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:
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a) the term "investments" shall comprise every kind of asset and more particularly, though
not exclusively;
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(i) movable and immovable property as well as any other rights in rem in respect of every
kind of asset;
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(ii) rights derived from shares, bonds and other kinds of interests in companies and joint
ventures;
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(iii) title to money or other assets or to any performance under contract or law having
an economic value;
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(iv) rights in the field of intellectual property, technical processes, goodwill and know-how;
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(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.
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b) the term "nationals" shall comprise with regard to either Contracting Party:
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(i) natural persons having the nationality of that Contracting Party in accordance with
its law;
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(ii) corporations, firms or associations incorporated or constituted under the law of that
Contracting Party;
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(iii) corporations, firms or associations wherever located, controlled directly or indirectly
by nationals as defined in (i) and (ii) above.
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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a) under an agreement for the avoidance of double taxation; or
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b) by virtue of its participation in a customs union, economic union or similar institution;
or
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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:
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a) the measures are taken in the public interest and under due process of law;
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b) the measures are not discriminatory;
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.