SECTION A
Article 1 Objectives
The objectives of this Chapter are to encourage and promote the flow of investment between the Parties on a mutually advantageous basis, under conditions of transparency within a stable framework of rules to ensure the protection and security of investments by investors of the other Party within each Party, while recognising the rights of Parties to regulate and the responsibility of governments to protect public health, safety and the environment.
Article 2 Definitions
For the purposes of this Chapter:
appointing authority means the Secretary General of the Permanent Court of Arbitration or any person as agreed by the disputing parties;
covered investment means, with respect to a Party, an investment in that Party of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired or expanded thereafter;
disputing investor means an investor of a Party that makes a claim against the other Party on its own behalf under Section B, and where relevant includes an investor of a Party that makes a claim on behalf of an enterprise of the disputing Party that the investor owns or controls directly or indirectly;
disputing parties means the disputing investor and the disputing Party;
disputing party means either the disputing investor or the disputing Party;
disputing Party means a Party against which a claim is made under Section B;
freely usable currency means “freely usable currency” as determined by the International Monetary Fund under its Articles of Agreement and amendments thereto, or any currency that is used to make international payments and is widely traded in the international principal exchange markets;
government procurement means any measure relating to the procurement by governmental agencies of goods or services or a combination of both for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale;
investment means every kind of 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, but are not limited to, the following:
(a) an enterprise;
(b) shares, stocks or other forms of equity participation in an enterprise, and rights derived therefrom;
(c) bonds, including government issued bonds, debentures, loans and other forms of debt, and rights derived therefrom4;
(d) rights under contracts, including turnkey, construction, management, production or revenue-sharing contracts;
(e) claims to money or to any contractual performance related to a business and having an economic value5;
(f) intellectual property rights and goodwill;
(g) rights conferred pursuant to law or contract such as concessions, licences, authorisations, and permits6; and
(h) other tangible and intangible, movable and immovable property, and any related property rights, such as leases, mortgages, liens and pledges.
4 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.
5 For greater certainty, investment does not mean claims to money that arise solely from:
a. commercial contracts for sale of goods or services; or
b. the extension of credit in connection with such commercial contracts.
6 The term “investment” does not include an order or judgment entered in a judicial or administrative action.
investor of a Party means:
(a) a Party;
(b) an enterprise of a Party; or
(c) a natural person of a Party;
that attempts to make, is making or has made an investment in the other Party;
measure adopted or maintained by a Party means any of those measures taken by a Party that are specified in paragraph 3(a) of Article 1 of GATS.
non-disputing Party means the Party of the disputing investor; and
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.
Article 3 Scope
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party;
(b) covered investments; and
(c) with respect to Article 7 (Performance Requirements), all investments in the Party.
2. For greater certainty, the provisions of this Chapter do not bind either Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement.
3. This Chapter does not apply to services supplied in the exercise of governmental authority, as defined in Article 3 (Definitions) of Chapter 13 (Cross-Border Trade in Services).
Article 4
Relation to Other Chapters
1. In the event of an inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency.
2. A requirement by a Party that a service supplier of the other Party post a bond or other form of financial security as a condition of 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 cross-border supply of the service. This Chapter applies to measures adopted or maintained by the Party relating to the posted bond or financial security, to the extent that such bond or financial security is a covered investment.
Article 5