Bit Ghana
Bit Ghana
Bit Ghana
AGREEMENT BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF GHANA
AND
THE GOVERNMENT OF THE REPUBLIC OF ………………………
FOR THE PROMOTION AND PROTECTION
OF INVESTMENTS
The Government of the Republic of Ghana and the Government of the Republic of
…….…………….. (hereinafter referred to as the “Contracting Parties”),
ARTICLE 1
Definitions
A change in the form in which assets are invested does not affect their
character as investments, provided such change is not contrary to the laws of
the Contracting Party in whose territory the investment has been made.
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(i) in respect of the Republic of Ghana: any corporations, firms and
associations incorporated or constituted under the law in force in the
Republic of Ghana;
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ARTICLE 2
Admission of Investments
1. Each Contracting Party shall encourage and create favourable conditions for
nationals and companies of the other Contracting Party to invest in its territory and
shall admit such investments in accordance with its laws, regulations and policies.
2. Each Contracting Party shall subject to its laws, regulations and policies
relating to the entry of foreign nationals facilitate the entry and stay in its territory to
the investor and to key personnel employed by the investor in connection with an
investment.
ARTICLE 3
Protection of Investments
2. It is understood that the concepts of “fair and equitable treatment” and “full
protection and security” means treatment that meets the standard required by
customary international law and does not require treatment in addition to, or beyond
such a standard.
ARTICLE 4
National Treatment and Most-Favoured-Nation Provisions
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3. The most favoured nation treatment referred to in paragraphs (1) and (2) shall
not extend to provisions on investor-State disputes.
ARTICLE 5
Exceptions to Non-Discrimination
1. The provisions of this Agreement relative to the grant of treatment not less
favourable than that accorded to the nationals or companies of any third State shall
not be construed so as to oblige one Contracting Party to extend to the nationals or
companies of the other, the benefit of any treatment, preference or privilege resulting
from:
(a) any existing or future customs union, common market, free trade area,
or regional economic organization or measures leading to the
formation of a customs union or free trade area of which either
Contracting Party is a member; or to which it is associated;
2. The provisions of this Agreement relative to the grant of treatment not less
favourable than that accorded to the nationals or companies of either Contracting
Party shall not be construed so as to oblige one Contracting Party to extend to the
nationals or companies of the other, the benefit of any treatment, preference or
privilege resulting from any special policies or measures intended to address the
specific internal needs of identified disadvantaged groups, persons or regions in the
territory of either Contracting Party.
ARTICLE 6
Repatriation of Investments and Returns
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ARTICLE 7
Expropriation
4. A national or company affected shall have a right, under the law of the
Contracting Party making the expropriation, to prompt review, by a judicial or other
independent authority of that Party, of its investment in accordance with the principles
set out in paragraph (1), (2) and (3) of this Article.
ARTICLE 8
Compensation for Losses
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ARTICLE 9
Subrogation
2. The former Contracting Party or its designated Agency shall be entitled in all
circumstances to the same treatment in respect of the rights and claims acquired by it
by virtue of the assignment and any payments received in pursuance of those rights
and claims as the party indemnified was entitled to receive by virtue of this
Agreement in respect of the investment concerned and its related returns.
ARTICLE 10
Essential security interests
ARTICLE 11
Denial of benefits
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ARTICLE 12
Responsibilities of Nationals and Companies of a Contracting Party in the
Territory of the other Contracting Party
1. Nationals and companies of one Contracting Party in the territory of the other
Contracting Party shall be bound by the laws and regulations in force in the host State,
including its laws and regulations on labour, health and the environment.
2. Nationals and companies of one Contracting Party in the territory of the other
Contracting Party shall to the extent possible, encourage human capital formation,
local capacity building through close cooperation with the local community, create
employment opportunities and facilitate training opportunities for employees, and the
transfer of technology.
3. Nationals and companies of one Contracting Party in the territory of the other
Contracting Party shall behave in accordance with relevant guidelines and other
internationally accepted standards applicable to foreign investors.
Article 13
Investment Promotion and Joint Commission
(d) Encourage joint investment promotion activities between the Contracting Parties
such as the organization of joint conferences, seminars and workshops;
(e) Encourage and monitor the administrative procedures concerning the admission
and operation of foreign investment;
(g) Facilitate the establishment of links between research and training centres,
specialized investment promotion agencies and business organizations;
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(i) Consider any other matter that may affect the operation of this Agreement;
2. The Commission may also discuss and suggest appropriate amendments to the
Agreement to be adopted by the Contracting Parties.
3. The Commission shall meet on a regular basis, and at least once a year.
ARTICLE 14
Settlement of Investment Disputes between a national or a company of a
Contracting Party and another Contracting Party
Disputes arising from the application and interpretation of the Agreement shall be to
the extent possible settled through consultation, negotiation or mediation upon written
request submitted by either party.
2. Administrative review
a) In the event that a dispute arising from the application and interpretation of the
Agreement cannot be settled by consultation, negotiation or mediation within 6
months from the written request as provided under (1) [or Administrative Review as
provided under (2) of this article], the investor may submit a claim, in writing (written
notice) to the other disputing party that the latter has breached an obligation under this
Agreement and that the investor has incurred loss or damage by reason of, or arising
out of, that breach;
4. Written notice
The written notice shall specify the name and address of the investor, evidence
establishing that it is an investor of the other Contracting Party, the provisions of this
Agreement alleged to have been breached, the issues and factual basis for the claim
and the approximate amount of damages claimed.
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5. Submission of a claim
(b) an ad-hoc tribunal established under the Arbitration Rules of the United
Nations Commission on International Trade Law ( UNCITRAL);
(c) the ICSID Convention and the ICSID Rules of Procedure for Arbitration
Proceedings, provided that both Contracting Parties are members of the ICSID
Convention and that there is an explicit written consent between the investor
and the contracting party to submit the dispute to the ICSID according to
Article (25/1) of the ICSID convention; or under the ICSID Additional
Facility Rules, provided that one Contracting Party is a party to the ICSID
Convention;
(f) under any other arbitration rules subject to agreement by the disputing parties.
2. Once the disputing party has submitted the dispute to the competent
national courts of the Contracting Party in whose territory the investment has
been made, or to international arbitration, that election is final.
Unless the disputing parties otherwise agree, the arbitral tribunal shall comprise three
arbitrators, one arbitrator appointed by each of the disputing parties and the third, who
shall be the presiding arbitrator, appointed by agreement of the disputing parties.
An arbitral tribunal may order an interim measure of protection to preserve the rights
of a disputing party, or to facilitate the conduct of arbitral proceedings, including an
order to preserve evidence in the possession or control of a disputing party.
8. State contracts
In the case where the investor and the Contracting Party in whose territory the
investment is made have signed a State contract or an investment agreement, the
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procedure relating to the settlement of disputes foreseen in that contract or investment
agreement shall apply to the settlement of disputes arising from the breach or
violation of that contract or investment agreement.
9. Governing law
(a) The arbitral tribunal shall reach its decision on the basis of the provisions of this
Agreement, national laws and regulations of the Contracting Party which is a party to
the dispute and applicable rules of international law.
(b) Any interpretation adopted by the Joint Commission shall be binding upon any
tribunal established under this Agreement, and any award must be consistent with
such interpretation.
Where the tribunal makes a final award against a party, the tribunal may award,
separately or in combination, only:
(b) restitution of property, in which case the award shall provide that the party may
pay monetary damages and any applicable interest in lieu of restitution.
The tribunal may also award costs and attorneys’ fees in accordance with this
Agreement and the applicable arbitration rules. The tribunal may not award punitive
damages.
(a) An award made by a tribunal shall be final and binding on the disputing parties in respect
of the particular case.
(b) Subject to the applicable revision, annulment or set aside procedures, a disputing party
shall abide by and comply with an award without delay.
(c) Each Contracting Party shall provide for the enforcement of an award in its territory in
accordance with its national law and regulations.
(d) If a disputing party fails to abide by or comply with a final award within 3 months, the
Contracting Party whose investor was a party to the arbitration may have recourse to the
provision for the settlement of disputes between the Contracting Parties under article 15.
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ARTICLE 15
Disputes Between the Contracting Parties
2. If a dispute between the Contracting Parties cannot thus be settled within six
months, it shall upon the request of either Contracting Party be submitted to an
arbitral tribunal.
3. 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 (2) months from the date of appointment of the other two members.
5. 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 Contracting Parties. The tribunal shall
determine its own procedure.
ARTICLE 16
Amendments
At the time of entry into force of this Agreement or at any time thereafter, the
provisions of this Agreement may be amended in such manner as may be agreed
between the Contracting Parties. Each Contracting Party shall notify the other
Contracting Party of the completion of the constitutional formalities in its territory for
entry into force of the said amendments. Such amendments shall enter into force on
the date of the latter of the two notifications.
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ARTICLE 17
Scope of application
1. This Agreement shall apply to all investments made before or after its entry
into force by nationals or companies of either Contracting Party in the territory of the
other Contracting Party. However, the provisions of this Agreement shall not apply to
claims arising out of events which occurred or to claims which have been settled prior
to its entry into force.
2. The provisions of this Agreement shall not apply to matters of taxation in the
territory of either Contracting Party. Such matters shall be governed by the domestic
laws of each Contracting Party and the terms of an agreement relating to taxation
concluded between the Contracting Parties
ARTICLE 18
Entry into Force, Duration and Termination
1. Each Contracting Party shall notify the other Contracting Party of the
completion of the constitutional formalities in its territory for the entry into force of
this Agreement. This Agreement shall enter into force on the date of the latter of the
two notifications.
2. This Agreement shall remain in force for a period of ten (10) years. After the
expiration of the initial period, it shall continue in force thereafter until either
Contracting Party notifies the other Contracting Party in writing of its decision to
terminate this Agreement. The notice of termination shall become effective one year
after the date of notification.
3. In respect of investments made prior to the date of termination of this
Agreement, the provisions of Articles 1 to 18 of this Agreement shall remain in force
for a further period of ten (10) years from the date of termination.
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