The Kingdom of the Netherlands
and
the Republic of Zimbabwe,
hereinafter referred to as the Contracting Parties,
Desiring to strengthen their traditional ties of friendship and 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 and that fair and equitable treatment of investment is desirable,
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 and other assets and to any performance having an economic value;
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(iv) copyrights, industrial property rights, technical processes, trade-marks, trade-names,
know-how and goodwill;
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(v) rights granted under public law, including rights to prospect, explore, extract and
win natural resources.
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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) without prejudice to the provisions of (iii) hereafter, legal persons constituted
under the law of that Contracting Party;
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(iii) legal persons, wherever located, controlled directly or indirectly by nationals of
that Contracting Party.
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c) the term “territory” includes the maritime areas adjacent to the coast of the State
concerned, to the extent to which that State may exercise sovereign rights or jurisdiction
in those areas according to international law.
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d) the term “laws” includes published administrative rules and regulations.
Either Contracting Party shall, within the framework of its laws, promote economic
cooperation through the protection in its territory of investments of nationals of
the other Contracting Party. Subject to its right to exercise powers conferred by
its laws, 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. Each Contracting Party shall accord to such
investments full physical security and protection.
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2 More particularly, each Contracting Party shall accord to such investments treatment
which in any case shall not be less favourable 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, monetary
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 laws of either Contracting Party or obligations under international law existing
at present or established hereafter between the Contracting Parties in addition to
the present Agreement contain a provision whether general or specific, entitling investments
by nationals of the other Contracting Party to a treatment more favourable than is
provided for by the present Agreement, such provision shall, to the extent that it
is more favourable, prevail over the present Agreement.
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 who are in the same
circumstances, 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 under an agreement for the avoidance of double taxation, by virtue of
its participation in a customs union, economic union or similar institution, or on
the basis of reciprocity with a third State.
The Contracting Parties shall guarantee that payments relating to an investment may
be transferred. The transfers shall be made in a freely convertible currency, without
restriction or delay, at the rate of exchange applicable on the date of transfer.
Such transfers include in particular though not exclusively:
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a) profits, interest, dividends and other current income;
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b) funds necessary
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(i) for the acquisition of raw or auxiliary materials, semi-fabricated or finished products,
or
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(ii) to replace capital assets in order to safeguard the continuity of an investment;
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c) additional funds necessary for the development of an investment;
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d) funds in repayment of loans;
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e) royalties or fees;
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f) a reasonable portion of the earnings of natural persons in respect of salaried work
and services performed in relation to the investment;
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g) the proceeds of sale or liquidation of the investment;
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h) payments arising under Article 7.
Neither Contracting Party shall subject nationals of the other Contracting Party to
any measures depriving them, directly or indirectly, 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 or contrary to any undertaking which the former
Contracting Party may have given;
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c) the measures are accompanied by provision for the payment of just compensation. Such
compensation shall represent the genuine value of the investments affected and shall,
in order to be effective for the claimants, be paid and made transferable, without
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. The genuine value of the investments shall include, but
not exclusively, the net asset value thereof as certified by an independent firm of
auditors.
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 one Contracting Party are insured against
non-commercial risks or otherwise give rise to payment of indemnification in respect
of such investments under a system established by law, regulation or government contract,
any subrogation of the insurer or re-insurer or Agency designated by the one Contracting
Party to the rights of the said national pursuant to the terms of such insurance or
under any other indemnity given shall be recognized by the other Contracting Party.
For this purpose, the insurer or re-insurer or Agency shall not be entitled to assert
any rights other than the rights which the said national would have been entitled
to assert.
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1 Any legal dispute between a Contracting Party and a national of the other Contracting
Party arising directly out of an investment of that national in the territory of the
former Contracting Party shall as far as possible be settled amicably between the
parties in dispute. If the dispute cannot be settled within six months of the date
when it is raised by one of the parties in dispute, it shall, at the request of the
national concerned, be submitted for settlement by conciliation or arbitration.
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2 Each Contracting Party hereby consents to submit such legal dispute to the International
Centre for the Settlement of Investment Disputes for settlement by conciliation or
arbitration under the Convention on the Settlement of Investment Disputes between
States and Nationals of other States opened for signature at Washington on 18 March
1965. A legal person which is a national of one Contracting Party and which before
such a dispute arises is controlled by nationals of the other Contracting Party shall
in accordance with Article 25 (2) (b) of the Convention, be treated for the purposes
of the Convention as a national of the other Contracting Party.
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3 The arbitral tribunal to which such legal dispute is submitted shall, unless the
parties to the dispute agree otherwise, decide in accordance with the laws of the
Contracting Party – party to the dispute – (including its rules on the conflict of
laws) and such rules of international law as may be applicable.
The provisions of this Agreement shall, from the date of entry into force thereof,
also apply to investments which have been made before that date.
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 14, paragraph (1) provides otherwise.
Either Contracting Party may propose to the other Party that consultations be held
on any matter concerning the interpretation or application of the present Agreement.
The other 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 lapse 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 agree upon a third arbitrator, who is not a national of either
Party, to be appointed by the Parties as their chairman.
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3 If the necessary appointments have not been made within the periods specified in
paragraph (2) of this Article, either Party may invite the President of the International
Court of Justice to make the necessary appointments. If the President of the International
Court of Justice is prevented from discharging the said function or is a national
of either 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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4 The tribunal shall decide on the basis of international law and any treaties in force
between the Parties (including the present Agreement) and shall take into account,
as may be appropriate, the relevant domestic 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 aequo et bono if the Parties so
agree.
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7 If any legal dispute is referred to conciliation or arbitration pursuant to Article
9 of the present Agreement, the arbitration provisions of this Article 13 shall not
be involved in relation to such dispute, except where any award, decision or agreement
rendered or concluded pursuant to conciliation or arbitration under the said Article
9 is not complied with.
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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 informed each other in writing
that their constitutionally required procedures 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.