The Bilateral Investment Agreement is a crucial document used when establishing significant investment relationships in South Africa, particularly involving foreign investment into South African enterprises or projects. This agreement type has evolved significantly following South Africa's shift from traditional Bilateral Investment Treaties (BITs) to a more regulated domestic framework under the Protection of Investment Act of 2015. The document is essential for protecting both investor and recipient interests, ensuring compliance with South African legislation including B-BBEE requirements, and establishing clear operational and governance frameworks. It typically includes detailed provisions on investment protection, dispute resolution, regulatory compliance, and operational parameters, making it fundamental for significant cross-border investments in South Africa.
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1. Parties: Identification and details of the contracting parties, including their legal status and registered addresses
2. Background: Context of the agreement, including the parties' intentions and basis for cooperation
3. Definitions and Interpretation: Comprehensive definitions of key terms and interpretation principles used throughout the agreement
4. Scope and Application: Details of what constitutes covered investments and the territorial scope of the agreement
5. Investment Protection Standards: Core protections including fair and equitable treatment, protection against expropriation, and national treatment
6. Investment Promotion and Admission: Provisions regarding the promotion and conditions for admission of investments
7. Regulatory Framework: Compliance requirements with South African laws and regulations, including B-BBEE requirements
8. Financial Provisions: Provisions regarding transfers, repatriation of capital, and currency convertibility
9. Dispute Resolution: Mechanisms for resolving disputes between parties, including mediation and arbitration procedures
10. Duration and Termination: Term of the agreement, renewal provisions, and termination procedures
1. Environmental and Social Obligations: Additional provisions regarding environmental protection and social responsibility, used when investments may have significant environmental or social impacts
2. Intellectual Property Rights: Provisions protecting intellectual property, needed when investments involve technology transfer or IP-intensive industries
3. Force Majeure: Provisions dealing with extraordinary events, particularly relevant in long-term investment agreements
4. Anti-Corruption Compliance: Specific anti-corruption provisions, particularly important when dealing with public sector involvement
5. Security Interests: Provisions regarding creation and enforcement of security interests, relevant for investments involving significant assets or financing
6. Competition Law Compliance: Specific provisions ensuring compliance with competition laws, needed when investment could affect market structure
1. Investment Description Schedule: Detailed description of the investment, including assets, business plans, and timelines
2. Corporate Structure Schedule: Diagram and description of the investment vehicle and corporate structure
3. Regulatory Compliance Schedule: List of required permits, licenses, and regulatory approvals
4. B-BBEE Compliance Schedule: Details of B-BBEE compliance structure and commitments
5. Financial Terms Schedule: Detailed financial provisions, including investment amounts and payment terms
6. Performance Metrics Schedule: Specific performance indicators and evaluation criteria
7. Dispute Resolution Procedures: Detailed procedures for dispute resolution, including arbitration rules and procedures
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