AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA AND THE GOVERNMENT OF THE REPUBLIC OF UKRAINE FOR THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS


The original official languages of this BIT were: Chinese, Ukrainian, and English.  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 People’s Republic of China and the Government of the Republic of Ukraine (hereinafter referred to as the “Contracting Parties”), willing to encourage and protect investments and create favorable conditions for of investors of one State in the territory of the other State，
Desiring to develop the economic cooperation of both States on the basis of principle of mutual respect for sovereignty and principle of equality and mutual benefits;

Have agreed as follows:

Article 1
For the purpose of this Agreement,

  1. The term “investment” means every kind of asset invested by investors of one Contracting Party in accordance with the laws and regulations of the other Contracting Party in the territory of the latter, including , in particular:
    1. movable and immovable property and other property rights;
    2. shares in companies or other kinds of participation in such companies;
    3. a claim to money or to any performance having an economic value;
    4. copyrights, industrial rights, including patents, models, industrial designs and models, trade marks, service marks, trade names, production locations, know-how and goodwill;
    5. rights to engage business activities conferred by law or contract, particularly, right to search for or exploit natural resources.
  2. The term "investor" means, with regard to either Contracting Party,:
    1. any natural or legal person who invests in the territory of the other Contracting Party.
    2. any enterprise or company constituted in either Contracting Party in accordance with its laws and regulations.

    Provided that such natural person, enterprise or company shall have the right to invest in one Contracting Party in accordance with laws and regulations of the other Contracting Party.

  3. The term “returns” means amounts yielded by an investment, include but without limitation to profits, dividends or royalties.
  4. The term “territory” means with respect to either Contracting Party, means:
    1.  the territory of the People’s Republic of China and the territory of the Republic of Ukraine.
    2. sea areas adjacent to its costal line over which either Contracting Party exercises its sovereignty and jurisdiction rights in accordance with international law.

    Article 2

    1. Each Contracting Party shall encourage investors of the other Contracting Party to make investments in its territory and admit such investments in accordance with its laws and regulations
    2. Subject to its laws and regulations, one Contracting Party shall provide assistance in and facilities for obtaining visas and working permit to nationals of the other Contracting Party engaging in activities associated with investments made in the territory of that Contracting Party.

    Article 3

    1. Either Contracting Party shall ensure the fair treatment and protection for the investment or activities associated with such investment made by investors of the other Contracting Party in its territory.
    2. The treatment referred to in Paragraph 1 of this Article shall not be less favorable than that accorded to investments and activities associated with such investments of investors of any third State.
    3. The treatment and privilege as mentioned in Paragraph 1 and 2 of this Article shall not include any preferential treatment or privilege accorded by the other Contracting Party to investments of investors of any third State by virtue of:
      1. participating free trade area, customs unions or economic unions, or mutual economic assistance organization, or similar treatment and privilege accorded to participators of organizations above in accordance with effective international agreement before this Agreement is signed.;
      2. international agreements on taxation or other taxation agreements;
      3. agreements on frontier trade;

     
    Article 4

    1. Neither Contracting Party shall expropriate, nationalize or take other similar measures (hereinafter referred to as “expropriation”) against the investments of the investors of the other Contracting Party in its territory, unless for the public interests; under domestic legal procedure; without discrimination; against compensation.
    2. The compensation mentioned in Paragraph 1 of this Article shall be equivalent to the value of the expropriated investments at the date of the expropriation is taken. The compensation shall also be made without delay, be convertible and freely transferable from the territory of one Contracting Party to the territory of the other Contracting Party.
    3. Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war, a state of national emergency, revolt or other similar events in the territory of the latter Contracting Party, shall be accorded by the latter Contracting Party indemnification or other relating measures no less favorable than that accorded to the investors of any third State.

    Article 5
    Each Contracting Party shall, subject to its own laws and regulations, guarantee to the investors of the other Contracting Party upon fulfillment by them of all tax obligations to transfer abroad of payments related to their investments made in its territory, including:

    1. returns stipulated in Paragraph 3, Article 1 of this Agreement;
    2. proceeds obtained from the total or partial liquidation of investments;
    3. payments of technical assistance or  technical service fee, management fee;
    4. payments made pursuant to a loan agreement in connection with investments;
    5. earnings or salaries of nationals of one Contracting Party pursuant to laws and regulations, who work or provide service in connection with an investment in the territory of the other Contracting Party.

    Article 6
    The payment transfers, mentioned in Article 4 and Article 5 of this Agreement, shall be made in accordance with foreign exchange administration laws and regulations, at the prevailing market rate of exchange of one Contracting Party accepting the investments on the date of transfer.

    Article 7

    If one Contracting Party or its designated agency makes a payment to its investors under a guarantee it has accorded to its investors, then this Contracting Party or its designated agency shall have the relevant rights of investors stipulated in this Agreement basing on the form of subrogation.

    Article 8

    This Agreement shall apply to investment made prior to or after its entry into force by investors of one Contracting Party in the territory of the other Contracting Party in accordance with the laws and regulations of the Contracting Party concerned.

    Article 9

    1. Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall, as far as possible, be settled through diplomatic channel.
    2. If a dispute cannot thus be settled within six months, it shall, upon the request of either Contracting Party, be submitted to an ad hoc arbitral tribunal.
    3. Such tribunal comprises of three arbitrators, and shall be formed as the following way: within two months of the receipt of the written notice requesting arbitration, each Contracting Party shall appoint one arbitrator. Those two arbitrators shall, within further two months, together select a national of a third State having diplomatic relations with both Contracting Parties as Chairman of the arbitral tribunal.
    4. If the arbitral tribunal has not been constituted within four months from the receipt of the written notice requesting arbitration, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make any necessary appointments. If the President is a national of either Contracting Party or is otherwise prevented from discharging the said functions, the Member of the International Court of Justice next in seniority who is not a national of either Contracting Party shall be invited to make such necessary appointments.
    5. The arbitral tribunal shall determine its own procedure. The arbitral tribunal shall reach its award in accordance with the provisions of this Agreement and the generally recognized principles of international law.
    6. The arbitral tribunal shall reach its award by a majority of votes. Such award shall be final and binding upon both Contracting Parties. The arbitral tribunal shall, upon the request of either Contracting Party, explain the reasons of its award.
    7. Each Contracting Party shall bear the costs of its appointed arbitrator and of its representation in arbitral proceedings. The relevant costs of the Chairman and tribunal shall be borne in equal parts by the Contracting Parties.

    Article 10

    1. Any dispute between an investor of one Contracting Party and the other Contracting Party in connection with the amount of compensation against expropriation may be submitted to an arbitral tribunal for arbitration.
    2. Such an arbitral tribunal shall be constituted for each individual case in the following way: each party to the dispute shall appoint an arbitrator, and these two shall select a national of any other State which has diplomatic relations with the two Contracting Parties as Chairman. The first two arbitrators shall be appointed within two months of the written notice for arbitration by either party to the dispute to the other, and the Chairman shall be selected within four months. If within the period specified above the tribunal has not been constituted either party to the dispute may invite the President of the International Court of Arbitration of the International Chamber of Commerce in Stockholm to make the necessary appointments.
    3. The tribunal shall determine its own procedure. However, the tribunal may, in the course of determination of procedure, take as guidance the Arbitration Rules of International Court of Arbitration of the International Chamber of Commerce in Stockholm.
    4. The tribunal shall reach its decision by a majority of votes. Such decision shall be final and binding on both parties to the dispute. Both Contracting Parties shall commit themselves to the enforcement of the decision in accordance with their respective domestic law.
    5. The tribunal shall adjudicate in accordance with the provisions of this Agreement, the laws of the Contracting Party to the dispute accepting the investment ( including its rules on the conflict of laws), as well as the generally recognized principles of international law.
    6. Each party to the dispute shall bear the cost of its appointed member of the tribunal and of its representation in the proceedings. The relevant costs of the Chairman and other fees shall be borne in equal parts by the Contracting parties.

    Article 11
    If the laws and regulations of either Contracting Party or international obligations existing at present or established hereafter between the Contracting Parties result in a position entitling investments by investors of the other Contracting Party to a treatment more favorable than this Agreement, the favorable treatment shall be applicable.

    Article 12

    1. The representatives of the Contracting Parties shall hold meetings from for the purpose of:
      1. reviewing the implementation of this Agreement;
      2. exchanging legal information and investment opportunities;
      3. resolving disputes arising out of investments;
      4. studying other issues in connection with investment;
      5. studying on possible amendments or supplements to this Agreement.
    2. Where either Contracting Party requests consultation on any matter of Paragraph 1 of this Article, the other Contracting Party shall give prompt response and the consultation be held alternatively in Beijing and Kiev.

    Article 13

    1. This Agreement shall enter into force on the 30th day after the date on which both Contracting Parties have notified each other in writing that their respective internal legal procedures necessary have been fulfilled and shall remain in force for a period of five years.
    2. This Agreement shall continue in force if either Contracting Party fails to give a written notice to the other Contracting Party to terminate this Agreement at least one year before the expiration of the period specified in Paragraph 1 of this Article.
    3. After the expiration of initial five years period, either Contracting Party may at any time thereafter terminate this Agreement by giving a written notice to the other Contraction Party. The notice shall come into effect after 12 months the other Contracting Party’s receipt of the notice. 
    4. With respect to investments made prior to the date of termination of this Agreement, the provisions of Article 1 to 12 shall continue to be effective for a further period of 15 years from such date of termination.

    IN WITNESS WHEREOF, the duly authorized representatives of their respective Governments, have signed this Agreement.

    Done in duplicate at Beijing on October 31st, 1992 in the Chinese, Ukraine languages, both texts being equally authentic.

    For the Government of
    the People’s Republic of China

                      
    For the Government of
    the Republic of Ukraine