MODIFICATION OF THE AGREEMENT ON THE PROMOTION AND MUTUAL PROTECTION OF INVESTMENTS BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA AND THE REPUBLIC OF CUBA



The original official languages of this BIT were: Chinese and Spanish.  The Tsinghua Rule of Law Project has produced this unofficial English language version from the original Chinese text.  While the English language version is for the benefit of the website readers, users should rely on official language versions when advising clients or undertaking some legal process.  

The Government of the Republic of Cuba and the Government of the People’s Republic of China, hereinafter “ the Contracting Parties”.

HAVE AGREED THE 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 an investment protected by 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 corresponding 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 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.
b) 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 laws.
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 Paragraph2, which will be worded as follows:

2. Each Contracting Party shall guarantee assistance and facilities the obtainment of visa and working permits 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 worded as follows:

2. The treatment and protection mentioned in Paragraph 1 of this Article shall not be less favorable than those granted to investments and related activities of a third State under similar conditions.

 

SEVEN:

Add to Article 3, Paragraph 1, and item h), with the following text:
h) Indemnities and other payments under Article 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 be 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 dispute 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:

  1. This Article shall apply to the settlement of disputes between the Contracting Party concerning the interpretation or implementation of this Agreement. the alleged breach by one of the Contracting Parties of one of the obligations provided for Articles 2 to 7, shall be settled exclusively pursuant to Article 9.
  2. Any dispute related to the interpretation or implementation of this Agreement shall be notified I 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 sic months after the notification date, unless the Contracting Parties agree something else in writing, at the request of one of 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 still contain:
  4. a brief explanation supporting the claim;
  5. a summary of the development and results of the consultations carried out pursuant to paragraph 1 above; and
  6. the intention of the Contracting Party making the claim to begin the proceeding under this Article of this Agreement.
  7. 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 o the approval of both Parties shall act as chairman of the arbitration tribunal.
  8. 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 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 Parties shall be invited who is not a national of the Parties shall be invited to make necessary appointment(s).
  9. 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:
  10. Be experts and experienced in International Law and in international investment issues;
  11. Be independent, not be related to any of the Contracting Parties to give or receive instructions; and
  12. Be recognized for his professional ethics.
  13. 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 give the same rights and obligations as the original arbitrator.
  14. 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 provisions of this Agreement and the Principles of International Law acknowledged by both Contracting Parties. 
  15. 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 de jure consideration. A copy of the award shall be final and binding for both Contracting Parties. All the request of the Contracting Parties, the ad hoc Arbitration Tribunal shall explain the reasons of their awards.
  16. Each Contracting Party shall bear the cost of its own arbitrator and of its representation in the arbitration proceedings. The Chairman’s and the Tribunal’s expenses shall be assumed squally by both Contracting parties. However, the arbitration tribunal can, on its discretion, determine that a greater proportion of the expenses or all of them can be assumed by one of the Contracting Parties.

TEN:

Modify Article 9, which will be worded as follows:

“ARTICLE 9
SETTLEMENT OF DISPUTES BETWEEN THE INVESTOR AND THE STATE"

9.1 SCOPE
The present Article shall apply to the disputes that arise between one of the Contracting Parties and an investor between one 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.

9.2 Consultations and Negotiations
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 his intention to submit the claim to arbitration. The notice shall contain:

  1. The name and domicile of the investor;
  2. The provisions of Article 2 to 7 hereof allegedly breached, as well as any other that is applicable;
  3. The de facto and de jure grounds for the claim;
  4. Approximate amount of the damage and the intended compensation. 

2) the notification of the intention submit the case to the arbitration referred to in the forgoing paragraph of this Agreement shall be delivered：
a) In the case of the Republic of Cuba: to the Ministry for Foreign Affairs.
b) In the case of the People’s Republic of China: to the Ministry of Commerce.

9.3 Arbitration
1. If the dispute cannot be solved amicably in the term of 180 days following the date of the notification referred to in section 9.2 above, the investor in dispute shall be able to submit the claim to arbitration pursuant to:
a) The Arbitration Rules of the United Nations Commission on the International Trade Law (UNCITL), in effect when this Agreement entered into force.
b) The Optional Rules of the Permanent Arbitration Court (PAC) for Arbitrating Dispute between Two Parties of which only one is a State, of July 16, 1993, with its reforms.
The arbitration shall be governed by the selected arbitration procedure except as modified by this Agreement.

9.4 Arbitration Conditions and Limitations
1. The investor in dispute shall only be able to submit a claim to arbitration if:
a) He/she 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; and
c) He/she gives up his/her right to begin or to continue any procedure before any judicial or administrative court in conformity with the legislation of any of the Contracting Parties or other procedures of solution of disputes regarding the measures of the Contracting Party in disputes constituting an alleged breach of any of the provisions of Article 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 Article, 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 or Article 2 to 7 and damage to the notification date referred to in section 9.2.
3. The consent and renunciation required by this Article shall be expressed in writing, be delivered to the Contracting Party in dispute included in the presentation of the arbitration claim.
4. In the presentation of 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 section9.2.

9.5 Consent of the Contracting Parties
1. Each Contracting Party, expresses its unconditional consent to submitting a dispute to international arbitration pursuant to the procedures established in Article 8 of this Agreement.
2. the consent expressed in paragraph 1 above, along with the presentation of a claim to arbitration by a 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 UNCITL;
b) Article III of the Optional Rules of the PAC for the Arbitration of Disputes between two Parties of which only one is a State;
c) Article II of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, agreed in New York on June 10,1958 (“the New York Convention” ).

9.6 Makeup of the Arbitration Tribunal
1. Unless the litigating Parties agree something different, the arbitration tribunal shall be make uo 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 litigating Parties.
2. The arbitration 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, courted as of the day the claim was submitted to arbitration, be it because one of the litigating parties or no agreement has been reached on the appointment of the tribunal president., the Secretary General of the PAC shall appoint on his own the arbitrator(s) not yet appointed. However, when appointing the president of the arbitration tribunal, the Secretary General of the PAC shall make sure that s/he is not a national of any of the Contracting Parties hereof.

9.7 Conducting the Arbitration

  1. Any arbitration pursuant to Article 9 hereof, shall be conducted in the mutually agreed place by the litigating Parties. If such Parties cannot reach an agreement, the tribunal shall determine the place according to the applicable arbitration rules. In any event, it shall be held in a State signatory of the New York Convention. The claims submitted to arbitration herein shall be considered as arising from a trade or transaction pursuant to Article 1 of the New York Convention.
  2. Neither of the Contracting Parties shall offer diplomatic protection nor file an international claim in relation to any controversy submitted to arbitration pursuant to Article 8 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 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.  When the Contracting Party in dispute, basedbased on its own interpretation, affirms in its defense that:
  5. The investment object of the alleged damages is not a protected investment pursuant to the provisions hereof; or
  6. The investor in dispute does not fail within the definition of investor, according to this Agreement; or
  7. The measure considered a breach of any of the provisions of the 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 non Contracting Party in dispute shall send its reply in writing to the tribunal and the latter shall pronounce itself within a term of 60 days following the presentation of the request by the Contacting Party in dispute.

  1. An interpretation formulated by consensus by the Contracting Parties on a provision hereof shall be compulsory for any tribunal established pursuant to this Article.
  2. 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 litigating Parties, and in the event such agreement does not exist, the principles and rules of International Law shall be applied.
  3. Regards of the fact that a investor in dispute has submitted a dispute to binding arbitration pursuant to the provisions of this Article, h/she can, before the arbitration procedure begins or during it, try to obtain , from the judicial or administrative court 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. 

9.8 Awards and Execution
1. Unless the litigating parties 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 litigating parties 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, or to oppose its execution on the grounds of refusal established in the New York Convention.
3. The arbitration ward shall not be public unless the litigating parties agree the contrary.
4. An arbitration tribunal shall not be able to order the payment of punitive damages.
5. Each of the Contracting Parties shall adopt in its territory the necessary measures to effectively execute the award, pursuant to what is established in this section, and shall facilitate that award issued in a corresponding to which it is a party is executed.
6. The investor in dispute shall be able to resort to the execution of an arbitration award, pursuant to the New York Convention, if both Contracting Parties are parties to that instrument.
7. In the event of a final award passed pursuant to the PAC arbitration Rules, a litigating party 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 of the litigating parties has started a revision or annulment proceeding of the award, or
b) A court has rejected a request to revise or annual 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 Representative duly authorized by their respective governments have signed this modification of Agreement.

Done in two originals, on April 20 of 2007, in Spanish, Chinese and English, all texts being equally authentic. In case of any divergence in the interpretation the English text shall prevail.

ON BEHALF OF THE GOVERNMENT OF THE REPUBLIC OF CUBA

ON BEHALF OF THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA