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101ST CONGRESS SENATE Treaty Doc.
2d Session 101-18




TREATY WITH POLAND CONCERNING BUSINESS
AND ECONOMIC RELATIONS

MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING

THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF POLAND CONCERNING BUSINESS AND ECO-NOMIC RELATIONS WITH PROTOCOL AND FOUR RELATED EX-CHANGES OF LETTERS, SIGNED MARCH 21, 1990, AT WASHING-TON


JUNE 19, 1990.-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
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1990




LETTER OF TRANSMITTAL



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 the Republic of Poland Concerning Business and Economic Relations, with Protocol and four related exchanges of letters, signed March 21, 1990, at Washington. I transmit also, for the information of the Senate, the report of the Department of State with respect to this treaty.

This treaty is the first to be transmitted to the Senate under my initiative to strengthen economic relations with East European countries, in support of the political and economic reforms taking place there. It will encourage, facilitate, and protect U.S. invest-ment and business activity in Poland. The treaty also will serve to stimulate the growth of the private sector and of market institu-tions in that country. The treaty is fully consistent with U.S. policy toward international investment. A tenet of this policy, reflected in this treaty, is that U.S. direct investment abroad and foreign in-vestment in the United States should receive fair, equitable, and nondiscriminatory treatment. Under this treaty, the parties also agree to international law standards for expropriation and compen-sation; free financial transfers; and procedures, including interna-tional arbitration, for the settlement of disputes.

I recommend that the Senate consider this treaty as soon as pos-sible and give its advice and consent to ratification of the treaty, with protocol and related exchanges of letters, at an early date.


THE WHITE HOUSE, June 19, 1990.


LETTER OF SUBMITTAL
DEPARTMET OF STATE,
Washington, DC,
June 8,1990.


The PRESIDENT,
The White House.
THE PRESIDENT: I have the honor to submit to you the Treaty between the United States of America and the Republic of Poland concerning Business and Economic Relations, with Protocol and four related exchanges of letters, signed at Washington, March 21, 1990. I recommend that this treaty with protocol and exchanges of letters be transmitted to the Senate for its advice and consent to ratification.
This treaty is expected to reinforce and to further the extraordi-nary recent political and economic developments in Poland. It will serve to stimulate the growth of the private sector and of market institutions in Poland, consistent with the economic reform program adopted by that government. In addition, the treaty will encourage-, facilitate and protect U.S. investment and business activity in Poland, which can act as an important stimulus to economic reform. Potential U.S. investors who otherwise might perceive un-certainties in the current business climate in Poland will find con-siderable assurance in the protections provided by this treaty.
The treaty with Poland extends the reach and scope of U.S. in-vestment policies from the developing world, as reflected in bilater-al investment treaties (BITs), into the different landscape of East-ern Europe. Poland's willingness to provide U.S. investors with sig-nificant investment guarantees and assurances as a way of induc-ing additional foreign investment therefore constitutes a notewor-thy precedent for the area. While it is U.S. policy to advise poten-tial treaty partners that conclusion of an investment agreement with the United States does not in and of itself result in immediate increases in U.S. investment flows, the treaty with Poland never-theless will become a key feature in strengthening the U.S.-Poland bilateral investment relationship. The United States currently is seeking to build similar investment ties to other East European states and to the Soviet Union through the negotiation of treaties comparable to that with Poland.
Congressional support for the Poland treaty is contained in Sec-tion 306 of the Support for East European Democracy (SEED) Act of 1989, which provides:

The Congress urges the President to seek bilateral in-vestment treaties with Poland and Hungary in order to es-tablish a more stable legal framework for United States in-- vestment in those countries.

A number of European countries, including the United Kingdom and the Federal Republic of Germany, have concluded investment protection treaties with Poland. Other European countries are negotiating investment treaties with Poland as well. The U.S. treaty with Poland, while resembling its European counterparts in a number of important respects, is, however, more comprehensive and far-reaching.

Summary of Key Provisions
This treaty was negotiated by the Department of State, the Office of the United States Trade Representative, the Department of Commerce and the Department of the Treasury, in conjunction with other interested U.S. Government agencies. In the course of negotiations, the United States pursued four main objectives:
Foreign investors are to be accorded treatment in accordance with international law and are to be treated no less favorably than investors of the host country or of third countries, which-ever is the most favorable treatment ("national" or "most-fa-vored-nation" (MFN) treatment), subject to certain specified ex-ceptions;
International law standards shall apply to the expropriation of investments and to the payment of compensation for expro-priation;
Funds associated with an investment may be freely trans-ferred into and out of the host country; and
An investor may take a dispute with a Party directly to binding third-party arbitration without first resorting to domestic courts.
Provisions of the treaty reflecting these objectives are described below.
The treaty with Poland is significant in that it represents the first occasion on which an East European country expressly has recognized the "prompt, adequate, and effective" international law standard of compensation for expropriation. Nor has an East Euro-pean country previously consented generally to international arbitration of alleged discriminatory treatment accorded a foreign in-vestor by that Party; previously, such disputes were to be resolved, by domestic courts. Finally, the provision for free transfers of re-turns, which is subject to a transitional exception for repatriation of certain types of profits, is also precedential in its breadth for an East European country whose investment climate formerly was heavily influenced by the inconvertibility of its currency.





Definitions
The definitional section of the U.S.-Poland treaty clarifies terms such as "investment," "control," "commercial activity" and "com-pany of a Party." The concept of "investment" is broad and designed to be flexible; although numerous types of economic interests are enumerated, the intent is to include all legitimate interests in the territory of either Party, whether directly or indirectly controlled by nationals of the other, having economic value and associated with an investment. One such specified category of "investment" is intellectual property, the definition of which has been modified from recent BITs in order to reflect new developments in the field. "Control" is defined as a substantial interest or the ability to exercise substantial influence over the management and operation of an investment, thus encompassing appropriate nonequity -financial stakes as well as investment controlled via stockholdings.
The comprehensive nature of the treaty with Poland is indicated by its coverage of "commercial activities," defined as non-invest-ment activities by a national or company of a Party related to the sale or purchase of goods and services and the granting of franchisesor rights under license. This provision is intended to ensure protection to, e.g., representative offices of U.S. companies in pursuing sales in Poland, without, however, conferring rights related to trade in goods (covered exclusively by the GATT). A final significant definition in the treaty is "company of a Party," which refers to any organization constituted under the laws of a Party, whether privately or governmentally owned.

Treatment
The U.S.-Poland treaty accords the better of national or most-fa-vored-nation treatment ("nondiscriminatory" treatment) to estab-lished foreign investment, subject to each Party's exceptions which are listed in a separate Annex. (Entry of U.S. investments to Poland is, however, subject to certain restrictions contained in Polish law, which are discussed further below.) The exceptions are designed to protect state regulatory interests and, for the United States, to accommodate the derogations from national treatment contained in state or federal law relating to areas such as air transport, shipping, banking, telecommunications, energy and power production, insurance, and from national and MFN treat-ment in the case of securities and ownership of real property. In addition, rights to engage in mining on the public domain on reci-procity.
Poland has identified a comparable list of exceptions, but also has stated its intention to remove some such sectors from the Annex as its process of privatization and demonopolization pro-gresses. Poland further has guaranteed MFN treatment to U.S. na-tionals and companies in acquiring interests in any governmentally owned enterprise undergoing privatization.
The exceptions relating to securities regulation are intended to mean only that the most-favored-nation and national treatment provisions of the treaty, to the extent applicable, are not inconsist-ent with the application by either Party of prudential laws and regulations governing the offering and trading-of securities and ac-tivities related thereto in its territory by nationals and companies of the other Party, and the activities of securities firms (including banks, brokers and dealers), investment advisers, and investment companies.
The treaty also includes a number of general protections that are designed to reinforce the non-discriminatory treatment standard. The Parties agree to accord investments and commercial activities "fair and equitable treatment" and "full protection and security" in no case "less than that required by international law." Parties additionally are obliged to observe their contractual obligations with regard to investments and commercial activities, and to provide effective means of legal recourse for enforcing rights established under the treaty. They also are restricted from imposing performance requirements on investments. Certain rights relating to the staffing of investments and commercial activities are conferred by the Poland treaty. Nationals and companies engaged in investment or commercial activities are permitted entry to the territory of the other Party, subject to national laws relating to the entry of aliens. Further, companies which are investments have a right to engage "professional, technical, and managerial personnel of their choice, regardless of nationality."

Expropriation
The U.S.-Poland treaty also confers protection from unlawful in-terference with property interests and ensures compensation in ac-cordance with international law standards. It provides that any direct or indirect taking must be: for a public purpose; non-discriminatory; accompanied by the payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general standards of treatment discussed above. Thus cov-ered are any measures, regardless of their form, which have the effect of depriving an investor of his interest. Compensation, which must be equivalent to the "fair market value of the expropriated investment immediately before the expropriatory action was taken or became publicly known, whichever is earlier," must be paid "without delay," include interest "at a commercially reasonable rate ... from the date of expropriation," be "fully realizable," "freely transferable," and "calculated on the basis of the prevailing market rate of exchange for commercial transactions on the date of expropriation." (The treaty does not, however, provide a specific valuation method for compensating such losses.) The treaty grants the right to "prompt review" by appropriate judicial or administra-tive authorities in order to determine whether the compensation of-fered is in conformity with these principles. It also extends non-dis-criminatory treatment to investments in of loss due to war or other civil disturbances.

Transfers
The U.S.-Poland treaty provides for transfers "related to an in-vestment or commercial a-ctivity," specifically of returns, compen-sation for expropriation, payments under contract, proceeds from sale of an investment, and contributions to capital for maintenance or development of an investment. Such transfers are to be made "freely and without delay," and in a "freely usable currency at the prevailing market rate of exchange for commercial transactions on the date of transfer with respect to spot transactions in the curren-cy to be transferred." (The sole exception to this principle, relating to the transferability of profits earned in Poland in local currency is discussed further below.) However, Parties may maintain law and regulations, or fulfill court-imposed obligations which require reports of currency transfer or impose income taxes by means of a withholding tax applicable to dividends.

Dispute settlement
The U.S.-Poland treaty provides that where certain defined in-vestment disputes arise between a Party and a national or compa-ny of the other Party, including those relating to rights conferred under the treaty or involving the interpretation of an investment authorization, they may be submitted to arbitration after six months. Exhaustion of local remedies is not required. Permissible arbitral fora include the International Centre for the Settlement of Investment Disputes ("ICSID"), the Additional Facility of the Centre, a tribunal established under the arbitration rules of the United Nations Commission on International Trade Law ("UNCI-TRAL"), and any mutually agreed arbitral institution. The treaty specifies the availability of the Additional Facility or of ad hoc ar-bitration because Poland has not adhered to the ICSID Convention. During the negotiations Poland did indicate, however, its intent to do so in the near future.
The treaty also provides for state-to-state arbitration between the Parties in case of a dispute regarding the interpretation or application of the treaty. UNCITRAL arbitration rules shall govern such cases, unless the Parties otherwise agree. The treaty also outlines the procedures for the creation of the arbitral tribunal.

Other provisions
The U.S.-Poland treaty urges Parties to apply their tax policies fairly and equitably. Because the United States specifically ad-dresses tax matters in tax treaties, this treaty generally excludes such matters, addressing them only to the extent that they relate to expropriation, transfers, or investment authorizations, and are not covered by the bilateral tax treaty. Another provision exempts from the scope of this treaty's dispute resolution provisions dis-putes arising under Export-Import Bank programs or other credit guarantee or insurance arrangements. The treaty also does not serve to derogate from existing obligations that require more favor-able treatment of investments and commercial activities, nor does it apply to GATT-related multilateral obligations entered into sub-sequently. Also expressly reserved is a Party's right to take any measures that are necessary to protect public order or essential se-curity interests.
The treaty enters into force 30 days after exchange of instru-ments of ratification, and continues in force for at least ten years. Either Party may terminate the treaty at the end of the initial ten--year term or thereafter, subject to one year's written notice. The Annex, Protocol, and related letters on assistance to investors, tourism, intellectual property, and entry of investments (discussed further below) form an integral part of the treaty. The treaty ap-plies to investments and commercial activities existing at the time of entry into force, as well as those undertaken thereafter.

New features
The U.S.-Poland treaty includes a number of significant provisions that have no counterpart in prior BIT practice. These features resolve particular problems that U.S. busi-ness traditionally has faced in centrally-controlled, non-market Eastern-European economies, and which may continue to be impediments to investment and commerce during the period of Pol-and's transition to a free-market system.
One such provision is a guarantee that nationals and companies receive non-discriminatory treatment with respect to a specified list of operational measures related to their investments and com-mercial activities. These include: the issuance of registrations, li-censes and permits; access to financial institutions and credit mar-kets; access to their funds held in financial institutions; the impor-tation and installation of business-related equipment; advertising and the conduct of market studies; the appointment of commercial representatives; direct marketing; access to public utilities; and access to raw materials. It should be noted that the right to non-discriminatory treatment may require that U.S. nationals and com-panies receive treatment no less favorable than that granted by Poland to enterprises that remain under state ownership or con-trol.
Particular attention also has been paid to overcoming bureau-cratic obstacles and transparency problems that may continue to exist in Poland in the immediate future. In a side letter to the treaty, Poland has undertaken to designate within its Agency for foreign Investments a Deputy President who shall assist U.S. nationals and companies in deriving full benefits from the treaty. The Deputy President's tasks include serving as the Polish government coordinator and problem solver for U.S. investors facing regulatory difficulties, as well as functioning as a clearinghouse for informa-tion pertinent to foreign investors. The treaty itself also contains provisions designed to increase transparency about government regulation affecting foreign investment.
The Poland treaty additionally contains extensive protections for intellectual property rights that are not ordinarily addressed in BITS. In agreeing to adhere to key international agreements and promptly to enact a comprehensive set of national laws governing intellectual property, Poland has signaled its readiness to improve a critical element of its foreign investment climate. Poland has un-dertaken, inter alia: to extend copyright protection to computer programs; to provide product as well as process patent protection for pharmaceuticals and chemicals; and to protect integrated cir-cuit layout designs (mask works). National legislation implement-ing these obligations will be enacted during 1991 and 1992, as pro-vided in a side letter to the treaty. In that context Poland also has stated that it will adhere in 1990 to the Paris Act of the Berne Con-vention for the Protection of Literary and Artistic Works.
A further side letter to the treaty clarifies the relation of the Treaty on Business and Economic Relations to the U.S.-Poland Agreement on the Development and Facilitation of Tourism, signed on September 20, 1989. In this side letter Poland has provided an assurance that its government-controlled tourism enterprises will provide service to U.S. nationals and companies on a fair and equi-table basis.

Modifications of BIT-based provisions
Two provisions of the U.S.-Poland treaty-those relating to the entry of investments and to the repatriation of profits- differ in substance from the U.S. negotiating text. Both issues clearly are among the most difficult to address for a country making a rapid transition from a closed, non-market economic system to an open, free enterprise model. While the United States agreed to accommodate these Polish concerns within the framework of the treaty, neither provision represents a - major departure from previous BIT practice.
U.S. nationals and companies seeking to invest in Poland are subject to Polish law governing the entry of foreign investment, which permits denial only if the proposed investment presents a threat to state economic interests, to national security, or to the environment. According the Government to Poland in recent practice, this law has been applied to preclude investments only very rarely. In a side letter to the treaty, Poland has committed to reviewing these requirements with the United States within two years, with a view to narrowing and subsequently phasing them out. Poland further has undertaken a series of commitments that will ease the existing screening process for prospective U.S. investment automatically within sixty days notice of, and reasons for, denial are pro-vided; utilize the "state economic interests" criterion only excep-tionally and not for the purpose of protecting domestic enterprise from competition; apply to foreign investors the same environmen-tal standards applied to Polish nationals; and accord U.S. nationals treatment at least as favorable as that accorded to prospective in-vestors from other states.
The treaty provides U.S. investors substantially more favorable conditions with respect to the transfer of returns than provided under current Polish law. The Polish exchange law provides that a company may obtain foreign currency for transferring profits earned in a calendar year only up to the amount of the surplus of its exports in that year over its import expenditures. In addition, it may obtain foreign currency for 15 percent of any profits it may have had for that year in excess of the export surplus. No provision is made for transferring the remaining 85 percent, except that reinvested profits may in effect be transferred after the investment is sold for convertible currency. If the investor receives zlotys in payment for the sold or liquidated investment, he may not obtain for-eign currency for transferring the proceeds until ten years after the investment is registered.
The treaty requires progressively more favorable treatment for U.S. investors with respect to transfers of surplus profit than that provided for under the above law. Thus the protocol to the treaty Provides as follows: as of January 1, 1992, 20 percent of untrans-ferred surplus profits earned in 1990 and 1991 may be transferred; as of January 1, 1993, 35 percent of untransferred surplus profits earned in 1990 through 1992 may be transferred; as of January 1, 1994, 50 percent of untransferred surplus profits earned in 1990 through 1993 may be transferred; as of January 1, 1995, 80 percent of untransferred surplus earned in 1990 through 1994 may be transferred; and as of January 1 of each year after 1994, all untransferred surplus profits earned from 1990 through the preceding year may be transferred. The application of this progressive scale to accumulated untransferred profits earned in 1990 and subsequently assures that U.S. investors will be able to transfer substantial amounts of their profits even before 100 percent transferability is achieved in 1995. The treaty also provides more favorable treatment than current law in that it does not permit transfers of proceeds from sales or liquidations to be delayed.
In only one other treaty has Poland agreed to an analogous ar-rangement for permitting foreign investors to repatriate local cur-rency earnings at a rate beyond that permitted by domestic law. That treaty, however, provides for phased-in full repatriation over a seven-year rather than a four-year period, and also permits delays in transfers of proceeds from sales and liquidations.
Submission of this treaty marks a significant development in our international investment policy and in our bilateral relationship with Poland. I am joined by the United States Trade Representa-tive, the Secretary of Commerce, and the Secretary of the Treasury in supporting this treaty and favor its transmittal to the Senate at an early date. Respectfully submitted,
Lawrence Eagleburger



PREAMBLE

The United States of America and the Republic of Poland; (here-inafter referred to as "the Parties");
Desiring to develop further the friendship between the American
and Polish peoples;
Recognizing that the further development of business and eco-nomic ties can contribute to a general strengthening of their relations;
Desiring to promote greater economic cooperation between them with respect to investment by nationals and companies of one Party in the territory of the other Party;
Recognizing that agreement upon the treatment to be accorded such investment will stimulate the flow of private capital and the economic development of the Parties;
Agreeing that fair and equitable treatment of investment is de-sirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources;
Desiring to develop long-term business and economic cooperation based upon the principles of sovereign equality and mutual benefits;
Recognizing that the development of business and economic ties can contribute to the well-being of workers in both countries and promote respect for fundamental worker rights;
Convinced that private enterprise operating within a free and open market offers the best opportunities for raising living stand-ards and the quality of life for the inhabitants of the Parties; and
Recognizing the desire of the Republic of Poland to reduce the role of state enterprises and privatize its economy;
ARTICLE I
Definitions

1. For the purposes of this Treaty,
(a) "company of a Party" means any kind of corporation, company, association, state enterprise, or other organization, legally constituted under the laws and regulations of a Party or a political subdivision thereof whether or not organized for pecuniary gain, or privately or governmentally owned;
(b) "investment" means every kind of investment, in the ter-ritory of one Party owned or controlled directly or indirectly by nationals or companies of the other party, and includes:
(i) tangible and intangible property, including rights, such as mortgages, liens and pledges;
(ii) a company or shares of stock, or other interests in a company or interests in the assets thereof;
(iii) a claim to money or a claim to performance having economic value, and associated with an investment;
(iv) intellectual property which includes, inter alia, rights relating to: patent rights, (c) "national of a Party" means, a natural person who is a national of a Party under its applicable law;
(d) "return" means an amount derived from or associated with an investment, including profit; dividend; interest; capital gain; royalty payment; management,technical assistance other fees; or returns in kind;
(e) "associated activities" are activities associated with an in-vestment, such as the organization, control, operation, maintenance and disposition of companies, branches, agencies, offices, factories or other facilities for the conduct business; the making, performance and enforcement of contracts; the acqui-sition, use, protection and disposition of property of all kinds including intellectual property rights; the borrowing of funds; the purchase and issuance of equity shares and other securi-ties; and the purchase of foreign exchange;
(f) "nondiscriminatory" treatment means treatment that is at least as favorable as the better of national treatment or most-favored nation treatment;
(g) "national treatment" means treatment that is at least as favorable as the most favorable treatment accorded by a Party to companies or nationals of that Party in like circumstances;
(h) "most-favored nation treatment" means treatment that is at least as favorable as that accorded by a Party to companies and nationals of third parties in like circumstances;
(i) "commercial activity" means activities carried on by na-tionals or companies of a Party related to the sale or purchase of goods and services and the granting of franchises or rights under license, which are not investments or related activi-ties; and
(j) "control" means having a substantial interest in or the ability to exercise substantial influence over the management and operation of an investment, provided that such an influ-ence will not be deemed to exist solely as a result of a contrac-tual relationship for the provision of goods or services or the extension of commercial credits in connection with such contracts.
2. Each Party reserves the right to deny to any company the advantages of this Treaty if nationals of any third country control such company and, in the case of a company of the other Party, that company has no substantial business activities in the territory of the other Party or is controlled by nationals of a third country with which the denying Party does not maintain normal economic relations.

3. Any alteration of the form in which assets are invested or re-invested undertaken in accordance with the laws of the Party concerned, provided that the application of such laws does not impair any rights conferred by this Treaty, shall not affect their character as investment.


ARTICLE II
Treatment of Investment

1. Each Party shall permit, in accordance with its relevant laws and regulations, and treat investment and associated activities on a nondiscriminatory basis, subject to the right of each Party to make or maintain exceptions falling within one of the sectors or matters listed in the Annex to this Treaty. Each Party agrees to notify the other Party before or on the date of entry into force of this Treaty of all laws and regulations of which it is aware concerning the sect-ors or matters listed in the Annex. Moreover, each Party agrees to notify the other of any future exception with respect to the sectors or matters listed in the Annex, and to limit such exceptions to a minimum. Any future exceptions by either Party shall not apply to investment existing in that sector or matter at the time the excep-tion becomes effective. Except as stated otherwise in the Annex, the treatment accorded pursuant to any exceptions shall not be less favorable than that accorded in like situations to investments and associated activities of nationals or companies of any third country, except with respect to ownership of real property. Rights to engage in mining on the public domain shall be dependent on reciprocity.
2. Subject to the laws relating to the entry and sojourn of aliens, nationals of either Party and their families shall be permitted to enter and to remain in the territory of the other Party for the pur-pose of establishing, developing, administering or advising on the operation of an investment to which they, or a company of the first Party that employs them, have committed or are in the process of committing a substantial amount of capital or other resources.
3. Companies of a Party which are investments shall be permit-ted to engage professional, technical, and managerial personnel of their choice, regardless of nationality.
4. Neither Party shall impose, as a condition of establishment, expansion or maintenance of investments, any performance re-quirements which require or enforce commitments to export goods produced, or which specify that goods or services must be pur-chased locally, or which impose any other similar requirements or measures.
5. The treatment accorded by the United States of America to in-vestments and associated activities under the provisions of this Article shall in any State, Territory or possession of the United States of America be the treatment accorded therein to companies legally constituted under the laws and regulations of any other State, Ter-ritory or possession of the United States of America.
6. Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law. Neither Party shall in any way impair by arbitrary and dis-criminatory measures the management, operation, maintenance, use, enjoyment, acquisition, expansion or disposal of investments. Each Party shall observe any obligation it may have entered into with regard to investments.
7. Each Party shall provide effective means of asserting claims and enforcing rights with respect to investments under this Treaty and authorizations relating thereto, with the exception of denials thereof, and investment agreements.
8. Subject to the right to make or maintain exceptions falling within one of the sectors or matters listed in the Annex, each Party shall accord nondiscriminatory treatment to nationals and companies of the other Party in the conduct of their investment and associated activities with respect to:
(a) the granting of franchises or rights under licenses;
(b) the issuance of registrations, licenses, permits and other
approvals necessary for the conduct of commercial activity, which shall in any event be issued expeditiously;
(c) access to financial institutions and credit markets;
(d) access to their funds held in financial institutions;
(e) the importation and installation of equipment necessary
for the normal conduct of business affairs, including, but not limited to office equipment and automobiles, and the export of any equipment and automobiles so imported;
(f) the dissemination of commercial information;
(g) the conduct of market studies;
(h) the appointment of commercial representatives, including agents, consultants and distributors and their participation in trade fairs and promotion events;
(i) the marketing of goods and services, including through in-ternal distribution and marketing systems and by direct con-tract with individuals and companies;
(j) access to public utilities, public services and commercial rental space at nondiscriminatory prices, if the prices are set or controlled by the government;
(k) access to raw materials, inputs and services of all types at nondiscriminatory prices, if the prices are set or controlled by the government.
9. Subject to the right to make or maintain exceptions falling within one of the sectors or matters listed in the Annex, for pur-poses of facilitating investment and associated activities, each Party shall accord nondiscriminatory treatment to nationals and companies of the other Party with respect to the sale, offering for sale and acquisition of equity shares and other securities. With re-spect to acquisition of interests in any governmentally-owned en-terprise or organization undergoing privatization, the Republic Poland shall provide most-favored nation treatment to nation and companies of the United States.

ARTICLE III

1. Each Party will encourage the participation of its national and companies in trade promotion events such as fairs, exhibition, missions and seminars held in the territory of the other Party. Similarly, each Party will encourage nationals and companies of the other Party to participate in trade promotion events in its territory. Subject to the laws in force within their territories, the Parties agree to allow the import and re-export on a duty-free basis of all articles for use in trade promotion events, provided that such articles are not sold or otherwise transferred.
2. Subject to the right to make or maintain exceptions falling within one of the sectors or matters listed in the Annex, for purposes of facilitating trade between the Republic of Poland and the United States in goods and services, each Party shall accord non- discriminatory treatment to nationals and companies of the other Party in the conduct of their commercial activities with respect to:
(a) the granting of franchises or rights under licenses;
(b) the issuance of registrations, licenses, permits and other approvals necessary for the conduct of commercial activity which shall in any event be issued expeditiously;
(c) access to financial institutions and credit markets;
(d) access to their funds held in financial institutions;
(e) the importation and installation of equipment necessary for the normal conduct of business affairs, including, but not limited to office equipment and automobiles, and the export of any equipment and automobiles so imported;
(f) the dissemination of commercial information;
(g) the conduct of market studies;
(h) the appointment of commercial representatives, including agents, consultants and distributors and their participation ir trade fairs and promotion events;
(i) the marketing of goods and services, including through internal distribution and marketing systems and by direct con tact with individuals and companies;
(j) access to public utilities, public services and commercia rental space at nondiscriminatory prices, if the prices are sei or controlled by the government;
(k) access to raw materials, inputs and services of all types ai nondiscriminatory prices, if the prices are set or controlled by the government.
3. Nationals and companies of each Party in the conduct of commercial activities shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law. Neither Party shall in any way impair by arbitrary and discriminatory measures the conduct of commercial activities. Each Party shall observe any obligation it may have entered into with regard to the conduct of commercial activities.
4. Each Party agrees to notify the other Party before or on the date of entry into force of this Treaty of all laws and regulations of which it is aware concerning the sectors or matters listed in the Annex. Moreover, each Party agrees to notify the other of any future exceptions with respect to the sectors or matters listed in the Annex, and to limit such exceptions to a minimum. Any future exceptions by either Party shall not apply to commercial activities conducted in that sector or matter at the time the exception be-comes effective. Except as stated otherwise in the Annex, the treat-ment accorded pursuant to any exceptions shall not be less favor-able than that accorded in like situations to commercial activities of nationals or companies of any third country.
5. Each Party shall provide effective means of asserting claims and enforcing rights with respect to agreements in connection with the conduct of commercial activity.
6. The Parties endorse the use of arbitration, under internation-ally recognized rules, for the settlement of commercial disputes be-tween nationals and companies of the Republic of Poland and na-tionals and companies of the United States. Neither Party shall require that the place of any arbitration be in the United States or the Republic of Poland.
7. Subject to the laws relating to the entry and sojourn of aliens, nationals of either Party and their families shall be permitted to enter and to remain in the territory of the other Party for the pur-pose of carrying on trade between the territory of the two Parties and engaging in commercial activities.
8. The treatment accorded by the United States of America to nationals and companies of the Republic of Poland under the provi-sions of this Article shall in any State, Territory or possession of the United States of America be the treatment accorded therein nationals and companies legally constituted under the laws and regulations of any other State, Territory or possession of the United States of America.

ARTICLE IV
Protection of Intellectual Property


The Parties shall provide adequate and effective protection and enforcement of intellectual property rights. To establish such pro-tection, each Party agrees, inter alia, to:
-extend copyright protection to computer program as liter-ary works;

-provide product as well as process patent protection for pharmaceuticals and chemicals for a term at least equivalent to that provided to other patentable subject matter;
-provide adequate and effective protection for integrated circuit layout design (mask works);
-provide adequate and effective protection against unfair competition.

ARTICLE V

Transfers


1. Each Party shall permit all transfers related to an investment of commercial activity to be made freely and without delay into and out of its territory. Such transfers include:
(a) returns;
(b) compensation pursuant to Article VII
(c) payments arising out of an investment dispute or commercial dispute;
(d) payments made under a contract, including amortization of principal and accrued interest payments made pursuant to a loan agreement;
(e) proceeds from the sale or liquidation of all or any part of an investment; and
(f) additional contributions to capital for the maintenance or development of an investment. 2. Except as provided in Article VII paragraph 1, transfers shall be made in a freely usable currency at the prevailing market rate of exchange for commercial transactions on the date of transfer with respect to spot transactions in the currency to be transferred.
3. Notwithstanding the provisions of paragraphs 1 and 2, either Party may maintain laws and regulations (a) requiring reports of currency transfer; and (b) imposing income taxes by such means as a withholding tax applicable to dividends or other transfers. Fur-thermore, either Party may protect the rights of creditors, or ensure the satisfaction of judgments in adjudicatory proceedings, through the equitable, nondiscriminatory and good faith application of its law.
ARTICLE VI



1. With respect to its tax policies, each Party should strive to accord fairness and equity in the treatment of investment of, and commercial activity conducted by, nationals and companies of the other Party.
2. Nevertheless, the provisions of this Treaty, and in particular Articles IX and X, shall apply to matters of taxation only with re-spect to the following:
(a) expropriation, pursuant to Article VII;
(b) transfers, pursuant to Article V; or
(c) the observance and enforcement of terms of an investment agreement or authorization as referred to in Article IX(l) (a) or (b),
to the extent they are not subject to the dispute settlement provi-sions of a convention for the avoidance of double taxation between the two Parties, or have been raised under such settlement provisions and are not resolved within a reasonable period of time.
ARTICLE VII

1. Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropria-tion or nationalization ("expropriation") except for a public pur-pose, in a nondiscriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law and the general principles of treatment provided for in Article II (6). Compensation shall be equivalent to the fair
market value of the expropriated investment immediately before the expropriatory action was taken or became publicly known, whichever is earlier; be paid without delay; include interest at a commercially reasonable rate, such as LIBOR plus an appropriate margin, from the date of expropriation; be fully realizable; be freely transferable; and calculated on the basis of the prevailing market rate of exchange for commercial transactions on the date of expropriation.
2. A national or company of either Party that asserts that all or part of its investment has been expropriated shall have a right to prompt review by the appropriate judicial or administrative authorities of the other Party to determine whether any such expropriation has occurred and, if so, whether such expropriation, and any compensation therefor, conforms to the provisions of this Treaty and to principles of international law.
3. Nationals or companies of either Party whose investments suffer losses in the territory of the other Party owing to war or other armed conflict, revolution, state of national emergency, insurrection, civil disturbance or other similar events shall be accorded nondiscriminatory treatment by such other Party as regards any measures it adopts in relation to such losses.
Article VIII
Exchange of Information and Transparency
1. Each Party acknowledges the desirability of facilitating the collection and exchange of all non-confidential, non-proprietary information relating to investments and commercial activities within its territory.
2. Each Party shall make publicly available all non-confidential, non-proprietary information which may be useful in connection with investment and commercial activities. In addition, each Party shall promptly make public all laws, regulations, administrative practices and procedures, and adjudicatory decisions having general application that pertain to or affect commercial activities or investments.
3. The Parties shall disseminate to their respective business communities such information made available under paragraph 2 which will assist their nationals and companies in pursuing the most expeditious and equitable settlement of any dispute affecting them which may arise under this Treaty. Such information may be related to timeliness of decisions and vindication of rights under the Treaty.
Article IX

Settlement of Disputes Between a Party and an Investor of the Other Party

1. For purposes of this Article, an investment dispute is defined as a dispute involving (a) the interpretation or application of an investment agreement between a Party (including any agency or instrumentality of such Party) and a national or company of the other Party; (b) the interpretation or application of any investment authorization granted by a Party's foreign investment authority to such national or company; or (c) an alleged breach of any right conferred or created by this Treaty with respect to an investment. A decision of a Party which denies entry if an investment shall not constitute an investment dispute within the meaning of this Article.
2. In the event of an investment dispute between a Party and a national or company of the other Party, the parties to the dispute shall initially seek to resolve the dispute by consultation and negotiation, which may include the use of non-binding, third party procedures. Each Party shall encourage its nationals and companies to resort to local courts, especially for the resolution of disputes relating to administrative actions. Subject to paragraph 3 of this Article, if the dispute cannot be resolved through consultation and negotiation, the dispute shall be submitted for settlement in accordance with previously agreed, applicable dispute-settlement procedures. Any dispute-settlement procedures, including those relating to expropriation, specified in the investment agreement shall remain binding and shall be enforceable in accordance with the terms of the investment agreement, relevant provisions of domestic laws and applicable international agreements regarding enforcement if arbitral awards.
3. (a) At any time after six months from the date on which the dispute arose, the national or company concerned may choose to consent in writing to the submission of the dispute for settlement by conciliation or binding arbitration to the International Centre for the Settlement of Investment Disputes ("Centre") or to the Additional Facility of the Centre or pursuant to the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL") or pursuant to the arbitration rules of any arbitral institution mutually agree between the parties to the dispute. Once the national or company concerned has so consented, either party to the dispute may institute such proceeding provided:
(i) The dispute has not been submitted by the national or company for resolution in accordance with any applicable previously agreed dispute-settlement procedures; and
(ii) the national or company concerned has not brought the dispute before the courts of justice or administrative tribunals or agencies of competent jurisdiction of the Party that is a party to the dispute.

If the parties disagree over whether conciliation or binding arbitration is the more appropriate procedure to be employed, the opinion of the national or company concerned shall prevail.

(b) Each Party hereby consents to the submission of an investment dispute for settlement by conciliation or binding arbitration:
(i) To the Centre, in the event that the Republic of Poland becomes a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States done at Washington, March 18, 1965 ("Convention") and the Regulations and Rules of the Centre, and to the Additional Facility of the Centre, and
(ii) to an arbitral tribunal established under the UNCITRAL Rules, as those Rules may be modified by mutual agreement of the parties to the dispute, the appointing authority referenced therein to be Secretary General of the Centre.

(c) Conciliation or arbitration of disputes under (b) (i) shall be done applying the provisions of the Convention and the Regulations and Rules of the Centre, or of the Additional Facility as the case may be.
(d) The place of any arbitration conducted under this Article shall be a country which is a party to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
(e) Each Party undertakes to carry out without delay the provisions of any award resulting from an arbitration held in accordance with this Article. Further, each Party shall provide for the enforcement in its territory of such arbitral awards.
4. In any proceeding involving an investment dispute, a Party shall not assert, as defense, counter-claim, right of set-off or otherwise, that the national or company concerned has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of its alleged damages. However, to the extent that a Party succeeds to the rights or claims of the national or company concerned by reason of subroga-
tion or assignment, the national or company concerned shall not continue to pursue such rights and claims in its own name unless authorized to do so on behalf of the subrogee or assignee.
5. In the event of an arbitration, for the purposes of this Article any company legally constituted under the applicable laws and regulations of either Party or a political subdivision thereof but that, immediately before the occurrence of the event or events giving rise to the dispute, was an investment of nationals or companies of the other Party, shall be treated as a national or company of such other Party, in accordance with Article 25(2)(b) of the Convention.
ARTICLE X
1. The Parties agree to consult promptly, on the request of either Party, to resolve any disputes in connection with this Treaty, or to discuss any matter relating to the interpretation or application of this Treaty.
2. Any dispute between the Parties concerning the interpretation or application of this Treaty which is not resolved within six months through consultations or other diplomatic channels, shall be submitted, upon the request of either Party, to an arbitral tribu-nal for binding decision in accordance with this Treaty and the ap-plicable rules of international law. In the absence of an agreement by the Parties to the contrary, the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL), except to the extent modified by the Parties or by the arbitrators, shall govern.
3. Within two months of receipt of a request, each Party shall appoint an arbitrator. The two arbitrators shall select a third arbi-trator as Chairman, who is a national of a third State. The UNCITRAL Rules for appointing members of three member panels shall apply mutatis mutandis to the appointment of the arbitral panel except that the appointing authority referenced in those rules shall be the Secretary General of the Centre.
4. Unless otherwise agreed, all submissions shall be made and all hearings shall be completed within six months of the date of selec-tion of the third arbitrator, and the Tribunal shall render its deci-sions within two months of the date of the final submissions or the date of the closing of the hearings, whichever is later.
5. Expenses incurred by the Chairman, the other arbitrators, and other costs of the proceedings shall be paid for equally by the Par-ties. The Tribunal may, however, at its discretion, direct that a high proportion of the costs be paid by one of the Parties. Each Party shall bear the expense of its representation in the proceed-ings before the arbitral tribunal.
ARTICLE XI


Disputes Not Covered by Articles IX and X
The provisions of Articles IX and X shall not apply to a dispute arising (a) under the export credit, guarantee or insurance programs of the Export-Import Bank of the United States or (b) under other official credit, guarantee or insurance arrangements pursuant to which the Parties have agreed to other means of settling disputes.


ARTICLE XII
Reservation of Rights

1. This Treaty shall not derogate from:
(a) laws and regulations, administrative practices or proce-dures, or administrative or adjudicators decisions of either Party;
(b) international legal obligations; or
(c) obligations assumed by either Party, including those contained in an investment or commercial agreement or an investment authorization, that entitle commercial activities, investments or associated activi-ties to treatment more favorable than that accorded by this Treaty in like situations.
2. The nondiscrimination and most-favored nation provisions of this Treaty shall not apply to advantages accorded by either Party to nationals or companies of any third country by virtue of:
(a) that Party's binding obligations that derive from full membership in a free trade area or customs union or existing binding obligations under the Council of Mutual Economic As-sistance; or
(b) that Party's binding obligations under any multilateral international agreement under the framework of the General Agreement on Tariffs and Trade entered into subsequent to this Treaty.
3. This Treaty shall, not preclude the application by either Party of measures necessary for the maintenance of public order, the ful-fillment of its obligations with respect to the maintenance or resto-ration of international peace or security, or the protection of its
own essential security interests.
4. This Treaty shall not preclude either Party from prescribing special formalities in connection with the establishment of investments or the conduct of commercial activities, but such formalities shall not impair the substance of any of the rights set forth in this treaty.
5. This Treaty shall not preclude either Party from establishing qualifications for the practice of professions.
ARTICLE XIII



This Treaty shall apply to the political subdivisions of the Parties.


ARTICLE XIV
Entry Into Force and Termination

1. This Treaty shall be ratified and shall enter into force on the thirtieth day following the date of the exchange of instruments of ratification which shall take place in Warsaw. It shall remain in force for a period of ten years and shall continue in force unless terminated in accordance with paragraph 3 of this Article.
2. This Treaty shall apply to investments and associated activi-ties and to commercial activities existing at the time of entry into force as well as to investments made or acquired and commercial activities undertaken while this Treaty is in force.
3. Either Party may, by giving one year's written notice to the other Party, terminate this Treaty at the end of the initial ten year period or at any time thereafter.
4. With respect to investments made or acquired and commercial activities undertaken prior to the date of notice of termination of this Treaty and to which this Treaty otherwise applies, the provi-sions of all of the other Articles of this Treaty shall thereafter con-tinue to be effective for a further period of ten years from such date of termination.
5. The Annex, Protocol and related letters exchanged this day on assistance to investors, tourism and travel-related services, intellec-tual property, and entry of United States investments shall form an integral part of the Treaty.


IN WITNESS WHEREOF, the respective plenipotentiaries have signed this Treaty.

DONE in duplicate at Washington on the twenty-first day of March, 1990 in the English and Polish languages, both texts being equally authentic.



For the United States of America:


For the Republic of Poland:


ANNEX

1. Consistent with Article II, paragraph 1, the United States re-serves the right to make or maintain limited exceptions in the sec-tors or matters it has indicated below:

2. Consistent with Article II, paragraphs 1 and 9, the United States shall accord treatment in accordance with its laws and regu-lations with respect to primary dealership in U.S. government securities; maritime related services; and the sale, offering for sale and acquisition of equity shares and other securities and all serv-ices and activities related thereto.
3. Consistent with Article III, paragraph 2, the United States re-serves the right to make or maintain limited exceptions in the sec-tors or matters noted in paragraph 1 of this Annex.
4. Consistent with Article 11, paragraph 1, the Republic of Poland reserves the right to make or maintain limited exceptions in the sectors or matters it has indicated below:

The Republic of Poland reaffirms its intention to eliminate the state monopoly status of a number of sectors and matters listed above. As the process of privatization and demonopolization pro-gresses, the Republic of Poland intends to remove some of these sectors or matters from the list of exceptions in this Annex. The Republic of Poland will notify the Government of the United States the measures being taken in fulfillment of the Republic of Poland takes note of the particular interest in the sectors of telecommunications, publishing and printing, banking and other finan-cial services (including insurance).


5. Consistent with Article II, paragraph 8(c), the Republic of Poland shall accord the treatment provided therein with respect to access to financial institutions and credit markets only to (i) na-tionals of the United States legally resident in the territory of the Republic of Poland; and (ii) companies incorporated in the republic of Poland which are owned or controlled directly or indirectly by nationals or companies of the United States. The Parties under-stand that these Limitations shall be eliminated upon the introduc-tion of the full convertibility of the zloty.
6. Consistent with Article III, paragraphs 2(c) and 4, the Republic of Poland shall accord the treatment provided therein with respect to access to financial institutions, credit markets and foreign ex-change only to (i) nationals of the United States legally resident in the territory of the Republic of Poland; and (ii) companies incorpo-rated in the Republic of Poland which are owned or controlled di-rectly or indirectly by nationals or companies of the United States. The Parties understand that these limitations shall be eliminated immediately upon the introduction of the full convertibility of the zloty.

7. During the period of transformation of Polish economic law but in no case beyond December 31, 1992, the Republic of Poland may add to the list of sectors or matters indicated in this Annex if needed in order to comply with changes in Polish law, provided that any such modifications shall be kept to a minimum and shall not significantly impair investment or commercial opportunities for nationals and companies of the United States under this Treaty. Any modifications under this paragraph shall not apply to investments and associated activities existing at the time such modifications become effective.


PROTOCOL

1. The Republic of Poland agrees that nationals and companies of the United States shall be free to select commercial agents of their choice and to agree upon commission rates with such agents.
2. The Parties understand that with respect to transfers re-ferred to in Article V, paragraph 1 of the Treaty, the term "with-out delay" means that transfers should be made in accordance with normal banking and commercial practices. The Parties further un-derstand that normal banking and commercial practices in the Re-public of Poland are generally governed by the National Bank of Poland. Under current provisions issued by the Bank, companies which are investments can obtain foreign exchange within three working days if such foreign exchange is obtained from a bank li-censed to conduct foreign exchange transactions, and eight working days in all other instances in connection with payments for import-ed goods and related services.
3. The Republic of Poland affirms its policy of ensuring that bank deposits held within the territory of Poland receive a positive real rate of interest.
4. Notwithstanding the provisions of Article V, paragraph with regard to the Republic of Poland the transfer of profits derived from an investment exceeding the amount transferrable under Article 19, paragraph 1, of the Law of December 23, 1988 on Economic Activity with the Participation of Foreign Parties shall be made according to the following schedule:
As of 1st January 1992: 20 percent of the remaining profits gained in 1990-1991 and not previously transferred.
As of lst January 1993: 35 percent of the remaining profits gained in 1990-1992 and not previously transferred.
As of lst January 1994: 50 percent of the remaining profits gained in 1990-1993 and not previously transferred.
As of lst January 1995: 80 percent of the remaining profits gained in 1990-1994 and not previously transferred.
As of lst January 1996: 100 percent of the remaining profits gained in 1990-1995 and not previously transferred, and 100 percent of profits gained thereafter.

If the Republic of Poland introduces full convertibility of its cur-rency before lst January 1996, transfers of profits shall be made without restrictions from the date of introduction of full convert-ibility.

5. The Republic of Poland shall ensure that the opportunity exists to invest profits which cannot be transferred in accordance with paragraph 4 of this Protocol in a bank account that yields a positive real rate of interest.



Mr. DARIUSZ LEDWOROWSKI, Undersecretary of State, Ministry of Foreign Economic Relations, Warsaw, Poland

DEAR MR. MINISTER: I have the honor to confirm the following understanding in relation to United States companies and Polish companies which was reached between the delegations of the United States and the Republic of Poland in the course of negotia-tions of the Treaty Concerning Business and Economic Relations signed this day:
The Government of the Republic of Poland agrees to designate within the Agency for Foreign Investments a Deputy President to assist U.S. nationals and companies in deriving the full benefits of the Treaty in connection with their investment and associated activities.
I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business a Economic Relations.

I would be grateful if you would confirm that this understanding is shared by your Government.



[DEPARTMENT OF STATE, DIVISION OF LANGUAGE SERVICES-TRANSLATION LS No. 132108 A JS/AO Polish]

MINISTRY OF ECONOMIC COOPERATION WITH FOREIGN COUNTRIES,
Under Secretary of State.
Hon. ROBERT A. MOSBACHER,

Secretary of Commerce, US. Department of Commerce, Washington,

DEAR MR. SECRETARY: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States in the course of the negotiations of the Treaty Concerning Business and Economic Relations signed this day:
[The English translation of this letter agrees in all substantive respects with the text of Secretary Mosbacher's letter on assistance to investors.]
I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.
I would be grateful if you would confirm that this understanding is shared by your Government.

(S) D. LEDWOROWSKI.

WASHINGTON, March 21, 1990.

Mr. DARIUSZ LEDWOROWSKI,
Under Secretary of State, Ministry of Foreign Economic Relations, Warsaw, Poland.

DEAR MR. MINISTER: I have the honor to confirm the following understanding in relation to United States companies and Polish companies providing tourism and travel-related services, which was reached between the delegations of the United States and the Re-public of Poland in the course of negotiations of the Treaty Con-cerning Business and Economic Relations signed this day.
1. The Parties recognize the need to encourage and promote the growth of tourism and travel-related investment and trade between the United States of America and the Republic of Poland,
2. The Parties recognize the benefits to both economics of in-creased tourism and travel-related investment in and trade be-tween their two territories.
3. Each Party shall ensure, within the scope of its legal author-ity, that any company owned, controlled or administered by that Party, or any joint venture therewith, which effectively controls a significant portion of supply of any travel or tourism services shall provide that service to the nationals and companies of the other Party on a fair and equitable basis.
In furtherance of the provisions of this letter, we take note of the Agreement between the Government of the United States of Amer-ica and the Government of the Polish People's Republic on the De-velopment and Facilitation of Tourism, signed on September 20, 1989.
Nothing in this understanding shall be construed to mean that tourism and travel-related services shall not receive the benefits from the Treaty Concerning Business and Economic Relations as fully as other industries and sectors.
I have the honor to propose that this understanding be treated as an integral party of the Treaty Concerning Business and Economic Relations.
I would be grateful if you would confirm that this understanding is shared by your Government.
[DEPARTMENT OF STATE, DIVISION OF LANGUAGE SERVICES-TRANSLATION LS No. 132108 A JS/AO Polish]

MINISTRY OF ECONOMIC COOPERATION WITH FOREIGN COUNTRIES,
Under Secretary of State.

Hon. ROBERT A. MOSBACHER,
Secretary of Commerce, U.S. Department of Commerce, Washington, DC.

DEAR MR. SECRETARY: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland the United States in the course of the negotiations of the Treaty Concerning Business and Economic Relations signed this day.
[The English translation of this letter agrees in all substantive respects with the text of Secretary Mosbacher's letter on tourism.]
I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.
I would be grateful if you would confirm that this understanding is shared by your Government.


U.S. TRADE REPRESENTATIVE,
EXECUTIVE OFFICE OF THE PRESIDENT,
Mr. DARIUSZ LEDWOROWSKI,
Under Secretary of State, Ministry of Foreign Economic Relations,
DEAR MR. MINISTER: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States of America in the course of negotiating the Treaty Concerning Business and Economic Relations signed on this day.
The Republic of Poland will adhere to the Paris Act of the Berne Convention for the Protection for Literary and Artistic Works before 1 January 1991.
The Republic of Poland will explicitly extend copyright protec-tion to computer software before 31 December 1991. The terms of protection for computer software will be equivalent to that provid-ed for other literary works.
The Republic of Poland will provide a term of protection of twenty years from filing for patents in all areas of technology will limit the scope of application of criteria of compulsory lice by 31 December 1991, as provided in the attached Annex 1.
The Republic of Poland will provide patent protection for food-stuffs, pharmaceutical products, and chemical products by 31 De-cember 1992. The protection provided will have the characteristics enumerated in the attached Annex 1.
The Republic of Poland will provide adequate and effective pro-tection for integrated circuit layout designs by 31 December 1991. The protection provided will have the characteristics enumerated in the attached Annex 2.
The Republic of Poland will provide adequate and effective pro-tection against unfair competition, particularly protection for pro-prietary information by 31 December 1991. The protection provided will have the characteristics enumerated in the attached Annex 3.
The Republic of Poland will participate constructively in the Uruguay Round Negotiations on Trade-Related Aspects of Intellec-tual Property Protection.

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding is shared By your Government.


U.S. Trade Representative.

ANNEX 1
PRODUCT PROTECTION

The Republic of Poland will provide adequate and effective Protection of patents, which includes the following characteristics:
1. Parties may limit the patent owner's exclusive rights solely through non-exclusive compulsory licenses and only to remedy an abuse of exclusive rights, such as adjudicated violation of competi-tion laws or to address, during its existence, a declared national emergency. Compensation to the patent owner commensurate with the market value for the license of the patent shall be required when the compulsory license is issued. Such compulsory licenses shall be subject to judicial review.

2. The Parties may use patents for governmental purposes on a non-exclusive basis provided that such use does not substantially prejudice the legitimate economic interests of the patent owner.

3. For the purpose of satisfying the Polish market through local manufacture, if economically justifiable, the Republic of Poland shall provide transitional protection for products not currently pat-entable under Polish law which have the following characteristics:
(i) The product will be patentable after 31 December 1992 in the Republic of Poland;
(ii) A patent has been issued for the product in a country which currently grants product patents for that class of inven-tions; and
(iii) The product has not been marketed in the Republic of Poland.

Owners of products meeting these criteria shall have the right to obtain an exclusive registration to produce and market the product in the Republic of Poland if the patent owner applies for Polish marketing approval within six months of obtaining their first mar-keting approval in any country and if they meet Polish require-ments for marketing approval.
The term of the exclusive right to produce and market in the Re-public of Poland shall be the same as the unexpired term of the patent in the country of original registration.


ANNEX 2

The Republic of Poland will provide protection for integrated cir-cuit layout designs. The protection will have the following charac-teristics.

1. Protection shall be granted to any original layout design incor-porated in a semiconductor integrated circuit chip, however the layout design is fixed or encoded.

2. If protection is conditioned upon registration of the layout de-signs, the applicant for a registration must be given at least two years from first commercial exploitation of the layout design to apply for registration. If deposits of identifying material or other material related to the layout design are required, the applicant for registration must not be required to disclose sensitive or confidential information unless it is essential to allow identification of the layout design.
3. The term of protection shall be at least ten years from the date of registration or, if registration is not required, from the date first commercial exploitation, whichever is earlier.
4. The owner of the layout-design shall have the exclusive right to:
reproduce the layout design;
incorporate the layout design in a semiconductor integrated circuit chip; and
import or distribute a semiconductor integrated circuit chip incorporating the layout design including products incorporat-ing such chips.

5. Protection does not have to extend to layout-designs that are commonplace in the integrated circuit industry at the time of their creation, or to layout-designs that are exclusively dictated by the functions of the integrated circuit to which they apply.
6. Compulsory licenses shall be non-exclusive and shall only be granted to remedy an abuse of an exclusive right such as adjudicat-ed violation of competition laws or to address, during its existence, a declared national emergency. Semiconductor integrated circuit layout-designs may be used for governmental purposes on a non-ex-clusive basis. Compensation commensurate with the market value of license of the semiconductor integrated circuit layout design shall be provided when the government uses a layout design for governmental purposes or grants a compulsory license during a declared, national emergency. Decisions to grant a compulsory license and the compensation provided shall be subject to judicial review
7. The following acts should be exempted from liability:
a. reproduction of a layout design for purposes of teaching, analysis, or evaluation in the course of preparation of a layout design that is itself original;
b. importation and distribution of semiconductor integrated circuit chips, incorporating a protected layout design, which were sold by or with the consent of the owner of the layout
design; and
c. importation or distribution of a semiconductor integrated circuit chip incorporating a protected layout design by a person who establishes that he or she did not know, and had no reasonable grounds to believe, that the layout design was protected, provided that such person is liable for reasonable royalties after notice is received.




ANNEX 3
PROTECTION OF PROPRIETARY INFORMATION

The Republic of Poland will provide adequate and effective pro-tection for proprietary information, which includes any formula, device, compilation of information, computer program, pattern, technique or process that is used or could be used in the owner's business and has actual or potential economic value from not being generally known. The protection will have the following character-istics.
1. The Republic of Poland will provide protection for proprietary information, whether such information is of a technical or commer-cial nature, provided that such proprietary information.

a. has actual or potential commercial value from not being known to the relevant public;

b. is not readily accessible; and
c. has been subject to reasonable efforts, under the circumstances, by the rightful proprietor to maintain the secrecy.

2.a. The appropriation, disclosure, and use of proprietary infor-mation without the consent of the proprietor shall be unlawful.
b. The Republic of Poland shall provide a equate legal remedies in administrative, civil, and criminal law to deter unlawful appro-priation, use, and disclosure of proprietary information and provide full compensation for injury incurred. The lifespan of proprietary information shall not be limited so long as the conditions in para-graph 1 are met.
3.a. The Republic of Poland shall not discourage or impede volun-tary licensing of proprietary information by granting licensees legal permission to disclose such information to third parties or to the public without the consent of the proprietor or by imposing ex-cessive or discriminatory conditions on such licenses.
b. The Republic of Poland, when requiring that proprietary infor-mation be submitted to carry out governmental functions, shall not use the information for the commercial or competitive benefit of the government or of any person other than the owner, except with the owner's consent, on payment of the reasonable value of the use, r if a reasonable period of exclusive use is given the owner.
c. The Republic of Poland may disclose such proprietary information, or require that the owners of the proprietary information dis-close it to third parties, only with the owner's consent or to the degree required to carry out necessary government functions, or when the owner is given an opportunity to enter into confidential-ity agreements with any non-government agency receiving proprie-tary information to prevent further disclosure.


DEAR MS. AMBASSADOR: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States in the course of the negotiations of the Treaty Concerning Business and Economic Relations signed this day.

[The English translation of this letter agrees in all substantive respects with the text of Ambassador Hills' letter on intellectual property.]

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

(S) D. LEDWOROWSKI.



WASHINGTON, DC, March 21, 1990.


LETTER OF SUBMITTAL

The PRESIDENT,
The White House.
THE PRESIDENT: I have the honor to submit to you the Treaty be-tween the United States and the Republic of Senegal concerning the Reciprocal Encouragement and Protection of Investment, with Protocol, signed at Washington, December 6, 1983. This treaty is among the first six treaties to be negotiated under the bilateral in-vestment treaty (BIT) program which you initiated in 1981. Devel-opment of the BIT program and the negotiation of the individual treaties have been pursued by the Office of the United States Trade Representative and the Department of State with the active participation of the Department of Commerce and the U.S. Treas-ury, in conjunction with other interested U.S. Government agen-cies. I recommend that this treaty, as well as the others concluded with the Kingdom of Morocco, the Republic of Haiti, the Republic of Panama, the Republic of Turkey, and the Republic of Zaire, be transmitted to the Senate for its advice and consent to ratification.
In 1981 you initiated the global bilateral investment treaty (BIT) program to encourage and protect U.S. investment in developing countries. By providing certain mutual guarantees and protections, a BIT creates a more stable and predictable legal framework for foreign investors in each of the treaty Parties. The negotiation of a series of bilateral treaties with interested countries establishes greater international discipline in the investment area.
The six treaties which have been signed as well as others under negotiation are an integral part of U.S. efforts to encourage other governments to adopt macroeconomic and structural policies that will promote economic growth. They are also fully consistent with your policy statement on international investment of September 9, 1983, which states that international direct investment flows should be determined by private market forces and should receive fair, equitable and non-discriminatory treatment.
Our experience to date has shown that interested countries are willing to provide U.S. investors with significant investment guar-antees and assurances as a way of inducing additional foreign in-vestment. It is our policy to advise potential treaty partners that conclusion of a BIT with the United States is an important and fa-vorable factor in the investment relationship, but does not in and of itself result in immediate increases in U.S. investment flows.

U.S. TRADE REPRESENTATIVE,
Mr. DARIUSZ LEDWOROWSKI
Under Secretary of State, Ministry of Foreign Economic Relations, Warsaw, Poland.

DEAR MR. MINISTER: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States of America in the course of negotiat-ing the Treaty concerning Business and Economic Relations (the "Treaty") signed on this day.

In the implementation of Article II, paragraph I relating to the entry of investments, the Republic of Poland shall, in its applica-tion of its relevant laws and regulations, observe the following pro-cedures and conditions in reviewing applications for entry of United States investments:

A permit for entry of United States investments shall be issued automatically within sixty days of submission of an application unless the U.S. investor is notified in writing of denial and the grounds and reasons thereof within sixty days from the date of the submission;
A permit for entry of the U.S. investment may be denied only if it presents a threat to state economic interests, to na-tional security or to the environment;
In evaluating the impact of the proposed investment on the environment, the standards used shall be those applied to domestic enterprises;
The criterion of "threat to state economic interests" shall be used only in exceptional cases and not for the purpose of limiting competition;
In implementing its investment review procedures, the Re-public of Poland shall accord nationals and companies of the United States treatment at least as favorable as that provided the nationals and companies of any third country;
Within two years from the entry into force of the Treaty, the Governments of the Republic of Poland and the United States shall review the existing statutory provisions on screening with a view to narrowing the scope of investments that require a formal entry permit and subsequently phasing out such per-mits..

I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding is shared by your government.

[DEPARTMENT OF STATE, DIVISION OF LANGUAGE SERVICES-TRANSLATION LS No. 132108 A JS/AO Polish]
DEAR Ms. AMBASSADOR: I have the honor to confirm the following understanding reached between the delegations of the Republic of Poland and the United States in the course of the negotiations of the Treaty Concerning Business and Economic Relations signed this day.

[The English translation of this letter agrees in all substantive respects with the text of Ambassador HILLS' letter on entry of in-vestments.]
I have the honor to propose that this understanding be treated as an integral part of the Treaty Concerning Business and Economic Relations.

I would be grateful if you would confirm that this understanding shared by your Government.
(S) D. LEDWOROWSKI.



WASHINGTON, DC, March 21, 1990.