1. A Tribunal established under this Article shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, unless otherwise provided for in this Section.
2. If a Tribunal established under this Article is satisfied that claims submitted to arbitration under Article 9.19 have a question of law or fact in common, the Tribunal may, in the interests of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:
(a) assume jurisdiction over, and hear and determine together, all or part of the claims; or
(b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others.
3. A disputing Party that seeks an order under paragraph 2 shall request that the Appointing Authority establish a Tribunal and shall specify in the request:
(a) the name of the disputing investors against which the order is sought;
(b) the nature of the order sought; and
(c) the grounds for the order sought.
4. The disputing Party shall deliver a copy of the request to the disputing investors against which the order is sought.
5. The Secretary-General shall, within 60 days of receipt of the request, establish a Tribunal composed of three arbitrators who shall be chosen at the discretion of the Secretary-General.
6. If a Tribunal is established pursuant to this Article, a disputing investor that has submitted a claim to arbitration pursuant to Article 9.19 and that has not been named in paragraph 2 may submit a written request to the Tribunal that it be included in an order made pursuant to paragraph 2, and shall specify in the request:
(a) the name and address of the disputing investor;
(b) the nature of the order sought; and
(c) the grounds for the order sought.
7. A Tribunal established pursuant to Article 9.19 does not have jurisdiction to decide a claim, or a part of a claim, over which a Tribunal established pursuant to this Article has assumed jurisdiction.
Article 9.23. Conduct of the Arbitration
1. Upon request of the Tribunal, on written notice to the disputing parties, the non-disputing Party may make oral or written submissions to a Tribunal on a question of interpretation of this Agreement. Upon request of a disputing party, the non-disputing Party shall submit its oral submission in writing.
2. Unless otherwise agreed by the disputing parties, a Tribunal shall hold an arbitration in the territory of a Party that is party to the New York Convention, selected in accordance with:
(a) the ICSID Additional Facility Rules, if the arbitration is under those Rules or the ICSID Convention; or
(b) the UNCITRAL Arbitration Rules, if the arbitration is under those Rules.
3. Unless otherwise agreed by the disputing parties, the Tribunal may determine a place for meetings and hearings, other than the legal place of arbitration. In doing so, the Tribunal shall take into consideration, its convenience for the parties and the arbitrators, the location of the subject matter, and the proximity of the evidence.
4. If issues relating to jurisdiction or admissibility are raised as preliminary objections, the Tribunal shall, whenever possible, decide the matter before proceeding to the merits. The disputing parties shall be given a reasonable opportunity to present their views and observations to the Tribunal. If the Tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the Tribunal, it shall render an award to that effect.
5. The Tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the Tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment.
6. The Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal's jurisdiction. The Tribunal shall not order the seizure of assets nor may it prevent the application of the measure alleged to constitute a breach referred to in Article 9.15. For the purposes of this Article, an order shall include a recommendation.
7. Unless otherwise agreed by the disputing parties, the language of the arbitration proceedings, including hearings, decisions, and awards, shall be:
(a) Korean and English if Korea is a disputing Party; and
(b) Vietnamese and English if Viet Nam is a disputing Party.
Article 9.24. Joint Interpretation
1. The interpretation by the Joint Committee of a provision of this Agreement (15) shall be binding on a Tribunal established under this Section and an award under this Section shall be consistent with that interpretation.
2. If the disputing Party asserts as a defense that the measure alleged to be a breach is within the scope of a reservation or exception set out in Annex I or II, the Tribunal shall, upon request of that disputing Party, request the Joint Committee to interpret the issue. Within 60 days of delivery of the request, the Joint Committee shall submit in writing its interpretation to the Tribunal. The interpretation shall be binding on the Tribunal. If the Joint Committee fails to submit an interpretation within 60 days, the Tribunal shall decide the issue.
Article 9.25. Final Award
1. If the Tribunal makes a final award against a disputing Party, the Tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; or
(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. The Tribunal may also award costs in accordance with the applicable arbitration rules.
2. The Tribunal shall not order a disputing Party to pay punitive damages.
Article 9.26. Finality and Enforcement of an Award
1. An award made by the Tribunal does not have binding force except between the disputing parties and in respect of that particular case.
2. Subject to paragraph 3 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay.
3. A disputing party shall not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; or
(b) in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules:
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside, or annul the award, and there is no further appeal.
4. Each Party shall provide for the enforcement of an award in its territory.
5. The mechanism for the settlement of investment disputes established under this Section is without prejudice to the rights and obligations of the Parties under Chapter 15 (Dispute Settlement).
6. A disputing party may seek to enforce an arbitration award under the ICSID Convention, or the New York Convention.
7. A claim that is submitted to arbitration under this Section is considered to arise out of a commercial relationship or transaction for the purposes of Article I of the New York Convention.
Article 9.27. Service of Documents
Notices and other documents shall be delivered to a Party at the place named for that Party below:
(a) for Korea: International Legal Affairs Division Ministry of Justice Building #1, Government Complex-Gwacheon 47, Gwanmun-ro, Gwacheon-si, Gyeonggi-do Republic of Korea; and
(b) for Viet Nam: Ministry of Justice of Viet Nam 60, Tran Phu Street, Ha Noi Viet Nam; or their respective successors.
Section C. Definitions
Article 9.28. Definitions
For the purposes of this Chapter:
Appointing Authority means:
(a) in the case of arbitration or conciliation under the ICSID or ICSID Additional Facility Rules in subparagraphs 1(a) and 1(b) of Article 9.19, Secretary-General of ICSID;
(b) in the case of arbitration under the UNCITRAL Rules in subparagraph 1(c) of Article 9.19, the Secretary-General of the Permanent Court of Arbitration; or
(c) any person as agreed between the disputing parties;
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party, in existence as of the date of entry into force of this Agreement or established, acquired or expanded thereafter, and has been admitted (16)in accordance with its domestic laws and regulations;
disputing investor means an investor that makes a claim under Section B;
disputing parties means a disputing investor and a disputing Party;
disputing Party means a Party against which a claim is made under Section B;
disputing party means either a disputing investor or a disputing Party;
enterprise means any entity constituted or organized under applicable laws and regulations, whether or not for profit, and whether privately or governmentally owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, or association, and a branch (17) of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the domestic laws and regulations of a Party, and a branch18 located in the territory of a Party and carrying out business activities there;
freely usable currency means any currency designated as such by the International Monetary Fund (IMF) under its Articles of Agreement and any amendments thereto;
ICSID means the International Centre for Settlement of Investment Disputes (ICSID) established by the ICSID Convention;
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, 18 March 1965;
investment means (19) every asset that an investor owns or controls, that has the characteristics of an investment, such as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.
Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise and rights derived therefrom including futures and options;
(c) bonds, debentures, loans and other forms of debt instruments (20) of an enterprise including rights derived therefrom;
(d) turnkey, construction, management, production, concession, revenue-sharing, and other business concessions (21) conferred by laws or under contract;
(e) intellectual property rights; and
(f) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges, but investment does not include claims to payment that arise solely from:
(g) the commercial contracts for the sale of goods or services by a natural person or an enterprise in the territory of a Party to a natural person or an enterprise in the territory of the other Party; or
(h) the extension of credit in connection with a commercial transaction, such as trade financing;
investor of a non-Party means, with respect to a Party, an investor that is seeking to make (22), is making, or has made an investment in the territory of that Party, that is not an investor of either Party;
investor of a Party means a natural person or an enterprise of a Party, a Party (23) that is seeking to make, (24) is making, or has made an investment in the territory of the other Party;
natural person of a Party means any natural person possessing the nationality or citizenship of that Party in accordance with its domestic laws and regulations;
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958;
non-disputing Party means the Party of the disputing investor;
returns means amounts yielded by or derived from an investment particularly, though not exclusively, any profits, interests, capital gains, dividends, royalties or fees;
Secretary-General means the Secretary-General of ICSID; and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law as revised in 2010. (25)
Annex 9-A. CUSTOMARY INTERNATIONAL LAW
The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Article 9.5 and Annex 9-B results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 9.5, the applicable rules of customary international law refer to all customary international law principles that protect the economic rights and interests of aliens.
Annex 9-B. EXPROPRIATION
The Parties confirm their shared understanding that:
(a) an action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right in an investment;
(b) paragraph 1 of Article 9.7 addresses two situations. The first is direct expropriation, where a covered investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure;
(c) the second situation addressed by paragraph 1 of Article 9.7 is indirect expropriation, where an action or a series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure:
(i) the determination of whether an action or a series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers all relevant factors relating to the investment, including:
(A) the economic impact of the government action, although the fact that an action or a series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(B) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and
(C) the character of the government action, including its objectives and context; (26)
(ii) except in rare circumstances, such as, for example, when an action or a series of actions is extremely severe or disproportionate in light of its purpose or effect, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, the environment, do not constitute indirect expropriations. (27) (28)
Annex 9-X. TRANSFERS
1. Nothing in this Chapter or Chapter 8 (Trade in Services) shall be construed to prevent a Party from adopting or maintaining temporary safeguard measures with regard to payments and capital movements:
(a) in the event of serious balance of payments or external financial difficulties or threat thereof; or
(b) where, in exceptional circumstances, payments and capital movements cause or threaten to cause serious economic or financial disturbance or serious difficulties for the operation of monetary policy or exchange rate policy in either Party.
2. The measures referred to in paragraph 1:
(a) shall be phased out within one year or when conditions would no longer justify their institution or maintenance; (29)
(b) shall be consistent with the Articles of Agreement of the International Monetary Fund (hereinafter referred to as “Articles of Agreement”), as may be amended;
(c) shall not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) shall avoid unnecessary damage to the commercial, economic, or financial interests of the other Party;
(e) shall be temporary and phased out progressively as the situation calling for imposition of such measures improves;
(f) shall promptly be notified to the other Party; and
(g) shall be applied in a manner consistent with Articles 9.3 and 8.2 (National Treatment) and Articles 9.4 and 8.3 (Most-Favored-Nation Treatment) subject to the Schedules set out in Annexes I and II (30) and Annex 8-D (Schedule of Specific Commitments). (31)
3. Nothing in this Chapter or Chapter 8 (Trade in Services) shall be regarded to affect the rights enjoyed and obligations undertaken by a Party as party to the Articles of Agreement, including the use of exchange actions which are in conformity with the Articles of Agreement.
Chapter 10. ELECTRONIC COMMERCE
Article 10.1. General Provisions
The Parties recognize the economic growth and opportunity that electronic commerce provides, and the importance of promoting electronic commerce between the Parties, enhancing cooperation between the Parties regarding the development of electronic commerce, and promoting the wider use of electronic commerce globally.
Article 10.2. Customs Duties
1. A Party may not impose customs duties on electronic transmissions in compliance with any agreement relating to electronic commerce under the WTO, to which both Parties are party.
2. For greater certainty, nothing in paragraph 1 shall preclude a Party from imposing internal taxes, fees, or other internal charges on content transmitted electronically.
Article 10.3. Electronic Authentication, Electronic Signatures and Digital Certificates
1. Each Party shall endeavor to adopt or maintain legislation for electronic authentication that would:
(a) permit parties to an electronic transaction to mutually determine the appropriate authentication technologies and implementation models for their electronic transactions;
(b) permit parties to an electronic transaction to have the opportunity to prove that their electronic transaction complies with the Party’s domestic laws and regulations in respect to electronic authentication; and
(c) not limit the recognition of authentication technologies and implementation models.
2. The Parties shall, where possible, endeavor to work towards the mutual recognition of digital certificates and electronic signatures that are issued or recognized by them based on internationally accepted standards.
3. The Parties shall encourage the interoperability of digital certificates used by business.
Article 10.4. Domestic Regulatory Frameworks
Each Party shall endeavor to adopt or maintain its domestic laws and regulations governing electronic transactions taking into account the UNCITRAL Model Law on Electronic Commerce 1996.
Article 10.5. Online Consumer Protection
1. The Parties shall endeavor to adopt or maintain transparent measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.
2. Each Party shall, where possible, provide protection for consumers using electronic commerce that is at least equivalent to that provided for consumers of other forms of commerce under its relevant domestic laws, regulations and policies. (1)
Article 10.6. Personal Data Protection
1. Each Party shall endeavor to adopt or maintain legislative measures which ensure the protection of the personal data of the users of electronic commerce. In the development of personal data protection standards in electronic commerce, each Party recognizes the importance of taking into account the international standards and the criteria of relevant international organizations.
2. Each Party recognizes the necessity of taking an adequate level of safeguards for the protection of personal data of the users of electronic commerce that is transferred between the Parties.
Article 10.7. Paperless Trading
1. Each Party shall endeavor to make electronic versions of its trade administration documents publicly available.
2. Each Party shall endeavor to accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents. (2)
3. Each Party shall, where possible, work towards the implementation of initiatives which provide for the use of paperless trading.
Article 10.8. Cooperation on Electronic Commerce
1. Recognizing the global nature of electronic commerce, the Parties shall maintain mechanisms on cooperation, including research and training activities, which would enhance the development of electronic commerce. These may include, but are not limited to:
(a) the electronic signatures and the electronic authentication;
(b) the security of electronic commerce, including protection of personal data and online consumers and facilitation of prompt investigation and resolution of fraudulent incidents;
(c) the promotion of the use of electronic versions of trade administration documents used by either Party;
(d) exploring ways to provide assistance between the Parties in implementing an electronic commerce legal framework; and
(e) actively participating in regional and multilateral fora to promote development of electronic commerce.
2. The Parties shall endeavor to share information and experiences on laws and regulations relating to electronic commerce and to assist small and medium enterprises to overcome the obstacles encountered in the use of electronic commerce.
3. Each Party shall, to the extent possible, make cooperative efforts with competent authorities when personal data transferred across its borders are leaked.
4. The Parties recognize the importance of cooperation between their respective national consumer protection authorities on activities related to cross-border electronic commerce in order to enhance consumer welfare.
Article 10.9. Definitions
For the purposes of this Chapter:
digital certificates means electronic documents or files that are issued or otherwise linked to a participant in an electronic communication or transaction for the purpose of establishing the participant’s identity;
electronic signature means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message; and
trade administration documents means forms issued or controlled by a Party which must be completed by or for an importer or exporter in relation to the import or export of goods.
Chapter 11. COMPETITION
Article 11.1. Objectives
The Parties recognize the importance of undistorted competition in their trade relations. The Parties understand that proscribing anti-competitive practices of enterprises, implementing competition laws (1) and policies, and cooperating on competition issues contribute to preventing the benefits of trade liberalization from being undermined and to promoting economic efficiency and consumer welfare.
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices which have as their object or effect the prevention of new entry into the market, restriction or distortion of competition;
(b) abuses by one or more enterprises of a dominant or monopoly position; and
(c) economic concentrations which are conduct of enterprises comprising merger of enterprises, consolidation of enterprises, acquisition of an enterprise, joint venture between enterprises, and other forms of concentration of enterprises.
Article 11.2. Principles In Law Enforcement
1. Each Party shall adopt or maintain comprehensive competition laws that promote competition in its market by proscribing anti-competitive practices, and shall take appropriate actions with respect to anticompetitive practices with the objective of promoting economic efficiency and consumer welfare.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws.
3. The enforcement of a Party’s competition laws shall be consistent with the principles of transparency, timeliness, non-discrimination and procedural fairness.
Article 11.3. Implementation
1. The Parties recognize the value of making the enforcement of their competition laws as transparent as possible and shall endeavor to publish or otherwise make publicly available their laws and regulations addressing fair competition, including information on any exemption provided under such laws and regulations.
2. Each Party shall ensure that any exemption provided under its competition laws shall be transparent and undertaken on the grounds of public policy or public interest.
3. Each Party shall ensure that all official decisions by its competition authorities finding a violation of its competition laws are in writing and set out any relevant findings of fact and the reasoning and legal analysis on which the decisions are based. Each Party shall further ensure that the decisions are notified to the persons concerned. The version of the decisions may omit business confidential information that is protected by its domestic laws and regulations from public disclosure.
4. Upon request of the other Party, a Party shall make available to the requesting Party public information concerning the enforcement policies and practices of its competition laws.
5. Each Party shall ensure that a person subject to investigation is afforded the opportunity to be heard and to present evidence in a hearing. Each Party shall also provide a person subject to the imposition of a sanction or remedy for violation of its competition laws with the opportunity to raise complaint about the sanction or remedy through administrative and judicial review in accordance with its competition laws.
Article 11.4. Application of Competition Laws
1. All enterprises engaged in economic activities, regardless of their ownership, whether state or private, shall be subject to the competition legislation referred to in Article 11.2, in so far as the application of such rules does not obstruct the performance, in law and in fact, of the particular public tasks assigned to them.
2. Each Party shall ensure that enterprises operating in the state-monopolized sectors and domains do not adopt or maintain any anti-competitive practices based on its competition laws.
Article 11.5. Cooperation
1. The Parties recognize the importance of cooperation and coordination between their respective competition authorities to promote the effective enforcement of their respective competition laws and to fulfill the objectives of this Agreement. The Parties agree to cooperate in a manner compatible with their respective laws, regulations and important interests, and within their reasonably available resources.
2. Each Party, through its competition authority, shall notify the competition authority of the other Party of an enforcement activity regarding anti-competitive practices in due course when the competition authority of a Party becomes aware that the important interests of the other Party are likely to be affected, provided that it is not contrary to each Party’s competition laws and does not affect any investigations being carried out.
3. The competition authority of a Party may request coordination from the competition authority of the other Party with respect to a specific case, when important interests of the requesting Party are substantially affected. Such request is without prejudice to the full freedom of the final decision of the competition authority concerned. The other Party may accord sympathetic considerations to such request, as appropriate and in accordance with its competition laws.
Article 11.6. Exchange of Information
The competition authority of a Party shall, upon request of the competition authority of the other Party, endeavor to provide available information to facilitate effective enforcement of its competition laws provided that it is not confidential information.
Article 11.7. Confidentiality
1. Each Party shall maintain the confidentiality of any information provided in confidence by the competition authority of the other Party.
2. The competition authority of a Party shall not disclose such information to any entity that is not authorized by the competition authority providing the information.
Article 11.8. Consultation
1. To foster mutual understanding between the Parties or to address specific matters that arise under this Chapter and without prejudice to the autonomy of each Party to develop, maintain and enforce its competition laws and policies, a Party shall, upon request of the other Party, enter into consultations on issues raised by the requesting Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.
2. The Party to which a request for consultations has been addressed shall accord sympathetic consideration to the concerns of the other Party.
Article 11.9. Technical Assistance
The Parties may engage in technical assistance activities subject to their reasonably available resources in the field of competition, including:
(a) exchange of experience regarding the promotion and enforcement of competition laws and policies;
(b) exchange of publicly available information about competition laws and policies;
(c) exchange of officials for training purposes;
(d) exchange of consultants and experts on competition laws and policies;
(e) participation of officials as lecturers, consultants, or participants at training courses on competition laws and policies;
(f) participation of officials in advocacy programs;
(g) exchange of information and experiences on activities related to competition advocacy and the promotion of competition culture; and
(h) any other form of technical cooperation as agreed by the Parties.
Article 11.10. Dispute Settlement
The provisions of Chapter 15 (Dispute Settlement) shall not apply to any matter arising under this Chapter.
Article 11.11. Definitions
For the purposes of this Chapter: competition authority means:
(a) for Korea, the Korea Fair Trade Commission; and
(b) for Viet Nam, Vietnam Competition Authority and Vietnam Competition Council;
or their respective successors; and competition laws means:
(a) for Korea, the Monopoly Regulation and Fair Trade Act and its implementing regulations;
(b) for Viet Nam, Competition Law of Viet Nam and its implementing regulations; and
(c) any change that the above-mentioned legislation may undergo after the entry into force of this Agreement.
Chapter 12. INTELLECTUAL PROPERTY
Article 12.1. Objectives
The objectives of this Chapter are to: