Foreign investment in exploitation of minerals shall not be accepted unless the Vietnamese competent authorities advise the applicant that the investment is likely to be of net benefit to Viet Nam. In making this determination, the competent authority may consider the following factors: (6) (a) the effect of the investment on the level and nature of economic activity in Viet Nam, including the effect on employment, on the use of parts, components and services produced in Viet Nam and on exports from Viet Nam; (b) the degree and significance of participation by Vietnamese in the investment; (c) the effect of the investment on productivity, industrial efficiency, technological development and product innovation in Viet Nam; (d) the effect of the investment on competition within an industry or industries in Viet Nam; (e) the compatibility of the investment with national industrial, economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected by the investment; and (f) the contribution of the investment to Viet Nam’s ability to compete in world markets.
Sector: Oil and Gas
Sub-Sector: Oil and gas exploration, prospecting and exploitation
Obligations Concerned: National Treatment (Article 9.4) Most-Favoured-Nation Treatment (Article 9.5) Performance Requirements (Article 9.10)
Level of Government: Central
Measures: The Petroleum Law 1993 The 2000 Law No.19/2000/QH10 Amending and Supplementing a Number of Articles of the Petroleum Law 1993 The 2008 Law No.10/2008/QH12 Amending and Supplementing a Number of Articles of the Petroleum Law 1993, which was amended and supplemented under Law 19/2000/QH10 Amending and Supplementing a Number of Articles of the Petroleum Law
Description: Investment
Viet Nam Oil and Gas Group (PETROVIETNAM) is the sole authorised company with respect to oil and gas exploration, prospecting and exploitation. A contract with PETROVIETNAM is required for oil and gas activities in Viet Nam. Sub-contracts may be awarded to foreign contractors, but priority may be given to Vietnamese organisations and individuals. The execution of oil and gas contracts and their transfer to another entity must be approved by the Prime Minister. In special cases (7), the following matters are also subject to the Prime Minister’s approval: (i) the extension of the prospecting period or the term of an oil and gas contract; and (ii) the suspension time limit, not to exceed three years, in cases where the parties to an oil and gas contract negotiate to suspend the execution of a number of rights and obligations under an oil and gas contract when circumstances do not allow for prompt execution of the contract. PETROVIETNAM has the preemptive right to buy part or all of an oil and gas contract to be transferred. Foreign investors may only supply flight operation services for oil and gas activities through joint venture contracts with Vietnamese companies.
Sector: Business Services
Sub-Sector: Asset appraisal
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Decree No. 89/2013/NĐ-CP dated August 6, 2013 promulgating the implementation of some articles of the Law on Price on price appraisal
Description: Investment
Foreign organisations may not supply asset appraisal services except: (a) when they are organisations legally established and supplying asset appraisal services in their home country; and (b) in partnership with a Vietnamese asset appraisal enterprise through a limited liability company with two or more members, or a joint stock company. Foreign individuals are not permitted to supply asset appraisal services.
Sector: Real Estate
Sub-Sector:
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Law No. 66/2014/QH13 dated November 25, 2014 on Real Estate Business
Description: Investment
With respect to the construction, lease, purchase, lease-purchase and transfer of real estate properties, the Law on Real Estate Business provides more limited rights to foreign entities than Vietnamese entities. Foreign invested enterprises may only: (a) with respect to residential real estate: (i) construct residential real estate for sale, lease or lease-purchase on land allocated by the State; (ii) construct residential real estate for lease on land leased by the State; (iii) purchase, lease-purchase or rent commercial residential real estate in housing development investment projects; (iv) rent residential real-estate for sub-lease; and (v) obtain the transfer of residential real estate projects, partly or as a whole, to construct residential buildings for sale or for lease; (b) with respect to commercial real estate: (i) construct commercial buildings for sale, lease or lease-purchase on land leased by the State; (ii) construct commercial buildings on land which is leased out in industrial parks, industrial complexes, export-processing zones, hi-tech zones or economic zones for trading for their proper land use; (iii) purchase or lease-purchase commercial real estate for use according to their proper utility; (iv) rent commercial real estate for use or sub-lease; and (v) obtain the transfer of commercial real estate projects, partly or as a whole, to construct commercial buildings for sale or for lease. For greater certainty, foreign invested enterprises may also supply real estate brokerage services, real estate exchange floors, real estate consulting services and real estate management services, with respect to both residential and commercial real estate. For greater certainty, foreign invested enterprises, foreign individuals and organisations are only allowed to carry out the activities enumerated above.
Sector: Security Systems Services
Sub-Sector:
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Decree No. 52/2008/ND-CP dated 22 April, 2008 on management of security service business
Description: Investment
Foreign investment is not permitted except through a joint venture with foreign equity not exceeding 49 per cent. Foreign enterprises may not supply security system services unless they are enterprises with expertise in the security system service business, have capital amounts and total asset value of USD 500,000 or more, have operated for five consecutive years or more, and have not violated the laws of the home or relevant countries. Foreign individuals are not permitted to supply security system services. Foreigners may not be employed as security personnel.
Sector: Air Transportation, including domestic and international air transportation services
Sub-Sector:
Obligations Concerned: National Treatment (Article 9.4) Senior Management and Boards of Directors (Article 9.11)
Level of Government: Central
Measures: Decree No. 30/2013/ND-CP dated 8 April 2013
Description: Investment
Aggregate foreign capital contribution or equity is restricted to no more than 30 per cent of chartered capital or shares of a Vietnamese airline. A Vietnamese individual or legal person who is not a foreign invested enterprise must hold the largest percentage of chartered capital or shares in the airline. At least two-thirds of the total members of the executive board of a foreign invested airline established in Viet Nam must be Vietnamese. The Director General (or Director) and the legal representative of a foreign invested airline established in Viet Nam must be Vietnamese.
Sector: Education Services
Sub-Sector: Primary education services, Secondary education services
Obligations Concerned: National Treatment (Article 9.4)
Level of Government: Central
Measures: Decree No.73/2012/ND-CP dated 26 September 2012
Description: Investment
Foreign investment in the above-mentioned services is not permitted except through: (a) preschool education institutions using foreign educational programmes for foreign children; and (b) compulsory education institutions using foreign educational programmes, issuing foreign qualifications, for foreign students and some Vietnamese students. The compulsory education institutions may enrol Vietnamese students, but the number of Vietnamese students in primary schools and middle schools shall not exceed 10 per cent of the total number of students, and that in high schools shall not exceed 20 per cent of the total number of students.
ANNEX II. EXPLANATORY NOTES
1. The Schedule of a Party to this Annex sets out, pursuant to Article 9.12 (NonConforming Measures) and Article 10.7 (Non-Conforming Measures), the specific sectors, subsectors or activities for which that Party may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:
(a) Article 9.4 (National Treatment) or Article 10.3 (National Treatment);
(b) Article 9.5 (Most-Favoured-Nation Treatment) or Article 10.4 (MostFavoured-Nation Treatment);
(c) Article 9.10 (Performance Requirements);
(d) Article 9.11 (Senior Management and Boards of Directors);
(e) Article 10.5 (Market Access); or
(f) Article 10.6 (Local Presence).
2. Each Schedule entry sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Sub-Sector, where referenced, refers to the specific subsector for which the entry is made;
(c) Industry Classification, where referenced, refers to the activity covered by the non-conforming measure, according to the provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);
(d) Obligations Concerned specifies the obligations referred to in paragraph 1 that, pursuant to Article 9.12.2 (Non-Conforming Measures) and Article 10.7.2 (Non-Conforming Measures), do not apply to the sectors, subsectors or activities listed in the entry;
(e) Description sets out the scope or nature of the sectors, subsectors or activities covered by the entry to which the reservation applies; and
(f) Existing Measures, where specified, identifies, for transparency purposes, a non-exhaustive list of existing measures that apply to the sectors, subsectors or activities covered by the entry.
3. In accordance with Article 9.12.2 (Non-Conforming Measures) and Article 10.7.2 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the sectors, subsectors and activities identified in the Description element of that entry.
4. With respect to Annex II entries on Most-Favoured-Nation Treatment relating to bilateral or multilateral international agreements, the absence of language regarding the scope of the reservation for differential treatment resulting from an amendment of those bilateral or multilateral international agreements in force or signed prior to the date of entry into force of this Agreement is without prejudice to each Party’s respective interpretation of the scope of that reservation.
SCHEDULE OF AUSTRALIA
INTRODUCTORY NOTES
1. For the avoidance of doubt, in relation to education services, nothing in Chapter 9 (Investment) or Chapter 10 (Cross-Border Trade in Services) shall interfere with:
(a) the ability of individual education and training institutions to maintain autonomy in admissions policies (including in relation to considerations of equal opportunity for students and recognition of credits and degrees), in setting tuition rates and in the development of curricula or course content;
(b) non-discriminatory accreditation and quality assurance procedures for education and training institutions and their programmes, including the standards that must be met;
(c) government funding, subsidies or grants, such as land grants, preferential tax treatment and other public benefits, provided to education and training institutions; or
(d) the need for education and training institutions to comply with non-discriminatory requirements related to the establishment and operation of a facility in a particular jurisdiction.
2. For greater certainty, where Australia has more than one entry in its Schedule to Annex II that could apply to a measure, each entry is to be read independently, and is without prejudice to the application of any other entry to the measure.
Sector: All
Obligations Concerned: Market Access (Article 10.5)
Description: Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure with respect to the supply of a service by the presence of natural persons, subject to the provisions of Chapter 12 (Temporary Entry for Business Persons), that is not inconsistent with Australia’s obligations under Article XVI of GATS.
Sector: All
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5) Local Presence (Article 10.6)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure according preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation in relation to acquisition, establishment or operation of any commercial or industrial undertaking in the service sector.
Australia reserves the right to adopt or maintain any measure with respect to investment that accords preferences to any Indigenous person or organisation or providing for the favourable treatment of any Indigenous person or organisation.
For the purpose of this entry, an Indigenous person means a person of the Aboriginal and Torres Strait Islander peoples.
Existing Measures: Legislation and ministerial statements at all levels of government including Australia’s foreign investment policy, and the Native Title Act (Cth).
Sector: All
Obligations Concerned: Market Access (Article 10.5)
Description: Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure at the regional level of government that is not inconsistent with Australia’s obligations under Article XVI of GATS. For the purposes of this entry, Australia’s Schedule of Specific Commitments is modified as set out in Appendix A. For the purposes of this entry, the reference to Australia’s commitments under Article XVI of GATS includes commitments made under that Article after the date of entry into force of this Agreement.
Sector: All
Obligations Concerned: National Treatment (Article 9.4) Performance Requirements (Article 9.10)
Description: Investment
Australia reserves the right to adopt or maintain any measure with respect to proposals by foreign persons (1) and foreign government investors to invest in Australian urban land (2) (including interests that arise via leases, financing and profit sharing arrangements, and the acquisition of interests in urban land corporations and trusts), other than developed non-residential commercial real estate.
Existing Measures: Australia’s foreign investment policy, which consists of the Foreign Acquisitions and Takeovers Act 1975 (FATA) (Cth), Financial Sector (Shareholdings) Act 1998 (Cth), Foreign Acquisitions and Takeovers Regulations 1989 (Cth), and Ministerial Statements.
Sector: All
Obligations Concerned: National Treatment (Article 9.4) Most-Favoured-Nation Treatment (Article 9.5) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11)
Description: Investment
Australia reserves the right to adopt or maintain any measure to allow the screening of proposals, by foreign persons (3), to invest 15 million (4) Australian dollars or more in Australian agricultural land and 53 million (5) Australian dollars or more in Australian agribusinesses.
Existing Measures: Australia’s foreign investment policy, which consists of the Foreign Acquisitions and Takeovers Act 1975 (FATA) (Cth), Financial Sector (Shareholdings) Act 1998 (Cth), Foreign Acquisitions and Takeovers Regulations 1989 (Cth), and Ministerial Statements.
Sector: All
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5)
Description: Investment and Cross-Border Trade in Services
At the central level of government, Australia reserves the right to limit the initial transfer or disposal of government owned entities or assets, or a portion or percentage of the initial transfer, to Australian persons. For greater certainty, if Australia transfers or disposes of a government owned entity or asset in multiple phases, this right shall apply separately to each phase. At the remaining levels of government, Australia reserves the right to adopt or maintain any measure with respect to: (a) the devolution to the private sector of services provided in the exercise of governmental authority at the date of entry into force of this Agreement; and (b) the privatisation of government owned entities or assets. For the purposes of this entry, any measure adopted after the date of entry into force of this Agreement in relation to subparagraph (a) or (b) shall be deemed an existing non-conforming measure subject to paragraphs 1, 5, 6 and 7 of Article 9.12 (Non-Conforming Measures) and paragraph 1 of Article 10.7 (Non-Conforming Measures).
Sector: All
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5) Local Presence (Article 10.6)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure (6) with respect to the provision of law enforcement and correctional services, and the following services (7) to the extent that they are social services established or maintained for a public purpose: income security or insurance, social security or insurance, social welfare, public education, public training, health (8), child care, public utilities9, public transport and public housing.
Sector: Broadcasting and Audio-visual Services Advertising Services Live Performance (10)
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) (11) Performance Requirements (Article 9.10) Market Access (Article 10.5) Local Presence (Article 10.6) (12)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure (13) with respect to: (a) Transmission quotas for local content on free-to-air commercial television broadcasting services. (b) Non-discriminatory expenditure requirements for Australian production on subscription television broadcasting services. (c) Transmission quotas for local content on free-to-air radio broadcasting services. (d) Other audio-visual services transmitted electronically, in order to make Australian audio-visual content reasonably available to Australian consumers.(14) (e) Spectrum management and licensing of broadcasting services.(15) (f) Subsidies or grants for investment in Australian cultural activity. This entry does not apply to foreign investment restrictions in the broadcasting and audio-visual services sector. Existing Measures: Broadcasting Services Act 1992 (Cth) Radiocommunications Act 1992 (Cth) Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Screen Australia Act 2008 (Cth) Broadcasting Services (Australian Content) Standard 2005 Children’s Television Standards 2009 Television Program Standard 23 – Australian Content in Advertising Commercial Radio Codes of Practice and Guidelines Community Broadcasting Codes of Practice.
Sector: Broadcasting and Audio-visual Services
Obligations Concerned: Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) Performance Requirements (Article 9.10)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain, under the International Co-production Program, preferential co-production arrangements for film and television productions. Official co-production status, which may be granted to a co-production produced under these co-production arrangements, confers national treatment on works covered by these arrangements.
Existing Measures: International Co-production Program
Sector: Recreational, Cultural and Sporting Services (other than audio-visual services)
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5) Local Presence (Article 10.6)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure with respect to the creative arts (16),(17) Indigenous traditional cultural expressions and other cultural heritage. (18)
Sector: Distribution Services
Obligations Concerned: Market Access (Article 10.5)
Description: Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure with respect to wholesale and retail trade services of tobacco products, alcoholic beverages or firearms.
Sector: Education Services
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Most-Favoured-Nation Treatment (Article 9.5 and Article 10.4) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5) Local Presence (Article 10.6)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure with respect to primary education.
Sector: Gambling and Betting
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5) Local Presence (Article 10.6)
Description: Investment and Cross-Border Trade in Services
Australia reserves the right to adopt or maintain any measure with respect to gambling and betting.
Existing Measures: Legislation and ministerial statements including the Interactive Gambling Act 2001 (Cth).
Sector: Maritime Transport
Obligations Concerned: National Treatment (Article 9.4 and Article 10.3) Performance Requirements (Article 9.10) Senior Management and Boards of Directors (Article 9.11) Market Access (Article 10.5) Local Presence (Article 10.6)
Description: Cross-Border Trade in Services and Investment
Australia reserves the right to adopt or maintain any measure with respect to maritime cabotage services and offshore transport services. (19)