Bestimmungen zum Investitionsschutz in Freundschafts-, Handels- und Schiffahrtsverträgen der...

Bestimmungen zum Investitionsschutz in Freundschafts-, Handels- und Schiffahrtsverträgender Vereinigten Staaten PROVISIONS OF UNITED STATES PROTECTION OF PRIVATE FOREIGNINVESTMENT THROUGH TREATIES OF FRIENDSHIP, COMMERCE AND NAVIGATIONSource: Archiv des Völkerrechts, 9. Bd., 3. H. (September 1961), pp. 302-317Published by: Mohr Siebeck GmbH & Co. KGStable URL: http://www.jstor.org/stable/40796629 .

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URKUNDEN

Bestimmungen zum Investitionsschutz in Freundschafts-, Handels- und Schiffahrtsverträgen

der Vereinigten Staaten*)

PROVISIONS OF UNITED STATES PROTECTION OF PRIVATE FOREIGN

INVESTMENT THROUGH TREATIES OF FRIENDSHIP, COMMERCE AND

NAVIGATION**)

Bemerkungen zu Tafel i

Notes to Chart i

1) Reciprocal treatment replaces most-favored-nation treatment in regard to

nationals, corporations and associations of states, territories or possessions of the U.S.A. which do not accord to nationals, corporations and associations of the Re-

public of China the right to hold real property on the same terms as nationals, corporations and associations of other states, territories or possessions of the U.S.A.

2) Most-favored-nation treatment does not apply to any advantage in respect to internal taxes, fees or charges granted to nationals, residents, corporations or associations of any third country, "... either (a) pursuant to legislation extending the same advantages to all countries, or to the nationals, residents, corporations or associations thereof, on the basis of reciprocity, or (b) in a treaty or other agree- ment concluded with such third country for the avoidance of double taxation or the mutual protection of revenue".

3) Rights of nationals, corporations and associations of the Italian Republic dependent upon the laws of state, territory or possession of the U.S.A. wherein

property is situated. Rights of nationals, corporations and associations of the U.S.A. to be no less favorable than those which the state, territory or possession of the U.S.A. in which national is domiciled or corporation or association organized

*) Anhang zu der Abhandlung Coititeli, United States Protection of Private Foreign Investment through Treaties of Friendship, Commerce and Navigation, abgedruckt oben S. 256 ff.- Der Anhang ist vom Verfasser zusammengestellt und daher keine offizielle Urkunde. - Sämtliche Bestimmungen beziehen sich auf Freundschafts-, Handels- und Schiffahrtsverträge. #

**) Annex to article Coititeli, United States Protection of Private Foreign # In-

vestment through Treaties of Friendship, Commerce and Navigation, reprinted supra p. 256 et seq. The charts were composed by the author; they are no official docu- ment. - All treaties referred to are Treaties of Friendship, Commerce and Navi- gation.



Systematik zu Investitionsschutzbe Stimmungen 303

accords to nationals, corporations and associations of the Italian Republic. However, the Italian Republic is not obligated to accord rights and privileges which are more extensive than those accorded to nationals, corporations and associations of the Italian Republic. (Standard of reciprocity not to operate beyond level of national treatment standard).

4) Each High Contracting Party reserved rights similar to those contained in 3) supra, with the addition of the right to ". . . accord to its own nationals and to residents of contiguous countries more favorable exemptions of a personal nature than are accorded to other nonresident persons".

5) Non-contingent standard. (Minimum standards of international law).

6) "... except as to taxes in connection with the acquisition of real property (including estates and interests therein)."

7) Subject to limitations: (a) nationals and companies of Greece subject to the law of the state, territory or possession of the U.S.A. wherein the property is located; (b) nationals and companies of the U.S.A. subject to restrictions which Greece may consider necessary in specific frontier and coastal areas.

8) Each Party reserves the right: (a) to extend advantages to nationals, residents and companies to third countries on the basis of reciprocity, if such advantages are similarly extended to nationals, residents and companies of the other Party. (It appears that this provision is unnecessary since the most-favored-nation treatment clause would automatically cause the advantages to be extended to the other Party); (b) to accord special advantages in agreements for the avoidance of double taxation or the mutual protection of revenue; (c) to accord more favorable exemptions of a personal nature with respect to income taxes and inheritance taxes to each Party's own nationals and residents of contiguous countries.

9) Provided, however, that reciprocal treatment replaces national treatment under circumstances contained in 1) supra.

10) Subject to the limitations contained in 8) supra.

11) Provided, however, that reciprocal treatment replaces national treatment under circumstances contained in 1) supra.

12) Each Party reserves the rights contained in 8) supra. (In this treaty the unnecessary clause, ". . . if such advantages are similarly extended to nationals, residents and companies of the other Party . . ." is omitted).



304 Urkunden

Tifel/Chlrtl SEARCH TREATIES ACCESS-TO-COURTS AND SEIZURE

China and United States Article V Article VII of America, signed at Nationai „eatment and National treatment and Nankins, on A. Nov. r 1 r 1

$ most-ravored-nation r 1 most-ravored-nation r 1

25 UNTO 69 treatment. treatment.

United States of America Article VI Article VI y, igne a National treatment and National treatment and

Kome, on 2 reo. 1948. P s r 1 • 79 ™ UNTS '*

most-ravored-nation P s most-ravored-nation r 1 • 79 ™ UNTS '* treatment. treatment.

United States of America Article VI Article VIII

n{v?™diJu?r*L J 9 NatÌOnal treatment and '• • • Sha11 nOt be SubJe<*

206 ??mrS?¿ UNTS i69 J 9 most-favored-nation to

• unlawful •

entry and 206 UNTS i69 treatment. molestation«)" entry

and national treatment and most-favored-nation treatment.

Greece and United States Article VI Article V of Amerca, signed at National treatment and ' . . shall not be subject

T^rr^ UNTS 3 S' l9$I most-favored-nation to unlawful entry and

224 UNTS 279 treatment. molestation" •).

Israel and United States Article V Article VI of America, signed at National treatment and «. . . shall not be subject Wash. D.C., on 23 Aug. most.favored-nation to unlawful entry and 1 * * T Txwp treatment. molestation" *) ' . 219

T UNTS Txwp 237

'

Netherlands and United Article V Article VI States ofAmerica, signed ^¿^ ttezment .. . . ^ not be gab- at

íeJ^a8U^ On to

. »olestation .

or to entry âsíSmaí 28j UNlS>23i

without just cause"4) entry ^ 28j UNlS>23i national treatment and

most-favored-nation treatment.



Systematik zu Investitionsschutzbestimmungen 30;

PATENTS, OWNERSHIP OF TRADEMARKS, REAL PROPERTY AND TRADE NAMES TAXES

Article VIII Article IX Article X Most-favored-nation National treatment and National treatment and treatment or reciprocal most-favored-nation most-favored-nation treatment1). treatment. treatment2).

Article VII Article VIII Article IX

Reciprocal treatment but National treatment and National treatment and in no case more than most-favored-nation most-favored-nation national treatment by treatment. treatment4). Italy»).

Article VII Article VI Article IX National treatment National treatment and National treatment and ". . . by testate or in- most-favored-nation most-favored-nation testate succession or treatment. treatment6), through judicial process." Otherwise, subject to laws of lex situs.

Article IX Article X Article XVI National treatment 7). National treatment and National treatment and

most-favored-nation most-favored-nation treatment. treatment8).

Article IX Article X Article XI Nationals and companies National treatment and National treatment and of Israel subject to lex most-favored-nation most-favored-nation situs in U.S.A. Natio- treatment. treatment10), nais and companies of U.S.A. to enjoy national treatment •).

Article IX Article X Article XI Nationals and companies National treatment. National treatment and of Netherlands subject to most-favored-nation lex situs in U.S.A. Natio- treatment 12). nais and companies of U.S.A. to enjoy national treatment 11).



3o6 Urkunden

Tafel/Chart 2 TREATIES PROPERTY PROTECTION

Article VI China and United States of 1. "... the most constant protection and security America, signed at Nan- for their persons and property, and shall enjoy in king, on 4 Nov. 1946. this respect the full protection and security required 25 U.N.T.S. 69 by international law . . ." T.I.A.S. 1 871 3. In regard to the above provision, "... upon

compliance with the laws and regulations, . . . en- forced by the duly constituted authorities . . .", each Party shall enjoy national treatment and most- favored-nation treatment.

Article V United States of America 1. ". . . the most constant protection and security and Italy, signed at Rome, for their persons and property, and shall enjoy in on 2 Feb. 1948. this respect the full protection and security required 79 U.N.T.S. 171 by international law . . ." T.I.A.S. 1965 3. In regard to the above provision, ". . . upon

compliance with the applicable laws and regulations, . . ." each Party shall enjoy national treatment and most-favored-nation treatment.

Article VIII United States of America 2. ". . . the most constant protection and security and Ireland, signed at within the territories of the other Party, in no case Dublin, on 21 Jan. 1950. less than that required by international law . . ." 206 U.N.T.S. 269 3. In regard to the above provision, each Party shall T.I.A.S. 2155 enjoy national treatment and most- favored-nation

treatment.



Systematik zu Investitionsschutzbestimmungen 307

EXPROPRIATION AND COMPENSATION REPATRIATION OF CAPITAL

Article VI Artide VI 2. "... shall not be taken ... 2. Provision for the repatriation of capital,

without due process of law and subject to the provisions of Article XIX, without the prompt payment of par. 3. just and effective compensation . . ." Article XIX

3. In regard to the above provi- 3. Eacn Party shall enjoy national treat- sion, a ... upon compliance with ment an¿ mOst-favored-nation treatment in the laws and regulations, ... en- regard to financial transactions. (It is sub- forced by the duly constituted m[tte¿ tnat tne first sentence of par. 3, Ar- authorities . . .," each Party shall ticie XIX, establishes national treatment and enjoy national treatment and most- most-favored-nation treatment in regard to favored-nation treatment. financial transactions and that the second

sentence is redundant.)

Article V Article V 2. "... shall not be taken ... 2. Provision for the repatriation of capi-

without due process of law and tal, subject to the provisions of Article XVII, without the prompt payment of par. 3. just and effective compensation . . ." Article XVII

3.In regard to the above provi- I# «Financial transactions" defined broadly sion, "... upon compliance with so as to include compensation paid under the applicable laws and regula- Article V. tions ..." each Party shall enjoy y In regarci t0 «financial transactions", national treatment and most-favo- eacn partv snall enjoy national treatment red-nation treatment. ancj most-favored-nation treatment.

Article VIII Article VIII 2. ". . . Such property shall not 2. Provision for the repatriation of capital,

be taken without the prompt pay- 3. Subject to the provisions of Article XVII, ment of just and effective compen- each Party shall enjoy national treatment sation . . . ." and most-favored-nation treatment.

3. In regard to the above pro- Ardde ̂ vision, each Party shall enjoy national treatment and most-favored- 5- "If either Party applies exchange restric- nation treatment. tions rt sha11 promptly make reasonable pro-

vision for the withdrawal of compensation referred to in Article VIII, par. 2, of the present treaty . . ."

Protocol 8. "Either Party, subject to any obligations

it may have as a member of the International Monetary Fund, may deal with a stringency of foreign exchange by adopting all such measures of exchange control as may be necessary from time to time in a manner which departs from the provisions of paragraph 2 and 4 of Article XVII. However, such measures shall depart no more than necessary from the provisions of said paragraph . . ."



3o8 Urkunden


Article VII Greece and United States i. ". . . the most constant protection and security of America, signed at within the territories of the other Party." Athens, on 3 Aug. 195 1. 2. In regard to the above provision, each Party 224 U.N.T.S. 279 shall enjoy national treatment and most-favored- T.I.A.S. 3057 treatment.

Article VI Israel and United States of 1. "... the most constant protection and security America, signed at Wash. within the territories of the other Party." D.C., on 23 Aug. 195 1. 219U.N.T.S.237 T.I.A.S. 2948





Article VII Artide VII

3. "... shall not be taken ... 3. Provision for the repatriation of capital, except for public benefit, nor shall subject to the provisions of Article XV. it be taken without the prompt payment of just compensation. Such Article XV compensation shall be in an effectively realizable form and shall i« Each Party shall enjoy national treat- represent the full equivalent of the ment and most-favored-nation treatment in property taken; and adequate pro- regard to financial transactions, vision shall have been made at or 2> Neither Party shall impose monetary prior to the time of taking for the restrictions except to the extent necessary to determination and payment there- maintain monetary reserves; «... It is under-

• • stood that the provisions of the present Ar- 4. In regard to the above pro- tide do not alter the obligations either Party

vision, each Party shall enjoy na- may have to the International Monetary tional treatment and most-favored- Fund . . ." nation treatment. ar£ . , ~ . , 3. ar£ If either . , ~

Party imposes .

exchange , re-

strictions in accordance with paragraph 2 above, it shall . . . make reasonable provision for the withdrawal, in foreign exchange in the currency of the other Party, of; (a) the compensation referred to in Article VII, paragraph 3, of the present Treaty; . . ."

Article VI Article XII

3. ". . . shall not be taken except 1. "Financial transactions" defined broadly for public purposes, nor shall it be so as to include compensation under Article taken without the payment of just VI. compensation. Such compensation „ r , n , . , shall be in an effectively realizable *• „

'': Ea.i r ,

*?*> n « ho.wever'

,

have under 'f56™5 the Arac "8hts . ,

form and shall represent the equi- fnd les ° °bj'8atl°ns '': «

of f7 the have International

under the Mone- Arac

valent of the property represent

taken; equi- ¡nd les ° LASfeement of the International Mone-

adequate provision property

shall have been <arJ ?und' "***. as **?.** °*eryise Provl" made at

provision or prior to the time of t'Lìe/"3

* ' PreSem taking for the determination and prompt payment thereof." 3. Nationals and companies shall enjoy

5. In regard to the above pro- national treatment and most- favored-nation vision, each Party shall enjoy na- treatment in regard to financial transactions, tional treatment and most-favored- 4. Provision for the repatriation of nation treatment. «# # # any portion of tne compensation re-

ferred to in paragraph 3 of Article VI . . ."

5. „Each Party shall retain the right in periods of exchange stringency to apply . . . exchange restrictions ... In the event that either Party applies exchange restrictions, it shall make reasonable and specific provision for the withdrawals referred to in paragraph 4 (a) above . . ."



310 Urkunden

Tafel/Chart4 TREATIES PROPERTY PROTECTION

Article VIII United States of America i. "Each High Contracting Party shall at all and Ethiopia, signed at times accord fair and equitable treatment to natio- Addis Ababa, on 7 Sept. nais and companies of the other High Contracting 195 1. (Treaty of Amity and Party, and to their property and enterprises . . ." Economic Relations.) 2. "the most constant protection and security 206 U.N.T.S. 41 within the territories of the other High Contracting T.I.A.S. 2864 Party . . ."

Article VI United States of America 1. "the most constant protection and security and Japan, signed at Tokyo, within the territories of the other Party." on 2 April 1953. 206 U.N.T.S. 143 T.I.A.S. 2863

United States of America Article I and the Federal Republic of I# «Each Party shall at all times accord fair and Germany, signed at Wash. equitable treatment to the nationals and companies D.C., on 29 Oct. 1954. of the other Party, and to their property, enterprises 272 U.N.T.S. 3 and other interests." T.I.A.S.3593 Articlev

1. "... the most constant protection and security within the territories of the other Party."

5. In regard to the above provision, each Party shall enjoy national treatment and most-favored- nation treatment.





Article VIII Article XI 2. "...Such property shall not 1. "Neither High Contracting Party shall

be taken except for a public pur- apply restrictions . . . except (a) to the extent pose, nor shall it be taken without necessary to assure the availability of foreign the prompt payment of just and exchange for payments for goods and services effective compensation." essential to the health and welfare of its

people, or (b) in the case of a member of the International Monetary Fund, restrictions specifically approved by the Fund."

2. „If either High Contracting Party applies exchange restrictions, it shall promptly make reasonable provision for the withdrawal, in foreign exchange in the currency of the other High Contracting Party, of: (a) the compensation referred to in Article VIII, paragraph 2, of the present Treaty . . ."

3. Exchange restrictions shall be admini- stered "... in a manner not to influence dis- advantageously the competitive position of the commerce or investment of capital of the other High Contracting Party in comparison with the commerce or the investment of capital of any third country . . ."

Article VI Article XII

3. (Provisions essentially the (This article is essentially the same as same as those in Article VII, par. 3 Article XII of the treaty with the Nether- of treaty with Greece.) lands.)

4. (Provisions essentially the same as those in Article VII, par. 4 of treaty with Greece.)

Article V Article XII

4. (Provisions essentially the 1. Each Party shall enjoy national treat- same as those in Article VI, par. 3 ment and most-favored-nation treatment in of treaty with Israel.) regard to "... the assumption of undertakings

5. (Provisions essentially the for, and the making of, payments, remittan- same as those in Article VI, par. 5 ces, and transfers of money and financial of treaty with Israel.) instruments."

2. "It is agreed that no provision of the present Treaty shall be applied in such a manner as to alter arrangements applicable to either Party by virtue of its membership in the International Monetary Fund."

3. "Neither Party may . . . impose exchange restrictions which are unnecessarily detrimental to or arbitrarily discriminate against the claims, investment, transportation, trade or other interests of nationals and companies of such other Party or their competitive position . . ."

4. Each Party shall afford "... reasonable facilities for the withdrawal of funds . . . with respect to the compensation referred to in Article V, paragraph 4."



312 Urkunden


Article IV United States of America 1. "Each High Contracting Party shall at all and Iran, signed at Teheran, times accord fair and equitable treatment to natio- on 15 Aug. 1955. nais and companies of the other High Contracting Treaty of Amity, Economic Party, and to their property and enterprises . . ." Relations, and Consular 2. "... the most constant protection and security Rights. within the territories of the other High Contracting 284 U.N.T.S. 93 Party, in no case less than that required by inter- T.I.A.S. 3853 national law . . ."

Article I Nicaragua and the United "Each Party shall at all times accord equitable States of America, signed at treatment to the persons, property, enterprises and Managua, on 21 Jan. 1956. other interests of nationals and companies of the T.I.A.S. 4024 other Party."

Article VI 1. "... the most constant protection and security

within the territories of the other Party."




EXPROPRIATION AND

COMPENSATION REPATRIATION OF CAPITAL

Article IV Article VI 2. "...Such property shall not be (This article is essentially the same as

taken except for a public purpose, nor Article XI of the treaty with Ethiopia.) shall it be taken without the prompt payment of just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of taking for the determination and payment thereof."

Article VI Article XII 4. "Property of nationals and com- (This article is essentially the same as

panies of either Party shall not be ex- Article XII of the treaty with the propriated within the territories of the Netherlands.) other Party except for public purposes and reasons of social utility as defined by law, nor shall it be expropriated without prompt and just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of the expropriation for determining and effec- ting such compensation."

5. In regard to the above provision, each Party shall enjoy national treatment and most- favored-nation treatment.

21 ArchVR 9/3



314 Urkunden

Tafel/Chart 6

TREATIES PROPERTY PROTECTION Article I

Netherlands and United "Each Party shall at all times accord fair and States of America, signed at equitable treatment to the nationals and companies The Hague, on 27 March of the other Party, and to their property, enterprises 1956. and other interests." 285 U.N.T.S. 231 l- "• • «the most constant protection and security T.I.A.S. 3942 within the territories of the other Party."

5. In regard to the above provision, each Party shall enjoy national treatment and most-favored- nation treatment.

Article I United States of America "Each Party shall at all times accord equitable and the Republic of Korea, treatment to the persons, property, enterprises and signed at Seoul, on 28 Nov. other interests of nationals and companies of the 1956. other Party."

Article VI 302 U.N.T.S. 281 1. *. . . the most constant protection and security T.I.A.S. 3947 within the territory of the other Party."




EXPROPRIATION AND

COMPENSATION REPATRIATION OF CAPITAL

Article VI . Artide XII

4. (Provisions essentially the same as 1. Nationals and companies of either those in Article VI, par. 3 of treaty Party shall enjoy national treatment with Israel.) and most-favored-nation treatment in

5. (Provisions essentially the same as regard to "... payments, remittances those in Article VI, par. 5 of treaty with and transfers of funds or financial in- Israel.) struments . . ." (There is no specific re-

ference to compensation under Article VI, paragraph 4.)

2. Neither Party shall impose exchange restrictions except where necessary to maintain monetary reserves. ". . .It is understood that the provisions of the present Article do not alter the obligations either Party may have to the International Monetary Fund . . ."

3. "If either Party imposes exchange restrictions in accordance with paragraph 2 of the present Article, it shall, after making whatever provision may be necessary to assure the availability of foreign exchange for goods and services essential to the health and welfare of its people, make reasonable provision for the withdrawal, in foreign exchange in the currency of the other Party, of: (a) the compensation referred to in Ar- ticle VI, paragraph 4 ..."

4. "Exchange restrictions shall not be imposed by either Party in a manner unnecessarily detrimental or arbitrarily discriminatory to the claims, investments, transport, trade, and other interests of nationals and companies of the other Party, nor the competitive position thereof . . ."

Article VI Article XII 4. "... shall not be taken . . . except (This article is essentially the same as

for a public purpose, nor shall it be Article XII of the treaty with the Ne- taken without the prompt payment of therlands.) just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of taking for the determination and payment thereof."

5. In regard to the above provision, each Party shall enjoy national treatment and most- favored-nation treatment.

21*



3 1 6 Urkunden

Tafel/Chart 7

TREATIES PROPERTY PROTECTION Article I

Pakistan and the United "Each Party shall at all times accord equitable States of America, signed at treatment to the persons, property, enterprises and Wash.D.C.,oni2Nov.i959. other interests of nationals and companies of the

other Party." Article VI

T.I.A.S. 4683 1. "... the most constant protection and security within the territory of the other Party."

Article I United States of America "Each High Contracting Party shall accord equi- and France, signed at Paris, table treatment to nationals and companies of the on 25 Nov. 1959. (Conven- other High Contracting Party, both as to their per- tion of Establishment.) sons and as to their property, enterprises and other T l.l.A.5. T A ç , interests, and shall assure them within its territories T l.l.A.5. T A ç 4625

, fuU legal and .udicial protection

»





Article VI Artide XII

4. "... shall not be taken . . . except (This article is essentially the same as for a public purpose, nor shall it be Article XII of the treaty with the Ne- taken without the prompt payment of therlands.) just compensation. Such compensation shall be in an effectively realizable form and shall represent the full equivalent of the property taken; and adequate provision shall have been made at or prior to the time of taking for the determination and payment thereof."

5. In regard to the above provision, each Party shall enjoy national treatment and most-favored-nation treatment.

Article IV Article X

3. "...shall not be expropriated with- 1. (Provisions essentially the same as in the territories of the other High those in Article XII, par. 1 of the treaty Contracting Party except for a public with the Netherlands.) purpose and with payment of a just 2. (Provisions essentially the same as

compensation. Such compensation shall those in Article XII, par. 2 of the treaty represent the equivalent of the property with the Netherlands.) taken; it shall be accorded in an effec- 3. "... each High Contracting Party tively realizable form and without need- will make every effort to accord, in the less delay. Adequate provision for the greatest possible measure, to nationals determination and payment of the said and companies of the other High Con- compensation must have been made no tracting Party the opportunity to make later than the time of the taking. investments and to repatriate the pro-

4. In regard to the above provision, ceeds of the liquidation thereof. This each Party shall enjoy national treat- principle shall apply also to the com- ment, pensation referred to in Article IV,

p lrotoco1 1 par. 3, of the present Convention. Each p lrotoco1 1 High Contracting Party shall make

5. "In Article IV, paragraph 3, the reasonable provision for the withdrawal term 'expropriated ... for a public pur- of earnings from investments, whether pose* ̂extends

inter alia to nationaliza- in the form of salaries, dividends, inter- tl0ns- ests, commissions, or royalties, payments

for technical services, or payments for other current transactions relative to investments . . ."

4. (Provisions essentially the same as those in Article XII, par. 4 of the treaty with the Netherlands.)



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