(i) Requirement to register and satisfy other transfer formalities imposed by the Central Bank or other relevant authorities of a Party.
4. Nothing in this Agreement shall affect the rights and obligations that apply to the Parties under the Articles of Agreement of the IMF, including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 13 (Temporary Safeguard Measures) or at the request of the IMF.
Article 13. Temporary Safeguard Measures
1. A Party may adopt or maintain measures not conforming with its obligations under Article 3 (National Treatment) relating to cross-border capital transactions and Article 12 (Transfers):
(a) In the event of serious balance of payments and external financial difficulties or threat thereof; or
(b) In cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular monetary and exchange rate policies.
2. The measures referred to in paragraph 1 shall:
(a) Be consistent with the Articles of Agreement of the IMF;
(b) Avoid unnecessary damage to the commercial, economic and financial interests of another Party;
c) Not exceed those necessary to deal with the circumstances described in (d) paragraph 1; be temporary and phased out progressively as the situation specified in paragraph 1 improves; and
(e) Be applied such that any one of the other Parties is treated no less favourably than any other Party or non-Party.
3. Any measures adopted or maintained under paragraph 1 or any changes therein shall be promptly notified to the other Parties.
Article 14. Subrogation
1. If a Party or an agency of a Party makes a payment to an investor of that Party under a guarantee, a contract of insurance or other form of indemnity it has granted on non-commercial risks in respect of a covered investment, the host Party shall recognise the subrogation or transfer of any right or claim in respect of such investment. The subrogated or transferred right or claim shall not be greater than the original right or claim of the investor.
2. Where a Party or an agency of a Party has made a payment to an investor of that Party and has taken over rights and claims of the investor, that investor shall not, unless authorised to act on behalf of the Party or the agency making the payment, pursue those rights and claims against the host Party.
3. In the exercise of subrogated rights or claims, a Party or the agency of the Party exercising such rights or claims shall disclose the coverage of the claims arrangement with its investors to the host Party.
Article 15. Promotion of Investment
The Parties shall cooperate in promoting and increasing awareness of the region as an investment area through, among others:
(a) Increasing investments between the Parties;
(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 16. Facilitation of Investment
Subject to their laws and regulations, the Parties shall cooperate to facilitate investments among the Parties through, among 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 17. Special Formalities and Disclosure of Information
1. Nothing in Article 3 (National Treatment) or Article 4 (Most-Favoured-Nation Treatment) shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with covered investments, including a requirement that covered investments be legally constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the protections afforded by a Party to investors of another Party and covered investments pursuant to this Agreement.
2. Notwithstanding Article 3 (National Treatment) or Article 4 (Most-Favoured-Nation Treatment), a Party may require an investor of another Party, or a covered investment, to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect to the extent possible any confidential information which has been provided from any disclosure that would prejudice legitimate commercial interests of the investor or the covered investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law.
Article 18. Special and Differential Treatment for the Newer Asean Member States
In order to increase the benefits of this Agreement for the newer ASEAN Member States, and in accordance with the objectives set out in the Preamble, the Parties recognise the importance of according special and differential treatment to the newer ASEAN Member States under this Agreement, through:
(a) Technical assistance to strengthen their capacity in relation to investment policies and promotion, including in areas such as human resource development;
(b) Access to information on the investment policies of other Parties, business information, relevant databases and contact points for investment promotion agencies;
(c) Commitments in areas of interest to the newer ASEAN Member States; and
(d) Recognising that commitments by each newer ASEAN Member State may be made in accordance with its stage of development.
Article 19. Denial of Benefits
1. A Party may deny the benefits of this Agreement to:
(a) An investor of another Party that is a juridical person of such other Party and to investments of that investor if an investor of a non-Party owns or controls the juridical person and the juridical person has no substantive business operations in the Area of such other Party;
(b) An investor of another Party that is a juridical person of such other Party and to investments of that investor if an investor of the denying Party owns or controls the juridical person and the juridical person has no substantive business operations in the Area of any Party, other than the denying Party; or
(c) An investor of another Party that is a juridical person of such other Party and to investments of that investor if persons of a non-Party own or control the juridical person and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Agreement were accorded to the juridical person or to its investments.
2. Notwithstanding paragraph 1 and subject to prior notification to the relevant Party, Thailand may, under its applicable laws and regulations, deny the benefits of this Agreement relating to the admission, establishment, acquisition and expansion of investments to an investor of another Party that is a juridical person of such Party and to investments of such an investor where Thailand establishes that the juridical person is owned or controlled by natural persons or juridical persons of a non-Party or the denying Party.
3. In the case of Thailand, a juridical person is:
(a) "owned" by natural persons or juridical persons of a Party or a non-Party if more than 50 percent of the equity interest in it is beneficially owned by such persons;
(b) "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.
4. Without prejudice to paragraph 1, the Philippines may deny the benefits of this Agreement to investors of another Party and to investments of that investor, where the Philippines 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 Nationalization of Certain Rights, Franchises or Privileges", as amended by Presidential Decree No. 715, otherwise known as "The Anti-Dummy Law", as may be amended.
5. A Party's right to deny the benefits of this Agreement as provided for in this Article may be exercised at any time, including after the institution of arbitration proceedings in accordance with Article 20 (Settlement of Investment Disputes between a Party and an Investor).
Article 20. Settlement of Investment Disputes between a Party and an Investor
This Article shall be agreed by the Parties under Article 22 (Work Programme).
Article 21. Consultations and Dispute Settlement between the Parties
Chapter 13 (Consultations and Dispute Settlement) of the ASEAN - Hong Kong, China Free Trade Agreement shall apply mutatis mutandis to this Agreement.
Article 22. Work Programme
1. The Parties shall enter into discussions on:
(a) Annex 1 (Schedules of Reservations);
(b) Procedures for the modification of Annex 1 (Schedules of Reservations);
(c) The application of Article 10 (Expropriation and Compensation) to taxation measures that constitute expropriation;
(d) The definition of "natural person of a Party"; and
(e) Article 20 (Settlement of Investment Disputes between a Party and an Investor).
2. The Parties shall conclude the discussions referred to in paragraph 1 within one year of the date of entry into force of this Agreement under paragraph 1 or 2 of Article 26 (Entry into Force), unless otherwise agreed by the Parties. The discussions shall be overseen by the AHKFTA Joint Committee.
3. Annex 1 (Schedules of Reservations) shall enter into force on a date to be agreed by the Parties.
4. Article 3 (National Treatment) and Article 4 (Most- Favoured-Nation Treatment) shall not apply until Annex 1 (Schedules of Reservations) enters into force in accordance with paragraph 3.
Article 23. Relation between this Agreement and the Asean - Hong Kong, China Free Trade Agreement
1. Unless otherwise specified in this Agreement, provisions in the ASEAN - Hong Kong, China Free Trade Agreement shall not apply to this Agreement.
2. In the event of any inconsistency between this Agreement and the ASEAN - Hong Kong, China Free Trade Agreement, the Parties shall proceed to hold consultations within the AHKFTA Joint Committee pursuant to its functions under Article 1 (AHKFTA Joint Committee) of Chapter 12 (Institutional Provisions) of the ASEAN - Hong Kong, China Free Trade Agreement with a view to finding a mutually satisfactory solution.
Article 24. Annexes and Footnotes
The Annexes and footnotes to this Agreement constitute an integral part of this Agreement.
Article 25. Amendments
This Agreement may be amended by the Parties by agreement in writing.
Article 26. Entry Into Force
1. This Agreement shall be subject to ratification, acceptance or approval. The instrument of ratification, acceptance or approval by a Party shall be deposited with the depositary who shall promptly notify all other Parties of each deposit. This Agreement shall enter into force on 1 January 2019 for the Parties that have deposited their instruments of ratification, acceptance or approval provided that the Hong Kong Special Administrative Region and at least four ASEAN Member States have deposited their instruments of ratification, acceptance or approval.
2. If this Agreement does not enter into force on the date referred to in paragraph 1, it shall enter into force, for the Parties that have deposited their instruments of ratification, acceptance or approval, 60 days after the date by which the Hong Kong Special Administrative Region and at least four ASEAN Member States have deposited their instruments of ratification, acceptance or approval.
3. After the entry into force of this Agreement pursuant to paragraph 1 or 2, this Agreement shall enter into force for any other Party 60 days after the date of the deposit of its instrument of ratification, acceptance or approval.
4. Notwithstanding the entry into force of this Agreement for a Party pursuant to paragraph 1, 2, or 3 of this Article, the rights and obligations in this Agreement except Article 28 (Withdrawal and Termination) shall not take effect for the Party unless such Party is, at the same time, a party to the ASEAN – Hong Kong, China Free Trade Agreement.
Article 27. Depositary
This Agreement including its amendments shall be deposited with the Secretary-General of ASEAN, who shall promptly furnish a certified copy thereof to each Party.
Article 28. Withdrawal and Termination
1. Any Party may withdraw from this Agreement by giving 180 days' advance notice in writing to the depositary who shall promptly notify the same to all other Parties.
2. Any other Party may request in writing, consultations concerning any matter that would arise from the withdrawal within 60 days after the date of receipt of the notification in paragraph 1 from the depositary. The requested Party shall enter into consultations in good faith upon receipt of the request.
3. Any Party giving a notice of withdrawal pursuant to:
(a) Paragraph 1 to withdraw from this Agreement shall be deemed to have given a notice of withdrawal at the same time under paragraph 1 of Article 6 (Withdrawal and Termination) of Chapter 14 (Final Provisions) of the ASEAN - Hong Kong, China Free Trade Agreement; and
(b) Paragraph 1 of Article 6 (Withdrawal and Termination) of Chapter 14 (Final Provisions) of the ASEAN – Hong Kong, China Free Trade Agreement shall be deemed to have given a notice of withdrawal at the same time under paragraph 1 to withdraw from this Agreement.
4. This Agreement shall terminate if, pursuant to paragraph 1:
(a) The Hong Kong Special Administrative Region withdraws; or
(b) This Agreement is in force for less than four ASEAN Member States.
5. The ASEAN - Hong Kong, China Free Trade Agreement shall automatically terminate upon the termination of this Agreement pursuant to paragraph 4.
Article 29. Review
The Parties shall undertake a general review of this Agreement with a view to furthering its objectives within three years from the date of entry into force of this Agreement, and every five years thereafter, unless otherwise agreed by the Parties.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at Ha Noi, Viet Nam, this Eighteenth Day of May, in the Year Two Thousand and Eighteen, in a single original in the English language.
For the Government of Brunei Darussalam
PEHIN DATO LIM JOCK SENG
Minister at the Prime Minister's Office and Second Minister of Foreign Affairs and Trade
For the Government of the Hong Kong Special Administrative Region of the People's Republic of China
EDWARD YAU TANG-WAH
Secretary for Commerce and Economic Development
For the Government of the Kingdom of Cambodia
PAN SORASAK
Minister of Commerce
For the Government of the Republic of Indonesia
ENGGARTIASTO LUKITA
Minister of Trade
For the Government of the Lao People's Democratic Republic
KHEMMANI PHOLSENA
Minister of Industry and Commerce
For the Government of Malaysia
DATO' SRI MUSTAPA MOHAMED
Minister of International Trade and Industry
For the Government of the Republic of the Union of Myanmar
KYAW WIN
Union Minister for Planning and Finance
For the Government of the Republic of the Philippines
RAMON M. LOPEZ
Secretary of Trade and Industry
For the Government of the Republic of Singapore
LIM HNG KIANG
Minister for Trade and Industry (Trade)
For the Government of the Kingdom of Thailand
APIRADI TANTRAPORN
Minister of Commerce
For the Government of the Socialist Republic of Viet Nam
TRAN TUAN ANH
Minister of Industry and Trade
Attachments
This Annex shall be agreed by the Parties under Article 22 (Work Programme).
1. An action or a series of related actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest (12) under the laws or regulations of that Party, in a covered investment.
2. Paragraph 1 of Article 10 (Expropriation and Compensation) addresses two situations:
(a) The first situation is direct expropriation, where a covered investment is directly expropriated through formal transfer of title or outright seizure; and
(b) The second situation is where an action or series of related actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
3. The determination of whether an action or series of related actions by a Party, in a specific fact situation, constitutes an expropriation of the type referred to in subparagraph 2 (b) requires a case-by-case and fact- based inquiry that considers, among other factors:
(a) The economic impact of the government action, although the fact that an action or series of related actions by a Party has an adverse effect on the economic value of a covered investment, standing alone, does not establish that such an expropriation has occurred;
(b) Whether the government action breaches the government's prior binding written commitment to the investor whether by contract, licence or other legal document; and
(c) The character of the government action, including its objective and whether the action is disproportionate to the public purpose.
4. Non-discriminatory regulatory actions by a Party that are designed and applied to achieve legitimate public welfare objectives, such as the protection of public health, safety, and the environment, do not constitute expropriation of the type referred to in subparagraph 2 (b).
(12) For greater certainty, "property interest" refers to such property interest as may be applicable under the law of that Party.