In the case of Philippines, submission of a claim under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings shall be subject to a written agreement between the disputing parties in the event that an investment dispute arises.
(c) under the ICSID Additional Facility Rules, provided that either of the disputing Party or nondisputing Party is a party to the ICSID Convention; or
(d) to arbitration under the rules of the United Nations Commission on International Trade Law; or
(e) if the disputing parties agree, to any other arbitration institution or under any other arbitration rules.
5. In case a dispute has been submitted to a competent domestic court, it may be submitted to international dispute settlement, provided that the investor concerned has withdrawn its case from the domestic court before a final judgement has been reached in the case. In the case of Indonesia, Philippines, Thailand, and Viet Nam, once the investor has submitted the dispute to their respective competent courts or administrative tribunals or to one of the arbitration procedures stipulated in Sub-paragraphs 4(b), 4(c), 4(d) or 4(e), the choice of the procedure is final.
6. The submission of a dispute to conciliation or arbitration under Sub-paragraphs 4(b), 4(c), 4(d) or 4(e) in accordance with the provisions of this Article, shall be conditional upon:
(a) the submission of the dispute to such conciliation or arbitration taking place within three (3) years of the time at which the disputing investor became aware, or should reasonably have become aware, of a breach of an obligation under this Agreement causing loss or damage to the investor or its investment; and
(b) the disputing investor providing written notice, which shall be submitted at least ninety (90) days before the claim is submitted, to the disputing Party of his or her intent to submit the dispute to such conciliation or arbitration. Upon the receipt of the notice, the disputing Party may require the disputing investor to go through any applicable domestic administrative review procedure specified by its domestic laws and regulations before the submission of the dispute under Subparagraphs 4(b), 4(c), 4(d) or 4(e). The notice shall:
(i) nominate either Sub-paragraphs 4(b), 4(c), 4(d) or 4(e) as the forum for dispute settlement and, in the case of Subparagraph 4(b), nominate whether conciliation or arbitration is being sought;
(ii) waive the right to initiate or continue any proceedings, excluding proceedings for interim measures of protection referred to in Paragraph 7, before any of the other dispute settlement fora referred to in Paragraph 4 in relation to the matter under dispute; and
(iii) briefly summarise the alleged breach of the disputing Party under this Agreement, including the Articles alleged to have been breached, and the loss or damage allegedly caused to the investor or its investment.
7. No Party shall prevent the disputing investor from seeking interim measures of protection, not involving the payment of damages or resolution of the substance of the matter in dispute before the courts or administrative tribunals of the disputing Party, prior to the institution of proceedings before any of the dispute settlement fora referred to in Paragraph 4, for the preservation of its rights and interests.
8. No Party shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its investors and any one of the other Parties shall have consented to submit or have submitted to conciliation or arbitration under this Article, unless such other Party has failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of this Paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
9. Where an investor claims that the disputing Party has breached Article 8 (Expropriation) by the adoption or enforcement of a taxation measure, the disputing Party and the non-disputing Party shall, upon request from the disputing Party, hold consultations with a view to determining whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. Any tribunal that may be established under this Article shall accord serious consideration to the decision of both Parties under this Paragraph.
10. If both Parties fail either to initiate such consultations, or to determine whether such taxation measure has an effect equivalent to expropriation or nationalisation within the period of one hundred eighty (180) days from the date of receipt of the request for consultation referred to in Paragraph 4, the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Article.
Article 15. Denial of Benefits
1. Subject to prior notification and consultation, a Party may deny the benefits of this Agreement to:
(a) investors of another Party where the investment is being made by a juridical person that is owned or controlled by persons of a non-Party and the juridical person has no substantive business operations in the territory of another Party; or
(b) investors of another Party where the investment is being made by a juridical person that is owned or controlled by persons of the denying Party.
2. Notwithstanding Paragraph 1, in the case of Thailand, it may, under its applicable laws and/or regulations, deny the benefits of this Agreement relating to the admission, establishment, acquisition and expansion of investments to an investor of the other Party that is a juridical person of such Party and to investments of such an investor where Thailand establishes that the juridical person (9) is owned or controlled by natural persons or juridical persons of a non-Party or the denying Party.
3. Without prejudice to Paragraph 1, Philippines may deny the benefits of this Agreement to investors of another Party and to investments of that investor, where it establishes that such investor has made an investment in breach of the provisions of Commonwealth Act No. 108, entitled An Act to Punish Acts of Evasion of Laws on the Nationalisation of Certain Rights, Franchises or Privileges, as amended by Presidential Decree No. 715, otherwise known as "The Anti-Dummy Law", as may be amended.
(9) (a) In the case of Thailand, a juridical person referred to in this Article is:
(i) owned by natural persons or juridical persons of a Party or a non-Party if more than fifty (50) percent of the equity interests in it is beneficially owned by such persons;
(ii) controlled by natural persons or juridical persons of a Party or non-Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions.
(b) In the case of Indonesia, Myanmar, Philippines and Viet Nam, ownership and control shall be defined in its domestic laws and regulations.
(i) “owned” by natural persons or juridical persons of a Party or a non-Party if more than fifty (50) percent of the equity interests in it is beneficially owned by such persons;
(ii) “controlled” by natural persons or juridical persons of a Party or non-Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions.
(b) In the case of Indonesia, Myanmar, Philippines and Viet Nam, ownership and control shall be defined in its domestic laws and regulations.
Article 16. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties, their investors or their investments where like conditions prevail, or a disguised restriction on investors of any Party or their investments made by investors of any Party, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public morals or to maintain public order (10);
(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) the prevention of deceptive and fraudulent practices to deal with the effects of a default on a contract;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; and
(iii) safety;
(d) aimed at ensuring the equitable or effective (11) imposition or collection of direct taxes in respect of investments or investors of any Party;
(e) imposed for the protection of national treasures of artistic, historic or archaeological value; or
(f) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
2. Insofar as measures affecting the supply of financial services are concerned, paragraph 2 (Domestic Regulation) of the Annex on Financial Services of GATS shall be incorporated into and form an integral part of this Agreement, mutatis mutandis.
(10) For the purpose of this Sub-paragraph, footnote 5 of Article XIV of the GATS is incorporated into and forms part of this Agreement, mutatis mutandis.
(11) For the purpose of this Sub-paragraph, footnote 6 of Article XIV of the GATS is incorporated into and forms part of this Agreement, mutatis mutandis.
Article 17. Security Exceptions
Nothing in this Agreement shall be construed:
(a) to require any Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests, including but not limited to:
(i) action relating to fissionable and fusionable materials or the materials from which they derived;
(ii) action relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) action taken so as to protect critical public infrastructure from deliberate attempts intended to disable or degrade such infrastructure;
(iv) Action taken in time of war or other emergency in domestic or international relations; or
(c) to prevent any Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Article 18. Other Obligations
1. If the legislation of any Party or international obligations existing at the time of entry into force of this Agreement or established thereafter between or among the Parties result in a position entitling investments by investors of another Party to a treatment more favourable than is provided for by this Agreement, such position shall not be affected by this Agreement.
2. Each Party shall observe any commitments it may have entered into with the investors of another Party as regards to their investments.
Article 19. Transparency
1. In order to achieve the objectives of this Agreement, each Party shall:
(a) make available through publication, all relevant laws, regulations, policies and administrative guidelines of general application that pertain to, or affect investments in its territory.
(b) promptly and at least annually notify the other Parties of the introduction of any new law or any changes to its existing laws, regulations, policies or administrative guidelines, which significantly affect investments in its territory, or its commitments under this Agreement.
(c) establish or designate an enquiry point where, upon request of any natural person, juridical person or any one of the other Parties, all information relating to the measures required to be published or made available under Subparagraphs (a) and (b) may be promptly obtained.
(d) notify the other Parties through the ASEAN Secretariat at least once annually of any future investment-related agreements or arrangements which grants any preferential treatment and to which it is a party.
2. Nothing in this Agreement shall require a Party to furnish or allow access to confidential information, the disclosure of which would impede law enforcement, or otherwise contrary to the public interest, or which would prejudice legitimate commercial interests of particular juridical persons, public or private.
3. All notifications and communications made pursuant to Paragraph 1 shall be in the English language.
Article 20. Promotion of Investment
The Parties shall cooperate in promoting and increasing awareness of China-ASEAN as an investment area through, amongst others:
(a) increasing China-ASEAN investments;
(b) organising investment promotion activities;
(c) promoting business matching events;
(d) organising and supporting the organisation of various briefings and seminars on investment opportunities and on investment laws, regulations and policies; and
(e) conducting information exchanges on other issues of mutual concern relating to investment promotion and facilitation.
Article 21. Facilitation of Investment
Subject to their laws and regulations, the Parties shall cooperate to facilitate investments amongst China and ASEAN through, amongst others:
(a) creating the necessary environment for all forms of investment;
(b) simplifying procedures for investment applications and approvals;
(c) promoting dissemination of investment information, including investment rules, regulations, policies and procedures; and
(d) establishing one-stop investment centres in the respective host Parties to provide assistance and advisory services to the business sectors including facilitation of operating licences and permits.
Article 22. Institutional Arrangements
1. Pending the establishment of a permanent body, the AEM-MOFCOM, supported and assisted by the SEOM-MOFCOM, shall oversee, supervise, coordinate and review the implementation of this Agreement.
2. The ASEAN Secretariat shall monitor and report to the SEOM-MOFCOM on the implementation of this Agreement. All Parties shall cooperate with the ASEAN Secretariat in the performance of its duties.
3. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Agreement. On the request of a Party, the contact point of the requested Party shall identify the office or official responsible for the matter and assist in facilitating communication with the requesting Party.
Article 23. Relations with other Agreements
Nothing in this Agreement shall derogate from the existing rights and obligations of a Party under any other international agreements to which it is a party.
Article 24. General Review
The AEM-MOFCOM or their designated representatives shall meet within a year from the date of entry into force of this Agreement and then biennially or otherwise as appropriate to review this Agreement with a view to furthering the objectives set out in Article 2 (Objectives).
Article 25. Amendments
This Agreement may be amended by agreement in writing by the Parties and such amendments shall enter into force on such date or dates as may be agreed by the Parties.
Article 26. Depositary
For the ASEAN Member States, this Agreement shall be deposited with the Secretary-General of ASEAN, who shall promptly furnish a certified copy thereof, to each ASEAN Member State.
Article 27. Entry Into Force
1. This Agreement shall enter into force six (6) months from the date of signing of this Agreement.
2. The Parties undertake to complete their internal procedures for the entry into force of this Agreement.
3. Where a Party is unable to complete its internal procedures for the entry into force of this Agreement within six (6) months from the date of signing of this Agreement, the rights and obligations of that Party under this Agreement shall commence thirty (30) days after the date of notification of completion of such internal procedures.
4. A Party shall upon the completion of its internal procedures for the entry into force of this Agreement notify the other Parties in writing.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement on Investment of the Framework Agreement on Comprehensive Economic Co-operation between the Peoples Republic of China and the Association of Southeast Asian Nations.
DONE at Bangkok, Thailand this Fifteenth Day of August in the Year Two Thousand and Nine, in duplicate copies in the English Language.
For the Peoples Republic of China
CHEN DEMING
Minister of Commerce
For Brunei Darussalam:
MOHAMED BOLKIAH
Minister of Foreign Affairs and Trade
For the Kingdom of Cambodia:
CHAM PRASIDH
Senior Minister and Minister of Commerce
For the Republic of Indonesia:
MARI ELKA PANGESTU
Minister of Trade
For the Lao Peoples Democratic Republic:
NAM VIYAKETH
Minister of Industry and Commerce
For Malaysia:
TAN SRI MUHYIDDIN YASSIN
Minister of International Trade and Industry
For the Union of Myanmar:
U SOE THA
Minister for National Planning and Economic Development
For the Republic of the Philippines:
PETER B. FAVILA
Secretary of Trade and Industry
For the Republic of Singapore:
LIM HNG KIANG
Minister for Trade and Industry
For the Kingdom of Thailand:
PORNTIVA NAKASAI
Minister of Commerce
For the Socialist Republic of Viet Nam:
VU HUY HOANG
Minister of Industry and Trade