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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-09-14
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Chapter Eleven
Subchapter A - Investment
Article 1101: Scope
1. This Chapter applies to measures adopted or maintained by a
Party relating to:
(a) investors of another Party;
(b) investments of investors of another Party in the
territory of the Party existing at the date of entry into force
of this Agreement as well as to investments made or acquired
thereafter by such investors; and
(c) with respect to Article 1106, all investments in the
territory of the Party existing at the date of entry into force
of this Agreement as well as to investments made or acquired
thereafter.
2. A Party has the right to perform exclusively the economic
activities set out in Annex III and to refuse to permit the
establishment of investment in such activities.
3. This Chapter does not apply to Chapter Fourteen (Financial
Services) except to the extent specifically provided therein.
4. Nothing in this Chapter shall be construed to prevent a
Party from providing a service or performing a function such as
law enforcement, correctional services, income security or
insurance, social security or insurance, social welfare, public
education, public training, health, and child care, in a manner
that is not inconsistent with this Chapter.
Article 1102: National Treatment
1. Each Party shall accord to investors of another Party
treatment no less favorable than that it accords, in like
circumstances, to its own investors with respect to the
establishment, acquisition, expansion, management, conduct,
operation and sale or other disposition of investments.
2. Each Party shall accord to investments of investors of
another Party treatment no less favorable than that it accords,
in like circumstances, to investments of its own investors with
respect to the establishment, acquisition, expansion, management,
conduct, operation and sale or other disposition of investments.
3. The treatment accorded by a Party under paragraphs 1 and 2
means, with respect to a state or province, treatment no less
favorable than the most favorable treatment accorded, in like
circumstances, by such state or province to investors, and to
investments of investors, of the Party of which it forms a part.
4. For greater certainty, no Party shall:
(a) impose on an investor of another Party a requirement
that a minimum level of equity in an enterprise in the territory
of the Party be held by its nationals, other than nominal
qualifying shares for directors or incorporators of corporations;
or
(b) require an investor of another Party, by reason of its
nationality, to sell or otherwise dispose of an investment in the
territory of the Party.
Article 1103: Most-Favored-Nation Treatment
1. Each Party shall accord to investors of another Party
treatment no less favorable than that it accords, in like
circumstances, to investors of another Party or of a non-Party
with respect to the establishment, acquisition, expansion,
management, conduct, operation and sale or other disposition of
investments.
2. Each Party shall accord to investments of investors of
another Party treatment no less favorable than that it accords,
in like circumstances, to investments of investors of another
Party or of a non-Party with respect to the establishment,
acquisition, expansion, management, conduct, operation and sale
or other disposition of investments.
Article 1104: Non-discriminatory Treatment
Each Party shall accord to investors of another Party and to
investments of investors of another Party the better of the
treatment required by Articles 1102 and 1103 ("non-discriminatory
treatment").
Article 1105: Minimum Standard of Treatment
1. Each Party shall accord to investments of investors of
another Party treatment in accordance with international law,
including fair and equitable treatment and full protection and
security.
2. Without prejudice to paragraph 1 and notwithstanding Article
1108 (8) (b), each Party shall accord to investors of another
Party, and to investments of investors of another Party,
non-discriminatory treatment with respect to measures it
maintains or adopts relating to losses suffered by investments in
its territory owing to armed conflict or civil strife.
3. Paragraph 2 shall not apply to existing measures related to
subsidies or grants that are inconsistent with Article 1102.
Article 1106: Performance Requirements
1. A Party shall not impose the following requirements, or
enforce any commitment or undertaking, in connection with the
establishment, acquisition, expansion, management, conduct or
operation of an investment of an investor of a Party or of a
non-Party in its territory:
(a) to export a given level or percentage of goods or
services;
(b) to achieve a given level or percentage of domestic
content;
(c) to purchase, use or accord a preference to goods
produced or services provided in its territory, or to purchase
goods or services from persons in its territory;
(d) to relate in any way the volume or value of imports to
the volume or value of exports or to the amount of foreign
exchange inflows associated with such investment;
(e) to restrict sales of goods or services in its territory
that such investment produces or provides by relating such sales
in any way to the volume or value of its exports or foreign
exchange earnings;
(f) to transfer technology, a production process or other
proprietary knowledge to a person in its territory, except when
the requirement is imposed or the commitment or undertaking is
enforced by a court, administrative tribunal or competition
authority to remedy an alleged violation of competition laws; or
(g) to act as the exclusive supplier of the goods it
produces or services it provides to a specific region or world
market.
2. A requirement that an investment use a technology to meet
generally applicable health, safety or environmental
standards-related measures, as defined in Article 915, shall not
be construed to be inconsistent with paragraph 1(f). For greater
certainty, Articles 1102, 1103 and 1104 shall apply to such
requirements.
3. A Party shall not condition the receipt or continued receipt
of an advantage, in connection with investments in its territory
of investors of a Party or of a non-Party, on compliance with any
of the following requirements:
(a) to purchase, use or accord a preference to goods
produced in its territory, or to purchase goods from producers in
its territory;
(b) to achieve a given level or percentage of domestic
content;
(c) to relate in any way the volume or value of imports to
the volume or value of exports or to the amount of foreign
exchange inflows associated with such investment; or
(d) to restrict sales of goods or services in its territory
that such investment produces or provides by relating such sales
in any way to the volume or value of its exports or foreign
exchange earnings.
4. Nothing in paragraph 3 shall be construed to prevent a Party
from conditioning the receipt or continued receipt of an
advantage, in connection with investments in its territory of
investors of a Party or of a non-Party, on compliance with a
requirement to locate production, provide a service, train or
employ workers, construct or expand particular facilities, or
carry out research and development, in its territory.
5. Paragraphs 1 and 3 do not apply to any requirements other
than the requirements listed in those paragraphs.
Article 1107: Senior Management and Boards of Directors
1. A Party shall not require that an enterprise of the Party
that is an investment of an investor of another Party appoint to
senior management positions individuals of any particular
nationality.
2. A Party may require that a majority of the board of
directors, or any committee thereof, of an enterprise of the
Party that is an investment of an investor of another Party, be
of a particular nationality, or resident in