The Government of the Kingdom of the Netherlands
and
The Government of the Republic of Ghana,
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 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) rights in the field of intellectual property, technical processes, goodwill and know-how;
and
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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; and
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(iii) legal persons located either in Ghana or the Netherlands and 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.
Article 2. Promotion of Investments
Either Contracting Party shall, within the framework of its laws and regulations,
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 or regulations, each Contracting Party shall admit such investments.
Article 3. Protection of Investments
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1 Each Contracting Party shall ensure fair and equitable treatment to 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 provisions of law 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 regulation, 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 regulation 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, 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 custom union, economic union or similar institution, or on the basis of reciprocity
with a third State.
Article 5. Repatriation of Investments and Returns
The Contracting Parties shall guarantee that payments related to an investment may
be transferred. The transfers shall be made in a freely convertible currency, without
undue restriction or delay. 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) earnings of natural persons; and
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g) the proceeds of sale or liquidation of the investment.
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1 Investments of nationals of either Contracting Party shall not be nationalised, expropriated
or subjected to measures having effect equivalent to nationalisation or expropriation
(hereinafter referred to as “expropriation”) in the territory of the other Contracting
Party unless the following conditions are complied with:
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(a) the measures are taken for a public purpose related to the internal needs of that
Contracting Party, on a non-discriminatory basis and under due process of law;
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(b) the measures are accompanied by provision for the payment of compensation amounting
to the genuine value of the investment expropriated immediately before the expropriation
or before the impending expropriation became public knowledge, whichever is the earlier;
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(c) payments of compensation shall be made without undue delay and shall be freely transferable
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; and
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(d) if the compensation is not paid within six months after its determination, it shall
from that date attract interest at the normal commercial rate until the date of payment.
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2 The national affected shall have a right, under the law of the Contracting Party
making the expropriation, to prompt determination of the amount of compensation either
by law or by agreement between the parties and to prompt review, by a judicial or
other independent authority of that Party, of his case and of the valuation of his
investment in accordance with the principles set out in paragraph (1) of this Article,
without prejudice to the procedure contained in Article 9 of this Agreement.
Article 7. Compensation for Losses
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 under a system established by law, any subrogation of the insurer
of re-insurer into the rights of the said national pursuant to the terms of such insurance
shall be recognized by the other Contracting Party.
Article 9. Settlement of Disputes between an Investor and a Host State
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2 If such disputes cannot be settled according to the provisions of paragraph 1 of this
Article within a period of six months from the date either party to the dispute requested
amicable settlement, the dispute shall, by mutual consent, be submitted to international
arbitration or conciliation.
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3 Where the dispute is referred to international arbitration or conciliation, the national
and the Contracting Party concerned in the dispute may, subject to the choice of the
aggrieved party, refer the dispute either to:
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a) the International Centre for the Settlement of Investment Disputes (having regard
to the provisions, where applicable, of the Convention on the Settlement of Investment
Disputes between States and Nationals of other States opened for signature at Washington
D.C. on 18 March 1965 and the additional facility for the administration of conciliation,
arbitration and fact-finding proceedings); or
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b) an international arbitrator or an ad hoc arbitration tribunal to be appointed by a
special agreement or established under the arbitration rules of the United Nations
Commission on International Trade Law.
Article 10. Applicability
The provisions of this Agreement shall, from the date of entry into force thereof,
also apply to existing investments which have been made before that date.
Article 11. Territorial Extensions
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 the other Party to consult on any matter concerning
the interpretation or application of the Agreement. The other Party shall accord sympathetic
consideration to and shall afford adequate opportunity for such consulation.
Article 13. Settlement of Disputes between the Contracting Parties
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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 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 aequo et bono if the Parties so agree.
Article 14. Duration and Termination
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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 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.