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Exchange of Notes between the Government of Canada and the Government of Saint Lucia constituting an Agreement relating to Canadian Investments in Saint Lucia insured by the Government of Canada through its Agent, the Export Development Corporation [1970] CATSer 10 (25 November 1970)

E101505 - CTS 1970 No. 30

EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF SAINT LUCIA CONSTITUTING AN AGREEMENT RELATING TO CANADIAN INVESTMENTS IN SAINT LUCIA INSURED BY THE GOVERNMENT OF CANADA THROUGH ITS AGENT, THE EXPORT DEVELOPMENT CORPORATION

I

The High Commissioner for Canada to the Premier of Saint Lucia

PORT OF SPAIN, November 18, 1970

No. 258

The Hon. John Compton,
Premier of St. Lucia,
Castries, St. Lucia, W.I.

My Dear Premier,

I have the honour to refer to conversations which have recently taken place between representatives of our two Governments relating to investments in St. Lucia which would further development of economic relations between St. Lucia and Canada, and to guarantees of such investments by the Government of Canada, through its agent the Export Development Corporation. I also have the honour to confirm the following understandings reached as a result of those conversations:

1. In the event of payment by the Export Development Corporation of any loss under a Contract of Insurance the Corporation will be recognized by the Government of St. Lucia and by the laws of St. Lucia as successor to, or subrogated to all the rights of the investor for the purpose of recovering the amount of that loss, and

2. In the event of payment by the Corporation of any loss under a Contract of Insurance the Corporation will be accorded by your Government and by the laws of St. Lucia treatment as favourable as that accorded other persons suffering loss by reason of the causes described below:

(a) war, riot, insurrection, revolution or rebellion in St. Lucia;

(b) the arbitrary seizure, expropriation, confiscation or deprivation of use of any property by a government, or agency thereof, in St. Lucia;

(c) any action by a government, or agency thereof, in St. Lucia, other than action of the kind described in paragraph (b) that deprives the investor of any rights in, or in connection with, an investment; and

(d) any action by a government or agency thereof, in St. Lucia, that prohibits or restricts transfer of any money or removal of any property from that country.

3. This Agreement shall apply only with respect to insured investments in projects or activities approved by the Government of St. Lucia.

4. In the event of nationalization or expropriation of industry or business, regardless of item (2) above, the investor, or in a case where a claim has been paid, the Government of Canada, will be entitled to fair compensation for properties thus confiscated.

5. Differences between the two Governments concerning the interpretation and application of provisions of this Agreement shall be settled, insofar as possible, through negotiations between our two Governments. If such differences cannot be resolved within a period of three months following the request for such negotiations, it shall be submitted, at the request of either Government, to an ad hoc Tribunal for settlement in accordance with applicable principles and rules of public international law. The Arbitral Tribunal shall consist of three members and shall be established as follows: each Government shall appoint one arbitrator; a third member, who shall act as Chairman, shall be appointed by the other two members. The Chairman shall not be a national of either party. The arbitrators shall be appointed within two months and the Chairman within three months of the date of receipt of either Government's request for arbitration. If the foregoing time limits are not met, either Government may, in the absence of any other Agreement, request the President of the International Court of Justice to make the necessary appointment or appointments and both Governments agree to accept such appointment or appointments. The Arbitral Tribunal shall decide by majority vote. Its decision shall be binding and definitive. Each of the Governments shall pay the expense of its member and its representation in the proceedings before the Arbitral Tribunal; expenses of the Chairman and the other costs shall be paid in equal parts by the two Governments. The Arbitral Tribunal may adopt other requisitions concerning costs. In all other matters, the Arbitral Tribunal shall regulate its own procedures.

Any claim, arising out of investments insured in accordance with this Agreement, against either of the two Governments, which in the opinion of the other presents a question of public international law shall, at the request of the Government presenting the claim be submitted to negotiations. If at the end of three months following the request for negotiations, the two Governments have not resolved the claim by mutual agreement, the claim, including the question of whether it presents a question of public international law, shall be submitted for settlement to the Arbitral Tribunal selected in accordance with the above paragraph. The Arbitral Tribunal shall base its decision exclusively on applicable principles and rules of public international law. Only respective Governments may request arbitral procedures and participate in it.

I have the honour to propose that, if the foregoing is acceptable to your Government, this note, which is authentic in English and French, and your reply to that effect shall constitute an Agreement between our two Governments which shall enter into force on the date of your reply. This Agreement shall continue in force until terminated by either party on six months' notice in writing to the other. In the event of termination, the provisions of the Agreement shall continue to apply, in respect of guarantees issued by Canada while Agreement was in force, for the duration of those guarantees; provided that in no case shall the Agreement continue to apply to such guarantees for a period longer than fifteen years after termination of this Agreement.

Accept, Sir, the assurances of my highest consideration.

G. A. Rau

Canadian High Commissioner

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The Premier of Saint Lucia to the High Commissioner for Canada

SAINT LUCIA, THE WEST INDIES, 25th November, 1970

His Excellency G. A. Rau,
Canadian High Commissioner,
Port of Spain,
Trinidad & Tobago

Your Excellency,

I am to confirm that the proposals contained in your note No. 258 dated 18th November, 1970, relating to investments in St. Lucia which would further development of economic relations between St. Lucia and Canada, and to guarantees of such investments by the Government of Canada through its agent the Export Development Corporation are acceptable to the Government of Saint Lucia.

With renewed assurances of my Government's esteem.

Yours sincerely,

John Compton

Premier