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t Pp Investment

t Pp Investment

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Published by: darrell_Issa_leak on Jun 27, 2012
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06/27/2012

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INVESTMENTArticle 12.2: Definitions
For 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;
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 or established,acquired, or expanded thereafter [which has been legally constituted
in
accordance with its lawsand regulations, provided that such formalities do not materially impair the protections affordedby the Party to the investors
of
another Party or covered investments under this Chapter];
disputing parties
means the claimant and the respondent;
disputing party
means either the claimant or the respondent;
enterprise
means any entity constituted or organized under applicable law, whether or not forprofit, and whether privately or governmentally owned or controlled, including any corporation,trust, partnership, sole proprietorship, join venture, association, or similar organization and abranch
of
enterprise;
enterprise
of
a Party
means an enterprise constituted or organized under the law
of
a Party,[and a branch located
in
the territory
of
a Party] and carrying out business activities there;
freely usable currency
means "freely usable currency" as determined by the InternationalMonetary Fund under its
Articles
of
Agreement;
ICSID Additional Facility Rules
means the
Rules Governing the Additional Facility for theAdministration
of
Proceedings by the Secretariat
of
he International Centre
for
Settlement
of
Investment Disputes;
ICSID Convention
means the
Convention on the Settlement
of
nternational InvestmentDisputes between States
and
Nationals
of
other States,
done at Washington, March
18,
1965;
[Inter-American Convention
means the
Inter-American Convention on InternationalCommercial Arbitration,
done at Panama, January 30, 1975;]
investment
means every asset that an investor owns or controls, directly or indirectly, that hasthe characteristics
of
an investment, including such characteristics as the commitment
of
capitalor other resources, the expectation
of
gain or profit, or the assumption
of
risk.Forms that aninvestment may take include:
1
 
(a) an enterprise;(b) shares, stock, and other forms
of
equity participation
in
an enterprise;
[
(c) bonds, debentures, [other debt instruments,] and loans
eJ
[but does not include a debtinstrument
of
a Party or
of
a state enterprise]
;]
[
(c) debt securities and loans, as follows:(i) a debt security
of
an enterprise:(A) where the enterprise is
an
affiliate
ofthe
investor, or(B) where the original maturity
of
the debt security
is
at least three years,(ii) a loan to an enterprise
2:
(A) where the enterprise
is
an affiliate
of
the investor, or(B) where the original maturity
of
the debt security is at least three years;](d) futures, options and other derivatives;(e) turnkey, construction, management, production, concession, revenue-sharing andother similar contracts;(g) intellectual property rights [which are conferred pursuant to domestic laws
of
eachParty];(h) licenses, authorizations, permits and similar rights conferred pursuant to domesticlaw, :
3
and
[1
Some forms
of
debt, such as bonds, debentures, and long-term notes, are more likely to have thecharacteristics
of
an investment, while other forms
of
debt, such as claims to payment that areimmediately due and result from the sale
of
goods or services, are less likely to have such characteristics.]
e
or greater certainty, loans issued by one Party to another Party are not investments.]
3
Whether a particular type
of
license, authorization 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 dependson such factors as the nature and extent
of
the rights that the holder has under the law
of
the Party. Amongsuch instruments that do not have the characteristics
of
an investment are those that do not create anyrights protected under domestic law. For greater certainty, the foregoing is without prejudice to whetherany asset associated with such instruments has the characteristics
of
an investment.
2
 
(i) other tangible or intangible, movable or immovable property, and related propertyrights, such as leases, mortgages, liens and pledges; but investment does not mean
[
(a) claims to money that arise solely from(i) commercial contracts for the sale
of
goods or services by a national enterprisein the territory
of
a Party to an enterprise in the territory
of
the other Party, or(ii) the extension
of
a credit in connection with a commercial transaction, such
as
trade financing, other than a loan covered by subparagraph (c); and(b) ] an order or judgment entered in a judicial or administrative action.
[investment agreement
means a written agreement
4
between a national
authorit/
of
a Party anda covered investment
or
an investor
of
another Party, on which the covered investment or theinvestor relies
in
establishing or acquiring a covered investment other than the written agreementitself, that grants rights to the covered investment or investor:(a) with respect to natural resources that a national authority controls, such as for theirexploration, extraction, refining, transportation, distribution, or sale;(b) to supply services to the public on behalf
of
the Party, such as power generation ordistribution, water treatment or distribution, or telecommunications; or(c) to undertake infrastructure projects, such as the construction
of
roads, bridges, canals,dams, or pipelines, that are not for the exclusive or predominant use and benefit
of
thegovernment;]
[investment authorization
6
means an authorization that the foreign investment authority
of
aParty grants to a covered investment or
an
investor
of
another Party;]
1
 
"Written agreement" refers to an agreement
in
writing, executed by both parties, whether
in
a single instrument or
in
multiple instruments, that creates an exchange
of
rights and obligations, binding on both parties under the lawapplicable under Article 12.24(2). For greater certainty, (a) a unilateral act
of
an administrative or judicial authoritysuch
as
a permit, license, or authorization issued by a Party solely in its regulatory capacity, or a decree, order, orjudgment, standing alone; and (b) an administrative or judicial consent decree or order, shall not be considered awritten agreement.]
1
For purposes
of
this definition, "national authority" means (a) for the United States, an authority at the centrallevel
of
government; and (b) for [Country],[].)
1
 
For greater certainty, actions taken
by
a Party to enforce laws
of
general application, such as competition laws, arenot encompassed within this definition.)
3

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