with treatment no less favorable than that provided by it to its investors and their investments with respect to the acquisition, expansion, operation, management, maintenance, use, possession and sale or other disposal of investments. 2. Each Party shall provide investors of the other Party and their investments with treatment no less favorable than that provided by it to investors of any third State and their investments with respect to the establishment, acquisition, operation, management, maintenance, use, and sale or other disposal of investments. 3. Each Party shall provide investors of the other Party and their investments with the best of the regimes specified in paragraphs 1 and 2 of this Article, which is most favorable to investors or investments. 4. In its territory, neither Party should oblige or impose compulsory measures on investments of investors of the other Party in relation to the purchase of materials, means of production, activities, transportation, marketing of its products or similar orders with discriminatory results.

Article 4 Liberation

The provisions of this Agreement should not be interpreted as obliging one Party to extend to investors and their investments of the other Party the benefits of any regime, preference or privilege by virtue of any existing or future: (a) free trade zones, customs union, common market, economic or monetary union or other similar regional economic integration agreements, including regional labor market agreements in which one of the Parties is or may become a party, or (b) a double taxation agreement or other international agreement relating wholly or mainly to taxation, or (c) a multilateral agreement relating wholly or mainly to investments.

Article 5 Expropriation

1. Investments of a Party's investors in the territory of the other Party must not be expropriated, nationalized or subjected to any other measures, directly or indirectly, having an effect equivalent to expropriation or nationalization (hereinafter referred to as expropriation), except for measures taken for state purposes, on a non-discriminatory basis, in accordance with the procedure established by law, and with prompt, adequate payment and effective compensation. 2. Such compensation should be equal to the sum of the value of the expropriated investments at the time preceding the expropriation, or before the impending expropriation became generally known, depending on what happened earlier. The cost should be determined in accordance with generally accepted valuation principles. 3. Compensation must be fully realizable and paid without any limitation or delay, and include interest at the commercial rate established on a market basis for the currency of payment from the date of deprivation or expropriation of property until the date of actual payment. 4. When a Party expropriates the assets of a company that is incorporated or established in accordance with the law in force in any part of its territory and in which the other Party's investors own shares, it will ensure that all the provisions of paragraph 1 of this article are applied to the extent necessary to ensure prompt, adequate and effective compensation for the investments of such investors of the Party that owns such shares. 5. Without prejudice to the provisions of Article 9 of this Agreement, an investor whose investments have been expropriated shall have the right to a prompt review of his case and to an assessment of his investments in accordance with the principles set out in this Article by judicial or other competent authorities of such Party.

Article 6 Compensation of losses

1. For investors of one Party whose investments in the territory of the State of the other Party have suffered losses as a result of war or other armed conflicts, revolution, insurrection, rebellion in the territory of the State of the latter Party, the latter Party shall grant, in respect of restitution, compensation, compensation or other settlement, a regime no less favorable than that provided by the latter Party to its investors or investors of any kind the most favored state, which is the most favorable for the investor. 2. Without prejudice to paragraph 1 of this article, investors of one Party who, as a result of any of the situations referred to in this paragraph, incur losses in the territory of the other Party as a result of: (a) the requisition of his investment or part of it by the armed forces or authorities, or; (b) the destruction of his investment or part of it by the armed forces or authorities, which was not required by the necessity of the situation, must be provided by the latter Party with restitution or compensation, which in any case must be prompt, adequate and effective, and in respect of compensation, must comply with paragraphs 1-3 of Article 5 from the date of requisition of destruction to the date of actual payment.

Article 7 Free transfers

1. Each Party must ensure that investors of the other Party can freely transfer their investments to its territory and transfer payments related to investments. Such payments should include in particular, but not exclusively: (a) principal and additional amounts to support, develop or increase investments; (b) income; (c) proceeds from the full or partial sale or disposal of investments, including the sale of shares; (d) the amounts required to pay expenses that have arisen from the activities of the investment, such as loan payments, royalty payments, management fees, royalties or other similar expenses; (e) compensation payable in accordance with articles 5, 6, 8 and 9; (f) earnings and other remuneration of staff employed abroad and working in connection with the investment. 2. Each Party shall ensure that transfers referred to in paragraph 1 of this article must be made without any restrictions or delay in a freely convertible currency and at the prevailing market exchange rate applicable on the date of transfer to the currency being transferred and can be transferred immediately. 3. In the absence of a foreign exchange market, the most recent exchange rate should be used to convert currencies into Special Drawing Rights. 4. In the event of a delay in the transfer caused by the receiving Party, the transfer must also include interest at the commercial rate established on a market basis for that currency from the date of the transfer request until the date of the actual transfer, and paid by that Party. 5. Notwithstanding paragraphs 1-4 of this Article, a Party may delay the transfer by fair and non-discriminatory application of its laws and regulations related to: fulfillment of relevant tax obligations; protection of creditors' rights; criminal or punishable violation; enforcement of orders or court decisions in court proceedings; conditions under which the application of such laws and regulations should not be used as a means of evading the obligations of the Parties under this Agreement.

Article 8 Subrogation

If a Party or its authorized body makes payments in accordance with a refund, guarantee or insurance contract given in respect of an investor's investments in the territory of the other Party, the latter Party must recognize the transfer of any rights or claims of such investor to the first Party or its authorized body, and the rights of the first Party or its authorized body to exercise by virtue of subrogation any such right or a requirement to the same extent as its predecessor.

Article 9 Disputes between an investor and a Party

1. Any dispute arising directly from investments between one Party and the investor of the other Party must be resolved amicably between the two Parties to the dispute. 2. If the dispute is not resolved in writing within 3 months from the date of its occurrence, the dispute may, at the investor's option, be referred to: (a) the competent courts of the Party in whose territory the investment was made, or (b) the arbitration of the International Center for Settlement of Investment Disputes established in accordance with the Convention on the settlement of investment disputes between States and individuals or legal entities of other States, opened for signature in Washington on March 18, 1965 (hereinafter referred to as - The Centre), if available, or (c) to arbitration in accordance with the supplementary rules of the Centre, if only one of the Parties is a party to the Convention referred to in subparagraph (b) of this paragraph; or (d) to any "ad hoc" arbitral tribunal established in accordance with the arbitration rules of the United Nations Commission on the Law of International Court of Commerce (UNCITRAL); (e) any other previously agreed "ad hoc" arbitral tribunal. 3. An investor who has referred a dispute to a national court may nevertheless apply to one of the arbitration courts referred to in subparagraph (b) of paragraph 2 or subparagraph (e) of paragraph 2 of this article if, prior to making a decision on the subject matter of consideration by the national court, the investor declares that he will no longer continue the case through national judicial procedures and will withdraw the case. 4. Any arbitration under this article must, at the request of any party to the dispute, be conducted in a State that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature in New York on June 10, 1958 (hereinafter referred to as the New York Convention). Claims submitted to arbitration pursuant to this article should be considered as arising from commercial relations or transactions for the purposes of article 1 of the New York Convention. 5. Each Party hereby gives its unconditional consent to submit the dispute between it and the investor of the other Party to arbitration in accordance with this article. 6. None of the Parties to the dispute may raise objections at any stage of the arbitration proceedings or the enforcement of the award regarding the fact that the investor, who is a party to the dispute, has received compensation covering part or all of the losses due to insurance. 7. The decision must be final and binding on the parties to the dispute and must be enforced in accordance with the national legislation of the State of the Party in whose territory the decision is being executed by the competent authority of the Party from the date specified in the decision.

Article 10 Disputes between the Parties

1. Disputes between the Parties regarding the interpretation and application of this Agreement should, if possible, be resolved through diplomatic channels. 2. If the dispute cannot be resolved in this way within six (6) months from the date on which such negotiations were requested by either Party, in writing, it must, at the request of either Party, be submitted to the arbitral tribunal. 3. Such an arbitration court should be established for each individual case as follows. Within two (2) months of receiving the request for arbitration, each Party shall appoint one member of the court. These two members must then select a citizen of a third country as Chairman, who, after approval by the Parties, is appointed Chairman of the court. The Chairman is appointed within four (4) months from the date of appointment of the other two members. 4. If the necessary appointments have not been made within the periods specified in paragraph 3 of this article, either Party, in the absence of any other agreement, shall invite the President of the International Court of Justice to make the necessary appointments. If the Chairman is a national of either Party or another circumstance prevents the performance of the specified function, the next oldest member of the International Court of Justice, who is not a citizen of either Party or another circumstance does not prevent the performance of the specified function, should be invited to make the necessary appointments. 5. The Arbitration court shall make a decision by a majority vote. The court's decision must be final and binding on both Parties. Each Party shall bear the costs of its appointed member and its representation in the arbitration process. Both Parties shall bear the expenses of the chairman in equal shares, as well as other expenses related to arbitration procedures. The court may make a different decision regarding the division of costs. In all other respects, the arbitral tribunal determines its own rules of procedure. 6. Disputes related to the dispute referred to in paragraph 1 of this article must be resolved in accordance with the provisions of this Agreement and generally recognized principles of international law.

Article 11 Permits

1. Each Party, in accordance with its national legislation of its State, will grant favorable investment-related applications and promptly grant the necessary permits required in its territory in connection with investments by investors of the other Party. 2. Each Party, in accordance with its national legislation, grants temporary entry and stay and provides any supporting documentation necessary to individuals who have been hired abroad as performers, managers, specialists or technical personnel in connection with an investment by an investor of the other Party and who are essential to the enterprise, as long as these persons meet the requirements the present paragraph. The immediate family members of such personnel should also be provided with similar treatment regarding entry and temporary stay in the territory of the host country.

Article 12 Application of other rules

1. If the provisions of the national legislation of the State of either Party or obligations under international law that currently exist between the Parties in addition to this agreement contain rules, general or special, granting the right to a more favorable regime than provided by this Agreement, such provisions, to the extent that they are the most favorable, prevail over this Agreement. 2. Each Party must comply with any obligation it may have with respect to a particular investment by the other Party's investor.

Article 13 Application of the Agreement

This Agreement applies to all investments made by investors of either Party in the territory of the other Party both before and after the entry into force of this Agreement, but should not apply to any dispute or claim related to the investment that arose and/or was settled before the entry into force of this Agreement.

Article 14 General exceptions

1. Nothing in this Agreement shall be interpreted as preventing one of the Parties from taking any actions necessary to protect national security interests or measures necessary to maintain public order, provided that such actions or measures are not applied in a way that would imply arbitrary or unjustified discrimination by the Party or a hidden restriction of investments. 2. The provisions of this article shall not apply to subparagraph (e) of paragraph 1 of Article 7 of this Agreement.

Article 15 Transparency

1. Each Party must immediately publish or otherwise make publicly available its laws, rules, procedures and administrative regulations and court decisions of general application, as well as international agreements that may relate to investments by an investor of the other Party in the territory of the State of the first Party. 2. Nothing in this Agreement shall require a Party to provide or allow access to any proprietary confidential information, including information related to investors and their investments, the disclosure of which would interfere with law enforcement or would be contrary to its right protecting confidentiality or would prejudice the legitimate commercial interests of individual investors.

Article 16 Consultations

The Parties, at the request of either Party, shall hold consultations for the purpose of reviewing the implementation of this Agreement and examining any issue that may arise from this Agreement. Such consultations are conducted between the competent State authorities of the Parties, the place and time of which are agreed through diplomatic channels.

Article 17 Amendment, entry into force, duration and termination

1. The Parties shall notify each other in writing when their domestic procedures for the entry into force of this Agreement have been completed. The Agreement shall enter into force on the first day of the second month following the date of receipt of the last notification through diplomatic channels. 2. After the entry into force of this Agreement, the Agreement between the Government of the Republic of Kazakhstan and the Government of the Republic of Finland on the Promotion and Mutual Protection of Investments, signed in Alma Ata on September 29, 1992, is considered terminated. 3. This Agreement remains in force for 10 years and thereafter remains in force until either Party notifies the other in writing of its intention to terminate this Agreement after 12 months. 4. With respect to investments made prior to the date of termination of this Agreement, the provisions of articles 1-16 shall remain in force for a further period of 20 years from the date of termination of this Agreement. 5. Amendments and additions may be made to this Agreement by mutual agreement of the Parties. Such amendments and additions are formalized by protocols and are integral parts of this Agreement. They shall enter into force in the same manner as this Agreement. In witness whereof, the undersigned representatives duly authorized have signed this agreement.

Done in Astana on January 9, 2007, in two copies in the Kazakh, Finnish, Russian and English languages, all texts are authentic. In case of disagreement in the interpretation of the provisions of this Agreement, the Parties will refer to the English text.

For the Government For the Government of the Republic of Kazakhstan of the Republic of Finland

President

Republic of Kazakhstan

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