U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

79–118

" ! SENATE 106TH CONGRESS

2d Session

TREATY DOC.

2000

106–42

INVESTMENT TREATY WITH LITHUANIA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES

OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF

LITHUANIA FOR THE ENCOURAGEMENT AND RECIPROCAL PROTECTION OF INVESTMENT, WITH ANNEX AND PROTOCOL,

SIGNED AT WASHINGTON ON JANUARY 14, 1998

SEPTEMBER 5, 2000.—Treaty was read the first time, and together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, September 5, 2000.

To The Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Treaty Between the Government of the United States of America and the Government of the

Republic of Lithuania for the encouragement and Reciprocal Protection of Investment, with Annex and Protocol, signed at Washington on January 14, 1998. I transmit also, for the information of

the Senate, the report of the Department of State with respect to

this Treaty.

The bilateral investment treaty (BIT) with Lithuania was the

third such treaty signed between the United States and Baltic region country. The Treaty will protect U.S. investment and assist

Lithuania in its efforts to develop its economy by creating conditions more favorable for U.S. private investment and thereby

strengthening the development of its private sector.

The Treaty furthers the objectives of U.S. policy toward international and domestic investment. A specific tenet of U.S. policy,

reflected in this Treaty, is that U.S. investment abroad and foreign

investment in the United States should receive national treatment.

Under this Treaty, the Parties also agree to customary international law standards for expropriation. The Treaty includes detailed provisions regarding the computation and payment of

prompt, adequate, and effective compensation for expropriation;

free transfer of funds related to investments; freedom of investments from specified performance requirements; fair, equitable,

and most-favored-nation treatment; and the investor’s freedom to

choose to resolve disputes with the host government through international arbitration.

I recommend that the Senate consider this Treaty as soon as possible, and give its advice and consent to ratification of the Treaty

at an early date.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, August 9, 2000.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty Between the Government of the United States of America and the

Government of the Republic of Lithuania for the Encouragement

and Reciprocal Protection of Investment, with Annex and Protocol,

signed at Washington on January 14, 1998. I recommend that this

Treaty, with Annex and Protocol, be transmitted to the Senate for

its advice and consent to ratification.

The bilateral investment treaty (BIT) with Lithuania was the

third such treaty signed between the United States and a Baltic

Region country. The Treaty is based on the view that an open investment policy contributes to economic growth. This Treaty will

assist Lithuania in its efforts to develop its economy by creating

conditions more favorable for U.S. private investment and thereby

strengthening the development of its private sector. It is U.S. policy, however, to advise potential treaty partners during BIT negotiations that conclusion of such a treaty does not necessarily result

in increases in private U.S. investment flows.

To date, 31 BITs are in force for the United States—with Albania, Argentina, Armenia, Bangladesh, Bulgaria, Cameroon, the Republic of the Congo, the Democratic Republic of the Congo (formerly Zaire), the Czech Republic, Ecuador, Egypt, Estonia, Georgia, Grenada, Jamaica, Kazakhstan, Kyrgyzstan, Latvia, Moldova,

Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovakia,

Sri Lanka, Trinidad & Tobago, Tunisia, Turkey, and Ukraine. In

addition to the Treaty with Lithuania, the United States has

signed, but not yet brought into force, BITs with Azerbaijan, Bahrain, Belarus, Bolivia, Croatia, El Salvador, Honduras, Jordan, Mozambique, Nicaragua, Russia, and Uzbekistan.

The Office of the United States Trade Representative and the

Department of State jointly led this BIT negotiation, with assistance from the Departments of Commerce and Treasury.

THE U.S.-LITHUANIA TREATY

The Treaty with Lithuania is based on the 1992 U.S. prototype

BIT and satisfies the U.S. principal objectives in bilateral investment treaty negotiations:

—All forms of U.S. investment in the territory of Lithuania are

covered.

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—Investments receive the better of national treatment or mostfavored-nation (MFN) treatment both while they are being established and thereafter, subject to certain specified exceptions.

—Specified performance requirements may not be imposed upon

or enforced against investments.

—Expropriation is permitted only in accordance with customary

international law standards.

—Parties are obligated to permit the transfer, in a freely usable

currency, of all funds related to an investment, subject to exceptions for specified purposes.

—Investment disputes with the host government may be brought

by investors, or by their investments, to binding international

arbitration as an alternative to domestic courts.

The U.S.-Lithuania Treaty differs from the 1992 prototype in

some respects. It eliminates Article VIII of the 1992 prototype text,

which had excluded from the dispute settlement provision of the

BIT those disputes arising under the export credit, guarantee or insurance programs of the Export-Import Bank, the Overseas Private

Investment Corporation, and other relevant government agencies.

Those agencies indicated prior to this negotiation that they saw no

need to maintain such a provision.

The U.S.-Lithuania Treaty also differs from the 1992 prototype

in that it includes provisions in Article I(1)(f) and (g) and Article

II(2) that clarify and extend the requirements of the Treaty with

respect to state enterprises, and in Article II(11) that clarify that

investors should receive the better of national or MFN treatment

with respect to activities associated with their investment.

These elements are further described in the following article-byarticle analysis of the provisions of the Treaty:

Title and Preamble

The Title and Preamble state the goals of the Treaty. Foremost

is the encouragement and protection of investment. Other goals include economic cooperation on investment issues; stimulation of

economic development; maximum effective utilization of economic

resources; promotion of respect for internationally-recognized worker rights; and development of bilateral trade and investment relations. While the Preamble does not impose binding obligations, its

statement of goals may assist in interpreting the Treaty and in defining the scope of Party-to-Party consultations pursuant to Article

V.

Article I (Definitions)

Article I defines terms used throughout the Treaty.

Investment

The Treaty’s definition of ‘‘investment’’ is broad, recognizing that

investment can take a wide variety of forms. Every kind of investment is specifically incorporated in the definition, which applies to

investment in the territory of one Party owned or controlled directly or indirectly by nationals or companies of the other Party.

Indirect ownership or control could be through other, intermediate

companies or persons, including those of third countries. Control is

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not specifically defined in the Treaty; ownership of over 50 percent

of the voting stock of a company would normally convey control,

but in many cases the requirement could be satisfied by less than

that proportion, or by other arrangements.

The Treaty provides an illustrative list of the forms an investment may take. These include both tangible and intangible property; interests in a company or its assets; ‘‘a claim to money or a

claim to performance having economic value, and associated with

an investment’’; intellectual property rights; any right conferred by

law or contract; and any licenses and permits pursuant to law. The

requirement that a ‘‘claim to money’’ be associated with an investment excludes claims arising solely from trade transactions, such

as a transaction involving a sale of goods across a border, from

being investments covered by the Treaty.

Paragraph 3 makes explicit that any alteration in the form in

which an asset is invested or reinvested will not affect its character

as an investment. For example, a change in the corporate form of

an investment will not deprive it of protection under the Treaty.

Company

The definition of ‘‘company’’ of a Party is broad, covering all

types of entities legally constituted or organized under applicable

laws and regulations of a Party, and includes a corporation, company, association, partnership, or other organization. The definition

explicitly covers not-for-profit entities, as well as entities that are

owned or controlled by the state.

The broad nature of the definitions of ‘‘investment’’ and ‘‘company’’ of a Party means that investments can be covered by the

Treaty even if ultimate control lies with non-Party nationals. A

Party may, however, deny the benefits of the Treaty in certain limited circumstances. Article I(2) preserves the right of each Party to

deny the benefits of the Treaty to a company controlled by nationals of a third country with which the denying Party does not have

normal economic relations, e.g., a country to which it is applying

economic sanctions. For example, at this time the United States

does not maintain normal economic relations with, among other

countries, Cuba and Libya.

Paragraph 2 also permits each Party to deny the benefits of the

Treaty to a company of the other Party if the company is controlled

by nationals of any third country and if the company has no substantial business activities in the territory of the other Party. Thus,

the United States could deny benefits to a company that is a subsidiary of a shell company organized under the laws of Lithuania

if controlled by nationals of a third country. However, this provision would not generally permit the United States to deny benefits

to a company of Lithuania that maintains its central administration or principal place of business in the territory of, or has a real

and continuous link with, Lithuania.

National

The Treaty defines ‘‘national’’ of a Party as a natural person who

is a national of the United States under its laws, or a citizen of

Lithuania under its laws. Under U.S. law, the term ‘‘national’’ is

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broader than the term ‘‘citizen.’’ For example, a native of American

Samoa is a national of the United States, but not a citizen.

Return

‘‘Return’’ is defined as ‘‘an amount derived from or associated

with an investment.’’ The Treaty provides a non-exclusive list of examples, including: profits; dividends; interest; capital gains; royalty

payments; management, technical assistance, or other fees; and returns in kind.

Associated Activities

The Treaty recognizes that the operation of an investment requires protections extending beyond the investment to numerous

related activities. The Treaty defines ‘‘associated activities’’ to include an illustrative list of such activities, including: operating a

business facility; borrowing money; acquiring, using, and disposing

of property; issuing stock; and purchasing foreign exchange for imports. Article II(11) lists additional activities included in the term

‘‘associated activities’’, all of which are covered by the obligation in

Article II(1) to provide the better of national or MFN treatment.

State Enterprise and Delegation

‘‘State enterprise’’ is defined as an enterprise owned, or controlled through ownership interests, by a Party. Purely regulatory

control over a company does not qualify it as a state enterprise.

‘‘Delegation’’ is defined to include a legislative grant and a government order, directive, or other act that transfers governmental

authority to a state enterprise or monopoly or authorizes a state

enterprise or monopoly to exercise such authority.

The definitions of ‘‘state enterprise’’ and ‘‘delegation’’ are included to clarify the scope of the obligations of Article II(2)(b),

which provides that any governmental authority delegated to a

state enterprise by a Party must be exercised in a manner consistent with the Party’s obligations under the Treaty.

Article II (Treatment)

Article II contains the Treaty’s major obligations with respect to

the treatment of investment.

Paragraph 1 generally ensures the better of national of MFN

treatment in both the entry and post-entry phases of investment

(national and MFN treatment). It thus prohibits, outside of exceptions listed in the Annex, ‘‘screening’’ on the basis of nationality

during the investment process, as well as nationality-based post-establishment measures. National treatment means treatment no

less favorable than that which a Party accords, in like situations,

to investments or associated activities in its territory of its own nationals or companies. MFN treatment means treatment no less favorable than that which a Party accords, in like situations, to investments or associated activities in its territory of nationals or

companies of a third country.

Paragraph 1 also states that each Party may adopt or maintain

exceptions to the national and MFN treatment standard with respect to the sectors or matters specified in the Annex. Further restrictive measures are permitted in each such sector or matter but

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are to be kept to a minimum. (The specific exceptions are discussed

in the section entitled ‘‘Annex’’ below.) In the Annex, Parties may

take exceptions only to the obligation to provide national and MFN

treatment; there are no sectoral exceptions to the rest of the Treaty’s obligations. Finally, any future exception adopted under this

provision does not apply to investment existing in that sector or

matter at the time the exception becomes effective.

Paragraph 2 requires each Party to ensure that any state enterprise that it maintains or establishes acts in a manner that is not

inconsistent with the party’s obligations under the Treaty wherever

the enterprise exercises any regulatory, administrative, or other

governmental authority that the Party has delegated to it, such as

the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges. Paragraph 2 also

supports competitive equality for investments by requiring that a

Party ensure that its state enterprises accord national and MFN

treatment in the sale of their goods or services in the Party’s territory.

Paragraph 3 sets out a minimum standard of treatment based on

standards found in customary international law. The obligations to

accord ‘‘fair and equitable treatment’’ and ‘‘full protection and security’’ are explicitly cited. The general reference to international law

also implicitly incorporates other fundamental rules of customary

international law regarding the treatment of foreign investment.

However, this provision does not incorporate obligations based on

other international agreements.

In paragraph 3(b), the Parties agree not to in any way impair by

arbitrary or discriminatory measures the management, operation,

maintenance, use, enjoyment, acquisition, expansion, or disposal of

investments.

In paragraph 3(c), each Party pledges to observe any obligation

it may have entered into with regard to investments. Thus, in dispute settlement under Articles VI or VII, a Party would be foreclosed from arguing, on the basis of sovereignty, that it may unilaterally ignore its obligations to such investments.

Paragraph 4 requires each Party to allow, subject to its laws relating to the entry and sojourn of aliens, the entry into its territory

of the other Party’s nationals for certain purposes related to an investment and involving the commitment of a ‘‘substantial amount

of capital or other resources.’’ This paragraph serves to render nationals of Lithuania eligible for treaty-investor visas under U.S. immigration law. It also affords similar treatment for U.S. nationals

entering Lithuania. The requirement to commit a ‘‘substantial

amount of capital or other resources’’ is intended to prevent abuse

of treaty-investor status; it parallels the requirements of U.S. immigration law.

Paragraph 5 requires that each Party allow companies that are

investments to engage top managerial personnel of their choice, regardless of nationality. This provision does not require that such

personnel be granted entry into a Party’s territory. Such persons

must independently qualify for an appropriate visa for entry into

the territory of the other Party. Nor does this provision create an

exception to U.S. equal employment opportunity laws.

X

Paragraph 6 prohibits either Party from imposing specified performance requirements as a condition for the establishment, expansion, or maintenance of investments. Prohibited performance requirements are those which require or enforce commitments to export goods produced, or which specify that goods or services must

be purchased locally, or which impose any other similar requirements. Such performance requirements are major burdens on investors and impair their competitiveness.

Paragraph 7 requires that each Party provide effective means of

asserting claims and enforcing rights with respect to investments,

investment agreements, and investment authorizations.

Paragraph 8 ensures the transparency of each Party’s regulation

of investments.

Paragraph 9 recognizes that under the U.S. federal system,

States of the United States may, in some instances, treat out-ofState residents and corporations in a different manner than they

treat in-State residents and corporations. The Treaty provides that

the national treatment commitment, with respect to the States,

means treatment no less favorable than that provided by a State

to U.S. out-of-State residents and corporations. Article XI makes

clear that the obligations of the Treaty are applicable to all political and administrative subdivisions of the Parties, such as provincial, State, and local governments.

Paragraph 10 limits the Article’s MFN obligation by providing

that it will not apply to advantages accorded by either Party to nationals or companies of third countries by virtue of a Party’s membership in a free trade area or customs union or a future (i.e., after

the Treaty was signed) multilateral agreement under the framework of the General Agreement on Tariffs and Trade (GATT).

Paragraph 11 provides an additional illustrative list of ‘‘associated activities’’ entitled to national and MFN treatment under Article II(1).

Article III (Expropriation)

Article III incorporates into the Treaty customary international

law standards for expropriation. Article III also includes detailed

provisions regarding the computation and payment of prompt, adequate, and effective compensation.

Paragraph 1 describes the obligations of the Parties with respect

to expropriation and nationalization of an investment. These obligations apply to both direct expropriation and indirect expropriation through measures ‘‘tantamount to expropriation or nationalization’’ and thus apply to ‘‘creeping expropriations’’—a series of measures that effectively amounts to an expropriation of an investment

without taking title.

Paragraph 1 further bars all expropriations or nationalizations

except those that are for a public purpose; carried out in a non-discriminatory manner; in accordance with due process of law; in accordance with the general principles of treatment provided in Article II(3); and subject to ‘‘prompt, adequate, and effective compensation.’’

The balance of paragraph 1 more fully describes the meaning of

‘‘prompt, adequate, and effective compensation.’’ The guiding principle is that the investor should be made whole.

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Paragraph 2 entitles an investor claiming that an expropriation

has occurred to prompt judicial or administrative review of the

claim in the host Party, including a determination of whether the

expropriation and any compensation conform to the principles of

international law.

Paragraph 3 entitles investments covered by the Treaty to national and MFN treatment with respect to any measure relating to

losses suffered in a Party’s territory owing to war or other armed

conflict, civil disturbances, or similar events.

Article IV (Transfers)

Article IV protects investors from certain government exchange

controls that limit current and capital account transfers, as well as

limits on inward transfers such as those imposed by screening authorities.

In paragraph 1, each Party agrees to ‘‘permit all transfers related

to an investment to be made freely and without delay into and out

of its territory.’’ Paragraph 1 also provides a list of transfers that

must be allowed. The list is non-exclusive, and is intended to protect flows to both affiliated and non-affiliated entities.

Paragraph 2 provides that transfers are to be made in a ‘‘freely

usable currency’’ at the prevailing market rate of exchange on the

date of transfer with respect to spot transactions in the currency

to be transferred. ‘‘Freely usable’’ is a term used by the International Monetary Fund; at present there are five ‘‘freely usable’’

currencies: the U.S. dollar, Japanese yen, German mark, French

franc, and British pound sterling.

Paragraph 3 recognizes that, notwithstanding the obligations of

paragraphs 1 and 2, a Party may maintain certain laws or obligations that could affect transfers with respect to investments. It provides that the Parties may require reports of currency transfers

and impose income taxes by such means as a withholding tax on

dividends. It also recognizes that the Parties may protect the rights

of creditors and ensure the satisfaction of judgments in adjudicatory proceedings through the equitable, nondiscriminatory, and

good faith application of their laws.

Article V (State-to-State Consultations)

Article V provides for prompt consultation between the Parties,

at either Party’s request, to resolve any disputes in connection with

the Treaty, or to discuss any matter relating to the interpretation

or application of the Treaty.

Article VI (Settlement of Disputes Between One Party and a National or Company of the Other Party)

Article VI sets forth several means by which disputes brought

against a Party by an investor (specifically, a national or company

of the other Party) may be resolved.

Article VI procedures apply to an ‘‘investment dispute,’’ which is

any dispute arising out of or relating to an investment agreement,

an investment authorization granted by the Party’s foreign investment authority, or an alleged breach of rights conferred or created

by the Treaty with respect to an investment.

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Article VI(2) provides that when a dispute arises the disputants

should initially seek to resolve the dispute by consultation and negotiation. In the event that an investment dispute cannot be settled

amicably, paragraph 2 gives an investor an exclusive choice among

three options to settle the dispute. These three options are: (1) submitting the dispute to the courts or administrative tribunals of the

Party that is a party to the dispute; (2) invoking dispute-resolution

procedures previously agreed upon by the national or company and

the host country government; or (3) invoking the dispute-resolution

mechanisms identified in paragraph 3.

Under paragraph 3(a), if the investor has not submitted the dispute to a court or administrative tribunal or invoked a dispute resolution procedure previously agreed upon under the procedures in

paragraph 2, and 6 months have elapsed from the date the dispute

arose, the investor may chose to consent to binding arbitration of

the investment dispute. The investor may choose among the International Centre for Settlement of Investment Disputes (ICSID)

(Convention Arbitration), the Additional Facility of ICSID (if Convention arbitration is not available), ad hoc arbitration using the

Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), or any other arbitral institution

or rules agreed upon by both parties to the dispute.

Paragraph 4 constitutes each Party’s consent to the submission

of investment disputes to binding arbitration in accordance with

the choice of the investor from among those permitted under the

Treaty.

Paragraph 5 provides that any non-ICSID Convention arbitration

shall take place in a country that is a party to the United Nations

Convention on the Recognition and Enforcement of Arbitral

Awards. This provision facilitates enforcement of arbitral awards.

In addition, in paragraph 6, each Party commits to enforcing arbitral awards rendered pursuant to this Article. The Federal Arbitration Act (9 U.S.C. 1 et seq.) satisfies the requirement for the enforcement of non-ICSID Convention awards in the United States.

The Convention on the Settlement of Investment Disputes Act of

1966 (22 U.S.C. 1650–1650a) provides for the enforcement of ICSID

Convention awards.

Paragraph 7 ensures that a Party may not assert as a defense,

or for any other reason, that the investor involved in the investment dispute has received or will receive reimbursement for the

same damages under an insurance or guarantee contract.

Paragraph 8 is included in the Treaty to ensure that ICSID arbitration will be available for investors making investments in the

form of companies created under the laws of the Party with which

there is a dispute.

Article VII (Settlement of Disputes Between the Parties)

Article VII provides for binding arbitration of disputes between

the United States and Lithuania concerning the interpretation or

application of the Treaty that are not resolved through consultations or other diplomatic channels. The article specifies various

procedural aspects of such arbitration proceedings, including time

periods, selection of arbitrators, and distribution of arbitration

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costs between the parties. The article constitutes each Party’s prior

consent to such arbitration.

Article VIII (Preservation of Rights)

Article VIII clarifies that the Treaty does not derogate from any

obligation a Party might have to provide better treatment to the investment than is specified in the Treaty. Thus, the Treaty establishes a floor for the treatment of investments. An investment may

be entitled to more favorable treatment through domestic legislation, other international legal obligations, or a specific obligation

(e.g., to provide a tax holiday) assumed by a Party with respect to

that investment.

Article IX (Measures Not Precluded)

The first paragraph of Article IX reserves the right of a Party to

take measures for the maintenance of public order and the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, as well as those measures

it regards as necessary for the protection of its own essential security interests.

The maintenance of public order would include measures taken

pursuant to a Party’s police powers to ensure public health and

safety. International obligations with respect to maintenance or

restoration of peace or security would include, for example, obligations arising out of Chapter VII of the United Nations Charter.

Measures permitted by the provision the protection of a Party’s essential security interests would include security-related actions

taken in time of war of national emergency; actions not arising

from a state of war or national emergency must have a clear and

direct relationship to the essential security interests of the Party

involved. Measures to protect a Party’s essential security interests

are self-judging in nature, although each Party would expect the

provisions to be applied by the other in good faith.

The second paragraph permits a Party to prescribe special formalities in connection with investments, provided that these formalities do not impair the substance of any Treaty rights. Such formalities could include reporting requirements for investments or

for transfers of funds, or incorporation requirements.

Article X (Tax Policies)

Article X, excludes tax matters generally from the coverage of the

BIT, on the basis that tax matters should be dealt with in bilateral

tax treaties.

Paragraph 1 exhorts both countries to provide fair and equitable

treatment to investors with respect to tax policies.

In matters of taxation, paragraph 3 expressly applies the provisions of the Treaty, in particular its dispute settlement provisions,

only to tax matters concerning expropriation (Article III), transfers

(Article IV), or the observance and enforcement of terms of an investment agreement or authorization under Article VI(1)(a) or (b).

Paragraph 2 further provides that the Treaty applies to such tax

matters only to the extent that they are not subject to the dispute

settlement provisions of a convention for the avoidance of double

taxation between the two Parties, or have been raised under such

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settlement provisions and are not resolved within a reasonable period of time.

Article XI (Application to Political Subdivisions)

Article XI makes clear that the obligations of the Treaty are applicable to all political and administrative subdivisions of the Parties, such as provincial, State, and local governments.

Article XII (Entry into Force, Duration and Termination)

Paragraph 1 stipulates that the Treaty enters into force 30 days

after exchange of instruments of ratification. The Treaty remains

in force for a period of 10 years and continues in force thereafter

unless terminated by either Party as provided in paragraph 2.

Paragraph 2 permits a Party to terminate the Treaty at the end

of the initial 10 year period, or at any later time, by giving 1 year’s

written notice to the other Party. Paragraph 1 also provides that

the Treaty applies to investments existing at the time of entry into

force as well as to those established or acquired thereafter. The

Protocol to the Treaty confirms the Parties’ mutual understanding

that the provisions of the Treaty do not bind either Party in relation to any act or fact which took place before the Treaty came into

force or to any situation which ceased to exist before the date of

entry into force of the Treaty. This provision thus explicitly states

the standard under customary international law that applies in the

absence of the Parties’ express intent to apply the treaty retroactively.

Paragraph 3 provides that, if the Treaty is terminated, all investments covered by the Treaty on the date of termination (i.e., 1 year

after written notice) continue to be protected under the Treaty for

10 years from that date.

Paragraph 4 stipulates that the Annex and Protocol shall form

an integral part of the Treaty.

Annex

U.S. bilateral investment treaties allow for exceptions to national

and MFN treatment, where the Parties’ domestic regimes do not afford national and MFN treatment, or where treatment in certain

sectors or matters is negotiated in and governed by other agreements. Future derogations from the national treatment obligations

of the Treaty and generally permitted only in the sectors or matters listed in the Annex, pursuant to Article II(1), and must be

made on an MFN basis unless otherwise specified therein.

Under a number of statutes, many of which have a long historical background, the U.S. federal government or States may not

necessarily treat investments of nationals or companies of Lithuania as they do U.S. investments or investments from a third

country. Paragraphs 1 and 2 of the Annex list the sectors or matters subject to U.S. exceptions.

The U.S. exceptions from its national treatment obligation are:

air transportation; ocean and coastal shipping; banking, insurance,

securities, and other financial services; government grants; government insurance and loan programs; energy and power production;

custom house brokers; ownership of real property; ownership and

operation of broadcast or common carrier radio and television staVerDate 11-MAY-2000 11:27 Sep 06, 2000 Jkt 079118 PO 00000 Frm 00014 Fmt 7633 Sfmt 6602 E:\HR\OC\TD042.XXX pfrm08 PsN: TD042
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tions; ownership of shares in COMSAT; the provision of common

carrier telephone and telegraph services; the provision of submarine cable services; use of land and natural resources; mining on

the public domain; maritime services and maritime-related services; and primary dealership in United States government securities.

The U.S. exceptions from its MFN treatment obligation are: mining on the public domain; maritime services and maritime-related

services; one-way satellite transmissions of Direct-to-Home (DTH)

and Direct Broadcasting Satellites (DBS) television services and of

digital audio services; and primary dealership in United States government securities.

Paragraph 3 of the Annex lists Lithuania’s exceptions from its

national treatment obligation, which are: ownership of: land under

the objects belonging to Lithuania by the right of exclusive ownership; land of national parks, national reservations, reserves, protective areas of the territory of biosphere monitoring; agricultural

land; forestry land, with the exception of plots necessary for operation of buildings and facilities designated for economic activities

which have been provided for in approved planning documents;

land of recreational forests and forest shelter belts, rivers and

other water bodies exceeding one hectare in size as well as their

protective bank area; land of resorts and communal recreational

territories, separate communal recreational areas and objects; land

of state-protected natural carcass (geographic formations); monuments of nature, history, archaeology, and culture as well as the

surrounding protective areas; land of territories reserved, according

to design projects, under communal roads and engineering service

lines; objects of infrastructure of communal use in towns or other

localities, and for other common needs of the community; land

under public roads, railway lines, airports, sea and river ports,

main pipelines and other engineering service lines of communal use

as well as land necessary for their operation; land allotted, in accordance with the procedure established by law, under the free

trade (economic) zones territory; land of protected territories where

deposits of mineral resources and other natural resources have

been found, with the exception of land which, according to planning

documents, has been directly allotted for the construction of buildings and facilities required for the mining or use of said mineral

resources; land of the Curonian Spit, the fifteen-kilometer wide

strip of coastal land of the Baltic Sea and the Curonian Lagoon,

with the exception of towns that are not resorts; land assigned to

the frontier; land of the territories assigned or reserved for the

needs of the national defense as well as territories where land acquisition restrictions are established by laws or Government decrees for safety reasons; production and sale of narcotic drugs and

psychotropic substances that are not used for legitimate medicinal

purposes; growing, reproduction, and sale of cultures containing

narcotic drugs or psychotropic substances that are not used for legitimate medicinal purposes; and organization of lotteries.

Lithuania did not take any exceptions from its MFN treatment

obligation.

The listing of a sector or matter in the Annex does not necessarily signify that domestic laws have entirely reserved it for naVerDate 11-MAY-2000 11:27 Sep 06, 2000 Jkt 079118 PO 00000 Frm 00015 Fmt 7633 Sfmt 6602 E:\HR\OC\TD042.XXX pfrm08 PsN: TD042
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tionals. And, pursuant to Article II(1), any additional restrictions

or limitations that a Party may adopt with respect to a listed sector

or matter do not apply to investment existing in that sector or matter at the time the exception becomes effective.

Finally, listing a sector or matter in the Annex exempts a Party

only from the obligation to accord national or MFN treatment. Both

Parties are obligated to accord to investments in all sectors—even

those listed in the Annex—all other rights conferred by the Treaty.

Protocol

As described under Article XII(1), the Protocol states that the

Treaty does not apply retroactively. This clarification was added to

the Treaty at the request of Lithuania.

The other U.S. Government agencies that participated in negotiating the Treaty join me in recommending that it be transmitted

to the Senate at an early date.

Respectfully submitted,

MADELEINE ALBRIGHT.

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