1. A Party may adopt or maintain restrictive measures with regard to payments or transfers for transactions related to investments:
(a) in the event of serious balance-of-payments and the external financial difficulties or threat thereof; or
(b) in exceptional cases where movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular monetary and exchange rate policies.
2. Restrictive measures referred to in paragraph 1 shall:
(a) be applied in such a manner that the other Party is treated no less favourably than any non-Party;
(b) be consistent with the Articles of Agreement of the International Monetary Fund;
(c) not exceed those necessary to deal with the circumstances set out in paragraph 1;
(d) be temporary and be phased out progressively as the situation specified in paragraph 1 improves;
(e) avoid unnecessary damages to the commercial, economic and financial interests of the other Party; and
3. The Party which has adopted any measure under paragraph 1 shall notify the other Party, as soon as possible, as to the measures taken, and the expected timetable for their removal.
Annex 9C . Taxation and Expropriation
The determination of whether a taxation measure, in a specific fact situation, constitutes an expropriation requires a case-by-case, fact-based inquiry that considers all relevant factors relating to the investment, including the factors listed in Annex 9A (Expropriation) and the following considerations:
(a) the imposition of taxes does not generally constitute an expropriation. The mere introduction of a new taxation measure or the imposition of a taxation measure in more than one jurisdiction in respect of an investment generally does not in and of itself constitute an expropriation;
(b) a taxation measure that is consistent with internationally recognised tax policies, principles, and practices should not constitute an expropriation. In particular, a taxation measure aimed at preventing the avoidance or evasion of taxation measures generally does not constitute an expropriation;
(c) a taxation measure that is applied on a non-discriminatory basis, as opposed to a taxation measure that is targeted at investors of a particular nationality or at specific taxpayers, is less likely to constitute an expropriation; and
(d) a taxation measure generally does not constitute an expropriation if it was already in force when the investment was made and information about the measure was publicly available.
Annex 9D . Submission of a Claim to Arbitration with respect to Subparagraphs 2(b) and 2(c) of Article 9.22 (Conditions and Limitations on Consent of Each Party)
1. An investor of the State of Israel shall not submit to arbitration under Section D (Investor – State Dispute Settlement) a claim that Viet Nam has breached an obligation under Section B (Non-Discrimination and Liberalisation of Investment) or under Section C (Investment Promotion and Protection), if the investor has alleged that breach of an obligation under Section B (Non-Discrimination and Liberalisation of Investment) or Section C (Investment Promotion and Protection) in any proceedings before a court or administrative tribunal of Viet Nam.
2. For greater certainty, where an investor of the State of Israel makes an allegation that Viet Nam has breached an obligation under Section B (Non-Discrimination and Liberalisation of Investment) or Section C (Investment Promotion and Protection) before a court or administrative tribunal of Viet Nam, that selection shall be final, and the investor may not thereafter allege that breach, in an arbitration under Section D (Investor – State Dispute Settlement).
3. Notwithstanding subparagraphs 2(b) and 2(c) of Article 9.22 (Conditions and Limitations on Consent of Each Party), the claimant may initiate or continue an action that seeks interim injunctive relief that does not involve the payment of monetary damages before an administrative tribunal or court of justice under the law of the respondent, provided that the action is brought for the sole purpose of preserving the claimant’s rights and interests during the pendency of the arbitration.
Chapter 10. GOVERNMENT PROCUREMENT
Article 10.1. Cooperation
1. The Parties recognise the importance of cooperation in the field of government procurement in accordance with their respective laws and regulations and given the available resources.
2. The Parties shall cooperate for the purposes of improving transparency, promoting fair competition and the use of electronic technologies in the field of government procurement.
3. Each Party shall inform the other Party as soon as possible of any significant modification of its laws, regulations and procedures relating to government procurement.
4. The cooperation activities shall include the exchange of, where appropriate, non- confidential information, consultations, as provided for in Article 10.3 (Consultations), and technical assistance.
5. The Parties shall endeavour to cooperate in the following activities:
(a) exchanging experience and information, such as regulatory frameworks, best practices and statistics;
(b) developing and expanding the use of electronic means in government procurement;
(c) capacity building for government officials in best government procurement practices;
(d) strengthening the institutional framework for the fulfilment of this Chapter; and
(e) enhancing the ability to provide multilingual access to procurement opportunities.
6. The Parties shall develop further cooperation activities such as holding seminars for suppliers to inform them of each Party’s laws, regulations and procedures relating to government procurement.
7. The Parties shall endeavour to cooperate in order to promote and facilitate the participation of goods suppliers and service providers from the Parties in government procurement tenders of the Parties, in particular in the following areas:
(a) medical equipment;
(b) pharmaceutical products;
(c) agriculture technologies;
(d) water technologies;
(e) software; and
(f) information technology.
Article 10.2. Information on the Procurement System
1. For purposes of transparency, each Party shall make its laws and regulations relating to government procurement publicly available.
2. The Parties shall exchange the lists of media resources in which the Parties publish relevant information on government procurement.
3. Each Party shall endeavour to establish and maintain electronic means for publishing its laws and regulations and information on government procurement, given available resources.
4. Each Party may expand the content of government procurement information and the scope of the services provided through electronic means.
Article 10.3. Consultations
1. On request of a Party, the other Party shall provide responses on the issues related to government procurement within a reasonable period of time.
2. In the event of any disagreement relating to the application of this Chapter, the Parties shall make every effort to reach a mutually satisfactory resolution through consultations.
3. Each Party shall accord positive consideration to, and afford adequate opportunity for, consultations regarding the implementation of this Chapter.
4. A request for such consultations shall be submitted to the other Party’s Contact Point established under Article 10.5 (Contact Points). Unless the Parties agree otherwise, they shall hold consultations within 60 days of the date of receipt of the request.
5. Consultations may be conducted in the form of a meeting or by other means agreed by the Parties.
Article 10.4. Non-Application of Dispute Settlement
Any matter arising under this Chapter shall not be subject to the dispute settlement mechanism provided for in Chapter 14 (Dispute Settlement) of this Agreement.
Article 10.5. Contact Points
1. Each Party shall designate a Contact Point to monitor the implementation of this Chapter. The Contact Points listed in Annex 10A shall work collaboratively to facilitate the implementation of this Chapter.
2. Each Party shall promptly notify the other Party of any change to its Contact Point.
Article 10.6. Review
Within three years of the date of entry into force of this Agreement, the Parties shall review this Chapter within the framework of the Joint Committee, and, subject to a decision by the Joint Committee, enter into negotiations with a view to providing each other with access to their respective government procurement markets on a reciprocal basis.
Chapter 11. EXCEPTIONS
Article 11.1. General Exceptions
1. For the purposes of Chapter 2 (Trade in Goods), Chapter 3 (Rules of Origin), Chapter 4 (Customs Procedures and Trade Facilitation), Chapter 5 (Trade Remedies), Chapter 6 (Sanitary and Phytosanitary Measures), and Chapter 7 (Technical Barriers to Trade), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.
2. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
3. For the purposes of Chapters 8 (Cross-Border Trade in Services) and 9 (Investment), Article XIV of GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis.
4. The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures necessary to protect human, animal, or plant life or health. The Parties understand that the measures referred to in Article XIV(a) of GATS include measures aimed at maintaining internal public order.
Article 11.2. Security Exceptions
Nothing in this Agreement shall be construed to:
(a) require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 11.3. Taxation
1. This Agreement does not apply to taxation measures.
2. Notwithstanding paragraph 1:
(a) Article 2.3 (National Treatment) and the other provisions of this Agreement necessary to give effect to that Article shall apply to a taxation measure to the same extent as does Article III of the GATT 1994;
(b) Article 8.3 (National Treatment) and the other provisions of this Agreement necessary to give effect to that Article shall apply to taxation measures to the same extent as does Article XVII of the GATS; and
(c) Article 8.4 (Most Favored Nation Treatment), shall apply to taxation measures to the same extent as does Article II of the GATS
3. This Agreement does not affect the rights and obligations of a Party under a tax convention. In the event of inconsistency between this Agreement and a tax convention, the tax convention prevails to the extent of the inconsistency.
Article 11.4. Disclosure of Information
1. Each Party shall, in accordance with its domestic laws and regulations, maintain the confidentiality of information provided in confidence by the other Party pursuant to this Agreement.
2. Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to public interest, or which would prejudice the legitimate commercial interests of individuals or of particular enterprises, public or private.
Chapter 12. TRANSPARENCY
Article 12.1. Publication
1. For the purposes of this Chapter:
(a) “measure of general application” includes laws, regulations, procedures and administrative rulings of general application that may have an impact on any matter covered by this Agreement; and
(b) “interested person” means any person that may be affected by a measure of general application.
2. Each Party shall ensure that measures of general application:
(a) are published promptly via an officially designated medium, including where possible electronic means, in such a manner as to enable governments and interested persons to become acquainted with them; and
(b) to the extent required by its law, allow for a sufficient period of time between publication and entry into force of such measures.
3. To the extent required by its law, each Party shall:
(a) publish in advance any such measure referred to in paragraph 1 that it proposes to adopt; and
(b) provide interested persons and the other Party for a reasonable opportunity to comment on such proposed measures.
Article 12.2. Provision of Information
Upon request of another Party, each Party shall provide information and respond to questions pertaining to any measure of general application that the requesting Party considers might materially affect the operation of this Agreement.
Article 12.3. Administrative Proceedings
In order to ensure that a measure of general application affecting a matter covered by this Agreement is applied in a consistent, impartial, and reasonable manner, a Party shall ensure that, in an administrative proceeding involving a specific case, if a measure referred to in Article 12.1 (Publication) is applied to a particular person or good of the other Party:
(a) whenever possible, a person of the other Party who is directly affected by a proceeding is given reasonable notice, in accordance with domestic procedures, when that proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of the issues;
(b) a person referred to in subparagraph (a) is afforded a reasonable opportunity to present facts and arguments in support of the person’s position prior to a final administrative action when permitted by time, the nature of the proceeding, and the public interest; and
(c) the administrative proceeding is conducted in accordance with its law.
Chapter 13. ADMINISTRATION OF THE AGREEMENT
Article 13.1. Establishment of the Joint Committee
1. The Parties hereby establish the Joint Committee.
2. The Joint Committee shall be composed of relevant government officials of each Party and shall be co-chaired by senior officials of the Parties from ministries primarily responsible for international trade.
Article 13.2. Procedures of the Joint Committee
1. The Joint Committee shall, normally, convene once every two years or when necessary upon request in writing of either Party.
2. Unless the Parties otherwise agree, meetings of the Joint Committee shall be held alternately in each country, or by any technological means available.
3. All decisions of the Joint Committee shall be taken by mutual agreement.
4. The Joint Committee shall adopt its own rules of procedure, as well as its meeting schedule and the agenda for its meetings.
Article 13.3. Functions of the Joint Committee
1. The Joint Committee shall:
(a) monitor and review the implementation and operation of this Agreement;
(b) supervise and coordinate the work of all bodies established under this Agreement;
(c) evaluate and adopt decisions as envisaged in this Agreement regarding any subject matter which is referred to it by any subcommittee, working group and other bodies established under this Agreement;
(d) establish the amount of remuneration and expenses to be paid to arbitrators under Chapter 14 (Dispute Settlement) taking into consideration WTO standards regarding remuneration;
(e) without prejudice to Chapter 14 (Dispute Settlement) and other relevant provisions of this Agreement, seek to prevent and to solve problems which might arise in areas covered by this Agreement, or resolve disputes that may arise regarding the interpretation or application of this Agreement;
(f) consider any other matters that may affect the operation of this Agreement and carry out any other functions as the Parties may agree; and
(g) consider ways to further enhance trade and investment relations between the Parties.
2. The Joint Committee may:
(a) consider and recommend to the Parties any amendments to this Agreement. If such amendment is agreed upon by the Parties, it shall enter into force in accordance with the procedure set forth in Article 15.3 (Entry into Force);
(b) modify by a Joint Committee decision:
(i) the Schedules to Annex 2B (Reduction or Elimination of Customs Duties), with the purpose of adding one or more goods excluded in the Tariff Elimination Schedule;
(ii) the phase-out periods established in Annex 2B (Reduction or Elimination of Customs Duties), with the purpose of accelerating the tariff reduction;
(iii) the specific rules of origin established in Annex 3A (Rules of Origin – Specific Rules of Origin); and
(iv) the Rules of Procedure for Arbitral Tribunal Proceedings established in Annex 14-A and the Code of Conduct established in Annex 14-B.
Each Party shall make any modifications referred to in this subparagraph, subject to the completion of its applicable internal legal procedures and upon notification of such, within such period as the Parties may agree; and
(c) adopt interpretive decisions concerning this Agreement binding on arbitral tribunals established under Article 14. 8 (Dispute Settlement – Request for the Establishment of an Arbitral Tribunal) and tribunals established under Article 9.23 (Selection of Arbitrators).
3. For the purposes of this Article, the Parties shall exchange information upon the request of either Party.
Article 13.4. Establishment of Subcommittees, Working Groups and other Bodies
1. The Parties hereby establish the following subcommittees comprising representatives from both Parties:
(a) Sub-committee on Trade in Goods;
(b) Sub-committee on Customs and Rules of Origin
(c) Sub-committee on Sanitary and Phytosanitary measures;
(d) Sub-Committee on Technical Barriers to Trade;
2. The Joint Committee may establish subcommittees, working groups, or any other bodies comprised of appropriate representatives from both Parties and delegate responsibilities to them in order to assist it in the performance of its tasks. The composition, duties and rules of procedure of such subcommittees, working groups or other bodies shall be in accordance with the relevant provisions of this Agreement or determined by the Joint Committee consistent with this Agreement.
3. The subcommittees, working groups and other bodies shall inform the Joint Committee, sufficiently in advance, of their schedule of meetings and of the agenda of those meetings. The subcommittees, working groups and other bodies, shall submit summaries of their meetings to the Joint Committee.
4. All decisions of the subcommittees, working groups and other bodies shall be taken by mutual agreement.
Article 13.5. Free Trade Agreement Coordinators
1. Each Party shall appoint a Free Trade Agreement Coordinator and notify the other Party of the details of such Coordinator within 60 days after the date of entry into force of this Agreement, as follows:
(a) For Viet Nam, the Multilateral Trade Policy Department, the Ministry of Industry and Trade, or its successor; and
(b) For Israel, Bilateral Agreements Department, Foreign Trade Administration, Ministry of Economy and Industry, or its successor.
2. The Coordinators shall jointly:
(a) develop agendas;
(b) make other preparations for the Joint Committee meetings;
(c) follow-up on the Joint Committee's decisions as appropriate;
(d) act as contact points to facilitate communication between the Parties on any matter covered by this Agreement, unless otherwise provided for in this Agreement;
(e) receive any notifications and information submitted under this Agreement, unless otherwise provided for in this Agreement;
(f) assist the Joint Committee in any other matter referred to them by the Joint Committee; and
(g) identify, upon request of the other Party, the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
Chapter 14. DISPUTE SETTLEMENT
Article 14.1. Objective
1. The objective of this Chapter is to provide an effective and efficient dispute settlement process between the Parties for the avoidance and settlement of disputes arising under this Agreement.
2. The Parties shall endeavour to agree on the interpretation and application of this Agreement and shall make all efforts through cooperation, and consultations, to arrive at a mutually satisfactory solution concerning any matter raised under the scope of this Chapter.