Agreement Between Canada and The State of Kuwait For The Promotion and Protection of Investments

Table of Contents

Canada And The State Of Kuwait, hereinafter referred to as the “Parties,”

Recognizing that the promotion and the protection of investments of investors of one Party in the territory of the other Party will be conducive to the stimulation of mutually beneficial business activity, to the development of economic cooperation between them and to the promotion of sustainable development,

Have Agreed As Follows:

Section A - Definitions

Article 1

Definitions

For the purposes of this Agreement:

“central government” means the federal government in the case of Canada and the government of Kuwait in the case of the State of Kuwait;

“confidential information” means confidential business information and information that is privileged or otherwise protected from disclosure;

“covered investments” means, with respect to a Party, existing investments in its territory of an investor of the other Party, as well as investments made or acquired after the entry into force of this Agreement;

“disputing Contracting Party” means a Party against which a claim is made under SectionC;

“disputing investor” means an investor that makes a claim under SectionC;

“disputing party” means the disputing investor or the disputing Contracting Party;

“enterprise” means:

“existing” means in effect on the date of entry into force of this Agreement;

“financial institution” means any financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located;

“financial service” means a service of a financial nature, including insurance, and a service incidental or auxiliary to a service of a financial nature;

“freely convertible currency” means any currency that is widely used to make payments for international transactions and is widely traded in the principal exchange markets;

“ICSID” means the International Centre for Settlement of Investment Disputes;

“ICSID Convention” means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on 18March1965;

“information protected under its competition laws” means:

“intellectual property rights” means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders’ rights;

“investment” means:

“investment of an investor of a Party” means an investment owned or controlled directly or indirectly by an investor of such Party;

“investor of a Party” means a Party, a national of a Party or an enterprise of a Party, that seeks to make, is making or has made an investment. For greater certainty, in the case of the State of Kuwait, the Kuwait Fund for Arab Economic Development and the Kuwait Investment Authority are investors of Kuwait;

“measure” includes any law, regulation, procedure, requirement, or practice;

“national”, for the purposes of this Agreement, means:

A natural person who is a citizen of one Party and a permanent resident of the other Party shall be deemed to be exclusively a national of the Party of his or her citizenship;

“New York Convention” means the United Nations’ Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10June1958;

“person” means a natural person or an enterprise;

“sub-national government” means with respect to Canada, provincial, territorial or local governments;

“territory” means:

“Tribunal” means an arbitration tribunal established under Article 23 (Submission of a Claim to Arbitration) or Article27 (Consolidation);

“UNCITRAL Arbitration Rules” means the arbitration rules of the United Nations Commission on International Trade Law, approved by the United Nations General Assembly on 15December1976;

“without delay” means, with respect to transfers, such period as is normally required for the completion of necessary formalities for the transfer of payments.

Section B – Substantive Obligations

Article 2

Scope

Article 3

Promotion of Investment

Each Party shall encourage the creation of favourable conditions for investment in its territory by investors of the other Party and shall admit such investments in accordance with this Agreement.

Article 4

National Treatment

Article 5

Most-Favoured-Nation Treatment

Article 6

Minimum Standard of Treatment

Article 7

Compensation for Losses

Notwithstanding paragraph6 of Article16, each Party shall accord to investors of the other Party and to covered investments, non-discriminatory treatment with respect to measures it adopts or maintains, including measures concerning compensation relating to losses suffered by investments in its territory owing to armed conflict, civil strife or a natural disaster.

Article 8

Senior Management, Boards of Directors and Entry of Personnel

Article 9

Performance Requirements

Article 10

Expropriation

Article 11

Transfers

Article 12

Transparency

Article 13

Subrogation

Article 14

Taxation Measures

Article 15

Health, Safety and Environmental Measures

The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement.

Article 16

Reservations and Exceptions

Article 17

General Exceptions

Article 18

Denial of Benefits

Section C - Settlement of Disputes Between an Investor and the Host Party

Article 19

Purpose

Without prejudice to the rights and obligations of the Parties under SectionD, this Section establishes a mechanism for the settlement of investment disputes.

Article 20

Claim by an Investor of a Party on Its Own Behalf or on Behalf of an Enterprise

Article 21

Conditions Precedent to Submission of a Claim to Arbitration

Article 22

Special Rules Regarding Financial Services

Article 23

Submission of a Claim to Arbitration

Article 24

Consent to Arbitration

Article 25

Arbitrators

Article 26

Agreement to Appointment of Arbitrators

For purposes of Article39 of the ICSID Convention and Article7 of ScheduleC to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator based on a ground other than nationality, citizenship or permanent residence:

Article 27

Consolidation

Article 28

Documents to, and Participation of, the Other Party

1. A disputing Contracting Party shall deliver to the other Party to this Agreement a copy of the Notice of Intent to Submit a Claim to Arbitration and other documents no later than 30days after the date that such documents have been delivered to the disputing Contracting Party. The other Party shall be entitled, at its cost, to receive from the disputing Contracting Party a copy of the evidence that has been tendered to the Tribunal, copies of all pleadings filed in the arbitration, and the written argument of the disputing parties. The Party receiving such information shall treat the information as if it were a disputing Contracting Party.

2. The other Party to this Agreement shall have the right to attend any hearings held under Section C of this Agreement. Upon written notice to the disputing parties, the other Party may make submissions to a Tribunal on a question of interpretation of this Agreement.

Article 29

Place of Arbitration

The disputing parties may agree on the place of arbitration under the arbitral rules applicable under paragraph1 of Article23. If the disputing parties fail to reach agreement, the Tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of either Party or of a third State that is a party to the New York Convention.

Article 30

Public Access to Hearings and Documents

Article 31

Submissions by a non-disputing party

A Tribunal shall have the authority to consider and accept written submissions from a person or entity that is not a disputing party and that has a significant interest in the arbitration. The Tribunal shall ensure that any non-disputing party submission does not disrupt the proceedings and does not unduly burden or unfairly prejudice either disputing party.

Article 32

Governing Law

Article 33

Expert Reports

Without prejudice to the appointment of other kinds of experts where authorized by the applicable arbitration rules, and unless the disputing parties disapprove, a Tribunal may appoint experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party, subject to such terms and conditions as the disputing parties may agree.

Article 34

Interim Measures of Protection and Final Award

Article 35

Finality and Enforcement of an Award

Article 36

Receipts under Insurance or Guarantee Contracts

In an arbitration under this Section, a disputing Contracting Party shall not assert as a defence, counterclaim, right of setoff or otherwise, that the disputing investor has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages.

Section D – State-to-State Dispute Settlement Procedures

Article 37

Disputes between the Parties

Section E – Final Provisions

Article 38

Consultations and other Actions

Article 39

Extent of Obligations

The Parties shall ensure that all necessary measures are taken in order to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by sub-national governments.

Article 40

Exclusions

The dispute settlement provisions of SectionsC andD of this Agreement shall not apply to the matters in Annex3.

Article 41

Application and Entry into Force

IN WITNESS WHEREOF, the undersigned, duly authorised by their respective Governments, have signed this Agreement.

DONE in two originals at Ottawa on this 26th day of September 2011, corresponding to the 28th day of SHawwal, 1432 H in the English, French and Arabic languages, all language versions being equally authentic.

Edward Fast

FOR CANADA

Mohammad Sabah Al Salem Al Sabah

FOR THE STATE OF KUWAIT

Annex 1

Reservations for Future Measures

Schedule of Canada

In accordance with paragraph2 of Article16 of this Agreement, Canada reserves the right to adopt or maintain any measure with respect to the following sectors or matters:

Schedule of the State of Kuwait

In accordance with paragraph2 of Article16 of this Agreement, the State of Kuwait reserves the right to adopt or maintain any measure with respect to the following sectors or matters:

Annex 2

Exceptions from Most-Favoured-Nation Treatment

Annex 3

Exclusions from Dispute Settlement

A decision by Canada following a review under the Investment Canada Act, R.S.C.1985, c.28 (1st Supp.), with respect to whether or not to permit an acquisition that is subject to review, shall not be subject to the dispute settlement provisions under Sections C or D of this Agreement.

Date Modified: