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[Senate Treaty Document 104-10]
[From the U.S. Government Publishing Office]

   104th Congress 1st            SENATE              Treaty Doc.









 June 26, 1995.--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
                         LETTER OF TRANSMITTAL


                                    The White House, June 26, 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 United States of America and Mongolia Concerning the 
Encouragement and Reciprocal Protection of Investment, with 
Annex and Protocol, signed at Washington on October 6, 1994. 
Also transmitted for the information of the Senate is the 
report of the Department of State with respect to the Treaty, 
with Annex and Protocol.
    The bilateral investment Treaty (BIT) with Mongolia will 
protect U.S. investors and assist Mongolia in its efforts to 
develop its economy by creating conditions more favorable for 
U.S. private investment and thus strengthening the development 
of the 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 
associated with investments; freedom of investments from 
performance requirements; fair, equitable, and most-favored-
nation treatment; and the investor's or 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 and Protocol, at an early date.

                                                William J. Clinton.
                          LETTER OF SUBMITTAL


                                       Department of State,
                                         Washington, June 16, 1995.
The President,
The White House.
    I have the honor to submit to you the Treaty Between the 
United States of America and Mongolia Concerning the 
Encouragement and Reciprocal Protection of Investment, with 
Annex and Protocol, signed at Washington on October 6, 1994. I 
recommend that this Treaty, with Annex and Protocol, be 
transmitted to the Senate for its advice and consent to 
    The bilateral investment treaty (BIT) with Mongolia is 
based on the view that an open investment policy contributes to 
economic growth. This Treaty will assist Mongolia in its 
efforts to develop its economy by creating conditions more 
favorable for U.S. private investment and thus strengthening 
the development of the private sector. It is U.S. policy, 
however, to advise potential treaty partners during BIT 
negotiations that conclusion of a BIT does 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 Mongolia, the United States has signed, but not 
yet brought into force, BITs with Albania, Armenia, Belarus, 
Ecuador, Estonia, Georgia, Haiti, Jamaica, Latvia, Russia, 
Trinidad and Tobago, 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, and 
the Overseas Private Investment Corporation.

                        the u.s.-mongolia treaty

    The Treaty with Mongolia is based on the 1992 U.S. 
prototype BIT, and achieves all of the prototype's objectives, 
which are:
  --All forms of U.S. investment in the territory of Mongolia 
        are 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 investments.
  --Exploration 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 an 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 
    The U.S.-Mongolia Treaty adds to the provisions of the 1992 
U.S. prototype text definitions for ``investment agreement'' 
and ``investment authorization'' as well as a Protocol 
clarifying that the national and MFN treatment obligations 
specified in Article II, paragraph 1, apply to the 
establishment and acquisition, as well as to the expansion, 
management, conduct, operation and sale or other disposition of 
    The following is an article-by-article analysis of the 
provisions of the Treaty:


    The Preamble states the goals of the Treaty. The Treaty is 
premised on the view that an open investment policy leads to 
economic growth. These goals include economic cooperation, 
increased flow of capital, a stable framework for investment, 
development of respect for international-recognized worker 
rights, and maximum efficiency in the use of economic 
resources. While the Preamble does not impose binding 
obligations, its statement of goals may serve to assist in the 
interpretation of the Treaty.

Article I (Definitions)

    Article I sets out definitions for terms used throughout 
the Treaty. As a general matter, they are designed to be broad 
and inclusive in nature.
    The Treaty's definition of investment is broad, recognizing 
that investment can take a wide variety of forms. It covers 
investments that are owned or controlled by nationals or 
companies of one of the Treaty partners in the territory of the 
other. Investments can be made either directly or indirectly 
through one or more subsidiaries, including those of third 
countries. Control is 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.
    The definition provides a non-exclusive list of assets, 
claims and rights that constitute investment. 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, and any right conferred by law or 
contract (such as government-issued licenses and permits). The 
requirement that a ``claim to money'' be associated with an 
investment excludes claims arising solely from trade 
transactions, such as a transaction involving only a cross-
border sale of goods, from being considered investments covered 
by the Treaty.
    Under paragraph 2 of Article I, either country may deny the 
benefits of the Treaty to investments by companies established 
in the other that are owned or controlled by nationals of a 
third country if (1) the company is a mere shell, without 
substantial business activities in the home country, or (2) the 
third country is one with which the denying Party does not 
maintain normal economic relations. For example, at this time 
the United States does not maintain normal economic relations 
with, among other countries, Cuba or Libya.
    Paragraph 3 confirms that any alteration in the form in 
which an asset is invested or reinvested shall not affect its 
character as investment. For example, a change in the corporate 
form of an investment will not deprive it of protection under 
the Treaty.
    The definition of ``company'' is broad in order to cover 
virtually any type of legal entity, including any corporation, 
company, association, or other entity that is organized under 
the laws and regulations of a Party. Coupled with the 
definition of investment, this definition also ensures that 
companies of a Party that establish investments in the 
territory of the other Party have their investments covered by 
the Treaty, even if the parent company is ultimately owned by 
non-Party nationals, although the other Party may deny the 
benefits of the Treaty in the limited circumstances set forth 
in Article I, paragraph 2. Likewise, a company of a third 
country that is owned or controlled by nationals or companies 
of a Party will also be covered. The definition also covers 
charitable and non-profit entities, as well as entities that 
are owned or controlled by the state.
    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.
    ``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. The 
scope of this definition provides breadth to the Treaty's 
transfer provisions in Article IV.
            Associated activities
    The Treaty recognizes that the operation of an investment 
requires protections extending beyond the investment to 
numerous related activities. This definition provides an 
illustrative list of such investor activities, including 
operating a business facility, borrowing money, disposing of 
property, issuing stock and purchasing foreign exchange for 
imports. These activities are covered by Article II, paragraph 
1, which guarantees the better of national or MFN treatment for 
investments and associated activities.
            Investment authorization
    The Treaty defines an ``investment authorization'' as an 
authorization granted by the foreign investment authority of a 
Party to an investment or a national or company of the other 
            Investment agreement
    The Treaty defines an ``investment agreement'' as a written 
agreement between the national authorities of a Party and an 
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, closing 
agreements, advance pricing agreements, and agreements which 
arise out of judicial or administrative rulings, such as 
consent decrees.

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 MFN or national 
treatment in both the entry and post-entry phases of 
investment. It thus prohibits both the screening of proposed 
foreign investment on the basis of nationality and 
discriminatory measures once the investment has been made, 
subject to specific exceptions provided for in a separate 
Annex. The United States and Mongolia have both reserved 
certain exceptions in the Annex to the Treaty, the provisions 
of which are discussed in the section entitled ``Annex.''
    Paragraph 2 guarantees that investment shall be granted 
``fair and equitable'' treatment. It also prohibits Parties 
from impairing, through unreasonable or discriminatory means, 
the management, operation, maintenance, use, enjoyment, 
acquisition, expansion or disposal of investments. This 
paragraph sets out a minimum standard of treatment based on 
customary international law.
    In paragraph 2(c), each Party pledges to respect any 
obligations it may have entered into with respect 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 3 allows, subject to each Party's immigration 
laws and regulations, the entry of each Party's nationals into 
the territory of the other for purposes linked to investment 
and involving the commitment of a ``substantial amount of 
capital or other resources.'' This paragraph serves to render 
nationals of a BIT partner eligible for treaty-investor visas 
under U.S. immigration law and guarantees similar treatment for 
U.S. investors.
    Paragraph 4 guarantees companies the right to engage top 
managerial personnel of their choice, regardless of 
    Under paragraph 5, neither Party may impose performance 
requirements such as those conditioning investment on the 
export of goods produced or the local purchase of goods or 
services. Such requirements are major burdens on investors.
    Paragraph 6 provides that each Party must provide effective 
means of asserting rights and claims with respect to 
investment, investment agreements and any investment 
authorizations. Under paragraph 7, each Party must make 
publicly available all laws, regulations, administrative 
practices and adjudicatory procedures pertaining to or 
affecting investments.
    Paragraph 8 recognizes that under the U.S. federal system, 
States of the United States may, in some instance, treat out-
of-State residents and corporations in a different manner then 
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 to U.S. out-of-State residents and corporations.
    Paragraph 9 limits the Article's MFN obligation by 
providing that it will not apply to advantages accorded by 
either Party to third countries by virtue of a Party's 
membership in a free trade area or customs union or a future 
multilateral agreement under the auspices of the General 
Agreement on Tariffs and Trade (GATT). The free trade area 
exception in this Treaty is analogous to the exception provided 
for with respect to trade in the GATT.

Article III (Expropriation)

    Article III incorporates into the Treaty the 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 also apply to direct or indirect 
state measures ``tantamount to expropriation or 
nationalization,'' and thus apply to ``creeping 
expropriations'' that result in a substantial deprivation of 
the benefit of an investment without a taking of the title to 
the investment.
    Paragraph 1 further bars all expropriations or 
nationalizations except those that are for a public purpose; 
carried out in a non-discriminatory manner; subject to 
``prompt, adequate, and effective compensation''; subject to 
due process; and accorded the treatment provided in the 
standards of Article II, paragraph 2. (These standards 
guarantee fair and equitable treatment and prohibit the 
arbitrary and discriminatory impairment of investment in its 
broadest sense.)
    The second sentence of paragraph 1 clarifies the meaning of 
``prompt, adequate, and effective compensation.'' Compensation 
must be equivalent to the fair market value of the expropriated 
investment immediately before the expropriatory action was 
taken or became known (whichever is earlier); be paid without 
delay; include interest at a commercially reasonable rate from 
the date of expropriation; be fully realizable; be freely 
transferable; and be calculated in a freely usable currency on 
the basis of the prevailing market rate of exchange.
    Paragraph 2 entitles an investor claiming that an 
expropriation has occurred to prompt judicial or administrative 
review of the claim in the host country, including a 
determination of whether the expropriation and any compensation 
conform to international law.
    Paragraph 3 entitles investors to the better of national or 
MFN treatment with respect to losses related to war or civil 
disturbances, but, unlike paragraph 1, does not specify an 
absolute obligation to pay compensation for such losses.

Article IV (Transfers)

    Article IV protects investors from certain government 
exchange controls limiting current account and capital account 
    In paragraph 1, the Parties agree to permit ``transfers 
related to an investment to be made freely and without delay 
into and out of its territory.'' Paragraph 1 also provides a 
non-exclusive list of transfers that must be allowed, including 
returns (as defined in Article I); payments made in 
compensation for expropriation (as defined in Article III); 
payments arising out of an investment dispute; payments made 
under a contract, including the amortization of principal and 
interest payments on a loan; proceeds from the liquidation or 
sale of all or part of an investment; and additional 
contributions to capital for the maintenance or development of 
an investment.
    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 standard of 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.
    Paragraph 3 recognizes that notwithstanding these 
guarantees, Parties 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 Parties 
may protect the rights of creditors and ensure the satisfaction 
of judgments in adjudicatory proceedings through their laws, 
even if such measures interfere with transfers. Such laws must 
be applied in an equitable, nondiscriminatory and good faith 
    Paragraph 4 adds to the prototype a provision that the 
Parties permit returns in kind be made as specified in an 
investment authorization, investment agreement or other written 
agreement between the Party and an investment or a national or 
company of the other Party.

Article V (State-State consultations)

    Article V provides for prompt consultation between the 
Parties, at either Party's request, on any matter relating to 
the interpretation or application of the Treaty.

Article VI (State-investor dispute resolution)

    Article VI sets forth several means by which disputes 
between an investor and the host country may be settled.
    Article VI procedures apply to an ``investment dispute,'' a 
term which covers any dispute arising out of or relating to an 
investment authorization, an investment agreement, or to rights 
granted by the Treaty with respect to an investment.
    When a dispute arises, Article VI, paragraph 2, provides 
that the disputants should initially seek to resolve the 
dispute by consultation and negotiation, which may include non-
binding third party procedures. Should such consultations fail, 
paragraphs 2 and 3 set forth the investor's range of choices of 
dispute settlement. Paragraph 2 permits the investor to: (1) 
employ one of the several arbitration procedures outlined in 
the Treaty; (2) submit the dispute to procedures previously 
agreed upon by the investor and the host country government in 
an investment agreement or otherwise; or (3) submit the dispute 
to the local courts or administrative tribunals of the host 
    Under paragraph 3, if the investor has not submitted the 
dispute under the procedures in paragraph 2 and six months have 
elapsed from the date the dispute arose, the investor may 
choose among the International Center for the Settlement of 
Investment Disputes (ICSID) Convention arbitration, or the 
ICSID Additional Facility (if Convention arbitration is not 
available), or ad hoc arbitration using the Arbitration Rules 
of the United Nations Commission on International Trade Law 
(UNCITRAL). Paragraph 3 also recognizes that, by mutual 
agreement, the Parties to the dispute may choose another 
arbitral institution or set of arbitral rules.
    Paragraph 4 contains the consent of the United States and 
Mongolia to the submission of investment disputes to binding 
arbitration in accordance with the choice of the investor.
    Paragraph 5 provides that a non-ICSID arbitration shall 
take place in a country that is a party to the United Nations 
Convention on the Recognition and Enforcement of Foreign 
Arbitral Awards. This requirement expands the ability of 
investors to obtain enforcement of their arbitral awards 
abroad. In addition, paragraph 6 includes a separate commitment 
by each Party to enforce arbitral awards rendered pursuant to 
Article VI procedures.
    Paragraph 7 provides that in any dispute settlement 
procedure, a Party may not invoke as a defense, counterclaim, 
set-off or in any other manner the fact that the company or 
national has received or will be reimbursed 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 (State-State arbitration)

    Article VII provides for binding arbitration of disputes 
between the United States and Mongolia that are not resolved 
through consultations or other diplomatic channels. The article 
constitutes each Party's prior consent to arbitration. It 
provides for the selection of arbitrators, establishes time 
limits for submissions, and requires the Parties to bear the 
costs equally, unless otherwise directed by the Tribunal.

Article VIII (Exclusion from dispute settlement procedures)

    Article VIII provides that the provisions of Articles VI 
and VII concerning dispute resolution do not apply to disputes 
arising under the export credit, guarantee or insurance 
programs of the Export-Import Bank of the United States or 
under other official credit, guarantee or insurance programs 
for which the Parties have agreed to other means of dispute 

Article IX (Preservation of rights)

    Article IX clarifies that the Treaty is meant only to 
establish a floor for the treatment of foreign investment. An 
investor may be entitled to more favorable treatment through 
domestic legislation, other international legal obligations, or 
a specific obligation assumed by a Party with respect to that 
investor. This provision ensures that the Treaty will not be 
interpreted to derogate from any entitlement to such more 
favorable treatment.

Article X (Measures not precluded)

    Paragraph 1 of Article X reserves the right of a Party to 
take measures for the maintenance of public order and the 
fulfillment of its 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. These provisions are common in international 
investment agreements.
    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 
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 interest of the Party involved.
    The second paragraph allows a Party to promulgate special 
formalities in connection with the establishment of investment, 
provided that the formalities do not impair the substance of 
any Treaty rights. Such formalities would include, for example, 
U.S. reporting requirements for certain inward investment.

Article XI (Tax policies)

    Paragraph 1 exhorts both countries to provide fair and 
equitable treatment to investors with respect to tax policies. 
However, tax matters are generally excluded from the coverage 
of the Treaty, based on the assumption that tax matters are 
properly covered in bilateral tax treaties.
    The Treaty, and particularly the dispute settlement 
provisions, do apply to tax matters in three areas, to the 
extent they are not subject to the dispute settlement 
provisions of a tax treaty, or, if so subject, have been raised 
under a tax treaty's dispute settlement procedures and are not 
resolved in a reasonable period of time.
    Pursuant to paragraph 2, the three areas where the Treaty 
could apply to tax matters are expropriation (Article III), 
transfers (Article IV) and the observance and enforcement of 
terms of an investment agreement or authorization (Article VI 
(1) (a) or (b)). These three areas are important for investors, 
and two of the three--expropriatory taxation and tax provisions 
contained in an investment agreement or authorization--are not 
typically addressed in tax treaties.

Article XII (Application to political subdivisions)

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

Article XIII (Entry into force, duration and termination)

    The Treaty enters into force thirty days after exchange of 
instruments of ratification and continues in force for a period 
of ten years. From the date of its entry into force, the Treaty 
applies to existing and future investments. After the ten-year 
term, the Treaty will continue in force unless terminated by 
either Party upon one year's notice. If the Treaty is 
terminated, all existing investments would continue to be 
protected under the Treaty for ten years thereafter.


    U.S. bilateral investment treaties allow for sectoral 
exceptions to national and MFN treatment. The U.S. exceptions 
are designed to protect governmental regulatory interests and 
to accommodate the derogations from national treatment and, in 
some cases, MFN treatment in existing federal law.
    The U.S. portion of the Annex contains a list of sectors 
and matters in which, for various legal and historical reasons, 
the federal government or the States may not necessarily treat 
investments of nationals or companies of the other Party as 
they do U.S. investments or investments from a third country. 
The U.S. exceptions from national treatment 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; customhouse brokers; ownership of real property; 
ownership and operation of broadcast or common carrier radio 
and television stations; ownership of shares in the 
Communications Satellite Corporation; 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; and maritime and maritime-related 
    Ownership of real property, mining on the public domain, 
maritime and maritime-related services, and primary dealership 
in U.S. government securities are excluded from MFN as well as 
national treatment commitments. The last three sectors are 
exempted by the United States from MFN treatment obligations 
because of U.S. laws that require reciprocity. Enforcement of 
reciprocity provisions could deny both national and MFN 
    The listing of a sector does not necessarily signify that 
domestic laws have entirely reserved it for nationals. Future 
restrictions or limitations on foreign investment are only 
permitted in the sectors listed; must be made on an MFN basis, 
unless otherwise specified in the Annex; and must be 
appropriately notified. Any additional restrictions or 
limitations which a Party may adopt with respect to listed 
sectors may not affect existing investments.
    Because the U.S. exceptions to national treatment and MFN 
treatment are based on existing U.S. law, they are not altered 
during negotiations.
    Mongolia's exceptions to national treatment are: land 
ownership and banking. These exceptions were based on 
provisions of investment measures currently in force or under 
active consideration by the Government of Mongolia. Mongolia 
has not reserved any sectoral exceptions to MFN treatment in 
the Annex.


    In a Protocol to the Treaty, the two sides clarify their 
understanding that the obligation to accord the better of 
national or most favored nation treatment extends to all phases 
of investment--both to establishment and acquisition as well as 
to the expansion, management, conduct, operation and sale or 
any other disposition of investments.
    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,
                                                    Strobe Talbott.