AGREEMENT BETWEENTHE GOVERNMENT OF JAPANAND THE GOVERNMENT OF THE REPUBLIC OF KENYAFOR THE PROMOTION AND PROTECTION OF INVESTMENT

AGREEMENT BETWEENTHE GOVERNMENT OF JAPANAND THE GOVERNMENT OF THE REPUBLIC OF KENYAFOR THE PROMOTION AND PROTECTION OF INVESTMENT
The Government of Japan and the Government of the
Republic of Kenya,
Desiring to further promote investment in order tostrengthen the economic relationship between Japan and theRepublic of Kenya (hereinafter referred to as “theContracting Parties”);
Intending to further create stable, equitable,favourable and transparent conditions for greater
investment by investors of a Contracting Party in the Areaof the other Contracting Party;
Recognising the growing importance of the progressive
liberalisation of investment for stimulating initiative ofinvestors and for promoting prosperity in the Contracting
Parties;
Recognising that these objectives can be achieved
without relaxing health, safety and environmental measuresof general application;
Recognising the importance of the cooperative
relationship between labour and management in promoting
investment between the Contracting Parties;
Convinced that this Agreement will contribute to thefurther development of the overall relationship between theContracting Parties; andRecognising that this Agreement is designed to allow
each Contracting Party to regulate, and to introduce newmeasures relating to, investments in its Area in order tomeet national public policy objectives;
Have agreed as follows:－1－Article 1
Definitions
For the purposes of this Agreement,(a)the term “investment” means every kind of asset
owned or controlled, directly or indirectly, by
an investor and has characteristics of aninvestment such as commitment of capital or otherresources, the expectation of gain or profit, orassumption of risk, including:(i)a local enterprise or branch;(ii)

shares, stocks or other forms of equity
participation in an enterprise, including
rights derived therefrom;(iii)

bonds, debentures, loans and other forms ofdebt, including rights derived therefrom;(iv)

rights under contracts, including turnkey,
construction, management, production orrevenue-sharing contracts;(v)

claims to money and to any performance undercontract having a financial value;(vi)

intellectual property rights, including
copyrights and related rights, patent rights
and rights relating to utility models,trademarks, industrial designs, layoutdesigns of integrated circuits, newvarieties of plants, trade names,
indications of source or geographicalindications and undisclosed information;(vii)

rights conferred pursuant to laws andregulations or contracts such asconcessions, licences, authorisations andpermits, including those for the
exploration, prospect, exploitation andextraction of natural resources; and(viii)

any other tangible and intangible, movableand immovable property, and any related
property rights, such as leases, mortgages,
liens and pledges.

－2－

An investment includes the amounts yielded byinvestments, in particular, profit, interest,
capital gains, dividends, royalties and fees. Achange in the form in which assets are invested
does not affect their character as an investment.
(b)

the term “investor of a Contracting Party” means:
(i)

(ii)

a natural person, who under the law of theContracting Party:(A)

in respect of Japan, is a national ofJapan; and(B)

in respect of the Republic of Kenya, isa citizen or national of the Republicof Kenya; oran enterprise of that Contracting Party,

that seeks to make, is making or has made aninvestment in the Area of the other Contracting
Party;(c)an enterprise is:(i)“owned” by an investor if more than fifty(50) percent of the equity interest in it isowned by the investor; and(ii)“controlled” by an investor if the investor
has the power to name a majority of its
directors or otherwise to legally direct its
actions;(d)the term “enterprise of a Contracting Party”
means any legal person or any other entity duly
constituted or organised under the applicablelaws and regulations of that Contracting Party,
whether or not for profit, and whether private or
government owned or controlled, including any
corporation, trust, partnership, sole
proprietorship, joint venture, association,organisation or company;(e)the term “investment activities” means operation,
management, maintenance, use, enjoyment and saleor other disposal of investments;(f)the term “Area” means:

－3－

(g)

(i)

in respect of Japan, the territory of Japan,
and the exclusive economic zone and thecontinental shelf with respect to which
Japan exercises sovereign rights or
jurisdiction in accordance withinternational law; and(ii)

in respect of the Republic of Kenya, theland territory, internal waters, territorial
sea and the airspace above them, as well as
the maritime zone beyond the territorialsea, including the seabed and subsoil, overwhich the Republic of Kenya exercises
sovereign rights or jurisdiction inaccordance with its national laws in force
and international law, for the purpose of
exploration and exploitation of the natural
resources of such areas; andthe term “freely usable currency” means freely
usable currency as defined under the Articles ofAgreement of the International Monetary Fund.
Article 2
Promotion and Admission of Investment

1.
Each Contracting Party shall encourage and create
favourable conditions for investors of the other
Contracting Party to make investments in its Area.
2.
Each Contracting Party shall, subject to its
applicable laws and regulations, including those withregard to foreign ownership and control, admit investment
of investors of the other Contracting Party.
Article 3
National Treatment
1.
Each Contracting Party shall in its Area accord toinvestors of the other Contracting Party and to theirinvestments treatment no less favourable than the treatment
it accords in like circumstances to its own investors andto their investments with respect to investment activities.
2.
Paragraph 1 shall not be construed so as to prevent aContracting Party from adopting or maintaining a measurethat prescribes special formalities in connection withinvestment activities of foreign investors in its Area inaccordance with its laws and regulations, provided thatsuch special formalities do not impair the substance of therights of investors of the other Contracting Party under
this Agreement.

－4－

3.
Paragraph 1 shall not apply to measures adopted or
maintained by a Contracting Party with respect toincentives only for the purpose of promoting small andmedium sized enterprises in its Area, to the extent thatsuch measures do not materially affect the investments orinvestment activities of the investors of the other
Contracting Party.
Article 4
Most-Favoured-Nation Treatment
1.
Each Contracting Party shall in its Area accord toinvestors of the other Contracting Party and to theirinvestments treatment no less favourable than the treatment
it accords in like circumstances to investors of a nonContracting Party and to their investments with respect toinvestment activities.
2.
Each Contracting Party shall in its Area accord toinvestors of the other Contracting Party and to theirinvestments treatment no less favourable than the treatment
it accords in like circumstances to investors of a nonContracting Party and to their investments with respect tothe admission of investments.
3.

The provision of paragraph 2 shall not apply to:(a)measures related to:(i)the acquisition of land property;(ii)

subsidies; or(iii)

government procurement;(b)

any treatment accorded by a Contracting Party toinvestors of a non-Contracting Party and to theirinvestments on the basis of reciprocity;(c)any preferential treatment resulting from themembership to any bilateral or multilateralinternational agreement involving protection of
new varieties of plants, aviation, fishery or
maritime matters; and(d)any measure relating to investments in public law
enforcement and correctional services, and in
public social services such as income security or
insurance, social security or insurance, social
welfare, primary and secondary education, publictraining, health and child care.

－5－

4.
Neither Contracting Party shall, under any measure
adopted after the date of entry into force of thisAgreement and listed in subparagraphs (a)(i), (a)(iii) and(d) of paragraph 3, require an investor of the other
Contracting Party, by reason of its nationality, to sell orotherwise dispose of an investment that exists at the time
when the measure becomes effective.
5.
The provisions of paragraphs 1 and 2 shall not be
construed so as to oblige a Contracting Party to extend toinvestors of the other Contracting Party and to theirinvestments treatment accorded to investors of a nonContracting Party and to their investments by virtue of any
membership to:(a)a customs, economic or monetary union, a common
market, a free trade area, an international
agreement for regional economic integration or asimilar international agreement; or(b)multilateral agreements in respect of protectionof intellectual property rights.

6.
It is understood that the “treatment” referred to inthis Article does not include dispute settlement procedures
provided for in other international agreements, including
those provided for in other investment agreements.
Article 5
General Treatment and Improvement of
Investment Environment
1.
Each Contracting Party shall in its Area accord toinvestments of investors of the other Contracting Party
fair and equitable treatment and full protection andsecurity in accordance with customary international law.
Note:This paragraph prescribes the customaryinternational law minimum standard of treatmentof aliens as the minimum standard of treatment
to be afforded to investments of investors of
the other Contracting Party. The concepts of“fair and equitable treatment” and “fullprotection and security” do not require
treatment in addition to or beyond that whichis required by the customary international law
minimum standard of treatment of aliens and do
not create additional substantive rights. A
determination that there has been a breach ofanother provision of this Agreement, or of aseparate international agreement, does notestablish that there has been a breach of thisparagraph.

－6－

2.
Neither Contracting Party shall, within its Area, in
any way impair investment activities of investors of theother Contracting Party by arbitrary measures.
3.
Each Contracting Party shall take appropriate measures
to further improve investment environment in its Area forthe benefit of investors of the other Contracting Party andtheir investments. In this regard, each Contracting Party
shall endeavour to create and maintain favourable
conditions for the investors of the other Contracting Party
and their investments with respect to investment activities
as well as the establishment, acquisition and expansion of
investments.
Article 6
Access to the Courts of Justice
Each Contracting Party shall in its Area accord toinvestors of the other Contracting Party treatment no lessfavourable than the treatment which it accords in likecircumstances to its own investors or to investors of a
non-Contracting Party with respect to access to the courtsof justice and administrative tribunals and agencies in all
degrees of jurisdiction, both in pursuit and in defence ofsuch investors’ rights.
Article 7
Prohibition of Performance Requirements
1.
Neither Contracting Party shall impose or enforce on
an investor of the other Contracting Party, as a condition
for investment activities in its Area, export requirements,
export-import balancing requirements or requirements
regarding the amount of foreign exchange inflows associatedwith investments of the investor, except in accordance withapplicable regional and international laws and obligations.
2.
For the purposes of this Article, “applicable regionallaws and obligations” means the laws and obligations
applied by virtue of membership to a customs, economic ormonetary union, a common market or a free trade area.
Article 8
Transparency
1.
Each Contracting Party shall promptly publish, orotherwise make publicly available, the laws, regulations,administrative procedures and administrative rulings andjudicial decisions of general application as well asinternational agreements which pertain to or affect theimplementation and operation of this Agreement.

－7－

2.
Each Contracting Party shall, upon request by theother Contracting Party, promptly respond to specificquestions and provide that other Contracting Party withinformation on matters set out in paragraph 1.
3.
Paragraphs 1 and 2 shall not be construed so as tooblige either Contracting Party to disclose confidential
information, the disclosure of which would impede law
enforcement or otherwise be contrary to the public
interest, or which would prejudice privacy or legitimate
commercial interests.
Article 9
Entry, Sojourn and Residence of Investors
Each Contracting Party shall, subject to its
applicable laws and regulations relating to entry, sojournand residence, permit a natural person having thenationality of the other Contracting Party who wishes toenter the former Contracting Party and to remain therein
for the purpose of business activities in connection withinvestments.
Article 10
Expropriation and Compensation
1.
Neither Contracting Party shall expropriate or
nationalise investments in its Area of investors of theother Contracting Party or take any measure equivalent to
expropriation or nationalisation (hereinafter referred toas “expropriation”) except:(a)for a public purpose;(b)in a non-discriminatory manner;(c)upon payment of prompt, adequate and effective
compensation pursuant to paragraphs 3, 4, and 5;
and

(d)

in accordance with due process of law.

2.
For the purposes of this Agreement, the determinationof whether a measure or a series of measures by aContracting Party have an effect equivalent to
expropriation requires a case-by-case, fact-based inquiry,
and evidence that includes:

－8－

(a)

permanent and complete or near complete
deprivation of the value of investment;(b)permanent and complete or near complete
deprivation of the investor’s right of management
and control over the investment; or(c)an appropriation of the investment by theContracting Party which results in transfer ofthe complete or near complete value of thatinvestment to that Contracting Party, to anagency of that Contracting Party or to a third
party.

3.
The compensation shall be equivalent to the fairmarket value of the expropriated investments at the time
when the expropriation was publicly announced or when the
expropriation occurred, whichever is the earlier. The fairmarket value shall not reflect any change in value
occurring because the expropriation had become publicly
known earlier.
4.
The compensation shall be paid without delay and shall
include interest at a commercially reasonable rate, taking
into account the length of time until the time of payment.
It shall be effectively realisable and freely transferable
and shall be freely convertible into the currency of theContracting Party of the investors concerned, and into
freely usable currency, at the market exchange rate
prevailing on the date of expropriation.
5.
Without prejudice to the provisions of Article 15, theinvestors affected by expropriation shall have a right ofaccess to the courts of justice or administrative tribunals
or agencies of the Contracting Party making the
expropriation to seek a prompt review of the investors’
case and the amount of compensation in accordance with theprinciples set out in this Article.
6.
This Article shall not apply to the issuance ofcompulsory licenses granted in relation to intellectual
property rights, or to the revocation, limitation or
creation of intellectual property rights, to the extent
that such issuance, revocation, limitation or creation isconsistent with applicable international agreements on
intellectual property to which both Contracting Parties are
parties.

－9－Article 11Compensation for Losses or Damages
1.
Each Contracting Party shall accord to investors of
the other Contracting Party that have suffered loss ordamage relating to their investments in the Area of theformer Contracting Party due to armed conflict or a stateof emergency such as revolution, insurrection, civil
disturbance or any other similar event in the Area of thatformer Contracting Party, treatment, as regards
restitution, indemnification, compensation or any othersettlement, that is no less favourable than that which it
accords to its own investors or to investors of a nonContracting Party, whichever is more favourable to theinvestors of the other Contracting Party.
2.
Any payment as a means of settlement referred to inparagraph 1 shall be effectively realisable, freelytransferable and freely convertible at the market exchange
rate into the currency of the Contracting Party of theinvestors concerned and into freely usable currency.
Article 12
Subrogation
1.
If a Contracting Party or its designated agency makes
a payment to any investor of that Contracting Party under
an indemnity, guarantee or insurance contract, pertaining
to an investment of such investor in the Area of the other
Contracting Party, the latter Contracting Party shallrecognise the assignment to the former Contracting Party or
its designated agency of any right or claim of suchinvestor on account of which such payment is made and shallrecognise the right of the former Contracting Party or its
designated agency to exercise by virtue of subrogation any
such right or claim to the same extent as the originalright or claim of the investor.
2.
As regards payments to be made to the former
Contracting Party or its designated agency by virtue of theassignment of right or claim as provided for in paragraph 1
and the transfer of such payment, the provisions ofArticles 10 and 11 shall apply mutatis mutandis.
Article 13
Transfers
1.
Each Contracting Party shall ensure that all transfers
relating to investments in its Area of an investor of theother Contracting Party may be made freely into and out of
its Area without delay. Such transfers shall include, inparticular, though not exclusively:

－10－

(a)

the initial capital and additional amounts tomaintain or increase investments;(b)

profits, interest, capital gains, dividends,
royalties, fees and other current incomes
accruing from investments;(c)payments made under a contract including loan
payments in connection with investments;(d)proceeds of the total or partial sale or
liquidation of investments;(e)earnings and remuneration of personnel from theother Contracting Party engaged in activities inconnection with investments in the Area of theformer Contracting Party;(f)payments made in accordance with Articles 10, 11
and 12; and(g)payments arising out of the settlement of adispute under Article 15.

2.
Each Contracting Party shall further ensure that thetransfers provided for in paragraph 1 may be made without
delay in freely usable currency at the market exchange rate
prevailing on the date of the transfer.
3.
Notwithstanding paragraphs 1 and 2, a Contracting
Party may delay or prevent a transfer through theequitable, non-discriminatory and good-faith application ofits laws and regulations relating to:(a)bankruptcy, insolvency or the protection of therights of creditors;(b)issuing, trading or dealing in securities;(c)criminal or penal offences;(d)ensuring compliance with orders or judgments in
adjudicatory proceedings;(e)financial reporting or record keeping oftransfers to assist law enforcement or financial
regulatory authorities; or(f)ensuring compliance with payment of taxes.

－11－Article 14
Settlement of Disputes
between the Contracting Parties
1.
Disputes between the Contracting Parties concerning
the interpretation and application of this Agreement shall,
as far as possible, be settled by negotiations throughdiplomatic channels.
2.
If the dispute referred to in paragraph 1 cannot thus
be settled within six (6) months following the date on
which either Contracting Party requested the negotiationsas provided for in paragraph 1, it shall at the request ofeither Contracting Party be submitted to an Arbitral
Tribunal.
3.
The Arbitral Tribunal referred to in paragraph 2 shallbe constituted for each individual case in the following
way. Within two (2) months from the date of the receipt of
the request for arbitration, each Contracting Party shallappoint one member of the Arbitral Tribunal. Those two
members shall then select a national of a third State who
on approval by the two Contracting Parties shall be
appointed Chairperson of the Arbitral Tribunal. The
Chairperson shall be appointed within four (4) months fromthe date when the Contracting Party which was later toappoint its member has notified the other Contracting Partyof the appointment.
4.
If the necessary appointments have not been madewithin the periods specified in paragraph 3, either
Contracting Party may, in the absence of any otheragreement, invite the Secretary-General of the Permanent
Court of Arbitration at The Hague to make the appointments.
5.
The Arbitral Tribunal shall reach its decision by amajority of votes. The decisions of the Arbitral Tribunal
shall be final and binding on both Contracting Parties.
Each Contracting Party shall bear the costs of its own
member and of its representation in the arbitralproceedings. Both Contracting Parties shall assume an
equal share of the costs of the Chairperson, as well as anyother costs. The Arbitral Tribunal may make a different
decision regarding the sharing of the costs. In all otherrespects, the Arbitral Tribunal shall determine its own
rules of procedure.
6.
Issues subject to dispute referred to in paragraph 1
shall be decided in accordance with the provisions of thisAgreement and the generally recognised principles ofinternational law.

－12－

Article 15
Settlement of Investment Disputes
between a Contracting Party and an Investorof the Other Contracting Party
1.
For the purposes of this Article, “investment dispute”
is a dispute between a Contracting Party and an investor of
the other Contracting Party that has incurred loss ordamage by reason of, or arising out of, an alleged breachof any obligation of the former Contracting Party under
this Agreement with respect to that investor of the other
Contracting Party or its investments in the Area of theformer Contracting Party.
2.
Subject to paragraph 8, nothing in this Article shallbe construed so as to prevent an investor who is a party to
an investment dispute (hereinafter referred to in this
Article as “disputing investor”) from seeking
administrative or judicial settlement within the Area of
the Contracting Party that is a party to the investment
dispute (hereinafter referred to in this Article as“disputing Party”).
3.
Any investment dispute shall, as far as possible, besettled amicably through consultations between thedisputing investor and the disputing Party (hereinafterreferred to in this Article as “the disputing parties”).
4.
The investment dispute may, at the choice of the
disputing investor, be submitted to:(a)a competent court or administrative tribunal ofthe disputing Party; or(b)an arbitration in accordance with:(i)the Convention on the Settlement of
Investment Disputes between States andNationals of Other States, done at
Washington, March 18, 1965 (hereinafterreferred to in this Article as the “ICSID
Convention”), if both Contracting Parties
are parties to the ICSID Convention;(ii)

the Additional Facility Rules of theInternational Centre for Settlement of
Investment Disputes, if either, but notboth, Contracting Party is a party to the
ICSID Convention;(iii)

the Arbitration Rules of the United Nations
Commission on International Trade Law; or

－13－

(iv)

any other arbitration rules, if agreed withthe disputing Party

provided that, for the purposes of subparagraph (b), theinvestment dispute cannot be settled through theconsultation referred to in paragraph 3 within six (6)months from the date of the submission of the written
request for consultation to the disputing Party.
5.
Each Contracting Party hereby consents to thesubmission of an investment dispute by a disputing investor
to arbitration set forth in paragraph 4 chosen by thedisputing investor.
6.
Notwithstanding paragraph 5, no investment disputes
may be submitted to arbitration set forth in paragraph 4,
if more than three (3) years have elapsed since the date on
which the disputing investor acquired or should have firstacquired, whichever is the earlier, the knowledge that the
disputing investor had incurred loss or damage referred toin paragraph 1.
7.
An arbitral tribunal established under paragraph 4
shall decide the issues in dispute in accordance with thisAgreement and applicable rules of international law.
8.
Once the disputing investor has submitted aninvestment dispute to the competent court or administrative
tribunal of the disputing Party or to one of thearbitrations set out in paragraph 4, the choice of the
disputing investor shall be final and the disputing
investor may not submit thereafter the same dispute to theother arbitrations set out in paragraph 4.
9.
Notwithstanding paragraphs 4 and 5, no investment
dispute may be submitted to the arbitration set out inparagraph 4 unless the disputing investor gives the
disputing Party written waiver of any right to initiate orcontinue before any competent court or administrative
tribunal of the disputing Party with respect to any measureof the disputing Party alleged to constitute a breachreferred to in paragraph 1.
10. The disputing Party shall deliver to the other
Contracting Party:(a)written notice of the investment disputesubmitted to the arbitration no later than thirty(30) days after the date on which the investment
dispute was submitted; and(b)copies of all pleadings filed in the arbitration.

－14－

11.
The Contracting Party which is not the disputing
Party may, upon written notice to the disputing parties,
make submissions to the arbitral tribunal on a question ofinterpretation of this Agreement.
12.

The arbitral tribunal may award only:(a)a judgment whether or not there has been a breachby the disputing Party of any obligation under
this Agreement with respect to the disputing
investor and its investments; and(b)

one or both of the following remedies, only ifthere has been such a breach:(i)monetary damages and applicable interest;
and

(ii)

restitution of property, in which case theaward shall provide that the disputing Party
may pay monetary damages and any applicableinterest, in lieu of restitution.

The arbitral tribunal may also award cost andattorney’s fees in accordance with this Agreement andapplicable arbitration rules.
13. The disputing Party may make available to the public
in a timely manner all documents, including an award,
submitted to, or issued by, an arbitral tribunal
established under paragraph 4, subject to redaction of:(a)confidential business information;(b)

information which is privileged or otherwise
protected from disclosure under the applicablelaws and regulations of either Contracting Party;
and

(c)

information which shall be withheld pursuant to
the relevant arbitration rules.

14. Unless the disputing parties agree otherwise, thearbitration shall be held in a country that is a party to
the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, done at New York, June 10, 1958
(hereinafter referred to in this Article as “the New York
Convention”).

－15－15. The award rendered by the arbitral tribunal shall befinal and binding upon the disputing parties. This award
shall be executed in accordance with the applicable laws
and regulations, as well as relevant international law
including the ICSID Convention and the New York Convention,
concerning the execution of award in force in the country
where such execution is sought.
Article 16
Security Exceptions
1.
Notwithstanding any other provisions in this Agreement
other than the provisions of Article 11, each Contracting
Party may take any measure:
(a)

(b)

which it considers necessary for the protectionof its essential security interests;(i)taken in time of war, or armed conflict, orother emergency in that Contracting Party or
in international relations; or(ii)relating to the implementation of national
policies or international agreements
respecting the non-proliferation of weapons;orin pursuance of its obligations under the United
Nations Charter for the maintenance ofinternational peace and security.

2.
In cases where a Contracting Party takes any measure,pursuant to paragraph 1 above, that does not conform withthe obligations of the provisions of this Agreement otherthan the provisions of Article 11, that Contracting Party
shall not use such measure as a means of avoiding its
obligations.
Article 17
Safeguard Measures
1.
A Contracting Party may adopt or maintain measures notconforming with its obligations under Article 3 relating tocross-border capital transactions and Article 13:(a)in the event of serious balance-of-payments andexternal financial difficulties or threat
thereof; or

－16－

(b)

2.

in cases where, in exceptional circumstances,
movements of capital cause or threaten to cause
serious difficulties for macroeconomic
management, in particular, monetary and exchange
rate policies.

Measures referred to in paragraph 1:(a)shall be consistent with the Articles ofAgreement of the International Monetary Fund, solong as the Contracting Party taking the measures
is a party to the said Articles;(b)

shall not exceed those necessary to deal with thecircumstances set out in paragraph 1 above;(c)

shall be temporary and shall be eliminated assoon as conditions permit;(d)shall be promptly notified to the other
Contracting Party; and(e)shall avoid unnecessary damages to thecommercial, economic and financial interests of
the other Contracting Party.

3.
Nothing in this Agreement shall be regarded asaltering the rights enjoyed and obligations undertaken by
a Contracting Party as a party to the Articles of Agreementof the International Monetary Fund.
Article 18
Prudential Measures
1.
Notwithstanding any other provisions of thisAgreement, a Contracting Party shall not be prevented
from taking measures relating to financial services forprudential reasons, including measures for the protectionof investors, depositors, policy holders or persons towhom a fiduciary duty is owed by an enterprise supplying
financial services, or to ensure the integrity andstability of its financial system.
2.
Where the measures taken by a Contracting Party
pursuant to paragraph 1 do not conform with this Agreement,
they shall not be used as a means of avoiding theobligations of the Contracting Party under this Agreement.

－17－Article 19Intellectual Property Rights
1.
The Contracting Parties shall, in accordance with
their respective applicable laws and regulations, grant andensure the adequate and effective protection of
intellectual property rights, and promote efficiency andtransparency in the administration of intellectual property
protection system. For this purpose, the Contracting
Parties shall promptly consult with each other at therequest of either Contracting Party. Depending on the
results of the consultation, each Contracting Party shall,in accordance with its applicable laws and regulations,take appropriate measures to remove the factors which arerecognised as having adverse effects to the investments ofinvestors of the other Contracting Party.
2.
Nothing in this Agreement shall affect the rights andobligations of the Contracting Parties under multilateralagreements in respect of protection of intellectual
property rights to which the Contracting Parties are
parties.
Article 20
Taxation
1.
Nothing in this Agreement shall affect the rights andobligations of either Contracting Party under a convention
on avoidance of double taxation. In the event of any
inconsistency between this Agreement and any such
convention, that convention shall prevail to the extent of
the inconsistency.
2.
Articles 3, 4, and 7 shall not apply to taxation
measures.
Article 21
Consultations
The Contracting Parties shall, at the request ofeither Contracting Party, hold consultations for thefollowing purposes:(a)to discuss and review the implementation andoperation of this Agreement;(b)

to exchange information on and to discuss
investment-related matters within the scope of
this Agreement which relate to improvement ofinvestment environment; and

－18－

(c)

to discuss any other investment-related mattersconcerning this Agreement.

Such consultations shall be held between the competentauthorities of the Contracting Parties in a place and at atime agreed on by the Contracting Parties.
Article 22
Health, Safety and Environmental
Measures and Labour Standards
Each Contracting Party shall recognise the importanceof encouraging investments by investors of the other
Contracting Party or of a non-Contracting Party without
relaxing its health, safety or environmental measures orlowering its labour standards. To this effect eachContracting Party should not waive or otherwise derogate
from such measures or standards as an encouragement for theestablishment, acquisition or expansion of investments in
its Area by investors of the other Contracting Party or ofa non-Contracting Party.
Article 23
Denial of Benefits
1.
A Contracting Party may deny the benefits of thisAgreement to an investor of the other Contracting Party
that is an enterprise of the other Contracting Party and to
its investments if the enterprise is owned or controlled byan investor of a non-Contracting Party and the denying
Contracting Party:(a)does not maintain diplomatic relations with the
non-Contracting Party; or(b)adopts or maintains measures with respect to the
non-Contracting Party that prohibit transactions
with the enterprise or that would be violated or
circumvented if the benefits of this Agreement
were accorded to the enterprise or to its
investments.

2.
Subject to prior notification and consultation, aContracting Party may deny the benefits of this Agreement
to an investor of the other Contracting Party that is anenterprise of the other Contracting Party and to its
investments if the enterprise is owned or controlled by aninvestor of a non-Contracting Party and the enterprise has
no substantial business activities in the Area of the other
Contracting Party.

－19－

Article 24
Review
Upon the request of either Contracting Party, theContracting Parties shall undertake a review of thisAgreement with a view to further promoting investment
between the Contracting Parties.
Article 25
Headings
The headings of the Articles of this Agreement are
inserted for convenience of reference only and shall notaffect the interpretation of this Agreement.
Article 26
Final Provisions
1.
The Contracting Parties shall notify each other of thecompletion of their respective internal legal procedures
required for the entry into force of this Agreement. This
Agreement shall enter into force on the thirtieth day after
the date of the receipt of the latter notification. It
shall remain in force for a period of ten (10) years after
its entry into force and shall continue in force unlessterminated as provided for in paragraph 3.
2.
This Agreement shall also apply to all investments ofinvestors of either Contracting Party acquired in the Areaof the other Contracting Party in accordance with theapplicable laws and regulations of that other Contracting
Party prior to the entry into force of this Agreement.
3.
A Contracting Party may, by giving one (1) year’s
advance notice in writing to the other Contracting Party,
terminate this Agreement at the end of the initial ten (10)year period or at any time thereafter.
4.
In respect of investments acquired prior to the dateof termination of this Agreement, the provisions of thisAgreement shall continue to be effective for a period often (10) years from the date of termination of thisAgreement.
5.
This Agreement shall not apply to claims arising outof events which occurred prior to its entry into force.

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IN WITNESS WHEREOF, the undersigned, being duly
authorised by their respective Governments, have signed
this Agreement.
DONE in duplicate at Nairobi, on this twenty-eighth
day of August, 2016 in the Japanese and English languages,
all the two texts being equally authentic.

FOR THE GOVERNMENT
OF JAPAN:

FOR THE GOVERNMENTOF THE REPUBLIC OF KENYA:Henry Rotich

岸田文雄

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