The Republic of China (Taiwan) and the Republic of the Gambia
hereinafter referred to as “ the Contracting Parties ”;
Desiring to intensify economic cooperation for the mutual
benefit of both States,
Intending to create favourable conditions for investments made
by investors of one Contracting Party in the territory of the
other Contracting Party; Recognizing that the promotion and
protection of such investments under this Agreement will be
conducive to the stimulation of business initiative of the
investors and will increase the prosperity in both states;
Have agreed as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement,
1. The term “ Investment ” means every kind of asset invested
by investors of one Contracting Party in the territory of the
other Contracting Party in accordance with the laws and
regulations of the latter Contracting Party and in
particular, though not exclusively, includes:
(a) an enterprise;
(b) movable and immovable property and any other property rights
such as mortgages, liens, and pledges;
(c) shares and any other form of participation in an enterprise;
(d) claims to money or to any performance under contract having
economic value and associated with an investment;
(e) intellectual property rights, technical processes, know-how
and goodwill;
(f) rights to undertake economic and commercial activities,
conferred by law or under contract, including concessions to
search for, cultivate, extract or exploit natural resources.
Any change of the form in which assets are invested or
reinvested shall not affect their character as investments,
provided that such change has been made in conformity with the
laws and regulations of the hosting Contracting Party.
2. The term “ investor ” refers to the natural persons or
enterprises of either Contracting Party who invest in the
territory of the other Contracting Party in accordance with
the laws of the latter Contracting Party and the provisions
of this Agreement.
(a) natural persons who according to the laws of that
Contracting Party, are considered to be its nationals; or
(b) enterprises constituted under the laws of that Contracting
Party and having its seat or its headquarters together with
effective economic activities in the territory of that same
Contracting Party.
The term "enterprise" means any entity constituted or organized
under applicable law, whether or not for profit, and whether
privately or governmentally owned or controlled, including any
corporation, trust, partnership, sole proprietorship, joint
venture or other association; and a branch of an enterprise.
3. The term “ returns ” means the amounts yielded by an
investment and includes, in particular although not
exclusively, profit, dividends, interest, capital gains,
royalties and fees.
4. The term “ territory ” means the territory of either
Contracting Party, including the land territory, internal
waters, the territorial sea and the airspace above them, as
well as the exclusive economic zone and the continental shelf
that extend beyond the territorial sea over which the
Contracting Party concerned exercises sovereign rights or
jurisdiction in accordance with international law and its
domestic legislation.
ARTICLE 2
PROMOTION AND ADMISSION OF
INVESTMENTS
1. Each Contracting Party shall, within the framework of its
laws and regulations, create favourable conditions for
attraction of investments of investors of the other
Contracting Party in its territory.
2. Each Contracting Party shall admit investments of investors
of the other Contracting Party in its territory in accordance
with its laws and regulations.
3. When one Contracting Party admits an investment in its
territory, it shall, in accordance with its laws and
regulations, grant the necessary permits in connection with
such an investment and with the carrying out of licensing
agreements and contracts for technical, commercial or
administrative assistance.
ARTICLE 3
PROTECTION OF INVESTMENTS
1. Investments made by investors of one Contracting Party in the
territory of the other Contracting Party shall be accorded
fair and equitable treatment and shall enjoy full protection
and security in accordance with customary international law.
2. Neither Contracting Party shall impair by unreasonable or
discriminatory measures the expansion, management,
maintenance, use, enjoyment or disposal of such investments.
ARTICLE 4
NATIONAL TREATMENT AND MOST FAVOURED NATION TREATMENT
1. Each Contracting Party shall accord, in its territory, to
investments made by investors of the other Contracting Party
treatment no less favourable than that which it accords, in
like circumstances, to the investments made by its own
investors or by investors of any third State whichever is
more favourable to the investor concerned.
2. Each Contracting Party shall accord, in its territory, to
investors of the other Contracting Party, as regards the
expansion, management, maintenance, use, enjoyment or
disposal of their investments, treatment no less favourable
than that which it accords, in like circumstances, to its own
investors or to investors of any third State whichever is
more favourable to the investor concerned.
3. The treatment granted under this Article shall not be
construed so as to oblige one Contracting Party to extend to
the investors of the other Contracting Party and their
investments the benefit of any treatment, preference or
privilege resulting from:
(a) its membership of, or association with, any existing or
future free trade area, customs, economic or monetary union
or other similar international agreements including other
forms of regional economic organization, or
(b) any international agreement or arrangement relating to
taxation or any domestic legislation relating wholly or
mainly to taxation.
ARTICLE 5
OTHER MEASURES
1. A Contracting Party may not require that an enterprise of
that Contracting Party that is an investment under this
Agreement appoint to senior management positions individuals
of any particular nationality.
2. A Contracting Party may require that a majority of the board
of directors, or any committee thereof, of an enterprise that
is an investment under this Agreement be of a particular
nationality, or resident in the territory of the Contracting
Party, provided that the requirement does not materially
impair the ability of the investor to exercise control over
its investment.
3. Except matters related to government procurement, subsides,
research and development, locating production, grants,
insurance, guarantees, and loans provided or supported by
each Contracting Party, neither Contracting Party may impose
any of the following requirements in connection with
permitting the establishment or acquisition of an investment
or enforce any of the following requirements in connection
with the subsequent regulation of that investment:
(a) to export a given level or percentage of goods;
(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; or
(e) to transfer technology, a production process or other
proprietary knowledge to a person in its territory
unaffiliated with the transferor, except when the
requirement is imposed or the commitment or undertaking is
enforced by a court, administrative tribunal or competition
authority, either to remedy an alleged violation of
competition laws or to act in a manner not inconsistent with
other provisions of this Agreement.
4. Subject to its laws, regulations and policies relating to the
entry of aliens, each Contracting Party shall grant entry to
persons of the other Contracting Party employed by an
enterprise who seek to render services to that enterprise or
a subsidiary or affiliate thereof, in a capacity that is
managerial or executive.
5. This Agreement shall not apply to any investment or investor
relating to:
(a) government procurement; or
(b) subsidies, grants, including government – supported loans,
guarantees, and insurance.
6. This Agreement shall not apply to any non-conforming measure
maintained by a Contracting Party at the central or local
level of government existing upon the entry into force of
this Agreement or any future amendment thereto provided that
such amendment does not increase its non-conforming effect.
ARTICLE 6
EXPROPRIATION AND COMPENSATION
1. Investments of investors of either Contracting Party shall
not be nationalized, expropriated or subjected to measures
having equivalent effect to nationalization or expropriation
(hereinafter referred to as “ expropriation ” )except for
public interest, in accordance with due process of law, on a
non-discriminatory basis and upon payment of prompt, adequate
and effective compensation.
2. Such compensation shall amount to the fair market value of
the expropriated investment immediately before the
expropriation or before the impending expropriation became
publicly known, whichever is earlier (hereinafter referred to
as the “ valuation date ” ).
3. Such market value shall be expressed in a freely convertible
currency at the market rate of exchange prevailing for that
currency on the valuation date. Compensation shall include
interest at a commercial rate established on a market basis
for the currency of valuation from the date of expropriation
until the date of payment. Compensation shall be paid without
delay, be effectively realizable and freely transferable.
ARTICLE 7
COMPENSATION FOR LOSSES
Investors of one Contracting Party whose investments in the
territory of the other Contracting Party suffer losses owing to
war or to other armed conflict, state of national emergency,
revolution, insurrection, civil disturbance or any other similar
event, shall be accorded by the latter Contracting Party
treatment, as regards restitution, indemnification, compensation
or other settlement, no less favourable than that which that
Contracting Party accords to its own investors or to investors
of any third State, whichever is more favourable to the investor
concerned.
ARTICLE 8
TRANSFERS
1. Each Contracting Party shall guarantee to investors of the
other Contracting Party the free transfer of payments
relating to their investments. Such transfers shall include,
in particular, though not exclusively:
(a) the initial capital and additional amounts to maintain or
increase the investment;
(b) investment returns, as defined in Article 1;
(c) funds in repayment of loans related to an investment;
(d) compensations provided for under Articles 6 and 7;
(e) proceeds from the total or partial sale or liquidation of an
investment;
(f) earnings and other remuneration of personnel in connection
with an investment;
(g) payments arising out of the settlement of a dispute.
2. Transfers under this present Agreement shall be made without
delay in a freely convertible currency at the market rate of
exchange applicable on the date of transfer.
3. Notwithstanding paragraphs 1 and 2, a Contracting Party may
prevent a transfer through the equitable, non-discriminatory
and good faith application of its laws relating to:
(a) bankruptcy, insolvency or the protection of the rights of
creditors;
(b) issuing, trading or dealing in securities;
(c) criminal or penal offenses;
(d) reports of transfers of currency or other monetary
instruments; or
(e) ensuring the satisfaction of judgments in judicial or
administrative proceedings.
ARTICLE 9
TRANSPARENCY
Each Contracting Party shall, to the extent practicable, ensure
that its laws, regulations, procedures, and administrative
rulings of general application respecting any matter covered by
this Agreement are promptly published or otherwise made publicly
available in such a manner as to enable interested persons and
the other Contracting Party to become acquainted with them.
ARTICLE 10
SUBROGATION
If a Contracting Party or its designated agency makes a payment
under an insurance or guarantee agreement against non-commercial
risks given in respect of an investment made by any of its
investors in the territory of the other Contracting Party, the
latter Contracting Party shall recognize:
(a) the assignment of any right or claim of such investor to the
former Contracting Party or its designated Agency, and
(b) the right of the former Contracting Party or its designated
Agency to exercise, by virtue of subrogation, any such right
and claim to the same extent as its predecessor in title.
ARTICLE 11
OBSERVANCE OF COMMITMENTS
Either Contracting Party shall guarantee the observance of
commitments it has entered into with respect to investments of
investors of the other Contracting Party.
ARTICLE 12
SETTLEMENT OF DISPUTES BETWEEN THE CONTRACTING PARTIES
1. Any dispute between the Contracting Parties concerning the
interpretation or application of this Agreement shall as far
as possible be settled through consultations.
2. If it were not possible to settle the dispute in this way
within six months from the start of the consultations, it
shall be submitted, at the request of both Contracting
Parties, to an arbitral tribunal.
3. The arbitral tribunal shall be constituted in the following
way: each Contracting Party shall appoint one arbitrator and
these two arbitrators shall then select a national of a third
State who, upon approval by the two Contracting Parties,
shall be appointed as Chairman of the tribunal. These two
arbitrators, each selected by a Contracting Party, shall be
appointed within sixty days from the receipt of the request
for arbitration and the Chairman shall be appointed within
sixty days from the date of appointment of these two
arbitrators.
4. If within the periods specified in paragraph 3 of this
Article the necessary appointments have not been made, either
Contracting Party may in the absence of any other agreement,
invite the International Court of Arbitration of the
International Chamber of Commerce to make the necessary
appointments.
5. The arbitral tribunal shall issue its decision on the basis
of the provisions contained in this Agreement as well as the
rules and principles of international law as may be
applicable.
6. Unless the Contracting Parties decide otherwise, the arbitral
tribunal shall determine its own procedure and the place of
arbitration.
7. The arbitral tribunal shall reach its decision by a majority
of votes and that decision shall be final and binding on both
Contracting Parties. Unless otherwise agreed, the decision of
the arbitral tribunal shall be rendered within six months of
the appointment of the Chairman in accordance with paragraph
3 or 4 of this Article.
8. Each Contracting Party shall bear the expenses of its own
arbitrator and those connected with representing it in the
arbitration proceedings. The other expenses, including those
of the Chairman, shall be borne equally by the two
Contracting Parties.
ARTICLE 13
SETTLEMENT OF DISPUTES BETWEEN A CONTRACTING PARTY AND INVESTORS
OF THE OTHER CONTRACTING PARTY
1. For the purpose of this Article, an investment dispute is a
dispute between one Contracting Party and an investor of the
other Contracting Party that has incurred loss or damage by
reason of, or arising out of, an alleged breach of this
Agreement with respect to an investment of such investor. The
investment dispute shall be notified in writing by such
investor to the Contracting Party in dispute.
2. Any such dispute shall, as far as possible, be settled
amicably through negotiation between the parties to the
dispute.
3. Any such dispute which has not been settled amicably may be
submitted to the domestic competent judicial or
administrative authorities of the Contracting Party which has
approved the investment for resolution in accordance with the
laws of that approving Contracting Party.
4. If the dispute cannot thus be settled within six months from
the date of the written notification mentioned in paragraph
1, it shall be submitted to an ad hoc arbitral tribunal for
settlement only if:
(a) both the investor and the Contracting Party in dispute have
consented in writing thereto;
(b) the investor has waived its right to initiate or continue
any other proceedings in relation to the dispute; and
(c) not more than three years have elapsed from the date on
which the investor first acquired, or should have first
acquired, knowledge of the alleged breach and knowledge that
the investor has incurred loss or damage.
5. For such ad hoc arbitral tribunal, the Arbitration Rules of
the United Nations Commission on International Trade Law,
1976 shall govern. The arbitral tribunal shall state the
basis of its decision and give reasons upon the request of
either party to the dispute.
6. The secretarial work of such ad hoc arbitral tribunal shall
be referred to the International Chamber of Commerce, if
possible.
7. The arbitration award shall be final and binding upon both
parties to the dispute. Each Contracting Party shall commit
itself to the enforcement of the award in accordance with its
relevant laws and regulations.
ARTICLE 14
CONSULTATIONS
Either Contracting Party may propose to the other Contracting
Party that consultations be held on any matter concerning
interpretation or application of the Agreement. The other
Contracting Party shall accord sympathetic consideration to the
proposal and shall afford adequate opportunity for such
consultations.
ARTICLE 15
APPLICATION AND GENERAL EXCEPTIONS
1. This Agreement shall apply to investments in the territory of
one Contracting Party made, in accordance with its national
laws and regulations, by investors of the other Contracting
Party whether prior to or after its entry into force.
2. Except as otherwise provided in this Agreement, all
investments will be governed by the laws in force in the
territory in which such investments are made.
3. If the provisions of law of either Contracting Party or
obligations under international law existing at present or
established hereafter between the Contracting Parties in
addition to this Agreement contain rules, whether general or
specific, entitling investments by investors of the other
Contracting Party to a treatment more favourable than is
provided for by this Agreement, such rules shall to the
extent that they are more favourable prevail over this
Agreement.
4. Nothing in this Agreement shall be construed to prevent a
Contracting Party from adopting, maintaining or enforcing any
measure that it considers necessary to protect its own
essential security interests.
5. Provided that such measures are not applied in an arbitrary
or unjustifiable manner, or do not constitute a disguised
restriction on international trade or investment, nothing in
this Agreement shall be construed to prevent a Contracting
Party from adopting or maintaining measures, including
environmental measures:
(a) necessary to ensure compliance with laws and regulations
that are not inconsistent with the provisions of this
Agreement;
(b) necessary to protect human, animal, or plant life or health;
or
(c) relating to the conservation of living or non-living
exhaustible natural resources.
ARTICLE 16
ENTRY INTO FORCE, DURATION AND TERMINATION
1. The Contracting Parties shall notify each other when their
respective domestic requirements for the entry into force of
this Agreement have been fulfilled. This Agreement shall
enter into force on the thirtieth day following the date of
receipt of the last notification.
2. This Agreement shall remain in force for an initial period of
ten years. After the expiration of the initial period of ten
years, it shall continue in force indefinitely unless either
Contracting Party notifies the other Contracting Party in
writing of its decision to terminate this Agreement at the
end of the initial nine-year period or at any time
thereafter. The notice of termination shall become effective
one year after the date of that notification.
3. In respect of investments made prior to the date of
termination of this Agreement, the provisions of Articles 1
to 15 shall remain in force for a further period of ten years
from the date of termination of this Agreement.
4. The provisions of this Agreement may be modified, through
amendment mutually agreed upon in writing, by the Contracting
Parties. The Amendment shall enter into force in accordance
with the procedure in paragraph 1 of this Article.
IN WITNESS WHEREOF the respective plenipotentiaries have signed
this Agreement.
DONE in duplicate at Taipei this 8th day of June, 2010 in the
Chinese and English languages, all texts being equally
authentic. However, in case of any divergence of interpretation,
the English text shall prevail.
FOR THE REPUBLIC FOR THE REPUBLIC
OF CHINA (TAIWAN) OF THE GAMBIA
Yen-Shiang Shih Yusupha Alieu Kah
Minister of Economic Minister of Economic
Affairs Plannirg and Indnstrial
Development