SCHEDULE
The Government of the French Republic and the Government of the Republic of Kenya hereinafter referred to as the Contracting Parties;Recognising the need to protect investments of the investors of one Contracting Party in the territory of the other Contracting Party on a non-discriminatory basis;Desiring to strengthen the economic reciprocal co-operation between both States and to create favourable conditions for investments;Recognizing that the promotion and protection of these investments would succeed in stimulating transfers of capital and technology between the two countries in the interest of their economic development.HAVE AGREED AS FOLLOWS:ARTICLE 1 - DEFINITIONS
For the purpose of this Agreement:1.The term "investments" shall be construed to mean any kind of assets, such as goods, rights and interests of whatever nature invested before or after the entry into force of this Agreement and in conformity with the laws and regulations of the Contracting party in whose territory the investment is made.Without limiting the generality of the foregoing, the term "investment" comprises—(a)movable and immovable property as well as any other right in rem such as mortgages, liens, usufructs, pledges and similar rights;(b)shares, premium on share and other kinds of interest in companies constituted in the territory of one Contracting Party;(c)title to money or debentures, or title to any legitimate performance having an economic value;(d)intellectual, commercial and industrial property rights such as copyrights, patents, licenses, trademarks, industrial models and industrial mock-ups, technical processes, know-how, trade names and goodwill;(e)business concessions conferred by law or under contract, including concessions to search for, cultivate, extract or exploit natural resources, including those which are located in the maritime area of the Contracting Parties; and(f)re-investment.Any alteration of the form in which assets are invested shall not affect their qualification as investments provided that such alteration is not in conflict with the legislation of the Contracting Party on whose territory the investment is made.2.The term "nationals" means natural persons possessing the nationality of either Contracting Party in accordance with its laws.3.The term "investor" means, for either Contracting Party—(b)any legal entity such as company, corporation, firm, partnership, business association, institution or organisation, incorporated or constituted in accordance with the laws and regulations of the Contracting Party and having its registered office or central administration or principal place of business within the jurisdiction of that Contracting Party, whether or not for profit and whether its liabilities are limited or not.4.The term "returns" means the amounts yielded by investments and shall in particular, though not exclusively include profits, dividends, interest, royalties, capital gains, reinvestment returns or other income including payments in kind related to an investment.5.The term "territory" means the land territory, internal waters and territorial sea of the Contracting Party and the airspace above them, as well as the maritime zones beyond the territorial sea, including the seabed and subsoil, over which that Contracting Party exercises sovereign rights or jurisdiction in accordance with its national laws in force and international law, for the purpose of exploration and exploitation of the natural resources of such areas.ARTICLE 2 - PROMOTION AND ADMISSION OF INVESTMENTS
1.Each Contracting Party shall promote and admit in its territory, in accordance with its legislation and with the provisions of this Agreement, investments made by investors of the other Contracting Party.2.Each contracting party shall endeavour to encourage the use of both local human and material resources for the promotion of investment in its territory.ARTICLE 3 - FAIR AND EQUITABLE TREATMENT
Each Contracting Party shall ensure fair and equitable treatment of investments by investors of the other Contracting Party and shall not, in its territory impair by unreasonable or arbitary measures the expansion, operation, management, maintenance, use, enjoyment, sale or other disposal of investments of investors of the other Contracting Party.ARTICLE 4 - NATIONAL TREATMENT AND MOST FAVOURED NATION TREATMENT
1.Each Contracting Party shall accord to investors of the other Contracting Party and to their investments, a treatment no less favourable than the treatment it accords to its own investors and their investments with respect to the expansion, operation, management, maintenance, use, enjoyment, sale or other disposal of investments.2.Each Contracting Party shall accord to investors of the other Contracting Party and to their investments, a treatment no less favourable than the treatment it accords to investors of the most favoured nation and to their investments with respect to the expansion, operation, management, maintenance, use, enjoyment, sale or other disposal of investments.3.Each Contracting Party shall accord to investors of the other Contracting Party and their investments the better of the treatments required by paragraph 1 and paragraph 2 of this Article, whichever is the more favourable to the investors or investments.4.This treatment shall not include the privileges granted by one Contracting Party to investors of a third party State by virtue of its participation or association in a free trade zone, customs union, common market or any other form of regional economic organization.5.Each Contracting Party may, in accordance with its laws and regulations, grant incentives, treatment, preferences or privileges through special policies or measures to its own investors only for the purpose of promoting small and medium sized enterprises and infant industries in its territory, subject to the condition that these shall not significantly affect the investments and activities of the investors of the other Contracting Party.ARTICLE 5 - PERMITS
1.Each Contracting Party shall, subject to its laws and regulations, treat favourably the applications relating to investments and grant expeditiously the necessary permits required in its territory, in connection with investments by investors of the other Contracting Party.2.Each Contracting Party shall, subject to its laws and regulations, grant temporary entry and stay and provide any necessary confirming documentation to natural persons who are employed from abroad as executives, managers, specialists or technical personnel in connection with an investment by an investor of the other Contracting Party, and who are essential for the enterprise, as long as these persons continue to meet the requirements of this paragraph. Immediate family members of such personnel shall also be granted a similar treatment with regard to entry and temporary stay in the territory of the host Contracting Party.ARTICLE 6 - DEPRIVATION AND COMPENSATION
1.The investments made by investors of one Contracting Party shall enjoy full and complete protection and safety in the territory of the other Contracting Party.2.Neither Contracting Party shall take any measures of expropriation or nationalization or any other measures depriving, directly or indirectly, an investor of the other Contracting Party of an investment unless the following conditions are complied with—(i)the measures are taken in the public or national interest and in accordance with the law;(ii)the measures are not discriminatory;(iii)provisions for the payment of prompt and full compensation to accompany the measures.3.Such compensation shall amount to the market value of the expropriated investment at the time immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier. The market value shall be determined in accordance with generally accepted principles of valuation, taking into account, inter alia, the capital invested, replacement value, appreciation, current returns, the projected flow of future returns, goodwill and other relevant factors.4.The said compensation, the amounts and conditions of payment, shall be set not later than the date of dispossession. Compensation shall be fully realisable, transferable and shall be paid without any restriction or delay. It shall include interest at a commercial rate established on a market basis for the currency of payment from the date of dispossession of the expropriated property until the date of actual payment.5.Without prejudice to the provisions of Article 8 of this Agreement, the investor whose investments are expropriated or who suffers comparable measures shall have the right to prompt review of its case and of valuation of its investments in accordance with the principles set out in this Article, by access to judicial or other competent authority of that Contracting Party.6.Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, a state of national emergency, revolt, insurrection or riot in the territory of the latter Contracting Party, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or other settlement, a treatment no less favourable than the one accorded by the latter Contracting Party to its own investors or investors of the most favoured nation, whichever, according to the investor, is the more favourable.ARTICLE 7 - FREE TRANSFER
1.Each Contracting Party shall ensure to investors of the other Contracting Party the free transfer, into and out of its territory, of their investments and transfer payments related to investments. Such payments shall include in particular, though not exclusively—(a)principal and additional amounts to maintain, develop or increase the investment;(c)proceeds obtained from the total or partial sale or disposal of an investment, including the sale of shares;(d)amounts required for the payment of expenses which arise from the operation of the investment, such as loans repayments, payment of royalties, management fees, licence fees or other similar expenses;(e)compensation payable pursuant to Articles 6, 8 and 9;(f)earnings and other remuneration of personnel engaged from abroad and working in connection with an investment.2.Each Contracting Party shall further ensure that the transfers referred to in paragraph 1 of this Article shall be made without any restriction in a freely convertible currency of the choice of the investor and at the prevailing market rate of exchange applicable on the date of transfer to the currency to be transferred and shall be promptly transferable.3.In the absence of a market for foreign exchange, the rate to be used shall be the most recent exchange rate for the conversions of currencies into Special Drawing Rights.4.In case of an unjustified delay in transfer caused by the host Contracting Party, the transfer shall also include interest at a commercial rate established on a market basis for the currency in question from the date on which the transfer was requested until the date of actual transfer and shall be borne by that Contracting Party.5.When, in exceptional circumstances, capital movements from or to third countries cause or threaten to cause a serious disequilibrium to its balance of payments, each Contracting Party may temporarily apply safeguard measures to the transfers, provided that these measures shall be strictly necessary, would be imposed in an equitable, non discriminatory and in good faith basis and shall not exceed in any case a six months period.6.The application of this Article is subject to compliance with the tax laws, regulations and conventions of each Contracting State.7.The Contracting Party shall, with respect to this Article, honour its obligations arising from participation in or association with a free trade area, customs union, common market, economic and monetary union or any other of regional co-operation or integration.ARTICLE 8 - SETTLEMENT OF DISPUTES BETWEEN AN INVESTOR AND A CONTRACTING PARTY
1.Any dispute arising directly from an investment between one Contracting Party and an investor of the other Contracting Party should be settled amicably between the two parties to the dispute.2.If the dispute has not been settled within three (3) months from the date on which it was raised in writing, the dispute may, at the choice of the investor, be submitted to—(a)the competent courts of the Contracting Party in whose territory the investment is made; or(b)arbitration by the International Centre for Settlement of Investment Disputes (ICSID), established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington on 18 March 1965 (hereinafter referred to as the "Centre"), if the Centre is available; or(c)an ad hoc arbitration tribunal to be established under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL); or(d)any other previously accepted ad hoc arbitration tribunal.3.An investor who has submitted the dispute to a national court may nevertheless have recourse to one of the arbitral proceedings mentioned in paragraphs 2(b) to 2(d) of this Article if, before a judgement has been delivered on the subject matter by a national court, the investor declares not to pursue the case any longer through national proceedings and withdraws the case.4.Any arbitration under this Article shall, at the request of either party to the dispute, be held in a state that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), opened for signature at New York on 10 June, 1958. Claims submitted to arbitration under this Article shall be considered to arise out of a commercial relationship or transaction for the purposes of Article 1 of the New York Convention.5.Each Contracting Party hereby gives its unconditional consent to the submission of a dispute between it and an investor of the other Contracting Party to arbitration in accordance with this Article.ARTICLE 9 - GUARANTEE AND SUBROGATION
1.In the event that the regulations of one Contracting Party contain a guarantee for investments made abroad, this guarantee may be accorded, after examining case by case, to investments made by investors of this Party on the territory of the other Party.2.Investments made by investors of one Contracting Party on the territory of the other Contracting Party, may obtain the guarantee referred to in the foregoing paragraph only if they have been previously agreed to by the other Party.3.If one Contracting Party, as a result of a guarantee given for an investment made on the territory of the other Contracting Party, makes payments to its own investors, the first mentioned Party has in this case full rights of subrogation with regard to the rights and actions of the investors.4.The payments shall not affect the rights of the beneficiary of the guarantee to have recourse to the ICSID or to continue proceedings submitted to it until completion.ARTICLE 10 - SPECIAL COMMITMENT
If the law of either Contracting Party or obligations under international law, existing at present or established hereafter between the Contracting Parties in addition to this Agreement, contain a provision, whether general or specific, entitling investments made by investors of the other Contracting Party to a treatment more favourable than is provided by this Agreement, such provisions shall, to the extent that they are more favourable to the investor, prevail over this Agreement.ARTICLE 11 - SETTLEMENT OF DISPUTES BETWEEN CONTRACTING PARTIES
1.Disputes between the Contracting Parties concerning the interpretation and application of this Agreement shall, as far as possible, be settled through diplomatic channels.2.If the dispute cannot thus be settled within six (6) months following the date on which either Contracting Party requested such negotiations; it shall at the request of either Contracting Party be submitted to an Arbitral Tribunal.3.Such an Arbitral Tribunal shall be constituted for each individual case in the following way—Within two (2) months of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the Tribunal. Those two members shall then select a national of a third State who, on approval by the two Contracting Parties, shall be appointed Chairman of the Tribunal. The Chairman shall be appointed within three (3) months from the date of appointment of the other two members.4.If the necessary appointments have not been made within the periods specified in paragraph 3 of this Article, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Contracting Party or is otherwise prevented from discharging the said function, the Member of the International Court of Justice next in seniority who is not a national of either Contracting Party or is not otherwise prevented from discharging the said function, shall be invited to make the necessary appointments.5.The Arbitral Tribunal shall reach its decision by a majority of votes. The decisions of the Tribunal shall be final and binding on both Contracting Parties. Each Contracting Party shall bear the costs of the member appointed by that Contracting Party and of its representation in the arbitral proceedings. Both Contracting Parties shall assume an equal share of the costs of the Chairman, as well as any other costs. The Tribunal may make a different decision regarding the sharing of the costs. In all other respects, the Arbitral Tribunal shall determine its own rules of procedure.6.Issues subject to dispute referred to in paragraph 1 of this Article shall be decided in accordance with the provisions of this Agreement and the generally recognised principles of international law.ARTICLE 12 - GENERAL DEROGATIONS
1.Nothing in this Agreement shall be construed as preventing a Contracting Party from taking any action necessary for the protection of its essential security interests and maintenance of public order in time of war or armed conflict; provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination by a Contracting Party, or a disguised investment restriction.2.The provisions of this Article shall not apply to Article 7 paragraph 1(e) of this Agreement.ARTICLE 13 - OTHER PROVISIONS
1.Nothing in this Agreement shall be construed to prevent any Contracting Party from taking any measure to regulate investment of foreign companies and the conditions of activities of these companies in the framework of policies designed to preserve and promote cultural and linguistic diversity.2.For the purpose of this Agreement, it is understood that the Contracting Parties are responsible for the actions or omission of their sub-sovereign entities, including though not exclusively their federal states, regions, local governments or any other entity over which the Contracting Party exercises the control, the representation or the responsibility of its international affairs, or its sovereignty consistent with its internal legislation.ARTICLE 14 - ENTRY INTO FORCE AND TERMINATION
1.Each Party shall notify the other of the completion of the constitutional procedures required concerning the entry into force of this Agreement, which shall enter into force one month after the date of receipt of the final notification.2.The Agreement shall be in force for an initial period of ten years. It shall remain in force thereafter, unless one of the Contracting Parties gives one year’s written notice of termination through diplomatic channels.3.In case of termination of the period of validity of this Agreement, investments made while it was in force shall continue to enjoy the protection of its provisions for an additional period of twenty years.
