The Government of the People´s Republic of China and the Government of the Republic of Cuba, hereinafter “The Contracting Parties”
HAVE AGREED AS FOLLOWING:
ONE: In reference to Article 1, Paragraph 1, the expression “pursuant to the latter´s laws and regulations” shall mean that for any kind of invested asset to be considered as investment protected in this Agreement, it shall be in accordance with any of the foreign investment modalities defined by the legislation of the Contracting Party receiving the investment and registered as such in the correspondent registry.
TWO: Modify Article 1, Paragraph 1, item d), which will be worded as follows:
(d) copyright, industrial property, know how and technological processes related to investment.
THREE: Modify Article 1, Paragraph 2, which will be worded as follows:
2. The term “investor” means:
i) a) With respect to the People´s Republic of China, any natural person who has the nationality of the People´s Republic of China pursuant to its law.
b) With respect to the Republic of Cuba, any natural person who is a citizen of Cuba pursuant to its laws and who has permanent residence in the national territory.
ii) Any entity incorporated or organized pursuant to the applicable law of the Contracting Parties, which conducts substantial business activities in the territory of such Contracting Party and is owned or effectively controlled by investors of that Contracting Party.
FOUR: Modify Article 1, Paragraph 3, which will be worded as follows:
3. The term “returns” means the amount yielded by investments, such as: profits, interests, dividends, royalties or other legitimate income, including those derived from liquidation or transfer of equity, which shall enjoy the same treatment as investment.
FIVE: Modify Article 2 Paragraph 2, which will be worded as follows:
2. Each Contracting Party shall guarantee assistance and facilitate the obtainment of visas and working permits, pursuant to its domestic laws and regulations, to the nationals of the other Contracting Party in its territory in relation to activities linked to the investments.
SIX: Modify Article 3, Paragraph 2, which will be worked as follows:
2. The treatment and protection mentioned in Paragraph 1 of this Article shall not be less favourable than those granted to investments and related activities of a third State under similar conditions
SEVEN: Add to Article 6, Paragraph 1, an item h), with the following text:
h) indemnities and other payments under Articles 4 and 5 of this Agreement.
EIGHT: Modify Article 7, which will be worded as follows:
1. In the event that a Contracting Party or one of its agencies grants a non-commercial risks insurance guarantee for investments made by one of its investors in the territory of the other Contracting Party and has made payments based on the guarantee granted, such Contracting Party shall acknowledged as subrogated by right in the same credit position as the investor covered by the insurance guarantee. The subrogated right or claim shall not exceed the original right or claim of such investor.
2. The investor shall not be able to claim such rights from the other Contracting Party, except with the express authorization of the Contracting party or subrogated agency.
3. In the event that a disputes arises, the Contracting party or agency subrogated in the rights of the investor shall not be able to submit the case to international arbitration pursuant to the provisions related to the settlement of disputes between States.
NINE: Modify Article 8, which will be worded as follows:
ARTICLE 8
1. This Article shall apply to the settlement of disputes between the Contracting Parties concerning the interpretation or implementation of the provisions of this Agreement.
2. Any dispute related to the interpretation or implementation of this Agreement shall be notified in writing through diplomatic channels. The Contracting Parties should, as far as possible, solve such dispute by consultations through diplomatic channels.
3. If the dispute is not solved in the term of six- months after the notification date, unless the Contracting Parties agree something else in writing, at the request of one the Contracting Parties, the dispute can be taken to an arbitration court established pursuant to the following provisions of this Article. Such request shall be made in writing through diplomatic channels and shall contain:
a) a brief explanation supporting the claim;
b) a summary of the development and results of the consultations carried out pursuant to paragraph 1 above; and
c) the intention of the Contracting Party making the claim to begin the proceeding under this Article of the Agreement.
4. Once the arbitration request is submitted by the Contracting Party, making the claim, each Contracting Party shall appoint an arbitrator and these two shall elect a third member, who on the approval of the both Parties shall act as chairman of the arbitration tribunal.
5. If the Arbitration Tribunal is not set up within four months following the date of reception of the written Arbitration notification, any of the Contracting Parties, in the absence of any other agreement, shall invite the President of the International Court of Justice to appoint the arbitrator(s) that has (have) not yet been appointed. If the President is a citizen of one of the Contracting Parties, or is unable to discharge that duty, the next member of the International Court of Justice in order of seniority who is not a national of the Parties shall be invited to make the necessary appointment(s).
6. In any event, the President of the tribunal shall be a citizen of a third State that has diplomatic relations with the Contracting Parties, and the arbitrators shall:
a) be experts and experienced in international law and in international investment issues;
b) be independent, not be related to any of the Contracting Parties to give or receive instructions; and
c) be recognized for his professional ethics.
7. In the event that any of the appointed arbitrators pursuant to this Article resigns or is unable to act, a succeeding arbitrator shall be appointed pursuant to the same procedure prescribed for the appointment of the original arbitrator, and s/he shall have the same rights and obligations as the original arbitrator.
8. The Arbitration Tribunal shall determine its own procedures subject to any agreement by the Contracting Parties. The Tribunal shall issue its awards in conformity with the provisions of this Agreement and the principles of International Law acknowledged by both Contracting Parties.
9. The Arbitration Tribunal shall issue its award by a majority vote. The award shall be issued in writing and contain all the legitimate de facto and the jure considerations. A copy of the award shall be delivered to each Contracting Party in dispute. Such award shall be final and binding for both Contracting Parties. At the request of the Contracting Parties, the ad hoc Arbitration Tribunal shall explain the reasons of their award.
10. Each Contracting State shall bear the costs of its own arbitrator and of its representation in the arbitration proceedings. The Chairman´s and the Tribunal´s expenses shall be assumed equally by both Contracting Parties. However, the arbitration tribunal can, on its discretion, determine that a greater proportion of the expenses or all of them be assumed by one of the Contracting Parties.
TEN: Modify Article 9, which will be worded as follows:
ARTICLE 9
1. The present Article shall apply to the disputes that arise between one of the Contracting Parties and an investor of the other Contracting Party (Parties in dispute), arising from an alleged breach by that Contracting Party of an obligation established in Articles 2 to 7 hereof and that the investor has suffered loss or damage due to that breach or as a result of it.
2. 1. The Parties in dispute shall first try to settle the dispute by consultations and negotiations, for which the investor in dispute shall notify the Contracting Party in dispute in writing its intention to submit the claim to arbitration. The notification shall contain:
a) The name and domicile of the investor;
b) The provisions of Articles 2 to 7 hereof allegedly breached, as well as any other that is applicable;
c) The de facto and de jure grounds for the claim:
d) Approximate amount of the damage and the intended compensation.
2. The notification of the intention to submit the case to arbitration referred to in the foregoing paragraph of this Agreement shall be delivered:
a) In the case of the People’s Republic of China: to the Ministry of Commerce.
b) In the case of the Republic of Cuba: to the Ministry for Foreign Affairs.
3. 1. If the dispute cannot be settled amicably in a term of 180 days following the date of the notification referred to in section 9.2. above, the investor I dispute shall be able to submit the claim to arbitration pursuant to:
a) the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), in effect when this Agreement into force;
b) the Optional Rules of the Permanent Court of Arbitration (PCA) for Arbitrating Disputes between Two Parties of which only one is a State, of July 16, 1993, with its reforms
2. The arbitration shall be governed by the selected arbitration procedure except as modified by this Agreement.
4. 1. The investor in dispute shall only be able to submit a claim to arbitration if:
a. He/she has expressed his/her consent to the arbitration according to the established procedures herein;
b. He/she has exhausted every possibility to find a friendly solution to the dispute according to the terms expressed herein;
c. Administrative review procedures specified by laws and regulations of the contracting parties shall have been gone through;
and
d. He/she gives up his/her right to begin or to continue any procedure before any judicial court in conformity with the legislation of any of the Contracting Parties or other procedures of solution of disputes regarding the measure of the Contracting Party in dispute constituting and alleged breach of any of the provisions of Articles 2 to 7, except the procedures requesting the application of suspensive, declarative or special precautionary measures that do not involve the payment of damages in an administrative or judicial court, pursuant to the legislation of the Contracting Party in dispute.
2. The investor in dispute shall not be able to submit a claim to arbitration pursuant to this Agreement unless:
a) 180 days have elapsed since the events that provoked it;
b)Two years have not elapsed from the date in which such investor first learned or should have learned about the alleged breach of any of the provisions of Articles 2 to 7 and damage to the notification date referred to paragraph 9.2.
3. The consent and the renunciation required by this Article shall be expressed in writing, be delivered to the Contracting Party in dispute included in the arbitration claim.
4. In the arbitration claim the investor in dispute shall not be able to base his intention on other elements different from those contained in the notice submitted to the Contracting Party in dispute pursuant to the provisions of section 9.2.
5. 1. Each Contracting Party, expresses its unconditional consent to submitting a dispute to international arbitration pursuant to the procedures established in Article 9 of this Agreement.
2. The consent expressed in paragraph 1 above, along with the presentation of a claim to arbitration by an investor in dispute, shall meet the requirement of the written agreement between the Parties in dispute, as stipulated in:
a) Article 1 of the Arbitration Rules of the UNCITRAL;
b) Article III of the Optional Rules of the PCA for the Arbitration of Disputes between two Parties of which only one is a State.
6. 1. Unless the Parties in dispute agree something different, the arbitration tribunal shall be made up of three arbitrators. Each party to the dispute shall name an arbitrator. The third arbitrator, who shall be the president of the tribunal, shall be appointed by the disputing Parties.
2. The arbitrator referred to in paragraph 1 above shall be experienced in international law and investment issues.
3. If an arbitration tribunal has not been set up within a term of ninety days, counted as of the day the claim was a submitted to arbitration, be it because one of the parties in dispute or no agreement has been reached on the appointment of the tribunal president, the Secretary General of the PCA shall appoint on his own, the arbitrator(s) not yet appointed. However, when appointing the president of the arbitration tribunal, the General Secretary of the PCA shall make sure that s/he is not a national of any of the Contracting parties hereof.
7. 1. Any arbitration pursuant to Article 9 hereof, shall be conducted in the mutually agreed place by the disputing Parties. If such Parties can not reach an agreement, the tribunal shall determine the place according to the applicable arbitration rules.
2. Neither of the Contracting Party shall offer diplomatic protection nor file an international claim in relation to any controversy submitted to arbitration pursuant to Article 9 hereof, unless the other Contracting party does not obey or comply with the award passed in such controversy. Nevertheless, for the purpose of this paragraph, diplomatic protection shall not include informal diplomatic exchanges with the only aim of facilitating the solution of the dispute.
3. The Contracting Party in dispute can not use as defense a counterclaim, right of set-off or any other reason that the investor in dispute has received or will receive indemnity or any other compensation, with respect to all or part of the alleged losses or damages, pursuant to an insurance or guarantee contract.
4. Where the Contracting Party in dispute, based on its own interpretation, affirms in its defence that:
a) the investment object of the damages is not a protected investment pursuant to the provisions hereof; or
b) the investor in dispute does not fall within the definition of investor according to this Agreement; or
c) the measure considered a breach of any of the provisions of Articles 2 to 7, does not fall within the supposed breaches of the provisions of such Articles.
The tribunal, at the request of the Contracting Party in dispute, shall ask the other Contracting Party its interpretation on any of the aforementioned issues. The latter Contracting Party in dispute shall send its reply I writing to the tribunal, who shall pronounce itself within a term of 60 days following the presentation of the request by the Contracting Party in dispute.
5. An interpretation formulated by consensus by the Contracting Parties on a provision hereof shall be compulsory for any tribunal established pursuant to this Article.
6. An arbitration tribunal set up pursuant to this Article shall decide the problems and disputes according to the relevant provisions hereof, the legal regulations agreed on by the Parties in dispute, and in the event such agreement does not exist, the principles and rules of international Law shall be applied.
7. Regardless of the fact that an investor in dispute has submitted a dispute to biding arbitration pursuant to the provisions of this Article, h/she can, before the arbitration procedure begins or during it, try to obtain, from the court or administrative tribunal of the Contracting Party in dispute, the adoption of preventive measures, in accordance with the laws and regulations of this Party, for the preservation of his/her rights and interests, provided that s/he does not include a request of payment for any damage.
8. 1. Unless the Parties in dispute agree something else, an arbitration award that determines that one of the Contracting Parties has breached its obligations pursuant to this Agreement, shall only be able to grant separately or in combination:
a) pecuniary damages and the corresponding interests; or
b) the restitution in kind, except if the Contracting Party chooses to pay a pecuniary indemnity instead.
2. The arbitration award shall be final and compulsory only for the Parties in dispute and for the case in question. Such obligation shall be without prejudice to the right of both Parties to begin the corresponding annulment proceedings before the ordinary jurisdiction.
3. The arbitration award shall not be public unless the parties in dispute agree the contrary.
4. An arbitration tribunal shall not be able to order the payment of punitive damages.
5. Each Contracting Party shall adopt in its territory the necessary meassures to effectively enforce of the award, pursuant to its own laws and regulations.
6. Neither contracting party shall resort to any treaty or convention , to which the contracting parties are members, to apply for enforcement or annulment of the arbitration award according to the provisions of most-favored-nation treatment of this Agreement.
7. In the event of a final award passed pursuant to the PCA Arbitration Rules, a party in dispute shall not be able to demand the compliance with the final award until:
a) three months have elapsed since the date on which the award was passed and neither on the disputing parties has started a revision or annulment proceeding of the award, or
b) a court has rejected a request to revise or annul the award and no further appeal exists.
These modifications shall enter into force the first day of the month following the date on which both Contracting parties have notified each other in writing that their respective internal legal procedures have been concluded.
IN WITNESS WHEREOF the Representatives duly by their respective governments have signed this modification of Agreements.
Done in two originals, on __________________of __________________, in Spanish, Chinese and English languages, all texts being equally authentic. In case of any divergence in the interpretation, the English text shall prevail.
For the Government of For the Government of
the People’s Republic of China. the Republic of Cuba.
