Article 15.16. Expenses
1. Unless the Parties otherwise agree, each Party shall bear the costs of its appointed arbitrator and its own expenses and legal costs.
2. Unless the Parties otherwise agree, the costs of the chair of the arbitral panel and other expenses associated with the conduct of its proceedings shall be borne in equal shares by the Parties.
Article 15.17. Annexes
Annexes 15-A and 15-B shall form an integral part of this Chapter.
Article 15.18. Definitions
For the purposes of this Chapter:
arbitration panel means a panel established under Article 15.6;
arbitrator means a member of an arbitration panel established under Article 15.6;
candidate means an individual who is under consideration for appointment as the third arbitrator under Article 15.8;
complaining Party means a Party that requests the establishment of an arbitration panel under Article 15.6;
Party complained against means the Party that is alleged to be in violation of this Agreement, as referred to in Article 15.2; and
proceeding, unless otherwise specified, means an arbitration panel proceeding under this Chapter.
Chapter 16. EXCEPTIONS
Article 16.1. General Exceptions
1. For the purposes of Chapters 2 (National Treatment and Market Access for Goods), 3 (Rules of Origin and Origin Procedures), 4 (Customs Administration and Trade Facilitation), 5 (Sanitary and Phytosanitary Measures), 6 (Technical Barriers to Trade), and 7 (Trade Remedies), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.
2. For the purposes of Chapters 8 (Trade in Services) and 9 (Investment), Article XIV of GATS (including its footnotes) is incorporated into and made part of this Agreement, mutatis mutandis.
Article 16.2. Security Exceptions
1. Nothing in this Agreement shall be construed to:
(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials or relating to the supply of services as carried on, directly or indirectly, for the purposes of supplying or provisioning a military establishment;
(ii) relating to fissionable and fusionable materials or the materials from which they are derived;
(iii) taken so as to protect critical public infrastructure, including communications, power and water infrastructures, from deliberate attempts intended to disable or degrade such infrastructure; or
(iv) taken in time of domestic emergency, or war or other emergency in international relations; or
(c) prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. The Joint Committee shall be informed to the fullest extent possible of measures taken under subparagraphs 1(b) and (c) and of their termination.
Article 16.3. Taxation
1. Except as set out in this Article, nothing in this Agreement shall apply to taxation measures.
2. Nothing in this Agreement shall affect the rights and obligations of either Party under any tax convention. In the event of any inconsistency between this Agreement and any such convention, that convention shall prevail to the extent of the inconsistency. In the case of a tax convention between Korea and Viet Nam, the competent authorities under that convention shall have sole responsibility for jointly determining whether any inconsistency exists between this Agreement and that convention.
3. Paragraph 2 of Article 16.1 shall apply to taxation measures. (1)
4. Notwithstanding paragraph 2, Article 2.2(National Treatment on Internal Taxation
and Regulation) and such other provisions of this Agreement as are necessary to give effect to that Article shall apply to taxation measures to the same extent as does Article III of GATT 1994.
5. Subparagraph 4(h) of Article 9.8(Transfers) shall apply to taxation measures.
6. 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 9-B (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 recognized tax policies, principles, and practices does 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 does not constitute an expropriation if it was already in force when the investment was made and information about the measure was publicly available.
7. (a) No investor may invoke Article 9.7(Expropriation and Compensation) as the basis for a claim where it has been determined pursuant to this subparagraph that the measure is not an expropriation. An investor that seeks to invoke Article 9.7(Expropriation and Compensation) with respect to a taxation measure must first provide written request to the competent authorities, at the time that it gives its Notice of Intent under Article 9.17(Notice of Intent to Submit a Claim to Arbitration), for decision on the issue of whether taxation measure is not an expropriation. The request should include the Notice of Intent. If the competent authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of such referral, the investor may submit its claim to arbitration under paragraph 1 of Article 9.19(Submission of a Claim to Arbitration).
(b) For the purposes of this paragraph, competent authorities means:
(i) for Korea, the Deputy Minister for Tax and Customs, Ministry of
Strategy and Finance; and
(ii) for Viet Nam, the Director General of the General Department of Taxation, Ministry of Finance;
or their respective successors. 8. For the purposes of this Article:
(a) tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and
(b) taxes and taxation measures do not include customs duties as defined in Article 1.5(General Definitions) and measures listed in exceptions (b), (c), (d), and (e) of that definition.
Article 16.4. Disclosure of Information
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 the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Chapter 17. INSTITUTIONAL AND FINAL PROVISIONS
Section A. Institutional Provisions
Article 17.1. Joint Committee
1. The Parties hereby establish a Joint Committee.
2. The Joint Committee shall be composed of relevant government officials of each
Party and co-chaired by ministerial level officials of the Ministry of Trade, Industry and Energy of Korea and the Ministry of Industry and Trade of Viet Nam, or their respective designees. The Joint Committee shall agree on its meeting schedule and set its agenda.
3. The Joint Committee shall:
(a) review and monitor the implementation and operation of this Agreement;
(b) supervise and coordinate the work of all committees, working groups and other bodies established under this Agreement;
(c) consider ways to further enhance trade and investment relations between the Parties;
(d) without prejudice to the procedures under Chapter 15 (Dispute Settlement), seek to resolve problems or disputes that may arise relating to the interpretation or application of this Agreement;
(e) adopt its own rules of procedure; and
(f) carry out any other function relating to the areas covered by this Agreement as the Parties may agree.
4. The Joint Committee may:
(a) establish and delegate responsibilities to committees, working groups or other bodies;
(b) recommend to the Parties amendments to this Agreement;
(c) adopt interpretations of the provisions of this Agreement; and
(d) make recommendations.
5. When a Party submits information considered as confidential under its domestic
laws and regulations to the Joint Committee, committees, working groups or any other body, the other Party shall treat that information as confidential.
Article 17.2. Procedures of the Joint Committee
1. Unless the Parties otherwise agree, the Joint Committee shall convene:
(a) in regular session every year, with such sessions to be held alternately in the territory of each Party; and
(b) in special session within 30 days of the request of either Party, with such sessions to be held in the territory of the other Party or at such locations as the Parties may agree.
2. The meetings of the Joint Committee may be held in person or, if agreed by the
Parties, by any technological means available to them.
3. All decisions of the Joint Committee shall be taken by mutual agreement.
Article 17.3. Committees and Working Groups
1. The committees, working groups or any other body may be established under the auspices of the Joint Committee.
2. The composition, frequency of meetings, and functions of the committees, working groups or any other body shall be in accordance with the relevant provisions of this Agreement or determined by the Joint Committee consistent with this Agreement.
3. The committees, working groups or any other body shall inform the Joint Committee of their schedule and agenda sufficiently in advance of their meetings. They shall report to the Joint Committee on their activities at each regular meeting of the Joint Committee. The creation or existence of a committee, a working group or any other body shall not prevent either Party from bringing any matter directly to the Joint Committee.
4. The Joint Committee may decide to change or undertake the task assigned to a committee, a working group or any other body or may dissolve a committee, a working group or any other body.
Section B. Final Provisions
Article 17.4. Contact Points
1. In order to facilitate communications between the Parties on any trade matter covered by this Agreement, the Parties hereby establish the following contact points:
(a) for Korea, the Ministry of Trade, Industry and Energy; and
(b) for Viet Nam, the Ministry of Industry and Trade;
or their respective successors.
2. Upon request of either Party, the contact point of the other Party shall indicate the office or official responsible for any matter relating to the implementation of this Agreement, and provide the required support to facilitate communications with the requesting Party. Each Party shall notify the other Party of any change in its contact point in due time.
Article 17.5. Amendments
The Parties may agree, in writing, to amend this Agreement. Any amendment shall enter into force after the Parties exchange written notifications through diplomatic channels certifying that they have completed all necessary domestic legal procedures, on such date as the Parties may agree. The amendments shall form an integral part of this Agreement.
Article 17.6. Amendments to the WTO Agreement
If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult to consider amending the relevant provisions of this Agreement, as appropriate, in accordance with Article 17.5.
Article 17.7. Annexes, Appendices, and Footnotes
The Annexes, Appendices, and footnotes to this Agreement shall form an integral part of this Agreement.
Article 17.8. Entry Into Force
1. The entry into force of this Agreement is subject to the completion of necessary domestic legal procedures by each Party.
2. This Agreement shall enter into force on the first day of the second month, following the date of the exchange of the written notifications through diplomatic channels, by which the Parties inform each other that all necessary domestic legal procedures for the entry into force of this Agreement have been completed, or on such other date as the Parties may agree.
Article 17.9. Duration
1. This Agreement shall be valid indefinitely.
2. Either Party may notify the other Party of its intention to denounce this Agreement in writing through diplomatic channels.
3. The denunciation shall take effect six months after the notification under paragraph 2.
Article 17.10. Authentic Texts
This Agreement is drawn up in duplicate in the Korean, Vietnamese, and English languages, each of these texts being equally authentic. In case of divergence, the English text shall prevail.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at ___________ on this _______ day of _______ in the year______.
For the Government of the Republic of Korea:
For the Government of the Socialist Republic of Viet Nam: