(i) the forum for dispute settlement being sought, under paragraph 6, Subparagraph (a), or (b);
(ii) the name and address of the disputing investor and its legal representative;
iii) the factual and legal basis of the investment dispute sufficient to present the problem clearly, including the provisions of this Agreement alleged to have been breached and the relevant measure at issue, as may be applicable; and
iv) the relief sought, and where appropriate, the approximate amount of damages claimed; and
d) the notice of arbitration being accompanied by the disputing investor's written waiver of any right to initiate (10) before any administrative tribunal or court under the law of either the disputing or the non-disputing Party, or other dispute settlement mechanisms including investment dispute settlement mechanisms under any other bilateral or multilateral agreement to which either or both the disputing Party and the non-disputing Party are parties, and any proceedings with respect to any measure of the disputing Party alleged to constitute a breach referred to in paragraph 1. Accordingly, once the disputing investor has submitted the claim to arbitration under paragraph 6, subparagraph (a), or (b), the choice of forum shall be final.
8. The applicable arbitration rules shall govern the arbitration referred to in this Article except to the extent modified by this Agreement.
Selection of Arbitrators
9. Unless the disputing parties agree otherwise, an arbitral tribunal established under paragraph 6, subparagraph (a), or (b) shall comprise three arbitrators:
(a) one arbitrator appointed by each of the disputing parties; and
(b) the third arbitrator, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
10. Unless the disputing parties agree otherwise, the third arbitrator all:
a) not be of the same nationality as the disputing investor, or be a national of the disputing Party;
(b) not have his or her usual place of residence in the Area of either the disputing Party or the non-disputing Party;
(c) not be employed by or affiliated with the disputing Party, the non-disputing Party, or the disputing investor;
(d) not have dealt with the said investment dispute in any capacity; and
(e) Have expertise or experience in public international law, international trade, or international investment rules.
(10) For greater certainty, if an investor of a Party elects to submit a claim that a Party has an obligation under Article 18.1 or any claim of the type described under Article 18.1 or administrative tribunal of a Party or any other dispute settlement mechanisms, that hall be definitive and exclusive, and the investor shall not thereafter submit the claim on under Article 18.1.
Conduct of Arbitration
11. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, the arbitral tribunal shall decide the matter before proceeding to the merits.
12. A disputing Party may file, no later than 90 days after the constitution of the arbitral tribunal, an objection that a claim is manifestly without merit or not admissible. A disputing Party may file an objection that a claim is outside the jurisdiction or competence of the arbitral tribunal. The disputing Party shall specify as precisely as possible the basis for the objection.
13. Notwithstanding paragraph 11, at any stage of the proceedings, the arbitral tribunal may consider whether the claim is admissible, or in the jurisdiction or competence of the arbitral tribunal.
14. The arbitral tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the arbitral tribunal. If the arbitral tribunal decides that the claim is manifestly without merit, or is otherwise not within its jurisdiction or competence, it shall render an award to that effect.
15. Unless the disputing parties agree otherwise, the arbitral tribunal shall determine the place of arbitration in accordance with the applicable arbitration rules, provided that the place shall be in the territory of either Party or a State that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Awards
16. Where an arbitral tribunal makes a final award against either of either of the disputing parties, the arbitral tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
17. An arbitral tribunal shall not award moral and punitive damages.
18. An award made by an arbitral tribunal shall be final and binding upon the disputing parties. An award shall have no binding force except between the disputing parties and in respect of the particular case.
Governing Law
19. The arbitral tribunal shall decide the issues in dispute in accordance with this Agreement, relevant domestic law of the disputing Party, and the applicable rules of international law.
Investment Dispute in Financial Services
20. Where the disputing investor submits a claim to arbitration under Section B, and the disputing Party invokes Article 12 (Measures to the Safeguard the Balance-of-Payment) and Article 15 (Prudential Measures) as a defense, the arbitral tribunal established pursuant to Section B shall, at the request of the disputing Party, seek a joint report in writing from the disputing Party and the non-disputing Party on the issue of whether and to what extent Article 12 (Measures to Safeguard the Balance-of-Payment) and Article 15 (Prudential Measures) are a valid defense to the claim of the investor. The arbitral tribunal may not proceed pending receipt of a report under this Article.
21. Pursuant to a request received in accordance with paragraph 20, the disputing Party and the non-disputing Party shall proceed with consultations and negotiations in accordance with Article 20 (Dispute Settlement between the Parties) to prepare a joint written report. The consultations shall be between the financial service bodies of the disputing Party and the non-disputing Party. The report shall be transmitted to the arbitral tribunal, and shall be binding on the arbitral tribunal.
22. Where, within one year of the referral by the arbitral tribunal, no report has been received by the arbitral tribunal, the arbitral tribunal may decide the matter.
23. The presiding arbitrator shall have expertise or experience in financial services, law or practice, which may include the regulation of financial service suppliers, unless the disputing parties otherwise agree.
Section C. Other Provisions
Article 19. Transparency
A Party shall, in accordance with its laws and regulations, publish or otherwise make publicly available in a timely fashion the investment-related laws, regulations and measures that are generally applicable.
A Party shall, upon the request of the other Party and in accordance with its laws and regulations, provide information with respect to any change to the laws, regulations, or measures, that were already published and that affect investors of the other Party.
Article 20. Dispute Settlement between the Parties
Any dispute between the Parties concerning the interpretation or application of this Agreement should, if possible, be settled amicably through consultations and negotiations between the Parties to the dispute. If such dispute cannot be settled, it shall, upon the request of either Party, be referred to arbitration on such terms and conditions as both Parties may agree.
Article 21. Coordination Mechanism
The Parties shall be in cooperation to review the implementation of this Agreement and make their best efforts to address other matters related to this Agreement identified by the Parties.
Article 22. Final Provisions
1. This Agreement shall enter into force 30 days after the date of receipt of the last notification whereby the Parties inform each other that respective procedures for its entry into force have been completed. It shall remain in force for a period of ten years after its entry into force and shall continue in force unless terminated as provided in paragraph 3 of this Article.
2. The Annex to this Agreement shall form an integral part of this Agreement.
3. Either Party may, by giving one year's advance notice in writing to the other Party, terminate this Agreement. In respect of investments made prior to the date when the notice of termination becomes effective, the provisions of all of the other Articles of this Agreement shall remain in force with respect to such investments for a period of ten years from that day.
4. Upon the entry into force of this Agreement, the Agreement between the Taipei Economic and Cultural Office in Hanoi and the Viet Nam Economic and Cultural Office in Taipei on the Promotion and Protection of Investments signed on 21 April 1993 (the 1993 Agreement), including the rights and obligations derived therefrom, shall be terminated and cease to have effect, and shall be replaced and superseded by this Agreement!
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Agreement.
DONE in duplicate at Taipei, on 18 December 2019, in the English language.
For the Taipei Economic and Cultural Office in Viet Nam
For the Viet Nam Economic and Cultural Office in Taipei
Attachments
Annex. Separate written agreement
The procedural requirements for the issuance of the separate written agreement are as follows:
1. The disputing investor shall submit to the disputing Party a written notice of intent to conciliate, arbitrate, or request for consultations with an undertaking to meet in good faith with the disputing Party to reach an amicable settlement.
2. Upon termination of the consultation process within the period specified in Article 18 (Settlement of Investment Disputes) and in the event the disputing parties have not reached an amicable settlement, the disputing parties shall jointly execute a separate written agreement that recites in detail, inter alia, the issues which will be raised to the arbitral tribunal, admissions and stipulation of facts, the general nature of the claim, an indication of the amount involved, if any, the relief or remedy sought, and such other matters as may aid in the prompt disposition of the claim or dispute.
3. The separate written agreement shall not be deemed a waiver by the disputing Party of its right to object or challenge any issue that may be raised at any stage of the proceedings.