4. In respect of rights and obligations of the Parties in regard to advantages accorded to adjacent countries, paragraph 3 of Article II of the GATS is hereby incorporated into and made part of this Chapter.
ARTICLE 4.5
Market Access
In respect of commitments on market access, Article XVI of the GATS, applies and is hereby incorporated into and made part of this Chapter.
ARTICLE 4.6
National Treatment
In respect of commitments on national treatment, Article XVII of the GATS applies and is hereby incorporated into and made part of this Chapter.
ARTICLE 4.7
Additional Commitments
In respect of additional commitments, Article XVIII of the GATS applies and is hereby incorporated into and made part of this Chapter.
ARTICLE 4.8
Domestic Regulation
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. (a) Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of another Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provisions of subparagraph (a) shall not be construed to require the Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
3. Where authorisation is required by a Party for the supply of a service on which a specific commitment has been made, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application is considered complete under that Party?s domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of that Party shall provide, without undue delay, information concerning the status of the application.
4. In sectors where specific commitments are undertaken, each Party shall endeavour to ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures are based on criteria which are objective and transparent, such as competence and the ability to supply the service.
5. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures do not constitute unnecessary barriers to trade in services, the Joint Committee shall take a decision aiming at incorporating into the Agreement any disciplines developed in the WTO in accordance with paragraph 4 of Article VI of the GATS. The Parties may also, jointly or bilaterally, decide to develop further disciplines.
6. (a) In sectors in which a Party has undertaken specific commitments, pending the entry into force of a decision incorporating WTO disciplines for these sectors pursuant to paragraph 5, and, if agreed between Parties, disciplines developed jointly or bilaterally under this Agreement pursuant to paragraph 5, the Party shall not apply qualification requirements and procedures, technical standards and licensing requirements and procedures that nullify or impair such specific commitments in a manner which is:
(i) more burdensome than necessary to ensure the quality of the service, or
(ii) in the case of licensing procedures, in itself a restriction on the supply of the service.
(b) In determining whether a Party is in conformity with the obligation under subparagraph (a), account shall be taken of international standards of relevant international organisations 10 applied by that Party.
7. In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of another Party.
(10) The term "relevant international organisations" refers to international bodies whose membership is open to the relevant bodies of at least all Parties.
ARTICLE 4.9
Recognition
1. For the purpose of the fulfilment of its relevant standards or criteria for the authorisation, licensing or certification of service suppliers, each Party shall give due consideration to any requests by another Party to recognise the education or experience obtained, requirements met, or licences or certifications granted in that other Party. Such recognition may be based upon an agreement or arrangement with that other Party, or otherwise be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-Party, that Party shall afford another Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted, in the territory of that other Party should also be recognised.
3. Any such agreement or arrangement or autonomous recognition shall be in conformity with the relevant provisions of the WTO Agreement, in particular paragraph 3 of Article VII of the GATS.
4. Where professional bodies or respective authorities of the Parties are mutually interested in establishing dialogues on issues relating to recognition of professional qualifications, licensing or registration, the relevant Parties should support the establishment of such dialogues.
ARTICLE 4.10
Transparency
In respect of transparency, paragraphs 1 and 2 of Article III and Article IIIbis of the GATS, apply and are hereby incorporated into and made part of this Chapter.
ARTICLE 4.11
Monopolies and Exclusive Service Suppliers
In respect of the rights and obligations of the Parties in regard to monopolies and exclusive service suppliers, paragraphs 1, 2 and 5 of Article VIII of the GATS, apply and are hereby incorporated into and made part of this Chapter.
ARTICLE 4.12
Business Practices
In respect of the rights and obligations of the Parties in regard to business practices, Article IX of the GATS, applies and is hereby incorporated into and made part of this Chapter.
ARTICLE 4.13
Payments and Transfers
1. Except under the circumstances envisaged in Article 4.14 (Restrictions to Safeguard the Balance-of-Payments), a Party shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of the Agreement of the International Monetary Fund (IMF), including the use of exchange actions which are in conformity with the Articles of the Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 4.14 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the IMF.
ARTICLE 4.14
Restrictions to Safeguard the Balance-of-Payments
1. In respect of the rights and obligations of the Parties in regard to restrictions to safeguard the balance-of-payments, paragraphs 1 to 3 of Article XII of the GATS apply and are hereby incorporated into and made part of this Chapter.
2. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
ARTICLE 4.15
Subsidies
1. A Party which considers that it is adversely affected by a subsidy of another Party may request ad hoc consultations with that Party on such matters. Such requests shall be accorded sympathetic consideration.
2. The Parties shall review any disciplines agreed under Article XV of the GATS with a view to incorporating them into this Chapter.
ARTICLE 4.16
Exceptions
In respect of the rights and obligations of the Parties in regard to general exceptions and security exceptions, Article XIV and paragraph 1 of Article XIVbis of the GATS apply and are hereby incorporated into and made part of this Chapter.
ARTICLE 4.17
Schedules of Specific Commitments
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 4.5 (Market Access), 4.6 (National Treatment) and 4.7 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments;
(d) where appropriate, the time-frame for implementation of such commitments; and
(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 4.5 (Market Access) and 4.6 (National Treatment) shall be dealt with as provided for in paragraph 2 of Article XX of the GATS.
3. The Parties' Schedules of Specific Commitments are set out in Annex 4E (Schedules of Specific Commitments).
ARTICLE 4.18
Modification of Schedules
The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Party?s Schedule of Specific Commitments. The consultations shall be held within three months after the requesting Party made its request. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to trade than that provided for in the Schedule of Specific Commitments prior to such consultations is maintained. Modifications of Schedules are subject to the procedures set out in Articles 12.1 (Joint Committee) and 14.3 (Amendments).
ARTICLE 4.19
Review
With the objective of further liberalising trade in services between them, the Parties shall review at least every two years their Schedules of Specific Commitments and their Lists of MFN Exemptions, taking into account in particular any autonomous liberalisation and on-going work under the auspices of the WTO. The first such review shall take place no later than three years after the entry into force of this Agreement.
ARTICLE 4.20
Annexes
The following Annexes form an integral part of this Chapter:
(a) Annex 4A (Movement of Natural Persons);
(b) Annex 4B (Financial Services);
(c) Annex 4C (Telecommunications Services);
(d) Annex 4D (International Maritime Transport and Related Services);
(e) Annex 4E (Schedules of Specific Commitments); and
(f) Annex 4F (List of MFN Exemptions).
Chapter 5. INVESTMENT
Article 5.1. Scope and Coverage
1. This Chapter shall apply to commercial presence by a natural or juridical person of a Party in all sectors, with the exception of services sectors as set out in Article 4.1 (Scope and Coverage). (11)
2. This Chapter does not include investment protection and shall be without prejudice to the interpretation or application of other international agreements relating to investment or taxation (12) to which one or several EFTA States and Viet Nam are parties. (13)
3. This Chapter shall not apply to:
(a) government procurement; and
(b) subsidies or grants provided by a Party.
Article 5.2. Definitions
For the purposes of this Chapter,
(a) "juridical person" means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, partnership, joint venture, sole proprietorship or association;
(b) "juridical person of a Party" means a juridical person constituted or otherwise organised under the domestic law and regulations of a Party and engaged in substantive business operations in that Party;
(c) "natural person" means a person who has the nationality, or is a permanent resident, of a Party in accordance with its domestic laws and regulations;
(d) "commercial presence" means any type of business establishment within the territory of another Party for the purpose of performing an economic activity (14), including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office.
Article 5.3. National Treatment
In the sectors inscribed in its Schedule
of Specific Commitments, and subject to any conditions and qualifications set out therein, each Party shall accord to juridical and natural persons of another Party, and to the commercial presence of such persons, treatment no less favourable than that it accords, in like situations, to its own juridical and natural persons, and to the commercial presence of such persons.
Article 5.4. Schedule of Specific Commitments
Each Party shall set out in a schedule the specific commitments it undertakes under Article 5.3 (National Treatment). With respect to sectors where such commitments are undertaken, each Schedule of Specific Commitments shall specify the conditions and qualifications on national treatment. The Parties' Schedules of Specific Commitments are included in Annex 5A (Schedules of Specific Commitments).
Article 5.5. Modification of Schedules
1. The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Party's Schedule of Specific Commitments. The consultations shall be held within three months from the receipt of the request.
2. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to investment than that provided for in the Schedule of Specific Commitments prior to such consultations is maintained. Modifications of Schedules of Specific Commitments are subject to the procedures set out in Articles 12.1 (Joint Committee) and 14.3 (Amendments).
Article 5.6. Key Personnel
1. Each Party shall, subject to its laws and regulations, grant natural persons of another Party, and key personnel who are employed by natural or juridical persons of another Party, temporary entry and stay in its territory in order to engage in activities connected with commercial presence, including the provision of advice or key technical services.
2. The Parties shall, subject to their laws and regulations, grant temporary entry and stay and provide any necessary confirming documentation to the spouse and minor children of a natural person who has been granted temporary entry, stay and authorisation to work in accordance with paragraph 1.
Article 5.7. Right to Regulate
The Parties reaffirm their right to regulate within their jurisdictions to achieve legitimate policy objectives, such as the protection of public health, safety, the environment, or the mitigation and adaptation to climate change.
Article 5.8. Consultations on Subsidies
Notwithstanding Article 5.1 (Scope and Coverage), a Party which considers that it is adversely affected by a subsidy of another Party may request ad hoc consultations with that Party on such matters. Such request shall be accorded sympathetic considerations.
Article 5.9. Payments and Transfers
1. Except under the circumstances envisaged in Article 5.10 (Restrictions to Safeguard the Balance-of-Payments), no Party shall apply restrictions on current payments and capital movements relating to commercial presence as referred to in paragraph 1 of Article 5.1 (Scope and Coverage).
2. Each Party shall allow current payments and capital movements referred to in paragraph 1 to be made in any freely convertible currency at the market rate of exchange prevailing at the time of transfer.
3. Notwithstanding paragraphs 1 and 2, a Party may prevent or delay a current payment or capital movement through the equitable, non-discriminatory, and good faith application of its domestic laws and regulations relating to:
(a) bankruptcy, insolvency, or the protection of the rights of creditors;
(b) issuing, trading, or dealing in financial instruments such as securities, futures, options, or derivatives;
(c) criminal or penal offences and the recovery of the proceeds of crime;
(d) financial reporting or record keeping of current payments or capital movements when necessary to assist law enforcement or financial regulatory authorities;
(e) ensuring compliance with orders, decisions or judgments in judicial or administrative proceedings;
(f) taxation; and
(g) social security, public retirement, or compulsory savings schemes.
4. Nothing in this Chapter shall affect the rights and obligations of 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 no Party shall impose restrictions on capital transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 5.10 (Restrictions to Safeguard the Balance-of-Payments) or at the request of the IMF.
Article 5.10. Restrictions to Safeguard the Balance-of-Payments
1. In the event of serious balance-of-payments and external financial difficulties or threat thereof (15), a Party may adopt or maintain restrictions on payments or transfers relating to commercial presence. It is recognised that particular pressures on the balance-of-payments of a Party in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development or economic transition.
2. Restrictions referred to in paragraph 1:
(a) shall be applied on a non-discriminatory basis such that with respect to the Party applying the restrictions, another Party is treated no less favourably than any other Party or non-Party;
(b) shall be consistent with the Articles of Agreement of the IMF;
(c) shall avoid unnecessary damage to the commercial, economic and financial interests of other Parties;
(d) shall not exceed those necessary to deal with the circumstances described in paragraph 1; and
(e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.
3. For the purposes of this Chapter, paragraph 3 of Article XII of the GATS applies and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
4. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee.
Article 5.11. Protection of Critical Public Infrastructure
Without prejudice to the interpretation or application of Articles 5.12 (General Exceptions) and 5.13 (Security Exceptions), nothing in this Chapter shall be construed to prevent any Party from taking measures necessary to protect critical public infrastructure from deliberate attempts intended to disable or degrade such infrastructure subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction to investments.
Article 5.12. General Exceptions
With respect to the rights and obligations of the Parties concerning general exceptions, Article XIV of the GATS and the chapeau and subparagraphs (f) and (g) of Article XX of the GATT 1994 apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 5.13. Security Exceptions
With respect to the rights and obligations of the Parties concerning security exceptions, paragraph 1 of Article XIVbis of the GATS and subparagraph (b)(ii) of Article XXI of the GATT 1994 apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 5.14. Review
1. This Chapter shall be subject to periodic review within the framework of the Joint Committee regarding the possibility to further develop the Parties' commitments.
2. A Party may at any time unilaterally, or upon request of another Party, amend its Schedule of Specific Commitments to provide a more favourable treatment than provided for prior to such amendment. Such amendment should be formalised as provided for in Article 12.1 (Joint Committee).
Chapter 6. SMALL AND MEDIUM-SIZED ENTERPRISES
ARTICLE 6.1
General Principles
The Parties recognise that small and medium-sized enterprises, including micro-sized enterprises, (SMEs) contribute significantly to economic growth, employment creation, and innovation, and therefore seek to promote dialogue, information sharing and cooperation in increasing the ability of SMEs to utilise and benefit from the opportunities created by this Agreement.
For the purposes of this Chapter, "SMEs" means micro, small and medium-sized enterprises and may be further defined, where applicable, according to the respective domestic laws, regulations or national policies of each Party.