4

The American Embassy to the Malini Ministry of Externa? Affuirs

f the United States of America presents its compli-
istry of External Affairs of the Republic of Malawi
and has the honor to refer to the Embassy’s Note No. 26 dated May 1,
1967 proposing that an Investment Guaranty Agreement he con-
cluded between the Government of Malawi and the Government of
the United States of America, and other conversations and communi-
cations on this subject between our two Governments.

The Embassy wishes to provide further explanation of paragraph 2
of the above mentioned note which provides that the provisions of
the Agreement shall apply only with respect to guaranteed projects
or activities approved by the Government of Malawi. The Emb
wishes to advise the Government of Malawi that the project approval
required in paragraph 2 of the proposed agreement will be under
procedures established by the Government of Malawi and the Gor-
ernment of Malawi can request the data it deems necessary before
giving its approval to a project.

The Embassy of the United States of America avails itself of this
opportunity to renew to the Ministry of External Affairs of the
Republic of Malawi the assurances of its highest. consideration.

MP J

Empassy of THE Unrrep States or AMERICA,
Blantyre. May 1, 1967.

The Malawi Ministry of External Affairs to the American Embassy

No, 82

The Ministry of External Affairs of the Republic of Malawi pre-
sents its compliments to the Embassy of the United States of America
and has the honour to refer to the Embassy's Note No. 26 of the 1st
May, 1967, which proposed that the Governments of Malawi and the
L jtea States should enter into an Investment Guaranty Agreement
in the terms set out therein, and to the Embassy’s Note No. 27 of the
1st May, 1967, wherein certain understandings relating to project
approval by the Government of Malawi under the proposed Invest-
ment Guaranty Agreement were enunciated.

The Ministry is pleased to state that the Investment Guaranty
Agreement as proposed in the aforementioned Note 26 of the 1st May,
1967, and as read with the aforementioned Note 27 of the Ist May,
1967, has been approved hy and is acceptable to the Government of
Malawi. The Ministry wishes to confirm that the Government of

TIAS 6334


3

tribunal shall decide by majority vote. Its decision shall be bind-
ing. Each of the Governments shall pay the expenses of its mem-
ber and its representation in the proceedings before the arbitral
tribunal; the expenses of the President and the other costs shall
be paid in equal parts by the two Governments. The arbitral
tribunal may adopt other regulations concerning the costs. In
all other matters, the arbitral tribunal shall regulate its own
procedures.

(b) Any claim, arising out of investments guaranteed in ac-
cordance with this Agreement, against either of the two Govern-
ments, which, in the opinion of the other, presents a question of
public international law shall, at the request of the Government
presenting the claim, be submitted to negotiations. If at the end
of three months following the request for negotiations the two
Governments have not resolved the claim by mutual agreement,
the claim, including the question of whether it presents a ques-
tion of public international law, shall be submitted for settlement
to an arbitral tribunal selected in accordance with paragraph (a)
above. The arbitral tribunal shall base its decision exclusively on
the applicable principles and rules of public international law.
Only the respective Governments may request the arbitral proce-
dure and participate in it.

7. This Agreement shall continue in force until six months from
the date of receipt of a note by which one Government informs
the other of an intent no longer to be a party to the Agreement.
In such event, the provisions of the Agreement with respect to
guaranties issued while the Agreement was in force shall remain
in force for the duration of those guaranties, in no case longer
than twenty years, after the denunciation of the Agreement.

8. This Agreement shall enter into force on the date of the note
by which the Host Government communicates to the Guarantee-
ing Government that the Agreement has been approved in con-
formity with the Host Government’s constitutional procedures.[1]

Upon receipt of a note from the Ministry of External Affairs indi-

cating that the foregoing provisions are acceptable to the Government
of Malawi, the Government of the United States of America will
consider that this note and the Ministry’s reply thereto constitute an
Agreement between the two Governments on this subject, the Agree-
ment to enter into force in accordance with paragraph 8 above.

The Embassy of the United States of America avails itself of this

opportunity to renew to the Ministry of External Affairs of the
Republic of Malawi the assurances of its highest consideration.

MPJ
Empassy oF THE UNITED Srates or AMERICA,
Blantyre, May 1, 1967.
2 July 21, 1967.
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a)

Malawi regards the aforementioned Note 26 as read with the afore-
mentioned Note 27, and this reply as an Agreement. between the
Governments of the United States and Malawi on the subject of
Investment Guaranties which, in accordance with paragraph 8 of this
Agreement, enters into force as of the date of this reply.

The Ministry of External Affairs of the Republic of Malawi avails
itself of this opportunity to renew to the Embassy of the United
States of America the assurance of its highest consideration.

[sean]

Buanxtyre.
21st July, 1967.

TIAS 6334

U.S. GOVERNMENT PRINTING OFFICE: 1967



TREATIES AND OTHER INTERNATIONAL ACTS SERIES 6334

INVESTMENT GUARANTIES

Agreement Between the
Unirep StaTEs OF AMERICA
and MaLawi

Effected by Exchange of Notes
Dated at Blantyre May 1 and
July 21, 1967



MALAWI

Investment Guaranties

Agreement effected by exchange of notes
Dated at Blantyre May 1 and July 21, 1967;
Entered into force July 21, 1967.

The American Embassy to the Malawi Ministry of External Affairs

No. 26

The Embassy of the United States of America presents its compli-
ments to the Ministry of External Affairs of the Republic of Malawi
and has the honor to refer to recent conversations and correspondence
between representatives of the Government of the United States of
America and the Government of Malawi relating to investments in
Malawi which further the development of the economic resources and
productive capacities of Malawi and to guaranties of such investments
by the Government of the United States of America. The Embassy
has the honor to confirm the following understandings reached as a
result of these conversations:

1. When nationals of the Government of the United States of
America [the Guaranteeing Government] propose to invest with
the assistance of guaranties issued pursuant to this Agreement
in a project or activity within the territorial jurisdiction of the
Government of Malawi [the Host Government], the two Govern-
ments shall, upon the request of either, consult. respecting the
nature of the project or activity and its contribution to economic
and social development in Malawi.

2. The procedures set forth in this Agreement shall apply only
with respect to guaranteed investments in projects or activities
approved by the Host. Government.

3. If the Guaranteeing Government makes payment to any
investor under a guaranty issued pursuant to the present Agree-
ment, the Host Government shall, subject to the provisions of the
following paragraph, recognize the transfer to the Guaranteeing
Government of any currency, credits, assets, or investment on
account of which payment under such guaranty is made as well
as the succession of the Guaranteeing Government to any right,

$4—-009—67 (1) TIAS 6334


2

title, claim, privilege. or cause of action existing, or which may
arise, in connection therewith.

4, To the extent that the laws of the Host Government partially
or wholly invalidate the acquisition of any interests in any prop-
erty within its national territory by the Guaranteeing Govern-
ment, the Host Government shall permit such investor and the
Guaranteeing Government to make appropriate arrangements
pursuant to which such interests are transferred to an entity per-
mitted to own such interests under the laws of the Host Govern-
ment. The Guaranteeing Government shall assert no greater
rights nor lesser obligations than those of the transferring in-
vestor under the laws of the Host Government with respect to
any assets transferred or succeeded to as contemplated in para-
graph 8. The Guaranteeing Government does, however, reserve
its rights to assert through the procedure provided in paragraph
6 a claim in its,sovereign capacity in the eventuality of a denial
of justice or other question of state responsibility as defined in
international law.

5. Amounts in the lawful currency of the Host Government
and credits thereof acquired by the Guaranteeing Government
under such guaranties shall be accorded treatment neither less
nor more favorable than that accorded to funds of nationals of
the Guaranteeing Government deriving from investment. activi-
ties like those in which the investor has been engaged, and such
amounts and credits shall be freely available to the Guaranteeing
r ) Government to meet its expenditures in the national territory of

the Host Government.

6. (a) Differences between the two Governments concerning the
interpretation of the provisions of this Agreement shall be settled,
insofar as possible. through negotiations between the two Govern-
ments. If such a difference cannot be resolved within a period of
three months following the request for such negotiations, it shall
be submitted, at the request of either Government, to an ad hoc
arbitral tribunal for settlement in accordance with the applicable
principles and rules of public international law. The arbitral
tribunal shall be established as follows: Each Government shall
appoint one arbitrator; these two arbitrators shall designate a
President by common agreement who shall be a citizen of a third
State and be appointed by the two Governments. The arbitrators
shall be appointed within two months and the President within
three months of the date of receipt of cither Government’s request
for arbitration. If the foregoing time limits are not met, either
Government may, in the absence of any other agreement, request
the President of the International Court of Justice to make the
necessary appointment or appointments, and both Governments
agree to accept such appointment or appointments. The arbitral

TIAS 6884