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Exchange of Notes (November 30, 1973 and March 12, 1974) between the Government of Canada and the Government of the Kingdom of Morocco constituting an Agreement relating to Canadian Investments in Morocco insured by the Government of Canada through its Agent, the Export Development Corporation [1974] CATSer 6 (12 March 1974)

E103216 - CTS 1974 No. 28

EXCHANGE OF NOTES (November 30, 1973 and March 12, 1974) BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF MOROCCO CONSTITUTING AN AGREEMENT RELATING TO CANADIAN INVESTMENTS IN MOROCCO INSURED BY THE GOVERNMENT OF CANADA THROUGH ITS AGENT, THE EXPORT DEVELOPMENT CORPORATION

I

The Secretary of State for External Affairs of Canada to the Minister of Foreign Affairs of Morocco

OTTAWA, November 30, 1973

FLA-682

His Excellency Ahmed Taïbi Benhima,
Minister of Foreign Affairs,
Rabat, Morocco

Excellency,

I have the honour to refer to discussions which have recently taken place between representatives of our two Governments relating to investments in Morocco which would further the development of economic relations between Morocco and Canada, and to insurance of such investments by the Government of Canada, through its agent the Export Development Corporation, hereinafter called the “Insuring Agency”. I also have the honour to confirm the following understandings reached as a result of those discussions:

1. In the event of a payment by the Insuring Agency under a contract of insurance for any loss by reason of:

(a) war or any other extraordinary risks;

(b) the seizure, expropriation, confiscation or deprivation of use of any property by a Government, or agency thereof, in Morocco;

(c) any action by a Government, or agency thereof, in Morocco, other than action of the kind described in sub-paragraph (b) that deprives the investor of any right in, or in connection with, an investment; and

(d) any action by a Government, or agency thereof, in Morocco, that prohibits or restricts transfer or removal from that country of any money or property in connection with an insured investment therein;

The said Insuring Agency shall be authorized by the Government of Morocco to exercise the rights having devolved on it by the laws of Morocco or having been assigned to it by the investor where the Insuring Agency is subrogated to the rights of the investor.

2. To the extent that the laws of Morocco partially or wholly invalidate the acquisition of any interests in any property within its national territory by the Insuring Agency, the Government of Morocco shall permit the investor and the Insuring Agency to make appropriate arrangements pursuant to which such interests are transferred to an entity permitted to own such interests under the laws of Morocco.

3. The Insuring Agency shall assert no greater rights than those of the transferring investor under the laws of Morocco with respect to any interest transferred or succeeded to as contemplated in paragraph 1. The Government of Canada does, however, reserve its right to assert a claim in its sovereign capacity where it would judge that the investor has been subjected to a denial of justice or has suffered from any other act involving state responsibility.

4. Should the said Insuring Agency acquire, under investment insurance contracts, amounts and credits of the lawful currency of the Government of Morocco, the said Government of Morocco shall accord to those funds treatment no different than that which it would accord if such funds were to remain with the investor, and such funds shall be freely available to the Government of Canada to meet its expenditures in the national territory of Morocco.

5. Differences between the two Governments concerning the interpretation and application of provisions of this agreement or 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 be settled, insofar as possible, through negotiations between the 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 country. The arbitrators shall be appointed within six months and the Chairman within nine 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 members and its representation in the proceedings before the arbitral tribunal; expenses of the Chairman and other costs shall be paid in equal parts by the two Governments. The arbitral tribunal may adopt other regulations concerning costs. In all other matters, the arbitral tribunal shall regulate its own procedures. Only the respective Governments may request arbitral procedure and participate in it.

6. This agreement shall apply only with respect to insured investments in projects or activities approved in writing by the Government of Morocco.

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 Government 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 insurance contracts issued by the Government of Canada while the agreement was in force, for the duration of these contracts; provided that in no case shall the agreement continue to apply to such contracts for a period longer than fifteen years after the termination of this agreement.

Accept, Excellency, renewed assurance of my highest consideration.

Mitchell Sharp

Secretary of State for External Affairs

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The Minister of Foreign Affairs of Morocco to the Secretary of State for External Affairs of Canada

(Traduction)

RABAT, March 12, 1974

His Excellency Mitchell Sharp,
Secretary of State for External Affairs,
Ottawa

Excellency,

I have the honour to acknowledge receipt of your letter dated November 30, 1973, which reads as follows:

"(See Canadian Note No. FLA-682 dated November 30, 1973)"

I have the honour to confirm the foregoing is acceptable to my Government.

Accept, Excellency, the assurances of my highest consideration.

Ahmed Taibi Benhima

Minister of Foreign Affairs