(c) To review the exceptional measures maintained, amended, modified or adopted pursuant to Article 6 for the purpose of contributing to the reduction or elimination of such exceptional measures; and
(d) To discuss any other investment-related matters concerning this Agreement.
2. The Committee may, as necessary, make appropriate recommendations by consensus to the Contracting Parties for the more effective functioning or the attainment of the objectives of this Agreement.
3. The Committee shall be composed of representatives of the Contracting Parties. The Committee shall determine its own rules of procedure to carry out its functions.
4. The Committee may establish sub-committees and delegate specific tasks to such sub-committees. The Committee, upon mutual consent of the Contracting Parties, may hold joint meetings with the private sectors.
5. Unless otherwise decided by the Contracting Parties, the Committee shall meet once a year, and otherwise at the request of either Contracting Party.
Article 21.
The Contracting Parties recognize that it is inappropriate to encourage investment by investors of the other Contracting Party by relaxing environmental measures. To this effect each Contracting Party should not waive or otherwise derogate from such environmental measures as an encouragement for the establishment, acquisition or expansion in its Area of investments by investors of the other Contracting Party.
Article 22.
1. In fulfilling the obligations under this Agreement, each Contracting Party shall take such reasonable measures as may be available to it to ensure the observance of this Agreement by local governments in its Area.
2. Each Contracting Party reserves the right to deny to an investor of the other Contracting Party that is a legal person or any other entity referred to in sub-paragraph (b) of paragraph (1) of Article 1 and its investments the benefits of this Agreement, if investors of any third country own or control that investor of that other Contracting Party and that investor of that other Contracting Party has no substantial business operations in the Area of that other Contracting Party under whose laws it is constituted or organized.
3. The provisions of paragraph 2 of Article 2 shall not be construed so as to oblige a Contracting Party to extend to investors of the other Contracting Party and their investments any preferential treatment resulting from its membership of a free trade area, a customs union, an international agreement for economic integration or a similar international agreement.
Article 23.
1. This Agreement shall enter into force on the thirtieth day after the date of exchange of diplomatic notes informing each other that their respective legal procedures necessary for the entry into force of this Agreement have been completed. It shall remain in force for a period of ten years after its entry into force and shall continue in force unless terminated as provided in paragraph 2 below. This Agreement shall also apply to all investments of investors of either Contracting Party acquired in the Area of the other Contracting Party in accordance with the applicable laws and regulations of that other Contracting Party prior to the entry into force of this Agreement.
2. A Contracting Party may, by giving one year's advance notice in writing to the other Contracting Party, terminate this Agreement at the end of the initial ten year period or at any time thereafter.
3. In respect of investments acquired prior to the date of termination of this Agreement, the provisions of this Agreement shall continue to be effective for a period of ten years from the date of termination of this Agreement.
4. This Agreement shall not apply to claims arising out of events which occurred, or to claims which had been settled, prior to its entry into force.
5. The Annexes to this Agreement shall form an integral part of this Agreement.
Conclusion
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE in duplicate at Tokyo, on this fourteenth day of November, 2003, in the Japanese, Vietnamese and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
FOR JAPAN: Yoriko Kawaguchi
FOR THE SOCIALIST REPUBLIC OF Vietnam: Vo Hong Phuc
Attachments
Annex I. EXCEPTIONAL SECTORS OR MATTERS TO ARTICLE 2 AND ARTICLE 4
JAPAN
1. Fisheries within the territorial sea, internal waters, exclusive economic zone and continental shelf
2. Explosives manufacturing industry
3. Aircraft industry
4. Arms industry
5. Nuclear energy industry
6. Space industry
7. Electricity utility industry
8. Gas utility industry
9. Broadcasting industry
10. Freight forwarding business industry
11. Financial services (deposit insurance)
12. The maintenance, designation or elimination (including privatization) of a public monopoly
13. The maintenance, establishment or disposal (including privatization) of a state enterprise
14. Subsidies
15. Land transaction
Treatment referred to in paragraph 2 of Article 2 (most-favored-nation treatment) shall be accorded in the sectors or matters specified in 2 to 14 (other than 10).
SOCIALIST REPUBLIC OF VIET NAM
1. Broadcasting, television
2. Production, publication of cultural products
3. Oil and gas exploitation, and precious mineral mining
4. Fisheries within the territorial sea, internal waters, exclusive economic zone and continental shelf
5. Timber exploitation of natural forest
6. Production of arm, ammunition and explosives
7. Gambling
8. Ownership, utilizasion of land and house
9. Operation of river ports, seaports and airports
10. Share purchasing of the state-owned enterprise
11. Subsidies
Treatment referred to in paragraph 2 of Article 2 (most-favored-nation treatment) shall be accorded in the sectors or matters specified in 1 to 11.
Annex II. EXCEPTIONAL SECTORS OR MATTERS TO ARTICLE 2 AND ARTICLE 4
JAPAN
1. Primary industry related to agriculture, forestry and fisheries (except those covered by Annex I)
2. Mining industry
3. Oil industry
4. Biological preparations manufacturing industry
5. Leather and leather products manufacturing industry
6. Heat supply industry
7. Water supply and waterworks industry
8. Telecommunications industry
9. Railway transport industry
10. Omnibus industry
11. Water transport industry
12. Air transport industry
13. Security industry
14. Registration of aircraft in the national register and matters arising from such registration
15. Matters related to or arising from the nationality of ship, and the acquisition of ship or of any interest in ship
Treatment referred to in paragraph 2 of Article 2 (most-favored-nation treatment) shall be accorded in the sectors or matters specified in 1 to 15 (other than 12).
SOCIALIST REPUBLIC OF VIET NAM
1. Horizontal matters (applied to all sectors and sub-sectors of this Annex)
2. Legal services
3. Accounting, auditing and book keeping services
4. Taxation services
5. Advertising services
6. Value-added telecommunication services
7. Basic telecommunication services
8. Voice telephone services including fix local, long distance and international
9. Construction, installation, operation and maintenance of telecommunication equipment
10. Audio visual service
11. Insurance services
12. Banking and other financial services
13. Real estate business
14. Travel agencies and tours operators services
15. Transportation services
16. Processing of paper, vegetable oil, milk, cane sugar, wood processing (except projects using imported wood)
17. NPK fertilizer, beer and cigarettes
18. Manufacturing and assembling of automobiles
19. Distribution services
20. Electricity and domestic air transport
Treatment referred to in paragraph 2 of Article 2 (most-favored- nation treatment) shall be accorded in the sectors or matters specified in 1 to 20.
Agreed Minutes
The undersigned wish to record the following understanding which was reached during the negotiations for the Agreement between Japan and the Socialist Republic of Viet Nam for the Liberalization, Promotion and Protection of Investment (hereinafter referred to as "the Agreement") signed today:
1. Both Contracting Parties confirm their understanding in respect of Article 2 of the Agreement that each Contracting Party is obliged to accord to investors of the other Contracting Party and to their investments the better of the treatment required by paragraphs 1 and 2 of Article 2, which is the more favorable to such investors or such investments.
2. Both Contracting Parties confirm their understanding in respect of Articles 2 and 18 of the Agreement that:
(a) Article 2 applies to intellectual property rights of investors, and accordingly, that each Contracting Party shall accord to investors and their investments of the other Contracting Party no less favorable treatment than the one accorded to investors of any third country (e.g., United States of America) and their investments; and
(b) Any bilateral agreement (e.g., Agreement between the Socialist Republic of Vietnam and the United States of America on Trade Relations) is excluded from "multilateral agreements in respect of protection of intellectual property rights" provided for in paragraph 2 of Article 18.
3. Both Contracting Parties confirm their understanding in respect of Article 6 of the Agreement that neither Contracting Party shall invoke the provisions of its internal laws and regulations as justification for its failure to perform its obligations not to adopt any new exceptional measure in the sectors or with respect to the matters specified in Annex II.
4. Both Contracting Parties confirm their understanding in respect of Article 19 of the Agreement that, when considering the issues of whether a taxation measure effects an expropriation, the following elements should be borne in mind:
(a) The imposition of taxes does not generally constitute expropriation. The introduction of a new taxation measure, taxation by more than one jurisdiction in respect of specific investments, or a claim of excessive burden imposed by a taxation measure are not in themselves indicative of an expropriation.
(b) A taxation measure will not be considered to constitute expropriation where it is generally within the bounds of internationally recognized tax policies and practices. Taxation measures aimed at preventing the avoidance or evasion of taxes should not generally be considered to be expropriatory.
(c) While expropriation may be constituted even by measures applying generally (e.g., to all taxpayers), such a general application is in practice less likely to suggest an expropriation than more specific measures aimed at particular nationalities or individual taxpayers. A taxation measure would not be expropriatory if it was in force and was transparent when the investment was undertaken.
5. Both Contracting Parties confirm their understanding in respect of Article 22 of the Agreement that:
(a) A free trade area, a customs union and an international agreement for economic integration are normally understood: to fulfill the requirements provided for in Article XXIV of the General Agreement on Tariffs and Trade 1994, Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994 and Article V of the General Agreement on Trade in Services, if a Contracting Party is a Member of the World Trade Organization; and to contain the elements analogous to such requirements, if a Contracting Party is not a Member of the World Trade Organization;
(b) From the point of view of sub-paragraph (a) above, the Agreement between the Socialist Republic of Vietnam and the United States of America on Trade Relations does not constitute "a free trade area, a customs union, an international agreement for economic integration or a similar international agreement" provided for in paragraph 3 of Article 22 in any sense, whereas the Agreement between Japan and the Republic of Singapore for a New-Age Economic Partnership constitutes "a free trade area, a customs union, an international agreement for economic integration or a similar international agreement".