TNAG-2827-FCO40-4080-Investment-Protection-and-Promotion-Agreements-(IPPA)-betwee-1993 — Page 125

ktk.

HKCC 101/1 RECEIVED IND CISTRY

5 APR 1993

FROM:

24

Jill Barrett

Assistant Legal Adviser

K174 270 3381

DATE:

1 April 1993

DESK OFFICER

RECISTA

Mr Bunter

INDEX

PA Action Tal

HKD

Bicher

HONG KONG/FRANCE IPPA

23

1. You asked for comments on HKG's draft explanatory

memorandum on the initialled IPPA with France. I have only two.

2. In paragraph 20, concerning Article 9, the words "and enforced" in the first sentence would be better deleted so as to reflect accurately the wording in Article 9.

3. I agree with your observation in relation to paragraph 22(b) concerning Article 11, that the words "A national of another state" might be thought by the Chinese to imply that Hong Kong is a state. I also find this phrase unsatisfactory because it is ambiguous. Since Hong Kong is not a state, this phrase might be taken simply to exclude nationals of France. Or it might also exclude nationals of the state of which Hong Kong is part. Or it might be interpreted as excluding persons of the same nationality as the first two arbitrators. It seems to me to be even less clear than the wording in Article 9 of the model agreement! If it is unacceptable to revert to that, it ought to be possible to find some other formula.

4. Depending on what was intended by the negotiators, one or other of the following might be considered as an alternative:

(i) "A national of a State other than the

Republic of France or the State which is responsible for the foreign affairs of Hong Kong...";

(ii) "A national of a State other than the State or States of nationality of the two arbitrators...

5. As you suggested, these points can probably be most easily dealt with at one of our meetings with David Edwards next week.

JM Band

Jill Barrett