Article 8.48. Clearing and Payment Systems
Under the terms and conditions that accord national treatment as provided for in Articles 8.5 (National Treatment) and 8.11 (National Treatment), each Party shall grant to financial service suppliers of the other Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This Article shall not confer access to the Party's lender of last resort facilities.
Subsection 7. International Maritime Transport Services
Article 8.49. Scope, Definitions and Principles
1. This Sub-Section sets out the principles regarding the liberalisation of international maritime transport services pursuant to Section B (Liberalisation of Investment), Section C (Cross-Border Supply of Services) and Section D (Temporary Presence of Natural Persons for Business Purposes).
2. For the purposes of this Sub-Section:
(a) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing or stripping, repairing and making them available for shipments;
(b) "customs clearance services" or alternatively, "customs house brokers' services" means activities consisting in carrying out on behalf of another party customs formalities concerning import, export or through transport of cargoes, whether this service is the main activity of the service provider or a usual complement of its main activity;
(c) "feeder services" means the pre-and onward transportation by sea, between ports located in the territory of a Party, of international cargo, notably containerised, en route to a destination outside the territory of that Party;
(d) "freight forwarding services" means the activity consisting of organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information;
(e) "international cargo" means cargo transported between a port of one Party and a port of the other Party or of a third country, or between a port of one Member State of the Union and a port of another Member State of the Union;
(f) "international maritime transport services" means the transport of passengers or cargo by sea-going vessels between a port of a Party and a port of the other Party or of a third country including the direct contracting with providers of other transport services, with a view to cover multimodal transport operations under a single transport document, but not the right to provide such other transport services;
(g) "maritime auxiliary services" means maritime cargo handling services, customs clearance services, container station and depot services, maritime agency services and maritime freight forwarding services;
(h) "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators but not including the direct activities of dockers, when this workforce is organised independently of the stevedoring or terminal operator companies; the activities covered include the organisation and supervision of:
(i) the loading or discharging of cargo to or from a ship;
(ii) the lashing or unlashing of cargo; and
(iii) the reception or delivery and safekeeping of cargoes before shipment or after discharge;
and
(i) "multimodal transport operations" means the transport of cargo using more than one mode of transport, involving an international sea-leg, under a single transport document.
3. In view of the existing levels of liberalisation between the Parties in international maritime transport the following principles apply:
(a) the Parties shall effectively apply the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis;
(b) each Party shall grant to ships flying the flag of the other Party or operated by service suppliers of the other Party treatment no less favourable than that accorded to its own ships, with regard to, inter alia, access to ports, use of infrastructure and use of maritime auxiliary services, as well as related fees and charges, customs facilities and access to berths and facilities for loading and unloading;
(c) each Party shall permit international maritime service suppliers of the other Party to have an enterprise in its territory under conditions of establishment and operation in accordance with the conditions set out in its respective Schedule of Specific Commitments in Annex 8-A (The Union's Schedule of Specific Commitments) or 8-B (Viet Nam's Schedule of Specific Commitments);
(d) the Parties shall make available to international maritime transport suppliers of the other Party, on reasonable and non-discriminatory terms and conditions, the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, emergency repair facilities, anchorage, berth and berthing services as well as shore-based operational services essential to ship operations, including communications, water and electrical supplies;
(e) the Union, subject to the authorisation by its competent authorities, shall permit the international maritime transport service suppliers of Viet Nam to re-position their owned or leased empty containers which are not being carried as cargo against payment and are transported for their use in handling their cargo in foreign trade, between ports of a Member State of the Union;
(f) Viet Nam, subject to the authorisation by its competent authorities, (39) shall permit the international maritime transport service suppliers of the Union or its Member States to reposition their owned or leased empty containers, which are not being carried as cargo against payment and are transported for their use in handling their cargo in foreign trade, between Quy Nhon port and Cai Mep-Thi Vai port. After five years from the date of entry into force of this Agreement, Viet Nam shall permit the international maritime transport service suppliers of the Union or its Member States to reposition owned or leased empty containers, which are not being carried as cargo against payment and are transported for their use in handling their cargo in foreign trade, between its national ports with the condition that the fed vessels (namely mother vessels) should call at ports of Viet Nam;
(g) the Union, subject to the authorisation by its competent authorities, shall permit international maritime transport service suppliers of Viet Nam to provide feeder services between their national ports;
(h) Viet Nam, subject to the authorisation by its competent authorities, (40) shall permit international maritime transport service suppliers of the Union or its Member States to provide feeder services between Quy Nhon port and Cai Mep- Thi Vai port for their own vessels with the condition that the fed vessels (namely mother vessels) should call at Cai Mep-Thi Vai port.
4. In applying the principles referred to in subparagraphs 3(a) and 3(b), the Parties shall:
(a) not introduce cargo-sharing arrangements in future agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and terminate, within a reasonable period of time, such cargo- sharing arrangements in case they exist in previous agreements; and
(b) abstain, upon the date of entry into force of this Agreement, from introducing or applying any unilateral measures or administrative, technical and other obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of services in international maritime transport.
Section F. Electronic Commerce
Article 8.50. Objective and Principles
The Parties, recognising that electronic commerce increases trade opportunities in many sectors, shall promote the development of electronic commerce between them, in particular by cooperating on the issues raised by electronic commerce under the provisions of this Chapter.
Article 8.51. Customs Duties
The Parties shall not impose customs duties on electronic transmissions.
Article 8.52. Regulatory Cooperation on Electronic Commerce
1. The Parties shall maintain a dialogue on regulatory issues raised by electronic commerce, which shall, inter alia, address the following issues:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services;
(b) the liability of intermediary service providers with respect to the transmission or storage of information;
(c) the treatment of unsolicited electronic commercial communications;
(d) the protection of consumers in the ambit of electronic commerce; and
(e) any other issue relevant for the development of electronic commerce.
2. This dialogue may take the form of exchange of information on the Parties' respective laws and regulations on the issues referred to in paragraph 1 as well as on the implementation of such laws and regulations.
Section G. Exceptions
Article 8.53. General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on establishment or operation of an enterprise or cross-border supply of services, nothing in this Chapter shall be construed as preventing the adoption or enforcement by any Party of measures:
(a) necessary to protect public security or public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic investors or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; or
(iii) safety; or
(f) inconsistent with paragraph 1 or 2 of Article 8.5 (National Treatment) or paragraph 1 of Article 8.11 (National Treatment), provided that the difference in treatment is aimed at ensuring the effective or equitable imposition or collection of direct taxes in respect of economic activities, investors or services suppliers of the other Party. (41)
Section H. Institutional Provision
Article 8.54. Committee on Investment, Trade In Services, Electronic Commerce and Government Procurement
1. The Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement established pursuant to Article 17.2 (Specialised Committees) shall be composed of representatives of the Parties.
2. The Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement shall be responsible for the implementation of this Chapter. To that end it shall monitor and regularly review the implementation by the Parties and consider any matter in relation to this Chapter that is referred to it by a Party.
3. The responsibility for Chapter 9 (Government Procurement) is set out in Article 9.23 (Committee on Investment, Services, Electronic Commerce and Government Procurement).
Chapter 9. Government Procurement
Article 9.1. Definitions
For the purposes of this Chapter:
(a) "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(b) "construction service" means a service that has as its objective the realisation by whatever means of civil or building works based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
(c) "electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
(d) "government procurement" means the process by which a procuring entity as defined in subparagraph (1) obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale;
(e) "in writing" or "written" means any worded or numbered expression that can be read, reproduced and later communicated, and may include electronically transmitted and stored information;
(f) "limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
(g) "measure" means any law, regulation, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(h) "multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
(i) "notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
(j) "offset" means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, of domestic suppliers, the licensing and transfer of technology, investment, counter-trade and similar action or requirement;
(k) "open tendering" means a procurement method whereby all interested suppliers may submit a tender;
(l) "procuring entity" means an entity covered under Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam);
(m) "publish" means to disseminate information in paper format or by electronic means that is distributed widely and is readily accessible to the general public;
(n) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(0) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender,
(p) "services" includes construction services, unless otherwise specified;
(q) "supplier" means a person or group of persons that provides or could provide goods or services to a procuring entity; and
(r) "technical specification" means a tendering requirement that:
(a) sets out the characteristics of:
(i) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(ii) services to be procured, including quality, performance and safety or the processes or methods for their provision;
or
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 9.2. Scope and Coverage
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, "covered procurement" means government procurement:
(a) of goods, services, or any combination thereof, as specified in Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam);
(b) by any contractual means, including purchase, lease, and rental, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraphs 6 and 7, equals or exceeds the relevant threshold specified in Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam), at the time of publication of a notice in accordance with Article 9.6 (Notices); and
(d) that is not otherwise excluded from coverage pursuant to paragraph 3 or Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam), or by the effect of any other relevant parts of this Agreement.
3. Except where provided otherwise in Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of Government Procurement for Viet Nam), this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party, including its procuring entities, provides, including cooperative agreements, grants, subsidies, loans, equity infusions, guarantees, fiscal incentives, and contributions in kind;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts; and
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international organisation or funded by international or foreign grants, loans or other assistance where the recipient Party, including its procuring entities, is bound to apply particular procedures or conditions imposed by the international organisation or other donors for the benefit of their international or foreign grants, loans or other assistance; where the procedures or conditions of the international organisation or donor do not restrict the participation of suppliers, the procurement shall be subject to paragraphs 1 and 2 of Article 9.4 (General Principles); or
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project.
4. Annex 9-A (Coverage of Government Procurement for the Union) and Annex 9-B (Coverage of Government Procurement for Viet Nam) specify in its Sections the following information for each Party:
(a) in Section A, the central government entities whose procurement is covered by this Chapter;
(b) in Section B, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Section C, other entities whose procurement is covered by this Chapter;
(d) in Section D, the goods covered by this Chapter;
(e) in Section E, the services, other than construction services, covered by this Chapter;
(f) in Section F, the construction services covered by this Chapter;
(g) in Section G, any general notes; and
(h) in Section H, the means for publishing the procurement information.
5. Transitional measures for Viet Nam for the application of this Chapter are set out in Section I (Transitional Measures) of Annex 9-B (Coverage of Government Procurement for Viet Nam).
6. If the domestic legislation of a Party allows a covered procurement to be carried out on behalf of the procuring entity by other entities or persons whose procurement is not covered with respect to the goods and services concerned, the provisions of this Chapter equally apply.
Valuation
7. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether this procurement is awarded to one or more suppliers at the same time or over a given period of time, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(i) the total value of any option clause.
8. For recurring contracts that consist, due to an individual requirement of the procurement, in awarding more than one contract, or in awarding contracts in separate parts, the calculation of the estimated maximum total value shall be based on:
a) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.
Article 9.3. Security and General Exceptions
1. Nothing in this Agreement shall be construed as preventing a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition or war materials, or to procurement indispensable for national security or for national defence purposes.
2. Subject to the requirement that such measures are not applied in a manner which would constitute a disguised restriction on international trade, nothing in this Agreement shall be construed as preventing a Party from imposing or enforcing measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to goods or services of persons with disabilities, philanthropic institutions, non-profit institutions carrying out philanthropic activities, or prison labour.
Article 9.4. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party offering the goods or services of both Parties, treatment no less favourable than the treatment the Party, including its procuring entities, accords to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
Compliance and Conduct of Procurement
3. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, by using one of the following methods of open tendering, selective tendering or limited tendering; and
(b) avoids conflicts of interest and prevents corrupt practices, in accordance with relevant domestic laws and regulations.
5. Nothing in this Chapter shall prevent a Party, including its procuring entities, from developing new procurement policies, procedures, or contractual means, provided that they are not inconsistent with this Chapter.
Use of Electronic Means
6. The Parties shall endeavour to conduct covered procurement by electronic means. This includes the publication of procurement information, notices and tender documentation, the reception of tenders and, where appropriate, the use of electronic auctions.
7. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including the establishment of the time of receipt and the prevention of inappropriate access.