U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–118

" SENATE ! 104TH CONGRESS

1st Session

TREATY DOC.

1995

104–13

INVESTMENT TREATY WITH GEORGIA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED

STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC

OF GEORGIA CONCERNING THE ENCOURAGEMENT AND RECIPROCAL PROTECTION OF INVESTMENT, WITH ANNEX SIGNED AT

WASHINGTON ON MARCH 7, 1994

JULY 10, 1995.—Treaty was read for 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, July 10, 1995.

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 Georgia Concerning the Encouragement and Reciprocal

Protection of Investment, with Annex, signed at Washington on

March 7, 1994. 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 Georgia was the

eighth such treaty between the United States and a newly independent state of the former Soviet Union. The Treaty is designed

to protect U.S. investment and assist the Republic of Georgia in its

efforts to develop its economy by creating conditions more favorable

for U.S. private investment and thus strengthen the development

of its private sector.

The Treaty is fully consistent with 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 international law

standards for expropriation and compensation for expropriation;

free transfer of funds related to investments; freedom of investments from performance requirements; fair, equitable, and most-favored-nation treatment; and the investor of investment’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,

with Annex, at an early date.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, June 22, 1995.

The President,

The White House.

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

Government of the Republic of Georgia Concerning the Encouragement and Reciprocal Protection of Investment signed at Washington on March 7, 1994. I recommend that this Treaty be transmitted

to the Senate for its advice and consent to ratification.

The bilateral investment treaty (BIT) with Georgia was the

eighth such treaty between the United States and a newly independent state of the former Soviet Union. The United States had

previously concluded BITs with Russia, Armenia, Belarus,

Kazakhstan, Kyrgyzstan, Moldova and Ukraine; and has subsequently signed a treaty with Uzbekistan. The Treaty is based on

the view that an open investment policy contributes to economic

growth. This Treaty will assist the Republic of Georgia in its efforts

to develop its economy by creating conditions more favorable for

U.S. private investment and thus strengthen 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

doe not necessarily result in immediate increases in private U.S.

investment flows.

To date, twenty-one BITs are in force for the United States—

with Argentina, Bangladesh, Bulgaria, Cameroon, the Congo, the

Czech Republic, Egypt, Grenada, Kazakhstan, Kyrgyzstan,

Moldova, Morocco, Panama, Poland, Romania, Senegal, Slovakia,

Sri Lanka, Tunisia, Turkey, and Zaire. In addition to the Treaty

with Georgia, the United States has signed, but not yet brought

into force, BITs with Albania, Armenia, Belarus, Ecuador, Estonia,

Haiti, Jamaica, Latvia, Mongolia, Russia, Trinidad and Tabago,

Ukraine, 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.-GEORGIA TREATY

The Treaty with the Government of the Republic of Georgia is

based on the 1994 U.S. prototype BIT and satisfies the United

States’ principal objectives in bilateral investment treaty negotiations:
Page

VI

—All forms of U.S. investment in the territory of the Republic of Georgia are covered.

—Covered investments receive the better of national treatment or most-favored-nation (MFN) treatment both on establishment and thereafter, subject to certain specified exceptions.

—Performance requirements may not be imposed upon or enforced against covered investments.

—Expropriation can occur only in accordance with international law standards: that is, for a public purpose; in a nondiscriminatory manner; in accordance with due process of law;

and upon payment of prompt, adequate, and effective compensation.

—The unrestricted transfer, in a freely usable currency, of

funds related to a covered investment is guaranteed.

—Investment disputes with the host government may be

brought by investors, or by their subsidiaries, to binding international arbitration as an alternative to domestic courts.

The U.S.-Georgia Treaty does not differ in any significant way

from the 1994 prototype. The following is an article-by-article 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; the stimulation of

economic development; higher living standards; promotion of respect for internationally-recognized worker rights; and maintenance of health, safety, and environmental measures. 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 consultation procedures pursuant to Article

VIII.

Article I (Definitions)

Article I defines terms used throughout the Treaty. In general,

the definitions are designed to be broad and inclusive in nature.

Company, Company of a Party

The definition of ‘‘company’’ is broad, covering all types of legal

entities constituted or organized under applicable law, and includes

corporations, trusts, partnerships, sole proprietorships, branches,

joint ventures, and associations. The definition explicitly covers

charitable and not-for-profit entities, as well as entities that are

owned or controlled by the state. ‘‘Company of a Party’’ is defined

as a company constituted or organized under the laws of that

Party.

National

The Treaty defines ‘‘national’’ as a natural person who is a national of a Party under its own laws. Under U.S. law, the term ‘‘national’’ is broader than the term ‘‘citizen.’’ For example, a native of

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

VII

Investment, Covered 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; moreover, it is

explicitly noted that investment may consist or take the form of

any of a number of interests, claims, and rights. Establishing a

subsidiary is a common way of making an investment. Other forms

that an investment might take include equity and debt interests in

a company; contractual rights; tangible, intangible, and intellectual

property; and rights conferred pursuant to law. Investment as defined by the Treaty generally excludes claims arising solely from

trade transactions, such as a sale of goods across a border that

does not otherwise involve an investment.

The Treaty defines ‘‘covered investment’’ as an investment of a

national or company of a Party in the territory of the other Party.

An investment of a national or company is one that the national

or company owns or controls, either directly or indirectly. Indirect

ownership or control could be through other, intermediate companies or persons, including those of third countries. Control is not

specifically defined in the Treaty; ownership of over fifty 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 broad nature of the definitions of ‘‘investment,’’ ‘‘company,’’

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 the

limited circumstances described in Article XII.

State Enterprise, Investment Authorization, Investment

Agreement

The Treaty defines ‘‘state enterprise’’ as a company owned, or

controlled through ownership interests, by a Party. Purely regulatory control over a company does not qualify it as a state enterprise.

The Treaty defines an ‘‘investment authorization’’ as an authorization granted by the foreign investment authority of a Party to

a covered investment or a national or company of the other Party.

There is currently no such foreign investment authority in the Republic of Georgia.

The Treaty defines an ‘‘investment agreement’’ as a written

agreement between the national authorities of a Party and a covered investment or a national or company of the other Party that

(1) grants rights with respect to natural resources or other assets

controlled by the national authorities and (2) the investment, national, or company relies upon in establishing or acquiring a covered investment. This definition thus excludes agreements with

subnational authorities (including U.S. States) as well as agreements arising from various types of regulatory activities of the national government, including, in the tax area, rulings, closing

agreements, and advance pricing agreements.
Page

VIII

ICSID Convention, Centre, UNCITRAL Arbitration Rules

The ‘‘ICSID Convention,’’ ‘‘Centre,’’ and ‘‘UNCITRAL Arbitration

Rules’’ are explicitly defined to make the text brief and clear.

Article II (Treatment of Investment)

Article II contains the Treaty’s major obligations with respect to the treatment of covered investments.

Paragraph 1 generally ensures the better of national or MFN treatment in both the entry and post-entry phases of investment.

It thus prohibits, outside of exceptions listed in the Annex, ‘‘screening’’ on the basis of nationally during the investment process, as

well as nationality-based post-establishment measures. For purposes of the Treaty, ‘‘national treatment’’ means treatment no less

favorable than that which a Party accords, in like situations, to investments in its territory of its own nationals or companies. For

purposes of the Treaty, ‘‘MFN treatment’’ means treatment no less

favorable than that which a Party accords, in like situations, to investments in its territory of nationals or companies of a third country. ‘‘National and MFN treatment’’ is defined as whichever of national treatment or MFN treatment is the most favorable. Paragraph 1 explicitly states that the national and MFN treatment obligation will extend to state enterprises in their sale of goods and

services.

Paragraph 2 states that the Parties may adopt or maintain ex- ceptions to the national and MFN treatment standard with respect

to the sectors or matters specified in the Annex. In principle, further restrictive measures are permitted in each sector. The careful

phrasing and narrow drafting of these exceptions is therefore important. (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, in adopting any exception under this provision, a

Party may not require the divestment of a preexisting covered investment.

Paragraph 2 also states that a Party is not required to extend to covered investments national or MFN treatment with respect to

procedures provided for in multilateral agreements concluded

under the auspices of the World Intellectual Property Organization

relating to the acquisition or maintenance of intellectual property

rights. This provision clarifies that certain procedural preferences

granted under existing conventions, such as the Patent Cooperation

Treaty, fall outside the BIT. This exception parallels the Uruguay

Round’s Trade-Related Aspects of Intellectual Property Rights

(TRIPS) agreement and the North American Free Trade Agreement

(NAFTA). This provision complements the more specific IPR-related provisions contained in the U.S.-Georgia Bilateral Trade Agreement.

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, as in the Parties’ obligation not to impair,

through unreasonable and discriminatory means, the management,

conduct, operation, and sale or other disposition of covered invest-
Page

IX

ments. The general reference to international law also implicitly incorporates other fundamental rules of international law: for example, that sovereignty may not be grounds for unilateral revocation

or amendment of a Party’s obligations to investors and investments

(especially contracts), and that an investor is entitled to have any

expropriation done in accordance with previous undertakings of a

Party.

Paragraph 4 requires that each Party provide effective means of

asserting claims and enforcing rights with respect to covered investments.

Paragraph 5 ensures the transparency of each Party’s regulation

of covered investments.

Article III (Expropriation)

Article III incorporates into the Treaty international law standards for expropriation and compensation.

Paragraph 1 describes the general rights of investors and obligations of the Parties with respect to expropriation and nationalization. These rights and obligations also apply to direct or indirect

measures ‘‘tantamount to expropriation or nationalization’’ and

thus apply to ‘‘creeping expropriations’’—a series of measures

which effectively amount to an expropriation of a covered investment without taking title.

Paragraph 1 further bars all expropriations or nationalization 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.’’

Paragraphs 2, 3, and 4 more fully describe the meaning of

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

Article IV (Compensation for Damages Due to War and Similar

Events)

Paragraph 1 entitles investments covered by the Treaty to the

better of national or 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. The unconditional obligation to pay compensation for such losses only

arises when the losses result from requisitioning or from destruction not required by the necessity of the situation.

Article V (Transfers)

Article V protects investors from certain government exchange

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

limits on inward transfers made by screening authorities and limits

on returns in kind.

In paragraph 1, each Party agrees to permit ‘‘transfers relating

to a covered 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.
Page

X

Paragraph 2 provides that each Party must permit transfers to

be made in a ‘‘freely usable currency’’ at the market rate of exchange prevailing on the date of transfer. ‘‘Freely usable’’ is a term

used by the International Monetary Fund; at present there are five

such ‘‘freely usable’’ currencies: the U.S. dollar, Japanese yen, German mark, French franc and British pound sterling.

In paragraph 3, each Party agrees to permit returns in kind to

be made where such returns have been authorized by an investment authorization or written agreement between a Party and a

covered investment.

Paragraph 4 recognizes that, notwithstanding the guarantees of

paragraphs 1 through 3, a Party may prevent a transfer through

the equitable, non-discriminatory and good faith enforcement of judicial orders and judgments, or application of laws relating to such

matters as bankruptcy, securities, or criminal or penal offenses.

Article VI (Performance Requirements)

Article VI prohibits either Party from mandating or enforcing

performance requirements in connection with a covered investment. The list of prohibited requirements includes the use of local

goods, the export of goods or services, the ‘‘balancing’’ of imports

and exports, the transfer of technology, or the conduct of research

in the host country. Such requirements are major burdens on investors and impair their competitiveness.

A Party may, however, impose conditions for receipt, or continued receipt, of an advantage—e.g., eligibility for programs maintained by the U.S. Export-Import Bank and other similar institutions.

Article VII (Entry, Sojourn and Employment of Aliens)

Paragraph 1 requires each Party to allow, subject to its immigration laws and regulations, the entry into its territory of the other

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

capital.’’ This paragraph serves to render nationals of Georgia eligible for treaty-investor visas under U.S. immigration law. It also

guarantees similar treatment for U.S. nationals entering the Republic of Georgia. The requirement to commit a ‘‘substantial

amount of capital’’ is intended to prevent abuse of treaty-investor

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

In addition, paragraph 1(b) prohibits labor certification requirements and numerical restrictions on investor-visas.

Paragraph 2 requires that each Party allow covered investments

to engage top managerial personnel of their choice, regardless of

nationality.

Article VIII (State-State Consultations)

Article VIII provides for prompt consultation between the Parties, at either Party’s request, on any matter relating to the interpretation of the Treaty or to the realization of the Treaty’s objectives. A Party may thus request consultations for any matter reasonably related to the encouragement or protection of covered investment, whether or not a Party is alleging a violation of the

Treaty.
Page

XI

Article IX (Settlement of Disputes Between One Party and a Na- tional or Company of the other Party)

Article IX sets forth several means by which disputes between an investor and a Party may be settled. Article IX procedures apply to an ‘‘investment dispute,’’ which covers any dispute arising out of or relating to an investment authorization, an investment agreement, or an alleged breach of

rights granted or recognized by the Treaty with respect to a covered investment.

Paragraph 2 gives a national or company an exclusive (with the exception in paragraph 3(b) concerning injunctive relief, explained

below) 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; 1

(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 provided for in

paragraph 3 of Article IX. Under paragraph 3(a), the investor can submit an investment dispute to binding arbitration three months after the dispute

arises, provided that the investor has not submitted the claim to

a court or administrative tribunal of the Party or invoked a dispute

resolution procedure previously agreed upon in an investment

agreement. 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 arbitration institution or rules

agreed upon by both parties to the dispute. Before or during such arbitral proceedings, however, paragraph 3(b) provides that a national or company many seek, without affecting its right to pursue arbitration under this Treaty, interim injunctive relief not involving the payment of damages from local

courts or administrative tribunals for the preservation of its rights

and interests. This paragraph does not alter the power of the arbitral tribunals to recommend or order interim measures they may

deem appropriate.

Paragraph 4 constitutes each Party’s consent to the submission of investment disputes to binding arbitration in accordance with

the choice of the national or company.

Paragraph 5 provides that any non-ICSID 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 expands the ability of investors to obtain 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 retirement for the enforcement of non-ICSID 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 awards.

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

or for any other reason, that the company or national involved in
Page

XII

the investment dispute has received or will receive reimbursement

for the same damages under an insurance or guarantee contract.

Paragraph 8 ensures that for any arbitration, including ICSID

Convention Arbitration, the nationality of a company in the host

country will be determined by ownership or control, rather than by

place of incorporation. This ensures that a claim may be brought

by an investor’s subsidiary in the host country.

Article X (Settlement of Disputes Between the Parties)

Article X provides for binding arbitration of disputes between the

United States and the Republic of Georgia that are not resolved

through consultations or other diplomatic channels. The article constitutes each Party’s prior consent to arbitration.

Article XI (Preservation of Rights)

Article XI clarifies that the Treaty does not derogate form any

obligation a Party might have to provide better treatment to the

covered investment than is specified in the Treaty. Thus, the Treaty establishes a floor for the treatment of covered investments. An

investor 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 investor.

Article XII (Denial of Benefits)

Article XII(a) preserves the right of each Party to deny the benefits of the Treaty to firms owned or controlled by nationals of a

non-Party 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 or Libya.

Article XII(b) permits each Party to deny the benefits of the

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

or controlled by non-Party nationals and if the company has no

substantial business activities in the Party where it is established.

Thus the United States could deny benefits to a company which is

a subsidiary of a shell company organized under the laws of the

Republic of Georgia but controlled by nationals of a third country.

However, this provision would not generally permit the United

States to deny benefits to an investment of the Republic of Georgia

that maintains its central administration or principal place of business in the territory of, or has a real and continuous link with, the

Republic of Georgia.

Article XIII (Taxation)

Article XIII excludes tax matters generally from the coverage of

the BIT, on the basis that tax matters should be dealt with in bilateral tax treaties. However, Article XIII does not preclude a national or company from bringing claims under Article IX that taxation provisions in an investment agreement or authorization have

been violated, or that tax matters resulted in, or constituted, an expropriation of a covered investment.
Page

XIII

Under paragraph 2, a national or company that asserts in a dispute that a tax matter involves expropriation may submit that dispute to arbitration pursuant to Article IX(3) only if (1) the investor

has first referred to the competent tax authorities of both Parties

the issue of whether the tax matter involves an expropriation, and

(2) the tax authorities have not both determined, within nine

months from the time of referral, that the matter does not involve

expropriation. The ‘‘competent tax authority’’ of the United States

is the Assistant Secretary of the Treasury for International Tax

Policy, who will make his determination only after consultation

with the Inter-Agency Staff Coordinating Group on Expropriations.

Article XIV (Measures Not Precluded)

The first paragraph of Article XIV reserves the right of a Party

to take measures for the fulfillment of its international obligations

with respect to international peace and security, as well as those

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

International obligations with respect to peace and security

would include, for example, obligations arising out of Chapter VII

of the United Nations Charter. Measures permitted by the provision on the protection of a Party’s essential security interests would

include security-related actions taken in time of war or 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. These provisions are common in international

investment agreements.

The second paragraph permits a Party to prescribe special formalities in connection with covered investments, provided that

these formalities do not impair the substance of any Treaty rights.

Such formalities could include reporting requirements for covered

investments or for transfers of funds, or incorporation requirements.

Article XV (Application to Political Subdivisions and State Enterprises of the Parties)

Paragraph 1(a) makes clear that the obligations of the Treaty are

applicable to all political subdivisions of the Parties, such as provincial, State and local governments.

Paragraph 1(b) 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.

Paragraph 2 extends a Party’s obligations under the Treaty to its

state enterprises in the exercise of any delegated authority. This

paragraph is designed to clarify that the exercise of governmental

authority by a state enterprise must be consistent with a Party’s

obligations under the Treaty.
Page

XIV

Article XVI (Entry Into Force, Duration, and Termination)

The Treaty enters into force thirty days after exchange of instru- ments of ratification and continues in force for a period of ten

years. From the date of its entry into force, the Treaty applies to

all activities of both Parties with respect to preexisting and newly

established investments alike. After this ten-year term, the Treaty

will continue in force unless terminated. If the Treaty is terminated, all investments that qualified as covered investments on the

date of termination (i.e., one year after written notice) continue to

be protected under the Treaty for ten years from that date as long

as these investments qualify as covered investments. Such coverage

would continue to extend fully to such an investment as it grew—

whether by reinvestment, expansion, or merger. A Party’s obligations to accord the right to establish or acquire investments would lapse immediately upon the date of termination

of the Treaty. Paragraph 4 stipulates that the Annex shall form an integral part of the Treaty.

Annex

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

and MFN treatment because the Parties’ domestic regimes may

provide for derogations from national and MFN treatment, and because treatment in certain sectors and matters is negotiated in and

governed by other agreements. Future derogations from the national treatment obligations of the Treaty are generally permitted

only in the sectors or matters listed in the Annex pursuant to Article II(2), and must be made on an MFN basis unless otherwise

specified therein.

Under a number of statutes, many of which have a long histori- cal background, the U.S. federal government or States may not necessarily treat investments of nationals or companies of Georgia as

they do U.S. investments or investments from a third country.

Paragraph 1 through 3 of the Annex list the sectors or matters affected by such statutes. The U.S. exceptions from its national treatment commitments

are: atomic energy; customhouse brokers; licenses for broadcast,

common carrier, or aeronautical radio stations; COMSAT; subsidies

or grants, including government supported loans, guarantees, and

insurance; state and local measures exempt from Article 1102 of

the North American Free Trade Agreement pursuant to Article

1108 thereof; and landing of submarine cables.

The United States excludes fisheries; air and maritime transport,

and related activities; and banking, insurance, securities, and other

financial services from its most-favored-nation and national treatment commitments.

Paragraph 3 of the Annex lists Georgia’s exceptions to national

treatment, which are: fisheries; air and maritime transport, and related activities; ownership of broadcast, common carrier, or aeronautical radio stations; communications satellites; government-supported loans, guarantees, and insurance; landing of submarine cables; and for three years from the date of entry into force of this

Treaty, banking, insurance, securities, and other financial services.

While Georgia has, and will maintain for up to three years after
Page

XV

the Treaty enters into force, national treatment exceptions in financial services, it has undertaken in the BIT to remove such barriers to U.S. investment after that time. These exceptions are

based on current Georgian law or regulations. The Republic of

Georgia has not reserved any sectoral exceptions to MFN treatment in the Annex.

Paragraph 4 of the Annex ensures that reciprocal national treatment is granted in all leasing of minerals or pipeline rights-of-way

on Government lands. In creating this positive right to reciprocal

national treatment, this provision affects the implementation of the

Mineral Lands Leasing Act (MLLA) and 10 U.S.C. § 7435, with respect to nationals and companies of the Republic of Georgia. The

Treaty provides for resort to binding international arbitration to resolve disputes, rather than denial of mineral rights and rights to

naval petroleum shares to investors of the other Party, as is the

current process under the statute. U.S. domestic remedies, would,

however, remain available for use in conjunction with the Treaty’s

provisions.

The MLLA and 10 U.S.C. § 7435 direct that if a foreign country

does not grant national treatment to U.S. investors in leases for

minerals on on-share federal lands, leases of land within the Naval

Petroleum and Oil Shale Reserves, and rights-of-way for oil or gas

pipelines across on-shore federal lands, investors from that country

may not be granted national treatment.

Georgia’s extension of national treatment in these sectors will

fully meet the objectives of the MLLA and 10 U.S.C. § 7435. Georgia was informed during negotiations that, were it to include this

sector in its list of treatment exemptions, the United States would

(consistent with the MLLA and 10 U.S.C. § 7435) exclude the leasing of minerals or pipeline rights-of-way on Government lands from

the national and MFN treatment obligations of this Treaty.

The listing of a sector does not necessarily signify that domestic

laws have entirely reserved it for nationals. And, pursuant to Article II(2)(c), any additional restrictions or limitations which a Party

may adopt with respect to listed sectors or matters may not compel

the divestiture of existing covered investments.

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 covered investments in all sectors—even those listed in the Annex—all the other rights conferred

by the Treaty.

The other U.S. Government agencies which negotiated the Treaty

join me in recommending that it be transmitted to the Senate at

an early date.

Respectfully submitted,

WARREN CHRISTOPHER.
(1)
2
3
4
5
6
7
8
9
10
11
12
13
14