Information Gathering
22. The Parties to the dispute and Third Parties shall respond promptly and fully to any request by an arbitral tribunal for such information as the arbitral tribunal considers necessary and appropriate.
23. An arbitral tribunal may seek information and technical advice from any individual or body which it deems appropriate. However, before doing so the arbitral tribunal shall seek the views of the Parties to the dispute. Where the Parties to the dispute agree that the arbitral tribunal should not seek the additional information or technical advice, the arbitral tribunal shall not proceed. The arbitral tribunal shall provide the Parties to the dispute with any information or technical advice it receives and an opportunity to provide comments.
Reports
24. The arbitral tribunal shall provide to the Parties to the dispute an interim report, meeting the requirements specified in Article 12.3 (Functions of Arbitral Tribunals).
25. The interim report shall be provided at least four weeks before the deadline for completion of the final report. The arbitral tribunal shall accord adequate opportunity to the Parties to the dispute to review the entirety of its interim report prior to its finalisation and shall include a discussion of any comments made by the Parties to the dispute in its final report.
26. The interim report and final report of the arbitral tribunal shall be drafted without the presence of the Parties to the dispute. Opinions expressed in the reports of the arbitral tribunal by its individual members shall be anonymous.
Venue
27. The venue for the arbitral tribunal hearings shall be decided by mutual agreement between the Parties to the dispute. If there is no agreement, the venue shall alternate between the capitals of the Parties to the dispute with the first hearing to be held in the capital of the Responding Party.
Remuneration and Payment of Expenses
28. The arbitral tribunal shall keep a record and render a final account of all general expenses incurred in connection with the proceedings, including those paid to its assistants, designated note takers or other individuals that it retains pursuant to Rule 10.
ANNEX 20-B. OPTIONAL PROCEDURES FOR COMPOSING ARBITRAL TRIBUNALS
As provided in Article 11.3 (Establishment and Re-convening of Arbitral Tribunals), the Parties to the dispute may agree to use any of the following optional procedures, or variations thereof, for the purpose of composing an arbitral tribunal.
Optional Procedure A
1. The Complaining Party and the Responding Party shall each appoint one arbitrator within (period to be agreed by the Parties to the dispute) of the date of the receipt of a request to establish an arbitral tribunal. If either Party fails to appoint an arbitrator within such period, then the arbitrator appointed by the other Party shall act as the sole arbitrator of the arbitral tribunal.
2. Where two arbitrators are appointed in accordance with Paragraph 1, the Parties to the dispute shall designate by common agreement the third arbitrator who shall chair the arbitral tribunal. If the Parties to the dispute have not designated the chair of the arbitral tribunal within (period to be agreed by the Parties to the dispute) of the appointment of the second arbitrator, the two arbitrators appointed in accordance with Paragraph 1 shall designate by common agreement the third arbitrator who shall chair the tribunal. If the chair of the arbitral tribunal has not been designated by the arbitrators within (period to be agreed by the Parties to the dispute) of the appointment of the second arbitrator, the Director-General of the WTO shall, at the request of any Party to the dispute, appoint the chair of the arbitral tribunal within (period to be agreed by the Parties to the dispute) of that request.
Optional Procedure B
1. The Complaining Party and the Responding Party shall each appoint one arbitrator within (period to be agreed by the Parties to the dispute) of the date of the receipt of a request to establish an arbitral tribunal.
2. The Parties to the dispute shall agree on the appointment of the third arbitrator within (period to be agreed by the Parties to the dispute) of the appointment of the third arbitrator who shall serve as chair of the arbitral tribunal. If all three appointments have not been made within (period to be agreed by the Parties to the dispute), the necessary appointments shall be made at the request of any Party to the dispute by the Director-General of the WTO within a further (period to be agreed by the Parties to the dispute).
Optional Procedure C
1. Within (period to be agreed by the Parties to the dispute) of the date of the receipt of a request to establish an arbitral tribunal, each Party to the dispute shall provide to the other Parties to the dispute a list of up to (number to be agreed by the Parties to the dispute) nominees for appointment as arbitrators, including at least two individuals suitable for appointment as chair. The Parties to the dispute shall then consult with each other on the composition of the arbitral tribunal with the objective of appointing the arbitrators drawing as appropriate on the lists of nominees.
2. If all of the arbitrators have not been appointed within (period to be agreed by the Parties to the dispute) of the request to establish an arbitral tribunal, any of the remaining arbitrators shall be appointed at the request of any Party to the dispute by random drawing from the lists of nominees separated for this purpose into separate lists of nominations for appointment as chair or as a regular arbitrator.
Chapter 21. FINAL PROVISIONS
1. Annexes, Appendices and Footnotes
The Annexes, Appendices and footnotes to this Agreement shall constitute an integral part of this Agreement.
2. Relation to other Agreements
1. Each Party reaffirms its rights and obligations under the WTO Agreement and other agreements to which the Parties are party.
2. Nothing in this Agreement shall be construed to derogate from any right or obligation of a Party under the WTO Agreement and other agreements to which the Parties are party.
3. In the event of any inconsistency between this Agreement and any other agreement to which two or more Parties are party, such Parties shall immediately consult with a view to finding a mutually satisfactory solution.
4. Nothing in this Agreement shall prevent any individual ASEAN Member State from entering into any agreement with any one or more ASEAN Member State and/or Australia and/or New Zealand relating to trade in goods, trade in services, investment and/or other areas of economic co- operation.
5. The provisions of this Agreement shall not apply to any agreement among ASEAN Member States. The provisions of this Agreement shall also not apply to any agreement involving any ASEAN Member State and/or Australia and/or New Zealand unless otherwise agreed by the parties to that agreement. (1)
3. Amended or Successor International Agreements
If any international agreement, or a provision therein, referred to in this Agreement (or incorporated into this Agreement) is amended, the Parties shall consult on whether it is necessary to amend this Agreement, unless this Agreement provides otherwise.
4. Disclosure of Information
Unless otherwise provided in this Agreement, nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
5. Confidentiality
Unless otherwise provided in this Agreement, where a Party provides information to another Party in accordance with this Agreement and designates the information as confidential, the other Party shall maintain the confidentiality of the information. Such information shall be used only for the purposes specified, and shall not be otherwise disclosed without the specific permission of the Party providing the information, except to the extent that the Party receiving the information is required under its domestic law to provide the information to judicial proceedings.
6. Amendments
This Agreement may be amended by agreement in writing by the Parties and such amendments shall come into force on such date or dates as may be agreed among them.
7. Depositary
1. The Secretary-General of ASEAN is designated as the Depositary for this Agreement.
2. The Depositary shall promptly notify each Party and provide them with the date and a copy of a notice of withdrawal under Article 9.1 (Withdrawal and Termination).
8. Entry Into Force
1. Each Party shall notify each other Party in writing upon completion of its internal requirements (2) necessary for entry into force of this Agreement. This Agreement shall enter into force on 1 July 2009 for any Party that has made such notifications provided that Australia, New Zealand and at least four ASEAN Member States have made such notifications by that date.
2. If this Agreement does not enter into force on 1 July 2009 it shall enter into force, for any Party that has made the notification referred to in Paragraph 1, 60 days after the date by which Australia, New Zealand and at least four ASEAN Member States have made the notifications referred to in Paragraph 1.
3. After the entry into force of this Agreement pursuant to Paragraph 1 or 2, this Agreement shall enter into force for any Party 60 days after the date of its notification referred to in Paragraph 1.
9. Withdrawal and Termination
1. Any Party may withdraw from this Agreement by giving six months advance notice in writing to the Depositary.
2. This Agreement shall terminate if, pursuant to Paragraph 1:
(a) Australia withdraws;
(b) New Zealand withdraws; or
(c) this Agreement is in force for less than four ASEAN Member States.
10. Review
The Parties shall undertake a general review of this Agreement with a view to furthering its objectives in 2016, and every five years thereafter, unless otherwise agreed by the Parties.
Conclusion
Attachments
ANNEX 3. SCHEDULE OF RESERVATIONS AND NON-CONFORMING MEASURES FOR INVESTMENT. CAMBODIA
LIST A. EXPLANATORY NOTES
1. This List A sets out, pursuant to Article 13 (Reservations and Non-Conforming Measures) of Chapter 11 (Investment), Cambodia's existing measures that are not subject to some or all of the obligations imposed by:
(a) Article 3 (National Treatment) of Chapter 11 (Investment);
(b) Article 4 (Most-Favoured-Nation Treatment) of Chapter 11 (Investment);
(c) Article 5 (Senior Management and Board of Directors) of Chapter 11 (Investment); or
(d) Article 6 (Prohibition of Performance Requirements) of Chapter 11 (Investment).
2. Each entry in this List A sets out the following elements:
(a) Sector refers to the sector for which the entry is made;
(b) Subsector, where referenced, refers to the specific subsector for which the entry is made;
(c) Industry Classification, where referenced, refers to the activity covered by the entry, according to the CPC, ISIC Rev. 3.1 or as expressly otherwise described in that entry;
ISIC Rev. 3.1 means the International Standard Industrial Classification of All Economic Activities as set out in the Statistical Papers, Series M, No. 4, ISIC Rev. 3.1, Statistical Office of the United Nations, New York, 2002; and
CPC means the Provisional Central Product Classification as set out in the Statistical Papers, Series M, No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991.
(d) Level of Government indicates the level of government maintaining the listed measures;
(e) Obligations Concerned specifies the obligations referred to in Paragraph 1 that, pursuant to Article 13 (Reservations and Non-Conforming Measures) of Chapter 11 (Investment), do not apply to the listed measures;
(f) Description sets out the non-conforming measure for which the entry is made; and
(g) Source of Measure means the laws, regulations or other measures that are the source of the non-conforming measure for which the entry is made. A measure cited in the Source of Measure element:
(i) means the measure as amended, continued or renewed as of the date of entry into force of the Second Protocol, and
(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure.
3. In accordance with Article 13 (Reservations and Non-Conforming Measures) of Chapter 11 (Investment), the Articles of this Agreement specified in the Obligations Concemed element of an entry do not apply to the non-conforming measure identified in the Description element of that entry.
4. For greater certainty, the Description element of each of the entries in this List A is to be interpreted in accordance with the relevant cited sources of the non- conforming measures. For greater certainty, to the extent of any conflict between the Description element and other elements in an entry, the Description element shall prevail.
5. The Schedules of other Parties shall not be used to interpret Cambodia's commitments or obligations under Chapter 11 (Investment).
6. Cambodia reserves the right to maintain, modify, add or withdraw, for policy flexibility any reservation in or from the Lists for a period of 24 months from the date of entry into force of this Schedule, provided that relevant non-conforming measure is in existence as of the date of entry into force of the Second Protocol. Any such addition, withdrawal or modification will be submitted to the Depositary who will notify the other Parties, including the relevant laws and regulations. Such reservation shall be deemed to form part of this Schedule upon such notification.
1. Sector: All sectors
Subsector:
Industry Classification:
Level of Govemment: National Administration and Sub-National Administration
Obligations Concerned: National Treatment Most-Favoured-Nation Treatment Senior Management and Board of Directors
Description:
National Treatment and Most-Favoured-Nation Treatment shall not apply to any measure relating to land ownership within the constitutional law, land law and related laws and regulations.
Investors' ownership of land for the purpose of implementing investment projects is granted only to persons of Cambodian nationality in accordance with laws and regulations in force.
A foreigner has ownership rights over the private part of the co-owned building only from the first floor up. The ground floor and under-ground floors shall not be owned by the foreigners. A foreigner is not permitted to have ownership rights over the private part of the co-owned building situated within 30 kilometres distance from land border, and other areas defined by the Royal Government of Cambodia, except the co- owned buildings located in the Special Economic Zones, for important public meeting, and other areas defined by the Royal Govemment of Cambodia.
Land along the border cannot be leased to a national or legal person of a bordering country.
Land owner has the rights to appoint senior management and board of director in accordance with the Labour law.
Source of Measure:
- Article 44 of the Constitution of the Kingdom of Cambodia
- Law on Investment of the Kingdom of Cambodia dated 15 October 2021
- Land Law (2001)
- The Law on Providing Foreigners with Ownership Rights Over Private Part of the Co- Owned Buildings (2010)
- Code of Civil Procedure (2006)
- Civil Code (2007)
- Sub-Decree No. 114 ANKR.BK dated 29 August 2007 on the Mortgage and Transfer of the Rights over a Long-term lease or an Economic Land Concession
- Govemment Circular No. 08 SR dated 17 November 2015
2. Sector: All sectors
Subsector:
Industry Classification:
Level of Govemment: National Administration and Sub-National Administration
Obligations Concerned: National Treatment Prohibition of Performance Requirements Senior Management and Board of Directors
Description:
National Treatment, Prohibition of Performance Requirements and Senior Management and Board of Directors shall not apply to any measure regarding the hiring of employment policies and obligation of an investor.
Employers must give preference to Cambodians when hiring a worker (Article 263 of Labour Law (1997). Investors shall be obliged to promote Cambodian staff to a senior management level, and this promotion shall be made over time.
The maximum percentage of foreigners who may be allowed to be employed in each of the enterprises shall not exceed 10 per cent of the total number of Cambodian employees.
This rate of 10 per cent is divided into three categories of employees:
1. Office employees: three per cent
2. Employees or skilled workers: six per cent
3. Employees or Non-skilled workers: one per cent
For the establishment and operation of a factory, the factory owner shall give priority to Cambodian engineers and technicians.
Foreign labour can be exceeding the above limit with the authorisation of the Ministry of Labour and Vocational Training.
Source of Measure
- Article 22 of the Law on Investment of the Kingdom of Cambodia dated 15 October 2021
- Article 10 of the Law on Administration of Factory and = Handicraft (2006 and amendment 2014)
- Sub-Decree No. 111 ANK/BK dated 27 September 2005 on the Implementation of the Law on the Amendment to the Law on Investment of the Kingdom of Cambodia
- Prakas No. 162 MOSALVY dated 16 July 2001 on the use of the foreign manpower issued by the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation
- Prakas No.196 K.B/ BR K dated 20 August 2014 on Employment of Foreign Labour
- Code of Civil Procedure (2006)
3. Sector: All sectors
Subsector:
Industry Classification:
Level of Govemment: National Administration and Sub-National Administration
Obligations Concerned: National Treatment Senior Management and Board of Directors
Description:
National Treatment and Senior Management and Board of Directors shall not apply to any measure relating to portfolio investments.
- For domestic purchases by non-residents for equity securities, in the primary market, 20 per cent of each subscription for equity is reserved for Cambodian investors, and the remaining 80 per cent is for both Cambodian and non-Cambodian investors. However, the Director General of the Securities and Exchange Commission of Cambodia (SECC) may define the reallocation if the above allocation is not fulfilled.
- A foreign investor cannot buy 100 per cent of subscription of securities publicly issued (maximum 80 per cent).
- A corporate secretary must be a Cambodian national and an independent director shall have work experience condition different from a Cambodian national.
Source of Measure:
- Law on the Issuance and Trading of Non- Government Securities (2007)
- Law on Government Securities (2020)
- Sub-Decree on the Implementation of the Law on the Issuance and Trading of Non- Non-Government Securities (2009)
- Article 65 of Sub-Decree on the Implementation of the Law on the Issuance and Trading of Non-Government Securities (2009)
- Article 36 of Sub-Decree No. 005/15 (2015)
- Sub-Decree on the Conduct and Organization of the Securities and Exchange Commission of Cambodia
- Articles 12 and 23 of Prakas No. 031/10 on Corporate Govemance for the Listed Public Enterprise dated on 15 December 2010
- Prakas on Public Offering of Equities Securities
- Prakas on Public Offering of Debt Securities
- Prakas on Licensing and Supervision of Derivative Trading
- The Guideline on the Mechanics of Trading
- The Guideline on Client Money Account and Mechanism of Deposit, Withdrawal and Seitlement of Client Money for Trading Derivative
- National Economic Development Policy