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Exchange of Notes (April 2 and June 10, 1976) between the Government of Canada and the Government of the Republic of Ghana constituting a Foreign Investment Insurance Agreement [1976] CATSer 24 (10 June 1976)

E101481 - CTS 1976 No. 25

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

I

The High Commissioner for Canada to the Commissioner for Foreign Affairs of the Republic of Ghana

ACCRA, April 2nd, 1976

No. 59

Colonel R. J. A. Felli,
Commissioner for Foreign Affairs,
Accra, Ghana

Excellency:

I have the honour to refer to recent discussions and exchanges between representatives of our two countries relating to investments in Ghana which would further the development of economic relations between Ghana 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 and exchanges:

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 Ghana;

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

(c) any action by a Government, or agency thereof, in Ghana, 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 Ghana, 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 Ghana 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 Ghana partially or wholly invalidate the acquisition of any interests in any property within its national territory by the Insuring Agency, the Government of Ghana 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 Ghana.

3. The Insuring Agency shall assert no greater rights than those of the transferring investor under the laws of Ghana 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 Ghana, the said Government of Ghana 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 Ghana.

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

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 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 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 that tribunal; expenses of the Chairman and the other costs shall be paid in equal parts by the two govern­ments. The tribunal may adopt other regulations concerning costs. In all other matters, the tribunal shall regulate its own procedures. Only the respective governments may request arbitration 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 in 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 termina­tion of this agreement.

Accept, Excellency, renewed assurance of my highest consideration.

David C. Reece,

High Commissioner

II

The Commissioner for Foreign Affairs of the Republic of Ghana to the High Commissioner for Canada

ACCRA, 10th June 1976

His Excellency D. C. Reece,
Canadian High Commissioner,
Accra

Your Excellency,

I have the honour to acknowledge receipt of your Note No. 59 dated 2nd April, 1976 which reads as follows:

(See Canadian Note No. 59 of April 2, 1976)

In reply, I have the honour to confirm that the foregoing provisions are acceptable to the Government of the Republic of Ghana and that your Note and this reply shall constitute an agreement between our two Governments which shall enter into force today, 10th June, 1976.

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

Colonel R. J. A. Felli

Commissioner for Foreign Affairs