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Exchange of Notes between the Government of Canada and the Government of Fiji constituting a Foreign Investment Insurance Agreement [1976] CATSer 10 (29 March 1976)

E101479 - CTS 1976 No. 16

EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF FIJI CONSTITUTING A FOREIGN INVESTMENT INSURANCE AGREEMENT

I

The High Commissioner of Canada to the Prime Minister and Minister of Foreign Affairs of Fiji

CANBERRA, February 25, 1976

No. 462

The Right Honourable Ratu Sir Kamisese Mara, P.C., K.B.E.,
Prime Minister and Minister of Foreign Affairs,
Suva, Fiji.

My Dear Prime Minister,

I have the honour to refer to discussions which have recently taken place between representatives of our two Governments relating to investments in Fiji which would further the development of economic relations between the Governments of Fiji and Canada, and to insurance 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 discussions:

1. In the event of a payment by the Export Development Corporation under a contract of insurance for any loss by reason of:

(a) war, riot, insurrection, revolution or rebellion in Fiji;

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

(c) any action by a Government, or agency thereof, in Fiji, 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 Fiji, that prohibits or restricts transfer of any money or removal of any property from that country;

the said Corporation, hereinafter called the "Insuring Agency" shall be authorized by the Government of Fiji to exercise the rights having devolved on it by law or having been assigned to it by the predecessor in title.

2. But to the extent that the laws of Fiji partially or wholly invalidate the acquisition of any interests in any property within its national territory by the Insuring Agency, the Government of Fiji 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 Fiji.

3. The Insuring Agency shall assert no greater rights than those of the transferring investor under the laws of Fiji 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 in the event of a denial of justice or other question of state responsi­bility as defined in international law.

4. Should the said Insuring Agency acquire, under investment insurance contracts, amounts and credits of the lawful currency of the Government of Fiji, the said Government of Fiji 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 Fiji.

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

6. 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 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 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.

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 15 years after the termina­tion of this Agreement.

Accept, Excellency, the renewed assurances of my highest consideration.

J. J. McCardle,

High Commissioner

II

The Prime Minister and Minister of Foreign Affairs of Fiji to the High Commissioner of Canada

SUVA, FIJI, 29 March, 1976

1427/9

His Excellency J. J. McCardle,
High Commissioner of Canada,
Canberra

My Dear High Commissioner,

I have the honour to acknowledge receipt of your Note No. 462 of 25 February, 1976 which reads as follows:

(See Canadian Note No. 462 of February 25, 1976)

I have the honour to confirm that the proposal set forth in your above-quoted note is acceptable to the Government of Fiji and agree that your above-quoted note and this reply thereto shall constitute an Agreement be­tween our two Governments in accordance with the last paragraph of your above-quoted note.

Accept, Excellency, the assurances of my highest consideration.

Kamisese K. T. Mara

Prime Minister and Minister for Foreign Affairs