Expert Insight

International investments And the agreements to protect them Lawyer . Khaled Albeshir


I will review here a very important topic that will interest consumers and investors simultaneously, which is the international trade agreements that Kuwait has signed, relating to the protection of mutual investments (PIT), which are in total (91) agreements between the different countries, including more than one with China. Before I touch upon the most important provisions in some of these agreements, I will talk about the trade facilitation agreement that entered into force in (2018) and became mandatory, as well as being important and beneficial to the consumer and the merchant.

This agreement covers the most important point in all agreements, as it necessitates the reduction of the import costs, the period of expiry as well as the transit period, while It does not contradict other agreements that Kuwait is bound by with other countries, such as the “Investment Protection Convention”, which entered into force in (1986), and is regarded as an important agreement, with the most significant of its provisions being articles (4-6 and 8).

Article 4

Compensation for damage or loss

  1. Investors of one of the member states, whose investments in the lands and/or within the maritime boundaries of another member state who incur losses due to war or other armed conflicts, or a state of national emergency, rebellion, insubordination, or riots in the lands and/or within the maritime boundaries of another member state. shall, in relation to the relevant compensatory measures adopted, be accorded favorable treatment from that which the host member state accords to investors of any non-member state.

  2. Without prejudice to paragraph (1) of this article. In the event that investors of one of the member state who are subjected to any of the events referred to in the above paragraph suffer or are exposed to losses within the lands and/or within the maritime boundaries of another member state as a result of:

          A) Confiscation of property by their forces or the authorities.

B) Destruction of their property by their forces or the authorities in a manner that was not caused by hostilities or an event that necessitates the action.

Fair, reasonable and non-discriminatory compensation must be granted for damages or losses incurred during the period of appropriation, or as a result of property destruction, and the resulting payments must be in a freely convertible and transferable currency.

Article (6)

Reinvestment and returns:

1- Each member state shall, in accordance with its laws and regulations, allow without undue delay the transfer in any convertible currency the:

A) Net profits, dividends, royalties, technical assistance, fees for technical services, interest, and other returns derived from any investment by an investor of the other member state

B) The proceeds derived from the total or partial liquidation of any investment made by an investor of the other member state.

C) Funds to pay off loans that both member states have recognized.

D) Profits of citizens of the other member states and their employees who are permitted to work in connection with investments within its lands and/or maritime boundaries.

2- Without restricting the generality of article (5) of this agreement, the member states undertake to grant the transfers referred to in paragraph (1) of this article favorable treatment than that granted to transfers arising from investments made by investors of non-member states.

  1. For the purposes of this agreement, the exchange rates shall be determined according to the official rates agreed upon with the International Monetary Fund, or, in the absence of such rates, the official exchange rates for the special Drawing Rights, or the US dollar, or any of the other convertible currencies agreed upon between the two member countries.

  2. The aforementioned transfers are subject to the host government's right to impose reasonable restrictions that are more than its current foreign exchange controls regulations for temporary periods, not exceeding six months to cope with fundamental cases.

Economic imbalance provides that fifty percent (50%) of these transfers are repatriated base country during these periods.

Article (8)

Settlement of investment disputes

  1. Disputes or disagreements between a member state and an investor of another member state regarding the investment of that investor in the lands and/or within maritime boundaries of the host member state should be resolved amicably, if possible.

  2. If such disputes or disagreements cannot be settled in accordance with the provisions of Paragraph (1) of this article within six months from the date of either party requesting an amicable settlement, and the two parties have not agreed to any other settlement procedures of the dispute, the concerned investor may choose one of the following means of resolution or both:

  3. Submit a complaint to the competent administrative authority or the competent agency in the host member state and request a resolution from them.

  4. File a lawsuit before the competent court in the host member state.

  5. The dispute related to the amount of compensation and any other dispute agreed upon by the parties can be submitted to an international arbitration tribunal. The aforementioned international arbitration tribunal is specifically formed in the following manner: Each party to the dispute appoints an arbitrator. The two arbitrators shall appoint an arbitration president who shall be a citizen of a third country that has diplomatic relations with both member states. The Arbitrators are appointed within two months and the president within four months from the date the party concerned notifies the other party that it has referred the dispute to arbitration.

If the necessary appointments are not concluded within the period specified in the previous paragraph, then either party may, in the absence of any other agreement, request the president of the Institute of International Arbitration of the Stockholm Chamber of Commerce to make the necessary appointments.

The arbitral tribunal determines its arbitration procedures by referring either to the “Agreement for Settlement of Investment Disputes between States and Nationals of Other Countries” concluded in Washington on March 18, 1965 or refer the arbitration to the United Nations “Commission on International Trade Law” (UNCITRAL).

The arbitral tribunal shall reach its ruling based on the provisions of this agreement, the relevant domestic laws, the agreements concluded by the two member states, and generally recognized principles of international law.

The arbitral tribunal shall meet in a third country to be selected by mutual agreement of the parties concerned or in Stockholm, if the selection is not made within forty-five (45) days of the appointment of the final member of the court, the court must reach its decision by a majority of votes.

The judgment shall be final and binding to the parties.

When the court makes its decision, it must determine the legal basis of its decision, and at the request of either party, interpret it.

Each party shall bear the costs and personal expenses of the appointed arbitrator during the arbitration proceedings. Both parties bear the president's expenses and other costs equally

  1. In addition to the previous provisions of this article, disputes may be settled between the investors of a member state and the investors of the other host member through international arbitration in accordance with the arbitration clause between the two parties.

  2. It is not permissible for either of the two member states to pursue any matter referred to arbitration through diplomatic channels until the procedures are over and the member state has failed to adhere to, or comply with the arbitration decision issued by the arbitral tribunal.

As for the agreement on avoiding double taxation and preventing tax evasion on income and capital

Article (1) also stipulates that the agreement applies to persons residing in one of the two countries, and one of the most important provisions of this agreement are articles 14-21-22-24

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