(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.
51.19. Temporary Safeguard Measures
1. A Party may adopt or maintain measures not conforming with its obligations under Article 51.3 relating to cross-border capital transactions and Article 51.11:
(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 paragraph 1;
(d) 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 shall be promptly notified to the other Parties.
51.20. Prudential Measures
1. Notwithstanding any other provisions in this Chapter, a Party shall not be prevented from taking measures relating to financial services for prudential reasons, including measures for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by an entity supplying financial services, or to ensure the integrity and stability of its financial system.
2. Where the measures taken by a Party pursuant to paragraph 1 do not conform with this Chapter, they shall not be used as a means of avoiding the commitments or obligations of the Party under this Chapter.
3. Nothing in this Chapter shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
51.21. Denial of Benefits
1. A Party may deny the benefits of this Chapter to an investor of another Party that is a juridical person of the latter Party and to its investments if the juridical person is owned or controlled by an investor of a non-Party and the denying Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party that prohibit transactions with the juridical person or that would be violated or circumvented if the benefits of this Chapter were accorded to the juridical person or to its investments.
2. A Party may deny the benefits of this Chapter to an investor of another Party that is a juridical person of the latter Party and to its investments if the juridical person is owned or controlled by an investor of a non-Party or of the denying Party and the juridical person has no substantive business operations in the territory of that latter Party.
Note: The denying Party shall endeavour to notify the other Parties of its decision to deny the benefits of this Chapter to an investor of another Party.
3. For the purposes of this Article, a juridical person is:
(a) “owned” by an investor if more than fifty (50) per cent of the equity interest in it is beneficially owned by the investor; and
(b) “controlled” by an investor if the investor has the power to name a majority of its directors or otherwise to legally direct its actions.
4. Following notification, and without prejudice to paragraphs 1 through 3, the Republic of the Philippines may deny the benefits of this Chapter to an investor 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 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.
51.22. Sub-Committee on Investment
1. For the purposes of the effective implementation and operation of this Chapter, a Sub-Committee on Investment (hereinafter referred to in this Article as “Sub-Committee”) shall be established pursuant to Article 11.
2. The functions of the Sub-Committee shall be to:
(a) discuss and review the implementation and operation of this Chapter;
(b) review the exceptional measures maintained, amended, modified or adopted pursuant to paragraph 1 of Article 51.7 for the purpose of contributing to the reduction or elimination of such exceptional measures;
(c) discuss the exceptional measures adopted or maintained pursuant to paragraph 2 of Article 51.7 for the purpose of encouraging favourable conditions for investors of the Parties;
(d) discuss any other investment-related matters concerning this Chapter; and
(e) report, where appropriate, its findings to the Joint Committee.
3. The Sub-Committee shall be:
(a) composed of representatives of the Governments of Japan and ASEAN Member States; and
(b) co-chaired by an official of the Government of Japan and an official of one of the Governments of ASEAN Member States.
4. The Sub-Committee shall meet at such venues and times as may be agreed by the Parties.
5. The Sub-Committee may, upon mutual consent of the Parties, invite representatives of relevant entities other than the Governments of the Parties with the necessary expertise relevant to the issues to be discussed, and hold joint meetings with the private sectors.
51.23. Work Programme
1. The Parties shall, immediately after the date of entry into force of the First Protocol, enter into consultations on the Schedules of Reservations as referred to in Article 51.7 with the participation of Japan and ASEAN Member States. The Sub-Committee on Investment referred to in Article 51.22 shall function as the forum to discuss the matter.
2. The consultations referred to in paragraph 1 shall be concluded within two (2) years from the date of entry into force of the First Protocol, unless the Parties agree otherwise.
3. The Schedules of Reservations of the Parties as a result of the consultations referred to in paragraph 1 shall enter into force and be incorporated into this Agreement as Annexes 10-I and 10-II in accordance with Article 77.
4. Article 51.7 shall not apply until the date of entry into force of the Schedules of Reservations referred to in paragraph 3. Japan and ASEAN Member States shall enter into further discussions to review subparagraph 1(d) of that Article with a view to examining a possibility for promoting further liberalisation of investment.
5. Article 51.3 shall not affect the right of each Party to adopt, maintain or apply measures that set out conditions and qualifications for admission of investment, including, but not limited to, those with regard to foreign ownership and control. Upon entry into force of the Schedules of Reservations referred to in paragraph 3, this paragraph shall cease to be effective.
6. Article 51.3 shall not apply to any measures that a Party adopts or maintains with respect to establishment, acquisition and expansion of investments until the date of entry into force of the Schedules of Reservations referred to in paragraph 3.
7. Pending entry into force of the Schedules of Reservations referred to in paragraph 3:
(a) an ASEAN Member State may adopt, maintain or apply any measures that do not conform with Article 51.3, provided that:
(i) with respect to investors of Japan or their investments, such measures comply with any other international investment agreement to which both Japan and that ASEAN Member State are parties;
(ii) with respect to investors of another ASEAN Member State or their investments, such measures comply with any other international investment agreement among ASEAN Member States and to which that ASEAN Member State is a party; and
(b) Japan may adopt, maintain or apply any measures that do not conform with Article 51.3, provided that, with respect to investors of an ASEAN Member State or their investments, such measures comply with any other international investment agreement, to which both Japan and that ASEAN Member State are parties.
Note 1: For the purposes of subparagraphs 7(a)(i) and (b), the term “other international investment agreement” means any of the following agreements, as relevant and as may be amended:
(i) Agreement between Japan and the Republic of Singapore for a New-Age Economic Partnership, done at Singapore, 13 January 2002;
(ii) Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership, done at Kuala Lumpur, 13 December 2005;
(iii) Agreement between Japan and the Republic of the Philippines for an Economic Partnership, done at Helsinki, 9 September 2006;
(iv) Agreement between Japan and the Kingdom of Thailand for an Economic Partnership, done at Tokyo, 3 April 2007;
(v) Agreement between Japan and the Kingdom of Cambodia for the Liberalization, Promotion and Protection of Investment, done at Tokyo, 14 June 2007;
(vi) Agreement between Japan and Brunei Darussalam for an Economic Partnership, done at Tokyo, 18 June 2007;
(vii) Agreement between Japan and the Republic of Indonesia for an Economic Partnership, done at Jakarta, 20 August 2007;
(viii) Agreement between Japan and the Lao People’s Democratic Republic for the Liberalisation, Promotion and Protection of Investment, done at Tokyo, 16 January 2008;
(ix) Agreement between Japan and the Socialist Republic of Viet Nam for an Economic Partnership, done at Tokyo, 25 December 2008; and
(x) Agreement between the Government of Japan and the Government of the Republic of the Union of Myanmar for the Liberalisation, Promotion and Protection of Investment, done at Tokyo, 15 December 2013.
Note 2: For the purposes of subparagraph 7(a)(ii), the term “other international investment agreement” means any of the following agreements, as relevant and as may be amended:
(i) ASEAN Comprehensive Investment Agreement, done at Cha-am, 26 February 2009;
(ii) Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, done at Chaam, 27 February 2009;
(iii) Agreement on Investment under the Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea, done at Jeju-do, 2 June 2009;
(iv) Agreement on Investment under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People’s Republic of China, done at Bangkok, 15 August 2009;
(v) Agreement on Investment under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the Republic of India, done at Nay Pyi Taw, 12 November 2014; and
(vi) Agreement on Investment among the Governments of the Hong Kong Special Administrative Region of the People’s Republic of China and the Member States of the Association of Southeast Asian Nations, done at Ha Noi, 18 May 2018.
8. Articles 51.5 and 51.6 shall not apply until the date of entry into force of the Schedules of Reservations referred to in paragraph 3.
9. The Parties shall also enter into discussions with a view to agreeing on the application of Most-Favoured-Nation treatment to this Chapter, including the Schedules of Reservations.
10. The Parties shall also enter into consultations to seek agreement on the application of Articles 51.9 and 51.13 to taxation measures that constitute expropriation.
Annex A to Chapter 7. Expropriation and Compensation
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 in a covered investment.
2. Article 51.9 addresses two situations:
(a) the first situation is direct expropriation, where a covered investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure; and
(b) the second situation is where an action or a series of related actions by a Party that 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-bycase, fact-based inquiry that considers, among other factors:
(a) the economic impact of the government action, although the fact that such action or series of related actions by a Party has an adverse effect on the economic value of an 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 any other legal document; and
(c) the character of the government action, including its objective and whether such 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).
7. Amendment to Chapter 10 (Final Provisions) of the AJCEP Agreement
Paragraph 5 of Article 77 of the AJCEP Agreement shall be replaced by the following:
“5. Notwithstanding paragraph 2, amendments relating only to:
(a) Annex 1 (provided that the amendments are made in accordance with the methodologies and procedures adopted by the Joint Committee for updating Annex 1 to reflect the amendment of the Harmonized System);
(b) Annex 2;
(c) Attachment to Annex 4; or
(d) Annex 5,
may be adopted by the Joint Committee. Such amendments shall enter into force in relation to all the Parties and be implemented from such date as agreed by the Joint Committee.
Note: For greater certainty, paragraph 5 is without prejudice to the completion of any necessary internal procedures by the Government of each Party.”
8. Entry Into Force
1. The Government of each signatory State shall notify the Governments of other signatory States in writing that its legal procedures necessary for entry into force of this Protocol have been completed. This Protocol shall enter into force on the first day of the second month following the date by which such notifications have been made by the Governments of Japan and at least one (1) ASEAN Member State in relation to those signatory States that have made such notifications by that date.
2. In relation to an ASEAN Member State making the notification referred to in paragraph 1 after the date by which the notifications have been made by the Governments of Japan and at least one (1) ASEAN Member State as referred to in paragraph 1, this Protocol shall enter into force on the first day of the second month following the date on which that ASEAN Member State makes the notification.
3. The ASEAN Member State referred to in paragraph 2 shall be bound by any amendment that may have been adopted by the Joint Committee and takes effect pursuant to paragraph 5 of Article 77 of the AJCEP Agreement by the time of entry into force of this Protocol for it. This paragraph shall not prevent the Parties of the AJCEP Agreement for which this Protocol has entered into force from applying such amendment to that ASEAN Member State before the date of entry into force of this Protocol for it.
4. This Protocol shall remain in force as long as the AJCEP Agreement remains in force.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorised by their respective Governments, have signed this Protocol.
DONE in duplicate in the English language and SIGNED at Tokyo on the twenty-seventh day of February in the year 2019, at Siem Reap, Cambodia on the second day of March in the year 2019, and at Hanoi on the twenty-fourth day of April in the year of 2019.
For the Government of Japan:
河野太郎
For the Government of Brunei Darussalam:
Amin
For the Government of the Kingdom of Cambodia:
Sorasak
For the Government of the Republic of Indonesia:
Enggar
For the Government of the Lao People’s Democratic Republic:
K.P
For the Government of Malaysia:
Darell
For the Government of the Republic of the Union of Myanmar:
Thaung Tun
For the Government of the Republic of the Philippines:
RmL
For the Government of the Republic of Singapore:
CS
For the Government of the Kingdom of Thailand:
Chutima Bunyapraphasara
For the Government of the Socialist Republic of Viet Nam:
Tuan Anh
Attachments
Appendix 5. Annex 9 Specific Commitments for the Movement of Natural Persons
Schedule of Brunei Darussalam
Brunei Darussalam may require a natural person of Japan seeking entry and temporary stay under the terms set out in each Section of this Specific Commitments of Brunei Darussalam to obtain an appropriate visa or its equivalent prior to entry.
Section 1. Short-term Business Visitors of Japan
Entry and temporary stay of a period not exceeding ninety (90) days, which may be extended, shall be granted to a short-term business visitor of Japan.
Section 2. Intra-corporate Transferees
Entry and temporary stay for intra-corporate transferees is limited to three (3) year period that may be extended for up to two additional years for a total term not to exceed five (5) years for the following categories:
Managers:
Definition: Natural persons within the organisation who primarily directs the organisation/department/ subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff. It does not include first line supervisors unless employees supervised are professionals; and it does not include employees who primarily perform tasks necessary for the provision of the service.
Executives:
Definition: Natural persons within an organisation who primarily direct the management of the organisation, exercise wide latitude in decision-making and receive only general supervision or direction from higher-level executives, the board of directors, or stockholders of the business. Executives would not directly perform tasks related to the actual provision of the service or services of the organisation.
Specialists:
Definition: Natural persons within the organisation who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organisation’s service, research equipment, techniques or management; may include, but is not limited to, members of a licensed profession.
Section 3. Investors
Entry and temporary stay shall be granted to an investor of another Party for up to three (3) months which can be extended for up to twelve (12) months.
Investors in Brunei Darussalam is defined as a business person who seeks to make an investment or has made investments in Brunei Darussalam and seeking entry and temporary stay for the purpose of dealing with any matters concerning to that investment.
Schedule of the Kingdom of Cambodia
1. Cambodia’s commitments under the Movement of Natural Persons Chapter, and under Articles 50.18 and 50.17 of the Trade in Services Chapter, in relation to the supply by a service supplier of one Party through presence of natural persons of a Party in the territory of another Party apply only in relation to the categories of persons set out below.
2. In accordance with Articles 50.18, 50.17 and 50.20 of the Trade in Services Chapter, for the categories of persons set out in this Schedule, Cambodia specifies below any terms, conditions, limitations or qualifications in relation to the supply of a service by a service supplier of a Party through the presence of natural persons of a Party in the territory of Cambodia.
Business visitors Definition: A natural person who:
- enters Cambodia for the purposes of participating in business meetings, establishing business contacts including negotiations for the sale of services and/or other similar activities;
- stays in Cambodia without receiving income from within Cambodian sources;
- does not engage in making direct sales to the general public or supplying services.
Conditions: Entry visa for business visitors shall be valid for a period of 90 days for an initial stay of 30 days, which may be extended.
Persons responsible for setting up of a commercial establishment
Definition: Persons working in an executive or managerial position, receiving remuneration from an entity as defined below, who are responsible for the setting up, in Cambodia, of a commercial presence of a service provider of a Party, that will support employment of persons described in categories a, b, and c of the intra- Corporate Transferees.
Conditions: The subject persons are not subject to a maximum duration of stay.