CHAPTER 9

INVESTMENT

Section A

Article 9.1: Definitions

For the purposes of this Chapter:

Centre means the International Centre for Settlement of Investment Disputes

(ICSID) established by the ICSID Convention;

claimant means an investor of a Party that is a party to an investment dispute with another Party. If that investor is a natural person, who is a permanent resident of a Party and a national of another Party, that natural person may not submit a claim to arbitration against that latter Party;

covered investment means, with respect to a Party, an investment in its territory of an investor of another Party in existence as of the date of entry into force of this Agreement for those Parties or established, acquired, or expanded thereafter;

disputing parties means the claimant and the respondent;

disputing party means either the claimant or the respondent;

enterprise means an enterprise as defined in Article 1.3 (General Definitions), and a branch of an enterprise;

enterprise of a Party means an enterprise constituted or organised under the law of a Party, or a branch located in the territory of a Party and carrying out business activities there;1

freely usable currency means “freely usable currency” as determined by the

International Monetary Fund under its Articles of Agreement;

ICC Arbitration Rules means the arbitration rules of the International Chamber of Commerce;

1   For greater certainty, the inclusion of a “branch” in the definitions of “enterprise” and

“enterprise of a Party” is without prejudice to a Party’s ability to treat a branch under its laws as an entity that has no independent legal existence and is not separately organised.

ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;

ICSID Convention means the Convention on the Settlement of Investment Disputes between  States  and  Nationals of  other  States,  done  at  Washington, March 18, 1965;

Inter-American   Convention   means   the   Inter-American   Convention   on

International Commercial Arbitration, done at Panama, January 30, 1975;

investment means  every asset  that  an  investor  owns or  controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.   Forms that an investment may take include:

 (a)       an enterprise;

 (b)       shares,  stock  and  other  forms  of  equity  participation  in  an enterprise;

 (c)       bonds, debentures, other debt instruments and loans;2, 3

 (d)       futures, options and other derivatives;

 (e)       turnkey,    construction,   management,    production,   concession, revenue-sharing and other similar contracts;

 (f)       intellectual property rights;

(g)       licences,  authorisations,  permits  and  similar  rights  conferred pursuant to the Party’s law;4 and

2   Some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the characteristics of an investment, while other forms of debt, such as claims to payment that are immediately due and result from the sale of goods or services, are less likely to have such characteristics.

3   A loan issued by one Party to another Party is not an investment.

4   Whether a particular type of licence, authorisation, permit or similar instrument (including a concession to the extent that it has the nature of such an instrument) has the characteristics of an investment depends on such factors as the nature and extent of the rights that the holder has under the Party’s law.  Among such instruments that do not have the characteristics of an investment are those that do not create any rights protected under the Party’s law. For greater certainty, the foregoing is without prejudice to whether any asset associated with such instruments has the characteristics of an investment.

 (h)       other tangible or intangible, movable or immovable property, and related  property  rights,  such  as  leases,  mortgages,  liens  and pledges,

but investment does not mean an order or judgment entered in a judicial or administrative action.

investment agreement means a written agreement5  that is concluded and takes effect after the date of entry into force of this Agreement6 between an authority at the  central  level  of  government7  of a  Party and a  covered investment  or an investor of another Party and that creates an exchange of rights and obligations, binding on both parties under the law applicable under Article 9.25.2 (Governing Law), on which the covered investment or the investor relies in establishing or acquiring a covered investment other than the written agreement itself, and that grants rights to the covered investment or investor:

(a)       with respect to natural resources that a national authority controls, such as oil, natural gas, rare earth minerals, timber, gold, iron ore and other similar resources,8  including for their exploration, extraction, refining, transportation, distribution or sale;

5   “Written agreement” refers to an agreement in writing, negotiated and executed by both parties, whether in a single instrument or in multiple instruments. For greater certainty:

 (a)    a unilateral act of an administrative or judicial authority, such as a permit, licence, authorisation, certificate, approval, or similar instrument issued by a Party in its regulatory capacity, or a subsidy or grant, or a decree, order or judgment, standing alone; and

 (b)    an administrative or judicial consent decree or order, shall not be considered a written agreement.

6   For greater certainty, a written agreement that is concluded and takes effect after the entry into force of this Agreement does not include the renewal or extension of an agreement in accordance with the provisions of the original agreement, and on the same or substantially the same terms and conditions as the original agreement, which has been concluded and entered in force prior to the entry into force of this Agreement.

7   For the purposes of this definition, “authority at the central level of government” means, for unitary states, an authority at the ministerial level of government. Ministerial level of government means government departments, ministries or other similar authorities at the central level of government, but does not include: (a) a governmental agency or organ established by a Party’s constitution or a particular legislation that has a separate legal personality from government departments, ministries or other similar authorities under a Party’s law, unless the day to day operations of that agency or organ are directed or controlled by government departments, ministries or other similar authorities; or (b) a governmental agency or organ that acts exclusively with respect to a particular region or province.

8   For the avoidance of doubt, this subparagraph does not include an investment agreement with respect to land, water or radio spectrum.

 (b)       to supply services on behalf of the Party for consumption by the general   public   for:   power   generation   or   distribution,   water treatment or distribution, telecommunications, or other similar services supplied on behalf of the Party for consumption by the general public;9 or

 (c)       to undertake infrastructure projects, such as the construction of roads, bridges, canals, dams or pipelines or other similar projects; provided, however, that the infrastructure is not for the exclusive or predominant use and benefit of the government;

investment authorisation10  means an authorisation that the foreign investment authority of a Party11  grants to a covered investment or an investor of another Party;

investor of a non-Party means, with respect to a Party, an investor that attempts to make,12 is making, or has made an investment in the territory of that Party, that is not an investor of a Party;

investor of a Party means a Party, or a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of another Party;

LCIA Arbitration Rules means the arbitration rules of the London Court of International Arbitration;

9   For the avoidance of doubt, this subparagraph does not cover correctional services, healthcare services, education services, childcare services, welfare services or other similar social services.

10   For greater certainty, the following are not encompassed within this definition: (i) actions taken by a Party to enforce laws of general application, such as competition, environmental, health or other regulatory laws; (ii) non-discriminatory licensing regimes; and (iii) a Party’s decision to grant to a covered investment or an investor of another Party a particular investment incentive or

other benefit, that is not provided by a foreign investment authority in an investment authorisation.

11   For the purposes of this definition, “foreign investment authority” means, as of the date of entry into force of this Agreement: (a) for Australia, the Treasurer of the Commonwealth of Australia under Australia’s foreign investment policy including the Foreign Acquisitions and Takeovers Act

1975; (b) for Canada, the Minister of Industry, but only when issuing a notice under Section 21 or

22 of the Investment Canada Act; (c) for Mexico, the National Commission of Foreign Investments (Comisión Nacional de Inversiones Extranjeras); and (d) for New Zealand, the Minister of Finance, the Minister of Fisheries or the Minister for Land Information, to the extent that they make a decision to grant consent under the Overseas Investment Act 2005.

12   For greater certainty, the Parties understand that, for the purposes of the definitions of “investor of a non-Party” and “investor of a Party”, an investor “attempts to make” an investment when that investor has taken concrete action or actions to make an investment, such as channelling resources or capital in order to set up a business, or applying for a permit or licence.

negotiated restructuring means the restructuring or rescheduling of a debt instrument that has been effected through (a) a modification or amendment of that debt instrument, as provided for under its terms, or (b) a comprehensive debt exchange or other similar process in which the holders of no less than 75 per cent of the aggregate principal amount of the outstanding debt under that debt instrument have consented to the debt exchange or other process;

New   York   Convention  means   the   Convention   on   the   Recognition   and

Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958;

non-disputing Party means a Party that is not a party to an investment dispute;

protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party’s law, including classified government information;

respondent means the Party that is a party to an investment dispute;

Secretary-General means the Secretary-General of ICSID; and

UNCITRAL Arbitration Rules means the arbitration rules of the United Nations

Commission on International Trade Law.

Article 9.2: Scope

1.        This Chapter shall apply to measures adopted or maintained by a Party relating to:

 (a)       investors of another Party; (b)       covered investments; and

(c)       with  respect  to  Article  9.10  (Performance  Requirements)  and Article 9.16 (Investment and Environmental, Health and other Regulatory  Objectives),  all  investments  in  the  territory  of  that Party.

2.        A Party’s obligations under this Chapter shall apply to measures adopted or maintained by:

 (a)       the central, regional or local governments or authorities of that

Party; and

(b)       any person, including a state enterprise or any other body, when it exercises any governmental authority delegated to it by central, regional or local governments or authorities of that Party.13

3.        For greater certainty, this Chapter shall not bind a Party in relation to an act or fact that took place or a situation that ceased to exist before the date of entry into force of this Agreement for that Party.

Article 9.3: Relation to Other Chapters

1.        In  the  event  of  any  inconsistency  between  this  Chapter  and  another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.

2.        A requirement of a Party that a service supplier of another Party post a bond or other form of financial security as a condition for the cross-border supply of a service does not of itself make this Chapter applicable to measures adopted or maintained by the Party relating to such cross-border supply of the service.  This Chapter shall apply to measures adopted or maintained by the Party relating to the posted bond or financial security, to the extent that the bond or financial security is a covered investment.

3.        This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapter 11 (Financial Services).

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