Bilateral Agreements
for the Promotion and Protection of Investments
Desiring to expand and deepen
economic and industrial cooperation
on a long term basis, and in particular,
to create favorable conditions for investments
by foreign investors and recognizing the need to
protect investments by these foreign and to
stimulate the flow of investments and
individual, business initiative , the Royal
Government of Cambodia have entered into
bilateral agreement for the promotion and
protection of investments with various
countries such as Malaysia, Thailand, the USA
and is currently negotiating with many more
countries.
The following excerpts are typical clauses
drawn from the agreement with the Federation
of Malaysia pertaining to these bilateral
agreements:
ARTICLE 1: DEFINITION
1. For the purpose of this Agreement:
(a). "investments' mean every kind of asset
and in particular, though not exclusively,
includes:
(i) movable and immovable property
and any other property rights such
as mortgages, hens and pledges;
(ii) shares, stocks and debentures of
companies or interests in the
property of such companies;
(iii) a claim to money or a claim to any
performance having financial value;
(iv) intellectual and industrial property
rights, including rights with respect
to copyrights, patents, trademarks,
industrial designs, trade secrets,
technical processes and know-how
and goodwill;
(v) business concessions conferred by
law or under contract, including
concessions to search for,
cultivate, extract, or exploit natural
resources;
(b) "returns" means the amount yielded by
an investment and in particular, though
not exclusively, includes profit, interest,
capital gains, dividends, royalties or fees.
(c) "investor" means:
(i) any natural person possessing the
citizenship of or permanently
residing in a Contracting Party in
accordance with its laws; or
(ii) any corporation, partnership, trust,
joint-venture, organization,
association or . enterprise
incorporated or duly constituted in
accordance with applicable laws of
that Contracting Party;
(d) "territory" means:
(i) with respect to the Kingdom of
Cambodia, all land territory, the
territorial sea, its bed and subsoil
and airspace above.
(ii) with respect to Malaysia, all land
territory comprising the Federation
of Malaysia, the territorial sea, its
bed and subsoil and airspace above;
(e) "freely usable currency" means the
United States Dollar, Pound Sterling,
Deutschmark, French Franc, Japanese Yen
or any other currency that is widely used
to make payments for international
principal exchange markets.
(i) The term "investments" referred to
in paragraph 1 (a) shall only refer to
all investments that are made in
accordance with the law, regulations
and national policies of the
Contracting Parties.
(ii) Any alteration of the form in which
assets are invested shall not affect
their classification as investments,
provided that such alteration is not
contrary to the approval, if any,
granted in respect of the assets
originally invested.
ARTICLE 2: PROMOTION AND PROTECTION OF
INVESTMENT
- Each Contracting Party shall encourage
and create favorable conditions for
investors of the other Contracting Party to
invest capital in its territory and subject to
its rights to exercise powers conferred by
its laws, regulations and national
policies, shall admit such investments.
- Investments of investors of either
Contracting Party shall at all time be
accorded fair and equitable treatment and
shall enjoy full protection and security in
the territory of the other Contracting
Party.
ARTICLE 3: FAIR TREATMENT PROVISIONS
- Investments made by investors of either
Contracting Party in the territory of the
other Contracting Party shall receive
treatment which is fair and equitable in
accordance with the laws, regulations and
national policies of the -Contracting Parties
and not less favorable than that accorded
to investments made by investors of any
third State.
- Investors of one Contracting Party whose
investments in the territory of the other
Contracting Party suffer losses owing to
war or other armed conflict, revolution, a
state national emergency, revolt,
insurrection or riot in the territory of the
latter Contracting Party shall be accorded
by the latter Contracting Party treatment,
as regards restitution, indemnification,
compensation or other settlement, no less
favorable than that which the latter
Contracting, party accords to investors of
any third State.
- The provision of this Agreement relative
to the granting of treatment not less
favorable than that accorded to the
investors of any third State shall not be
construed so as to oblige one Contracting
Party to extend to the investors of the
other the benefit of any treatment,
preference or privilege resulting from:
(a) any existing or future customs union
or free trade area or a common
market or a monetary union or
similar international agreement or
other forms of regional cooperation
to which either of the Contracting
Parties is or may become a
party; or the adoption of an
agreement designed to lead to the
formation or extension of such a
union or area within a reasonable
length of time; or
(b) any international agreement or
arrangement relating wholly or
mainly to taxation or any domestic
legislation relating wholly or mainly
to taxation.
ARTICLE 4: EXPROPRIATION
Neither Contracting Party shall take any
measures of expropriation, nationalization or
any other dispossession, having effect
equivalent to nationalization or expropriation
against the investments of an investor of the
other Contracting Party except under the
following conditions:
(a) the measures are taken for a lawful
purpose, for public interest, and under
due process of law;
(b) the measures are non discriminatory,
(c) the measures are accompanied by
provisions for the payment of prompt,
adequate, effective, and just
compensation. Such compensation shall
amount to the market value of the
investments affected immediately before
the measure of expropriation,
nationalization or dispossession became
public knowledge. The market value of
the investments shall be determined by an
independent international appraiser
selected and mutually agreed by both
Contracting Parties. The compensation
proceeds shall be freely transferable in
freely usable currencies from the
Contracting Party at breach. Any
unreasonable delay in payment of
compensation shall carry an appropriate
interest at commercially reasonable rate as
agreed upon by both Contracting Parties
or at such rate as prescribed by law of the
Contracting Party not at breach.
ARTICLE 5: REPATRIATION OF INVESTMENT
- Each Contracting Party shall, subject to its
laws, regulations and national policies
allow without unreasonable delay the
transfer of any freely usable currency:
(a) the net profits, dividends, royalties,
technical assistance and technical
fees, interest and other current
income, accruing from any
investment of the investors of the
other Contracting Party:
(b) the proceeds from the total or partial
liquidation of any investment made
by the investors of the other
Contracting Party;
(c) funds in repayment of
borrowings/loans given by
investors of one Contracting Party to
the investors of the other
Contracting Party which both
Contracting Parties have recognized
as investment; and
(d) the earnings and other
compensation of investors of the
other Contracting Party who are
employed and- allowed to work in
connection with an investment in the
territory of the other Contracting
Party.
- The exchange rates applicable to such
transfer in the paragraph 1 of this Article
shall be the rate of exchange prevailing at
the time of remittance.
- The Contracting Parties undertake to
accord to the transfers referred to in
paragraph 1 of this Article treatment as
favorable as that accorded to the transfer
originating from investments made by
investors of any third State.
- Transfers are subject to the right of each
Contracting party, in exceptional financial
or economic circumstances, to exercise
equitably and in good faith powers
conferred upon it by its laws and
regulations at the time the investment is
made as well as new laws and regulations
thereafter, provided that no investor shall
be put in a less favourable position that at
the time of commencement of the
investment.
ARTICLE 6: SETTLEMENT OF INVESTMENT
DISPUTES BETWEEN A CONTRACTING PARTY
AND AN INVESTOR OF THE OTHER
CONTRACTING PARTY
- Any dispute which may arise between an
investor of one Contracting Party and the
other Contracting Party in connection
with an investment in the territory of that
other Contracting Party shall be subject to
negotiations between the parties in
dispute.
- If any dispute between an investor of one
Contracting Party and the other
Contracting Party cannot be thus settled
within a period of six months, the investor
shall be entitled to submit the case either
to:
(a) the International Centre for
Settlement of Investment Disputes
(ICSID) having regard to the
applicable provisions of the
Convention on the Settlement of
Investment Disputes between States
and Nationals of other States opened
for signature at Washington D.C. on
18 March 1965, in the event both
Contracting Parties shall have
become a party to this Convention;
or
(b) an arbitrator or international ad hoc
arbitral tribunal established under
the Arbitration Rules of the United
Nations Commission on
International Trade Law
(UNCITRAL). The Parties to the
dispute may agree in writing to
modify these Rules. The arbitral
awards shall be final and binding on
both Parties to the dispute.
- Neither Contracting Party shall pursue
through diplomatic channels any matter
referred to arbitration until the
proceedings have terminated or a
Contracting Party has failed to abide by or
comply with the award rendered by the
Arbitral Tribunal.
ARTICLE 7: SETTLEMENT OF DISPUTES BETWEEN
THE CONTRACTING PARTIES
- Disputes between the Contracting Parties
concerning the interpretation or
application of this Agreement should, if
possible, be settled through diplomatic
channels.
- If a dispute between the Contracting
Parties cannot thus be settled, it shall
upon the request of either Contracting
Party be submitted to an arbitral tribunal.
- Such an arbitral tribunal shall be
constituted for each individual case in the
following way. Within two months of the
receipt of the request for arbitration, each
Contracting Party shall appoint one
member of the' tribunal. Those two
members shall then select a national of a
third State who on approval by the two
Contracting Parties shall be appointed
Chairman of the tribunal. The Chairman
shall be appointed within two months
from the date of appointment of the other
two members.
- If within the period specified in
paragraph 3 of this Article the necessary
appointments have not been made, either
Contracting Party may, in the absence of
any other agreement, invite the President
of the International Court of justice to
make any necessary appointments. If the
President is a national of either
Contracting Party or if he is otherwise
prevented from discharging the said
function, the Vice-President shall be
invited to make the necessary
appointments. If the Vice-President is a
national of either Contracting Party of if
he too is prevented from discharging the
said function, the members of the
International Court or justice next in
seniority who is not a national of either
Contracting Party shall be invited to make
the necessary appointments.
- The arbitral tribunal shall reach its
decision by a majority of votes. Such
Decision shall be binding on both
Contracting Parties. Each Contracting
Party shall bear the cost of its own
member of the tribunal and of its
representation in the arbitral proceedings;
the cost of the Chairman and the
remaining costs shall be borne in equal
parts by the Contracting Parties. The
tribunal may, however, in its decision
direct that a higher proportion of costs
shall be borne by one of the. two
Contracting Parties, and this award shall
be binding on both Contacting Parties.
The tribunal shall determine its own
procedure.
ARTICLE 8: SUBROGATION
If a Contracting Party makes a payment to any
of its investors under a guarantee it has granted
in respect to an investment, the other
Contacting Party shall, without prejudice to the
rights of the former Contracting Party under
Article 6, recognize the transfer of any right or
title of such national or company to the former
Contracting Party and the subrogation of the
former Contracting Party to any right or title.
ARTICLE 9: APPLICATION TO INVESTMENT
This Agreement shall apply to investments
made in the territory of either Contracting Party
in accordance with its legislation, rules or
regulations by investors of the other
Contracting Party prior to as well as after the
entry into force of this Agreement.
ARTICLE 10: ENTRY INTO FORCE, DURATION
AND TERMINATION
- This Agreement shall enter into force
thirty (30) days after the later date on
which the Governments of the Contracting
Parties have notified each other that their
constitutional requirements for the entry
into force of this Agreement have been
fulfilled. The later date shall refer to the
date on which the last notification letter is
sent.
- This Agreement shall remain in force for a
period of ten (10) years unless terminated
in accordance with paragraph 3 of this
Article.
- Either Contracting Party may by giving
one (1) year's written notice to the other
Contracting Party, terminate this
Agreement within the initial ten (10) year
period or anytime thereafter.
- With respect to investments made or
acquired prior to the date of termination
of this Agreement, the provisions of all of
the other Articles of this Agreement shall
continue to be effective for a period of ten
(10) years from such date of termination.