The Government of the Kingdom of the Netherlands and the Government of Jamaica, hereinafter referred to as the Contracting Parties,
Desiring to strengthen the traditional ties of friendship between their countries, to extend and intensify the economic relations between them particularly with respect to investments by the nationals of one Contracting Party in the territory of the other Contracting Party,
Recognizing that agreement upon the treatment to be accorded to such investments will stimulate the flow of capital and technology and the economic development of the Contracting Parties,
Have agreed as follows:
For the purposes of the present Agreement:
a) the term "investments" shall comprise every kind of asset and more particularly, though not exclusively;
(i) movable and immovable property as well as any other rights in rem in respect of every kind of asset;
(ii) rights derived from shares, bonds and other kinds of interests in companies and joint ventures;
(iii) title to money or other assets or to any performance under contract or law having an economic value;
(iv) rights in the field of intellectual property, technical processes, goodwill and know-how;
(v) rights to conduct commercial activities including rights to prospect, explore, extract and win natural resources granted under contract or under the legislation of the Contracting Party in the territory of which such activities are undertaken.
b) the term "nationals" shall comprise with regard to either Contracting Party:
(i) natural persons having the nationality of that Contracting Party in accordance with its law;
(ii) corporations, firms or associations incorporated or constituted under the law of that Contracting Party;
(iii) corporations, firms or associations wherever located, controlled directly or indirectly by nationals as defined in (i) and (ii) above.
c) the term "territory" includes the territorial sea as well as the maritime areas beyond the territorial sea to the extent to which a Contracting Party exercises sovereign rights and jurisdiction in those areas in accordance with international law.
1 Each Contracting Party shall, within the framework of its law and regulations, encourage investments in its territory by nationals of the other Contracting Party through the protection of such investments. Subject to its right to exercise powers conferred by its laws or regulations, each Contracting Party shall admit such investments.
1 Each Contracting Party shall ensure fair and equitable treatment of the investments of nationals of the other Contracting Party and shall not impair, by unreasonable or discriminatory measures, the operation, management, maintenance, use, enjoyment or disposal thereof by those nationals.
2 More particularly, each Contracting Party shall accord to such investments full security and protection which in any case shall not be less than that accorded either to investments of its own nationals or to investments of nationals of any third State, whichever is more favourable to the national concerned.
3 If a Contracting Party has accorded special advantages to nationals of any third State by virtue of agreements establishing customs unions, economic unions or similar institutions, or on the basis of interim agreements leading to such unions or institutions, that Contracting Party shall not be obliged to accord such advantages to nationals of the other Contracting Party.
5 If the investments by nationals of one Contracting Party are entitled whether by the law of the other Contracting Party or under international law, to a treatment more favourable than is provided for by the present Agreement, such treatment shall prevail.
6 Special incentives granted by one Contracting Party only to its nationals in order to stimulate the creation of local industries are considered compatible with this Article, provided they do not significantly affect the investments and activities of nationals of the other Contracting Party in connection with an investment.
With respect to taxes, fees, charges and to fiscal deductions and exemptions, each Contracting Party shall accord to nationals of the other Contracting Party who are engaged in any economic activity in its territory, treatment not less favourable than that accorded to its own nationals or to those of any third State, whichever is more favourable to the nationals concerned. For this purpose, however, there shall not be taken into account any special fiscal advantages accorded by that Party:
a) under an agreement for the avoidance of double taxation; or
b) by virtue of its participation in a customs union, economic union or similar institution; or
c) on the basis of reciprocity with a third State.
Neither Contracting Party shall take any measures depriving, directly or indirectly, nationals of the other Contracting Party of their investments unless the following conditions are complied with:
a) the measures are taken in the public interest and under due process of law;
b) the measures are not discriminatory;
c) the measures are accompanied by provision for the payment of adequate compensation. Such compensation shall amount to the market value of the relevant investments immediately before the measures were taken or the impending measures were publicly announced and shall include interest at a normal commercial rate until the date of payment. In determining the market value due weight shall be given to any factors which might have affected the value before the measures were publicly announced by the authorities. In order to be effective for the claimants, compensation shall be paid and made transferable, without undue delay, to the country designated by the claimants concerned and in the currency of the country of which the claimants are nationals or in any freely convertible currency accepted by the claimants.
Nationals of the one Contracting Party who suffer losses in respect of their investments in the territory of the other Contracting Party owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot 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 nationals or to nationals of any third State, whichever is more favourable to the nationals concerned.
If the investments of a national of the other Contracting Party are insured against non-commercial risks under a system established by law, and the insurer or the re-insurer makes a payment or agrees to make a payment pursuant to the terms of such insurance, any subrogation of the insurer or re-insurer into the rights of the said national shall be recognised by the other Contracting Party.
1 Any dispute between one Contracting Party and a national of the other Contracting Party concerning an investment of the latter in the territory of the former shall, if possible, be settled amicably.
3 If the dispute has not been settled within a period of eighteen months from its submission to a competent body for the purpose of pursuing local remedies, then for the purpose of Article 36 of the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington on 18 March 1965 (the Convention) the Contracting Party hereby gives its consent to the submission of the dispute to arbitration under that Article.
As regards the Kingdom of the Netherlands, the present Agreement shall apply to the part of the Kingdom in Europe, the Netherlands Antilles and to Aruba, unless the notification provided for in Article 13, paragraph (1) provides otherwise.
Either Contracting Party may propose to the other Contracting Party that consultations be held on any matter concerning the 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.
1 Any dispute between the Contracting Parties concerning the interpretation or application of the present Agreement, which cannot be settled within a reasonable period of time, by means of diplomatic negotiations, shall, unless the parties have otherwise agreed, be submitted, at the request of either Party, to an arbitral tribunal, composed of three members. Each party shall appoint one arbitrator and the two arbitrators thus appointed shall together appoint a third arbitrator as their chairman who is not a national of either Party.
3 If the two arbitrators are unable to reach agreement, in the two months following their appointment, on the choice of the third arbitrator, either Party may invite the President of the International Court of Justice to make the necessary appointment.
4 If, in the cases provided for in the paragraphs 2 and 3 of this Article, the President of the International Court of Justice is prevented from discharging the said function or is a national of either Contracting Party, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is prevented from discharging the said function or is a national of either Party the most senior member of the Court available who is not a national of either Party shall be invited to make the necessary appointments.
5 The tribunal shall decide on the basis of respect for the law. Before the tribunal decides, it may at any stage of the proceedings propose to the Parties that the dispute be settled amicably. The foregoing provisions shall not prejudice the power of the tribunal to decide the dispute ex eaquo et bono if the Parties so agree.
1 The present Agreement shall enter into force on the first day of the second month following the date on which the Contracting Parties have notified each other in writing that the procedures constitutionally required therefor in their respective countries have been complied with, and shall remain in force for a period of fifteen years.
2 Unless notice of termination has been given by either Contracting Party at least six months before the date of the expiry of its validity, the present Agreement shall be extended tacitly for periods of ten years, each Contracting Party reserving the right to terminate the Agreement upon notice of at least six months before the date of expiry of the current period of validity.
IN WITNESS WHEREOF, the undersigned representatives, duly authorised thereto, have signed the present Agreement.
DONE in duplicate at Kingston on April 18, 1991 in the English Language.
(sd.) A. L. BRUNINGS
For the Government of the Kingdom of the Netherlands
(sd.) DAVID COORE
For the Government of Jamaica